Regular Session - March 21, 2001
2800
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 21, 2001
11:02 a.m.
REGULAR SESSION
SENATOR MICHAEL A.L. BALBONI, Acting President
STEVEN M. BOGGESS, Secretary
2801
P R O C E E D I N G S
ACTING PRESIDENT BALBONI: 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.)
ACTING PRESIDENT BALBONI: (To
gallery.) Thank you for the help, boys and
girls.
In the absence of clergy, may we
all bow our heads in a moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT BALBONI:
Reading of the Journal.
THE SECRETARY: In Senate,
Tuesday, March 20th, the Senate met pursuant
to adjournment. The Journal of Monday,
March 19, was read and approved. On motion,
Senate adjourned.
ACTING PRESIDENT BALBONI:
Without objection, the Journal stands approved
as read.
2802
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: Mr. President, I
believe there's substitutions at the desk. If
we could make them at this time.
ACTING PRESIDENT BALBONI: The
substitutions will be read.
THE SECRETARY: On page 4,
Senator Goodman moves to discharge, from the
Committee on Investigations, Taxation and
Government Operations, Assembly Bill Number
1971 and substitute it for the identical
Senate Bill Number 720, First Report Calendar
272.
And on page 4, Senator Goodman
moves to discharge, from the Committee on
Investigations, Taxation and Government
Operations Assembly Bill Number 5798 and
2803
substitute it for the identical Senate Bill
Number 3218, First Report Calendar 275.
ACTING PRESIDENT BALBONI: The
substitutions are so ordered.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there will be an immediate meeting of the
Higher Education Committee in the Majority
Conference Room.
ACTING PRESIDENT BALBONI: There
will be an immediate meeting of the Committee
on Higher Education in the Majority Conference
Room.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there's a privileged resolution at the desk,
by myself. Could we have the title read and
move for its immediate adoption.
ACTING PRESIDENT BALBONI: The
Secretary will read.
THE SECRETARY: By Senator
Skelos, Legislative Resolution Number 952,
memorializing Governor George E. Pataki to
proclaim March 25, 2001, as Greek Independence
Day in the State of New York, and honoring the
2804
Federation of Hellenic-American Societies of
Greater New York.
ACTING PRESIDENT BALBONI:
Senator Skelos.
SENATOR SKELOS: Move the
resolution, please.
ACTING PRESIDENT BALBONI: The
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT BALBONI:
Opposed, nay.
(No response.)
ACTING PRESIDENT BALBONI: The
resolution is adopted.
Senator Skelos.
SENATOR SKELOS: With the consent
of the Minority, if we could put all the
members on the resolution. If somebody does
not wish to be on the resolution, they should
indicate to the desk.
ACTING PRESIDENT BALBONI: On
behalf of Senator Skelos, all members who wish
to not be on the resolution please notify the
desk.
2805
Senator Skelos.
SENATOR SKELOS: Could we go to
the noncontroversial calendar.
ACTING PRESIDENT BALBONI: The
Secretary will read.
THE SECRETARY: Calendar Number
201, by Senator Marchi, Senate Print 2953, an
act authorizing the New York State -
SENATOR MARCHI: Lay it aside for
the day.
ACTING PRESIDENT BALBONI: Lay
that bill aside for the day.
THE SECRETARY: Calendar Number
222, by Senator Kuhl, Senate Print 3063, an
act to amend the Education Law, in relation to
procedures.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT BALBONI: Lay it
aside.
THE SECRETARY: Calendar Number
228, by Senator Volker, Senate Print 204, an
act to amend the Penal Law, in relation to
loitering.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT BALBONI: Lay
2806
that bill aside.
THE SECRETARY: Calendar Number
230, by Senator Bonacic, Senate Print 2270, an
act to amend the Penal Law, in relation to the
aggravated harassment of an employee.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT BALBONI: Lay it
aside.
THE SECRETARY: Calendar Number
236, by Senator Padavan, Senate Print 2710, an
act to amend the Penal Law, in relation to
making unlawful immigration a Class C felony.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT BALBONI: Lay it
aside.
THE SECRETARY: Calendar Number
237, by Senator Johnson, Senate Print 2732, an
act to amend the Penal Law, in relation to
criminal contempt.
SENATOR PATERSON: Lay it aside
for the day.
ACTING PRESIDENT BALBONI:
Senator, we're only able to entertain the lay
it aside motion. You're not able to lay it
2807
aside for the day.
Lay that bill aside.
Nice try, though.
THE SECRETARY: Calendar Number
261, by Senator Meier, Senate Print 1445, an
act to amend the Social Services Law, in
relation to eligibility.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT BALBONI: Lay it
aside.
THE SECRETARY: Calendar Number
264, by Senator Alesi, Senate Print 3631, an
act in relation to redistributing.
ACTING PRESIDENT BALBONI: Read
the last section.
THE SECRETARY: Section 17. This
act shall take effect immediately.
ACTING PRESIDENT BALBONI: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 38.
ACTING PRESIDENT BALBONI: The
bill is passed.
THE SECRETARY: Calendar Number
265, by Senator Leibell, Senate Print 3711, an
2808
act to amend the Executive Law and the State
Finance Law, in relation to terms and
conditions.
ACTING PRESIDENT BALBONI:
Senator Skelos.
SENATOR SKELOS: Mr. President,
is there a message of necessity and
appropriation at the desk?
ACTING PRESIDENT BALBONI: Yes,
there is, Senator.
SENATOR SKELOS: Move to accept.
ACTING PRESIDENT BALBONI: All
those in favor of accepting the message of
necessity and appropriation please signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT BALBONI: All
those naying.
(No response.)
ACTING PRESIDENT BALBONI: The
message is so accepted.
Last section.
THE SECRETARY: Section 20. This
act shall take effect immediately.
ACTING PRESIDENT BALBONI: Call
2809
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
ACTING PRESIDENT BALBONI: The
bill is passed.
THE SECRETARY: Calendar Number
266, by Senator Leibell, Senate Print 3712, an
act to amend the Executive Law and the State
Finance Law, in relation to terms and
conditions of employment.
Senator Skelos.
SENATOR SKELOS: Mr. President,
is there a message of necessity and
appropriation at the desk?
ACTING PRESIDENT BALBONI: Yes,
there is.
SENATOR SKELOS: Move to accept.
ACTING PRESIDENT BALBONI: The
motion is to accept the message of necessity
and appropriation. All those in favor signify
by saying aye.
(Response of "Aye.")
ACTING PRESIDENT BALBONI: All
those naying.
(No response.)
2810
ACTING PRESIDENT BALBONI: The
message is so accepted.
Read the last section.
THE SECRETARY: Section 23. This
act shall take effect immediately.
ACTING PRESIDENT BALBONI: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 41.
ACTING PRESIDENT BALBONI: The
bill is passed.
THE SECRETARY: Calendar Number
267, by Senator Leibell, Senate Print 3713, an
act to amend the Executive Law, in relation to
terms and conditions of employment.
ACTING PRESIDENT BALBONI:
Senator Skelos.
SENATOR SKELOS: Mr. President,
is there a message of necessity and
appropriation at the desk?
ACTING PRESIDENT BALBONI: Yes,
there is.
SENATOR SKELOS: Move to accept.
ACTING PRESIDENT BALBONI: The
motion is to accept the message of necessity.
2811
All those in agreement signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT BALBONI: Those
naying.
(No response.)
ACTING PRESIDENT BALBONI: The
message is so accepted.
Read the last section.
THE SECRETARY: Section 23. This
act shall take effect immediately.
ACTING PRESIDENT BALBONI: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
ACTING PRESIDENT BALBONI: The
bill is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President, I
believe that completes the noncontroversial
calendar. If we could go to the controversial
calendar, beginning with Calendar Number 261,
by Senator Meier.
ACTING PRESIDENT BALBONI: The
Clerk will call 261, by Senator Meier.
SENATOR ADA SMITH: Explanation.
2812
ACTING PRESIDENT BALBONI: An
explanation has been asked for.
THE SECRETARY: Calendar Number
261, by Senator Meier, Senate Print 1445, an
act to amend the Social Services Law, in
relation to eligibility.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT BALBONI:
Senator Meier.
SENATOR MEIER: Thank you, Mr.
President.
Mr. President, this legislation
extends some provisions in the Social Services
Law dealing with a program known as the Child
Assistance Program. And just briefly, what
the Child Assistance Program is, it is a
rather innovative approach to providing family
assistance that began back in the 1990s and
attempts to transition people -- and most of
these people are single, working mothers -
from welfare to work.
And it rests on the proposition
that those eligible for the program must have
some degree of employment and that they must
have an effective child support order
2813
involving the absent parent of the involved
children.
The program then rests on the
principles of the ability to keep earnings
above those normally provided for under the
Social Services Law. And one of the most
critical elements is that it permits the
participant in the CAP program to continue
receiving Medicaid benefits for themselves and
for the children who may be involved.
This started as a demonstration
project in 1993. As a result of welfare
reform in 1997, Medicaid eligibility was
decoupled from eligibility for family
assistance. So what this legislation would
do, then, is continue to make the Medicaid
eligibility available to these families, and
it extends that out to the year 2003.
ACTING PRESIDENT BALBONI: Thank
you, Senator Meier.
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. If the Senator will yield
for some questions.
ACTING PRESIDENT BALBONI:
2814
Senator Meier, do you yield?
SENATOR MEIER: Certainly, Mr.
President.
ACTING PRESIDENT BALBONI: The
Senator yields.
SENATOR HASSELL-THOMPSON: Thank
you.
Listening to the history and having
read a little bit of the background of the
bill, Senator, through you, Mr. President,
since the program has been made permanent, why
is Section 131-z being renewed every two years
and not being made permanent along with the
program?
SENATOR MEIER: I think, Mr.
President, we do this with a number of social
services programs. And the hope, of course,
is that we'll -- eventually most of these
programs will eventually work themselves out
the need for their existence.
So we've done these on some
extensions so that we can monitor the
programs, determine their cost-effectiveness.
And in the past, extension has never really
been a problem.
2815
I might add also that one of the
things that's happened with this program, it
was once a pilot program where counties had to
get involved in them on a waivered basis. Now
this is available to any county that wishes to
run the program.
Part of the reason, Mr. President,
I think extending this for a few years at a
time may very well have to do with the
requirement to secure federal waivers from the
Health Care Finance Administration in
Washington, which I think are never on a
permanent basis but only on an experimental.
ACTING PRESIDENT BALBONI:
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. If the Senator would
continue to yield.
ACTING PRESIDENT BALBONI:
Senator, do you continue to yield?
SENATOR MEIER: I'd be pleased
to.
SENATOR HASSELL-THOMPSON: Thank
you. Through you, Mr. President. One of the
things that I found in doing that research is
2816
that over $50 million have been saved as a
result of the pilot in those three counties.
And it also is a clear indication that it
works much, much better than AFDC or any other
of the other public assistance programs.
So why, then, aren't we making it
mandatory for all counties to participate as
opposed to leaving it to their discretion?
SENATOR MEIER: Well, Mr.
President, as a former county executive, I was
one of the first counties to -- Oneida County
was, to do this. We looked at the program, we
determined that it worked for my county.
With all due respect, however, to
the question and to my distinguished
colleague, the questioner, I find on Monday
morning when I drive down here I don't get
smarter the closer I get to Albany. And I
think we really need to let counties take a
look at this to see if it works for their
situation and to let them make that decision
on a local basis.
ACTING PRESIDENT BALBONI:
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Mr.
2817
President, if the Senator would continue to
yield.
ACTING PRESIDENT BALBONI:
Senator, do you continue to yield?
SENATOR MEIER: Yes, I will, Mr.
President.
ACTING PRESIDENT BALBONI: The
Senator yields.
SENATOR HASSELL-THOMPSON: Thank
you. Thank you, Senator.
Through you, Mr. President, the
evaluation results demonstrate that it is
possible to construct programs that not only
encourage work and responsibility but are
fiscally sound. And it is a help-not-hurt.
It would seem, then, that we should
be trying to construct this as we look at
other welfare programs. Has there been any
thought on how we could use this model for
other entitlement programs?
ACTING PRESIDENT BALBONI:
Senator Meier.
SENATOR MEIER: Well, Mr.
President, I would say that this really builds
on the model, I think, of welfare reform
2818
itself overall, in terms of the elements of it
that I think are most useful.
That involves the notion that we
need to take the benefits that are provided
for under public assistance programs and use
them to subsidize and to encourage work. I
think that's one of sort of the guiding
principles that we find throughout welfare
reform.
I think, if I can point to some
other legislation, Mr. President, where we
have tried to do the same thing, take the same
resources that we put in the programs and use
them to directly subsidize and assist work, I
could point to, for example, legislation which
this house passed last year and which the
Governor signed into law so that someone who
may be on public assistance and is attempting
to complete college work can use a work-study
experience or an internship that's part of
their curriculum to count towards their
workfare requirement.
Again, using the same resources,
not spending additional money, but using the
same resources that we're applying to the
2819
particular public assistance recipient, but
helping them to expand their possibilities.
So I think the broad, guiding
public policy of this bill can be found in a
number of things we have done.
ACTING PRESIDENT BALBONI: Thank
you, Senator Meier.
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. On the bill.
ACTING PRESIDENT BALBONI: On the
bill.
SENATOR HASSELL-THOMPSON: I know
that with the stroke of the pen it only puts a
line under "three," as opposed to "one."
However, I want to commend Senator
Meier on this piece and also in terms of the
conscientiousness with which he understands
this bill and is looking at those things that
will help, not hurt persons who really have
had some serious circumstances, in many cases,
and are making an attempt to rebuild their
lives.
And so that I can and will support
this bill, and I commend the Senator.
2820
Thank you.
ACTING PRESIDENT BALBONI: Thank
you, Senator Hassell-Thompson.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT BALBONI:
Senator Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
if Senator Meier would yield for a question.
ACTING PRESIDENT BALBONI:
Senator Meier, do you yield?
SENATOR MEIER: Certainly, Mr.
President.
ACTING PRESIDENT BALBONI: Please
proceed, Senator Paterson.
SENATOR PATERSON: Senator, do
you think that the CAP program as we have set
it up now actually works better than things
would have worked had we never actually had
the federal Welfare Reform Act of 1996 in the
first place?
SENATOR MEIER: Well, Mr.
President, that's a philosophical question.
And one of the things I do enjoy about my job
2821
as a Senator is that we get the chance as a
deliberative body to discuss these ideas.
I think that the CAP program
embodied a number of principles that were
missing in the old welfare system. And by
that I mean the CAP program understands that
the old welfare system penalized work, that it
penalized people who made the effort to secure
support from the absent parent of their child,
because indeed even if they went to work, even
if they cooperated to secure a child support
order, not only were they no better off, they
were frequently worse off, because the old
welfare system required us to take away
virtually a dollar for every dollar they
earned.
And so, under the old welfare
system, before welfare reform, the highest
rate of taxation in this country was not on
millionaires, it was on working, single women
who were receiving public assistance benefits.
So I would think that the approach
under CAP rests on some of the principles that
we find in welfare reform, most notably -
most notably the emphasis on work.
2822
One of the things, Mr. President,
that welfare reform did in the 1997 act was it
opened up CAP so that under the old system you
had to ask for permission from Albany and from
Washington to try CAP. Now, counties are free
to implement this on their own.
ACTING PRESIDENT BALBONI:
Senator Paterson.
SENATOR PATERSON: Mr. President,
on the bill.
ACTING PRESIDENT BALBONI: On the
bill.
SENATOR PATERSON: That was
pretty much what I was hoping that Senator
Meier would say. The CAP program, as you may
know, started in 1987. It was expanded in
1993. We made it permanent -- I hesitate to
use the word "permanentized," because it
bothers my counsel, words like "concretize,"
"permanentize."
But when we did that in 1997, the
results have really been that the people are
working, are making more money, they're paying
more money back in taxes. And although the
program is actually permanent, what I'm hoping
2823
we'll do in the future is to find more ways to
encourage more people who are eligible to
become involved, even though this was a
forerunner to the inevitable federal
legislation that we passed in 1996 with
respect to welfare.
This is one of those programs that
I think both sides of the aisle agree has been
outstanding for those who have been able to
become involved. And my suggestion is that we
try to expand the boundaries of the program,
the perimeters involved, and try to extend it
to more people around the state.
ACTING PRESIDENT BALBONI: Any
other member wishing to be heard?
If not, read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT BALBONI: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT BALBONI: The
bill is passed.
SENATOR SKELOS: Mr. President,
2824
if we could now continue with the
controversial calendar, regular order.
ACTING PRESIDENT BALBONI: The
Secretary will read.
THE SECRETARY: Calendar Number
222, by Senator Kuhl, Senate Print 3063, an
act to amend the Education Law, in relation to
procedures.
SENATOR DOLLINGER: Explanation,
please.
ACTING PRESIDENT BALBONI:
Senator Kuhl, an explanation has been
requested.
Senator Kuhl.
SENATOR KUHL: Yes, Mr.
President. An explanation has been asked for?
ACTING PRESIDENT BALBONI: Yes,
it has, Senator.
SENATOR KUHL: Might I inquire as
to who made the explanation request?
ACTING PRESIDENT BALBONI:
Senator Dollinger, Senator Kuhl.
SENATOR KUHL: Okay. Senator
Dollinger, last year you may remember that we
passed in this house a bill that we called
2825
SAVE. It was a monumental piece of
legislation that really was meant to address
violence in schools.
One of the pieces of that
legislation authorized a removal by a
classroom teacher of a student for a period
not to exceed 10 days. And the student
obviously would have to be provided with an
alternative education.
Part of that particular piece of
legislation required that the school
superintendent, principal, whatever, notify
the parents within 24 hours of the removal
from the classroom and that within 48 hours of
that removal there also be a hearing.
Well, it's come to our attention
that schools don't really operate on an hourly
basis. Certainly they start at a certain hour
and they end at a certain hour, but they don't
work on Saturdays and Sundays. So if you had
a student who unfortunately was removed from a
classroom on a Friday afternoon at 2 o'clock,
the law would require that the parents be
notified by 2 o'clock the next afternoon and
that a hearing be held by 2 o'clock on Sunday.
2826
That really presented a tremendous
burden to those situations on school
districts. And we've had recommendations
coming from superintendents and other people
in the school system that the law be modified
to make the changes to allow those
notifications to occur in the realm of school
days.
And so if you have a student now
who is removed, say, at 2 o'clock on a Friday
afternoon from the classroom, this law would
allow that school to notify the parents by
2 o'clock on Monday and to have a hearing by
2 o'clock on Tuesday. The essence of the
change is to move -- and you can see from the
language that there's a provision dealing with
the definition of when that time actually
would expire.
I think if you look at lines 6 and
7 and also at lines 16 through 20 of the
proposed bill that you'll see that there are
definitions as to how that time period is
modified.
ACTING PRESIDENT BALBONI: Thank
you, Senator Kuhl.
2827
Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, if the sponsor will yield to a
question.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield?
SENATOR KUHL: Yes, be happy to.
ACTING PRESIDENT BALBONI: The
Senator yields.
SENATOR DOLLINGER: Through you,
Mr. President, this is the first opportunity,
at least to my knowledge, that we've had to
look at the implications of Chapter 181 of the
Laws of 2000 in which, as you properly point
out, we created a power to remove a child from
the classroom on behalf of the teacher
presiding in that classroom.
And my question, my first question
is, what has been the impact? You talked
about being contacted by superintendents and
others. Has this whole notion of a teacher
having the ability to remove the student from
a classroom, has there been any demonstration
of success that SAVE has reached the goal that
it was designed to achieve?
2828
SENATOR KUHL: I don't believe
that the law has had enough time for
implementation, Senator, to actually see an
experience. There's only two areas of concern
that we have heard from at this point, one
dealing with the time periods and the other
dealing with -- there's a requirement, a
separate -- actually, well, not a separate
piece of the bill, a separate piece of the
same concept of legislation that dealt with
fingerprinting and not being able to hire a
teacher until the fingerprints had actually
been cleared. And there's a bill being
proposed by Senator Saland that will modify
that.
Every other piece of the
legislation that we've seen, because there are
some points of the legislation that will not
really become effective until July 1st of this
coming year, is that it's meeting with a great
deal of success.
As a matter of fact, Senator, in my
district, you may have seen it on a national
news story just a couple of weeks ago, there
was a student who walked into school with a
2829
loaded pistol and a loaded shotgun, also was
carrying 18 homemade bombs. And I'm told by a
group of professionals that visited me just
yesterday that had it not been for the SAVE
legislation, they would not have already put
the procedures in place that would have
stopped that, as it did, without injury to the
students.
So it appears as though the wisdom
of this body has been tremendously successful
in getting people acclimated, the school
districts acclimated to deal with the
violence. And so this is one of the few
occasions where we've seen any suggestions
where there should be some modification.
SENATOR DOLLINGER: Again,
through you, Mr. President, if Senator Kuhl
will continue to yield.
ACTING PRESIDENT BALBONI:
Senator, do you yield?
SENATOR KUHL: I'll be happy to.
SENATOR DOLLINGER: Senator Kuhl,
I understand and I know of that incident that
you've described, the enormously disturbing
actions of that student and the potential
2830
threat to his peers as well as everybody in
the building.
But based on my recollection,
Senator, this bill was designed not only to
deal with students who were involved in, as
you describe it, the potentially
dangerous-to-everyone kind of action of
bringing loaded weapons and bombs into school,
but it was also designed to deal with students
who were unruly and exceedingly disruptive or
continuously disruptive.
My question, through you, Mr.
President, is do you have a sense, based on
that criteria -- not something as outrageous
as the conduct that you described, but
nonetheless the kind of disruptive conduct
which has extracted a toll in our schools and
prevented quality education from occurring, is
it being used for that purpose as well?
SENATOR KUHL: I don't have a
concept. No reports back yet, Senator.
SENATOR DOLLINGER: Okay.
Through you, Mr. President, if Senator Kuhl
would continue to yield.
ACTING PRESIDENT BALBONI:
2831
Senator Kuhl, do you continue to yield?
SENATOR KUHL: Be happy to.
ACTING PRESIDENT BALBONI: Thank
you. Please proceed.
SENATOR DOLLINGER: Through you,
Mr. President. Senator Kuhl, do you have any
idea how many times statewide we've actually
exercised this authority given under the SAVE?
SENATOR KUHL: No.
SENATOR DOLLINGER: Are we
dealing with a dozen cases or hundreds or -
SENATOR KUHL: No idea.
SENATOR DOLLINGER: Okay.
Through you, Mr. President, if Senator Kuhl
would continue to yield.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you continue to yield?
SENATOR KUHL: Yes.
ACTING PRESIDENT BALBONI: Please
proceed.
SENATOR DOLLINGER: As I
understand this, the provision here is to
change the hours-based period to a number of
school days. My question is, if we change it
to school days and we have a vacation period
2832
in between -- let's say it happens on a Friday
before vacation and there's a week-long
vacation period, a break period. Is my
understanding correct that the notices and the
requirements wouldn't go out until the next
consecutive school day, which could be as many
as ten days later?
SENATOR KUHL: That's not my
understanding, Senator. My understanding is
the requirement would be that it wouldn't have
to. The school would not be, under the law -
or it would be a violation of the law if it
didn't. But every indication we had is that
when there is a removal from school, the
school authorities take immediate action.
By merely placing a 24-hour time
limit that they have to comply doesn't
necessarily mean that they wait till the last
minute of that 24 hours.
So given your hypothetical, I can't
say that that in fact would happen. It's just
that what we are told is that when in fact you
had a removal on your circumstances -- say, at
2 o'clock on a Friday afternoon before a
vacation period were to set in -- I don't see
2833
physically how it would be possible for the
school district to have a hearing within 48
hours. They wouldn't be able to get teachers,
it would be disruptive to everybody.
So the requirement here would be,
if this bill is passed -- and I firmly believe
it will be, because the chairman of the
Assembly Education Committee is carrying this
bill in the Assembly, and that we have a
virtual agreement on this bill that it will
move forward because of the inconvenience it's
causing the school districts. But anyway,
that hearing would not have to occur until the
second day when -- which would be a Tuesday
when that school district came back from that
vacation.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Kuhl will continue
to yield.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you continue to yield?
SENATOR KUHL: Yes.
SENATOR DOLLINGER: My question,
through you, Mr. President, is if that we run
out of that period of time where there's a
2834
vacation period or something of that nature,
what does the family do in the position of not
knowing, or will they not know sort of when
the hearing is going to be scheduled and
what's going to happen to their child in that
ten-day period when they're on vacation? Is
it a possibility that they end up with a
family not sure of what's going to happen for
a significant period of time?
SENATOR KUHL: I don't see that
there's any inconvenience at all, Senator.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Kuhl will continue
to yield.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you continue to yield?
SENATOR KUHL: Yes.
SENATOR DOLLINGER: But again,
Senator, if the definition of school days and
there's a long period of time in between,
doesn't this say, in essence, that the school
district can postpone the hearing for as much
as a couple of weeks over Christmas vacation
and they wouldn't have to act during the
period when the schools are on vacation?
2835
Isn't that what the technical reading of the
bill says?
SENATOR KUHL: No, I don't
believe it says that at all, Senator. It just
simply changes the definition as to when a
school district has to comply. It doesn't
mean that they won't comply.
I can think of the other side of
the coin, Senator. It would seem to me if you
were a concerned parent that you might want
additional time, more than 48 hours from when
this hearing is to be scheduled, to go out and
hire an appropriate representative so your
student, if you thought they were
inappropriately removed from school, to
actually be represented.
So, I mean, it's not looked at as a
delay, it's just a mechanism within which
to -- certainly if you were the aggrieved
parent of this student and you were trying to
hire a lawyer on a Saturday afternoon or a
Sunday morning, I don't know that you hold
hours, Senator, on Saturday afternoons or
Sunday mornings. So I would think that this
might be more appropriately an advantage to
2836
actually the aggrieved student if they felt
aggrieved.
It's simply meant to be a
mechanical change that in fact makes it
convenient for everybody concerned. And I
don't see any downside either to the student,
to the student's parents, or to the
administration.
SENATOR DOLLINGER: Thank you,
Mr. President. Just briefly on the bill.
ACTING PRESIDENT BALBONI:
Senator Dollinger, on the bill.
SENATOR DOLLINGER: Senator Kuhl,
I never had Sunday hours until I got this job,
and then trying to do my legal work requires
me to work Sunday mornings.
Mr. President, I'll be very brief
on this bill. I think I was among those who
commended the Senate Majority last year for
the SAVE legislation.
SENATOR DUANE: Mr. President.
ACTING PRESIDENT BALBONI:
Senator, why do you rise?
SENATOR DUANE: If the Senator
would yield, please.
2837
SENATOR DOLLINGER: Yes, Mr.
President, I'd be glad to yield.
ACTING PRESIDENT BALBONI:
Senator Dollinger yields.
SENATOR DUANE: Thank you.
Senator Dollinger, I believe that
you are a cosponsor of a piece of legislation
called the Dignity for All Students Act.
SENATOR DOLLINGER: That's
correct, Senator.
SENATOR DUANE: And I'm wondering
if you think that the Dignity for All Students
Act might be helpful in lessening the tensions
and potential for violence in the New York
State school system.
SENATOR DOLLINGER: Well, through
you, Mr. President, I think that bill, which I
think is sponsored by Senator Duane, would be
an important addition to our public policy
with respect to the schools and the importance
of educating students about avoiding violence,
about explaining the consequences of violence
to students and educating them about the
consequences of school violence to a whole
range of people who have historically been
2838
victimized in our school systems.
So I do agree with that. I think
that the notion of what we did with the SAVE
program last year, with Senator Kuhl's
leadership and others, was a good first step.
But we're not taking the necessary second step
if we don't do the Dignity in Schools Act.
SENATOR DUANE: Thank you. If
the Senator would continue to yield.
ACTING PRESIDENT BALBONI:
Senator Dollinger, do you continue to yield?
SENATOR DOLLINGER: Yes, I do,
Mr. President.
SENATOR DUANE: I'm wondering if
the Senator is aware that the Dignity for All
Students Act passed out of committee yesterday
in the Assembly.
SENATOR DOLLINGER: I was unaware
of that, Mr. President.
SENATOR DUANE: And through you,
Mr. President, if the Senator would continue
to yield.
ACTING PRESIDENT BALBONI:
Senator Dollinger, do you continue to yield?
SENATOR DOLLINGER: Yes, Mr.
2839
President, I will.
SENATOR DUANE: I'm wondering if
the Senator thinks that, in that this is the
first we've been addressing the Project SAVE,
that it might be a very good time to make sure
that all of our colleagues were aware of the
Dignity for All Students Act and how, with the
proper supervision and regulation by the
Regents and the Education Commissioner, we
could actually make the Dignity Act something
that would benefit all of the school personnel
and students.
SENATOR DOLLINGER: I agree with
the questioner, Mr. President. I think that,
much as the experience today of dealing with
the bill that Senator Kuhl has brought
forward -- which is a correction of a
calculation made by this Legislature that the
24- or 48-hour period, that we could use those
terms to describe the school district's
obligation to deal with or provide a hearing
for and notice to parents, provide them notice
of a suspension, to give them the opportunity
to respond -- much as the bill we're talking
about today is an attempt to build on the
2840
experience of SAVE.
In other words, to take what we had
defined and we had put into place and to
improve it so that it corresponds with the
reality of what's going on in our schools from
an administrative point of view.
I would suggest that the Dignity
for Students Act is another step in that
process, that as we deal with the problems of
conflicts between students and schools,
students and teachers in schools, that it's
critically important that we not simply take
the same tools that we used last year and
assume that they're going to work this year.
And it seems to me that the Dignity
for All Students Act is a good step, the next
step, the essential next step to make that
happen.
SENATOR DUANE: Through you, Mr.
President, if the Senator would continue to
yield.
ACTING PRESIDENT BALBONI:
Senator Dollinger, do you continue to yield?
SENATOR DOLLINGER: I do, Mr.
President.
2841
SENATOR DUANE: I'm sure that the
Senator is aware of the statistics and the
studies that show that bullying and harassment
is often the trigger for making a student act
out.
Sometimes, as most recently in
California, the student who caused that
terrible tragedy to happen had been bullied
and made fun of for being of small stature.
He was -- his sexual orientation was
questioned. All of those things seemed to
have led him to become angry enough to commit
the violent acts which he committed.
And I'm wondering if the Senator
believes that if the Dignity for All Students
Act had been implemented there, if that would
have lessened the tensions and actually been
able to stop this tragedy before it happened.
SENATOR DOLLINGER: Mr.
President, through you, there's never any
guarantee, Senator Duane, that violence won't
occur. And there's never any guarantee that
we in government or in this chamber or in this
Capitol, in conjunction with our Governor,
that we could guarantee to any student who's
2842
victimized by a bully that we're going to
establish a set of laws that will either
present that bullying from happening at all or
to prevent a vengeful student who's the victim
of bullying from trying to extract revenge.
We cannot completely eliminate that
possibility.
But I think I -- I know I -
ACTING PRESIDENT BALBONI:
Senator Kuhl, why do you rise?
SENATOR KUHL: Senator Bonacic, I
rise on a point of order. I question -
excuse me, Balboni.
ACTING PRESIDENT BALBONI: I look
like Bonacic.
SENATOR KUHL: No, no, Bonacic
never looked that good.
(Laughter.)
ACTING PRESIDENT BALBONI: Oh,
thank you, Senator.
SENATOR KUHL: But in any case,
Mr. President, you know, I've been trying to
be attentive to responding questions on a bill
that I have before the house. And I for the
last three, four, five minutes haven't heard
2843
anything about that bill, it's about some
other proposal that I've been reading about in
the papers.
And I don't think it's really
germane to the issue of this bill, which deals
solely with changing time limits on a bill
that we passed last year. And I would
seriously challenge the germaneness of this
debate that seems to be totally oblivious to
the bill at hand and is before the house, and
object to it continuing.
ACTING PRESIDENT BALBONI: Thank
you, Senator Kuhl.
SENATOR DUANE: Mr. President, if
I may respond.
ACTING PRESIDENT BALBONI: No,
Senator Duane, actually there's no debate on
this point of order. There's a question as to
whether or not the chair believes that the
point of order is well-taken, and I do believe
it is well-taken.
Would you please do your best to
continue this discussion in regards to the
bill that's currently before the house.
SENATOR DUANE: Yes, Mr.
2844
President. If the Senator would continue to
yield.
SENATOR DOLLINGER: I will, Mr.
President.
ACTING PRESIDENT BALBONI:
Senator Dollinger, do you continue to yield?
SENATOR DOLLINGER: I do.
SENATOR DUANE: Senator -
through you, Mr. President. Senator, would
you agree that this is the first time that
we've had an opportunity on this floor to
discuss any part of the Project SAVE
legislation since it was passed?
SENATOR DOLLINGER: I believe
that's the case, Senator.
SENATOR DUANE: And through you,
Mr. President, if the Senator would continue
to yield.
SENATOR DOLLINGER: I do.
ACTING PRESIDENT BALBONI: As
long as the question relates to the bill
before us and you're able to keep your
questions in regard to that, Senator Duane.
SENATOR DUANE: Would you also
agree -- through you, Mr. President -- that in
2845
all likelihood Project SAVE was not a
100 percent perfect piece of legislation?
ACTING PRESIDENT BALBONI:
Senator Dollinger, from the chair, the -- your
line of inquiry is about a bill that's not
currently before the house.
So I would ask that you keep your
questions in regard to that bill, since we're
here ready to debate that bill.
SENATOR DUANE: Mr. President,
I'm afraid I'm going to have to challenge your
ruling -- to appeal the ruling.
May I be recognized to speak on the
appeal, Mr. President?
ACTING PRESIDENT BALBONI: The
chair recognizes Senator Duane.
SENATOR DUANE: Thank you.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT BALBONI: The
chair recognizes Senator Paterson.
SENATOR PATERSON: Before Senator
Duane challenges your ruling, Mr. President,
have you actually ruled?
ACTING PRESIDENT BALBONI: That's
a very good point. That's a very good point.
2846
And your point is well-taken, Senator
Paterson.
I have not, in fact, ruled on
anything. And therefore it would be hard to
vote on that. I have merely requested that
the Senator continue his remarks in the spirit
of this debate on this particular measure.
And therefore, I would ask that you
would do that. You've been resistant, but -
we may have to get to a ruling, but let's see
if you could take your comments and make them
in regard to the bill that's currently before
the house.
SENATOR DUANE: Thank you, Mr.
President.
Let me just preface my next
question by saying this feels like a canvass
kind of ruling that we've had, which is not
really a ruling, it's more of a suggestion,
like a suggestion of a discharge or whatever.
But anyway -
ACTING PRESIDENT BALBONI:
Senator Duane, if you want me to rule you out
of order, I'd be happy to do that. Is that
where you want this to go?
2847
SENATOR DUANE: Well, Mr.
President, it's not my job to ensure your
happiness here as the -
ACTING PRESIDENT BALBONI: No,
but it is my job to ensure the deliberation of
this particular bill. And surely you don't
want to upset that, do you, Senator Duane?
SENATOR DUANE: Mr. President,
what I would like to do is to continue to
debate this slight change to the Project SAVE
legislation which -
ACTING PRESIDENT BALBONI: In
that case, Senator, I will rule you out of
order. If you'd like to take an appeal at
this time, that would be appropriate.
SENATOR DUANE: But, Mr.
President, this is -- this bill does deal a
slight change to what happened last year with
the Project SAVE and how an appeal can be
made, is that not correct?
ACTING PRESIDENT BALBONI:
Senator, Senator Kuhl, who is the sponsor of
the particular measure that is before the
house, has indicated that your discussion and
the discussion of this particular project is
2848
not in this particular bill.
Therefore, it is not germane to
this discussion. You've been given lots of
latitude and lots of leeway.
SENATOR DUANE: Then, Mr.
President, I'm going to appeal your ruling.
ACTING PRESIDENT BALBONI: The
question is should the ruling of the chair be
upheld or overruled.
SENATOR DUANE: And I'd like to
be heard on the appeal, Mr. President.
ACTING PRESIDENT BALBONI:
Senator Duane, to be heard on the appeal.
SENATOR DUANE: Thank you.
I am very sure that the whole issue
of pupil removal and why that takes place and
how it's adjudicated is very much part of the
legislation on the floor today. I can't
imagine that we wouldn't want to discuss and
debate here on the floor how to avoid pupil
removal. Pupil removal is a very, very
serious issue.
And I think our responsibility as
legislators is to work as hard as we possibly
can to make it so that pupils are not removed.
2849
I know that -- it certainly seems to me that
it's an important enough issue to try to make
it so that we could resolve this issue.
And for that and many more reasons,
I absolutely think that the questions and the
discussion that we were having is absolutely
germane to Senator Kuhl's legislation which is
on the floor before us today.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT BALBONI:
Senator Paterson.
SENATOR PATERSON: I just wanted
to say that the last question that I heard
Senator Duane ask Senator Dollinger was -- if
I'm correct, he asked him did he think that
the legislation was either 100 percent
successful or that it was particularly
successful in its formation.
And since this bill before us today
is an addendum to the legislation, and Senator
Duane -- I don't know how he voted on the
legislation. I know that when the original
legislation came here, I had concerns about
pupil removal. And I'm going to take them up
with Senator Kuhl, so I'm not going to have
2850
that discussion with you. This is a
discussion on the point of order.
But I thought that that was germane
to whether or not -- not only the discussion,
but to whether or not Senator Duane would
choose to vote for or against this particular
bill.
So I did think that in the context
of this bill, on that last question, that
Senator Duane was properly germane. That's my
feeling on it.
ACTING PRESIDENT BALBONI:
Senator Paterson, I've ruled. So the question
remains before the house, shall the
germaneness ruling of the chair be overruled.
A majority of the members elected will
overrule the chair.
The Secretary will call the roll.
Senator Dollinger.
SENATOR DOLLINGER: Can I just be
heard, Mr. President, on the issue of
germaneness?
Briefly, Mr. President, as I
understand it, the section of the Students
with Dignity Act that Senator Duane has
2851
proposed and carries in this house amends a
corresponding if not the same portion of the
Education Law. And it seems to me that since
this issue of what happens and what are the
procedural rights upon removal from a
classroom, the substantive issue of the basis
for that removal is intertwined with it.
With all due respect to the chair,
this is a bill that raises the issue of how
school districts respond to student violence,
student bullying, student disrespect, and what
are the procedural requirements that we set
forth for school districts to comply with in
order to remove students from classrooms.
I think Senator Duane is suggesting
that before we analyze those procedural steps,
we ought to look at the substantive steps
under which people could be removed as well.
ACTING PRESIDENT BALBONI:
Senator Schneiderman, why do you rise?
SENATOR SCHNEIDERMAN: If I may
be heard on the appeal, Mr. President. And I
know you like hearing that.
ACTING PRESIDENT BALBONI:
Senator Schneiderman.
2852
SENATOR SCHNEIDERMAN: My concern
with this is that this is an area of the law
that I must say, sitting and looking at
Section 3214 as we sit here, this is an
extremely complicated area. There is a lot
encompassed within this.
And I'm concerned that it -- I
don't think we should cut off discussion of
the substantive provisions of the law when
we're discussing changing the procedure. I
think that, you know, there's issues in here
relating to violent students, students who are
defined as disruptive, students who are
defined as insubordinate, disorderly. I mean,
it's a very complicated thing. There are
different kinds of student conflict
encompassed within this.
And I think this is the kind of
situation in which, were we not under the
strict time limits set forth by the new rules,
that I think we very well might have an
amendment to offer up to today to address some
of these issues. And I think part of the
reason we're engaging in more discussion of
the substance of the bills now is that our
2853
ability to do that has been severely
curtailed.
But the substantive issues
underlying the legislation that we vote on
should not be curtailed, and we are trying to
fully carry out our duties as Senators. And I
therefore think that Senator Duane should be
allowed to continue his questions.
Thank you, Mr. President.
ACTING PRESIDENT BALBONI: The
Secretary will call the roll.
THE SECRETARY: Senator Alesi.
SENATOR SKELOS: Party vote in
the negative.
SENATOR PATERSON: Party vote in
the affirmative.
ACTING PRESIDENT BALBONI: The
Secretary will announce the party vote.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 25. Nays,
32. Party vote.
ACTING PRESIDENT BALBONI: The
ruling of the chair is upheld.
Senator Dollinger.
SENATOR DOLLINGER: Mr.
2854
President, I still believe I had the floor
when Senator Duane was questioning me.
ACTING PRESIDENT BALBONI: That
is correct, Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, just to finish up on this bill.
I'm going to vote in favor of this
bill. But I do think that Senator Kuhl, in
his discussions with Assemblyman Sanders,
needs to look at the question of what happens
during a school vacation.
As we all know, the schools have
consistent, periodic vacation periods where
the school is closed for a significant period
of time and we don't have a school day. At
Christmas vacation, it could be two weeks
before another school day occurs.
Thanksgiving, it's three or four days. Spring
break, it's another week.
All of those implications to this
statutory change I think should be explored
before we end up in a position where a school
district can take as much as two weeks before
the hearing occurs because there's no actual
school going on.
2855
Senator Kuhl, I'm going to vote in
favor of this bill, but I would suggest that
there has to be some provision to allow those
hearings and notice to occur during a period
of time when school isn't in session but
nonetheless the administration and all the
other people in the school are working, it's
just that it's not a teaching day and not a
school day.
Under those circumstances, Mr.
President, I'm going to vote in favor. But it
should take another look with Assemblyman
Sanders.
ACTING PRESIDENT BALBONI:
Senator Onorato.
SENATOR ONORATO: Mr. President,
will the sponsor yield to a question?
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield for a question?
SENATOR KUHL: Certainly, Mr.
President.
SENATOR ONORATO: Senator Kuhl, I
know in part of the legislation it allows a
teacher to remove disruptive students from the
classroom consistent with the discipline
2856
measures contained in the school's code.
Now, I've heard from some teachers
in my district that have difficulty in getting
the principal to agree with their policy.
What is in here that guarantees that the
teacher will be allowed to follow through with
it? I mean, what is there -- is there any
penalties in here for a principal refusing to
allow the teacher to remove what she considers
to be a disruptive or violent student from her
classroom or his classroom? Because in many
instances the principals of the same school
don't want to make any waves and they just
pooh-pah them off the subject.
Now, how can we -- what is in this
bill that guarantees that that teacher has
that right?
SENATOR KUHL: Your question,
Senator, doesn't have anything to do with this
bill. This bill solely changes the time
period within which a notification to a parent
of a student removal or a hearing is actually
conducted.
So your question has nothing to do
with the legislation before this body.
2857
SENATOR ONORATO: Wasn't it in
the original bill?
SENATOR KUHL: Well, the original
bill was passed and debated in this house last
year, Senator. But it has nothing to do with
this bill.
SENATOR ONORATO: Thank you.
ACTING PRESIDENT BALBONI: Thank
you, Senator Onorato.
Senator Paterson, why do you rise?
SENATOR PATERSON: If Senator
Kuhl would yield for some very germane
questions.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield?
SENATOR KUHL: I'll yield to
Senator Paterson.
ACTING PRESIDENT BALBONI:
Senator Paterson, please proceed.
SENATOR PATERSON: Under Section
3214 of the law, how would a snow day be
classified? Would that be a holiday, or is
that a school day?
SENATOR KUHL: A snow day meaning
a day that -
2858
SENATOR PATERSON: That the
school is closed.
SENATOR KUHL: Okay. Now,
notification before the school day actually -
before the day actually started, Senator?
SENATOR PATERSON: Right.
SENATOR KUHL: Then this would be
a -- not a school day.
SENATOR PATERSON: Mr. President,
if Senator Kuhl would continue to yield.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you continue to yield?
SENATOR KUHL: Yes.
ACTING PRESIDENT BALBONI: Thank
you.
SENATOR PATERSON: Senator,
there's a story in today's paper involving a
Long Island school district. And this
particular student was removed from the school
last year because he listed the names of
students and teachers on the Internet who he
planned on attacking. And it was actually a
story in the news last year. It's again a
story in the news today because the student
apparently has threatened to blow up the
2859
school. So again, the student has been
removed.
Now, the issue that I'm raising
with you is that in this particular case, the
student was removed last year by the teacher.
And one of the reasons that -- I voted for the
legislation to implement SAVE last year, but
one of the problems I had with it, and I think
that Senator Montgomery and Duane and some
others had this problem as well, is this issue
of removing the student by the teacher.
And the reason it relates to this
bill is because what we often have is a
situation that's so serious that, unlike, you
know, the classic disruptive student that just
gets removed by the teacher, we feel that
there has to be some involvement of the
administration. So if you're removing a
student even for notification 24 hours
later -- and I can see about the 48-hour
hearing. I understand that part of the bill.
But for the 24 hours, why would we not want
this to occur on a Saturday, being that the
seriousness of what removing a student from a
classroom could entail now?
2860
In other words, do we want to leave
to the teacher to get all the way to Monday
when exactly what the student is up to,
tragically, these days, could be a little more
important than a student that cuts up in class
or fights in class and needs to be removed for
some period of time?
SENATOR KUHL: Senator, I think
that your understanding of the situation and
mine are a little bit different. And I think
that you're kind of mixing apples with
oranges, so to speak. That's part of my
agricultural background, as you may remember.
The situation that you alluded to
as in the paper, I haven't had -- don't know
what paper you're talking about and haven't
had the opportunity to see the story. But
that really wouldn't apply in this particular
situation, because what you're taking about
here is the ability of a teacher to remove a
student from that teacher's classroom. A
student still has and will be given a
classroom to attend, but it won't be in that
teacher's classroom that actually is
initiating the 10-day removal.
2861
So I'm trying to smile at the same
time of answering your question. And it's not
particularly difficult, Senator, but -- but I
think that there's some confusion. If you'd
like to present that a little closer to me,
I'd be happy to -
(Laughter.)
SENATOR KUHL: Thank you for
providing the article to me.
So I don't know that it
particularly pertains to this particular
proposal, Senator.
ACTING PRESIDENT BALBONI:
Senator Paterson.
SENATOR PATERSON: Mr. President,
just on the bill.
ACTING PRESIDENT BALBONI:
Senator Paterson, on the bill.
SENATOR PATERSON: I don't want
to mix apples with oranges, as Senator Kuhl's
agricultural background explains to him,
rather than apples and potato chips, which I
believe you, Mr. President, referred to a
couple of weeks ago.
I'm sorry, that was another
2862
Senator, Mr. President. My mistake. Senator
Marcellino did that.
But on the bill, I'm just pointing
out that the removal of a student is a very,
very serious issue, even if it is just a
student that's fighting or, you know, what -
or the classic removals I recall before the
last decade and the tragedies that have
occurred and have happened all too frequently
in our society.
But as was said in a hearing in the
1970s by Deputy Chancellor Neil Shapiro, of
New York City, children don't relive a day.
And so at any point that we would remove them
from the school, when you think of the
custodial issues involved and also the absence
of the student from the information that we
are trying to impart to the young person
through our educational system, I think that
we have to be scrupulously dedicated to
providing the right environment for the appeal
of the removal and also the procedure of the
removal.
I don't think that it is that
difficult, if you remove a student on a
2863
Friday, to notify the parents on Saturday of
what is going to be the outcome of this
removal. I agree with Senator Kuhl, I like
the part about the 48-hour hearing. I think
that, you know, it goes into the weekend, it
doesn't give both sides really the type of
opportunity that they would have in a week.
But just the mere 24-hour rule of
creating a notification in my opinion should
stay the same as it is. I don't see any
reason to actually change that.
Yes, the administrators might have
to go into the weekend from time to time.
Hopefully this doesn't happen many times, it's
an extraordinary circumstance. But because it
is an extraordinary circumstance, I think
perhaps the use of the weekend day reminds
everybody that it has to occur as quickly as
possible. That's my feeling.
What I did share with Senator Kuhl
was that this incident yesterday took place in
Bethpage, Long Island, at the John F. Kennedy
Middle School, where a 13-year-old posted on
his website his intention to blow up the
school. This following another incident last
2864
year for which a student was removed by a
teacher after threatening on his website other
students in the particular class, and there
was somewhat of a concern about how long it
took the information to get to the
administration in that particular case.
ACTING PRESIDENT BALBONI:
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. If the sponsor would yield for
a couple of very brief questions.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield for a question?
SENATOR KUHL: I'll be happy to
yield to a question.
ACTING PRESIDENT BALBONI:
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President. I
gather that the main intention of this is to
make -- to enable the principal and the school
administration to have enough time to really
deal with this sort of situation of student
suspension; is that not correct?
SENATOR KUHL: It's essentially
2865
to put a law into effect that will be usable,
Senator.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, I wonder if a better
approach might not be -- and I don't claim any
great expertise other than being the parent of
a child in public school -- to perhaps allow
someone other than the principal in some
situations to be the person who conducts the
hearing.
I think in my daughter's school,
for example, the elementary grades are
completely under the authority of an assistant
principal. There are a lot of other people in
the system who can provide these hearings.
And the reason for my concern about
this is that there seems to be something of a
disincentive for already overburdened
principals to really want to go through this
process.
And I understand extending the time
a little bit may be a little bit helpful. But
isn't the real crux of the problem the fact
that if you are a principal, working as hard
as principals work in a large school, the fact
2866
that the law, as I read it, requires the
principal personally to deal with this, I
think isn't that really something we should be
addressing?
SENATOR KUHL: Senator, the bill
addresses just simply the time limits. It
doesn't deal with administrative
responsibilities in one shape or another.
That was all dealt with in the initial bill.
This bill only deals with changing
the time limits for notification of the
hearing, notification of actually the removal
from the classroom. It doesn't deal with
who's going to do it or anything else. So
your question really doesn't pertain to the
essence and the drive of this particular
proposal.
The proposal just is meant to
really cure a problem that we essentially
created when we created this bill last year -
that we had some discussions about, as a
matter of fact, but at that time there was no
agreement to deal with school days. But now
the problem has been voiced to both houses and
to the Governor from the people who have had
2867
to administrate this bill.
And so what we're trying to do is
just deal with that simple, difficult problem
that we've created, and that is timely
notification.
SENATOR SCHNEIDERMAN: Okay.
Thank you. Through you, Mr. President, if the
sponsor would continue to yield.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you continue to yield?
SENATOR KUHL: Yes.
ACTING PRESIDENT BALBONI: Please
proceed.
SENATOR SCHNEIDERMAN: In these
discussions about how to modify the bill -
and I'm just trying to get clarification -
has there been any discussion of the issue
that I raised of expanding the number of
people who may be able to provide this hearing
as an alternative mechanism or a supplemental
mechanism to dealing with this problem of too
much time pressure?
SENATOR KUHL: No.
SENATOR SCHNEIDERMAN: No? Thank
you, Mr. President. Thank the sponsor.
2868
On the bill.
ACTING PRESIDENT BALBONI:
Senator Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I mean, in
my view, I appreciate this is an extremely
difficult area of the law, and I know Senator
Kuhl and Assemblyman Sanders labor mightily in
trying to resolve issues like this. And there
often are not clear answers.
I do think that -- my concern
really, and the reason I raise the issue about
broadening the number of people is that, you
know, we talk about unfunded mandates here.
And usually we're referring to money. But
when you're talking about a principal in a
public school, unfunded mandates may also
really -- not unfunded mandates, but
unassisted mandates may also relate to time.
And currently a major, major
problem in the New York City school system and
I believe elsewhere in the state is the fact
that principals are so overburdened they can't
take the steps that they would like to take to
make sure their school operates at top
efficiency.
2869
In fact, one of the findings of a
group of management consultants from McKinsey
& Company that went into the New York public
school system was that it is possible for
principals to discipline teachers who are not
performing, but most principals do not do it
because they don't have the time to follow the
procedural steps necessary to get it done in
accordance with the current law.
So I think the time that it takes
for the principals to adequately perform all
of the obligations that we set forth under
Section 3214 I think really requires us to
look at the issue of perhaps easing that
burden. And I'm not saying there's a clear
answer, but in a school where an assistant
principal has authority over a large number of
students, I think that may be an option we
could look at.
Thank you, Mr. President.
ACTING PRESIDENT BALBONI:
Senator Lack.
SENATOR LACK: Thank you, Mr.
President. I've listened carefully to the
last two sets of questions that have been
2870
presented by Senator Schneiderman and Senator
Paterson. And I realize that of course
they're asking with respect to practices they
think go on in schools.
For the benefit of all my
colleagues, I just thought I'd just spend a
minute so no one is left with the impression,
particularly when it concerns suburban school
systems on Long Island, that there are not
already practices in place to handle the types
of situations that Senator Paterson referred
to in a newspaper article that referenced the
Bethpage school system -- which is not in my
Senate district, but of course is no different
than the other 126 school systems on Long
Island.
All of them, including the one in
which my wife happens to be an assistant
superintendent in charge of such areas, have
already had and continue to have extant rules
and regulations, regardless of the statute
that we passed last year, that requires all
employees of the school district, teachers
included, to report any types of threats that
would have the intent to cause the type of
2871
situation that unfortunately you've read about
in the papers all too often. And that
requires immediate notification.
And it has nothing whatsoever to do
with the statute we passed last year, but it
has to do with the relationship between
employee and employer in a school district.
The same with respect to Senator
Schneiderman's comments, which I happen to
agree with. But as in superintendent's
hearings, the same is true of the principal
hearings that we passed. Designees are often
used who act in the superintendent's name and
conduct a superintendent's hearing or a
principal's hearing, the final decision of
which, after the hearing has been made, is
adjudicated by the main person with the
responsibility, the principal or the
superintendent, as the case might be.
But that of course is not what is
before us on the floor of the Senate today.
We should be mindful that Senator Kuhl is
talking about a small amendment, with finite
terms, with respect to the statute that passed
last year. This is not an open discussion on
2872
extant school practices that are well in
place, have not been questioned, and indeed
are not causing any problems, such as
superintendent's hearings or the manner by
which any school employee shall notify school
administration of any attempt by anybody to
cause the potential of property damage or
damage to person on school grounds.
ACTING PRESIDENT BALBONI:
Senator Montgomery, why do you rise?
SENATOR MONTGOMERY: Yes, thank
you, Mr. President. I would ask if Senator
Kuhl would yield for a question.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield for a question?
SENATOR KUHL: I'll be happy to
answer a question from Senator Montgomery.
ACTING PRESIDENT BALBONI: The
Senator yields.
SENATOR MONTGOMERY: Yes.
Senator Kuhl, I understand that you want to
give more time, which you consider to be
logical, as it relates to the possibility of a
school contacting the parents or the 24-hour
period falling within a reasonable time.
2873
But I just would like to ask you,
the school day ends at 3 o'clock and -- well,
I won't try to say that my day ends at any
logical time. But certainly most parents who
work, their day ends at 5 o'clock or somewhere
around there, I would imagine. So my question
is, why is it that the school is not required
to contact a parent immediately when there is
a question that a child is being summarily
dismissed from a class for disciplinary
reasons?
I would like to know immediately
that my son is being dismissed from his class.
Why don't we require that the school contact
that parent immediately?
SENATOR KUHL: Well, your
question really doesn't deal with this
specific proposal, but I'll answer it in hopes
that you'll understand.
The discussion and thought was that
oftentimes parents aren't immediately
available. And sometimes, for instance, if
your son were -- if you had a son and he were
removed from a teacher's classroom, say, in
about ten minutes and you happened to leave
2874
this august body, it having adjourned and not
having been needlessly continued for a number
of hours later but was adjourning and you were
on the road heading home, that it would be
difficult for a school superintendent,
principal, or teacher to get hold of you.
They might not have your cell number, they
might not have some type of interim number.
So it was thought that in the hopes
of there being a second or a third or a fourth
or a fifth attempt to get to you, that it was
reasonable to expect a school district, under
extreme circumstances or normal circumstances,
to contact a parent within 24 hours. Because
this is not a life-threatening situation.
This is just a simple removal from a classroom
where a student may be disruptive, and 24
hours is normally thought to be a sufficient
amount of time. That was a reasonable amount
of time that was agreed to between both houses
and the Governor.
SENATOR MONTGOMERY: Mr.
President, if I can continue to ask -
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you continue to yield?
2875
SENATOR KUHL: Yes.
ACTING PRESIDENT BALBONI: Please
proceed, Senator Montgomery.
SENATOR MONTGOMERY: Thank you.
Senator Kuhl, the bill talks about
disciplinary -- disruptive students. We are
talking about disruptive students. And as far
as I recall from the original legislation,
"disruptive" was relatively loosely defined.
So my question is, under what
circumstances would a student be considered
disruptive to be removed from the classroom?
Is there a level of seriousness that is
required before a teacher can make that
decision?
SENATOR KUHL: Senator, the bill
doesn't talk about disruptive students in any
way, shape or form. If you look at the bill,
it quotes the sections of the law and the
period that the bill -- the proposal simply
deals with that underlying portion. And I can
read the language to you if you wish. And it
starts out in Section B and says the principal
shall inform, and it talks about within 24
hours of the pupil's removal. Then this
2876
proposal, the underlying language says
"provided that if such period shall not end on
a school day, it shall be extended to the
corresponding time on the next school day."
Simple. Talks about time changes.
The next area of change is
continued in that same paragraph where it
talks about removal hearings and those being
within 48 hours of the pupil's removal. Then
the new proposal talks about "provided that if
such period shall not end on a school day, it
shall be extended to the corresponding time on
the second school day next following the
pupil's removal. For purposes of this
subdivision, school day shall mean a school
day as defined pursuant to Clause 5 of
subparagraph 3 of paragraph G of subdivision 3
of this section."
And there's one continuing thing
where it talks about the insertion of a
"school" before "day" and "next," and then two
words, "of the."
That's the total proposal. It
deals with the time period, doesn't talk about
disruptive. For your benefit, there is a
2877
definition of a disruptive student in the
Education Law. That's not included in this
bill proposal. And I don't want really to get
into a discussion about that. That would have
been more appropriate when we adopted the SAVE
legislation last year. It's not what's before
this house today.
SENATOR MONTGOMERY: All right.
Thank you, Senator Kuhl.
Briefly on the bill.
ACTING PRESIDENT BALBONI:
Senator Montgomery, on the bill.
SENATOR MONTGOMERY: Yes. Mr.
President, I believe that I was in fact absent
on the day that we passed the agreed-upon
final version of the SAVE bill, SAVE law.
However, I did have one recorded no vote on
that legislation. And had I been present, I
would have voted no on the final version.
One of the main reasons was the
whole question around the fact that we would
allow teachers to remove and suspend young
people from the classroom.
Now, obviously we don't have enough
support for teachers in the classroom. In
2878
other words, when there is a student who is
disruptive, we don't generally have a safe
haven for those students.
Certainly in my son's school, if a
teacher dismisses him from his class because
of disruptive behavior, that -- he is
traumatized and instantly needs a support from
his parents, from me, his father, someone in
the school, someone that he knows. Someone
needs to be there for that young person. And
we don't have that in place.
So this really needs to be -- we
need to think this through very carefully.
And I do not personally accept nor understand
why it is not important enough, if there is a
problem with a child and that young person is
disruptive, is disturbed to the point where he
or she becomes disruptive, I do not understand
why parents cannot be contacted.
I can be contacted. There are -- I
fill out tons of papers every year. When it's
time for my son to enroll, every single year I
fill out papers, and there must be ten or more
telephone numbers, names of people -- I have
neighbors, I have friends, I have relatives, I
2879
have myself, I have everyone who knows that
child, they're listed on those forms. So
there is no excuse for a school not to contact
someone on all of those lists when there is a
problem with a child.
And I must say that we do not have
in our school system a strong enough support
system for young people, and this shows up in
many different ways, one of them being that
very often kids act out. It also shows up
very often in teachers becoming so overwhelmed
that they lose the capacity to really deal
with young people and their issues and
problems.
So I'm going to vote no on this,
not because I don't care about safety in the
school, but because I think that we need to be
much more careful about how we punish young
people. And for a young person who is having
any problem in a school, dismissing that young
person is a punishment.
Thank you, Mr. President. I'll be
voting no on this legislation.
ACTING PRESIDENT BALBONI: Thank
you, Senator Montgomery.
2880
Senator Sampson.
SENATOR SAMPSON: Mr. President,
would the sponsor yield for one question.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield for a question?
SENATOR KUHL: Yes.
SENATOR SAMPSON: Through you,
Mr. President. I wanted to ask the sponsor if
in fact there's notification by the police if
the student is arrested within the classroom,
does notification by the police count within
the time frame of this statute?
SENATOR KUHL: Senator, I'm not
sure I understand your question.
The police aren't involved in this
concept at all. This is solely an
administrative process that's dealt with
within the school. If a student is removed,
for whatever reason it happens to be, there's
a time limit placed on that student's parents
being notified. And then there's a time limit
placed within which you have to have a removal
hearing. One is 24 hours, one is 48 hours.
It has nothing to do with criminal
enforcement agents or anything -- anybody
2881
outside the school. It has only -- it only
deals with control by a teacher of their
classroom.
Senator Montgomery dealt with the
issue of disruptive students and then talked
about that. That is the underlying basis for
what bring this legislation here. If a
teacher in fact decides, under the law that we
passed last year, to remove a student, that
student's parents have to be notified within
24 hours. Okay?
And the concept here is that if
that 24-hour period does not end on a normal
school day, then it will be extended to the
next school day. Or if the hearing does
not -- that 48-hour period does not end on a
school day -- which would occur if you had a
normal school week where there's classes
Monday, Tuesday, Wednesday, Thursday, Friday;
the removal on Monday, Tuesday, Wednesday,
that would be fine. But when you get in
toward the end of the week and then that
48 hours runs into a Saturday or a Sunday when
normally people are not there and the whole
notification, administration process is -
2882
kind of comes to a standstill, like most daily
or weekly businesses, the thought is, well,
continue that over. In other words, don't
require them to put everything else aside and
make this, which would be disruptive to the
administration.
So it really doesn't apply to the
criminal aspect that you're talking about.
Really no association whatsoever.
SENATOR SAMPSON: Through you,
Mr. President, if the sponsor would yield for
one last question.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield to a further
question?
SENATOR KUHL: I'd be happy to.
SENATOR SAMPSON: What if that
24-hour deadline is not reached, the principal
or the administrator does not do it within
that 24-hour notification period? What would
be the next step?
SENATOR KUHL: Well, this bill
doesn't really address that, Senator. We
don't get into enforcement applications and
policies.
2883
It just really deals with saying
that if it doesn't happen on a school day, the
end of the 24-hour period, then it gets
extended to the next school day. Okay?
SENATOR SAMPSON: Thank you.
ACTING PRESIDENT BALBONI:
Senator Oppenheimer.
SENATOR OPPENHEIMER: I guess I
do have a question, if the Senator would
yield.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield for a question?
SENATOR KUHL: I'd be happy to
yield to a question from Senator Oppenheimer.
SENATOR OPPENHEIMER: I think I'm
just looking for a clarification, because, I'm
sorry, I wasn't in the chamber. And already
in committee I mentioned that the parents
should be notified immediately and not wait
the time period.
But this bill just says that if the
24-hour notification for a parent having a
child removed from a class or notification of
when the parent conference occurs, in 48
hours, that if it occurs on a weekend it gets
2884
folded over to Monday?
SENATOR KUHL: Well, the hearing,
it depends on when it happens. It says the -
the way the amendment reads -- and I'll read
it to you, because that's perhaps the best way
to do it. The language very specifically is
relative to the notification proposal.
It simply says that provided if
such period shall not end on a school day -
such period being the 24 hours of the pupil's
removal -- shall not end on a school day, it
shall be extended to the corresponding time on
the next school day. That's the notification
proposal.
Relative to the hearing proposal,
it reads "Provided that if such period shall
not end on a school day, it shall be extended
to the corresponding time on the second school
day next following the student's removal."
So if you had a removal on a Friday
afternoon, the hearing would have to be held
on a Tuesday, the following Tuesday, if the
school were in session the next Monday,
Tuesday. The notification, if removal was on
Friday afternoon, then the parents would have
2885
to be notified by Monday afternoon.
SENATOR OPPENHEIMER: Okay.
Thank you, Senator Kuhl. I was just getting a
little tied up in some of this language.
Just on the bill.
ACTING PRESIDENT BALBONI:
Senator Oppenheimer, on the bill.
SENATOR OPPENHEIMER: And it is
on the bill and it isn't on the bill.
I mean, the things that have been
said by Senator Montgomery I feel very
strongly also. And the fact that I feel that
parents should be notified immediately. And
very often, I can recall, I left the phone
number of my sister, I left the phone number
of my neighbor on either side of me that had
children. There is -- you know, there was
ample opportunity were any one of my children
to act out, for a variety of people to have
been notified immediately.
And the concern, as mentioned by
Senator Montgomery, is that we really have to
have a support system for these children. If
they are acting out, there can be a whole
variety of reasons why they're acting out.
2886
And some of them may have great disturbances
within the home. And some of them may be
experiencing parents who are divorcing or they
may be going through the death of a
grandparent. There's just a lot of needs out
there by these children, and they ought to
have some kind of support system available to
them right away.
And while that isn't on the bill, I
feel it's something I did want to say and get
on the record. We just have to do more for
our children.
Thank you.
ACTING PRESIDENT BALBONI:
Senator Lachman.
SENATOR LACHMAN: Yes, Mr.
President, would the sponsor of the bill,
Senator Kuhl, yield for a question.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield?
SENATOR KUHL: I'd be happy to
yield to Senator Lachman.
ACTING PRESIDENT BALBONI: Please
proceed, Senator Lachman.
SENATOR LACHMAN: Thank you, Mr.
2887
President.
First, I have to apologize. I was
out of the chamber for an hour because of the
Higher Education Committee meeting and didn't
get the beginning of the discussion. So if
you have answered this, let me know and I'll
sit down.
Is it true that this is only the
minimum standard for the state in terms of the
Education Law? If a school system, an LEA, a
local education authority, desires to improve
upon this, that they can?
SENATOR KUHL: Senator, I really
kind of, I think, maybe addressed that
earlier, your question, but not necessarily
specifically in response to your question
language.
These guidelines really are
guidelines that are on the maximum limit. We
know from discussions with school
superintendents that they want to notify the
parents immediately, and they take every step
to do that. So a local school board could set
a policy that in fact would say, We demand
that there be notification in this particular
2888
instance within one hour, rather than 24
hours. So that's entirely possible.
But, you know, we recognize that
sometimes parents aren't immediately
available. So while there may be an attempt,
the question is, is it successful. I mean, we
have parents who maybe are, say -- I don't
know whether this would occur in Senator
Oppenheimer's district, whether they have any
lakes there, but in my district they could be
out sailing in a race and going for the
windward mark and not have their cell phone
on, or they could be just rounding the
windward mark and throwing a parachute or a
reacher and not have the time to reach down to
grab that cell phone, and they might not
necessarily be notified until they got off the
boat, hit the shore, that in fact their child
was there. So there are going to be time
limits.
It could be some other recreational
activities. Some parents go and gamble in
casinos, and they don't like to be notified.
Some are playing golf, you know. Some
actually are traveling on airplanes and things
2889
like that, and they tell you don't put your
cell phone on.
So there are maximum limits, and
that's what we tried to build into the initial
law. But certainly school districts, we
recognize from a practical experience, try to
notify immediately.
SENATOR LACHMAN: Mr. President,
on the bill.
ACTING PRESIDENT BALBONI:
Senator Lachman, on the bill.
SENATOR LACHMAN: Right. There
has been precedent in terms of the local
education authority building upon a particular
piece of legislation and increasing or
decreasing the penalty.
For example, after the U.S. Supreme
Court ruled that paddling of students was
permissible, the local education authority of
the City of New York said it was
impermissible. Even though the State of
New York, under the Education Law, permitted
paddling of students, the New York City Board
of Education said it was impermissible.
Now, the New York City Board of
2890
Education has developed procedures under a
pupil suspension law that, in answer to -- if
I may, Mr. President, respond to a question
that was raised by Senator Montgomery and
echoed by Senator Oppenheimer, the New York
City Board of Education has a booklet dealing
with pupil suspension. I know it has it,
because I was one of the authors of it. In
fact, it's been updated. It also deals with
rights and responsibilities of students. And
it mandates school authorities to contact not
only parents but next of kin, foster home
leaders, et cetera.
So what I'm basically saying is
that the local education authority could use
Senator Kuhl's bill and build upon it and
improve it and reflect the school system's
desires. I therefore will be in favor of the
bill.
Thank you.
ACTING PRESIDENT BALBONI: Thank
you, Senator Lachman.
Any other member wishing to be
heard on this bill?
Senator Duane, why do you rise?
2891
SENATOR DUANE: Thank you, Mr.
President.
ACTING PRESIDENT BALBONI: Excuse
me. Senator Duane, why do you rise?
SENATOR DUANE: I'd like to put a
motion to substitute on the floor, please,
for -- S1628 for this bill.
ACTING PRESIDENT BALBONI: I'm
sorry, Senator Duane, we need to finish the
debate on this particular bill, then we can
take up that substitution. Would you
please -
SENATOR DUANE: I didn't know
there was anyone else that was speaking on the
bill.
ACTING PRESIDENT BALBONI:
Senator Brown.
SENATOR BROWN: I wanted to ask a
question of the sponsor, Mr. President, but I
would yield to Senator Duane. If that is in
order.
SENATOR DOLLINGER: Mr.
President, may I just have a point of order?
ACTING PRESIDENT BALBONI:
Senator Dollinger, please state your point of
2892
order.
SENATOR DOLLINGER: I thought I
heard Senator Duane say that he was moving to
substitute one bill for another. Isn't that
motion in order, Mr. President?
ACTING PRESIDENT BALBONI:
Senator Dollinger, at this time that motion
for substitution is out of order.
SENATOR DOLLINGER: Through you,
Mr. President, could you tell just me where in
the rules that's the case?
ACTING PRESIDENT BALBONI:
Senator Dollinger -- Senator Dollinger, there
is no capacity within the current rules for a
hostile substitution of a bill that is
currently under consideration. So the
question is not whether or not there is a rule
that would prohibit such a procedure; rather,
whether or not there is a rule in this house
to permit such a procedure.
There is not. The relevant
discussion underway right now is this
particular bill. That's how we are going to
proceed.
Any other Senator wishing to be
2893
heard on this particular measure?
SENATOR DUANE: Mr. President.
SENATOR DOLLINGER: Then I
believe -
ACTING PRESIDENT BALBONI:
Senator Dollinger, do you have a point of
order?
SENATOR DOLLINGER: Yes.
ACTING PRESIDENT BALBONI: Please
state your point of order.
SENATOR DOLLINGER: My point of
order is, isn't the appropriate order then to
declare Senator Duane's motion for a
substitution out of order? Isn't that what
the house should do? And then that would be
subject to a right of appeal.
ACTING PRESIDENT BALBONI:
Senator Dollinger, if you wish me to proceed
in that manner, I will do so.
SENATOR DOLLINGER: I'm not
asking you to proceed in that manner, I'm just
saying don't the rules require it.
ACTING PRESIDENT BALBONI:
Senator Skelos.
SENATOR SKELOS: Mr. President, I
2894
believe that in this chamber you substitute an
Assembly bill perhaps for a Senate bill, or
vice versa in the other house. You do not
substitute Senate bills for Senate bills.
ACTING PRESIDENT BALBONI:
Senator Skelos, you are absolutely correct.
Senator Duane's motion is more of a
motion to discharge, which is not germane at
this point in time. And therefore I do not
recognize it at this particular point in time.
SENATOR DUANE: Mr. President,
point of order.
ACTING PRESIDENT BALBONI:
Senator Duane, please state your point of
order.
SENATOR DUANE: Could you tell me
where in the rules it says that you can't
substitute -
ACTING PRESIDENT BALBONI:
Senator Duane, that is not a point of order.
It is not recognized.
SENATOR DUANE: Mr. President,
asking where something is in the rules is, I'm
afraid, a correct -- an appropriate question.
ACTING PRESIDENT BALBONI:
2895
Senator Duane, you're incorrect, that is not a
point of order -
SENATOR DUANE: A correct point
of order.
ACTING PRESIDENT BALBONI: It is
not a point of order. But thank you for your
inquiry.
SENATOR DUANE: Well, I'll
challenge that.
ACTING PRESIDENT BALBONI: You
challenge that that constitutes a point of
order?
SENATOR DUANE: That it's not
appropriate for you to say where in the rules
it says.
I'm just challenging the rule of
the chair, Mr. President.
ACTING PRESIDENT BALBONI:
There's no current ruling before the house.
Senator Brown, do you wish to
proceed?
SENATOR BROWN: Yes, Mr.
President. Through you, if the sponsor would
yield for a question.
ACTING PRESIDENT BALBONI:
2896
Senator Kuhl, do you yield to a further
question?
SENATOR KUHL: I'd be happy to.
ACTING PRESIDENT BALBONI: Thank
you, Senator Kuhl. Please proceed.
SENATOR BROWN: Thank you,
Senator.
Mr. President, I understand that
this piece of legislation is simply designed
to make technical amendments to the
pupil-removal provisions of the Project SAVE
legislation, and that these amendments clarify
the time periods within which parental
notification and informal hearings must take
place.
I think my level of unreadiness,
though, that everybody is speaking to is the
parental notification provision. And, Senator
Kuhl, is there other legislation that you're
contemplating to make sure that parents are
notified timely separate from this piece of
legislation?
SENATOR KUHL: Senator, I was
just talking to my chief of staff in an
effort, in part, to assure me that in fact my
2897
recollection was correct -- and he assured me
that it is -- that there is no other piece of
legislation dealing with the SAVE bill that we
passed last year other than the fingerprinting
aspect, that we had no other discussions about
or no -- received no complaints from any
parents that -- who have been through this
process, this procedure that in fact they were
not notified in a timely fashion.
So the answer to your question in a
long answer is no, there's nothing else that
I'm aware of, nor are we planning to introduce
anything.
SENATOR BROWN: Thank you,
Senator.
Mr. President, on the bill.
ACTING PRESIDENT BALBONI:
Senator Brown, on the bill.
SENATOR BROWN: I understand what
the bill is designed to do, and have read it
and am a little bit concerned about the prompt
notification of parents. I understand that
the notification can take place within a
24-hour period of time. Which doesn't mean
that it will take 24 hours for a parent to be
2898
notified.
But certainly when a child has to
be removed from school, I think we as
lawmakers want to make sure that if a child is
in fact removed from the classroom and
subsequently removed from school as a result
of being removed from the classroom, that the
parent knows about that as early as possible.
I think, with respect to this
legislation, it just clarifies the time frame.
And I think based on that, I am going to be
supportive of it. I have heard Senator Kuhl
say that from their research so far, from the
information and feedback they've gotten back,
they have not heard parents complaining about
the notification and how the notification has
taken place.
But I do want to state for the
record that I am concerned about notification
and would like Senator Kuhl to monitor how the
notification is taking place in school
districts, so that if something additional is
needed legislatively in the future we can be
prepared to move in that direction.
ACTING PRESIDENT BALBONI: Thank
2899
you, Senator Brown.
Any other member wishing to speak
on this particular bill?
Read the last section.
Oh, I'm sorry.
SENATOR OPPENHEIMER: I just want
to say a word on the bill.
ACTING PRESIDENT BALBONI:
Senator Oppenheimer, as you know, under the
rules we're allowed to discuss any matter once
during the debate. You cannot speak twice.
Perhaps you might consider
explaining your vote.
SENATOR OPPENHEIMER: Okay, I'll
do that.
ACTING PRESIDENT BALBONI:
Terrific.
Senator Stavisky, why do you rise?
SENATOR STAVISKY: I have a
couple of questions for the sponsor, if he
will yield.
ACTING PRESIDENT BALBONI:
Senator Kuhl, do you yield?
SENATOR KUHL: Certainly.
SENATOR STAVISKY: I see a
2900
memorandum, Mr. President, from the School
Administrators Association. Have the parents
or any other organization expressed an opinion
on this legislation?
SENATOR KUHL: Senator, yes,
we've received two memorandums, both in
support of the legislation. One, the one you
referred to, from the School Administrators
Association of New York -
SENATOR STAVISKY: Could you
repeat that? I'm sorry, I can't hear you.
SENATOR KUHL: Senator, I'll say
it again. We've received two memorandums,
both in support of this piece of legislation.
One, the one that you mentioned, came from the
School Administrators Association of New York
State. The other one came from the Council of
School Superintendents, New York State Council
of School Superintendents. And they both have
filed memorandums in support.
SENATOR STAVISKY: But the
parents of the children who might be affected
have not -
SENATOR KUHL: There's no other
memorandum that's been filed, either in
2901
support or opposition.
SENATOR STAVISKY: Thank you.
ACTING PRESIDENT BALBONI: Any
other member wishing to be heard?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT BALBONI: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT BALBONI:
Senator Oppenheimer, do you wish to explain
your vote?
SENATOR OPPENHEIMER: Yes, thank
you.
I just wanted to say that this is a
good bill and this is something that the
teachers in our state -- not this specific
bill, but the right to be able to take a very
disruptive student out of their classroom,
this is something that has been important to
them.
It used to be that only the
principal -- you had to first go to the
principal, and the teachers felt that they
2902
were living with this very disruptive child in
their classroom and that they really were the
ones that ought to be making that kind of
decision.
So I think, in light of the fact
that I do support that, I think this is a good
bill, and this is -- just clarifies an
omission. So I'll be voting yes.
ACTING PRESIDENT BALBONI:
Senator Stachowski, to explain his vote.
SENATOR STACHOWSKI: Briefly to
explain my vote.
I'm going to vote for this bill,
but there are some concerns I have. And they
were just -- actually, as this bill was being
debated, I had a group of principals outside
explaining to me how they now are hearing
officers. That concerns them.
There's teachers that know how to
push students' buttons, and if they push their
buttons and the student acts up because of it,
the student is still suspended. That may be a
problem, and they got to deal with that.
And thirdly, one of the things we
may have to look at in the future is that
2903
we're mainstreaming a lot of emotionally
challenged students, and the fact is that some
teachers aren't trained to handle those kind
of students. They're trained to be good
teachers, but they're not necessarily trained
to identify an emotionally challenged student
and how they behave.
So although I'm supporting this
bill, I just wish that we would make a
recognition that hopefully in the future we'll
look at those possibilities in case we have to
deal with them, as brought up to my attention,
at least, by some Buffalo principals.
I vote aye.
ACTING PRESIDENT BALBONI: Thank
you, Senator Stachowski.
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President. To explain my vote.
It just seems to me that apparently
this bill isn't about students, and it's not
about safety, and it's not about education,
it's not about ending harassment, it's not
about trying to stop harassment or bullying in
the schools. It seems to be about making sure
2904
that people can go to their barbeques on
Sunday, and that it doesn't matter that a
student has been suspended.
Actually, I now see as a result of
this week that there's been a distressing
trend towards protecting people's right to
have a barbeque. We did that yesterday with a
bill put forward by Senator Saland. That
people are more concerned about the sanctity
of their weekends and three-day weekends than
about the well-being of students and fairness
and what happens in our schools I think is
pretty tragic.
We're paid pretty good money to
come up here and debate these bills, but it
seems like there's a fear of actually debating
the real issues facing our schools, like
safety in schools, like why it is that
students are harassed, why students bully,
what happens to those students who are bullied
and harassed.
It seems to me those are the more
important issues than whether or not someone
gets to have their whole Sunday free to, you
know, have a barbeque or go to a football game
2905
or whatever it is they want to do, instead of
addressing a very important issue like what
happens to the students in our schools.
I'm almost embarrassed that we're
not permitted to debate the real issues here
impacting safety in our schools. I thought
that's what one of our most important jobs
are. I don't know how it is that we get to
have those debates on the floor here of the
Senate. Certainly I'm not afraid of that -- I
haven't gone to two minutes yet.
I'm not afraid of having that
debate. I hope others here aren't afraid of
having that debate either. I'm going to vote
no on this, and I hope that it will save an
opportunity for us to debate the real issues
here in the Senate.
Thank you.
ACTING PRESIDENT BALBONI:
Announce the results.
Oh, no, sorry. Senator Paterson,
to explain his vote.
SENATOR PATERSON: Mr. President,
I'm also going to vote no on the bill. And
for simplicity, because I think that the
2906
notification should occur on a Saturday.
I think these issues are serious.
I don't want to impinge upon anybody's time
away from work, but there come times when
extraordinary situations command that you do a
little work on the weekend. We work every
weekend. And maybe it will allow others to
understand how difficult our jobs are, rather
than pillorying us in the public all the time.
But the reality is that sometimes
things have to get done on the weekend. I
don't want to do it all the time, but there
are rare times when I do feel that way, and I
think this is just one of them.
I think that to alleviate
confusion -- and if I caused any confusion in
this discussion, I think it was certainly
remedied by Senator Lack's comments. I didn't
think they'd done anything wrong in Bethpage
or anywhere else. I just thought that
sometimes the exceptions that we make on rules
just happen to create just a little bit of
confusion with professionals who are doing the
best that they can do. A uniform standard is
preferable.
2907
The 48-hour rule made plenty of
sense with respect to the hearing. The 24
hours to notify the parent, I agree with
Senator Montgomery that it really should be
done as immediately as possibly.
I vote no.
ACTING PRESIDENT BALBONI:
Senator Hassell-Thompson, to explain her vote.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. In listening to Senator
Kuhl describe the intent of the bill and what
he hopes to do, it has merit, it has distinct
merit. And I know that what it does is to
allow the school system to be better covered
if in fact more time is needed in order to
notify parents.
But it does disturb me somewhat
that there doesn't seem to be the concern
about children who are dismissed from school.
The notification process and the ability for
parents to return their children to school, I
think that what tends to happen, as we sit
here, each of us represents very different
school districts. And within that context, we
represent very different economically placed
2908
parents. And so that there are times when the
least of us who can afford to be out of the
classroom for any time at all are those who
end up and tend to be most penalized.
Our children cannot afford to be
out of school, not for any time at all. And
none of that is to say that we are excusing
the behavior that occurs in classrooms.
Because any of us who have been in schools for
any reasons know that children do act up, act
out, and some behave extremely badly.
Listening to Senator Oppenheimer
talk about the kinds of things that disturb
children and why children act out certainly is
not part of today's discussion, but it does
need -- and it does need to have some
discussion at a later time. That's not what
I'm concerned about.
What I am concerned about is
whatever the base cause of children
misbehaving, causing them to miss class time,
causing them to miss school time is a very
important issue. And so that it's important
from the perspective of how much time the
child is actually out of the classroom. And
2909
how much time parents are given in terms of
notification, so that they can, as quickly as
possible, deal with those issues and have
children be returned to the classroom.
So that anytime we make the time
frame longer doesn't give the same sense of
urgency. We don't send the message to our
school districts, the sense of urgency that
they need to have to ensure that whatever the
situation is that it is quickly dealt with and
that the child then is returned to the
classroom.
So from that perspective, I have
some real concerns about this bill.
ACTING PRESIDENT BALBONI:
Senator, how do you vote?
SENATOR HASSELL-THOMPSON: No.
ACTING PRESIDENT BALBONI: Thank
you.
Senator Dollinger, to explain his
vote.
SENATOR DOLLINGER: Briefly, Mr.
President, I'm going to vote in favor of this
bill.
When we struck a balance last year
2910
between the rights of students and families
and the administrative convenience for our
administrators in the public schools, the
balance that we struck was clearly in favor of
immediate notice of a student suspension.
That if we were going to give an individual
teacher the right to remove a student from the
classroom and prevent him from going to other
classes, we were going to give that immediate
right to a teacher, we said that the school
district, in order to justify that
interference with the child's education, there
had to be immediate notice to the parents
within 24 hours. Not a school day, not a day,
24 hours.
We struck that balance because we
concluded that administrative convenience was
not as important as immediate notification of
the parents and remedy. This bill moves us
back, tilts that balance in favor of
administrative convenience.
I'm going to vote in favor of it
because I think Senator Kuhl's bill is not
moving us too far along that line. It's
giving the school district a little more
2911
guidance. At the same time, I think it
restrikes that balance.
I would just point out that if this
bill reminds us of anything, it's the danger
of using the word "shall." We write all these
bills, we say the school district shall, the
principal shall, they shall, they shall, they
shall. They shall do it within a certain time
frame. When they don't do it, they're left
perplexed as to what the consequence is if
they don't do it within that time frame.
Does it void the suspension? Does
it eliminate the ability to remove the
student? Does the student have an absolute
right to get back in the classroom? It's
never quite clear.
If anything, Mr. President, I think
this is an important exercise in
draftsmanship. I think the amendment is
better drafted than the bill. And I would
suggest we're going to be back here looking at
this thing time and time again because,
although we had the right intention, we didn't
use the right language and we have hopelessly
confused our school districts. We may be
2912
tilting the balance in favor, too far in favor
of administrative convenience and not
protecting the important rights of students.
I'm going to vote in favor, but I
can't wait to see the next amendment coming.
ACTING PRESIDENT BALBONI:
Announce the results.
Senator Breslin, to explain his
vote.
SENATOR BRESLIN: Thank you, Mr.
President.
I share with Senator Dollinger his
concern about this bill, and I share his
concern that the emphasis might be to protect
the school administrations and not to protect
the student. And I feel quite strongly that
we should make every attempt to notify the
parents immediately in any situation that
might arise under this legislation.
And I think the legislation should
have, if not directed it be mandatory, that at
least it contain language that would have
suggested immediate notification.
But even with all those concerns, I
think there are going to be situations that
2913
are going to be covered by this bill, and I
will vote in favor of it.
Thank you, Mr. President.
ACTING PRESIDENT BALBONI:
Senator Breslin will be recorded in the
affirmative.
Senator Schneiderman, to explain
his vote.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
I just want to say briefly I share
the same concerns of my colleagues. I am also
going to vote in favor of the bill, largely on
the principle that this does set, as Senator
Stachowski pointed out, the outside parameters
for notice. And in the hope that we will work
to create incentives and provide the resources
so that principals can take prompt action, can
take immediate action.
Once again, as Senator Dollinger
pointed out, we impose all these requirements.
We have to provide the resources, we have to
insure that these people have the time. There
probably is no more important job in this
state than the principal of a school, because
2914
principals make the school.
I also want to say, with reference
to the sponsor, I appreciate his patience
on -- in answering all these questions. I
think that part of the difficulty we have now
is that because of the curtailment of our
ability to raise issues through motions to
discharge and amendments, when a piece of
legislation addressing a section we have
concerns about comes to the floor, some of us
feel that may be the only time to address
issues of concern to our constituents
regarding that.
I vote yes.
ACTING PRESIDENT BALBONI:
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 222 are
Senators Duane, Hassell-Thompson, Montgomery,
and Paterson.
Ayes, 55. Nays, 4.
ACTING PRESIDENT BALBONI: The
bill is passed.
THE SECRETARY: Calendar Number
228, by Senator Volker, Senate Print 204, an
2915
act to amend the Penal Law, in relation to
loitering.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT BALBONI: I'm
sorry, Senator, has there been an explanation
requested?
SENATOR VOLKER: Yes. Senator
Paterson.
ACTING PRESIDENT BALBONI:
Senator Paterson has requested an explanation.
SENATOR VOLKER: This bill,
that's been around for a few years, has been
changed a couple of times. And what it
pertains to is the question of someone
improperly boarding and being a presence on a
school bus.
This has become quite a problem for
several reasons, one reason being that it was
thought to be covered under disorderly
conduct. And the courts have -- I believe
several courts have thrown that out and
questioned whether the present law would
pertain to that.
In all honesty, we started out with
a Class E felony and went to a misdemeanor.
2916
And for the same reason that Senator Dollinger
said to me yesterday and asked a question, Why
are we in a violation, well, we do believe
this bill will pass the Assembly.
The problem, I think, is pretty
obvious. We have amended it to -- the
definitions of public place and transportation
of facility to accommodate this sort of thing,
because of several of the objections that have
been made.
And I think it's a pretty simple
bill. It passed this house last year with one
vote in the negative. And we are very hopeful
that this bill this year will get passed.
It's supported by the School Board
Association, the transportation people, school
board transportation people, and we actually
have no real objections to it.
ACTING PRESIDENT BALBONI:
Senator Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
I would seek permission if Senator Volker is
willing to yield for a few questions.
ACTING PRESIDENT BALBONI:
Senator Volker, do you yield?
2917
SENATOR VOLKER: Yes, I do.
SENATOR PATERSON: Senator, how
does a private school bus qualify as a public
place? And the only reason I bring it up is
because it kind of points it out in the
legislation. And I wouldn't have thought it
was a big issue, because obviously a private
school bus can be like any other private
property, it can be eligible to be the site of
trespass, harassment, disorderly conduct.
But since it puts it in that
fashion in the legislation, I was just
wondering why that's the case.
SENATOR VOLKER: The answer is
that we've decided, because the courts say
since it doesn't specifically say that a
school bus is a public place, that we
specifically say it is. And I think that's
the -- that, I think, is the problem.
It reminds me of many years ago
when one of my historic cases, one of the few
historic cases I had, I arrested somebody
in -- when I was a police officer, in the -
at one of the busiest intersections in all of
upstate New York, at 5 o'clock in the
2918
afternoon. His car was right in the middle of
the intersection with the motor on, and he was
frankly stone drunk. And I arrested him for
public intoxication, because actually I
probably could have arrested him for DWI,
whatever I -- but we got his car out of the
road. He caused a huge traffic jam.
And the case went to court, and the
decision was -- that was one of the decisions
that said despite the fact that it was
5 o'clock in the afternoon in the middle of
one of the busiest intersections in the entire
part of the state, he was inside his car, and
it wasn't a public place. And therefore, he
could not be convicted of public intoxication.
So that was one of my stellar
arrests. But the point I'm trying to make is
that -- and he certainly wasn't disorderly.
He practically hardly moved.
(Laughter.)
SENATOR VOLKER: But the -- I
guess the point I'm trying to make is that
what we've done here is to say that a vehicle
such as a school bus is sufficiently public to
be declared to be sufficiently public in order
2919
to deal with this kind of issue.
Which is a very serious issue. I
mean, there have been a number of incidents
involving people who have -- one involved a
disabled student where a guy jumped on the
school bus and tried to go after the disabled
student. And another one where the bus driver
was grabbed.
And even more, although this
problem here I -- we just picked this one off
the Internet. This problem here, we'll have
to amend the bill. It says "Monkey attacks
girl in school bus." A 6-year-old girl was
bitten in the head by a monkey on a school bus
when the monkey dashed on the school bus.
SENATOR PATERSON: Where was
that?
SENATOR VOLKER: That was in
Burma.
But I just thought I'd -- we were
trying to find anything on the Internet that
would -- referring to this. But, you know,
it -- I would read the rest of it, but it's -
UNIDENTIFIED SPEAKER: Sounds
like monkey business.
2920
SENATOR VOLKER: Yes, it sure
does. But when we found it . . .
At any rate, we think this is a way
of solving -- the truth is that you must have
some way that when a person and sometimes even
a parent, for one reason or another, comes
charging onto a school bus, that you have to
have some sort of way in effect of getting
them off with a charge -- it's only a
violation, as I say -- to in effect get them
off the bus and then have some sort of penalty
for doing that.
Because right now, in a number of
cases, there has been -- the way the cases
have gone, there's no penalty.
SENATOR PATERSON: Mr. President,
first I want to suggest that even Ne Win, the
ruthless Burmese dictator, never had a
six-year-old girl bitten by a monkey on a
school bus.
But if Senator Volker would yield
for some more questions.
ACTING PRESIDENT BALBONI:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Why, sure.
2921
SENATOR PATERSON: Then, Senator,
based on the answer to your question, are we
going to then treat the school bus as a public
entity for the purposes of the criminality of
the violation?
In other words, you don't
anticipate -- I would assume you wouldn't
anticipate that we're not going down a little
bit of a slippery slope here if we start
treating the school bus as a public place for
other types of civil actions or other issues
that could come up in the law.
SENATOR VOLKER: No. But I think
probably, ironically, I think for civil cases
that has been considered virtually a public
place in some cases. We don't have to do
that.
What we're doing here is in effect
setting up a very limited -- obviously, a very
limited standard. As you know, it says that
entering a school bus, remaining on a school
bus with no reason or authority to do so shall
constitute the offense of loitering, which is
a violation. And it's simply an attempt to
prescribe something as succinctly as you can.
2922
Which clearly is a major problem in
certain areas, and unfortunately has become a
problem that's been all too frequent.
SENATOR PATERSON: Mr. President,
if Senator Volker would continue to yield.
SENATOR VOLKER: Yes.
ACTING PRESIDENT BALBONI:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Yes.
SENATOR PATERSON: Senator, I
don't want to minimize the gravity of concern
that you have for this issue, because I have
it as well.
As a matter of fact, in School
District 3, which is correlatively represented
by Senator Schneiderman and myself, there was
an incident I believe last year where the
parent of one of the students was riding on
the school bus with the student, and the
student got into a fight with another child.
The parent then ordered the school bus driver
to throw the other student off the bus. The
other student was thrown off the bus and
didn't have any money, and was wandering
around lost for a good part of the day.
2923
And this became an issue because
technically the parent was allowed on the bus
as a courtesy but then interfered with the
school bus driver's desire to try to bring
peace between two students that had gotten
into a fight. And although there was no end
of the situation that was harmful, it still
raised the question about other personnel
being on the school bus.
Now, that's a minor application of
it. But the ones you described are far more
serious. So I just want you to know that I
take this very seriously.
But my question is, don't we have,
under trespass and disorderly conduct and
harassment, Section 240 of the Penal Law -- I
remember that law. I used to work with it
years ago. And don't we already have means of
punishing people who do this?
SENATOR VOLKER: We thought we
did, Senator. But what's happened is, and I
think that a person in -- I think it was in
Western New York was charged with trespass, if
I'm not mistaken. And in fact, they were
convicted of trespass. And it was appealed.
2924
And the decision was that under the
law, under a literal reading of the law, the
school bus would be considered to be a public
place, except the law didn't so state and
therefore it could be considered a private
place, but it's really not a private place.
So the judge dismissed the case on the grounds
that it was not a trespass, it was not
disorderly conduct because the person wasn't
technically disorderly, just got on the bus
and wouldn't get off.
And the school bus people got
really upset, and said, You'd better find a
way, in a sense find a way to obviously make
this a crime. And they of course wanted it as
an E felony, naturally. They wanted a more
serious crime.
I will tell you this. I mean,
there are crimes that are committed. My law
partner, who happens to be the chief of police
in my town, arrested a fellow who had tried to
kidnap a bus, in effect, with a gun, and
actually arrested the fellow. Obviously,
there you've got a clear crime, so there's no
problem.
2925
But the ironic twist is if he had
got on that bus with a gun but didn't get to
do anything, technically you could argue they
couldn't charge him with anything. Because
even though he intended to, you know, he could
have gotten off without anything being done.
Once he raised the gun and put it
to the head of the driver and that, obviously
it was a different kind of a thing. But
that's one of the things I think that brought
it up, was that issue.
SENATOR PATERSON: Mr. President,
if Senator Volker would continue to yield.
ACTING PRESIDENT BALBONI:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Sure.
ACTING PRESIDENT BALBONI: Please
proceed, Senator Paterson.
SENATOR PATERSON: Mr. President,
I want to thank Senator Volker for his answers
to these questions.
So to summarize, Senator Volker,
the sanctions that are now expanded by this
bill take us from -- see, I don't want to use
the example of a gun to the head, because
2926
that's a crime any place.
SENATOR VOLKER: No, that's what
I just saying. It's obvious.
SENATOR PATERSON: But certainly
I agree with you that some of these things
that people do when they get on school buses,
that let's say they just did it on a regular
bus, regular public bus, it might be a little
bit different. Because we want to graduate
the value of concern for children.
What is the expansion of the
sanction now that this bill brings us?
SENATOR VOLKER: What we're
really doing here is saying that if a person
invades a school bus, in effect, without any
authority or without any justification, that
that person -- and we assume that the person
doesn't commit an overt crime, obviously,
assault or something of that nature -- that
that person could be charged under this
section of the law with what amounts to a
loitering offense and is charged with a
violation -- which is what? Which could, the
maximum penalty, I think, is 15 days.
Normally speaking, if nothing
2927
ensued, it would probably be a penalty, a
fiscal penalty, unless there was something
more serious. But the maximum penalty would
be 15 days in jail.
SENATOR PATERSON: I want to
address one final area, if Senator Volker is
willing to yield, Mr. President.
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: My question
relates to the responsibilities of the bus
driver. Do we in any way protect the bus
driver? Should the bus driver physically
remove the unauthorized passenger from the
vehicle? Does the bus driver have a right to
detain the unauthorized person until law
enforcement has arrived?
Does the legislation address in any
fashion what the roles and duties are of the
driver of the bus should there be any kind of
attack or invasion of the bus by an outside
person?
SENATOR VOLKER: Well, we don't
deal with that.
2928
But one of the ways we protect the
bus driver, when you come right down to it, is
to have some sort of penalty should this kind
of an action happen. In other words, if -
what is really a serious problem for a bus
driver, for instance, is if you have somebody
that does this sort of action, comes on the
bus and then the kinds of things that we've
talked about where you can't charge him with
disorderly conduct and you can't get him for
trespassing and you don't have this statute to
at least charge him with a violation, you
potentially have a civil problem for the
driver. Who would then be in a situation
where he can get a law enforcement person
there, but if there was -- if it turns out
there was no violation, actually he could be
in some jeopardy.
Although I would argue that if he
acted reasonably under the circumstances, he
couldn't do it anyways.
But there's nothing technically
here which protects him except the very fact
that we're doing this kind of a statute would
help protect him.
2929
And by the way, I think if -- the
union in New York City has come to me, and
I've had a bill for years relating to assaults
on people that -- bus drivers and traffic
employees that would raise the penalty to, in
some cases to an E felony, which is another
issue. That's an actual assault, of course.
And -- but this relates just to the
entering of the bus, whether it's gesturing,
acting improperly. And just to have some sort
of charge to make sure that that person is
acting illegally under the law.
SENATOR PATERSON: Thank you,
Senator Volker.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: I really was
educated by this discussion, because I would
have thought that the applications of a number
of laws that can be misdemeanors and are also
violations would have covered this issue.
But what I think Senator Volker
pointed out that persuades me -- because I'm
generally against the addition of new laws, or
2930
sometimes I think that we just have a shrill
way in this chamber of upgrading what we've
already worked on in the past, just to have
something to do or something to explain what
we're doing this year to our constituents.
But here is a clear case where it
may very well be in order, because some of the
seriousness of the circumstances of a bus
driver trying to transport children from one
place to another to get them to school and to
bring them home are exacerbated by the
interference from individuals from the
outside.
And here you have a person that's
trying to operate a vehicle and to some degree
be the disciplinarian. It's hard to then also
make them the law enforcement officer. And so
to what extent we can create a public policy
which sends a message to would-be perpetrators
of this type of situation that this conduct is
going to be not only not tolerated but will be
at a threshold involving greater criminality,
it's probably important to send that message
and to protect young people from these types
of violations, misdemeanors and, if it gets to
2931
that point, felonies that are occurring in and
around the school buses that transport our
children back and forth to the school
premises.
The issue of the relationship to
the public or privateness of the school bus
itself is one where I do have a little bit of
concern. But I suppose that since we already
treat the school bus as a quasi-public entity
already, it really doesn't enter within the
parameters of this type of legislation, as
Senator Volker pointed out.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Yes,
thank you, Mr. President. If the Senator will
yield to a question.
ACTING PRESIDENT MEIER: Senator
Volker, do you yield?
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HASSELL-THOMPSON: Thank
you.
Senator Volker, my understanding of
2932
the bill, and please correct me if I'm wrong,
is that this expands the definition of
loitering to include the unauthorized boarding
or presence on a school bus by an individual
not authorized by the school district or
assigned bus driver. Is that correct?
SENATOR VOLKER: Exactly.
SENATOR HASSELL-THOMPSON:
Hypothetically, then, two school buses,
youngsters, a basketball team going to a game,
you're not authorized to be on this bus, but
you're one of the players. You come on the
bus to talk to somebody. That's an
unauthorized presence on the bus. Would that
student then be in violation?
SENATOR VOLKER: The only way
that student would be -- would truly be in
violation would be -- if the student needs to
be transported somewhere, would be, of course,
obviously, I guess, if he didn't belong on the
bus and he became a danger of some kind or
disorderly. Then he -- his unauthorized
nature would become a problem for the bus.
Because, quite obviously, if he's
simply on a different bus or on the wrong bus,
2933
he's authorized to be on a bus. And there's
going to be no complaint against him unless he
does something that would make him
unauthorized.
And by the way, when you're talking
about a student, clearly a student probably
would be authorized on virtually any bus.
And -- and, by the way, we're talking about
the assigned bus driver.
And, I mean, the thing about this
is that when you're trying to do a statute
like this, you've got to use the reasonable
man's and woman's standard. And, you know,
otherwise, obviously no court is ever going
to -- that was part of the problem with
disorderly conduct and some of the other
things there, is that judges said, Well, you
know, is this strictly under the law?
And so I think that that would
never become an issue in cases of this nature.
SENATOR HASSELL-THOMPSON:
Through you, Mr. President, if the Senator
would continue to yield.
ACTING PRESIDENT MEIER: Senator
Volker, do you yield?
2934
SENATOR VOLKER: Sure. Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HASSELL-THOMPSON: I
would like to believe, Senator Volker, that I
would put this to the reasonable test, and I
would like to be considered as a reasonable
person.
But I think that that's what I
consider to be a weakness. I don't think that
in the language there is the clear definition
of the behavior or the sanction that would
contribute. And I was not being facetious
when I said that. But it seemed to me to be
so loose that, under a basic interpretation,
the theoretical situation that I just cited
could possibly be construed.
SENATOR VOLKER: Except that
the -- no court in this state would entertain
that. And unless -- there has to be a
prosecution for something in order to do
something.
Any law we pass here, you could
come up with a theoretical situation that
probably would not totally fit within the
2935
statute. And very honestly, that's why we try
to be as careful as possible. But we all know
that situations occur that are not totally
covered.
And by the way, if you try to get
too fine with these kinds of statutes -- and
that's what happened with disorderly connect
and with trespass. When you try to get too
fine, what happens is you can't cover each
situation. And we found that out. We've been
trying to work out some sort of way to deal
with this for years.
And of course the Assembly, that is
very, very concerned, and we understand that,
about certain incidents, but -- because that,
in all honesty, may be more defense-minded.
You've got to come to grips with
the fact that this has become a serious
problem, and we have to deal with people who
are invading school buses. It's not only in
upstate New York, it's also in New York City,
as Senator Paterson pointed out.
SENATOR HASSELL-THOMPSON: Thank
you, Senator.
On the bill.
2936
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson, on the bill.
SENATOR HASSELL-THOMPSON:
Senator Volker, I -- and through you, Mr.
President, my husband happens to be a bus
driver, school bus driver. And so that it
would be very difficult for me not to support
this bill in that context. Particularly
because some of the issues that we have
discussed certainly are issues that he and I
over the years have discussed about behaviors,
the differences in children and different
events that he has taken kids on, and
situations.
So I was particularly concerned in
listening to your answers to Senator
Paterson's questions about liabilities for bus
drivers and whatever. But also be assured
that I understand the seriousness with which
your intent is. I always want to be very
careful, even though I don't -- I don't
believe in making things so narrow that they
don't work. But I also don't want them to be
so broad that they become the net to catch the
whale and yet you catch the dolphin.
2937
So I very clearly support this bill
and want to just be sure that I added my five
cents in terms of how we go forward and how we
see the possible situations that may occur on
those bills that we pass here.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Gentile.
SENATOR GENTILE: Yes, Mr.
President. If Senator Volker would just yield
to a question or two.
ACTING PRESIDENT MEIER: Senator
Volker, do you yield?
SENATOR VOLKER: Right.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Senator, I -
through you, Mr. President, I just am confused
about the court ruling that you had indicated
earlier.
If in fact the court ruled that a
school bus was a private place, I'm unclear
why that would not be a trespass under the
current Penal Law.
SENATOR VOLKER: I don't think
2938
they ruled necessarily that the -- they ruled
that the statute didn't clearly define a
school bus as a public place that -- for
purposes of trespassing in public. Or in
fact -- and since it didn't specifically say
anything about private, the ruling was that it
wasn't technically a trespass, it was sort of
neither fish nor fowl, I guess is what they
sort of said.
And the disorderly conduct -- as
you know, the disorderly conduct statute has
been limited on several occasions by the
courts. Many law enforcement people have used
disorderly conduct as a catchall and all,
because, you know, if you didn't know what
else to charge somebody with, you charged them
with disorderly conduct.
And the courts have limited that
quite a bit. And apparently there was a
case -- whether it was the same case, I don't
remember. But I think there was a case
that -- and it -- the trespass case caused the
bus driver, transportation people to get all
upset. Because they had a guy who was
particularly obnoxious, I guess, who was
2939
restrained, and they almost pulled him off the
bus. And he went to court and ended up
essentially, after quite a bit of proceedings,
with being found not guilty. And the trespass
charge, which was the prime charge, was the
one that was thrown out.
So I -- you know, I mean, it -
we've been trying to work out -- we considered
at one point using the trespass statute and
being more specific. But the decision was
really made that this would be the better way
to do it, since it appeared to fit better into
the area.
And, you know, I personally think
it should be a misdemeanor. But that's, you
know, something that we're going to go with
this as a violation so you at least have
something to charge somebody with.
SENATOR GENTILE: Through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Volker, do you yield?
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: The
2940
sponsor yields.
SENATOR GENTILE: Senator, I
assume, then, that the person in this
particular court case was charged with
trespass as well as, you say, the catchall
disorderly conduct?
SENATOR VOLKER: Yup. Mm-hmm.
SENATOR GENTILE: Do you know
whether or not the person was found guilty on
the disorderly conduct?
SENATOR VOLKER: No. My
understanding is that all the charges against
him were dismissed. Or overturned, I mean.
He was convicted initially, and then they were
overturned.
SENATOR GENTILE: And so on
appeal they found that not even the disorderly
conduct, which is a violation, was -
SENATOR VOLKER: Particularly
because the issue was, was he really
disorderly. I mean, did he get a chance to be
disorderly or whatever or -- you know, the
issue of specificity. He was definitely on
the bus. He shouldn't have been there. So
that that would be, you know, the initial
2941
charge.
As to how much he -- it created a
problem, as you know, that was another issue.
And the judge just said that it wasn't enough
and just threw it out.
SENATOR GENTILE: Through you,
Mr. President, if the Senator would just yield
for a question or two.
SENATOR VOLKER: Right. Sure.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR GENTILE: Senator, in
your opinion, if someone did create that
disturbance, was on the bus long enough to
create such a disturbance, would that come
under the disorderly conduct statute that we
have currently?
SENATOR VOLKER: Well, I think
the problem is that -- and when you say my
opinion, I think it should. But apparently
there have been a number of times when it has
not or does not.
It seems as if you have to -- in
many cases, it seems as if you have to have
another way of finding these people in
2942
violation of a statute. In fact, what the bus
people say to us is that, as one bus driver
said, "I want to be able to throw the guy off
the bus and at least have something that I can
rely on to say that he's in violation of
something. Otherwise, I can probably be
sued."
And, you know, he's probably right.
And I think what we're trying to do here is -
and the transportation people statewide are
not totally happy with this. They would like
something more stringent. But they feel that
under the circumstances, this is about the
best that they can get.
SENATOR GENTILE: Senator -- if
the Senator would continue to yield, I have
just a -
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Senator, I
understand and appreciate what you're saying
about the fact that here we are dealing with a
2943
violation. So in fact if someone is being
prosecuted under this new section, there
necessarily is no arrest here, even, it's just
a little note to come into court.
I question at this point the
deterrent factor, given the fact that what
we're dealing with is the violation.
SENATOR VOLKER: Well, he could
still be arrested. I mean, you could still
arrest a person for a violation and bring him
in, just as you can arrest somebody
technically under a traffic violation -- and
by the way, we refer in here to the V&T law -
you know, if the person is right there. But
once he gets off the bus, obviously they'll
end up giving him a summons and -- or
something of that nature.
That does create somewhat of a
problem, and I agree. But on the other hand,
for instance, the bus driver can call a law
enforcement person, who can come and
technically arrest him and take him in and
take a few dollars bail, if necessary, you
know, under the circumstances. You can still
do that.
2944
SENATOR GENTILE: Thank you,
Senator Volker.
On the bill.
ACTING PRESIDENT MEIER: Senator
Gentile, on the bill.
SENATOR GENTILE: I want to also
echo my sentiments in agreement with Senator
Volker, that indeed I think at the level of
violation that I would be willing to say that
disorderly conduct covers a lot of this
situation that we speak of, despite the court
ruling or the appeal on the court's ruling.
And I believe that given the fact
that here we are dealing with a violation, a
violation is not -- a violation is not a
crime. And this is a serious enough
situation. I agree with Senator Volker that
we in fact should be considering legislation
here in this context to make it a crime, not a
violation. And I agree with you, Senator
Volker, that at the very least we should have
this as a misdemeanor charge, which is a
crime, and not the violation.
In any case, given the restrictions
that we're under, I will be voting in the
2945
affirmative.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you, Mr.
President. If the sponsor would yield.
ACTING PRESIDENT MEIER: Senator
Volker, do you yield?
SENATOR VOLKER: Yup.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you.
I just want to clarify this point
as best as I can. Under current law, what
happens now if some unauthorized person gets
on a school bus and shouts at the students?
Is there no law that covers that now?
SENATOR VOLKER: Well, there's
been -- as I say, there was a case -- there
were several cases, but one case in particular
where the person was charged, I believe, with
trespassing and disorderly conduct. And I
believe was convicted and I think went to the
Fourth Department on appeal, and it was thrown
out on the basis of the public-place argument
and the argument that there was nothing
2946
specific in the statute, as I understand,
relating to whether a school bus was a public
or private place.
It's a semipublic place, whatever.
That's why we're putting this in the statute
in this way, so that it would be covered.
Under the law, you could argue that
it is. But there's been -- it's not the only
court that's done this. I think other courts
have been following it. So that's what this
is really all about.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: And just to
further clarify, the cases which the sponsor
has cited, were they school buses? Were they
people on school buses?
SENATOR VOLKER: Oh, yes. Yeah,
this is all school buses. If you notice, this
2947
only applies to school buses. It doesn't
apply to any other buses.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR VOLKER: Mm-hmm.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I have an easier
time understanding certain other offenses
against public order on school buses, but I am
concerned about loitering. I'm wondering if
the sponsor thinks that loitering laws are
effective.
SENATOR VOLKER: This is not a
loitering law. This is -- all this is is if
somebody invades a school bus.
I mean, it's a -- the reason you
use that language is that a person -- for
instance, if a person starts to get on and the
guy says, "Get off," and he doesn't really get
on, you're not going to do anything. But if
he actually gets on the bus, he or she, and
hangs around -- I mean, it's a word of art. I
don't -- loitering -- we don't use loitering
2948
laws much anymore. But this is -- you know,
you could say the person trespassed on the bus
or -- the reason you use the word "loitering"
is because, in effect, this is more of a word
of art than anything else.
So I think maybe you're sensitive
to the loitering issue. That's not it. This
is an invasion of a school bus. A person is
on there unauthorized. And if you read it, it
talks about permission and a lot of other
things.
So that the answer is in this
specific case, it seems like the best language
to use for the act that's being done in -- the
acts that are being done.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Right.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Even though I
understand that the sponsor believes that
2949
loitering is as close a word as he can get to
what it is that -- the offense that he's
trying to get at or to stop from happening
when a person is told not to get on a bus, but
I'm wondering if the sponsor would concede
that often loitering laws are targeted against
certain groups.
SENATOR VOLKER: I don't -- I
think that loitering has been targeted against
alcoholics, maybe, you could argue, and so
forth. But I don't think it's particularly
targeted against certain groups. I think
people allege that because, frankly, it's
always alleged. You know, if somebody does
something that's a problem or, in many cases,
for their own protection.
But then again, I guess people
don't look at it -- but I don't -- that's
another issue. I think, generally speaking,
no, it's not targeted against certain groups.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Volker, do you yield?
2950
SENATOR VOLKER: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I would, you
know, respectfully disagree with that.
Loitering I think traditionally has been used
against some groups more than other groups.
I'm wondering if the sponsor would
be open to changing the word "loitering" to
something which might be a little bit more
specific to the problem that we're trying to
address. Including, perhaps, trespassing or
something along those lines.
SENATOR VOLKER: No. And the
reason is that -- aside from one other small
problem, the Assembly wouldn't do trespassing
if we did talk about it.
If you read it, it says "or
loiters, remains in or enters a school bus, as
defined," and so forth. I think it's pretty
clear we're specifically dealing with this
type of issue.
And the nervousness about using
that word "trespass" I guess has to do with
what was said in the court case, not that -
2951
this is a different kind of thing. But I just
don't think -- I think this explains the
action that you're trying to deal with. And I
don't see any -- I think the explanation in
the bill makes it clear what you're talking
about.
I don't know how you could possibly
use this against any particular group. The
only particular group you could use it against
is anybody that comes charging on a school bus
and -- unauthorized, charging on a school bus,
and creates a problem. And that's -- I just
don't see this as a particular problem.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR VOLKER: Sure. Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you. Is
there a difference between the word -- on
page 2, lines 3 and 4, is there a difference
between the word "loiters" and "remains in"?
SENATOR VOLKER: I think probably
there is. I think "loiters" is a kind of a
2952
word of art. I think it's pretty clear that
using both of those words covers the situation
that we're trying to deal with. So I just
don't see where that is a particular problem.
SENATOR DUANE: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
SENATOR DUANE: I just can't help
but to be concerned anytime the word
"loitering" or "loiters" is inserted into the
Penal Law. It just -- language is a very
important thing in our society, and the word
"loitering" conjures up a lot of unfair and
discriminatory things which have happened to
people in New York State through the years.
I don't really -- though I
appreciate the sponsor's helping to define
"loitering" and "loiters," and why that's in
the bill, if you look at other places that the
word has been and continues to be used in
New York State's Penal Law, "loiter" actually
encompasses much more than I think the sponsor
intended. I don't really see that it could -
that it should be intended to imply any more
2953
than "remains in" or "refuses to leave" or
something like that in a school bus.
And so, in the absence of striking
the word "loiters," I'm going to have to
oppose this bill, though I certainly
understand the reasons for the bill. But I am
very uncomfortable, and I don't think that my
constituents would approve of me voting to add
"loiter" to another section of New York
States' Penal Law. It's been misused too many
times in the past.
If the sponsor at some point could
see his way to taking that out and trying to
find a better phrase which wouldn't relate to
other parts of the state's penal code, then I
could see voting for it. But right now, with
the word in there, the past definitions and
usages of "loiter" in New York State's penal
code makes impossible for me to vote for it.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Any
other member wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
2954
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
230, by Senator Bonacic, Senate Print -
ACTING PRESIDENT MEIER: Senator
Duane, why do you rise?
SENATOR DUANE: Mr. President,
could you check and see if there's a quorum in
the chamber, please.
ACTING PRESIDENT MEIER: The
Secretary will call the roll. The Secretary
will sound the bells.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Here.
THE SECRETARY: Senator Balboni.
SENATOR BALBONI: Present.
THE SECRETARY: Senator Bonacic.
(No response.)
THE SECRETARY: Senator Breslin.
2955
SENATOR BRESLIN: Here.
THE SECRETARY: Senator Brown.
SENATOR BROWN: Here.
THE SECRETARY: Senator Bruno.
(Senator Bruno was indicated as
present.)
THE SECRETARY: Senator Connor.
(Senator Connor was indicated as
present.)
THE SECRETARY: Senator
DeFrancisco.
(No response.)
THE SECRETARY: Senator
Dollinger.
(No response.)
THE SECRETARY: Senator Duane.
SENATOR DUANE: Here.
THE SECRETARY: Senator Espada.
(No response.)
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Here.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Present.
THE SECRETARY: Senator Gentile.
2956
SENATOR GENTILE: Present.
THE SECRETARY: Senator Gonzalez.
SENATOR GONZALEZ: Present.
THE SECRETARY: Senator Goodman.
(No response.)
THE SECRETARY: Senator Hannon.
(No response.)
THE SECRETARY: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Here.
THE SECRETARY: Senator Hevesi.
(No response.)
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Present.
THE SECRETARY: Senator Johnson.
(No response.)
THE SECRETARY: Senator Kruger.
(No response.)
THE SECRETARY: Senator Kuhl.
SENATOR KUHL: Present.
THE SECRETARY: Senator Lachman.
(No response.)
THE SECRETARY: Senator Lack.
SENATOR LACK: Present.
THE SECRETARY: Senator Larkin.
2957
SENATOR LARKIN: Present.
THE SECRETARY: Senator LaValle.
SENATOR LAVALLE: Present.
THE SECRETARY: Senator Leibell.
(No response.)
THE SECRETARY: Senator Libous.
SENATOR LIBOUS: Present.
THE SECRETARY: Senator Maltese.
SENATOR MALTESE: Present.
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Present.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Present.
THE SECRETARY: Senator
Markowitz.
(No response.)
THE SECRETARY: Senator Maziarz.
SENATOR MAZIARZ: Present.
THE SECRETARY: Senator McGee.
(No response.)
THE SECRETARY: Senator Meier.
SENATOR MEIER: Present.
THE SECRETARY: Senator Mendez.
(No response.)
2958
THE SECRETARY: Senator
Montgomery.
SENATOR MONTGOMERY: Present.
THE SECRETARY: Senator Morahan.
(No response.)
THE SECRETARY: Senator Nozzolio.
(No response.)
THE SECRETARY: Senator Onorato.
SENATOR ONORATO: Here.
THE SECRETARY: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Present.
THE SECRETARY: Senator Padavan.
SENATOR PADAVAN: Present.
THE SECRETARY: Senator Paterson.
SENATOR PATERSON: Present.
THE SECRETARY: Senator Rath.
SENATOR RATH: Here.
THE SECRETARY: Senator Saland.
(No response.)
THE SECRETARY: Senator Sampson.
(No response.)
THE SECRETARY: Senator Santiago.
(No response.)
THE SECRETARY: Senator
2959
Schneiderman.
SENATOR SCHNEIDERMAN: Here.
THE SECRETARY: Senator Seward.
(No response.)
THE SECRETARY: Senator Skelos.
SENATOR SKELOS: Here.
ACTING PRESIDENT MEIER: I
declare that a quorum is present.
Senator Fuschillo.
SENATOR FUSCHILLO: Mr.
President, can we continue with Calendar
Number 230, please.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar 230.
SENATOR PADAVAN: Mr. President.
ACTING PRESIDENT MEIER: Senator
Padavan.
SENATOR PADAVAN: Without
objection, could we return to the order of
motions.
ACTING PRESIDENT MEIER: We can
do that.
Without objection, order of motions
and resolutions.
SENATOR PADAVAN: I would like a
2960
sponsor's star placed on Calendar Number 236,
Senate Bill 2710. Thank you.
ACTING PRESIDENT MEIER: That
bill will be starred, Senator Padavan. At the
sponsor's request, sponsor's star on Calendar
236.
The Secretary will continue to read
in regular order, beginning with Calendar 230.
THE SECRETARY: Calendar Number
230, by Senator Bonacic, Senate Print 2270, an
act to amend the Penal Law, in relation to the
aggravated harassment of an employee by an
inmate.
SENATOR DUANE: Explanation,
please.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MEIER: Senator
Bonacic, an explanation has been requested of
Calendar 230 by Senator Duane.
SENATOR BONACIC: Thank you, Mr.
President.
ACTING PRESIDENT MEIER: Just a
moment, please. If we're going to have these
bills explained, could we have order in the
chamber so we can hear the explanation.
2961
SENATOR BONACIC: Thank you, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Bonacic.
SENATOR BONACIC: Thank you, Mr.
President. This is an act to amend the Penal
Law in relation to the aggravated harassment
of an employee by an inmate.
We had passed a law in 1995 which
was a protection for correction officers, for
probation officers, for policemen, for
employees in our correction facilities, in our
mental health facilities, to prevent the
throwing or the expelling of certain
substances that could result in transmitted
disease.
Our correction officers indicated
that there was very violent and dangerous
behavior going on, really by the inmates, that
they would throw urine and feces on correction
officers and employees. And in order to
prevent transmitted diseases, we passed the
law in 1995. And I'm pleased to report it did
in fact cut down on the number of these
incidents.
2962
There were many court cases to talk
about, well, if an inmate places a substance
on a correction officer, it wouldn't be
covered by the statute that we've already
passed. If they spat upon an officer, it
would not be covered. And they also wanted to
include saliva as a substance that would be
punishable under the statute.
Let me just point out to you that
in the year 2000, it was reported by the
Department of Correction Services of 1,238
such incidents as I've been describing to you
where inmates would throw substances of a
dangerous nature -- what could be a dangerous
nature upon correction officers, employees,
probation officers, and policemen.
And of that number, they categorize
830 of them were considered of a dangerous
nature. Which means that person who was -
who got the substance upon them, the
correction officers, had to do testing to see
if they got a transmitted disease.
So what this will do is it will
plug up these loopholes and try to prevent
this further dangerous and violent conduct
2963
that's been going on in our correction
institutions against our correction officers.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
if Senator Bonacic would yield for some
questions.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield for a question?
SENATOR BONACIC: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Thank you.
Senator, of the -- you said there
were about a thousand cases, I guess, since
1995, if I heard you correctly, and 830 of
them were of a serious nature. How many cases
involving the material covered in this bill -
the seminal fluid, ear wax, or the saliva -
SENATOR BONACIC: Let me correct
you, first of all, Senator Paterson. The
number that I told you was for the year 2000
alone. So it wasn't since 1995. So there's
still quite a bit of this activity going on in
the prisons.
2964
SENATOR PATERSON: Right. So it
would be about 5,000 if we just estimated.
SENATOR BONACIC: Yeah.
And when you asked me is it broken
down, how much was urine, how much was feces,
how much was seminal fluid, I don't have those
statistics with me. And I wouldn't know the
answer to that question.
SENATOR PATERSON: As a result of
the incidents, do you have any record of how
many charges were actually filed against
inmates because of these incidents? In other
words, of the 830 in the year 2000, I would
assume that there would have been a number of
actual cases brought.
SENATOR BONACIC: You mean which
resulted in further criminal charges against
those inmates?
SENATOR PATERSON: Right.
SENATOR BONACIC: I don't know.
But I would say to you that a majority of them
were.
Let me point out to you an incident
that happened in the Sullivan County Jail,
where an inmate took a glass and went to a
2965
bowl and placed that glass and the substance
on a correction officer. And the courts held
in that case that the language that we passed
in 1995 did not cover the placement of a -
what could be a dangerous substance on a
correction officer.
So that's one of the things we're
trying to correct today, as well as spitting.
That's not covered on what we did before.
So we're trying to protect our
correction officers against dangerous and
violent conduct and the spread of potential
disease from some inmate that could be
infected with a transmittable disease.
SENATOR PATERSON: Thank you, Mr.
President. If Senator Bonacic would continue
to yield.
SENATOR BONACIC: I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: I actually
voted for the legislation in 1995. I
certainly have an interest in protecting the
correction officers, as I assume we all in
this chamber do.
2966
My question relates to, just for
further clarification, do you have any record
of convictions? Now, maybe not in the year
2000, you wouldn't have that because some of
these cases might still be pending. But just
to give me an idea.
And to be more specific, I'm trying
to find a way to separate out, to find out how
many of these cases that are loopholes in the
system we're actually going to be able to cure
through passing this legislation.
SENATOR BONACIC: Well, I think
everything we do here in terms of deterrent
legislation sends a message to those that have
been convicted of crimes against society, that
have a propensity of violence, and that you
would suffer more punishment if you engage in
acts that could bring physical injury to
people in custodial positions. And so it
makes sense to plug up these loopholes.
What is your concern, may I ask,
Senator Paterson, as to how many were
convictions and how many were not, may I ask?
What public policy are we protecting if half
were convicted and half the correction
2967
officers let it slide?
I'm trying to understand where
you're going with your line of questioning.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President.
Senator, the reason I'm trying to get an idea
is because my understanding -- and it was
somewhat supported by your explanation of the
bill -- was that these cases were largely
reduced as a result of the legislation in
1995. I wanted to make sure that we were not
what I might call piling on -- in other words,
just finding some areas that we didn't cover
in the original legislation and then at that
point putting them in, even though we might
not have enough cases to actually support
them.
So it wasn't necessarily
convictions as opposed to cases where there
weren't convictions as much -- first of all, I
want to know how successful the cases were
against the inmates when they were actually
brought.
And the second reason I wanted to
2968
know that was to establish that there is a
caseload that we might be expecting from the
passage of this legislation.
And what somewhat concerns me is,
let's say, the act of spitting, while it is
certainly not the most dignified action that a
human being can take to demonstrate disgust
over the conduct or their feelings about
another human being, the fact is that
sometimes that act is one that is kind of a
gesture. And the subjective notion as to
whether or not it is affecting the other
person or whether or not the saliva made
physical contact with the other person can get
into an area that's certainly a close call.
And because of the seriousness of
transmittable diseases and the new forms of
diseases and the way they can be transmitted,
I certainly understand what your concern is,
and I certainly would understand what anyone
working in a facility's concern is.
But we do have, at times, a
tendency to take legislation that has already
addressed an issue and then find new reasons
to revisit the same legislation. I want to
2969
make sure that's not the case.
SENATOR BONACIC: Okay.
SENATOR PATERSON: Okay. And if
the Senator would -- well, go ahead.
SENATOR BONACIC: Yes. Senator
Paterson, what has happened, when these cases
were prosecuted, the judges have looked at the
technical language and the manner of the
physical act in determining whether or not it
was a violation of the statute we passed in
1995.
And I'm quoting now from the Penal
Law, Section 240-32, in the practice
commentaries. And they say, "Lastly, the
objectionable substance must be thrown,
tossed, or expelled. That specification
arguably excludes other methodologies such as
directly placing an objectionable substance on
an employee's person."
So right here in the Penal Law,
which the courts have determined was a
loophole for which an inmate could get away
with what we would consider objectionable
conduct -- you have to understand that
inmates, not all of them are dumb. They read
2970
law books, they get very fine-tuned as to what
they can get away with. And they then would
engage in the act of placing or spitting,
because there are court decisions saying it's
not covered.
And that's why we're revisiting
this statute that we did in 1995. And the
request has come, by the way, by the
correction officers and those custodial people
that serve in probation and in these positions
where, you know, they're supervising dangerous
and violent people.
And I may add in conclusion, while
I'm up here, I think back in 1999 the vote in
Senate was 58 to 1. Last year, it was 54 to
2. So all we're doing is not kicking it a
step higher to stick it to the inmates, but
just to cover what I think we intended to
cover back in 1995, which the courts now have
interpreted differently because they're
looking at the physical act and the manner in
which it was spread to the custodial employee.
Does that answer your question?
SENATOR PATERSON: Yes, it does,
Senator.
2971
SENATOR BONACIC: Thank you.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: I was going to
ask Senator Bonacic about the use of the word
"placing." And he actually answered the
question in his explanation, and then he
further elaborated when he spoke on the bill
just a moment ago.
If the Senator would yield for a
question.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: I will.
Senator Paterson, before you ask me
the next question, counsel was good enough to
give me some of those statistics you asked
for. And in the year 2000, there was a total
of 35 arrests. Which was quite miniscule
compared to the number of incidents that you
had a concern about, or whether there was
piling on.
SENATOR PATERSON: Thank you,
Senator.
2972
Mr. President, I think Senator
Bonacic has gone a long way to clarify some of
these issues, because actually that was
exactly why I was asking him the question. If
you had 830 serious incidents, and now I know
that there were 35 arrests, so what we now
have is 795 incidents where there were no
arrests. Is that right, Senator Bonacic?
ACTING PRESIDENT MEIER: Can I
ask both Senators to address the chair,
please.
Do you wish Senator Bonacic to
yield for a question?
SENATOR BONACIC: I do. I do.
SENATOR PATERSON: I'm sorry, Mr.
President, I already asked Senator Bonacic to
yield for a question.
SENATOR BONACIC: And we do.
ACTING PRESIDENT MEIER: I said
"both Senators." I'm just trying to be
equitable here.
SENATOR BONACIC: If your math
was right -- I didn't do the actual
subtraction, but I would say that's correct.
SENATOR PATERSON: Mr. President,
2973
if the Senator would continue to yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you continue to yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: He
yields.
SENATOR PATERSON: Mr. President,
then the analysis of the number of arrests
would probably give us a good idea that in the
number of cases where there were no such
arrests, perhaps one of the problems was that
there were additional fluids -- the contents
of the toilet bowl, expectorants and that kind
of thing -- that, because they're not in the
law, and the fashion of how they are vested
upon the corrections officer or whoever is the
victim in that particular case, would probably
be a lot more than we first would have
considered just reading the legislation.
And that's what I'd like to hear
Senator Bonacic's response to.
SENATOR BONACIC: Well, when we
put this legislation forward, what we're doing
is we're sending a message to the correction
officers that we're very concerned with their
2974
health, safety, and welfare. And as a result
of only 35 arrests, it appears that they're
not abusing their discretion when it comes to,
you know, initiating a further criminal
proceeding under the Penal Law against a
particular inmate.
But there are instances where there
are clear loopholes, such as the spitting or
the placing, and they would like those
loopholes plugged.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
I want to thank Senator Bonacic, and I want to
address the bill.
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: I feel a
little more comfortable -- I feel very
comfortable with the fact that Senator Bonacic
and his counsel have been very specific and
are, I think, really clearing up a few areas
that we as a Legislature didn't consider when
we passed this bill in 1995. And I think we
can all commend him for that.
2975
What would make me a little more
comfortable is to understand whether or not it
was these issues that are being addressed in
Senator Bonacic's legislation or the fact that
this use of -- in other words, making these
charges, since there was enough of a study to
distinguish that 830 of a thousand of these
charges were actually pretty serious.
But I just want to further
investigate to make sure that this is not a
device that, in a sense, is utilized to stick
it to the prisoners, as was a term that
Senator Bonacic used. He didn't mean that he
agreed with it, but it was just a term that he
used and I'm using here just to demonstrate.
That I tend to think that this was
a serious problem at some point. It was
addressed substantially in the legislation in
1995. But if there are any loopholes or any
areas that are being utilized by prisoners who
are -- most of whom understand how to get
around the specifics of the legality, then I
think Senator Bonacic's point is well-taken.
ACTING PRESIDENT MEIER: Senator
Duane.
2976
SENATOR DUANE: Thank you, Mr.
President. If the sponsor would yield,
please.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you very
much.
I know that Senator Paterson
started to question on the issue of the word
"placing." But I'm wondering why that word
was chosen more specifically, say, instead of
the word "spilling" or something like that.
SENATOR BONACIC: Do I continue
to yield? I do yield to his question.
The answer to that is the courts
have used that word, that the placing of a
substance by an inmate on a correction officer
does not apply to the statute that we passed
back in 1995. That's why that specific
language is in here today.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
2977
to yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: We do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I know that the
issue of -- I believe, let me just check,
toilet water is one of the -- the contents of
a toilet bowl, which could just be toilet
water. Is there an issue of inmates placing
Dixie cups of clean toilet water near
correction officers?
SENATOR BONACIC: Senator Duane,
I apologize, but I'm not hearing you well
because you're looking down. Could you
just -- was your question is if they had clean
water?
SENATOR DUANE: If it was clean
toilet water in a Dixie cup.
SENATOR BONACIC: And they threw
it at -- and they placed it on the inmate -- I
mean on the correction officer?
SENATOR DUANE: Yes.
SENATOR BONACIC: That would
2978
be -- if this were to become law, that inmate
could be prosecuted for that act.
I just want to reverse -- I have a
question for you. If you were the correction
officer and the water was placed on you, the
clean water, you would have to go through a
series of testing. You wouldn't know whether
it was clean or a transmitted disease. So
that's the problem we have.
And we want to discourage that kind
of conduct. And I may add, we have done a
good job here collectively by passing the 1995
law. Because a lot of this stuff doesn't go
on to the extent that it did six years ago.
But we have these couple of exceptions where
the inmates know about it and they're being
cute and they engage in this kind of conduct.
SENATOR DUANE: Mr. President,
I'm unsure what just happened.
ACTING PRESIDENT MEIER: Well,
actually Senator Bonacic has the floor, and I
think he's asking you if you would answer a
question even though you didn't have the floor
at that time.
So he's in effect yielding the
2979
floor to you sir, and it's up to you whether
you choose to answer the question.
SENATOR DUANE: If the Senator
would repeat the question part of the
question.
SENATOR BONACIC: It's not
necessary for you to answer it.
Do you have any other questions
which I can yield to?
SENATOR DUANE: Yes, Mr.
President, I would. And if the sponsor would
yield to them.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you continue to yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is it true that
an inmate who throws anything at a correction
officer is in for a pretty rough time and is
probably or I should say most definitely
facing time in an SHU?
SENATOR BONACIC: Senator, we
have a law now that says if an inmate throws a
substance at a correction officer or those
2980
that we classify as custodial employees, they
could be charged with a crime right now. It
has nothing to do with this proposed
legislation.
SENATOR DUANE: Then through you,
Mr. President, why is this legislation
necessary?
ACTING PRESIDENT MEIER: Senator
Bonacic, I believe Senator Duane is asking if
you would yield for another question.
SENATOR BONACIC: I would yield.
I assumed that you were in the
chambers when we started this discussion when
I was explaining to Senator Paterson why we
needed the legislation. And I don't mind
repeating it for you if you didn't hear what I
was saying to him. Did you hear what I was
saying to Senator Paterson?
SENATOR DUANE: Through you, Mr.
President, I did hear the discussion with
Senator Paterson.
And let me just repeat my question
in a way that gets to the issue that I'd like
answered, if the sponsor would continue to
yield.
2981
ACTING PRESIDENT MEIER: Senator
Bonacic, do you continue to yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I believe that in
all probability, or even most definitely that
any inmate that throws anything at anyone in a
correctional facility is destined to be
sentenced to spend time in an SHU. Is that
correct?
SENATOR BONACIC: I wouldn't know
the answer to that question.
But I do know the answer that in
2000, of the 1,238 incidents in the year 2000,
only 35 resulted in arrests. So I assume that
the nature of that activity was very serious.
And if they were, you know, convicted of a
crime, I don't really know where they ended
up, where they were confined after that
conviction.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
2982
Bonacic -
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: And prior to that
legislation there were a substantial number of
inmates who the sponsor believes were guilty
of throwing things at correctional officers;
is that correct? That he believes that the
number went down dramatically because of the
law, the previous law.
SENATOR BONACIC: As I explained
before, I think the number of incidents prior
to when this Legislature passed the law, prior
to 1995 there were larger incidents of this
offensive conduct committed by inmates against
custodial employees.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
2983
SENATOR DUANE: Thank you.
Does the sponsor believe that most
inmates, if not all inmates, are educated at
this point on the seriousness of the issue of
throwing substances at correctional officers
and what can happen to them if they do such a
thing?
SENATOR BONACIC: I think every
citizen in the state of New York is presumed
to have knowledge of the law.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I'm wondering if
it has occurred to the sponsor, then, that
right-minded people are very understanding of
what can happen to them if they commit such an
act and so therefore are not doing it,
therefore leaving people who are mentally ill
and cannot understand the consequences of
2984
their behavior to be the ones captured under
the law now.
SENATOR BONACIC: If I understand
your question, is it a person that's mentally
insane that commits this act, is that -
SENATOR DUANE: Through you, Mr.
President, yes, now. Because the ones who are
not mentally ill understand the consequences
of what happens if they perform these acts.
Those who were mentally ill and incapable of
understanding are the ones who are captured by
this law now.
SENATOR BONACIC: Well, I believe
if you're mentally ill and you've been
adjudicated as such, you wouldn't have the
mental capacity to understand the nature of
your actions and therefore couldn't be
convicted of the crime in 1995 nor the
crime -- nor the legislation which we're
trying to pass today.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
2985
SENATOR BONACIC: We do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I'm wondering if
the sponsor would be surprised to hear that
upon visiting correctional facilities around
the state, correctional personnel have indeed
told me that they believe the only people who
do this now are those who are mentally ill.
Would the sponsor be surprised to hear me say
that?
SENATOR BONACIC: I don't know if
that's truth or fiction. But normally that
kind of conduct and its adjudication would be
resolved in a court of law with a judge and a
jury. You know, it would be a case-by-case
basis.
So I can't answer it in a generic
way. You have to look at every individual
activity. And there is a legal process that
will determine whether or not that person
deserves to be punished or has the mental
capacity to be convicted of that crime.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
2986
yield.
ACTING PRESIDENT MEIER: Does the
sponsor yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I want to again
ask whether the sponsor believes that someone
who threw feces or urine in a correctional
facility would now, without this law, be
sentenced to spend time in an SHU.
SENATOR BONACIC: I don't know
how that inmate would be punished if they were
convicted of this crime of throwing feces or
urine at a correction officer. I don't know
where they go once they get convicted.
SENATOR DUANE: Through you, Mr.
President, if I could just clarify that.
I'm actually speaking of people who
are not convicted in any court of law but only
within the internal procedures of a
correctional facility are sent to an SHU if
they have been accused and possibly found to
have thrown feces or urine at someone in the
correctional personnel.
2987
SENATOR BONACIC: I'm a little
confused by the nature of the question. You
referred to a term, you said S -
SENATOR DUANE: S-H-U, special
housing units.
SENATOR BONACIC: Solitary
confinement, is that what you mean?
SENATOR DUANE: Through you, Mr.
President, that's -
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: That's not
actually quite accurate. But I don't know how
to get on the floor what an SHU is. I'd be
more than happy to explain what an SHU is if
the sponsor will yield me the time to do that.
SENATOR BONACIC: I would like to
answer your question.
SENATOR DUANE: I guess the
answer is no.
SENATOR BONACIC: The nature of
this legislation that we're proposing has
nothing to do with the physical environment of
which that inmate is in. It's the act that
we're trying to prevent.
2988
So I don't understand the relevancy
of your question as to what happens to the
inmate after they commit the act, because it's
not relevant to the legislation we're
proposing.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Could the sponsor
acknowledge that at least some percentage of
inmates who throw things at correctional
officers or correction personnel are indeed
sent to an SHU? It doesn't have to be all of
them. But if he could just, for the time
being, cede that some are sent internally to
an SHU.
SENATOR BONACIC: I can't answer
that question because I don't know what they
do in a correction facility after these acts
occur.
2989
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: If the sponsor
would continue to yield, please.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you continue to yield?
SENATOR BONACIC: I'm sorry.
Will I yield to another question? Yeah, sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you.
Although I have to say that I'm
very distressed that the sponsor of
legislation which has to do with our
correctional system is not familiar with SHUs,
of which New York State has practically more
than any other state, of which people are kept
in them four times as long and there is no
administrative relief for someone once they're
sentenced to it.
But I'm going to preface my
question by saying that SHUs are a terrible,
dehumanizing place. And I'm wondering if the
sponsor could think of a punishment that is
worse for an incarcerated person than to be
2990
sent to an SHU.
SENATOR BONACIC: First of all,
Senator, the people who commit violent crimes
against society, whether they rape or kill
other human beings, are sent to a correction
facility. The Division of Criminal Justice
manages the physical structure and the
activities that occur in those facilities.
What we are trying to accomplish
here today is to prevent harm on those
correctional employees, probation officers,
employees, administrative employees that work
in dangerous places for people that have
already been convicted of violent crimes
against society.
So if you're asking me do I have
sympathy or compassion that they're being
punished too much, I don't know the answer to
that question other than to tell you that
they're in there for a reason and they're
paying a price for the crime that they've
committed.
Now -- and we're trying to prevent
the good guys, the custodial employees, from
not incurring transmitted diseases by certain
2991
acts of inmates. That's the purpose of this
legislation.
So if you want to expound on your
sympathy for the inmates and why they deserve
better attention or more kindness than our
correction officers and our custodial
employees who have never committed a crime,
please feel free to do so.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you continue to yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I understood the
sponsor to say that everybody who is in prison
is in for violent crimes. But I'm wondering
if the sponsor knows that in fact a large
percentage of people in our state correctional
facilities are in for nonviolent drug
offenses.
SENATOR BONACIC: I would say to
you, Senator, that what I know about drugs,
2992
when someone takes drugs, I don't know if you
could say that they're not capable of a
violent act. You're assuming that there is
such a thing as a person on drugs that is
nonviolent. And I don't necessarily agree
with that conclusion.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Does the sponsor
think it's possible as well for someone who's
not on drugs to commit a violent act?
SENATOR BONACIC: I do. I do.
SENATOR DUANE: And does the
sponsor believe that it's possible that
someone is in jail for only committing a
nonviolent drug offense and not -- and is not
sentenced there because potentially they could
commit a violent act?
SENATOR BONACIC: I'm not sure I
2993
understand your question. But if I were a
seller of drugs and I never used it, I could
go to jail and be deemed a nonviolent felon.
If that helps you with your analysis.
SENATOR DUANE: Through you, Mr.
President. But I believe the sponsor said
that a person who used drugs seems to be more
capable of committing a violent act, and I'm
trying to explore that a little bit more.
SENATOR BONACIC: I don't think
it's germane to the bill we're trying to pass.
But if you want to talk about, you
know, the psychological profile of inmates,
that if someone uses drugs, I think -- I can't
say conclusively that they could be classified
nonviolent. I think, you know, they lose -
they could lose their mental capacity and
commit violent acts.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you continue to yield?
SENATOR BONACIC: I do.
SENATOR DUANE: Would the sponsor
2994
acknowledge there may be some people who are
not incarcerated who may have used drugs and
who may be using -
SENATOR BONACIC: Absolutely.
Absolutely.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
SENATOR BONACIC: I do.
SENATOR DUANE: Is the sponsor
then also saying that those people who are not
incarcerated but who may be using drugs are
then also at risk of committing violent acts?
SENATOR BONACIC: At this time,
Mr. President, I think that's not germane.
Because our bill speaks to inmates that are
incarcerated and engaging in certain acts.
And the question I've been asked -
SENATOR DUANE: I'll withdraw the
question, Mr. President.
ACTING PRESIDENT MEIER: Senator
Duane has withdrawn the question.
SENATOR BONACIC: Thank you.
ACTING PRESIDENT MEIER: The
chair would suggest that the questions should
2995
be germane to the bill rather than a general
philosophical discussion of corrections
policy.
Senator Duane, do you wish the
sponsor to continue to yield?
SENATOR DUANE: At this point,
Mr. President, I think I'll speak on the bill.
Thank you.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
SENATOR SCHNEIDERMAN: Mr.
President, would Senator Duane yield for one
brief question.
SENATOR DUANE: Absolutely.
ACTING PRESIDENT MEIER: Senator
Duane, do you yield?
SENATOR DUANE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Duane yields.
SENATOR SCHNEIDERMAN: I mean, I
share, I must say, in some respects Senator
Bonacic's concern about people working in
correctional facilities, having been one of
those people myself. And you made frequent
2996
references to the different consequences of
these actions.
When you're talking about an SHU,
what are you talking about? Are you talking
about solitary confinement? What are you -
could you please explain what you're talking
about?
SENATOR DUANE: Well, we call
them SHUs. And thank you, Senator, for asking
me this question so that I can describe
exactly what they are.
SHUs, what we call special housing
units, the Department of Corrections calls
them special housing units, but those who are
incarcerated call it the box. And what it is
is a very, very small space, not much larger,
not much wider than a couple of these desks
put together.
There are oftentimes two people to
such a cell. One of them may be a violent
offender, the other may be in for a nonviolent
drug offense. They are just put in together.
They are there for 23 hours a day. They may
or may not get an hour outside to exercise.
They don't actually enter any place where
2997
there's anyone else. They're put into really
a cage outside where they are. As I say, if
they're fortunate, they're allowed an hour
outside.
They are denied any reading
material to begin with. They earn reading
material, starting with a Bible and then
moving up to other books.
They are sentenced without any kind
of administrative review. Even after they've
been sentenced, an inmate has been sentenced
to an SHU, there is no screening to see if
that person is suffering from mental illness.
Many of the prisoners who have been sentenced
to SHUs start to exhibit symptoms of mental
illness after they've been incarcerated in one
of these.
Their stay may be extended. There
is no administrative review. There is no way
to appeal your being kept in an SHU. Right
now, for a whole host of -- virtually any
infraction in a facility you can be sentenced
to an SHU.
SHUs don't actually count towards
the population in a prison, so we don't have a
2998
real idea of how many people are incarcerated.
And so for the Department of Corrections, it
actually pays for them to keep SHUs filled all
the time so that -- because those beds don't
count towards their sentence at all.
In addition, we've just built a
facility in the state of New York called
Upstate, which is all SHUs. Whereas in the
past, there was no need to have SHUs or there
was very limited use to it. Now we find that
SHUs are always at full capacity. It can't be
that people are doing that many more bad
things while they're incarcerated. It seems
like this is just a punishment that's being
used more often.
New York State keeps people in SHUs
four times longer than any other state in the
nation. Even the correctional officers and
correctional personnel themselves are very
concerned about SHUs. They acknowledge that a
large number of people who are kept in SHUs
are suffering from mental illness.
The only thing worse than being in
an SHU is being in a mental health facility in
a prison. Because when you're taken out of an
2999
SHU and put into a mental health facility,
you're stripped of all your clothes, you're
put in a room with no human contact, you're
just medicated, you lie on a cement box. So
you're better off being in an SHU.
I'm glad that you asked me this
question, because there is no other way to
discuss this issue on the floor of the Senate.
There is no way to talk about how terrible
SHUs are. Editorial boards across the state,
including this Monday, in the Albany Times
Union, have talked about how inhumane SHUs
are, how they need to be reformed, how they're
a disgrace of the state of New York that we
keep people in SHUs.
I'm hoping that we can really have
a debate on how terrible SHUs are, because
they are really one of the worst things that
we have existing in the state of New York,
Senator.
SENATOR SCHNEIDERMAN: Thank you
for your civil and informative answer.
SENATOR DUANE: Thank you.
On the bill, Mr. President.
ACTING PRESIDENT MEIER: Senator
3000
Duane, on the bill.
SENATOR DUANE: I want to
reiterate that by far the vast majority of
people who at this point would be accused of
throwing feces or urine are those people who
are incapable of understanding the seriousness
of that offense. To a person, they are
mentally ill and in need of professional
mental health care.
That we would -- it's just
beyond -- I mean, it almost makes me
speechless that anyone would understand that
someone now in a correctional facility,
knowing what it's like to be put in the box,
to be put in an SHU, would ever risk that
unless they were incapable of stopping
themselves.
And that we would prosecute people
who are mentally ill and prosecute them for
being mentally ill is just completely and
totally and utterly unacceptable. To punish
people for their mental illness is just wrong.
Nobody supports that sort of thing
except for people that don't know what's
really going on in our correctional facilities
3001
and don't know the appropriate ways to deal
with the mental health of people who are in
our correctional facilities.
I urge my colleagues to vote no.
ACTING PRESIDENT MEIER: Senator
Brown.
SENATOR BROWN: Thank you, Mr.
President. Mr. President, through you, would
the sponsor yield for a question.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield for a question from
Senator Brown?
SENATOR BONACIC: Certainly.
Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: Like Senator
Bonacic, I'm concerned about our corrections
officers and their safety. My question is
going to go to the potential for abuse on the
part of a correction officer that perhaps does
not like an inmate for a certain reason.
Senator Bonacic, in this kind of
situation, if an inmate is charged with
placing urine on a corrections officer, what
3002
is the due process that's involved with that
kind of charge?
SENATOR BONACIC: Well, they
would be -- they would file a complaint, the
correction officer, and it would be an
accusatory instrument. The district attorney
would have to look at it.
And he would be prosecuted just
like an individual person not in a correction
facility. He's entitled to the same
due-process rights and constitutional
protections.
SENATOR BROWN: Through you, Mr.
President, would the sponsor yield for an
additional question?
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: So, Senator
Bonacic, there would have to be witnesses to
the event to be able to prove that the inmate
did in fact engage in this illegal behavior?
SENATOR BONACIC: The burden of
3003
proof is no different than if I were accused
for the first time of committing a crime as an
inmate would be accused of violation of this
statute.
SENATOR BROWN: On the bill, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Brown, on the bill.
SENATOR BROWN: Like Senator
Bonacic, I'm concerned about our corrections
officers during the course of them fulfilling
their duties working in correctional
facilities.
Certainly there are some inmates
that are nonviolent offenders, but there are
many inmates that are violent offenders. And
I think that there have been instances, and I
have heard from corrections officers in my
district about some of the things that go on
inside of correctional facilities and their
concerns about them being able to be safe
while they pursue the -- their jobs and their
livelihoods so that they can safely return
home to their families.
It does sound to me like this piece
3004
of legislation does close a loophole in the
law where a corrections officer could be spat
at, could have excrement placed on them, which
would put them in a position where they would
have to undergo a variety of medical tests to
make sure that they are healthy and that they
didn't contract anything from an inmate during
the course of the inmate engaging in such
behavior.
I was happy to hear the debate,
though. Because listening to Senator Duane's
comments, I did hear about SHUs. Which, to be
very honest, I was not aware of, had not heard
of before. And certainly if facilities like
this exist across the state, they should be
looked at. Because one of the reasons for
incarcerating people, particularly inmates
that will be returned to society at some
point, is the hope that there will be some
rehabilitation. So hopefully that is
something that can be looked at.
But on this piece of legislation
that is being sponsored by Senator Bonacic, I
am supportive and will vote in the
affirmative.
3005
ACTING PRESIDENT MEIER: Senator
Volker.
SENATOR VOLKER: I want to speak
quickly in favor of the bill.
I also want to say, as part of
that, as somebody who was almost a victim of
the acts that are being discussed here, this
is another bill and another situation where so
often incredible untruths are talked about
here.
You know, I've been involved with
the corrections system for a lot of years -
25, 30 years -- and SHUs are something that
has been talked about for a long time. Part
of the reason we have SHUs is to protect other
inmates.
When I go into the prison system
today, the biggest -- when I used to go in,
the inmates complained: Listen, there's these
people wandering around here, they're
dangerous people. They're more afraid of the
inmates, many of them, very often, than they
are of the correction officers.
Number one, all SHU people are
counted just like everybody else. That's
3006
absolutely false. There's so much false
information being distributed by the
Correction Association.
Number two, you have to do
something to get into an SHU unless you're in
there for protection. They are checked
constantly by the Commission on Corrections.
That's what we have a Commission on
Corrections for.
Fourthly, when the Times Union did
their article here some time ago on SHUs,
Commissioner Goord responded and debunked a
lot of the things that were said, and the
Times Union, in their usual style, absolutely
refused to print any of what he said.
I don't -- I mean, you can make an
argument on SHUs all you want. And to say
that there's more people in our SHUs than any
place in the country, well, that may be true.
We're not sure what they do in California.
California's got four times as many inmates,
three or four. They have some cells that are
a lot smaller than ours. You want to call
them SHUs -- some places have much, much worse
than anything in New York.
3007
Maybe you don't realize: as far as
I know, we're the only major prison system in
the country that is not under federal court
order. And if you don't think people watch
our prison systems, you are absolutely wrong.
Every major prison system in the country is
under court order but ours.
The last problem we had -- and I'll
finish there -- was hospital and health care.
And I can tell you, we have upgraded our
hospital and health care enormously. There's
one hospital, and I won't tell you where it is
because it's pretty close to me, it cost an
enormous amount of money to build that
hospital. It has one of the best health cares
in the country for inmates. I know a lot
about it. I've been there.
The reason I mention that is that a
lot of this nonsense -- and it is nonsense,
and I don't know where this story came out
about taking people out of SHUs and stripping
them and all that. I believe that's because
the guy got so bad that they had to do it
because he was a danger to himself. Because
many of these people that are in these SHUs
3008
are isolated because they become such a
problem. And some of them actually go from
the SHUs to mental health places.
And, I mean, it's not what it
seems. But they are used very effectively for
discipline. Because if a person -- a
nonviolent person, by the way, doesn't go to
an SHU unless they do something in the prison
itself. They absolutely do not go in. And
there's a limited number of nonviolent people,
and now we're having difficulty finding enough
nonviolent people to get into our Shock
system.
So I just wanted to point that out.
The reason we have this bill is because it's
become a serious problem in the system. And I
think it's a bill that should be passed. I
was in one of the SHU sections here a couple
of years ago and the sergeant said to me,
"Look out for this guy," and I did. And I
pushed the sergeant away, and otherwise we'd
have been both splattered with feces.
And I only point that out because
it's a problem for everybody. And the inmates
that were in that section said, "You ought to
3009
do something with that guy, get him out of
here. He's a danger to all of us."
ACTING PRESIDENT MEIER: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President. I wonder if Senator Bonacic would
yield for a question or clarification.
SENATOR BONACIC: Yes.
SENATOR MONTGOMERY: Thank you.
Through you, Mr. President, I just
want to ask Senator Bonacic, you know, you
indicate that these acts that you talk
about -- in other words, the current law says
that an action shall be taken based on whether
or not the bodily fluid is thrown. But if you
rub it on, it's not considered aggravated
harassment. Is that what it -
SENATOR BONACIC: No, what the
courts have held, it's the spitting or the
placement on is not covered under existing
statute. But throwing would be. That's the
law now. We don't need -- this legislation
doesn't address that.
SENATOR MONTGOMERY: So in other
words, we don't need it for throwing but we
3010
need it for rubbing on.
SENATOR BONACIC: Well, you raise
a good point. Is rubbing on placement? If a
judge says it is, then we need it.
SENATOR MONTGOMERY: Okay. Mr.
President -
ACTING PRESIDENT MEIER: Would
you like Senator Bonacic to continue to yield?
SENATOR MONTGOMERY: Would he
yield for another question, please.
SENATOR BONACIC: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Thank you.
Now, in the case of an aggravated
harassment charge based on an action within
the prison, what happens? Is the inmate's
term extended, is the sentence extended? Does
he or she go to a special housing unit, get
into lockdown or whatever administrative -
what happens now to that person?
SENATOR BONACIC: Well, first of
all, if that inmate is prosecuted and there's
a conviction of another crime under the Penal
Law, a judge will determine whether it's
3011
concurrent or consecutive sentencing. If the
correction officer decides that he's not going
to go through the process but this inmate
needs discipline, they may take appropriate
action to discourage that kind of antisocial
behavior.
SENATOR MONTGOMERY: All right.
If Senator Bonacic will continue to yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you continue to yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: So
therefore, Senator Bonacic, the charge that is
levied against an inmate based on activities
that are in your bill or any other, while they
are incarcerated, there is sort of a judicial
system, if you will, inside that makes the
determination of the consequences of that
or -
SENATOR BONACIC: I think that is
true.
SENATOR MONTGOMERY: It's all
done internally.
3012
SENATOR BONACIC: You know,
there's only been 35 arrests in the year 2000
where they took it, that accusatory instrument
that had to be -- I assume there had to be an
interview with that correction officer, the
district attorney's office, to see if this
warranted moving forward for criminal
prosecution.
And the fact that there's only 35
arrests shows you that they thought, in those
minuscule set of cases out of 1,800 reported
incidents, it warranted serious charges.
SENATOR MONTGOMERY: Okay. And
one last question, if Senator Bonacic would
yield.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Thank you.
Senator Bonacic, when the -- have
we already not passed legislation that would
require an extended term of sentence based on
a criminal action within the department while
3013
you're incarcerated?
SENATOR BONACIC: What we did was
in 1995 we passed a statute that was
aggravated harassment of an employee by an
inmate, which was a Class E felony. So that's
on the books since 1995.
SENATOR MONTGOMERY: To be
served -
SENATOR BONACIC: Again, a judge
would decide whether it was consecutive or
concurrently.
So if a judge ruled, you know, it
was concurrent, then the length of the prison
sentence would be the same, but it might
affect that inmate's parole review.
SENATOR MONTGOMERY: Yes. Yes.
All right, thank you, Senator Bonacic.
SENATOR BONACIC: You're welcome.
SENATOR MONTGOMERY: Mr.
President, on the bill.
ACTING PRESIDENT MEIER: Senator
Montgomery, on the bill.
SENATOR MONTGOMERY: There was a
lot of discussion by my colleagues on the
special housing units. And there was a report
3014
in one of the local New York City newspapers
about an inmate who was beaten to death in one
of the SHU units.
And apparently, I'm assuming that
the other 700-and-change incidents that
occurred under the existing statute,
notwithstanding Senator Bonacic's bill here,
were treated, as he indicated, as an
administrative issue and probably, more than
likely, people ended up in SHUs.
These double-celled units are
inhumane. And while we're not, as Senator
Volker has indicated, we're not under federal
observation and review, we have been cited by
human rights watch groups internationally and
nationally as one of the worst criminal
justice systems in the world. So it is not
because we should not be, it's just because
they haven't gotten around to us yet.
And this particular legislation
simply creates a broader range of charges that
corrections people inside have which allow
them to sentence a person to the special
housing units. It is inhumane, as has been
pointed out for many reasons. And there is no
3015
outside review of cases. There is no
judicial, fair way of having an inmate seek
some appeal to being in a special housing
unit. There's no limit, no time limit to
people spend years in there. It is cruel and
inhumane treatment.
And moreover, in some instances,
people are released from special housing back
into society. So this really is a very major
and serious problem and issue for us to deal
with in terms of our criminal justice system.
So I -- while I absolutely
understand the danger that corrections staff
face every day of their lives, and many -
very often they are there longer than the
prisoners, because their work goes beyond some
of the sentences. However, I think that we
have to look at both sides. And certainly I
do not want to create more of an opportunity
for sentences to be levied on people,
especially mentally ill people. But a large
percent of the people who are in special
housing units are mentally ill. And if they
are not mentally ill when they go in, they
certainly become mentally ill and destabilized
3016
while they're in.
So we need to look very carefully,
very closely at that system, the system that
we've created, housing two men in a cell, a
very small cell for very long periods of time,
one of whom may be violent, both whom may be
violent, there may be all kinds of other
problems, mental illness and whatever, and we
take no account of that.
So I have to vote no on this,
because I just think that it is the wrong
thing to do in light of the fact that we have
not moved to at least create a system where we
can evaluate objectively, periodically, and
require some measure of accountability for
what happens in the special housing units.
I'm voting no on this legislation,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. If the sponsor would yield for
a few brief questions.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
3017
SENATOR BONACIC: I do.
SENATOR SCHNEIDERMAN: This is a
difficult area to address, for all the reasons
that have been stated thus far. Based on my
own experience, though, I know that it
sometimes almost becomes a part of the culture
of an institution that, you know, the flinging
of feces becomes something that, you know,
lots of people do and then, you know, people
count how many times they have done it and
things like that.
Something that actually
unfortunately was a common practice when I was
working in a prison -- and I don't know if it
still is today, but I wonder if this
legislation would address it -- is when
inmates expectorate or otherwise place
offensive matter in the food of corrections
officers. Would that be covered by this?
SENATOR BONACIC: I would say
that it would.
SENATOR SCHNEIDERMAN: Okay, I
appreciate that. Is there any distinction -
ACTING PRESIDENT MEIER: You wish
Senator Bonacic to yield?
3018
SENATOR SCHNEIDERMAN: Yes, I'm
sorry, Mr. President. I was just ingesting
his last response.
ACTING PRESIDENT MEIER: Senator
Bonacic, do you yield?
SENATOR BONACIC: I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: I'm
wondering if there is any provision, in this
bill or elsewhere in the law, that makes a
distinction, because we've got a lot of
different product lumped together in one
category. And I think certainly there's a big
difference between having a large bowl of
excrement thrown on you and having someone,
you know, spit on your leg.
Is there any sort of distinction
that is set forth, or definition of the
severity of punishment?
SENATOR BONACIC: You asked about
the severity of punishment. Under the
existing law, it's an E felony. And again,
depending on the nature of the violence and
the grossness of the act, a judge would
3019
decide, if it resulted in criminal
prosecution, as to what the punishment should
be.
You know, many times I think
correction officers, when we looked at the
statistics, may say -- they let it slide and
do nothing. And I'm sure some may go into a
special housing to be disciplined.
So to answer your question, it's a
case-by-case basis. The statute does not
categorize the nature of the act with what
exactly different kinds of punishment would
be. As no criminal act does, usually.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President. So I do
understand, then, that there is the
flexibility to make that kind of distinction.
SENATOR BONACIC: Absolutely,
yes.
SENATOR SCHNEIDERMAN: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: Thank you.
And I appreciate the sponsor's responsiveness.
3020
This is a very difficult area, not
so much, I think, because of the details of
this particular piece of legislation, which I
intend to vote for, but I think because there
is a difficulty when -- in correctional
institutions, there's almost a sort of a
balance of power. It's almost as though there
are rules of engagement between prisoners and
guards.
And unfortunately -- I think that
this is helping the side of the corrections
officers a little bit, but unfortunately I
think in quite a few institutions in New York
State what we're hearing -- and I understand
that in the debate between Senator Volker and
Senator Duane, or the discussion, there are -
we're getting conflicting information. We can
only act on the information we get.
But I gather that in some
institutions the rules of engagement have
degenerated to the point that reprisals by
correction officers don't necessarily relate
to the severity of conduct. There's a certain
amount of arbitrariness.
I know that no one is perfect, it
3021
is extremely stressful working in a prison. I
know in my own experience of correction
officers who would routinely do something like
put drugs in an inmate's food or drink because
they were mad at them, they didn't want to go
through the procedures. There's a lot of
abuse of authority in an atmosphere in which
I'm afraid the sense of civility, the sense of
regulation and law has really been lost.
And I think that while this
particular bill, I think, is commendable and I
intend to vote for it, I join with my
colleagues in saying that I hope this year we
will attempt to address that problem. Because
I don't think that all of the stories are
false. I think we have some correctional
facilities in this state where things are out
of control.
And I think it is something that is
tremendously important for us to address
before the year is out. It appears that we
will have time to address this and many other
important issues this year. So I suggest that
we make good use of that time and try to deal
with this and other issues.
3022
Thank you.
ACTING PRESIDENT MEIER: Any
other member wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Duane, to explain his vote.
SENATOR DUANE: Thank you, Mr.
President.
I'm going to be voting no on this.
I didn't care for the implication of my being
soft on crime. Of course I believe that
people who murder or rape should be
incarcerated, and for long, long periods of
time. That's not what is at issue here.
There's a large number of
nonviolent offenders who are also incarcerated
in our correctional facilities, and we can't
make believe that that's not the case.
You know, pardon me if I -- if I
3023
don't feel very compelled that our prison
system isn't worse than Louisiana or Alabama.
That just doesn't give me that much comfort.
Just because ours isn't the worst in the
nation doesn't mean that there isn't room for
improvement. I don't think there should be
anyone in this body who doesn't believe that
there's room for reform in our correctional
systems.
If the health facilities are so
wonderful, I don't know why it is that we
don't all sign ourselves in when we need a
checkup if they're so great, the prison health
system. Because, in fact, that's not what the
people in the corrections tell us. In fact,
they tell us that it's hard for them to
attract doctors and nurses and other people
because the wages are so low.
You know, I just -- maybe
everybody's lying to me. Maybe the
superintendents of the prisons and the
correctional officers that I've talked with,
ex-offenders and families, maybe they're all
lying to me and they only tell a couple of
people in this body the truth about what's
3024
been happening. But I can tell you also what
they've said to me, including superintendents
and officers, correction officers, is: We
wish that politicians would stay out of our
policy. We wish that they would let us do our
jobs and stop trying to micromanage what we're
doing here, because they're only making our
jobs more difficult.
I'm sorry if I'm the only one that
they're saying that to. I have a hard time
believing that that's true. But I think we
should listen to the people who are the
experts in the field and not think that we're
better than them.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: How do
you vote, sir?
SENATOR DUANE: No.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the negative.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 57. Nays,
2. Senators Duane and Montgomery recorded in
the negative.
3025
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Malcolm Smith, why do you
rise?
SENATOR MALCOLM SMITH: To
request unanimous consent to be recorded in
the negative on Calendar Number 222.
Thank you.
ACTING PRESIDENT MEIER: Without
objection, Senator Malcolm Smith will be
recorded in the negative on Calendar 222.
THE SECRETARY: Calendar Number
237, by Senator Johnson, Senate Print 2732 -
SENATOR MORAHAN: Lay it aside
for the day.
ACTING PRESIDENT MEIER: Lay the
bill aside for the day.
Senator Morahan, that completes the
reading of the controversial calendar.
SENATOR MORAHAN: Is there any
housekeeping at the desk, Mr. President?
ACTING PRESIDENT MEIER: There is
nothing at the desk, Senator.
SENATOR MORAHAN: Okay. Could I
ask that you go back to motions and
3026
resolutions.
ACTING PRESIDENT MEIER: Order of
motions and resolutions.
SENATOR MORAHAN: I believe
there's four privileged resolutions at the
desk. If you would read the titles.
ACTING PRESIDENT MEIER: The
Secretary will read the titles of the
privileged resolutions.
THE SECRETARY: By Senator
Gentile, Legislative Resolution Number 970,
honoring Lisa Palamara upon the occasion of
her selection as Woman of the Year by the
Federation of Italian-American Organizations.
By Senator Gentile, Legislative
Resolution Number 971, honoring Salvatore J.
Cumella, M.D., upon the occasion of his
selection as a distinguished Italian-American
by the Federation of Italian-American
Organizations.
By Senator Gentile, Legislative
Resolution Number 972, honoring Jeffrey Basti,
M.D., upon the occasion of his selection as a
distinguished Italian-American by the
Federation of Italian-American Organizations.
3027
And by Senator Gentile, Legislative
Resolution Number 973, honoring Rocco Ferraro
upon the occasion of his designation as
recipient of the Community Service Award by
the Federation of Italian-Americans
Organizations.
ACTING PRESIDENT MEIER: The
question is on the resolutions. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
resolutions are adopted.
Senator Morahan.
SENATOR MORAHAN: There being no
further -
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Mr.
President, I just give written notice, as
required by Rule XI, that I will move to amend
the rules to add a new rule, XV, in relation
to the ethical standards for members,
3028
officers, and employees of the Senate.
ACTING PRESIDENT MEIER: The
notice is at the desk and will be entered into
the Journal.
SENATOR DOLLINGER: Thank you.
ACTING PRESIDENT MEIER: Senator
Morahan.
SENATOR MORAHAN: Mr. President,
there being no further business, I move we
adjourn until Monday, March 26, at 3:00 p.m.,
intervening days being legislative days.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Monday, March 26, at 3:00 p.m., intervening
days being legislative days.
(Whereupon, at 2:58 p.m., the
Senate adjourned.)