Regular Session - March 27, 2001
3188
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 27, 2001
11:05 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: With us this
morning to give the invocation is the Reverend
Paul Carter, Associate Minister at the
People's AME Zion Church, in Syracuse.
REVEREND CARTER: Let us pray.
Almighty God, creator and sustainer
of all life, we come before You this day to
thank You for the blessings that You have
already bestowed upon us, blessings of health,
strength, the activity of our limbs and the
functioning of our internal organs.
As I stand here today, I realize
that in this place there are many faiths and
beliefs present. So I'm calling on You to
speak to our hearts and our minds, that we
remember how it was when the disciples were
gathered together in the upper room. Though
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they were from different parts of the world,
they were gathered together in one frame of
mind and for one purpose. It was while they
were in that posture that Your Holy Spirit
filled and anointed them. And on that day,
many miracles began to happen.
As I intercede for those who are
gathered here today, I pray that we too might
find ourselves on one accord with You. This I
pray so that the work and the issues that are
to come before this Senate and Assembly body
may have Your guidance, wisdom, and Your
blessing as a part of the process.
In a world where there seems to be
so much turmoil and despair, we know that when
we turn to You, we can find a way of peace and
hope. In a world where it seems that many of
our youth and young adults have lost their
way, we know that when we turn to You, we will
make a way out of what seems to be no way.
Where there seems to be poverty in
life, we know that You can show us the way to
abundance, remembering that it is You who
gives us the power to get wealth, that Your
covenant may be established on the earth.
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When it seems that many have
neglected Your word in the government and
public arena, remind us that without You, we
can do nothing of lasting value, but with You,
we can do all things.
Keep us reminded of the fact that
as You taught the patriarchs of old to call on
You in times of need, You have also told us
through Your word, so that we can come boldly
before You so that we can find the grace
necessary to help us in our time of need.
As we read the papers and listen to
the news, we know without a shadow of a doubt
that our land is in need of a healing. And
You have told us that if my people, who are
called by my name, will humble themselves and
pray and seek Your face and turn from their
wicked ways, then you will hear from heaven
and heal our land.
Send down Your healing power on all
those who call on You for help. Let your
wisdom be bestowed on President Bush and
leaders the world over as they continue to
strive for peace.
We give thanks to You for the
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Senators, the Lieutenant Governor, the
Assembly members who work so diligently toward
the renaming of these buildings after these
four prominent women who made such a
contribution here in the State of New York.
We thank You for giving ear to our
supplication and blessing this day that you
have made with Your grace and Your favor, in
the name of Yeshua, my Savior, I pray.
Amen.
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, March 26, the Senate met pursuant to
adjournment. The Journal of Friday, March
23rd, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
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Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: Madam President,
I believe there's a substitution at the desk.
If we could make it at this time.
THE PRESIDENT: That's correct,
Senator.
The Secretary will read.
THE SECRETARY: On page 24,
Senator Marchi moves to discharge, from the
Committee on Environmental Conservation,
Assembly Bill Number 6816 and substitute it
for the identical Senate Bill Number 3156,
Third Reading Calendar 296.
THE PRESIDENT: The substitution
is ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could adopt the Resolution Calendar,
with the exception of Resolution 981.
THE PRESIDENT: All in favor of
adopting the Resolution Calendar, with the
exception of Resolution 981, signify by saying
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aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Environmental Conservation Committee in the
Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Environmental
Conservation Committee in the Majority
Conference Room.
Senator Skelos.
SENATOR SKELOS: If we could go
to the noncontroversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
103, by Senator Skelos, Senate Print 417A, an
act to amend the Criminal Procedure Law, in
relation to eliminating.
SENATOR PATERSON: Lay it aside.
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THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
194, by Senator Rath, Senate Print 1811, an
act to amend the Real Property Tax Law, in
relation to the allocation.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
200, by Senator Trunzo, Senate Print 2032, an
act to amend Chapter 672 of the Laws of 1993.
SENATOR DOLLINGER: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
Senator M. Smith, do you wish to be
acknowledged?
SENATOR MALCOLM SMITH: No, no,
I'm sorry.
THE PRESIDENT: All right. Well,
you were acknowledged anyway.
(Laughter.)
THE PRESIDENT: The Secretary
will read.
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THE SECRETARY: Calendar Number
205, by Senator Morahan, Senate Print 1158, an
act to amend the Military Law, in relation to
extending.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
207, by Senator Seward, Senate Print 2133, an
act to amend the Executive Law, in relation to
requiring.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
211, by Senator Libous, Senate Print 17 -
SENATOR SKELOS: Lay it aside for
the day, please.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
214, by Senator LaValle, Senate Print 2357, an
act to amend the Education Law and the
Business Corporation Law, in relation to
making.
3197
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
275, by Member of the Assembly Grannis,
Assembly Print Number 5798, an act to amend
Chapter 2 of the Laws of 1999.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
281, by Senator Maziarz, Senate Print 3042, an
act to amend Chapter 81 of the Laws of 1995.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
282, by Senator Hannon, Senate Print 3614, an
act to suspend certain requirements.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
Senator Skelos, that completes the
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reading of the noncontroversial calendar.
SENATOR SKELOS: Thank you, Madam
President. If we could go to the
controversial calendar, beginning with
Calendar Number 103.
THE PRESIDENT: The Secretary
will read Calendar 103.
THE SECRETARY: Calendar Number
103, by Senator Skelos, Senate Print 417A, an
act to amend the Criminal Procedure Law, in
relation to eliminating the statute of
limitations on the prosecution of certain
Class B violent felonies.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, on the bill.
Because of the use of DNA evidence,
it now has become possible to trace
information a lot more accurately and a lot
more assiduously than in the past. And
therefore, I can understand the desire perhaps
to extend the statute of limitations.
What I don't understand is the idea
that we would have no statute of limitations
at all. Therefore, I would like to know if
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Senator Skelos would like to yield for a few
questions.
THE PRESIDENT: Senator, do you
yield?
SENATOR SKELOS: Yes, I do, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Madam
President, in light of the issues about a
permanent tolling of the statute of
limitations such that 20 or 30 years later
this issue could arise and, in spite of DNA
evidence, which I think would be in a sense
permanent in our lifetimes, still the issue of
witnesses and testimony and memory are very
difficult.
And it's not only difficult on the
public, it's difficult on prosecutors. I'd
like for Senator Skelos to explain to us why,
in spite of that, it is a good idea to pass
this bill.
SENATOR SKELOS: I think it's a
good idea to pass it again this year, Madam
President, through you, because, Senator
Paterson, you spoke so highly of it last year
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when we passed it with one dissenting vote.
SENATOR PATERSON: Thank you,
Madam President. If Senator Skelos would
yield for a question.
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Well, I'm
speaking highly of it again this year, Senator
Skelos.
SENATOR SKELOS: Thank you.
SENATOR PATERSON: Through you,
Madam President. But I do have a reservation,
as I did last year, but I thought at that time
the value of the new potential for receiving
evidence would be favored over that which
would create the encumbrances to prosecutors.
So I voted for the bill.
But nonetheless, I have had some
feeling about that and some thought about
that. Sometimes late at night I wake up and I
start thinking about Senator Skelos -- I'm
thinking about him a lot these days -- and I
think about this bill.
SENATOR SKELOS: Senator
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Paterson, let me assure you, late at night I
don't wake up and think of you. I think of
Senator Dollinger at times, but not of you.
(Laughter.)
SENATOR DOLLINGER: Only in your
nightmares, Senator.
SENATOR PATERSON: Madam
President, I'm a little disappointed, but I
will go forward.
And what I think about is the fact
that let's leave aside what would be the
rights due upon any defendant. Let's just
leave it to the aspect of prosecution. I'm
sure that the DAs Association would be very
interested in passing this piece of
legislation. But I could confide in you,
Madam President, and to Senator Skelos, that
there are some reservations that officers have
about prosecuting these types of cases way
down the line.
And the nature of my concern arises
from an issue that always meant a lot to me.
And it was the issue of child sexual abuse,
which I'll get to in a moment. But my
question is -- well, that was my response.
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And my question is that with the difficulty of
prosecuting these cases that are acknowledged
by prosecutors, even though they support the
bill, don't you think it would be a little
more foresighted if we put a time limit on the
back end, even if it was a long period of time
like 20 years?
SENATOR SKELOS: Well, no. In a
crime, for example, of rape, I don't believe
there should be any statute of limitations.
And I think a prosecutor has discretion if a
case was brought 30 years down the road, as to
whether to bring the case to a grand jury or
not.
SENATOR PATERSON: Thank you,
Madam President. If Senator Skelos would
continue to yield.
I assume that he does.
SENATOR SKELOS: Yes, I do.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Thank you.
The prosecutor's discretion -- that
is, of course, an independent view of the
prosecutor that there's a desire to try this
case, if not under Section 343 of the Criminal
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Procedure Law, the prosecutor does not have to
try the case. But in spite of that, I'm
talking about the realistic apprehension that
prosecutors who understand that for purposes
of public policy might have to try the case
but in reality have an idea that they can't in
any way -- they can't diminish the notion of
reasonable doubt, even if you include the DNA
evidence, because of the mitigating factors of
the lack of evidence, the memories of
witnesses, the unavailability of witnesses,
the sourness of testimony, other issues.
So I'm just saying even though the
prosecutors have been very favorable toward
this bill and toward us, do we want to put
them in that position that twenty years down
the road you'd have to try a rape case
where -- the anger and the sentiment of the
victim and perhaps the victim's family we
certainly understand. But the pragmatic view
is that we cannot convict someone on these
charges, and in a sense we've laid it out in
the law almost that we have to try them
anyway.
SENATOR SKELOS: Senator
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Paterson, again, going back to the crime of
rape, I would find it very difficult to
consider, number one, a five-year statute of
limitations that exists right now to be just,
especially with a woman who has to deal with
this intrusion and invasion of her body for
her entire lifetime.
So this in type of instance, I
think it's totally appropriate to eliminate
the statute of limitations. Which, as you
know, the statute of limitations are a
creation of the Legislature. And as one
federal judge once said, "At times there's no
logic to it." And I find that there is
absolutely no logic to there being a statute
of limitations for the crime of rape and to
the other violent felonies that are enumerated
in this legislation.
SENATOR PATERSON: Madam
President, on the bill.
I certainly understand -- not only
understand, but I empathize with what Senator
Skelos is saying. There has to be a desire
among all of us related to the crimes as
serious as are documented in the legislation
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by Senator Skelos, that there be a tolling of
the statute of limitations for an inevitable
period of time, to at least give the
prosecutor the choice and the victim the
choice as to whether or not to prosecute these
cases.
The issue of child sexual abuse was
simply that there's a five-year statute of
limitations on those types of crimes. And
quite often, the child, who might have been 9
or 10 years old at the time that the crime was
committed, would also incur the difficulty
that the statute of limitations might have run
at the point where the child was only 15 years
of age. And whoever was provoking and
attacking the child when they were 10 might
still be a person who is viewed as a threat to
the child when they're 15 -- a parent, a
teacher, some other custodial person, a coach
at school. We've heard these types of cases.
And so it was my desire, and
probably still, is to toll the statute of
limitations forever, if it came to it, because
of the ability that we want to vest in the
victim to come forward and to identify a
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perpetrator who, for all we know, may be
committing the same crimes against other
individuals.
What I inevitably settled for was a
statute of limitations that would start to run
at the point that the child reached the age of
majority, so at the age of 18 or 21. Now,
when the person is of requisite thinking and
would seemingly be independent enough to bring
forth a charge, there would then be the
running of the statute of limitations.
And I got the idea from a lot of
the consumer products violations where the
statute of limitations starts to run at the
point that there is a defect in the product,
not at the point that you receive the product,
because you have no way of knowing.
So that lack of awareness -
children can't sign contracts, they can't
vote, they're not allowed to operate a motor
vehicle, they're not allowed to consume
alcoholic beverages. But still, for years, we
as a society urged them that they for some
reason have to come forward and bring evidence
and that if they don't, we can't have a
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prosecution of a willful perpetrator even if
the child was victimized at the age of 5.
So somehow between 5 and 10, this
infant or this young person is supposed to
recognize the wrongness of the acts that were
committed against them and come forward to the
authorities.
My understanding from prosecutors
and from a number of different sources was
that it would be very hard to convince enough
people to have a statute of limitations that
had an inevitable -- that had inevitable
jurisdiction.
And what I'm just suggesting to
Senator Skelos is that if he wants to pass
this legislation, it's a painful reality -
because we have nothing but compassion for
people who are victimized at any age -- that
the right of a defendant or at least the
criminal justice system as it operates really
accommodates a better notion of fairness and
judiciousness if we have some end to the
statute of limitations at some conceivable
period of time whereby we would agree, all of
us, that most of the evidence at that point
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would be stale, it would be inadequate, and
even though we have DNA evidence, whose
reliability is unquestioned and nonpareil,
that we really don't want to go down that road
to a point where we are putting people
sometimes 25, 30 years later in the position
of having to defend themselves from actions
where they even themselves might not have a
total memory about what the circumstances
were.
So my suggestion to Senator
Skelos -- and I think to encourage him, I'm
going to vote for the bill again. And I'm not
going to think about Senator Skelos as much
anymore, since he doesn't think about me.
Many of you might think that's a little
vindictive, but -
THE PRESIDENT: Senator, please
keep your comments germane.
SENATOR PATERSON: Thank you,
Madam President. I'm glad you said that,
because I'm starting to feel like Captain
Queeg.
THE PRESIDENT: And that's meant
in a very positive spirit, Senator.
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SENATOR PATERSON: Thank you.
In a positive spirit, Madam
President, I'm going to vote for Senator
Skelos's bill because I do think that the
value of the protection we give to victims at
this point in our society inevitably has to be
favored over the notions of justice, but with
this admonition.
I think that we will make all of
our colleagues feel comfortable and pass this
bill, Madam President, if we agree that there
should be, at some point, an end to the
scrutiny and a statute of limitations that
gives all people in our society an
understanding that there's a point at which
they would not be held culpable or responsible
for actions that they may or even may not have
committed.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. Just on the bill.
I had a series of questions, but I
think that most of those that I had I think
were asked by -- in the questioning by Senator
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Paterson. But I would like to just make a
comment.
A year ago, in Westchester County,
a 21-year-old case was solved by DNA. That
case is making history in the state of
New York, particularly because it allowed the
victim's family to receive I think what they
perceived to be as justice. If we had
statutes of limitations on such crimes as
that, we would not have been able to try that
case as successfully as we were able to do.
I think that one of the things that
makes it very difficult for some of us who
come here, many of the crimes are committed in
our communities by community people on other
community people. And there is not this
thought that aggressive law actions should in
fact be taken. But I come from a constituency
that is looking for balance. And I'm not sure
that I agree with the last part of Senator
Paterson's statement, that the victim's rights
for justice are greater than that of the
perpetrator. I think that justice, when it's
balanced, is served.
And I think that one of the things
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that I hope, as we argue and as we debate
these bills, that we will always attempt to
achieve balance in both directions. Because
if we get caught up in the emotions, we will
lose the constitutionality that makes it very
important for everyone to feel as though
they're getting a fair trial. So that
occasionally it will be interesting to see how
I vote on some bills versus others.
But this one I think responds very
appropriately to the things that I think that
we want to establish accomplish. And that is
to ensure that we send a clear message that
violent crimes are not allowed in the state of
New York. And as long as we do not violate
anyone's constitution in the process of doing
that, I will always be in the position to
support that type of legislation. So that I
commend the Senator and I will vote yes.
THE PRESIDENT: Senator Gentile
was first.
SENATOR GENTILE: Thank you,
Madam President. On the bill.
I too want to commend Senator
Skelos for this legislation. I believe
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Senator Skelos has it right when he says that
these types of violent felonies are so serious
that a five-year statute of limitations is
insufficient to allow the state to prosecute
these very serious crimes that have great
impact on the victims, particularly in the
area of sex crimes. And certainly as a
prosecutor, I have experienced the situation
where we have run up against the five-year
statute of limitations, and in certain cases
unable to proceed with a case, given the
indictment period and given the trial
preparation period. That we could not go
forward with certain cases, particularly cases
involving young children, who over time
realized that something had happened to them
and by the time this was brought to law
enforcement authorities, we got to the point
of having to deal with the five-year statute
of limitations.
And I must tell you, as a
prosecutor, having a victim in your office and
having to tell that victim that we cannot go
forward because the State of New York has
indicated, has said in its law that there's a
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five-year limit on prosecuting cases of this
type, is a very difficult thing. It's a very
difficult thing for a victim to understand the
rationale behind the Legislature and the
Governor enacting a law that puts a five-year
limit on crimes -- prosecuting crimes of this
type.
Particularly now -- and when I was
prosecuting cases, we didn't have the
availability of DNA to the extent that we have
it today -- and certainly, particularly with
DNA evidence, the five-year statute of
limitations really is a throwback to an era
that really justice is better served now by
the fact that we have, as Senator Paterson has
said -- also a fellow prosecutor in his
earlier days -- that DNA evidence now is so
incontrovertible that we can now possibly
prosecute these cases ten years down the line
or more.
I must indicate, though, that we
still, even though if we do away with the
five-year statute of limitations, there are
still some curbs on prosecutors going forward.
Because the fact that we have DNA evidence
3214
doesn't address the issue of witnesses having
memory lapses, doesn't address the issue of
victims having gaps in their memory, doesn't
address the availability of witnesses, doesn't
address the availability of police officers
that might have been involved at some point in
investigation or the case.
So in fact, even if we do away with
the five-year statute of limitations, there
are still some other factors that affect
whether or not we can actually go forward,
whether prosecution could go forward here.
And those are the issues that are not related
to the DNA evidence.
But certainly I think in that
respect, in that respect, I think people who
are accused of these crimes have that kind
of -- at least that kind of protection or that
kind of statute, so to speak, a natural
statute of loss of memory, lapse of memory,
unavailability of witnesses, unavailability of
police officers or investigators.
So in that sense, I think we still
have -- even if we do away with this, we'd
still have some limitation on what a
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prosecutor can go forward with. But
nevertheless, by removing this from the law
and removing this for violent felonies, for
B violent felonies we are at least saying to
victims in this state, and as Senator has
said, that this is serious enough, we believe
it's serious enough that we can go forward
with this prosecution, assuming we have all
the other parts available to go forward, that
the law itself will not stop us from going
forward on a prosecution of this type.
And I must tell you, Senator
Skelos, to be able to say that to a victim
that may -- who may have been three or four
years old at the time a sex crime was
committed and then five or six or seven years
later comes to a prosecutor and wants that
issue investigated and possibly prosecuted, to
say to that victim now, Yes, we can look into
a case like that, and, yes, we will use the
technology and, assuming we have the
witnesses, other witnesses, we can go forward,
that means -- that will mean a lot to victims
in this state.
So certainly, Senator, I applaud
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you for this legislation. I believe it will
be a tool that will be used for the better
ends of justice and will be used in
conjunction with the other items I mentioned
that may actually put a stop to a prosecution
that has nothing to do with the statute of
limitations.
So I will certainly vote in favor
of this legislation, and again commend Senator
Skelos for introducing it.
THE PRESIDENT: Senator A. Smith.
SENATOR ADA SMITH: Thank you,
Madam President. Would the sponsor yield for
a couple of questions.
SENATOR SKELOS: Madam President,
I'd be delighted to yield for a couple of
questions.
THE PRESIDENT: You may proceed,
Senator Smith.
SENATOR ADA SMITH: Thank you,
Senator Skelos.
Let me first apologize. Senator
Paterson may have asked some of the questions,
but I was searching for an elevator, so it
took me a little while to get here and I
3217
didn't hear some of the answers. And if
you've answered the question, just let me know
and bear with me.
One of the things that concerned me
was, is there any gain or loss to the
prosecution by eliminating this statute of
limitations?
SENATOR SKELOS: Gain or loss to
the prosecutor?
SENATOR ADA SMITH: Yes.
SENATOR SKELOS: I think it's a
big gain to the victim, because there would
not be an artificial date established in terms
of a prosecutor being able to bring a case.
SENATOR ADA SMITH: So you don't
see any losses. How about does this place any
kind of burden on law enforcement, on the
police, the prosecutors, or any law
enforcement agency?
SENATOR SKELOS: I don't believe
so. What it does, it just eliminates an
artificial date and will allow a prosecutor to
do his or her job.
SENATOR ADA SMITH: Thank you.
Thank you. On the bill.
3218
The media in recent years has shown
many cases where people have come forth five,
10, 15 years later where their memory has
cleared and they are now assured of who the
perpetrator of a crime against them, whether
it be sexual assault, rape, et cetera, they
are now ready to prosecute. But based under
the current law, we would not be able to do
so. And especially with the advent of DNA,
it's critical that this bill be passed.
And I would advocate that all of my
colleagues support this legislation, and I
would like to commend Senator Skelos for
sponsoring it.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. On the bill.
I think it's clear that everybody
in this body is supportive of crime victims
and sympathetic to crime victims and believe
that crime victims should get redress from
crimes, that we should do everything we
possibly can to find the perpetrators, the
other people involved in a criminal offense.
As I say, I think that we're all
3219
very supportive of what happens to crime
victims here and that we want to catch the
perpetrators and make sure that they are
brought to justice and that they are punished
as swiftly as possible. However, from my
point of view, this is just a feel-good bill
that really will do nothing.
I would like to have had a thorough
hearing on this bill in committee. Certainly
that's the place where we should really be
discussing what the impact of this bill is.
It certainly would have been appropriate to
have a full hearing in the Codes Committee on
this, and perhaps even in the Crime, Crime
Victims, Corrections Committee, because the
issues that it raises are very important and
very complex.
I would have liked to have heard,
for instance, what the DAs across this state
thought of this legislation. I would be very
interested to hear what DAs thought about this
legislation. I would like to hear what other
people involved in the criminal justice system
thought of it. I'd like to hear from criminal
defense attorneys what their thoughts were on
3220
this legislation. I'd like to hear from
judges how they felt about this legislation.
You know, if this bill only dealt
with DNA evidence, well, to me that would make
sense, because there have been advances in DNA
evidence. But this bill is not just limited
to DNA evidence. I don't know whether any of
you know this; I would hope that you did.
But, you know, over time, aside from DNA
evidence, other kinds of evidence get stale.
Memories fade. I think that it would be very
hard to get a fair trial, to have accurate
information come to a trial if it was old
evidence, if old witnesses were being relied
on.
And, you know, I'm not an attorney.
I haven't worked as a defense attorney or a
district attorney. I'm certainly not a judge.
I've been involved in the criminal justice
system in several different ways, but not as a
prosecutor or as a defense attorney. And I
would be interested to know how they felt
about stale old evidence and faded memories
would impact a trial.
As I say, DNA evidence, I certainly
3221
could see why DNA would be an important part
of a trial, and we have gone very far in our
DNA technology. But unfortunately, we haven't
found a way to keep people's memories clear
for many, many years. Other parts of evidence
get stale through the years. Oftentimes
evidence is mishandled. I can understand if
we have a DNA database, how that keeps the DNA
evidence pristine. But there is no guarantee
that other kinds of evidence stay pristine.
Evidence gets stale. Memories get faded. And
I think that because of that, we can't
guarantee that there would be a fair trial.
But again, I'm not an expert on
that. I would like to get more expertise.
And I think that my job as a legislator is to
actually hear from experts and people who work
every day in the criminal justice system. But
that hasn't happened. Frankly, I think
there's more expertise out there in the real
world than there is sitting here today,
certainly than sitting here today, since there
aren't very many people sitting here today.
And everybody seems to think this is a
wonderful bill, but that's only the handful of
3222
us that are actually in the chamber on this
what I think is a very important debate, which
raises a lot of questions about the criminal
justice system.
In fact, suppose one of us were
called in to remember what happened during
this debate. Well, there's no one here to
remember what happened in the debate, because
there's just a handful of people here. So you
could only imagine what it would be if you had
a new DA ten years after a crime that had to
recreate what was going on.
Now, again, with DNA, yeah, you can
look at that. That's a scientifically
determined fact. But memories of what
happened is not set in stone. People make
mistakes. Sometimes people don't remember
something that happened five minutes ago
unless they have a reason to.
You can only imagine what people's
memories would be like if they'd been involved
in a crime or if they were a crime victim or
if they witnessed a crime. That's a very
traumatic thing. There is no way that your
memory of that would be exactly the same.
3223
I want to go back and say, yes,
using DNA evidence, well, you can't really
dispute that. But memory, you can certainly
dispute that. Other kinds of evidence doesn't
stay crystal clear. It's not often kept in
the exact same condition. A piece of
clothing, hair that hasn't been tested for
DNA, all those things can be tainted.
Memories can be polluted, other kinds of
evidence can be polluted. Again, not DNA.
But this bill is not limited to DNA
evidence. This removes the statute of
limitations on, as I read it, Class B
felonies. Right? Class B violent felonies.
As I say, I'm not an expert in the field. I
depend on others, although really more people
than are actually sitting in this chamber, to
make my decisions about that.
I don't know why is this bill only
limited to that class of felonies? What makes
those felonies something that should be
included and not other kinds of felonies? Why
is it that it's all kinds of evidence and not
just DNA evidence? Why are we removing the
statute of limitations on everything? I just
3224
don't understand that. DNA, yes, I understand
DNA. I certainly understand DNA. But I don't
understand removing the statute of limitations
on everything else.
I think there are some other
difficulties with this bill as well. And I
really think that we should have talked to DAs
and judges. How does the Bar Association feel
about this? Have we heard from the Bar
Association? I don't see any -- Madam
President, I think one of my colleagues is
standing. Is that -
THE PRESIDENT: Senator Espada,
why do you rise?
SENATOR ESPADA: Madam President,
will Senator Duane yield to a question.
THE PRESIDENT: Senator, do you
yield?
SENATOR DUANE: Yes.
THE PRESIDENT: You may proceed.
SENATOR ESPADA: Senator, you
raise a number of interesting questions from a
perspective that has not gotten perhaps enough
air time here with respect to this bill.
But let me ask you, with respect to
3225
fading memories and stale evidence and the
issues that you're raising, how does that work
against, in your view, against the defendant?
Which would be a principal concern of mine.
SENATOR DUANE: Through you,
Madam President, although I forget the
Senator's name.
SENATOR ESPADA: Espada.
SENATOR DUANE: It's been a
while. I can't help myself sometimes.
Well, five years, 10 years, 15
years is a long time. It would be very
difficult to keep exactly the facts of the
case and what the order of things that
happened, and people's appearances change over
time. And I think that that would make it
more difficult for a defendant to get a fair
trial. Because a witness's memory may fail.
Or maybe, over time, after a case has been in
the newspapers, someone could go back and read
what was said in the newspapers. As we all
know, sometimes newspapers aren't absolutely
accurate about what's happened in a crime. A
lot of that is theoretical. That could get
into someone's thinking about what happened in
3226
the crime.
All those things, this is very
subjective kind of information. And when
we're talking about both a crime victim
getting real justice, which means the real
perpetrator is convicted and given a penalty,
and real justice for a person who is a
defendant, I think that we need to be
absolutely sure about the evidence that's
being presented.
As I say, DNA evidence is something
is something which is scientifically proven to
be accurate and stays for a very long period
of time when it's kept and analyzed correctly
and kept in a database. But other kinds of
evidence and memories? Very, very subjective.
And I think that that works against a
defendant and a crime victim getting justice.
SENATOR ESPADA: Madam President,
if I might ask Senator Duane another question,
through you.
THE PRESIDENT: Senator Duane, do
you yield for a question?
SENATOR DUANE: Yes, Madam
President.
3227
THE PRESIDENT: You may proceed,
Senator Espada.
SENATOR ESPADA: Thank you,
Senator Duane. Let me just ask you, in terms
of the issues that you enumerated -- that is,
stale evidence, fading memories, evidence as
such that one would have to go back 15 years,
20 years to collect or recollect, reassemble,
reconfirm, et cetera -- are you at all
concerned about the cost that those kinds of
thorough investigations would cost the
taxpayers of this state?
SENATOR DUANE: Through you,
Madam President, that's an excellent question.
And one of the things that I would
like to find out from district attorneys and
judges, from criminal defense attorneys, is
what the cost is to go back and recreate stale
evidence, to gather together witnesses who may
be dispersed across the state or across the
nation. Or indeed, they could be around the
world.
And particularly for a defendant to
defend yourself after a long period of time
based on state evidence that could be stale
3228
could be a very, very expensive proposition
and one which that defendant would have to put
the money up for themselves. But also the
cost to DAs and other people involved in the
criminal justice system is -- it could be
prohibitive. I don't know for sure. I think
that's what it would be, but I think that's
the kind of information we would need to get
definitively from having hearings on this.
Again, DNA, you go to the database,
you match it up. That's not a big -- that's
fine. I'm for that. I approve of that. But
it's these other kinds of evidence and
memories which I think are problematic, both
from a justice point of view and a cost point
of view.
SENATOR ESPADA: Madam President,
if I might ask Senator Duane one last
question, please.
THE PRESIDENT: Senator, do you
yield for a question?
SENATOR DUANE: Yes.
THE PRESIDENT: You may proceed,
Senator Espada.
SENATOR ESPADA: I hear your
3229
concerns, and they're well-stated. But
let's -- I guess yesterday we visited a vortex
or two. I'd like to visit this vortex. For
me personally, it comes home to this balance
between the emotional and physical scars, what
Senator Gentile indicated would be a picture
of a victim in his office, in our office were
we to be prosecutors, and then having to
explain that because of some artificial date,
we can't move forward.
In your view, how do you balance
that with respect to this particular bill
against the issues that I think are real that
you have raised in this debate?
SENATOR DUANE: Thank you.
Through you, Madam President, another
excellent question.
I believe that there was a reason
that we had statutes of limitations. It's
certainly before my time here, but I think
there were good reason why statutes of
limitations were imposed on criminal justice
cases.
I'm not sure that there's a reason
why those have been changed, except for the
3230
onset of DNA evidence. I don't think that
through the years people's memories have
gotten particularly better. I don't know of
any drug or mental exercises which keep
people's minds sharper than they were in the
old days. I think that's pretty much the
same. We may have more knowledge and
sophistication about things, that's true. But
things like memory, I'm not so sure we're any
further along than when statutes of
limitations were put into place.
Also, evidence. I don't think
evidence disintegrates particularly any more
slowly than it used to. I think it probably
disintegrates at the same clip. I think that
these were put into place when there were such
things as refrigeration and that kind of
thing, so other kinds of evidence probably
does. But things like cloth and fabric, that
disintegrates over time.
And so I think those were -- and
many other things which I'm not even able to
think of because, as I say, I don't work in
the field -- but I think there are real
reasons why statute of limitations were put
3231
into effect. I think probably mostly because
of the issue of memory and witnesses and that
sort of thing. And, of course, of the person
that's actually had the crime perpetrated
against them, which again is a traumatic
experience.
Now all of that said, I'm wondering
why all those things have been removed from
the statute of limitations in this bill.
Again, DNA I understand. I don't have a
problem with DNA. You know, I understand why
people would have a problem voting against
this bill. And on the face of it, it looks
like a good bill. It looks like it's for
crime victims, it looks like it helps with
justice. But I'm not so sure about that.
I'm not so sure that we should not
just limit this to DNA evidence, and I'm not
so sure that we should only limit it to Class
B violent felonies. Maybe we should expand
it. DNA can be used in other things. So
this -- parts of this bill may be good for the
criminal justice system, but I don't think all
of it is. And I also think that other bills
could be included to make for a better
3232
criminal justice statute.
I mean, who is going to want to be
caught voting against this bill except for me,
like I did last year, because I think maybe
the people in my district will trust that I
really did look at this bill and I had some
substantial questions about it. But when you
look at this bill, if you look at what it says
it's going to do, I mean, it looks like it's
the right thing. I mean, who wouldn't want to
prosecute a crime years after if you think you
know who did the crime? I mean, who wants to
be caught voting against that?
But you know what? We could have a
better bill. We could have a better bill than
this. We could have a bill that only goes to
DNA, which I think all of us would vote for,
and we might even be able to include other
kinds of crimes in the bill to remove the
statute of limitations.
But again, I understand how no one
would want a news story or a piece of campaign
literature saying that someone was soft on
crime because they didn't vote for this bill.
But you know what? This bill is not as good
3233
as a bill that we could have if we really
worked hard on it, if we really reached out to
district attorneys and defense attorneys,
crime victims' advocacy groups -- I'm sure
they would share the same concerns, because
they want justice for the victims. They don't
want just feel-good legislation, they want
real justice.
And I think that's really it's a
shame that this is the bill that's come to the
floor today. Because if we had good hearings
we could go back to the drawing board, we
could make a bill that really talks about
removing the statute of limitations for DNA
evidence and not really make believe that
people's memories are going to be
crystal-clear through the years. You know, in
some cases some people might have great
memories, but I don't think we could make a
blanket determination about that.
So that's what my concern is.
Again, I really -- you know, I'm someone
that's worked very hard on the issue of crime
victims getting justice and compensation,
getting their due. I'm for people that commit
3234
crimes being punished and rehabilitated. But
I don't think this bill comes close to what it
is that we're really trying to establish,
which is to get that kind of justice. So as I
did when this bill came before us, when I made
many of these same arguments, although it's
basically the same bill -- even though it's an
A print now, but it's basically the same
bill -- I'm going to vote against it. But I
really don't think the people in my district
or anyone who's looking at this, including DAs
and crime victim advocates and defense
attorneys, are going to question my motives,
because I know they know where my heart is. I
just think that as a body we could have a
better bill that goes to the issue of DNA and
statute of limitations and doesn't really
taint what we're trying to do in the way that
evidence can be tainted through the years.
So I understand, and I'm not going
to say everybody should vote no, although I
think that it would be a good sign to say,
Look, we could do better with this bill. I
don't in any way mean to impugn the motives of
the sponsor of the legislation, because it
3235
seems on the face of it. But, you know, I
don't think that any bill that I've ever
written, and before I got here actually got
several bills put into law -
THE PRESIDENT: Senator Paterson.
Thank you, Senator Duane, for your
respect of the chair.
Senator Paterson, why do you rise?
SENATOR PATERSON: Madam
President, when it's convenient, if Senator
Duane would yield for a question.
THE PRESIDENT: Senator Duane,
will you yield for a question?
SENATOR DUANE: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, the
issue you've raised has just kind of reignited
my trouble over this bill. And what I want to
raise to you is this possibility. In our
criminal justice system, for crimes this
serious, we convict people with an
accumulation of evidence that convinces a jury
that beyond a reasonable doubt that this
3236
person committed the crime. That does not
mean that the person is not guilty, it means
that we have to prove guilt beyond a
reasonable doubt.
So we've built into our criminal
justice system, through the M'Naghten Rules
and other historic criminal justice documents,
that we're not trying to always convict the
guilty person. We're trying to convict the
guilty person who we can prove that they are
guilty beyond a reasonable doubt.
Now, the issue that you've been
raising over and over in your conversation is
the issue of stale evidence, faulty memories,
individuals who cannot be accounted for,
unavailable witnesses, witnesses die, that
kind of thing. If it is clear that you will
not be able to convict beyond a reasonable
doubt, that nonetheless does not cause
prosecutors to eschew the opportunity to
prosecute much of the time, because there's
public pressure, there's new evidence that a
certain person might have committed a crime.
So my question to you is, isn't
there a point beyond which we as a society
3237
have to draw the line? And if you want to
leave DNA evidence out, because it does have a
sort of shelf life that's permanent. But for
the other evidences the reason we had a
statute of limitations in the first instance
is logical, because beyond a certain point we
can't prove the person is guilty beyond a
reasonable doubt. But we sure could arrest
them, we sure could indict them, we sure could
make sure that the rest of their lives are
miserable. And I want to know what your
interpretation of that standard should be.
SENATOR DUANE: Well, through
you, Madam President, I thought that the way
we worked in this state, in this nation, is
that people are innocent until proven guilty.
And I don't think that we should punish people
who have not been proven to be guilty.
And will there be a mistake from
time to time? Will someone get off without
punishment from time to time? Yes, that
happens. But so too do we know that lots of
people have been convicted unjustly. And DNA
is actually helpful in those cases as well.
However, I don't think that people
3238
should be incarcerated unjustly, that people
should be held for long periods of time, that
people's reputations should be besmirched. I
think that that's wrong and that we as a
society should be held accountable when that
happens to people.
Also, you raise the issue of, well,
DAs might respond to public pressure. Well, I
don't think DAs are supposed to do that. In a
perfect world, they wouldn't. Does that
happen? You bet. Have I yelled at DAs from
time to time and told them they'd better start
prosecuting a little bit harder? Absolutely.
Have I yelled at DAs because I thought that
they were prosecuting under the wrong crime?
I have. I've done that on hate crimes and
other things as well, where I've actually
gotten very angry with a DA because I thought
they weren't doing their job right.
So I'm not saying that all public
pressure is wrong. But I think in some cases
public pressure, based on what people have
read in news accounts or what rumor says a
case is about, can really lead to injustices
happening. Many times we see in newspapers a
3239
story about a stale crime, and it gets
everybody going. And sometimes it's accurate
and sometimes it's not.
I know that in New York City the
police have a cold crimes unit, which actually
has been doing a good job. But they've been
doing it without this legislation. As I say,
DNA has been very helpful on that.
But all of the questions that you
and my other colleagues have raised here, I am
not expert on that. I'm just not. The
experts on this are the DAs and the police,
other crimefighters, crime victims' advocates
who work with crime victims every day, and
defense attorneys who work to make sure that
the playing field is level, and judges, who I
think do that as well. So I would like to
hear from them.
But I have some very serious
questions about evidence other than DNA in
this case, and that's why -- and I just want
to go back, if I may -- unless you have
another question, Senator Paterson.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
3240
President, actually I do have a final question
for Senator Duane.
THE PRESIDENT: Senator, do you
yield for a final question?
SENATOR DUANE: Yes.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, when
I look at this bill from the limited
experience that I had in law enforcement, it
does seem to me, very honestly, that a lot of
thought went into this because of the
classifications of the types of offenses that
are included in this bill. We have
first-degree kidnapping, first-degree
burglary, first-degree robbery, we have rape,
we have sodomy in the first degree, attempted
murder in the first degree. There was some
crafting to make sure that these were some
very serious violent offenses.
And as a matter of fact, when the
bill first came out, Senator Skelos and I had
some conversation on the floor as to whether
or not it really included first-degree
burglary. And by the next year, Senator
3241
Skelos was kind enough to make that very clear
in the bill that it did. He meant that, but I
wanted to see it a little more documented.
So I think that to a degree, those
inquiries have been taken. But here's my
question to you. We might say that one of the
reasons that some of these offenses were never
added to the Class A felonies really relates
to the fact that we as a society didn't think
very highly of crimes against women,
particularly issues of kidnapping, rape, and
sodomy. But -- and we augmented them with the
most violent offenses of burglary and robbery
and attempted murder. So to some degree, what
this legislation might be doing is clearing up
a class cultural judgment that our society has
always had, and in the last hopefully 25 years
we've started to ameliorate some of our
ignorance in the past.
But when I look at this
legislation, what troubles me is where do you
draw the line; in other words, what are the
synonymous pieces of -- or synonymous cases
that qualify for this type of protection where
we toll the statute of limitations forever.
3242
And my fear is that this may be the precursor
or the catalyst for the next round of felonies
that we've now decided that they're serious
too, even though they may be higher degree
felonies.
In other words, if we're crafting
this legislation to protect the victims who
were injured by actions that basically could
have killed them or ruined them for life, if
it was a lifetime sentence for the victim,
then we want to give the state a lifetime
opportunity to go after the perpetrator. But
if we are doing this because this is just the
beginning of new law and order statutes where
we're just going to find new ways to punish
people for longer periods of time and new ways
to access people who might have thought to
have been guilty -- oh, but let's just throw
it in the grand jury anyway, let's prosecute
them, let a jury decide -- that would be not
something I would want to -- would not want to
do.
So my question to you is just
simply where would you draw the line regarding
those issues that you'd be comfortable leaving
3243
the statute of limitations open -- because it
is open for some crimes now -- and where would
you close it? And you don't have to give a
law enforcement opinion. I think the opinion
of a person who might not be a prosecutor but
could be a juror is just as important as
anyone that had law enforcement training.
SENATOR DUANE: Through you,
Madam President. From my sort of amateur
point of view on this -- although I don't want
to stress that I'm such an amateur, because I
obviously have thought about this -- most but
not all of the offenses that you listed I
think the statute of limitations can and
should be extended, based on our use of DNA
now.
But I don't -- I'm not an expert
enough to really delineate for you here on the
floor what's above that line and what's below
that line. I simply can't do that. If I had
an opportunity to hear and read testimony from
district attorneys and defense attorneys and
crime victim advocates and judges and police,
I probably could give you a better idea of
what it is.
3244
As I said, you know, I may not be
known as the law-and-order senator, but in
fact I am very concerned about making sure
that we have a just and a free society and
that crime victims get justice and that
perpetrators are convicted and punished and I
would hope rehabilitated as well. And so I do
think that this the sponsor shares those
concerns and is trying to make it so that
justice is more easily garnished in our
imperfect system, which is better than anyone
else's system.
All of that said, I am going to
come full circle again and say I have no
problem with DNA at all. It's just in the
statute of limitations being removed for many
of the offenses in this bill. But I think
there could be other offenses that should be
included for DNA, and I also think that other
kinds of evidence gets tainted over time,
potentially that memories pretty much
definitely get faded.
And again, we talked about the
issue of public pressure. But I think DAs
have to make difficult choices. I mean,
3245
why -- for instance, let me just think of this
kind of a case -- why was it that Robert
Chambers was able to plead to a lesser charge
than what he was being tried on? Well, you
know what? I don't think any of us really
knows why that is. That was something that
was in the hands of the DA. She had her
reasons for doing that. But I also think -
that was probably ten years or more ago -
that if we went around the chamber here and
asked people some of the details of that case,
who would be able to remember that?
So I think all of that goes to why
it is that so many of these things should be
subjected to the statute of limitations, but
not DNA.
As I say, minds far better than
mine put into place statutes of limitations on
many of these cases. I can't tell you all the
reasons why, I can only tell you what I think
some of those reasons were because they make
sense to me as someone who's not a DA or a
defense attorney, as someone who actually has
sat on a criminal jury, criminal case jury,
and we were even sequestered overnight, so we
3246
really had to go through the evidence. It was
quite a job, but one that I found to be very,
very important and fulfilling. And which is
the reason why, though I know I'm drifting a
little bit, whenever anybody calls and says,
Help me get off jury duty, I always say, No,
better you should ask for a tax thing for your
synagogue than you should ask me to get off
jury duty.
And I'm serious about that. I
think it's very, very important. Any one of
us here, particularly under new laws,
attorneys, doctors, politicians, we can all
serve on jury duty.
But anyway. But I think that
well-intentioned though this bill is,
feel-good though this bill is, I think that
the DNA is good but the -
THE PRESIDENT: Senator Skelos,
why do you rise?
SENATOR SKELOS: Madam President,
if I could just interrupt for a minute,
because there are a number of witnesses that
are seeking to appear before committees.
There will be an immediate meeting of the
3247
Crime Victims, Crime and Corrections Committee
in the Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Crime Victims, Crime
and Corrections Committee in the Majority
Conference Room.
You may proceed, Senator Duane,
with germane remarks.
SENATOR DUANE: Interesting that
the committee that I'm ranking on is being
called off the floor at this very moment. But
I was wrapping up anyway.
As I say, I do think that it's good
to remove the statute of limitations for DNA
for lots of offenses, but I don't think we
should remove the statute of limitations for
other things. I understand why people may
feel the need to vote yes on this bill, but I
think it's problematic. I think we could do
better. And I hope that we will do better on
it.
Thank you, Madam President.
THE PRESIDENT: Senator Onorato.
SENATOR ONORATO: Madam
President, will the sponsor yield to two
3248
questions that I am not clear on.
THE PRESIDENT: Senator Skelos,
will you yield?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR ONORATO: Senator Skelos,
by eliminating the statute of limitations, is
this for crimes going to be committed after
this becomes law, or does it go retroactive?
SENATOR SKELOS: No, it's after.
After.
SENATOR ONORATO: After, okay.
Then there's no need for the second question.
THE PRESIDENT: Does any other
Senator wish to be heard on this bill?
Senator Montgomery.
SENATOR MONTGOMERY: Yes, thank
you, Madam President. I would like to ask a
question of clarification of Senator Skelos if
he would yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SKELOS: Yes, I do.
3249
THE PRESIDENT: You may proceed.
SENATOR MONTGOMERY: Thank you.
Senator Skelos, I'm just wondering for the
crimes in this category, as listed in the
bill -- for instance, aggravated assault upon
a police officer -- I don't know what
second-degree kidnapping -- and some of the
other, I guess burglary, robbery, gang assault
and what have you, I know that there's a very
common practice in New York City that on
practically every contact with a person,
particularly a young person, with the
police -- in other words, there's an arrest
for some reason -- one of the charges is
assault on a police officer.
And the question that I ask you is
what is the standard of evidence required for
aggravated assault upon a police officer, and
how would that fit into removing the statute
of limitations? I mean, if -
SENATOR SKELOS: You still have
to prove your case beyond a reasonable doubt,
the prosecution. And this is one of the
crimes that's listed in the B violent felony
section. And we've eliminated from the
3250
original bill that we passed certain crimes
that are not nonphysical in nature. So the
crimes that we continue to eliminate the
statute of limitations for are those where
there is a physical intrusion of an
individual.
SENATOR MONTGOMERY: Okay. Madam
President, just one more question for Senator
Skelos if he would continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SKELOS: Yes.
THE PRESIDENT: You may proceed.
SENATOR MONTGOMERY: Senator
Skelos, for some of these crimes -- i.e.,
rape, sodomy, sexual abuse, sexual -- I don't
know what this -- conduct against a child,
burglary, robbery, I suppose, I can see that
DNA could be used to affirmatively prove a
case no matter when it's brought. But then
there are some others where you really don't
have the benefit of DNA necessarily as the
level of proof. So why are we including those
in terms of this issue of statute of
limitations?
3251
Because this assault upon a police
officer, that could be just my word against
your word. I mean, the police stopped me and
he accused me of assaulting him or her. And
so this -- and I could be brought back 25
years from that time, if I do something that
I'm charged with in relationship to this at 13
and then I can be brought back to be tried
again at 25 on that same issue? There's no
statute of limitations even though you can't
prove it with evidence a certain number of
years later?
SENATOR SKELOS: Number one, on
all of these, if I could comment, presently
there is no statute of limitations for murder.
SENATOR MONTGOMERY: Right.
SENATOR SKELOS: And you wouldn't
necessarily prove this crime with DNA
evidence. So to say that the only way we
should be able to convict a person is based on
DNA, well, it's not required in a murder case,
necessarily, or any other type of crime. We
should also point out that the crimes that are
enumerated in this section of the law, there
has to be serious physical injury to the
3252
person, or weapons involved.
SENATOR MONTGOMERY: Mr. -- will
he continue to yield, will Senator Skelos
continue to yield?
ACTING PRESIDENT BONACIC:
Senator Skelos, do you continue to yield?
SENATOR SKELOS: Yes, Mr.
President.
SENATOR MONTGOMERY: Senator, in
other words, in order to be charged with
aggravated assault upon a police officer, you
must have a weapon, you must use a weapon in
that assault, is that the case? In order for
it to be -
SENATOR SKELOS: Weapon or
there's serious physical injury to that police
officer.
SENATOR MONTGOMERY: So it's not
necessary that there is a weapon, but there is
serious physical injury.
But nonetheless, you get a charge,
and in the event that there is, 25 years
later, no evidence, you can still be brought
to be tried based on this particular issue?
SENATOR SKELOS: You still have
3253
to prove your case. The prosecution would
still have to prove its case beyond a
reasonable doubt. And remember, we're dealing
with a section called Class B violent felony,
violent felony offenses.
SENATOR MONTGOMERY: But it's not
Class A-1.
SENATOR SKELOS: And, Senator
Montgomery, even with murder you still have to
prove your case. Whether the statute of
limitations -- or there's no statute of
limitations, even if it was brought twenty
years later, you still have to prove your
case.
SENATOR MONTGOMERY: Right. But
Senator, I'm not talking about murder, I'm
talking about assault upon a police officer,
which is a particular problem with arrests in
my area. That's what young people get
charged -- Mr. President, that's what young
people get charged with. So I'm trying to get
some clarification on how far are we going
with this. Assault on a police officer may or
may not be assault, but they get charged with
it anyway. Every African-American young
3254
person that gets stopped gets charged with
this thing here, assault on a police officer,
Mr. President.
ACTING PRESIDENT BONACIC: Sen
ator Montgomery.
SENATOR MONTGOMERY: Yes.
ACTING PRESIDENT BONACIC: I
understand your passion, and we will get to
each of your questions in an orderly way.
So do you have a specific question
for Senator Skelos?
SENATOR MONTGOMERY: Well, Mr.
President, I'm just trying to get some
clarification on this particular one, because
that's the one that is most problematic.
What I would like to ask is this
assault upon a police officer, why are we now
including that in this legislation,
eliminating the statute of limitations, when
that is -- in many instances, it's a
subjective charge, it's a routine kind of
charge, and now we have a young person who may
be, you know, 13 at the time they get this and
25 years later they can still be brought to be
tried up on -- based on this so-called Class B
3255
violent felony offense? I want to know how -
why are we including that in here, in this
bill.
ACTING PRESIDENT BONACIC: Okay.
So, Senator Montgomery, you do have a question
for Senator Skelos.
SENATOR MONTGOMERY: Yes, I do.
ACTING PRESIDENT BONACIC: Sen
ator Skelos, do you continue to yield?
SENATOR SKELOS: If the question
is why -
SENATOR MONTGOMERY: Yes.
SENATOR SKELOS: -- it's because
as the author of this legislation, legislation
which I believe you voted for last year, I
sought to include all of these crimes in
there. That's my answer. It's totally
appropriate for Class B violent felonies.
SENATOR MONTGOMERY: Okay. Mr.
President -
ACTING PRESIDENT BONACIC:
Senator Montgomery.
SENATOR MONTGOMERY: -- I'll be
voting no on this legislation this year. I
made a mistake last year.
3256
ACTING PRESIDENT BONACIC: Thank
you, Senator Montgomery.
SENATOR MONTGOMERY: Thank you.
SENATOR HEVESI: Mr. President.
ACTING PRESIDENT BONACIC:
Senator Hevesi.
SENATOR HEVESI: Thank you, Mr.
President. Would the sponsor yield?
SENATOR SKELOS: Yes.
SENATOR HEVESI: Thank you. Mr.
President, I'm curious to know -- because I
have a somewhat divergent view than some of my
colleagues, who I understand are passionate
about this issue and have thought a lot about
this issue. I'm concerned that this
legislation, which I believe is long overdue,
doesn't go far enough.
And my question for Senator Skelos
is, my understanding is that there are certain
violent B felony offenses that the statute of
limitations would be removed if this bill
became law. My question is, which violent B
felony offenses are not included?
SENATOR SKELOS: Arson in the
first degree, arson in the second degree,
3257
criminal possession of a dangerous weapon in
the first degree, criminal use of a firearm in
the first degree, criminal sale of a firearm
in the first degree, intimidating a victim or
witness in the first degree.
SENATOR HEVESI: Thank you. Mr.
President, would the sponsor continue to
yield.
ACTING PRESIDENT BONACIC:
Senator Skelos, do you continue to yield?
SENATOR SKELOS: Yes.
SENATOR HEVESI: Thank you. I'm
a little bit confused, because just from
hearing that list of offenses, those are all
very serious violent felony offenses. And as
I'm sure you will agree, there are many
violent felony offenses that are C felonies
and D felonies which also could necessarily
have the type of impact that is the purpose of
this legislation to try and remedy by
providing a cure years later.
So my question is, why was the
legislation drafted this way instead of, for
example, including all violent felonies as
opposed to nonviolent felonies? Could you -
3258
SENATOR SKELOS: You know, we
passed that version of the bill last year,
which you supported. I think Senator Paterson
voted against it. And now in order to get the
Assembly to do something, to do something, I
would be in favor of including all these
crimes, eliminating the statute of
limitations.
But unfortunately, we have to deal
with an Assembly that is of another mind-set.
And we've taken out certain crimes which
Senator Paterson suggested -- so we do listen
at times to Senator Paterson -- so that we
would have a better opportunity to get a
two-house bill passed. That's why.
But I'd be happy to bring the other
bill out again. I'd be more than happy to
bring it out.
SENATOR HEVESI: Mr. President,
one final question for the sponsor.
ACTING PRESIDENT BONACIC:
Senator Skelos, do you continue to yield?
SENATOR SKELOS: Yes.
SENATOR HEVESI: Thank you. Just
for clarification, the bill -- last year's
3259
bill included all violent felony offenses?
SENATOR SKELOS: I think just
about all Class B violent felonies. We
eliminated some. I don't remember all of
them.
SENATOR HEVESI: All B violent
felonies.
SENATOR SKELOS: Class B violent
felonies, yes.
SENATOR HEVESI: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT BONACIC:
Senator Hevesi, on the bill.
SENATOR HEVESI: Mr. President,
last year we had a situation in New York City
where, in a warehouse in Long Island City, in
Queens, rape kits were sitting and had been
sitting for years, untested. And many of
these rape kits -- with the advent of DNA
technology, these rape kits were languishing
there as the clock on the statute of
limitations was ticking away. And for many
victims of the rapes that had taken place, no
remedy is available any longer. And even if
we pass this legislation today, pursuant to
3260
Senator Onorato's question and Senator
Skelos's answer, this legislation is not
retroactive. All of those victims will have
no redress as a result.
Now, I listened to Senator Duane
and I very much understand his passion on this
issue and his point, which was that if this
legislation was limited to new DNA evidence,
that he'd be much more amenable to passing the
bill. I diverge from him on that issue in
that I think New York State should be more in
line with the other states, such as New
Jersey, which have no statute of limitations
for any violent felony offenses, irrespective
of whether or not DNA evidence is now
available.
I think we -- if we had not had DNA
technology now available, I still would
support legislation to remove the statute of
limitations on violent felony offenses. And
as a result, I don't believe that this
legislation goes far enough. Not only would I
like to see the statute of limitations
eliminated for the very serious crimes that
Senator Skelos has included in his bill, and
3261
the very serious crimes that Senator Skelos
included in his bill last year -- which
according to the sponsor were also B felonies
but were only B felonies -- I would include
that to be every violent felony offense,
irrespective of whether it's an A, B, C, D, or
E felony offense.
I don't agree with the supposition
that irrespective of DNA, that memories
fading, which is the presumptive reason or one
of the strong reasons why you need a statute
of limitations, that that is a greater
hindrance to the defense than it is to the
prosecution. And I believe, though I was not
in the chamber, Senator Gentile, who was an
outstanding assistant district attorney in my
home county before he was elected to the State
Senate, elaborated on this point. But a
prosecutor has the burden of proving beyond a
reasonable doubt the guilt of an individual
whom he is prosecuting.
Memories fading, it's my
understanding and logical thought, is a
hindrance much more to the prosecution than to
the defense. Memories fading is something
3262
that the defense is going to bring up as a
reason why the prosecution is going to have an
unbelievably difficult time proving a case
once years and years and years have elapsed.
So I don't agree with those two
central contentions of my very
well-intentioned Democratic colleagues on this
legislation. And I just -- I have the
strongest reservations about not taking an
action which would prevent somebody who's the
victim of a crime from getting redress of that
crime. And by the way, it's not just for the
crime victim. If we are precluded from
prosecuting, convicting and imprisoning
somebody who has committed a serious violent
felony offense because a statute of
limitations of five years has elapsed, knowing
what we know about recidivism and criminal
behavior in our country, not just in New York
State, if you are able to prosecute on these
offenses, if you get somebody, through DNA or
through some other evidence, or somebody comes
forward with some new information or some
non-DNA evidence now presents itself after the
five years has been established, and we
3263
successfully prosecute that individual six
years later for a rape or for an assault which
has left somebody crippled or what have you,
the individual who committed that crime and
who is now in prison is by definition not
going to victimize anybody else.
So this is not just a measure -- if
we take this step today, it's not just a
measure that does the right thing and provides
justice for the victim, somebody is who all
too often left out of the equation here, but
it is a public safety mechanism that should
provide some level of protection from
individuals who might prospectively be
victimized by an individual who, subsequent to
passage of this legislation -- and I hope it's
passed -- is prosecuted for a violent felony
offense, irrespective of when that violent
felony offense was committed.
I think the State of New York has
made a mistake in its existing law in having a
statute of limitations. And I -- you know,
with reference to Senator Skelos's comment
about why this legislation has been tailored
now and reduced in its scope, that's a
3264
problem. I have a problem with that. And I
would urge the Assembly to not only adopt this
bill immediately but to open up discussions to
expand the elimination of the statute of
limitations for all violent felony offenses in
New York State, and I would urge them to do
that as soon as possible.
This is an important piece of
legislation, notwithstanding the very serious
concerns that some of my colleagues have
raised. But nonetheless, I support this bill
and encourage my colleagues to do the same.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Any
other Senator wish to be heard on this bill?
Debate is closed.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect in 30 days.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56. Nays,
1. Senator Duane -
SENATOR PATERSON: Mr. President.
3265
ACTING PRESIDENT MEIER: Senator
Paterson, to explain his vote.
SENATOR PATERSON: Mr. President,
I would like to remind my colleagues that in
the United States Supreme Court ruling in the
Miranda case, also in Mapp versus Ohio and
also in the Huntley case, the court held that
it is possible that a few guilty people will
go free if we have to preserve the duties
incumbent upon government in our criminal
justice system.
When you have evidence that becomes
stale because of inaction by prosecutors, it
is our culture in this country that that lapse
inures to the benefit of the civilian, the
defendant, the free person in this society.
Because the whole basis of our criminal
justice system is not to allow individuals who
are actually innocent to be convicted of
crimes, nor is it to allow individuals who
have not committed a crime to be painted with
the brush of suspicion because of actions
taken by prosecutors. Because of that, that
is why we have the most significant democracy
on this planet.
3266
I must thank Senator Skelos. I
don't think it was properly pointed out that
there was a lot of research done and they did
listen to some of the admonitions that we
offered them about this type of legislation.
And what I would say is that with
all of my dissatisfaction about statute of
limitations tolling, what I would say is that
the crimes that are in this legislation are so
analogous to the Class A felonies that we
already toll the statute, that I can vote for
this bill. But if this is a precursor to
legislation like it, I don't want to stand up
here one day and regret my decision.
I vote aye.
ACTING PRESIDENT MEIER: Senator
Paterson will be recorded in the affirmative.
Announce the results.
THE SECRETARY: Ayes, 55. Nays,
2. Senators Duane and Montgomery recorded in
the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
3267
there will be an immediate meeting of the
Transportation Committee in the Majority
Conference Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Transportation
Committee in the Majority Conference Room.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could take up Calendar Number 281, by
Senator Maziarz.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar 281.
THE SECRETARY: Calendar Number
281, by Senator Maziarz, Senate Print 3042, an
act to amend Chapter 81 of the Laws of 1995.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MEIER: Senator
Maziarz, an explanation has been requested of
Calendar 281 by Senator Paterson.
SENATOR MAZIARZ: Thank you very
much, Mr. President.
The limited home care services
agency program was created by Chapter 81 of
the Laws of 1995. This program was designed
to allow frail senior citizens to remain in an
3268
adult care facility. The program allows
certified adult homes and enriched housing
programs to provide certain Medicaid-funded
personal care and nursing services to be
delivered on-site. Services are provided by
the limited home care services agency only to
Medicaid-eligible residents.
Limited home care services agencies
must be licensed in the Department of Health
and secure a contract with their local social
services district, to be reimbursed through
the Medicaid program. This bill simply
extends the limited home care services agency
program until March 31st of 2003.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
I can understand the value of allowing the
home care agencies to come into the home and
help many of our constituents and residents of
the state of New York, negating and hopefully
delaying the use of an adult care facility or
an enriched living condition. And probably it
would inure to our benefit in terms of the
cost to the state. So I understand the
3269
premise of the bill. We had it in laws of -
Section 81 of the Laws of 1995, and I voted
for it. And I came back and voted for it in
Section 443 of the laws of 1997, and I voted
for it. And I came back here in 1999 and I
voted for it in Section 18 of the Laws of
1999.
So my question to Senator Maziarz
is, is there a statute of limitations for how
many times I'm going to vote for this bill and
we haven't even enacted the legislation yet?
SENATOR MAZIARZ: Senator
Paterson, I would love nothing more than to
permanentize it and not to have to come back
here every three years and answer the same
questions that you ask every year. But
apparently our colleagues in the other house
are mistrustful, if you can believe it, of the
Department of Health, and they insist on it
being for a limited time period.
SENATOR PATERSON: Mr. President,
if Senator Maziarz would yield for a question.
ACTING PRESIDENT MEIER: Senator
Maziarz, do you yield?
SENATOR MAZIARZ: Certainly, Mr.
3270
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Well, if we
instituted a process that we wanted to make
permanent, then I would agree with you. But
my concern is that we haven't instituted a
process. We're over six years after we passed
the legislation, and at this point we haven't
really put this project that you suggested
many years ago into effect.
So what I'm, you know, just
pointing out or suggesting to you is that
maybe something is wrong. Maybe we need an
explanation. Has the Department of Health, as
it is required, submitted reports on why this
is the case, why there's a delay in
implementing -
SENATOR MAZIARZ: Through you,
Mr. President. Actually, the program has been
implemented. There are currently 15 ongoing
programs.
Now, I agree, Senator, it did take
some time to get the proper training and to
get the program ongoing. But currently it is
3271
in effect and we think is saving the state a
lot of money. And most importantly, it's
allowing low-income senior citizens to receive
care in their residence. Not within their
home, but within the facility that they are
living in which they now consider to be their
home. And it's ongoing now at 15 sites
throughout New York State.
SENATOR PATERSON: Mr. President,
if Senator Maziarz would continue to yield.
ACTING PRESIDENT MEIER: Senator
Maziarz, do you yield?
SENATOR MAZIARZ: Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, what
is the maximum service that we can provide?
How many programs was it designated to assist?
SENATOR MAZIARZ: There are -
I'm not sure I understand the question,
Senator. The services that are primarily
provided are personal care services, the
administration of medications, and the
application and changing of sterile dressings
by a registered nurse. Those are the services
3272
that are currently provided.
SENATOR PATERSON: If the Senator
would continue to yield.
SENATOR MAZIARZ: Yes, Mr.
President.
ACTING PRESIDENT MEIER: He
yields.
SENATOR PATERSON: Senator, you
said there were 15 programs that are up and
running. My question is, at full
implementation, how many programs will
actually be in the process?
SENATOR MAZIARZ: There's no
limit to the number of applicants that there
could be, Senator. Each adult home or
enriched housing program that's currently
licensed in this state could in effect apply
for a limited licensed home care service
agency. And I don't know how many there are
in the state, Senator.
SENATOR PATERSON: Senator, would
you agree with me that the spirit of this
legislation, the desire to actually lessen the
cost to the state of seniors that would have
to go to other facilities couldn't be enhanced
3273
very much by the implementation of 15 programs
when we have, I would suggest, hundreds if not
a few thousand programs that could be
implemented?
SENATOR MAZIARZ: Through you,
Mr. President, I would agree, Senator. But I
think as this program becomes -- as the value
of the program becomes more widely recognized
throughout the state, I think that this
program is going to grow. But of course it
can't grow unless we pass this legislation
today, Senator.
SENATOR PATERSON: Thank you, Mr.
President. If Senator Maziarz would continue
to yield.
SENATOR MAZIARZ: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: The merit of
the program is not in question. I'm not
debating the merit of the program today. What
I'm talking about is the implication. Perhaps
it would relieve our colleagues of some of our
fears and anxieties if Senator Maziarz would
3274
explain to us what caused the delays in the
first place.
If we passed legislation in 1995
with a two-year sunset, it must have been in
the reasonable contemplation of the
formulators that we could actually put a
reasonable number of programs in the process
in two years, so as to at least portray for
the Legislature that there was a real valid
reason for starting this progression.
SENATOR MAZIARZ: Senator, I was
told by the Department of Health that the
primary reason but not the only reason for the
delay was the rate-setting that the Department
of Health used in coming to an agreement with
the adult homes and the enriched housing
programs. The rate-setting was a problem,
Senator.
SENATOR PATERSON: Mr. President,
if Senator Maziarz would continue to yield.
SENATOR MAZIARZ: Certainly, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Mr. President,
3275
is Senator Maziarz familiar with the payment
to the workers at home care facilities?
SENATOR MAZIARZ: Yes.
SENATOR PATERSON: Mr. President,
if Senator Maziarz would continue to yield.
ACTING PRESIDENT MEIER: Senator
Maziarz, do you continue to yield?
SENATOR MAZIARZ: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, isn't
it true that when the home care facilities
decide on what their payments to their workers
will be, that they are not affected -- they
make the ultimate decision themselves and
that's not affected by the rate negotiations
between the home care facility and the state;
is that correct?
SENATOR MAZIARZ: You're asking
me how -- when they decide how much they're
going to pay their employees? Yes, I would
assume that's between the home administration
and the employees themselves, yes. That's not
set by the state.
SENATOR PATERSON: Thank you,
3276
Senator. That is my understanding as well.
If the Senator would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maziarz, do you yield?
SENATOR MAZIARZ: Certainly, Mr.
President.
SENATOR PATERSON: Then, Senator,
wouldn't you have some apprehension about an
agency which is negotiating rates with the
state, doesn't give much back to their
workers, wants to have a plan that clearly
inures to their benefit, hasn't provided any
services to the state in six years, with 15
exceptions, and still wants you and I to come
and vote for another two-year sunset for which
there's no encumbrance upon them to meet a
deadline on time -- doesn't that make you a
little bit apprehensive about continuing this
policy which has brought us back very little
and has created what may even be a windfall
for some of the agencies?
SENATOR MAZIARZ: The answer to
your question, Senator -- through you, Mr.
President -- is, yes, it does make me
3277
apprehensive.
However, the fact that there -
after much delay, there are 15 ongoing
programs in the state and I am told 75
applicants pending, and the fact that I have
visited several adult homes and enriched
housing units and spoken to low-income
seniors, Senator, who are enrolled in this
type of a program, and they seem to be
extremely pleased that they do not have to
leave what they now consider to be their home,
this adult home or enriched housing -- which
an adult home tends to be a room in a larger
facility, enriched housing tends to be a very
small apartment in another facility -- that
they are extremely pleased they do not have to
leave what they consider to be their home to
get their dressings changed or to administer
some medications or get personal care
services.
So I am apprehensive. The answer
to your question is yes, I share your
apprehension. But I think the program is
growing rapidly.
SENATOR PATERSON: Mr. President,
3278
the Senator who represents -
SENATOR MAZIARZ: My answer was
almost as long as your question, which is very
troublesome.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
the Senator who represents Niagara Falls and
other great regions that he's allowed me to
visit on occasions is very honest. And if he
would yield for further questioning.
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR MAZIARZ: Surely, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, I
appreciate your concern for the issues that I
have raised. I assure you they are at least
valid in my own mind, and I think in those of
others who just wonder what is going on and
what is taking so long. And in the end, in
spite of my frustration at the process, I'm
inclined to adhere to your suggestion and vote
3279
for the legislation. Particularly if there's
75 other applications pending, maybe finally
we'll get this whole thing going.
I guess I would just have to ask
you, if we come back here two years from now,
do you have an idea or in a sense a threshold
that you think that the Department of Health
should be able to report to us that these
agencies have met in terms of service around
the state that would make you more comfortable
with either continuing it or just
institutionalizing this process?
Because I like the idea. And I
think any person who is affected would rather
stay in their own home, and of course it's
less costly to the state, so it's a win-win on
both sides. But I just have a fear about
perhaps some who may not be taking this as
seriously as you and I not putting their full
effort into implementing this process and
really creating a logjam and diminishing the
number of people who can receive these
services.
So my question is, is there a
standard by which you and I can agree, if we
3280
come back here in 2003, that we're going to
say, Hey, wait a minute, Department of Health,
you know, we don't always get reports on how
the hospitals are doing, the Department of
Social Services is also involved, if you can't
come up with this, we're just going to knock
this thing out and reformulate it, maybe let
somebody else take the responsibility for
implementing these processes that will help
the home care agencies.
SENATOR MAZIARZ: Senator, I
would be extremely reluctant to give you a
particular very definite number, because I
know that two years from now you will remember
this debate and come back here and there will
be 89 operating licensed home care agencies
under this particular legislation, and you
will come back and say that I said 90, so
they're one short. And we'll have that debate
all over again.
So, Senator, I would say that I'd
be very happy if the 15 that are in operation
continued operation, that the 75 that are
pending were also licensed, and I would also
expect at that time that the Department of
3281
Health would be able to do a much more
in-depth analysis of this program than what
they have already done. But I can assure you,
Senator, from the individuals that I have
spoken to that are involved in the program
now, this is a very successful program. And I
think you know that too.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
Senator Maziarz is right. I do know that the
program could be very effective, as I
described previously. If the Senator would
yield for another question.
ACTING PRESIDENT MEIER: Senator
Maziarz, do you yield?
SENATOR MAZIARZ: Surely, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, I
guess what would make me feel comfortable is
knowing that what I believe is true is true,
which is that the 15 that have been set up
have pretty much come into being within the
3282
last two years, ever since we passed Chapter
18 to the Laws of 1999.
SENATOR MAZIARZ: I would presume
that most of the 15 have gone into operation
in the last two years, Senator, yes. I'm not
absolutely certain of that, but I think we can
say that there was a delay in getting this
program implemented.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Therefore, Mr.
President, if the Senator continues to yield.
ACTING PRESIDENT MEIER: Senator
Maziarz, do you continue to yield?
SENATOR MAZIARZ: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: If I feel a
sense of disappointment over this process, at
least I can come away understanding that in
the last two years, when we granted the second
extension, that the agencies have gotten the
message that the Legislature really wants them
to enact these services to help the seniors of
our communities all around the state.
3283
SENATOR MAZIARZ: You're asking
me if that was -- if that is my opinion or if
I agree with your statement? I guess I'm not
sure of your question, Senator.
SENATOR PATERSON: Mr. President,
I'm asking Senator Maziarz if that would be
helpful to those of us who have those
apprehensions that at least we can say that we
didn't do what we did in 1997, which is extend
the program for two years and in two years
they did absolutely nothing; that in this
case, we voted for it two years ago, we can
vote for it again because we now can point to
something tangible they have done that will
benefit our cause.
SENATOR MAZIARZ: I would agree
with part of that, Senator. I don't know that
they did absolutely nothing initially. I
think that they sat down with some of the home
owners and negotiated a rate settlement and -
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: Mr.
President, there will be an immediate meeting
of the Children and Families Committee in the
3284
Majority Conference Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Children and Families
Committee in the Majority Conference Room.
SENATOR MAZIARZ: I'm sorry,
Senator. I would just add to my answer by
saying that I would hope that when we renew
this legislation two years ago from now that
we're much further along than we were in the
last two years.
SENATOR PATERSON: Mr. President,
on the bill.
I'm not going to be cynical enough
to quibble with one agency short of what the
90 should be that would be implemented in two
years. Actually, I hope there will be more
than a hundred at that particular time,
because I think it does accommodate need.
I do think, though, that some of
the home care agencies have not only taken
advantage of their workers but have taken
advantage of the people they serve by having
legislation passed that inured to their
benefit and, for want of a better association,
taken their sweet time implementing it. It
3285
really bothers me not only that that's the
case but that the decision-making bodies whose
charge it is to supervise them have apparently
not only been somewhat derelict in their duty
but really haven't provided adequate
information for what these delays are about.
I don't think it takes six years to
negotiate rates over the delivery of services
to home care. In many ways, I think they have
cost the state in a way that we'll probably
spend a period of time when we implement these
services regaining some of that cost.
But Senator Maziarz is right. To
some degree, we can't hold the advocates or
the agencies culpable -- I'm sorry, we can't
hold our seniors culpable for the actions of
the agencies that are supposed to take care of
them or our state agencies whose mission it is
to supervise them. In the end, it would work
very much to the benefit if those who can stay
in their homes would not have to be moved
around or burdened by moving to other living
conditions. It will also save money for the
state.
It's a great plan. I don't think
3286
anyone had a problem with it in 1995. I don't
have a problem with it now. I, as Senator
Maziarz, hope that I see it again in two
years, because I think this is the last time I
can honestly feel that I'm benefiting
residents around the state by voting for this.
Clearly, if we don't see something
demonstrably different than we saw in this
session, then I think we're going to have to
reconsider the whole plan and perhaps find
someone that can implement it a little better.
But I was pleasantly surprised that
Senator Maziarz didn't just deflect my
questions but personally recognized the need
to put these services into place posthaste.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. I'll waive my questioning of
Senator Maziarz, and I appreciate his patience
in responding to what I think were good, solid
questions from Senator Paterson.
On the bill, Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
3287
SENATOR DOLLINGER: I'm going to
vote against this bill, and I'm going to vote
against this bill because I don't understand
why we use sunset laws this way, number one.
And, number two, I'm frankly
tired -- and I appreciate Senator Maziarz's
advocacy, but I think it's only fair when we
say to the State Health Department, we're
going to start this new program and we're
going to take our money and invest in this
program through establishing reimbursement
rates, once we do that, we want you to tell
us, is this a good program, is it working, are
we saving money.
I don't think we need a
thousand-page report. I don't think we need a
20-page report. I don't think we need a
five-page report. But I do think that after
six years, we could get a letter from the
State Health Commissioner that says, Here's
the program. We had startup problems. We
couldn't negotiate the initial reimbursement
rates, and as a consequence the program has
been delayed. I need more time in order to
conduct the evaluation. Simple,
3288
straightforward, one page. Something to say
to the Legislature it's worth continuing to
use this investment.
I would suggest after six years -
if to one of my employees at my law firm I
said, I'd like to know where that case is,
could you tell me, and six years later, the
answer was -- as Senator Maziarz pointed
out -- I think it's a good program, I think
it's doing good things, I think it's reaching
the goals and objectives that we would like to
reach. I would look that employee in the eye
and say, You think or you know? And that
employee would say, Well, I just think. I
really haven't done the research to figure it
out yet. And I would fire them on the spot
and simply say, I asked you to tell me whether
it was working or not. Not whether you
believed it was, not whether you think it was,
but whether it actually was.
I would suggest there's millions of
dollars that we spend on the bureaucracy of
the Health Department. It's very easy to call
up someone and say, How is that report going?
Can you actually put it in writing? We didn't
3289
say that it had to be 20 pages long. We
didn't say it had to be exhaustive. In fact,
the only thing we told them was that the
Department of Health shall submit a report to
the Governor and the Legislature that
describes the cost savings.
I would daresay, Mr. President,
that Senator Maziarz, as the chairman of the
Aging Committee, could meet with them for 20
minutes, and he and his staff could write a
report that would take 25 more minutes, and
the job would be done.
We command our state agencies to do
lots of work, to tell us, as the experts,
whether these programs work. We give them
four years to do it, they don't do it. We
give them two more years, they don't do it.
And now they ask us for two more years.
I would suggest, Senator Maziarz,
you're correct, it's a terrible thing to have
the senior citizens in this state held hostage
to the State Health Department, to be in a
position where the State Health Department's
failure to comply with the legislative demand
is a consequence for them losing services. I
3290
would suggest if that is the case, then let's
never ask the Health Department to tell us
anything. Let's drop all these requirements
for reports, and we will just decide whether
to pass legislation simply on the basis of
whether we believe it's a good idea, whether
we think it's a good idea, whether the
advocates tell us it's a good idea. I would
just suggest, Senator Maziarz -- and again,
this is well-intentioned. It may be a great
program. But from my point of view, the mere
fact that somebody believes it to be so is no
longer enough.
Ask the State Health Department.
They could even submit the report, I daresay,
between now and Friday, which is the day in
which the extension actually expires. Ask
them for a written report, get the written
report, get the Health Commissioner to do her
job, have her tell the Deputy Commissioner to
do his, have the Deputy Commissioner tell the
person in charge of Medicaid financing to do
theirs, and find that person somewhere in the
bowels of the Health Department whose job this
is to do their job and get us the report. I
3291
daresay it could be here by 5 o'clock today if
the Health Department thought it was that
important.
But we don't seem to have that
report. The bureaucracy doesn't seem to do
what the Legislature wants -- what we told
them to do, and the Health Department seems to
assume that aw, so what, if we don't get the
report done, we'll get an extension again
anyway.
I'm not willing to do it one more
time. Six years was more than enough. Find
the person responsible. Have them produce the
report. It can be here by Friday. On Friday,
with the report in hand, I may vote for this
program. Today, without it, I will not.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the sponsor
would yield for a few questions.
ACTING PRESIDENT MEIER: Senator
Maziarz, do you yield?
SENATOR MAZIARZ: Surely, Mr.
President.
3292
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
I must admit that I am also somewhat baffled
as to the course of events over the last six
years in connection with this program. Does
the Department of Health have a particular
deputy commissioner or an agency within the
Department of Health that has taken
responsibility for this?
SENATOR MAZIARZ: I'm sure that
there is, Senator, but I'm not aware of what
particular agency within the Department of
Health that it is.
SENATOR SCHNEIDERMAN: My
understanding is that this bill is limited to
adult homes and enriched housing programs; is
that correct?
SENATOR MAZIARZ: Yes, that is
correct.
SENATOR SCHNEIDERMAN: And does
that mean that programs that deliver services
to seniors in their own residences, off-site
service providers are not included in the
definition of limited licensed home care
3293
service agencies?
SENATOR MAZIARZ: That is
correct, yes.
SENATOR SCHNEIDERMAN: Has there
ever been -- and in light of the discussion
thus far, I hesitate to suggest that we try
and implement a new program. But one of the
major issues that seniors in my district raise
with me -- and I think that as someone
sensitive to the evils of big government
bureaucracy, this would be an issue that
probably is raised with you in your
district -- is the question that the structure
of New York State's regulations regarding
adult homes, adult care facilities generally,
really encourages people to get out of their
own homes and into adult care facilities or
possibly these limited licensed home care
services agencies. Is there a parallel
program to encourage agencies or to develop
programs for agencies to provide these
services to seniors in their own homes?
SENATOR MAZIARZ: Senator, first
of all, I think just -- and I say this
respectfully, I think the way you've asked the
3294
question, you really don't have a clear
understanding of this program.
These are seniors that are already
in adult homes or in enriched housing.
They're already residents of those homes.
They would have to leave their home in most
cases, in most cases, to get this type of
care, when in fact you have staff on hand who
could do things like change bandages. Most of
this is about changing bandages, administering
medications, and personal care services.
Personal care services I guess is the largest
of them.
So these individuals are already in
these homes, they're residents of these homes.
And in order -- what would normally happen,
before this program was brought about,
Senator, is we think that a lot of people who
needed these services and could stay in their
home were instead sent over into full-scale
skilled nursing facilities. I mean, there are
home health care agencies out there that
provide home health care in a senior citizen's
home, in their, if you will, natural home.
Now, these are senior citizens that
3295
are residents of enriched housing, of adult
homes. They consider that now to be their
home, if you will.
SENATOR SCHNEIDERMAN: Through
you, Madam President, if the sponsor will
continue to yield.
SENATOR MAZIARZ: Surely.
THE PRESIDENT: You may proceed.
SENATOR SCHNEIDERMAN: Thank you.
I thank the sponsor for the clarification.
I guess my concern is this. It
seems that this program was intended as a sort
of a halfway step towards the objective, which
I think most of the seniors in my district
would like to see. Which is to say instead of
being in a full-fledged nursing home, you can
be in a limited-care facility. But most of
the seniors in my district really would like
to be in their own homes and see us improve
the quality of home care services so they can
stay there. We have a lot of people who
really feel as though the regulatory structure
of New York State and also the economics of
the industry really almost creates an
incentive for people to get out of their
3296
homes. And I accept the suggestion that a
limited licensed home care may have some
significant cost savings over a nursing home.
But the question I'm putting to you
is, aren't we really emphasizing the wrong
aspect of this, when I think that the need
here, according to people I talk to in my
district, really is not so much for more of
these halfway facilities or limited licensed
facilities but for a significant investment
and improvement in home care for seniors in
their own, as you say, natural homes.
SENATOR MAZIARZ: Through you,
Madam President, I would agree with your
statement that we do need more home health
care. This has really, I think addressed,
another issue. But on the issue of do we need
more home health care, absolutely. Do we need
better trained personnel. I think that, quite
frankly, we've made great strides in the home
health care field since 1995, since Governor
Pataki was elected and certainly since
Dr. Novello has become the New York State
Health Commissioner, in the home health care
side. I think this is another step for the
3297
home health care, if you will, within these
specific types of units.
SENATOR SCHNEIDERMAN: Through
you, Madam President, if the sponsor will
continue to yield.
SENATOR MAZIARZ: Surely, Madam
President.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Well, I appreciate your -
SENATOR MAZIARZ: I feel I just
extended this debate for probably another
twenty minutes.
(Laughter.)
SENATOR SCHNEIDERMAN: Oh, not at
all. Not at all. I do have some questions
about the National Rifle Association that I
want to get to.
(Laughter.)
THE PRESIDENT: Not in this
debate, Senator. Not in this debate.
SENATOR SCHNEIDERMAN: Germane
questions, Madam President.
The problem that we've been
3298
discussing, though, is that whatever general
statements you may wish to make about the
success of Governor Pataki's Department of
Health, it is hard to argue that this program
can be counted as a success. What -- do you
know where the 15 -- I gather there are only
15 facilities that are operational under this
program over the last six-year life of the
program. Do you know where they are located?
SENATOR MAZIARZ: Senator, I was
just saying to my staff person I wish I had a
listing of where all of them are. I'm told
that they're fairly spread out around the
state. But -- I was kind of hoping that I
would know exactly where the ones in the city
of New York were located, Senator, but I
don't.
SENATOR SCHNEIDERMAN: Well,
okay, thank you. Through you, Madam
President. Are there other facilities that
have applied -- perhaps you can explain,
before I get into these questions, the
process. Is there an application and review
process before you become a limited licensed
home health care service? Could you describe
3299
how that works? Because I'm interested in the
backlog.
SENATOR MAZIARZ: Yes, there is
an application and a review process, Senator.
I'm not familiar with the technical nature of
what the application review process is. But I
do know that there are 75 pending
applications. In addition to the 15 that have
already been approved, there are 75 pending
applications. I do know -- by the way, I do
have the criteria in front of me, it's rather
lengthy, if you're interested in it.
SENATOR SCHNEIDERMAN: Yes,
actually, I am interested in the criteria,
because I'm trying to figure out, as I think
many of us are, what's taken six years. And I
think that we have an obligation when we
implement a program like this to do some
follow-up and oversight. And I appreciate the
sponsor's attention to detail and
responsiveness to the questions. But I still
don't understand why, after six years of a
program, we have 15 facilities operational at
a time when our population of seniors is
increasing substantially and the needs for
3300
these sort of facilities would seem to be very
pressing.
So maybe the backlog -- the tie-up
is in the application process. I don't know.
How burdensome are the applications? Are
there on-site inspections? What's the process
that's taking so long?
SENATOR MAZIARZ: Well, as I said
in my answer to Senator Paterson, I said that
I too was somewhat apprehensive about the
length of time that it took this program to be
made available in New York State. But I think
that the Department of Health wanted to do a
very thorough job and certainly wanted to make
sure that the rate-setting methodology that
was used would make it at least a situation
where adult home owners and operators and
enriched housing owners and operators would
desire to get into the program, that it would
not be something that they would lose money
on. So that is the reason that was given to
me as to why this process took so long,
Senator.
But I share your apprehension and
really dismay at the fact that it did take so
3301
long.
SENATOR SCHNEIDERMAN: Through
you, Madam President. Well, the concern over
the rates and structuring the rates to create
the right kind of market, I understand that.
Is there any reason to believe, that you're
aware of, why that would have taken longer
than a year at the most? Were there hearings
held? I mean, were there reports submitted,
polls conducted, surveys done?
SENATOR MAZIARZ: No, I'm sure -
I know that there were many, many meetings,
Senator, that took place. Many meetings that
took place at my instigation, Senator. But
I'm not aware -- now, the Department of Health
may have had hearings on it that I'm not aware
of.
SENATOR SCHNEIDERMAN: Through
you, Madam President, if the sponsor will
continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MAZIARZ: Yes, Madam
President.
THE PRESIDENT: You may proceed.
3302
SENATOR SCHNEIDERMAN: What were
these meetings? Were they limited to the
first few years of the program, or have they
been going on for five years? I have to go to
a lot of meetings also, but this seems to be
an example perhaps of a government agency out
of control. Do you know if the meetings -
were they meetings with service providers,
were they interagency meetings? What were
these meetings that took six years.
SENATOR MAZIARZ: Oh, I'm not
aware of what the specific meetings were. But
they were meetings involving several agencies,
yes.
SENATOR SCHNEIDERMAN: In
addition to the Department of Health, what
other agencies were involved, if you know?
SENATOR MAZIARZ: I'm sure the
State Office of the Aging was involved in it.
I'm sure that the Department of Children and
Family Services, the Division of Budget, the
Department of Social Services. Children and
Family Services.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President. If we have a
3303
situation -- I'm pleased that we're joined by
the chairman of the Health Committee now who
can help us in rooting out the source of this
inexplicable delay in providing badly needed
services to the senior citizens of our state.
Are you or anyone else in the
Legislature, in the Senate -- has anyone
undertaken an inquiry into where the delays
are taking place, if it takes like two years
for an application to be processed or if the
applications were just generated two years
ago? Has anyone really taken a look at this
or demanded answers from the Health
Department?
SENATOR MAZIARZ: No.
SENATOR SCHNEIDERMAN: Through
you, Madam President. I would suggest that
perhaps since we are coming back for support
here, that we undertake such a project, which
I don't think will be tremendously burdensome,
but at least to find out what's going on.
Because if there is a problem that can be
rectified -- and it's hard to imagine that it
can't be -- you know, after six years, I think
that a little noodge from the Legislature
3304
perhaps would be in order.
Would you say that the program has
shown any improvement, are there any positive
gains that you can report to us because of
these delays?
SENATOR MAZIARZ: I think that
the answer to your question is yes, Senator,
there have. And I think that the program now,
with the 15 applicants and the 75 pending,
nearing completion, I mean, I think that's
certainly a good sign. I've gone out and
visited some of these homes. I think it's
good that seniors do not have to leave their
home -- these are all low-income seniors,
they're all Medicaid-eligible seniors,
Senator -- that do not have to leave their
home, that there's a comfort level in dealing
with a staff person that you see on a daily
basis that works in the facility that you're
in.
And I can assure you, Senator, as
someone -- every day that I'm in my district,
Senator, every day, my last stop of every day
is at a nursing home. And I can assure you
that there is a comfort level between the
3305
residents and staff persons that they are
familiar with.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR MAZIARZ: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Is there
any reason for us to believe that the Health
Department will be any more forthcoming in
producing the report required by this statute
than it has been in past years?
SENATOR MAZIARZ: Actually,
Senator, they have produced a report which I
have a copy of which I will make available to
you and to Senator Dollinger and to all of our
colleagues, by the way.
SENATOR SCHNEIDERMAN: And
through you, Madam President, if that report
has been submitted, then we're about to pass a
statute that calls for another report. Is
that the same report, or are we asking for a
3306
new report?
SENATOR MAZIARZ: I would presume
that we're probably asking for a new report,
Senator.
SENATOR SCHNEIDERMAN: Okay.
Through you, Madam President, when was this
first report -
SENATOR MAZIARZ: I'm not sure,
Senator, when it came out.
SENATOR SCHNEIDERMAN: And is it
a report that, as set forth in the bill,
describes the cost savings associated with the
authorization of certified operators of adult
homes and enriched housing programs to qualify
as limited home care services agencies
licensed by the Department of Health? Is that
what the report addresses?
SENATOR MAZIARZ: I'm sorry,
Senator, you're going to have to ask that
again. I was -
SENATOR SCHNEIDERMAN: Oh, I'm
sorry, I was just reading from your bill.
Through you, Madam President. The sponsor
referred to a report that was issued by the
Department of Health. My question is, is it a
3307
report that describes the cost savings
associated with the authorization of certified
operators of adult homes and enriched housing
programs to qualify as limited home care
service agencies licensed by the Department of
Health?
SENATOR MAZIARZ: To be honest
with you, Senator, I have not had a chance to
read the report yet, so I really don't know if
it contains that information or not. I'm told
by staff who has read it that it's a status
report of the current program and of the 15
current ongoing licensees.
SENATOR SCHNEIDERMAN: Through
you, Madam President, the bill or the statute
that we've passed authorizing this program in
the past, did it require the -- did it have
the same requirement in it for a report on the
cost savings?
SENATOR MAZIARZ: I'm sorry,
Senator, I did not hear you.
SENATOR SCHNEIDERMAN: I'm sorry,
I'll try and speak louder. I'm sometimes a
little shy and retiring.
The question is, we've had several
3308
runs at this before, and we've passed other
bills authorizing this program. Did the last
few bills that we've passed -- and I guess
this was in 1995, 1997, 1999 -- include the
same requirement for a report from the
Department of Health describing the cost
savings associated with the authorization of
these programs?
SENATOR MAZIARZ: I believe that
it did, yes.
SENATOR SCHNEIDERMAN: But the
report that we have -- and I trust that your
excellent staff will give you accurate
information. But what I gather from what
we're hearing is that that report is just a
status report on the program as a whole and
not the report that was required by the
legislation.
SENATOR MAZIARZ: I would say
that's correct. However, there was no program
to report on during those years that there
were no licenses issued.
SENATOR SCHNEIDERMAN: Okay.
Now, are you familiar -- through you, Madam
President, is the sponsor familiar with the
3309
rules and regulations that govern these sorts
of limited licensed home care service agencies
as far as patient conduct within the
facilities?
SENATOR MAZIARZ: No, I am not,
not directly, Senator.
SENATOR SCHNEIDERMAN: Through
you again, Madam President, is there any sort
of model set of rules, are there any
requirements imposed by the Department of
Health for rules and regulations of residents
of such facilities?
SENATOR MAZIARZ: Rules and
regulations for the residents?
SENATOR SCHNEIDERMAN: Yes,
governing the lifestyle of the residents,
their schedules, their medical care, what
they're allowed to have with them, what
they're not allowed to have with them,
visiting.
SENATOR MAZIARZ: I'm certain
that there are, Senator, but I'm not familiar
with the exact nature of those. And obviously
there's a licensing procedure for an adult
home for an enriched housing program.
3310
SENATOR SCHNEIDERMAN: Thank you.
On the bill.
I thank the sponsor for his
responsive questions. I would be very curious
in knowing what the regulations are as far as
the limitations on the conduct of residents.
I am particularly curious about -
THE PRESIDENT: Senator Duane,
why do you rise?
SENATOR DUANE: If the Senator
would yield, please.
THE PRESIDENT: Senator
Schneiderman, do you yield to Senator Duane?
SENATOR SCHNEIDERMAN: Yes, I
will yield.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: I'm wondering
whether or not you're getting the same sort of
confusion that I'm getting here.
SENATOR SCHNEIDERMAN: I don't
know. Perhaps if you described your
confusion, I could answer. I may have a
different type of confusion.
SENATOR DUANE: Well, through
3311
you, Madam President, I'll describe my
confusion and then see if we can come to a
consensus about the confusion here.
Now, as I understand it, we may or
may not have a report that may or may not be
about a pilot program that may or may not have
been started, or we may have a report about
maybe having a pilot program or a report on
whether we're going to have a pilot program
and what would part of the pilot program. Do
you think it's any of those things?
SENATOR SCHNEIDERMAN: Well, I
admit to sharing some confusion about this.
And not just so much confusion, but puzzlement
as to why this state of affairs has been
allowed to go on as long as it has. If it
took six years for an agency such as, you
know, the Board of Education of the City of
New York to implement a program providing
much-needed services, I think that there would
be an outrage in the newspapers, hearings in
the City Council. And I am concerned that we
are not fulfilling our obligations to follow
up and supervise the implementation of
legislation that we've passed.
3312
It sounds as though this program,
which is six years old, we've never gotten any
sort of a detailed report. What we have is
one report, which we will call the status
report, that as far as I can tell no one here
has read except the highly trained and
qualified staff who is advising Senator
Maziarz, but we don't know what is in that
report. Apparently no report on the cost
savings associated with this program, which is
required in the bill we're debating now, has
been issued. The purpose of this program in
large part is to save money. I mean, I don't
think there's any dispute that nursing homes
are worse places to live than these limited
licensed home care service agencies, but they
are far, far more expensive.
So we're proceeding here in the
sixth year, reauthorizing a program for
existence that's taken six years, and we don't
know why, to get 15 facilities licensed, which
I guess qualifies as a pilot program, a
minimal pilot program at best. And we don't
know what's taking so long, we don't know
what's in the report. I guess we have one
3313
report over six years, which is not terribly
impressive.
So I must say -- and I think that
it doesn't sound to me as though the sponsor
disagrees with the puzzlement here. I'm sure
the 15 facilities that it's taken us six years
to develop are making a contribution to the
well-being of the seniors in those facilities.
But it doesn't sound to me as though we're
doing our job or the Health Department is
doing its job if that's all we have to show
for six years of work. And we don't know, as
far as I can tell -- although this perhaps
will be a question I did not ask the
sponsor -- how much this has cost over the
past six years.
So I think I'm not as much confused
as I am concerned and not as much baffled as I
am puzzled by why this state of affairs has
been allowed to continue. But I see the
sponsor is doing some research even as we
speak, so he may have some late-breaking news
for us on this issue.
SENATOR DUANE: Through you,
Madam President, if the Senator would continue
3314
to yield.
SENATOR SCHNEIDERMAN: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR DUANE: As has been noted
before -- and the Senator did raise the issue
of cost savings associated with this. And
that's the whole reason that there was
supposed to be the existence of this program.
But I'm wondering whether the Senator thinks
that anyone who's a member of this body has
either seen -- or I should say seen and/or
read this interim report on the potential
pilot program from six years ago.
SENATOR SCHNEIDERMAN: I only can
judge by the responsive, candid, and fulsome
statements of the bill's sponsor acknowledging
that he has not read it. I don't know that
anyone else has. The chairman of the Health
Committee was here. Perhaps he has. But I
don't think anyone in this body has read this
report.
SENATOR DUANE: And through you,
Madam President, if the Senator would continue
to yield.
3315
SENATOR SCHNEIDERMAN: Yes, I
will continue.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: I'm wondering,
Senator, if you are concerned, as I am, that
we go through all the trouble of passing
legislation here and then nobody follows that
legislation. Do you have concerns about what
the point is of our passing legislation here
that gets ignored and frankly no one even
seems to bother to track what's happening with
the legislation and thereby makes it very easy
to have that legislation and laws ignored?
SENATOR SCHNEIDERMAN: Well, I
think that is a tremendous subject of concern,
and particularly in this area. And we know
that historically in New York State there have
been recurring problems with the oversight of
facilities that provide services to our senior
citizens. We've had tremendous problems with
nursing homes in the past. We've had problems
with regulations not being enforced, with
unscrupulous profit-making enterprises taking
advantage of our senior citizens. So that is
3316
a subject of concern.
Now, I note that in the New York
State Assembly some time ago they set up a
special committee on oversight, specifically
just to follow-up on this type of issue, on
programs and what had happened to programs set
up through legislation. And perhaps that
would be something that could be an addition
to the numerous committees that we have in
this fine body. I certainly would support -
if Senator Maziarz was interested in being the
chair of such a committee, I would
certainly -- I'm not sure me giving him a
recommendation would do much good at this
point, but I would be glad to provide that.
I think there is a serious problem
of the lack of follow-up, and I think it is
something that we have an obligation to
address. And I hope that we will address it
with regard to this specific program, although
a program providing services to seniors that's
this important that has taken six years to get
one update report and to license 15
facilities, as they used to say, it's like the
clock striking 13. It doesn't just make you
3317
question what time it is now, it makes you
question all the information you've gotten
from that clock. So this makes me wonder
about other programs that the Department of
Health is responsible for that may or may not
be implemented.
And actually, I understand why the
sponsor was concerned about the sunset
provision. But it's only because we had the
sunset provision that this is coming to our
attention. If this hadn't had a sunset
provision, I don't know that we would be
having to debate right now.
SENATOR DUANE: Thank you. Thank
you, Senator.
SENATOR SCHNEIDERMAN: Thank you.
On the bill, Madam President.
I hope that we will take a serious
look at this program in this area. I do think
that while I appreciate the sponsor's
explanation of the need for these facilities,
in my view the most critical area in which we
have a shortcoming in New York regarding
services for senior citizens really is in the
area of providing services to people in their
3318
own homes. The workers in that industry are
grossly underpaid. And the home care service
providers are really, if you want to look at
it in economic terms, one of the best
investments we can make in this state.
Because what keeps people out of nursing homes
and what will even keep people out of these
limited licensed home care service agencies is
effective services in a senior citizen's home.
Our failure to invest in these workers, in
training, in health care, is really very
shortsighted. And I would respectfully submit
that that's something that we should be taking
the initiative on as well as following up on
this puzzling lack of progress in the program
that is before us now.
I find that I am continuing to
listen to the debate because, frankly, at this
point I'm not sure if I'm going to vote for
this legislation or not. I think that the
idea is very good, but I don't see how in good
faith we can support something that's six
years old where we don't really have any
information about what's taking so long. This
is the kind of issue that often our colleagues
3319
on the other side of the aisle rail against
when it comes to a bureaucracy being
unresponsive to people's needs. So I am
undecided at this point, and I will listen to
the rest of the debate to decide how I'm going
to vote.
Thank you.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. On the bill.
I'm really embarrassed. I mean,
this is the New York State Senate. This isn't
like a moot court. We're not playing, this is
real life. We're passing laws. Apparently
we're passing laws that are ignored. That's
really an embarrassment to this body. It's a
disgrace. It's really a disgrace. And you
know what? There isn't even anyone here who
cares about it. Look. It's really an
outrage. You know, this is the New York State
Senate.
So we're just getting around now,
six years later, to start a pilot program
maybe. We may be starting a pilot program six
years later. We don't know why there's a
3320
delay. We don't even know whether as a result
of passing this law that they'll start the
program now. They didn't start it the last
time. What makes any of us think that they're
going to start it now? Apparently passing
legislation doesn't really do anything here.
Pretty embarrassing for the State Senate.
Does the lengthy delay mean that
the program is working and doesn't need a
report, or does it mean it's not working and
we should just scuttle it? Six years. It's
been six years. Really, I don't understand
why do we bother passing legislation if nobody
is going to follow it and nobody even pays any
attention to when we do pass it or what
happens with it. I just find all of that
totally inconceivable.
I can't believe that nobody in this
room, nobody in this chamber even knows
whether a report has been done or read a
report about this. You know, maybe I should
call the Health Commissioner and find out
what's going on here. I can't believe that
before it came to the floor here that nobody
even checked with the Health Commissioner on
3321
what the heck is going on with this bill.
Maybe I should just call her and find out
what's happening. Maybe she could give me
some answers on it.
Or maybe what we should do is have
a hearing and call the Health Commissioner in
here and find out why it's not done. Maybe we
could find out ourselves without a report on
what's happening. Maybe we could bring in the
nursing home operators, maybe we could bring
in some people that are allegedly getting
these services. Maybe we could talk to people
who may or may not be putting this program
together. Maybe, just maybe, we could have a
hearing.
Has there been a hearing in six
years on this? No, I guess not, because
nobody really seems to know what's going on
with it. Is anything going to happen in the
next two years? Why should I vote for
something that extends something that hasn't
happened for six years? Why should we give
them two more years?
I thought that this was a chamber
with adults in real life passing laws that
3322
impacted real people. If older New Yorkers
aren't real people, then I don't know who is.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. If the Senator will
yield for a couple of questions.
THE PRESIDENT: Senator, do you
yield?
SENATOR MAZIARZ: Surely, Madam
President.
THE PRESIDENT: You may proceed,
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you. Through you, Madam President. To the
Senator, everything that I know about this
legislation and the continuing legislation
I've learned on the floor today, and a little
bit from what I've read from the bill. So if
you will indulge me, I'd just like to ask you
a couple of basic questions.
SENATOR MAZIARZ: Certainly,
Senator.
SENATOR HASSELL-THOMPSON: Okay.
The little that I know about these kinds of
3323
programs -- and I know them because of some of
the health facilities, the adult homes in my
area, where the health center and some of the
other agencies are providing health services
to them to allow seniors, as your bill
describes, not to have to leave their homes or
not to have to go to a facility to receive
certain kinds of care. And I'm familiar with
some of these.
I guess the problem that I'm having
is, number one, I want to be clear in my
question, my first question. This is to do a
continuing resolution to allow these services
to continue to happen within homes and/or
faciles for the elderly. That's correct?
SENATOR MAZIARZ: Yes. In two
very specific types of facilities, though,
Senator: adult homes and enriched housing
units.
SENATOR HASSELL-THOMPSON: Right.
SENATOR MAZIARZ: I mean, in
other types of facilities, skilled nursing and
so forth, these services are already provided.
SENATOR HASSELL-THOMPSON:
Through you, Madam President, if the Senator
3324
will yield.
SENATOR MAZIARZ: Surely, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR HASSELL-THOMPSON: Thank
you. Are you talking about those facilities
such as assisted living?
SENATOR MAZIARZ: No, assisted
living is another type of -
SENATOR HASSELL-THOMPSON: Okay.
What is the category that's under this special
type?
SENATOR MAZIARZ: Adult home and
enriched housing. Adult home is -
SENATOR HASSELL-THOMPSON: I know
adult homes. Tell me what enriched housing
is.
SENATOR MAZIARZ: Okay. Enriched
housing would be an apartment-like setting
where you have an option to have, let's say,
congregate meal service. I mean, there are
different types. But the most popular one is
a private type of an apartment where you would
have an option to either have some services
like meal services, for instance, on your own
3325
in your apartment or a congregate-meal
setting.
One is more an apartment-like
setting and the other one is more a room with,
you know, congregate meals and so forth.
SENATOR HASSELL-THOMPSON: Okay.
But they're all a type of residential, they're
all residential.
SENATOR MAZIARZ: Right. Yes.
SENATOR HASSELL-THOMPSON: Okay.
Through you, Madam President.
SENATOR MAZIARZ: Yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Thank
you, Senator. You said that there are 15
existing?
SENATOR MAZIARZ: Yes, there are,
15 existing.
SENATOR HASSELL-THOMPSON:
Throughout the state.
SENATOR MAZIARZ: Yes.
SENATOR HASSELL-THOMPSON: And
continuing, through you, Madam President.
SENATOR MAZIARZ: Yes.
3326
SENATOR HASSELL-THOMPSON: Of
those that exist -- i.e., are licensed by the
state -- in the six-year period since this
program began, how many -- how did the
licensing occur? Did they all occur suddenly,
two in the first year, six or ten in the
second year? How did the licensing occur?
SENATOR MAZIARZ: It has been
spread out primarily over the last two years.
There were approximately, I think, five in
1999 and 10 in the year 2000.
I don't think there have been any
in 2001 so far. But there are 75 pending.
SENATOR HASSELL-THOMPSON:
Through you, Madam President.
THE PRESIDENT: You may proceed.
SENATOR HASSELL-THOMPSON: Thank
you. Thank you, Senator.
I'm beginning to understand, then,
why we haven't had any reports generated,
because we haven't had any programs generated.
SENATOR MAZIARZ: Yes. I said
that, Senator, about 45 minutes ago.
SENATOR HASSELL-THOMPSON: I know
you did. But somehow I needed some other
3327
background for the whole thing to come
together for me. So I appreciate it.
Continuing, through you, Madam
President. You said there are 75 pending.
SENATOR MAZIARZ: Yes.
SENATOR HASSELL-THOMPSON: What
is it that we're going to do differently to
ensure that once the licensure -- because I
understand that without this continuing
resolution, those 75 cannot come into the
program because the demonstration program will
stop. Is that correct?
SENATOR MAZIARZ: Yes.
SENATOR HASSELL-THOMPSON: Okay.
I'll get to the report. But I'm really more
concerned about providing of services at the
moment. What is it that we're going to do
differently with this 75 to ensure, number
one, that the licensing process is not
prohibitive? Because apparently it must be,
within six years, if we have 75 pending and
only 15 have been licensed. That's part A.
Part B, how can we then implement a
penalty to the Health Department or provide
assistance to the Health Department if that's
3328
what's necessary to facilitate these?
THE PRESIDENT: Senator Duane,
why do you rise?
SENATOR DUANE: Madam President,
this is a very important issue that goes, I
think, institutionally to what's happening
here. And I think people need to know what
the answers to the Senator's questions are.
THE PRESIDENT: Senator -
Senator, if I may -
SENATOR DUANE: Is there a quorum
in the house?
THE PRESIDENT: Senator, I
believe you've already spoken twice on this
bill.
SENATOR DUANE: Is there a quorum
in the house?
THE PRESIDENT: Senator, would
you please listen to my comments and not
interrupt. You have already spoken twice on
this bill. You do not have the floor.
Senator Hassell-Thompson, you may
proceed.
SENATOR DUANE: Madam President,
anything -
3329
You do not have the floor, Senator
Duane. Please sit down.
THE PRESIDENT: Senator
Hassell-Thompson, you may proceed.
SENATOR MAZIARZ: Actually, you
had asked a question and I was answering;
right?
THE PRESIDENT: Excuse me,
Senator Maziarz. You may proceed.
SENATOR MAZIARZ: Thank you,
Madam President.
To answer your question, Senator,
before we were interrupted by Senator Duane, I
think that the primary cause for the delay was
the rate-setting. That issue has been
resolved. Fifteen are approved and out there
operating right now. They've proven to be
extremely successful. I think that they
wanted to get some out there in various
regions of the state -- this is the Department
of Health -- to see how it would work out. In
fact, it's been, I think, hugely successful.
I would suspect that the other 75
are going to be approved because most of the
problems, like any -- and I would tend to
3330
agree that this has taken too long. And, you
know, you can assess blame wherever you feel
it should lie. But I'm just glad that the 15
are out there, that the rate methodology has
been set, and that I think we can expedite
these other 75. And probably as the program
grows and becomes more popular, we'll multiply
the number of applicants.
SENATOR HASSELL-THOMPSON: Madam
President, through you.
THE PRESIDENT: Senator Maziarz,
do you continue to yield?
SENATOR MAZIARZ: I do.
THE PRESIDENT: Do you have a
question, Senator Hassell-Thompson? You may
proceed with a question. Or on the bill,
whichever you -
SENATOR HASSELL-THOMPSON: No,
I'm still on the question.
Through you, Madam President.
Senator, then this project, as I understand
it, is a demonstration. When the project was
first designed, what was the window for that
demonstration project? And that's (A).
And then, (B), have we passed the
3331
demonstration portion and is it going to
become a permanent program?
SENATOR MAZIARZ: The answer to
your first question, to (A), was two years.
Is it going to become a permanent
program? As I answered to Senator Paterson,
it is my desire to make it a permanent
program. However, I'm told that our
colleagues in the other house desire it to be
on a two-year basis as opposed to a permanent
program.
I think eventually, Senator, it
probably will become extremely successful and
will become a permanent program. I would like
to see that happen.
SENATOR HASSELL-THOMPSON: Last
question, if you will, Madam President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Do you
think that the reluctance -- and I really hate
to ask you any questions regarding the other
house, because I know that you're in this
house and you can't answer. But do you think
that perhaps the reluctance to making this a
3332
permanent program may have a lot to do with
the failure of the Health Department to give
us some statistical information or status as
to the effectiveness of the program,
particularly the cost-effectiveness? Because
we still don't continue to know what the
out-years fiscal impact is going to be without
these reports.
SENATOR MAZIARZ: Through you,
Madam President. Senator, you're correct, I
cannot answer for the other house. I do not
know.
SENATOR HASSELL-THOMPSON: On the
bill, Madam President.
To the Senator, thank you -
SENATOR MAZIARZ: You're welcome.
SENATOR HASSELL-THOMPSON: -- for
indulging me with the questions and helping me
to understand this.
I am a person who has been on both
sides of issues in terms of having to generate
reports on programs and also I've been on the
side where I've requested and required the
programs. And I certainly do not want to take
a cut-and-dried posture that says that this
3333
body ought not to vote for this bill because
of the Health Department's default. And I can
only say that the Health Department is at
default because even if the agencies had not
given us any sense of what's happening in
order for them to generate a report, they
should have given us something that says that
as a fact. That's a report in and of itself,
that we have not been in the program long
enough for us to be able to generate this
information.
Well, one of the things that
becomes very important from a cost perspective
is that when we look at programs, particularly
on a pilot, one of the critical things when -
when the premise is that it's a cost savings,
that's one of the first pieces of information
that we ought to require. Because every time
we do a continuing resolution, as we are doing
in continuing to reenact this, we may be
creating parallel services that are not in
fact cost-effective. And we can't know that.
And six years down the road is pretty late for
us to be trying to figure out what this is
costing to the state, what the fiscal impact
3334
is.
And also when we've got 75 of these
programs that could be providing these
excellent services to other citizens, seniors
within the state, and we're not able to do
that, there is something very, very, very,
very wrong.
But I cannot in good conscience,
even having said all that, deny the
opportunity to seniors to receive these kinds
of services if in fact this is the only
substitute program that they can receive
without having to travel distances from their
homes or from whatever their source of
residence is.
So I am in support of the bill, but
I have some very serious problems that within
a six-year period that we have not conducted
some hearings, some body of people have not
talked with the Health Department to try to
figure out what are the difficulties, what are
the impediments, what are the barriers to
getting this program up and running. And
certainly from a fiscal perspective when we
continue to look at our budget, know that
3335
we're not putting in enough money, and yet
we're allowing expenditures to continue to
occur that we're really not putting a rein on.
And so, I mean, having said that,
it won't change the fact that I will vote for
a continuum. But it will go on the record
that I would like to be a part of any
committee or subcommittee that is called to
investigate what it is that is happening and
what we need to be doing to ensure that this
moves along more readily so that those 75
programs, if they're really successful, can be
implemented more quickly than the first 15
were.
Thank you, Madam President.
THE PRESIDENT: Does any other,
member wish to be heard on this bill?
Then the debate is closed.
SENATOR DOLLINGER: Madam
President, can we call a quorum of the house.
THE PRESIDENT: The Secretary
will call the roll and then ring the bell.
THE SECRETARY: Senator Alesi.
(No response.)
THE SECRETARY: Senator Balboni.
3336
(No response.)
THE SECRETARY: Senator Bonacic.
(No response.)
THE SECRETARY: Senator Breslin.
SENATOR BRESLIN: Here.
THE SECRETARY: Senator Bonacic.
SENATOR BONACIC: Here.
THE SECRETARY: Senator Brown.
(No response.)
THE SECRETARY: Senator Balboni.
SENATOR BALBONI: Present.
THE SECRETARY: Senator Bruno.
(Senator Bruno was recorded as
present.)
THE SECRETARY: Senator Connor.
(Senator Connor was recorded as
present.)
THE SECRETARY: Senator
DeFrancisco.
(No response.)
THE SECRETARY: Senator
Dollinger.
SENATOR DOLLINGER: Here.
THE SECRETARY: Senator Duane.
SENATOR DUANE: Here.
3337
THE SECRETARY: Senator Espada.
SENATOR ESPADA: Here.
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Present.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Present.
THE SECRETARY: Senator Gentile.
(No response.)
THE SECRETARY: Senator Gonzalez.
(No response.)
THE SECRETARY: Senator Goodman.
SENATOR GOODMAN: Here.
THE SECRETARY: Senator Hannon.
SENATOR HANNON: Here.
THE SECRETARY: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Here.
THE SECRETARY: Senator Hevesi.
SENATOR HEVESI: Here.
THE SECRETARY: Senator Hoffmann.
(No response.)
THE SECRETARY: Senator Johnson.
SENATOR JOHNSON: Here.
THE SECRETARY: Senator Kruger.
3338
(No response.)
THE SECRETARY: Senator Kuhl.
SENATOR KUHL: Present.
THE SECRETARY: Senator Lachman.
(No response.)
THE SECRETARY: Senator Lack.
SENATOR LACK: Aye.
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Present.
THE SECRETARY: Senator LaValle.
(No response.)
THE SECRETARY: Senator Leibell.
SENATOR LEIBELL: Here.
THE SECRETARY: Senator Libous.
SENATOR LIBOUS: Present.
THE SECRETARY: Senator Maltese.
(No response.)
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Present.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Present.
THE SECRETARY: Senator
Markowitz.
SENATOR MARKOWITZ: Present.
3339
THE SECRETARY: Senator Maziarz.
SENATOR MAZIARZ: Present.
THE SECRETARY: Senator McGee.
SENATOR McGEE: Present.
THE SECRETARY: Senator Mendez.
(No response.)
THE SECRETARY: Senator
Montgomery.
SENATOR MONTGOMERY: Here.
THE SECRETARY: Senator Morahan.
SENATOR MORAHAN: Here.
THE SECRETARY: Senator Nozzolio.
(No response.)
THE SECRETARY: Senator Onorato.
SENATOR ONORATO: Present.
THE SECRETARY: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Present.
THE SECRETARY: Senator Padavan.
SENATOR PADAVAN: Here.
THE SECRETARY: Senator Paterson.
(No response.)
THE SECRETARY: Senator Meier.
SENATOR MEIER: Present.
THE SECRETARY: Senator Meier, we
3340
have a quorum.
SENATOR MEIER: Thank you, Madam
President.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator
Dollinger, to explain your vote.
SENATOR DOLLINGER: Just to
explain my vote briefly, Madam President.
I think that the comments that I
made to Senator Maziarz, and that were echoed
perhaps by Senator Schneiderman and Senator
Hassell-Thompson, about when do we require the
Executive branch, who we give certain
responsibilities to, to perform consistent
with what we tell them -- and I would suggest
that what we're asking for is nothing more
than a page-and-a-half letter, a simple little
letter that says this program is off the
ground, it's running, Senator Maziarz said
there were 15 groups, there's 75 more,
3341
everybody wants to be in, it's going to be a
great program, and we're doing the one thing
that we set out to do, which is saving money.
I can't for the life of me
understand why a report like that -- it could
be a page, it could be two. We don't need
voluminous records. I'm willing to accept
experts' evaluations of the programs. But we
don't get it, we don't get it after four
years, we don't get it after six years, we
won't get it after eight years, and it will be
twenty years downstream and we'll still be
waiting for the Health Department to tell us
whether it works or not.
I commend Senator Maziarz, because
I think this bill may be important. But I
didn't come here to vote on a "may" or a
belief. I came here to try to evaluate real
evidence and real information.
Madam President, I'll be voting in
the negative.
ACTING PRESIDENT FUSCHILLO:
Senator Dollinger will be recorded in the
negative.
Senator Onorato, why do you rise?
3342
SENATOR ONORATO: Mr. President,
to explain my vote.
ACTING PRESIDENT FUSCHILLO:
Senator Onorato, to explain his vote.
SENATOR ONORATO: I too would
like to commend Senator Maziarz, because I
know he has the best interests of our senior
citizens at heart. But I would like to
admonish the individuals responsible for not
providing a timely report on this matter.
Perhaps we should apply the same rules and
regulations that we applied to ourselves in
this very chamber: if we didn't pass a
budget, we weren't going to get paid. Which
we are now on the very threshold of not being
paid for not, supposedly, performing our duty.
I think the same rules of order
should apply to the agencies that are
responsible for not providing timely reports.
Cut off their salaries until they comply with
the intent of our Legislature.
I vote no.
ACTING PRESIDENT FUSCHILLO:
Senator Onorato will be recorded as voting in
the negative.
3343
Announce the results.
THE SECRETARY: Ayes, 55. Nays,
2. Senators Dollinger and Onorato recorded in
the negative.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
Senator Meier.
SENATOR MEIER: Mr. President,
may we call an immediate meeting of the Aging
Committee in Room 328.
ACTING PRESIDENT FUSCHILLO:
There will be an immediate meeting of the
Aging Committee in Room 328.
SENATOR MEIER: Mr. President.
ACTING PRESIDENT FUSCHILLO:
Senator Meier.
SENATOR MEIER: May we now take
up Calendar 282.
ACTING PRESIDENT FUSCHILLO: The
Secretary will read.
THE SECRETARY: Calendar Number
282, by Senator Hannon, Senate Print 3614, an
act to suspend certain requirements.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT FUSCHILLO:
3344
Senator Hannon, an explanation is requested on
your bill.
SENATOR HANNON: This bill
continues a provision of the Laws of the Year
2000, Chapter 57, to be more precise, for
another year. And it's done in conjunction
with provisions that are being discussed in
connection with the budget and extenders.
ACTING PRESIDENT FUSCHILLO:
Senator Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
if Senator Hannon would yield for a few
questions.
ACTING PRESIDENT FUSCHILLO:
Senator Hannon, will you yield?
SENATOR HANNON: I will yield to
a -- question by question.
ACTING PRESIDENT FUSCHILLO:
Senator Paterson, Senator Hannon will yield.
SENATOR PATERSON: That's
perfectly fine. Thank you, Mr. President.
Mr. President, I'm interested in
the programs this actually affects -- workers'
compensation cases, volunteer firefighters,
health and hospitals, corporations and HMOs,
3345
and the like. What I'm trying to figure out
is if that we're going to continue the
suspension, how does that assist us when
weighed against the budget process itself?
In other words, I thought that what
we did during the budget process is that we
continued certain things that were vital,
paying state workers, meeting our debt
obligations, that kind of thing. How does the
continuing of these suspensions, which I don't
know if I agree with even in the first place,
how does that -- why does that have to be
accomplished if we were theoretically to have
a delayed budget process?
SENATOR HANNON: This is only
parallel to things that are otherwise done in
the budget and agreed to in the process of all
the parties in both houses and the Governor,
and this would just go along with it and
enable it. And any of the specifics would be
done in the substantive portion, not in the
technical portion.
SENATOR PATERSON: Mr. President,
if Senator Hannon would continue to yield.
ACTING PRESIDENT FUSCHILLO:
3346
Senator Hannon, do you continue to yield?
SENATOR HANNON: Yes.
SENATOR PATERSON: Let me be
specific. Let's take the implementation of
Child Health Plus. It says under -- I think
it's subsection ii of Section A of subdivision
7 of Section 2511 of the Public Health Law
that they have to seek networks, they have to
demonstrate the type of care and also to make
sure that the served lived in the geographic
area. Why does the continuation of that
suspension of that part of the Public Health
Law, why is that something that we have to do
during the budget process?
In other words, you told me
specifically why we do it. But what I'm
trying to get, Mr. President, is the meaning.
If we're going to in a piecemeal approach put
things together that otherwise would be the
same if we had a budget process, we're almost
changing the budget process. And while we're
hurting the state, we're not really having
what I would think would be the heightened
tension that there should be about not meeting
our obligation, the public trust that we pass
3347
the budget.
If we do it for essential services,
I understand it. But why in this particular
section of the law, the one that relates to
the implementation of Child Health Plus, why
do we have to do that now? Why can't we just
wait until after the budget is passed?
SENATOR HANNON: In allowing
benefits to flow to kids in this state, these
technicalities, it's been determined, aren't
needed.
SENATOR PATERSON: Mr. President,
if Senator Hannon would continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you continue to yield?
SENATOR HANNON: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR PATERSON: Senator, I can
make a case for why the suspension actually
inures to the detriment of kids. In other
words, if we're saying that the people who run
these programs don't have to make this
information available, if we're suspending the
obligation that exists under Section 2511 of
3348
the Public Health Law, we're actually granting
them a benefit, not the kids.
I thought the suspension was due to
some issues that decreased some of the
encumbrances upon them for a period of time.
But I don't even understand in the first place
how that is a benefit by continuing that
suspension that we -- in this case we started
in the Laws of 1999.
SENATOR HANNON: This suspension,
as you've noted, and which you've voted for in
the past, has enabled us to grow the number of
kids by tens of thousands per year in this
state, and obviously it's worked.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield?
SENATOR HANNON: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR PATERSON: Let's say we
discontinued the suspension and we continued
the mandate that's offered by the Public
Health Law that these organizations have to
3349
give this information. How does that hurt
kids, how does that diminish the number of
kids that are in the program?
SENATOR HANNON: That's not a
question, that's a statement. And I have
already said that's not a point of view that I
agree with.
SENATOR PATERSON: Mr. President,
it's my understanding that Child Health Plus
increased due to the -
ACTING PRESIDENT MARCELLINO:
Senator Paterson, are you asking the Senator
to yield?
SENATOR PATERSON: Yes, I am, I'm
sorry.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield?
SENATOR HANNON: Oh, I'm sorry, I
didn't know that. Yes, I'll yield.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR PATERSON: I apologize to
Senator Hannon, Mr. President.
SENATOR HANNON: No, I just sat
down. I mean, I thought you were on the bill.
3350
SENATOR PATERSON: Okay. I
thought that the immense increase in the
numbers of participants in Child Health Plus
came from the outreach. If I'm not mistaken,
how does forcing the organizations to comply
with what is set forth in Section 2511 of the
Public Health Law, how does that hurt
outreach? In other words, it is a question:
How does not continuing this suspension hurt
the area of Child Health Plus?
SENATOR HANNON: It doesn't. I
mean, if it doesn't, therefore there's no
question to answer.
SENATOR PATERSON: Then the
question, Mr. President, if the Senator would
continue to yield -
ACTING PRESIDENT MARCELLINO:
Senator, do you continue to yield?
SENATOR HANNON: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR PATERSON: -- is why do
we have to continue these suspensions during a
budget process if it's nonessential?
SENATOR HANNON: They're in law.
3351
When we negotiate the substantive part of each
of the benefits, it has been determined in the
past that we don't need these technical
provisions, and so we're continuing the
suspension.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you continue?
SENATOR HANNON: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR PATERSON: But, Mr.
President, we just heard that though they may
be technical provisions, and though maybe in
the end we really don't need them, we're not
necessarily hurt. In other words, it's an
inconvenience, is what I'm hearing.
And what I'm saying is during the
budget process, I would think that if we were
going to be making special provisions for
certain operations of government during the
budget process that we don't need these types
of technical provisions to be included, we
could do it. You know, we could do it. I
3352
don't think it would hurt, necessarily. But
why do it at a time when we're in the regular
budget process? That is the question. I
don't think I've heard a significant answer
from the Senator. I want to know why it is so
essential that we do this.
SENATOR HANNON: Sometime within
the next few days, the budget year will end.
And with it the authorization for a number of
programs will end, including CHP. This
provision is being passed because I believe
we'll have to address such things.
I don't know if it will be
absolutely needed. That's being discussed
now. But in the event it is, I'd rather have
this technical bill in place, I'd rather have
those provisions out of the way. If someone
feels a specific part of the ultimate
negotiations on the substance should get
flagged, should go through the notification
process, well, then we can accommodate it
then.
But there are many technical
provisions that drive the enormous billions of
dollars into our health care system, some
3353
state technical provisions, some federal. And
it's just -- we just needed to get these
addressed at this point in time because, as I
said, the fiscal year ends and at some point
in time we need to get funds to health-care
providers throughout this state so they can
continue to take care of your constituents and
my constituents, Senator.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: On the bill,
briefly -
ACTING PRESIDENT MARCELLINO:
Senator Paterson, on the bill.
SENATOR PATERSON: -- because I
probably want to talk to Senator Hannon
further about some of the other affected
programs, particularly the Article 43
corporations and what their duties are, and
particularly the Commissioner's obligations to
the Workers' Compensation Board to set rates.
And what I'm just saying
preliminarily, because I think Senator Hannon
could persuade me to vote for this
3354
legislation, but I'm just not hearing a
reasonable solution to the dilemma that I'm
having, which is that we try to restrict those
pieces of legislation that we are going to
enact for the operation of government to those
essential items which I think the public
needs. And what Senator Hannon may be
implying is that this is somewhat of a
necessity.
I think that I regard the value of
CHP as highly as Senator Hannon does, and I
certainly want us to have that program. But I
don't see how the obligation of organizations
to declare what their networks are, to discuss
the geographic location of their service and
what type of services they provide, I don't
know how their unwillingness to do that
affects the program or their unwillingness to
meet the deadline causes the program to shut
down. I just don't see it.
And so I'll look forward, in the
discussion with Senator Dollinger and others,
to see if Senator Hannon might be able to make
me feel a little more assured that this would
be a good thing to do at this time. I don't
3355
necessarily want to put something in place
technically that we aren't going to need later
on. And maybe if I were presented with a
scenario of how some succeeding discussion or
lack of negotiation would cause us to lose
some of these services, I would understand
that. But I'm -- you know, when it comes to
paying state workers, when it comes to meeting
our obligation debt to try to keep our
interest rates down, some kind of program that
we need in the future and it would be lost by
the months that we take away from the process
by negotiating the budget, I can see those.
And I've voted for them in the past.
On this one I'm just not quite as
assured. And I did vote for it in the past.
I'm glad I've taken a second look at it. But
I'll listen to the discussion.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. Will the sponsor yield? I
have just two real brief questions.
ACTING PRESIDENT MARCELLINO:
3356
Senator Hannon, do you yield to two brief
questions?
SENATOR HANNON: I'll yield to a
brief question.
SENATOR DOLLINGER: Through you,
Mr. President, what was the rationale -- and I
assume this was done in the last year's
budget -- for the suspension of these
requirements? I mean, we obviously put these
requirements into law and then we said, okay,
for some reason we're going to suspend their
application for a period of time, which I
assume, since this is a budget-related item,
was for at least a year. What was the
rationale just to suspend it in the first
place?
SENATOR HANNON: I think it more
related to initiation of a change in the
program. There has been no change in the
program, so -- last year, so it was put in.
And at the moment, we don't have any changes
in the program, so we don't -- we may not need
them.
SENATOR DOLLINGER: Okay.
SENATOR HANNON: But it's a
3357
static thing.
SENATOR DOLLINGER: And through
you, Mr. President, just one other question.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield for another question?
SENATOR DOLLINGER: Senator, do
you see in your position as the chair of the
Health Committee that there's any reasonable
prospect, either in this budget or at some
point, where the suspensions would be lifted
and the new regulations or the new portions of
law would then take effect and we would be in
the presuspension period in which those
original rules were -- would take effect?
SENATOR HANNON: I would think if
the original policies and notifications were
appropriate in any way, given the widespread
interest and the well-debated interest we have
in the field throughout the state, that we
would either put these back or we'd have
something comparable to them.
SENATOR DOLLINGER: Okay, thank
you, Mr. President. And I appreciate the
comments of the chairman of the Health
Committee.
3358
I'm going to vote in favor of this
bill. I -
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, on the bill.
SENATOR DOLLINGER: Thank you,
Mr. President.
I think this bill highlights the -
both the complexity of health policy which
finds its derivation in part in statute, in
that we, as I think the chairman of the Health
Committee has laid out, set certain standards
and certain requirements and then ran into a
new series of programs in which we were going
to try to make a quick adaptation, we were
going to try to move with some speed. And
therefore we said to them we're going to lift
the earlier restrictions that we imposed, the
requirements for notice and other things. We
decided, in order to allow new programs to
move quickly, we suspended the effect of
certain restrictions onto these new programs.
I think if we're going to continue
to be flexible in our health care policy, if
we're going to allow new ideas to get into the
public debate, sometimes we have to put a
3359
suspension of certain rules and regulations
that may apply to well-established plans.
I think this, at least as I
understand it, is justifiable. My only
regret, Mr. President, is that once again it's
late March and once again we're probably going
to do a couple dozen chapters that will look
somewhat similar to this one, in that they
will be derivative from the prior year's
budget because our budget will not get on done
on time. The experimentation that this
specifical proposal was designed to encourage
obviously -- and I trust the judgment of the
chairman of the Health Committee -- should
continue, but we're not going to have a full
debate of the continuation of that program in
the context of a budget in which we would
actually appropriate the funds to make it go
and where we would put our money behind our
policy judgment.
So I'm going to vote in favor of
this, Mr. President. But I just think it's
unfortunate that at this time of tremendous
change in the health care system we don't seem
to be able to get our budget done on time and
3360
we don't know whether this will end up being
permanently suspended or at some point
reinstated, all of that left up to further
discussions probably later this summer.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
I was wondering if Senator Dollinger would
yield for a question.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, do you yield for a
question?
SENATOR DOLLINGER: Certainly,
Mr. President.
ACTING PRESIDENT MARCELLINO: I'm
shocked.
Senator Paterson.
SENATOR PATERSON: Mr. President,
the Health Commissioner, under I believe it's
Section 2807 of the law, one of the
commissioner's obligations is to notify the
hospitals of what -- or is to notify them of
what the schedule would be for their and HMOs'
reimbursement rates. I'm not stating it
3361
exactly correctly.
But is this a serious enough
situation that the suspension of this is
important during the negotiation of a budget
period?
SENATOR DOLLINGER: Well, through
you, Mr. President, I don't know. I think
what we have done is we have suspended the
effect of that rule, the requirement that the
Health Commissioner submit those rates to the
Workers' Compensation Board. We had put a
suspension in place, according to my
understanding, in the last budget. So we've
already suspended it for a year. The question
is whether we continue to suspend it for a
longer period of time until we resolve the
next budget.
And from what I hear from the
chairman of the Health Committee, that is in
fact what the Health Department wants to do
and would also continue the flexibility for
other new ideas in the health care system of
which in part this was suspended, to give more
flexibility in that rate-setting process.
That's my understanding, Mr. President.
3362
SENATOR PATERSON: Mr. President,
if Senator Dollinger would continue to yield.
SENATOR DOLLINGER: I will, Mr.
President.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR PATERSON: Senator, I
understand that institutionally it would
probably be more suitable to continue the
suspension as it is because it has a benefit.
But what I'm saying is, the whole issue of the
budgeting process, to me, doesn't hold the
value that it used to. There used to be a
great amount of fear and anxiety on the part
of legislators as to what was going to happen
if they didn't pass the budget on time.
They'd stop the clock if they went a day
later. There were actually legislators who
were afraid they might not come back the next
year.
Because of just what I consider to
be the vanquished nature of some of the
process, my contention is that only the
essential services should be preserved in a
period where we are continuing to negotiate
3363
the budget. And that these shrill ideas about
not paying people and the like are not really
the answers to trying to get the budget passed
on time. I think we all know realistic
solutions. Senator Connor mentioned one in
here last week about how they chose a pope.
And we could pass a budget in the same period
of time -- I wouldn't take away their food and
water, but it could be done.
And what I'm saying to you is, do
you know of what could be the possible
detriment to the state by not making the
Commissioner approve the reimbursement rates
for hospitals and HMOs and to schedule the
rates as per the Workers' Compensation Board?
Do you know exactly what it is that is going
to be so harmful that we can't wait until the
budget period passes?
SENATOR DOLLINGER: Through you,
Mr. President, I do not. I don't know, I -
SENATOR PATERSON: Senator, I
heard Senator Hannon said that it sounds like
him, and it sure sounds like him to me.
SENATOR DOLLINGER: I've been the
ranker on the Health Committee for too long,
3364
Mr. President. I'd like to be the chair.
(Laughter.)
SENATOR DOLLINGER: Through you,
Mr. President, just in perhaps a more complete
answer, my expectation would be -
ACTING PRESIDENT MARCELLINO:
Senator, don't feel that you have to.
(Laughter.)
SENATOR DOLLINGER: Well, I
just -- I will add it for Senator Paterson's
edification. Obviously the posting of those
rates creates certain legal obligations and
certain rights. We are affecting the rights
of third parties when we say to the Health
Commissioner: You have to post those rates,
you have to give them to the Workers'
Compensation Board, those are going to be the
rates that are going to be charged by the
carriers.
If that's not done, then we affect
their substantive rights; I presume, the
obligation to pay those rates. And we have
created, as certainly, I think, Senator
Paterson I know well knows, the chairman of
the Health Committee well knows, it's a very
3365
complicated system of balancing the rights of
obligors and payors and recipients, and it's
not uncharacteristic for the courts of this
state to say that if you don't strictly comply
with each and every little requirement, you
can't be paid or you don't have an obligation
to pay or you don't have the obligation to pay
at that rate.
Given the complexity of those legal
obligations, what I understand this bill to do
is to say we have suspended some of those
obligations to create greater flexibility in
the rate-setting process and not that rigid
adherence to certain obligations at certain
times. As a consequence, we're continuing
that suspension for a period of time.
And the practical consequence,
Senator Paterson, I think could be -- and
again, I've suggested that my thoughts may not
be determinative for this body -- but if we
don't continue the suspension, we'll go back
to these very well-defined rules that will
have to be complied with immediately, and if
there's a failure on the part of any one of
the payors or recipients, we will create legal
3366
problems for them in the future.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: Mr. President,
if Senator Dollinger would continue to yield.
SENATOR DOLLINGER: Yes, Mr.
President.
ACTING PRESIDENT MARCELLINO: He
continues to yield.
SENATOR PATERSON: Since the
always prepared and very diligent Senator
Hannon didn't have much more of a thought
beyond yours, and you being usually quite
loquacious, I'm frankly surprised that neither
one of you has been able to at least give me
some history of why we know that this
situation would happen in the past.
For instance, Article 43 Insurance
Law corporations, they have an obligation to
submit, within 60 days, a schedule of their
rate payments for in-hospital patients. Now,
to me that doesn't sound like the hardest
thing to do. They just have to tell you what
the rate payments are going to be for
inpatient care. If they don't tell you within
3367
60 days, they are not complying with this
section of the law.
Now -- but even if that's the case,
have we any history of the complicated nature
of trying to reconstruct some of these
obligations because some of the suspensions
were deferred in the past that makes us know
that this would create a red tape or a
bureaucracy even after we passed the budget
such that it would hurt constituents or
inpatient services for people who are in the
hospital?
SENATOR DOLLINGER: Through you,
Mr. President, I have no specific knowledge of
the kinds of complications that Senator
Paterson makes reference to.
But as I understand what we did,
one of the things we did in the original
suspension was to give greater flexibility to
insurance companies in posting their rates and
negotiating their rates with recipients,
whether it's hospitals or ambulatory surgical
centers or physicians or nurses, other
health-care providers. And the whole point
was to get away from the notion that when you
3368
had a rate you had to go to the Health
Department to file it and you had to get
approval for it before you could charge it.
Instead, what we wanted to do was to get to a
system of health care in which providers and
payors could more freely negotiate those rates
without the constant overview of the State
Health Department or the State Insurance
Department, and provide them with greater
flexibility.
So at least to my understanding of
this bill, that's in part what it's designed
to do, is to say we're going to do away with
all those little rules and try to get more to
the substance of here's what I'm going to
charge you, here's what you're going to pay,
let's negotiate that. Once we've got a deal,
buy and sell those services on the open
market.
SENATOR PATERSON: Mr. President,
if Senator Dollinger would yield for a final
question.
SENATOR DOLLINGER: Glad to, Mr.
President.
ACTING PRESIDENT MARCELLINO: I
3369
believe he yields.
SENATOR PATERSON: Senator, I
guess the question I want to ask you is, if we
are institutionalizing the suspension of these
rules, which no one, not the chair of the
Health Committee, the ranker on the Health
Committee -- I'm tempted to ask Mr. President
himself -- but no one can really give me a
concrete problem that's going to result.
There is some speculation. But I wonder if it
isn't somewhat remote to the actual process
that it's going to be that much of an
inconvenience to the insurance companies, to
the Commissioner of Health, to the others who
are obligated, even the networks for Child
Health Plus, for goodness sakes, the fact is
that since I -- I can't be persuaded that
there is something really tangible that's
going to happen.
Why don't we then put a task force
together and take a look at the sections of
the law that are creating too much of an
obligation to the detriment of the parties
that are involved here, and why don't we think
about just repealing those sections? We might
3370
not need for -- we might need more flexibility
in the system than we have right now.
SENATOR DOLLINGER: Well, through
you, Mr. President, I think the chairman of
the Health Committee, in -- and I won't
certainly speak for him, but I think he
suggested that that's one of the options in
the budget process, is that we might decide to
do that.
I think -- and I agree with you in
one respect, Senator Paterson, I don't -- I
haven't heard articulated a substantial reason
for continuing the suspension. But at least
at this point I'm satisfied that since,
according to the chairman of the Health
Committee, what we're doing is simply
continuing it until such period of time that
we can look at it in the context of the
budget, that I'm willing to go along with
that.
I know -- and I think you and I
talked about this when we did Senator
Maziarz's bill, that I'm one of those who
continues to look for justifications from the
Health Department and others why we
3371
continually do the extenders and now we're
doing a continuing suspension, which is like
an extender except we're not extending the
law, we're extending the suspension of the
law. It gets enormously complicated.
And I can appreciate the fact that
the administration comes to the Health
Committee and says, We need these bills passed
because there were time restraints put in the
version of the budget or in prior law, we need
continuing time to evaluate these. But it
seems to me that in this case I'm willing to
take the chairman of the Health Committee's
word when they say we need this suspension to
continue it for a period of time until it can
be evaluated in the context of the budget.
And when we do the budget, Lord
knows I'll probably get up and ask the
chairman of the Health Committee where is that
deal with the suspension or discontinuance of
those regulations, and I'm sure he'll be
well-prepared and ready to answer me virtually
word for word.
So my sense is, Senator Paterson,
there is no substantial justification that's
3372
been laid for continuing this, but it's enough
to justify doing it until the budget process.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator Dollinger.
SENATOR PATERSON: Mr. President,
on the bill.
ACTING PRESIDENT MARCELLINO:
Senator Paterson, on the bill.
SENATOR PATERSON: You know, I
really think that there is probably some very
good reason for why we need to continue these
suspensions. I just didn't believe I heard
the reason.
I think that, in very good faith,
that Senator Dollinger and Senator Hannon are
relying on professionals in the field and
administrators who recognize that the removal
of these technicalities would create further
confusion and that even when we pass the
budget, that they will be months into the
process trying to work out the details of what
may have been easier remedied by just
continuing the suspensions and creating the
legal fiction that the budget had already
3373
passed.
So, you know, I suppose that I can
go along with my colleagues. They know the
area better than I. But I do want to suggest
that something that Senator Dollinger may have
inadvertently raised is something that we need
to pay attention to. And it was the issue
that came up in the previous legislation, that
administrators often give you reasons that you
don't want to challenge because the area is
more familiar to them than it is to you. But
what we have to look at in the end is the
inevitable results. And what we saw in a
previous piece of legislation, as Senator
Duane pointed out, was five or six years of
reliance, to our detriment, on promises that
were made by a number of agencies with very
little results.
Now, I don't think that is nearly
the case here. I think that it may just be
that this is an easier way to solve the
problem and the Legislature just goes along
with it. But what I'm saying is some of the
obligations that were set forth in this
legislation are not the hardest thing to have
3374
accomplished. And I really wonder, you know,
what the benefits are going to be to volunteer
firefighters. Did that have to be included in
the legislation? I really don't, you know,
understand what that would have to be. Motor
vehicle requirements that I think seem pretty
easily set forth, and what the insurance
reparations are in those situations, I don't
see that as the most difficult process either.
So I'm just saying that I hope that
before we enact some of this legislation that
continues the suspensions, that not my
colleagues but that the professionals will
make themselves a lot more clear about what
the benefit is and, if necessary, what is
going to be the injury if we don't accomplish
it.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator.
Any other Senators wishing to heard
on this bill?
Seeing none, the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
3375
act shall take effect immediately.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
Senator Meier.
SENATOR MEIER: Mr. President,
may we now call up Calendar Number 275.
ACTING PRESIDENT MARCELLINO: The
Secretary will read.
THE SECRETARY: Calendar Number
275, by Member of the Assembly Grannis,
Assembly Print Number 5798, an act to amend
Chapter 2 of the Laws of 1999 amending the
Legislative Law.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT MARCELLINO:
Senator Rath, I believe an explanation has
been asked for.
SENATOR RATH: Thank you, Mr.
President.
At the end of '91, the bill, which
extends the Lobbying Law, contained provisions
3376
which required lobbyists who lobby municipal
entities to register with the Lobbying
Commission, and it established a five-member
advisory council for municipal lobbying.
Unfortunately, the council
appointments weren't made before the council
expired at the end of 2000. And this bill
revives the council, which is expected to
gather information and make recommendations on
implementing the municipal lobbying
provisions.
SENATOR OPPENHEIMER: Madam
President -- Mr. President.
ACTING PRESIDENT MARCELLINO:
Let's not go there.
Senator Oppenheimer, why do you
rise?
SENATOR OPPENHEIMER: I think I
have to improve my lenses.
If the Senator would yield for a
couple of questions.
ACTING PRESIDENT MARCELLINO:
Senator Rath, do you yield?
SENATOR RATH: Sure.
ACTING PRESIDENT MARCELLINO: She
3377
yields.
SENATOR OPPENHEIMER: I really
love this bill, and so I'm concerned why we
didn't have appointments made to the advisory
council. It doesn't seem like it should be a
very difficult thing to do.
SENATOR RATH: What happened was
that, as can you see, the numbers of the
jurisdictions that were to send in
recommendations, everyone was slow and
delayed, and we did not get the names in on
time for us to move forward and get that
pulled together.
SENATOR OPPENHEIMER: Through
you, Mr. President, how long do you think it
should take to get those appointments made?
Are we going to see this come back again as
not having been accomplished?
SENATOR RATH: Well, you know,
the first time you do anything, I think it
takes people a while to get the idea that they
really need to do it and that they need to get
it pulled together. I think we can be very
firm this time in insisting that those names
come in so that we can move forward with this.
3378
SENATOR OPPENHEIMER: And through
you, Mr. President, the extender is through
October '01? What's the extender to?
SENATOR RATH: Okay. April 1,
'02.
SENATOR OPPENHEIMER: Oh, sorry,
I just -
SENATOR RATH: And to back up on
your other question, Senator Oppenheimer, all
the people who are to be appointed now know
they are to be appointed. They have been
asked if they will serve. So this is ready to
go.
SENATOR OPPENHEIMER: Through
you, Mr. President, is this going to be a
cross-section of the municipalities across our
state so that we'll have some rural and some
suburban; in other words, have a variety of
designations?
SENATOR RATH: Let me check on
that.
The traditional local government
organizations are going to be presenting their
recommendations, the Association of Towns,
Association of Mayors, Association of County
3379
Governments. And so they will have a
representative selection of people that will
represent their interests.
SENATOR OPPENHEIMER: I hope so.
Through you, Mr. President, I
wonder why the bill is limited to communities
just over 50,000. Because, you know, I was
the mayor of a 20,000-person community, and I
think our community could benefit, smaller
communities could benefit from this
legislation.
SENATOR RATH: That provision
appeared in the original bill, and so the
extender is just carrying that forward.
SENATOR OPPENHEIMER: Might you
consider an amendment that would bring the
number lower? I mean, certainly the condition
exits that lobbyists have input even in
smaller communities where some of the
contracts are fairly large-sized.
SENATOR RATH: The bill, Senator
Oppenheimer, originated in the Assembly. And
it's a three-way agreed-to bill, so it's ready
to go.
SENATOR OPPENHEIMER: At some
3380
point, perhaps an amendment.
Did any municipalities -
ACTING PRESIDENT MARCELLINO:
Senator Rath, do you continue to yield?
SENATOR OPPENHEIMER: I'm sorry.
Through you, Mr. President.
ACTING PRESIDENT MARCELLINO: She
yields.
SENATOR OPPENHEIMER: Were there
any hearings held by municipal governments
concerning this bill? And if so, what was the
feedback that you got?
SENATOR RATH: Through you, Mr.
President, no, there were not that I know of.
Because they were as anxious as we were to
provide guidance. And once this council sets
up, they will be able to develop the questions
and the guidelines so that they will have the
same kind of guidance that people were looking
for as we were looking for it.
SENATOR OPPENHEIMER: Through
you, Mr. President, if the sponsor would yield
again.
SENATOR RATH: Surely.
SENATOR OPPENHEIMER: Do you have
3381
an idea of the kind of regulations that would
come out of this or the guidelines that would
come out of the advisory consensus, the
committee's consensus?
SENATOR RATH: No, I don't,
Senator. I believe that's why we're setting
them in place. Because local governments, as
you noted a moment ago, are very often dealing
with much smaller constituencies. And so many
of the regulatory kinds of things that we deal
with here on the state, that we deal with
lobbyists for, because they're coming in and
out in order to advise us of their opinions on
the issues, they really don't get to the legal
governments in the numbers that they do here,
certainly not in the volume, and with the
amount of work that happens in a State
Legislature.
But there are occasions where, yes,
it is appropriate that they're working with
local governments, and they needed some help.
And I think once that council is set up, they
will look to our experience and then modify it
according to what their needs are.
SENATOR OPPENHEIMER: I find that
3382
at the local level sometimes lobbyists are not
so defined. And I think we could perhaps go
back and do another bill that would define
what it means to lobby at the local level,
which is different from what is happening
here. Which brings me to my last question.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield for another question?
SENATOR RATH: Yes.
ACTING PRESIDENT MARCELLINO: She
yields.
SENATOR OPPENHEIMER: And that
is, is the purpose of this to develop a public
awareness of government, of lobbying's effect
on government, and keeping the whole system
open and honest? Would you say that is a
primary -
SENATOR RATH: I think, Senator
Oppenheimer, the intention of all of the kinds
of regulations in relation to the lobbying, no
matter which level of government it's at, is
that certainly there an openness and a
willingness for all of us to participate in
that openness. And I don't think the
intention of this council states it as such,
3383
but it's all inherent in just the legislation
that's set all of this in motion.
SENATOR OPPENHEIMER: Thank you.
Thank you, Senator.
On the bill.
ACTING PRESIDENT MARCELLINO:
Senator Oppenheimer, on the bill.
SENATOR OPPENHEIMER: As I said
when I started off, I think this is an
excellent piece of legislation, the original
bill and the extender now. And I just hope
that the appointments will be made in a timely
fashion now that people have been notified
that -- or they have been sought for the
advisory council. Because this is something
that really ought to have been in place a
while back. And, you know, we want to keep
all our levels of government as open and as
honest as possible, and that includes the
municipal level.
So I applaud the Senator on this
bill and hope that we will move ahead
expeditiously now.
ACTING PRESIDENT MARCELLINO:
Senator Stachowski.
3384
SENATOR STACHOWSKI: If the
Senator would yield for a couple of questions.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield for a question?
SENATOR RATH: Surely.
ACTING PRESIDENT MARCELLINO: She
yields.
SENATOR STACHOWSKI: I noticed
Senator Oppenheimer asked you something in the
general area of the question I'm going to ask.
But do you have any idea why six months wasn't
enough time to make the appointments to this
council the first time around?
SENATOR RATH: No, I don't.
Except that the requests were made and the
information was not sent back in, the
appointments were not sent back in.
SENATOR STACHOWSKI: Mr.
President, through you, I'm not sure I
understand. The request for the appointments
was made -
SENATOR RATH: Yeah. For the
associations that were to make recommendations
with names, send the names in for the
appointments.
3385
Now that has been accomplished.
The associations have managed to get through
their membership. And I think they probably
would want to make sure that they had someone
representing their interests on a broad -
someone who had a broad understanding of
municipal government at the different levels.
So I think that that maybe took them a while.
SENATOR STACHOWSKI: Mr.
President, if the Senator would continue to
yield, were there certain groups that were
named that -
SENATOR RATH: Yeah, we said a
moment ago. NYSACG, NYCOM.
SENATOR STACHOWSKI: Sorry, I
missed that part.
SENATOR RATH: The Association of
Towns.
SENATOR STACHOWSKI: With the
names being sent in now -- Mr. President, if
she'll continue to yield -
SENATOR RATH: Yes.
SENATOR STACHOWSKI: -- do we
anticipate that the Governor will in fact now
make these appointments based on the
3386
recommendations he gets, or will he want to
select his own person from that group if he
doesn't happen to care for the one they send?
And if he does, then we can anticipate that
the council will put regulations together that
will take the kind of burden that now exists
on the people that have to do business with
local governments, because they're not sure
about what they're supposed to be doing
currently as far as any kind of reporting if
they have to deal with local governments?
SENATOR RATH: Senator
Stachowski, yes, to your first question, I
expect that these people will be appointed
immediately.
And to your second comment, which
may have been a question, I'm going to make a
recommendation that you be the first one to
address them, because the way you described
what they should be doing sounds exactly like
what they should be aware of. I mean, you've
had a lot of experience. And I'm not doing
that as a tongue in cheek. What I'm saying is
that you've is got it right on.
SENATOR STACHOWSKI: On the bill.
3387
ACTING PRESIDENT MARCELLINO:
Senator Stachowski, on the bill.
SENATOR STACHOWSKI: Briefly, I
appreciate you being so nice to me on that.
But I've been on Ethics since it started, and
I think I had enough just having to do with
the commission. So I think I'll let the
Governor handle his own council. And I don't
want to interfere with local governments. I
think that they should give as much advice as
possible. Hopefully that they'll come up with
some good regulations to oversee local
governments.
It's unfortunate that this wasn't
carried out in the six-month time frame that
the original bill said they should have done.
I really don't understand why, since most of
these organizations that are listed -- and I
thought there were organizations, that's why I
asked. I just -- sorry I missed the answer
rather than having to go back and read the
bill.
They always have so many
suggestions for things we should be doing that
it was kind of interesting to me that they had
3388
this one opportunity to send a name in and six
months wasn't enough time for them to do it.
Kind of interesting to me.
But hopefully they'll get the
appointments that they want and get the
council together and get their awareness of
what the problems are that they may or may not
face. And hopefully out of that they'll come
up with regulations that will be appropriate
and in the good nature and spirit that we like
these ethics things to be in. Not so much as
a witch-hunt as something to give advice so
that people don't get themselves in trouble,
as opposed to trying to find ways that they
are in trouble already.
But hopefully it will work that
way, it will be helpful to local governments,
and it'll give them the guidance necessary so
that nobody will get themselves in trouble.
And for that reason, I'll probably support
this bill. But I'm really disappointed that
those particular groups couldn't get their
names in a six-month period, because it seems
like an awful long period of time just to come
up with a name to be appointed to a position.
3389
ACTING PRESIDENT MARCELLINO:
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. Will the sponsor yield to a
question, please.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield?
SENATOR RATH: Surely.
ACTING PRESIDENT MARCELLINO: She
yields.
SENATOR DOLLINGER: Senator, on
page 2, line 8 of the bill it talks about the
provisions of Section 3 and Section 4 of the
Lobbying Law that were set to expire and that
already have expired as an operation of law.
And it says that we're going to extend the
expiration date to December -- October 1,
2001. Could you tell me what these provisions
are that we're bringing back to life, since
they were dead as of December 31st?
SENATOR RATH: One moment.
It was the provision that
established the advisory commission.
SENATOR DOLLINGER: It was that
Section 3.
3390
SENATOR RATH: Advisory council
for municipal lobbying, Section 3.
SENATOR DOLLINGER: And what was
Section -- through you, Mr. President, if -
ACTING PRESIDENT MARCELLINO:
Senator, do you continue to yield?
SENATOR RATH: Surely.
ACTING PRESIDENT MARCELLINO: She
does.
SENATOR DOLLINGER: What was
Section 4? Through you, Mr. President.
SENATOR RATH: The functions and
powers and duties of the advisory council.
SENATOR DOLLINGER: Through you,
Mr. President, will the sponsor yield for one
other question.
SENATOR RATH: Surely.
ACTING PRESIDENT MARCELLINO: I
believe she yields.
SENATOR DOLLINGER: What was the
advisory council going to do that it would go
out of business and it wouldn't be needed
anymore?
SENATOR RATH: Well, I believe it
was just the authorization to appoint them
3391
that went out of time.
And also, after they issued their
report, they no longer have a function.
SENATOR DOLLINGER: Oh, okay.
Thank you, Mr. President. And I thank the
sponsor as well. I'm going to -
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, on the bill.
SENATOR DOLLINGER: The more I
peel back these bills, the more I vote against
them. I'm going to vote against this one as
well, and let me tell you why.
We continue to use the world
"shall." The Governor agrees with us when we
use the word "shall," the council shall be
appointed in six months and produce a report.
Except the problem is that this Legislature
has obviously decided that the word "shall"
really means may, at his own discretion,
whenever he wants. Because that's what the
Governor has done. The Governor gets a bill
from us, a law -- a bill, it says he shall
make the appointment. He signs the bill,
obligating himself to do it, and then doesn't
bother to do it.
3392
Much like in the case of Senator
Maziarz, I've got to figure out who on the
second floor gets delegated the power to
create the local council on lobbying.
Somewhere someone must have been told: You
shall get this done. And someone, probably in
the council's office, in the appointments
office, said, guess what, it goes to the
bottom of the priority level. Because it
didn't get done.
And I would just suggest when the
New York State Legislature and the Governor
agree to use the word "shall" in a statute,
and they say you shall make the appointments
in six months, and six months after you've
made it, it shall expire and have no
continuing validity because its work will be
done, I would suggest that everyone in this
state, from the Governor on down, all of us
being people bound by law, should do it.
This is the second time today in
which we've debated a bill in which we said to
the Executive branch, You shall do something,
and we're extending the time to do it because
they never got around to doing it. I would
3393
suggest, Mr. President, that when we use the
word "shall" we ought to say, as every one of
our schoolchildren watching knows, that
"shall" means you must. It doesn't mean you
may whenever you want to, it means you must.
The Governor must do it, it must be done.
That's the power of law.
And someday we'll use the word
"shall," we'll say insurance companies shall,
and they'll say, Well, it doesn't mean we have
to, because the Governor of the state doesn't
have to do it when you tell him he has to do
something. And someone will someday say, You
shall go to jail if you do this, and one of
our citizens will say, Well, you don't really
mean you got to. It doesn't mean the Governor
has to. It means the Governor doesn't have to
follow what the Legislature says. If the
Governor doesn't have to follow it, neither
does anyone else, neither do our collection of
people in this chamber, neither do we.
I would suggest we set a horrible
trend by using the word "shall" make
appointments, that committee shall produce a
report. They did neither. And we're now
3394
saying oops, it really only meant may, it
really only meant you could do it whenever you
wanted to. And guess what, you can always
come back and ask for more time, and we'll
always give you more time. I would suggest
let's stop using the word "shall" if we really
mean may.
As for me, when I use the word
"shall" in a statute, I'm going to cast my
veto that it means you must. And until we
agree that "shall" means "must," I'm going to
vote against this bill.
ACTING PRESIDENT MARCELLINO:
Senator Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
on the bill.
I wish Senator Dollinger had been
as persuasive on the last bill in convincing
me of the value of his argument as he is here.
But I think that what he's raising really
speaks to what is a breakdown of the
institutional integrity that has affected
government and I think affects the people that
we actually serve.
There was a time when legislative
3395
session was scheduled for a particular time,
and we just started any old time. And
lobbyists came here to see us, and constituent
groups came here to see us. And I must give
credit where credit is due. It was the
Majority Leader, Senator Bruno, in 1995 who
wanted to change that process. And we start
our sessions on time now and have really
firmed up some of the obligations that we
have.
And as a designee of Senator
Connor, he is usually in this chair, and he
has spoken many times on this floor about that
same obligation that we have to the public.
What makes it is seasonable to this
particular case is the fact, Mr. President,
that this was a law that was set up to
determine what actually is the responsibility
of public servants, legislators and the like,
with respect to the passing of legislation
itself. In other words, it wasn't a
substantive law that we were actually thinking
about changing, it was the process. So to
have a violation of a process on a bill that
cures process to me just enhances the
3396
criticism that we have to endure.
In Section 3, which Senator
Dollinger referred to, there actually was a
double deadline. There was a six-month period
that was set up for appointment of the
council, and then there was an expiration of
the time that you could appoint a council, and
that was even six months after that. Both
deadlines were not adhered to. There was no
compliance even in what were the roles and
responsibilities of the council set up in
Section 4, and even that had to be extended
and rewritten and reinstated into the law that
we're passing here today.
The fact is that it was a highly
publicized incident that brought us here to
even talk about ethics in terms of lobbying
and campaign finance in 1999 in the first
place. We wouldn't want the public to think
that the only time that we address issues is
when we as an institution feel some
embarrassment because of some type of
incident. But at the same time, our failure
to comply with the obligations that we set
upon ourselves only further creates the notion
3397
that we were responding rather than actually
coming to a reasonable point of view.
Certainly the ideas that were
proposed in that legislation were good, but
the planning seemed absolutely horrendous.
And here we are some 16, 17 months later and,
again, haven't even begun to address the
issues for which we held press conferences and
acted like there was great importance at that
particular time.
I think it's really kind of a shame
that we would allow that to happen, and I
think that a message has to be sent, just as
it is when there is self-examination of a
body.
The reason I didn't have any
questions for Senator Rath is because Senator
Rath didn't do this. And I don't know that
she would be able to answer to these issues
anymore than I can.
I'm not making any obscure
accusations against the Governor I don't know
what it was about the process that we set up
that might have hindered his action. Although
I would have thought that six months would
3398
have been reasonable to fill a council with a
group of appointments, and I really don't
understand why that was done.
So now we're back here extending
the deadline to a period in 2001. Do we
really care if the deadline is met? Do we
really feel any sense of responsibility to
make sure that that actually gets done? How
much more foresighted would it have been if
we'd complied with the obligations we set upon
ourselves? And how notorious does it appear
to the public that maybe what we were doing
was just finding a way to react to something
we were reading about in the newspapers, make
it look very grandiose, as if we were actually
doing something about it.
But there's no one watching these
proceedings today necessarily from the public
that would like to shed light on the fact that
we actually didn't do what we said we were
going to do.
And so I agree with Senator
Dollinger, and I think that that message does
have to be sent, that in the future when we
talk about -- not only legislation, because
3399
what happens to laws we often don't have any
control over. But this was a process within
the Legislature that we had ultimate control
over and didn't do it. And I think that the
more that value of integrity slips away from
us, the more this institution is looked upon
by the public as being inactive. Who can
blame them? No one.
But who can remind them? We can
remind them of the terrible truth of what
happens when public service doesn't adhere to
the public trust and when we appear to be
self-serving rather than performing that same
value to those who thought enough of us to
give us these jobs and put us in office in the
first place.
ACTING PRESIDENT MARCELLINO: Any
other Senator wishing to be heard on this
measure?
Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, just briefly. I have to add one
other thought in reading the bill.
I mean, Senator Rath, again, I
applaud your carrying this bill. But this is
3400
a perfect demonstration of the problem with
trying to control lobbying. What we said to
the Governor was, you have to appoint this
advisory council. You have to do it. Because
the Lobbying Commission won't enforce the
local lobbying law against local lobbying
until there's a report from the council, until
it's been given advice on how to do it.
The whole theory of enforcing this
bill was we believe that not only should
lobbyists who affect our judgments but the
lobbyists in city councils and county
legislatures, which happens all the time -- we
wanted to extend the protection of the
Lobbying Law, public disclosure of advocacy
and supportive measures or funds or bills or
laws or projects, we wanted to extend that to
legal communities.
So what we did is we said, okay, we
by law are going to make that extension.
However, we make it subject to one thing. We
will give the Governor a chance to appoint a
council which will advise him and the Lobbying
Commission on how to do it.
The Governor obviously sits down
3401
and says, Well, I don't want to do this. I
don't local lobbying. I don't want the pain
in the neck of that. I would rather have that
lobbying which has gone on for years continue
to go on and not in any way be affected by the
State Legislature.
How does he defeat our intention,
our will, and his own signature? He simply
fails to appoint the council. The council
doesn't issue a report, and the Lobbying
Commission doesn't enforce the law. We in
essence defeat the whole purpose of what we
worked so hard to do. He doesn't do what we
tell him, and as a consequence the law doesn't
apply.
What the Governor of this state did
was he circumvented the legislative will by
not appointing the council, by not following
our direction. I believe that the local
lobbying is just as critically important as
this. I supported the change in the Lobbying
Law. And I resent the fact that this Governor
hasn't seen fit to do what we told him to do
and what he agreed to do.
Under those circumstances, no more
3402
extensions. Do what should be done. I don't
think he deserves an extension and the delay
of a year and a half in the local lobbying law
taking effect is completely unjustified. We
cannot reward that kind of conduct by an
Executive, regardless of who he or she is.
ACTING PRESIDENT MARCELLINO:
Senator Breslin.
SENATOR BRESLIN: Thank you, Mr.
President. I join with my fellow Senator -
ACTING PRESIDENT MARCELLINO:
Senator, are you speaking on the bill?
SENATOR BRESLIN: On the bill.
ACTING PRESIDENT MARCELLINO:
Senator Breslin, on the bill.
SENATOR BRESLIN: -- in saying
that the Governor has circumvented this piece
of legislation and we shouldn't give him an
opportunity to do it again. We should rethink
this bill. We should rethink this bill to
make it tighter, stronger, and let it be
effectuated without the participation of the
Governor.
In addition, we should rethink the
population size of 50,000. Is this to suggest
3403
that there will only be problems in those
areas where there's in excess of 50,000? I
think not. I think this bill has been
ill-fated from its beginning. We should
rethink it, redo it, and make it stronger.
For that reason, I will vote in the
negative. Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO: Any
other Senators wishing to be heard?
Seeing none, the debate is closed.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MARCELLINO:
Senator Oppenheimer, why do you rise?
SENATOR OPPENHEIMER: I'd like to
explain my vote.
ACTING PRESIDENT MARCELLINO:
Senator Oppenheimer, to explain her vote.
SENATOR OPPENHEIMER: I mentioned
earlier to the sponsor that I'm concerned
about people who lobby our municipalities that
3404
don't consider themselves lobbyists, because I
had a lot of that when I was mayor.
And the bill defines lobbying
municipalities as any attempt to influence
passage or defeat of any local law or the
adoption or regulation having force and effect
of local law or any rate-making proceeding by
any municipality or subdivision thereof.
It does cover it, the bill does
cover it. But I will be monitoring this once
we get this off the ground, because I am not
sure that many of those people that are
influencing municipal government consider
themselves lobbyists. And we have to get on
their case to make sure that they comply with
this law.
So I will be voting for the law,
because I think it's terrific.
And I want to recognize three young
children who are in our chamber who have won
the Department of Treasury U.S. Savings Bond
Poster Contest.
ACTING PRESIDENT MARCELLINO:
Senator, excuse me. That's not in order at
this point in time.
3405
Senator Onorato, to explain his
vote.
SENATOR ONORATO: Mr. President,
I rise -- I plan on opposing this here. This
report was due out June of last year. And I
think by delaying the implementation of this
bill again will result in further delays.
I can guarantee you that this
report will not be made by October of -- let's
not pass it. Let's make it mandatory that the
implementation and the intent of all of the
fanfare that we went through last year, that
we all took measures to obey the Lobbying Law.
Everybody seems to be the -- the legislators
are complying with the rules and regulations
of it, but the ones that we were seeking out
to affect the most are not.
And I don't think that we should
give them any more time to implement it. I
vote no.
ACTING PRESIDENT MARCELLINO:
Senator Onorato will be recorded in the
negative, and Senator Oppenheimer in the
affirmative.
Senator Paterson, to explain his
3406
vote.
SENATOR PATERSON: Mr. President,
I think that sometimes there is a notion of
partisanship that precedes some of our
statements. And I can certainly understand if
it appears that way this time. But what I
want to say is this is something I think we're
all guilty of. This is an instance where I
might want to exact some blame on the
Governor's office, but I have seen this happen
in reverse. I have seen it done by all
parties. And what I think it is is a lack of
respect for the institution.
We are the ones that told the
public we were going to do this. The public
didn't tell us to do it. I think we got the
idea that the public was somewhat frustrated
with the way we do business around here. And
we complied with what we thought was that
sentiment and jumped up and down. I remember
in 1999 everybody had a plan, an oath and a -
something that they wanted to suggest for the
process. No one seemed to have bothered about
it before then.
And we passed this bill. It had an
3407
ethical, you know, underpinning to it. And
then we go forward and barely comply with even
the least of the obligation, which was to just
form an council, establish some procedures,
and submit a report. And we didn't even do
that.
So to come back and ask for an
extender, yes, of course we're going to have
to eventually do this, but I don't know that
we have to do it right now. I think that a
little taking of responsibility is in order.
And for that reason, I vote no, Mr. President.
I really believe that to have a -- the notion
of lobbying within a lobbying bill itself is a
highly suspicious type of a situation for us
to be addressing at this particular time.
Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Schneiderman, to explain his vote.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
I want to echo the concern about
the process that is encompassed in this bill.
I don't really see the justification for it.
I think we've been very slow to move on
3408
lobbying issues here. I think that the
opportunity has presented itself, presented
itself last year, and that we really are
further behind the curve than we need to be.
I don't see that this delay is appropriate. I
really think we need to move faster.
It is very difficult now to figure
out all of the interwoven webs of influence
that permeate the government in the State of
New York. I think we have to move to make it
easier for the public to understand and not
put it off any further. So I will join my
colleagues in voting no.
ACTING PRESIDENT MARCELLINO:
Announce the results, please.
THE SECRETARY: Those recorded in
the negative on Calendar Number 275 are
Senators Breslin, Dollinger, Onorato,
Paterson, Sampson, Schneiderman, and Senator
M. Smith. Also Senator Montgomery. Ayes, 52.
Nays, 8.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
THE SECRETARY: Calendar Number
200, by Senator Trunzo, Senate Print 2032, an
3409
act to amend Chapter 672 of the Laws of 1993.
ACTING PRESIDENT MARCELLINO:
Senator Trunzo, an explanation has been asked.
SENATOR TRUNZO: Thank you, Mr.
President.
This is a very simple bill that
amends Chapter 672 of the Laws of 1993 to
permit the Sayville Library to be added to the
other eight libraries which are eligible to
use Dormitory Authority financing for the
construction or renovation of facilities and
renovate any existing facilities. A simple
bill.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: Mr. President,
even I would have to agree with that
presumption. But -
ACTING PRESIDENT MARCELLINO:
Read the last section.
(Laughter.)
SENATOR PATERSON: If Senator
Trunzo would yield for a question.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: He
3410
yields.
SENATOR PATERSON: Senator
Trunzo, which of the library systems that we
have -- we have 700 libraries, 75 systems,
some of them are public school libraries, and
we have some research and reference libraries.
Which of the systems is the Sayville Library
coming under?
SENATOR TRUNZO: I didn't
understand your question, Senator. Didn't
quite hear it.
SENATOR PATERSON: Is the
Sayville Library a public library, is it a
reference and research library, or is it a
school library?
SENATOR TRUNZO: Yes, it's a
public library.
SENATOR PATERSON: And if the
Senator would yield for a question, what is
the reason that it would need this type of
sponsorship from the Dormitory Authority?
SENATOR TRUNZO: Well, basically
what's happening there is that when the
library was first built -- in 1953, I
believe -- it was made to accommodate 10,000
3411
people. And now they've got well over 20,000
people that utilize the library on a daily
basis -- or at least an annual basis, rather.
And therefore they need to expand and double
the size of the current library.
SENATOR PATERSON: Thank you, Mr.
President. If Senator Trunzo would continue
to yield.
ACTING PRESIDENT MARCELLINO:
Senator Trunzo, do you yield?
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR PATERSON: Senator
Trunzo, how is the library funded right now in
its initial size? Is this done through a
library district, does it come from municipal
fees, or is it a combination of the two?
SENATOR TRUNZO: It's funded by a
library district.
SENATOR PATERSON: And as the
library district, I would assume that there
has to be some kind of outside funding. If
the Senator continues to yield, Mr. President.
ACTING PRESIDENT MARCELLINO: I
3412
believe he yields.
SENATOR TRUNZO: Yes.
SENATOR PATERSON: Then is
there -- the only way this library can be
enhanced to double its size is going to have
to be from some outside funding from some
source; is that correct, Senator?
SENATOR TRUNZO: That is correct.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR PATERSON: Senator, is
the normal procedure for expansion
accomplished through a grant from the New York
State Dormitory Authority?
SENATOR TRUNZO: Well, it hasn't
been normal that way. What's happened,
usually they would have to go out to bonding
on their own to get the funding necessary for
the bonding. And evidently the word's getting
around that it's a little cheaper going
through the Dormitory Authority as far as
interest rates are concerned. And the other
3413
eight libraries that are in this legislation
right now, the word spreads, and it's one way
of trying to save the taxpayers some money
within that district.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR PATERSON: Then is it my
understanding that because the Dormitory
Authority bonds out on greater volume that it
has a lower bonding rate so that the Dormitory
Authority, being a larger entity than any
single library, can create a lower interest
and in that way save money for the whole
process?
SENATOR TRUNZO: That's right.
That's the whole purpose of it, yes.
SENATOR PATERSON: I was hoping
I'd be wrong.
Mr. President, if the Senator would
yield for a question.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: I
3414
believe he yields.
SENATOR PATERSON: About how long
do you think it will take for this process to
take place? This should occur within a year,
shouldn't it?
SENATOR TRUNZO: Well, first of
all, the recommendation, through the Dormitory
Authority, they're going to have to have a
referendum by the people in the district
allowing them to go out for bonding through
the Dormitory Authority, first of all. So
it's got to be done by referendum first.
And they're currently in the
planning stages. And by being in the planning
stages, they expect to have a referendum to
the people sometime this year so that they can
apply to the Dormitory Authority for the
funding, you know, in time for construction to
start in the spring of next year.
SENATOR PATERSON: Mr. President,
if Senator Trunzo would continue to yield.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR PATERSON: Senator, I
3415
wouldn't expect -- and it's just my own
judgment -- that a referendum would fail in
this particular case. But I guess one of the
questions that would come up, that in other
words, some of the government-operation-type
committees, good government committees would
ask, would relate specifically to just what
the tax impact would be of bonding out this
amount of money even through the Dormitory
Authority. Do you have an idea how much this
is going to cost and whether or not it would
accrue in taxes anywhere?
SENATOR TRUNZO: Well, the
estimate that we were able to get from the
library is that it would cost somewhere from
$5 million to $6 million.
SENATOR PATERSON: And, Mr.
President, if the Senator would continue to
yield.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR PATERSON: To the average
taxpayer, would that be of any great cost?
Has anybody researched this to kind of divide
3416
it out to determine whether or not you think
there'd be any real public opposition to this?
SENATOR TRUNZO: Well, I don't
think so. Because the library is fully used,
and they don't have the room to have all the
various programs that they would like to
accommodate the community with. And
therefore, they need the space. They're
doubling the size of the current library in
order to accommodate the various organizations
as well as programs that the library may have
on its own.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR PATERSON: Senator,
although this all sounds fine to me, I'm just
wondering, just the conceptual development of
the property and the way it would actually
occur, has there been any feedback from the
public, public hearings or memorandums of -
seeking suggestion or any kind of
environmental problem that would be caused by
3417
the expansion?
SENATOR TRUNZO: Well, other than
the fact that they have to have a referendum
in order to get approval to do it, the general
consensus, from what I've been able to hear,
the public, the people within the district are
very much in favor of having the library being
expanded. And it's necessary that they do
that. They're serving now over 315,000 people
a year.
SENATOR PATERSON: Mr. President,
if the good Senator would continue to yield.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR PATERSON: Well, we've
discussed the referendum process, and that's
quite appropriate, because it is provided
under the law. I just want to know, before we
go to the referendum process, are there any
plans to actually make sure that everyone is
informed so that a vote that would be cast
would be one out of understanding and out of
full disclosure as opposed to this just being
something put on the ballot? Because I don't
3418
think, if you say you want to expand a
library, that anybody really is opposed to it.
SENATOR TRUNZO: Would you ask
that question again? I just wasn't sure of
what you -- you know, you led up to a
question, but -
SENATOR PATERSON: Well, my
question was just in terms of information that
would be provided to the public before there
would be an actual vote.
SENATOR TRUNZO: Oh, yes,
definitely information has to be provided in
advance of the referendum, to get public input
and all of that in order to continue with the
possibility of going through the referendum
and getting the funding to expand the library.
That's all part of procedures.
SENATOR PATERSON: Mr. President,
I hold in my hand the last question.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield for the last question?
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR PATERSON: I was hoping
3419
there would be applause. But in spite of it,
I will go forward and ask the Senator, has
this library ever received any type of state
funding prior to this action?
SENATOR TRUNZO: Well, from what
I understand, no, not directly. But
indirectly, through the Suffolk County
Cooperative Library System, they got about
$5600 last year.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: Have I covered
it?
ACTING PRESIDENT MARCELLINO: On
the last question, you've covered it.
SENATOR PATERSON: Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Smith.
SENATOR MALCOLM SMITH: Thank
you, Mr. President. Would the sponsor yield
for a question?
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: I
believe he yields, Senator.
3420
SENATOR ADA SMITH: Thank you.
Will this new facility be erected at the same
site, or will it be moved?
SENATOR TRUNZO: No, they are
looking for another site. Because from what I
understand, the doubling in the size of the
current library, the current land is not large
enough. And they are looking around for
another site.
SENATOR ADA SMITH: Would the
sponsor continue to yield.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR ADA SMITH: Will it be as
be as accessible as the current Sayville
Library is to the general public?
SENATOR TRUNZO: Well, it will be
in the general area, so that it would be
convenient to all the residents of that
particular community.
SENATOR ADA SMITH: Will the
Senator continue to yield?
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: The
3421
Senator yields.
SENATOR ADA SMITH: Thank you.
Once the library is built, will it
have the need for additional staffing?
SENATOR TRUNZO: Well, I'm not
sure whether they do or not. It probably
would because of the number of residents they
intend to employ. Or whether the current
employment would be enough, I don't know.
They're doubling the size of the library. And
only because there are so many people
utilizing it at the same time. So maybe they
can do it under the present thing, but I think
they will probably have to increase the
employment to some small degree.
SENATOR ADA SMITH: Would the
Senator continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you continue to yield?
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: I
believe he yields.
SENATOR ADA SMITH: Have
preparations been made to budget for this new
staffing and so forth down the line?
3422
SENATOR TRUNZO: Well, that I
don't know, if they've done that at this point
yet.
SENATOR ADA SMITH: Okay. One
last question.
ACTING PRESIDENT MARCELLINO:
Senator, one last question?
SENATOR TRUNZO: Okay.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR ADA SMITH: Thank you,
Senator.
Do you have any idea as to the new
kinds of programming that will become
available once the library is built and in
place?
SENATOR TRUNZO: Well, they
utilize the library currently for various
types of programs -- I'm not sure what they
are, but different types of programs -- and
also making the library available to the
community organizations of one sort or
another. And they've had to turn people away
because they don't have the space to
accommodate them. And this is part of the
3423
also the expansion is necessary.
SENATOR ADA SMITH: Mr.
President, I'm sorry, I said one, but it
provoked another thought. And I would wonder
if the sponsor would be kind enough for just
one last one.
ACTING PRESIDENT MARCELLINO:
Senator, would you be kind enough?
SENATOR TRUNZO: Okay, one last
question, sure.
ACTING PRESIDENT MARCELLINO:
Please don't provoke another.
SENATOR ADA SMITH: Senator,
would you have any idea what the total cost of
this package will be?
SENATOR TRUNZO: The total cost
of the project? As I answered to Senator
Paterson, $5 million to $6 million in
construction and acquisition of property.
SENATOR ADA SMITH: Thank you
very much. Thank you, Senator Trunzo.
SENATOR TRUNZO: You're welcome.
ACTING PRESIDENT MARCELLINO:
Senator Onorato.
SENATOR ONORATO: Mr. President,
3424
will the sponsor yield to a question.
SENATOR TRUNZO: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR ONORATO: In the earlier
part of the discussion, you mentioned the fact
that this will have to go on a referendum for
the bonding. Is there a contingency plan?
Because we've seen, very recently, some of the
plans that we have submitted to the public
which we thought were going to go down,
especially the School Construction Bonding
Act, went down to defeat. Is there any
contingency plan in the event that it fails on
a referendum? Are there any alternative plans
for providing the money, through perhaps
taxing the residents of the Sayville
community?
SENATOR TRUNZO: If it fails on
referendum, then I guess they would have to
try again.
But the way things have been
happening on Long Island, there are very few
school district or library district budgets
that have been rejected by the public. The
3425
public is well aware of what they need, what
they'd like to have. And this is one of the
things that they are insisting upon, the
expansion of this library for better use by
the public.
SENATOR ONORATO: One follow-up.
In the event, again, if it does not pass, what
would the alternative cost be to the taxpayers
by not opting in to the bonding by the
authority?
SENATOR TRUNZO: I think they
definitely have to go through a referendum
before they can do anything at all. It has to
be passed for them to be able to spend the
funding that they'd like to do.
And if the people turn it down,
then they can't do anything with it at this
time, and try again at some other future date.
SENATOR ONORATO: Thank you.
ACTING PRESIDENT MARCELLINO: Are
there any other Senators wishing to be heard
on this measure?
Seeing none, debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
3426
act shall take effect immediately.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to motions and resolutions,
I know there are two privileged resolutions at
the desk. May we please take up resolution
981, by Senator Bonacic, have it read in its
entirety, and move for its immediate adoption.
ACTING PRESIDENT MARCELLINO: The
Secretary will read Resolution 981.
THE SECRETARY: By Senator
Bonacic, Legislative Resolution Number 981,
congratulating the Rondout Valley High School
Football Team, State Champions, upon their
visit to the State Capitol on March 27, 2001.
"WHEREAS, Excellence and success in
competitive sports can be achieved only
through strenuous practice, team play and team
spirit, nurtured by dedicated coaching and
3427
strategic planning; and
"WHEREAS, Athletic competition
enhances the moral and physical development of
the young people of this State, preparing them
for the future by instilling in them the value
of teamwork, encouraging a standard of healthy
living, imparting a desire for success, and
developing a sense of fair play and
competition; and
"WHEREAS, This Legislative Body is
justly proud to congratulate the Rondout
Valley High School Football Team, State
Champions, upon their visit to the State
Capitol on March 27, 2001; and
"WHEREAS, the Rondout Valley High
School Football Team was victorious in the
Class B New York State High School
Championship held on November 26, 2000, at the
Syracuse Carrier Dome, and
"WHEREAS, the Rondout Valley High
School Football Team became the first team
from Section 9 to win a State title since
championship games began in 1993; and
"WHEREAS, As a result of winning
the Class B Championship, the Rondout Valley
3428
High School Football Team celebrated with a
parade in their honor held in Stone Ridge; the
Team was also named the Freeman Sportsmen of
the Year, and were invited to visit the State
Capitol; and
"WHEREAS, The athletic talent
displayed by the Rondout Valley High School
Football Team is due in great part to the
efforts of Coach James Malak, a skilled and
inspirational tutor, respected for his ability
to develop potential into excellence; and
"WHEREAS, The Ganders' overall
record is outstanding; the team was loyally
and enthusiastically supported by family,
fans, friends and the community at large; and
"WHEREAS, Sports competition
instills the values of teamwork, pride and
accomplishment, and the members of the Rondout
Valley High School Football Team have clearly
made a contribution to the spirit of
excellence which is a tradition of their
school; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to
congratulate the members of the Rondout Valley
3429
High School Football Team: Maurice Chesson,
Ken Smith, Ryan Gribulis, Charles Lentz,
Jeremy Todd, Dave Lajara, Don Ford, Jay
Lawlor, Shane Fattarino, Elliot Douglas,
Patrick Rahm, Tim Bogart, Chris Sebald, Nick
McGill, Matt Rhett, Paul Bogart, Robert
Beatty, John Carelli, Rob Soto, Eric Kellogg,
Max Gruner, Jesse Porter, Brandon Walsh, Tony
Sakellariou, Cody Bryant, Scott Lovelace, Phil
Brooks, Keith Ayers, Andrew Davis, Manny
Pomales, Chris Dominowski, Robert Roosa,
Robert Nace, Harley Davis, Brandon Sebald, and
Scott Woelk, and Coach James Malak, on their
sparkling season and upon becoming State
Champions; and be it further
"RESOLVED, that copies of this
Resolution, suitably engrossed, be transmitted
to the Rondout Valley High School Football
Team, and to Coach James Malak."
ACTING PRESIDENT MARCELLINO:
Senator Bonacic.
SENATOR BONACIC: Thank you, Mr.
President. I'd like to welcome these
good-looking athletes to the Senate chambers
in Albany, and their coach, Jim Malak.
3430
We are very proud of what you
accomplished. It's a continuation of the
celebration that started back in November of
last year. I'm sure your friends, your family
and all of the people in Stone Ridge, as well
as Ulster County, are very proud of you, as
well as all of the people in Hudson Valley.
Shortly we will be taking pictures
and visiting with the Governor, who wants to
also welcome you and share some of his
thoughts with you. My good friend, Senator
Larkin, who also represents Ulster County,
joins me in having you here today.
Thank you very much.
ACTING PRESIDENT MARCELLINO: On
the resolution, all in favor signify by saying
aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO:
Opposed, nay.
(No response.)
ACTING PRESIDENT MARCELLINO: The
resolution is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
3431
there's another privileged resolution at the
desk, by Senator Oppenheimer, Number 685. May
we please have the title read and move for its
immediate adoption.
ACTING PRESIDENT MARCELLINO: The
Secretary will read.
THE SECRETARY: By Senator
Oppenheimer, Legislative Resolution Number
685, honoring the First, Second and Third
Place Winners of New York State's U.S. Savings
Bonds 2001 National Student Poster Contest.
"WHEREAS, The Department of the
Treasury" -
SENATOR OPPENHEIMER: If I would
could waive the reading of the resolution and
speak on it.
ACTING PRESIDENT MARCELLINO:
Senator, we will waive the reading of the rest
of the resolution.
Senator Oppenheimer, on the
resolution.
SENATOR OPPENHEIMER: Thank you
very much.
Actually, I have just found that
this is the last year that they're going to
3432
have this contest. These are children who
drew posters to promote the U.S. Savings
Bonds. And the winners, the first-place
winner gets $1,000, the second-place winner
gets $500, and the third place I think gets
200 and some. And there were three wonderful
posters that I just saw produced by children.
Now, I can speak to the young woman
in my district who took first place. And she
is -- pardon me, it's he. It's Andrew
Morejon. I'm thinking of the second-place
winner.
Andrew is 9 and a half years old,
and he's only in the fourth grade. He goes to
the Daniel Webster Magnet School in New
Rochelle. And the boy is an unbelievable
artist. His brother, who is wonderfully
artistic also, won first place last year.
Same family. And the mother is an art
teacher, so you can see where the talent comes
from.
And he got the thousand-dollar
savings bond, and he'll now be entered
nationally, as the first-place winner from
each of the states goes into a national
3433
competition, and they can make megabucks
there. He has already won a $10,000
scholarship from Kraft Macaroni & Cheese, and
a trip for four to Disneyworld in Florida.
But this is just such a wonderfully
talented family, it's just a pleasure to have
met them. And as this is the last year, this
is the last opportunity we'll have to speak
about these wonderfully talented children that
participated in the U.S. Savings Bond contest.
And the second-place winner I think
I will permit Senator Ruth Thompson to speak
about, as it is a young woman in her district.
ACTING PRESIDENT MARCELLINO:
Senator Thompson.
SENATOR HASSELL-THOMPSON: Thank
you. Thank you, Senator.
The student that won the second
prize is a young woman whose nationality is
Korean. And I say that because her parents
have been in this country a very, very short
time. But this is a youngster who has
embraced all of the best qualities of being an
American. And in doing this poster, which is
a promotion for United States Savings Bonds,
3434
it was very, very gratifying to have her be
one of our winners this year.
Her name is Irin Son. And not only
is she very talented in art, but she is a high
honor student, she is a two-year piano
student, she's in intermediates in gymnastics,
and her other interests and talents include
art and writing. And she has aspirations of
being an Olympic athlete as well as a writer.
An extraordinary young child whose
parents are hard-working people in our
community. They own a dry cleaners in my
neighborhood, and just are very solid
citizens. And she is an exciting child and
has such a tremendous talent. And I was very
proud of her as the second-place winner, as
well as for all of the other youngsters in
participated in this promotion of our United
States Bonds.
So I am very pleased for the
support of this resolution on her behalf.
ACTING PRESIDENT MARCELLINO:
Senator Sampson.
SENATOR SAMPSON: Mr. President,
I have to rise to speak on the resolution.
3435
First and foremost, I want to
congratulate the first- and second-place
winners in the New York State's Savings Bonds
Student Poster Contest. And I want to
congratulate Miss Etienne, the third-place
winner, who resides in my district.
This is an 11-year-old student who
attends the Mark Twain School for Gifted and
Talented Children. And she is the oldest of
her four siblings, and the only girl also.
And her parents are Haitian immigrants, and
they understand the importance of education.
And they understand the importance of allowing
their children to excel in school.
And Miss Etienne, who I just spoke
to a few minutes ago, her mother told me that
the poster she designed, she designed it the
night before, and she was inspired by her
younger brother who was standing in her bed.
And in the poster, it says: U.S. Savings
Bonds, you can reach for the stars."
And I was really impressed to see
her level of ingenuity and also the level of
confidence that she exudes at 11 years old.
And a lot of times we talk about the negative
3436
things that are going on in the world with the
young children killing one another at these
schools in our communities, but we really have
a lot of positive things. And I want to
congratulate Miss Etienne for the good job
that she has done and the role model she is
for her younger three brothers.
And once again, I want to
congratulate the first- and second-place
winners, because this is something that we all
tell our children. We want them to go to
school and be educated. But at times like
this when we're able to commend them on a job
well done, they can really say: We are really
working hard, and people appreciate what we're
doing.
Once again, thank you, Mr.
President.
ACTING PRESIDENT MARCELLINO: On
the resolution, all in favor signify by saying
aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO:
Opposed, nay.
(No response.)
3437
ACTING PRESIDENT MARCELLINO: The
resolution is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
would you please call up Calendar Number 214,
by Senator LaValle.
ACTING PRESIDENT MARCELLINO: The
Secretary will read Calendar Number 214, by
Senator LaValle.
THE SECRETARY: By Senator
LaValle, Calendar Number 214, Senate Print
2357, an act to amend the Education Law and
the Business Corporation Law, in relation to
making technical changes.
SENATOR PATERSON: Explanation,
please.
ACTING PRESIDENT MARCELLINO:
Senator LaValle, Senator Paterson has asked
for an explanation of your bill.
SENATOR LAVALLE: This bill is a
lot less esoteric than the bill we had
yesterday before us. This bill deletes some
archaic language in the first four sections,
the terms "other than a registered store" that
really does not apply. It's an anomaly in the
3438
law. Under Section 6802, a registered store
means a store for which a storekeeper's
license has been issued, located in a village
or a place of less than 1,000 inhabitants that
has no pharmacy within three miles.
The other sections apply to the
registration period in which pharmacies must
register, which comes up all at one time. And
what this bill would do is allow for a rolling
period based on date of birth. And it would
mean that the 4,500 pharmacies or the 800
manufacturers and wholesalers that would apply
now all at once, overburdening the Office of
the Professions that handles this, it would
mean that that staff can be used more
efficiently in the registration.
And that is the bill, Mr.
President.
ACTING PRESIDENT MARCELLINO:
Senator Lachman.
SENATOR LACHMAN: Yes. Will the
Senator yield to a question.
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
3439
SENATOR LACHMAN: Senator
LaValle, you mentioned there are 4,500
pharmacies. Now, we are all aware that many
of the individual, independent pharmacists are
going and selling their stores, and you have
Rite Aid and Genovese and Eckerd taking over
these pharmacies. How would this bill apply
to these giant corporations of pharmacies if
you're having them based upon date of birth,
and how will it roll over to these giant
manufacturers of pharmaceuticals?
SENATOR LAVALLE: Under Section
11 of the bill, those would be apparently
handled in a different -- I believe in a
different way, Senator.
SENATOR LACHMAN: Mr. President,
can I continue with another question?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO:
Please.
SENATOR LACHMAN: Senator, what
I'd like to know is what will be handled in a
different way -
SENATOR LAVALLE: Senator -
Senator, let me just -- excuse me -
3440
SENATOR LACHMAN: -- and what
that different way will be.
SENATOR LAVALLE: Under the chain
pharmacies, the reregistration will be on the
same day, one date. Those would be on the
same date.
SENATOR LACHMAN: So all the -
I'm sorry, Mr. President, will the Senator
yield for another question.
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR LACHMAN: So all the
chain pharmacies will be under one -- from one
day?
SENATOR LAVALLE: One day.
SENATOR LACHMAN: Do you have a
percentage figure -
SENATOR LAVALLE: No, I do not.
SENATOR LACHMAN: -- of how many
are chain pharmacies and how many are
independent pharmacies?
SENATOR LAVALLE: No.
SENATOR LACHMAN: You do not.
Thank you.
3441
ACTING PRESIDENT MARCELLINO:
Senator Stavisky.
SENATOR STAVISKY: Mr. Chairman,
if Senator LaValle will yield.
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR STAVISKY: I raised these
questions at the Higher Education Committee
meeting. And my question really is very
similar to Senator Lachman's.
From what you said, can we assume
that they will all be able to register at the
same time if it's a chain? For example, CVS,
which seems to have a voracious appetite for
swallowing up independent pharmacies, or
Eckerd or Rite Aid, they will be able to
register all of their pharmacies at the same
time?
SENATOR LAVALLE: Senator, the
chains, whether it's CVS, Rite Aid, Genovese,
whoever, really in the development of this
bill requested the one day, the same day. So
it was at their request that we did this.
SENATOR STAVISKY: Good. Thank
3442
you. That was the thrust of my question.
And my second question -
ACTING PRESIDENT MARCELLINO:
Senator LaValle, do you yield to another
question?
SENATOR LAVALLE: Yes, sure.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR STAVISKY: Have the
chain-store pharmacies taken a position on
this bill? I do not have a memo in support or
opposition.
SENATOR LAVALLE: I cannot
believe they're opposed to it, since we have
accommodated them on when they would register.
As far as I know, there are no memos in
opposition to this bill. And this bill is
supported -- well, I don't know whether they
have memoed in favor of it. But it is a bill
that would be helpful -- let me put it this
way, would be helpful to the State Education
Department, the Office of the Professions,
because they would be able to use their staff
in handling this in a much, much greater and
much more efficient way.
3443
SENATOR STAVISKY: Thank you very
much.
On the bill.
ACTING PRESIDENT MARCELLINO:
Senator Stavisky, on the bill.
SENATOR STAVISKY: It seems to me
that, assuming the absence of a negative
memoranda, that we can assume that this is an
agreed-upon measure and that, for that reason,
I will support the bill. Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President. I would like to ask Senator
LaValle a question, if he would yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield?
SENATOR LAVALLE: I do.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR MONTGOMERY: Okay, thank
you.
Senator LaValle, this process, I
just want to know for my edification, does
this generate any -- this licensure renewal or
3444
registration renewal, does it generate any
money for the department or for the state in
any way?
SENATOR LAVALLE: Yes, there is a
fee for the pharmacies when they register.
And that fee actually pays for the staff and
the running of the Office of the Professions.
In the same way each of the professions, if
you have a license, you pay a fee. And that
fee is really to process the paperwork and
background checks and whatever is necessary in
giving that license or, in this case, the
registration to the pharmacy.
SENATOR MONTGOMERY: All right.
And if Senator LaValle would continue to
yield.
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR MONTGOMERY: Are these
pharmacies, the chains, essentially, are they
licensed per unit, or are they licensed as one
entity, CVS or -
SENATOR LAVALLE: No, each store.
Each store. It's not a gang application that
3445
they put in for fifty pharmacies. Each store
must register itself.
SENATOR MONTGOMERY: All right.
And so therefore, Mr. President, just to
continue that question, therefore any issues
related to the licensing or the operation of a
pharmacy, one of the chains, that pharmacy is
responsible to State Ed for any regulatory
issues individually? In other words, we don't
have to go through the -
SENATOR LAVALLE: That is
correct, Senator.
SENATOR MONTGOMERY: -- through
the home or the parent company in order to get
any corrective action?
SENATOR LAVALLE: That's correct.
SENATOR MONTGOMERY: That's at
individuals.
Okay, those are my questions.
Thank you, Senator LaValle. Thank you, Mr.
President.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator.
Senator Onorato.
SENATOR ONORATO: Mr. President,
3446
will the sponsor yield for a question.
SENATOR LAVALLE: Be delighted
to.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR ONORATO: Senator
LaValle, is there a different mechanism for
the fees for the chain-operated pharmacies as
against the small, local, mom-and-pop type of
operation?
SENATOR LAVALLE: All the
pharmacies, whether it's a mom-or-pop or a
CVS, are at the same rate.
SENATOR ONORATO: They're all at
the same rate.
SENATOR LAVALLE: Yes. The one
difference in the bill is where we have the
manufacturers or the wholesalers. They pay a
higher fee, different rate.
SENATOR ONORATO: Thank you.
ACTING PRESIDENT MARCELLINO: Are
there any other Senators wishing to be heard
on this bill?
Senator Paterson.
SENATOR PATERSON: Thank you, Mr.
3447
President. If the Senator would yield for a
question.
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR PATERSON: Senator, if
we're going to start apportioning out the
registrations, where in the past the
registration for the pharmacists was in
January and the wholesalers was in September,
will some of the -- will the Department of
Education prefer to have some of the
registrations delayed or would they like to
truncate the process for some and renew their
licenses earlier than the three-year usual
limit, just to create the revolving
registrations?
SENATOR LAVALLE: Yes, that may
happen to get them on the triennial track. So
yes, they might do that.
SENATOR PATERSON: But they
haven't -
SENATOR LAVALLE: The amount of
the fee would be, of course, prorated,
Senator.
3448
SENATOR PATERSON: Sure. Sure.
The Department hasn't indicated a
preference yet, whether they're just going to
hold some back and add to their fee because it
might take four years to do some, or to move
some up? They haven't decided which direction
to go yet?
SENATOR LAVALLE: No. Senator,
you -- it's going to be done within the
three-year time frame. So extending it so as
to cause an additional amount is not something
that is -- that we foresee.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you continue to yield?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO: I
believe the Senator yields.
SENATOR PATERSON: Mr. President,
the Senator indicated that the chains had a
preference to be registered on the same day,
and that's fine. But some of the independents
may own more than one pharmacy or one
wholesale house. Has the department extended
3449
that same courtesy to them?
SENATOR LAVALLE: Senator, in the
development of this bill, which we worked on
with the State Education Department and with
the associations, we have found that we were
accommodating in terms of some of their
issues. So -- I mean, there could always be
one or two individuals that maybe are not
happy with this. But my feeling is that
whether we're talking about the large chains
or the independent pharmacists, that they're
pretty much on board with the system that we
have developed. And, I mean, the Department
has worked with their association, so I don't
really see a problem.
SENATOR PATERSON: Thank you. If
the Senator would continue to yield.
SENATOR LAVALLE: Yes, I will.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR PATERSON: Mr. President,
one of the problems that we've had in my
district and in a few of the districts,
particularly in Manhattan, where there are
tremendous opportunities for development and
3450
not only commercial speculation but real
estate development, is that a lot of the
properties have been bought up by independents
and chain pharmacists. We have one, I'd say,
five-square-block area, Senator LaValle, where
we have about nine drugstores. Now, the
market cannot facilitate all of these
pharmacists. What seems to be the case is
that they are buying properties and getting
licenses to operate drugstores, knowing full
well that they'll probably go out of business
because there just aren't that many people
that need this service. But then it gives
them the opportunity to hold the property and
sell it at a higher level.
And we've been considering
challenging the licenses as to whether or not
they're really in the market to accommodate
the sale of pharmaceuticals and other items
that are sold in a drugstore but rather are
using it as a real estate speculation.
The reason I raise it is because
with the licenses being challenged at
individual times, would it not accommodate -
in other words, would it not accommodate the
3451
interests of some of these independents of
actually escaping the kind of scrutiny when
there's a single issue, let's say, that the
public has with them?
I don't see any problem with this
bill, but I'm just asking the question that
wouldn't this actually make it more difficult
for communities such as mine to raise the
issues of the licensing since we don't think
they're really engaging in the practice?
SENATOR LAVALLE: Senator, we
have to take a step back and look at what is
the licensing procedure all about. And that
is really -- it goes to a public protection,
to find out whether the owners are indeed the
owners of application and whether there are -
in doing a background check, whether there is
anything that we need to be concerned in terms
of criminality that those individuals have
committed.
That's what the licensing procedure
goes through. We -- the licensing procedure
does not get into a mens rea issue to find out
what is the intent of the applicant in terms
of a business philosophy of what they're
3452
trying to do. Licensing does not get involved
with those issues.
SENATOR PATERSON: Thank you, Mr.
President.
ACTING PRESIDENT MARCELLINO: Are
there any other Senators wishing to be heard
on this bill?
Seeing none, the debate is closed.
Read the last section.
THE SECRETARY: Section 12. This
act shall take effect in 30 days.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
The Secretary will read Calendar
Number 207.
THE SECRETARY: Calendar Number
207, by Senator Seward, Senate Print 2133, an
act to amend the Executive Law, in relation to
requiring.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT MARCELLINO:
3453
Senator Seward, an explanation has been asked
for.
SENATOR SEWARD: Mr. President,
this bill changes one word, from "may" to
"shall," as to the provisions of funds to
local veterans' service organizations, making
it mandatory rather than permissive. And this
funding would be provided pursuant to the
population-based formula that is in existing
law.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger.
SENATOR DOLLINGER: Through you,
Mr. President, will the sponsor yield to a
question.
ACTING PRESIDENT MARCELLINO:
Senator Seward, do you yield?
SENATOR SEWARD: Yes, I do.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR DOLLINGER: What has been
the experience under the optional allotment of
funds that's provided for this under this
statute? Do you have a sense of what local
directors have done under the optional
3454
language?
SENATOR SEWARD: Well, Mr.
President, I must say I cannot point to any
particular problems that have been as a result
of that "may" word being there rather than
"shall" and making it permissive rather than
mandatory. I honestly cannot point to a
problem or issue.
However, one of my local counties
in my district, in looking at this whole issue
of the funding of our local veterans' service
agencies, pointed this out to me in the law.
And it seemed to me that we should be making
it mandatory rather than permissive in terms
of the disbursements of the funds to the local
veterans' service agencies. It seems to me
that we should take away any ambiguity in the
law in that regard. It seems to me that if
the -- as we appropriate the funds every year
in the budget, that the state should be
directing these funds to the local counties
without question.
SENATOR DOLLINGER: Through you,
Mr. President, if the sponsor will again yield
to a question.
3455
ACTING PRESIDENT MARCELLINO: Do
you yield, Senator Seward?
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR DOLLINGER: Senator, as I
understand this bill, we're going to go from
an optional allocation to a mandatory
allocation. What effect in terms of dollars
will that have on the state budget or the
state operations? Is there any indication
that the director has not tried to maximize
the allotments to local counties under the
optional language?
SENATOR SEWARD: Well, Mr.
President, the passage of this bill would not
have a fiscal impact on the state, because
the -- every year when the budget is done,
there is obviously an appropriation. In the
last couple of years it's been $575,000
statewide. And nothing would change with the
passage of this bill. And there's no fiscal
impact in terms of the dollars or the manner
in which the monies are disbursed.
There's currently in the law -- and
3456
we're not going to change that under this
bill -- but currently in the law, which would
continue to exist, there's a formula that is
population-based. The smaller counties, under
100,000 in population, each receive $5,000 to
go toward their county veterans' service
agency. And the counties over 100,000 in
population receive an additional $2,500 for
each additional 100,000 persons in that
county.
So that formula will stay in place.
The only change we would be making would be
that it would require the Director of the
Division of Veterans' Affairs here in Albany
to disburse these funds to the counties based
on this formula.
Now, for example -- I cannot point
to any problem, but as an example down the
road, there would be no question regarding the
disbursement of these funds. I think we owe
it to our veterans to take away any ambiguity
in the law at all.
SENATOR DOLLINGER: Through you,
Mr. President, if the sponsor will continue to
yield.
3457
ACTING PRESIDENT MARCELLINO:
Senator Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: He
continues to yield, Senator.
SENATOR DOLLINGER: Senator
Seward, just so I understand it, at this point
you are not aware of any shortchanging or
short payments or refusal to pay or an
interference with payments made by the state
director to the local veterans organizations,
the local setup, under the "may" language.
And so my question is, why change
it, if it seems to be working well as a
permissive grant, to a mandatory grant?
Mandatory obligation, I should say, for
clarification.
SENATOR SEWARD: Well, Mr.
President, I've stated it a couple of times
already. I do not -- I am not aware of any
problems that have been experienced under the
current language.
Other than I can report to you
there's a sense of uneasiness in a question to
me, as a State Senator, has come in to me, is
3458
why would we have it permissive, why would we
allow the Director of the Division of
Veterans' Affairs to perhaps not send the
money out once it's been appropriated to the
division and for the purpose of supporting
these local veterans' service agencies?
My question to you, Senator,
through you, Mr. President, would be why would
we give that option to the Director of
Veterans' Affairs? Why not make it mandatory
to have him carry out the wishes of this
Legislature to send this money out to the
local veterans' service agencies so that they
can provide the services to our veterans who
have served this country? For the life of me,
I wouldn't know why we would not require that,
rather than have it continue to be permissive.
SENATOR DOLLINGER: Through you,
Mr. President, was that a question directed at
me, or a rhetorical one?
SENATOR SEWARD: It was a
rhetorical question.
ACTING PRESIDENT MARCELLINO: It
sounded more rhetorical to me, sir.
SENATOR DOLLINGER: It sounded
3459
rhetorical to me as well.
On the bill.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, on the bill.
SENATOR DOLLINGER: I thank
Senator Seward for his explanation.
I guess in the course of today's
debate I've found a very interesting meaning
of the word "shall," Senator Seward. If you
were here for the debate with Senator Rath
when we had a bill about the Lobbying
Commission where we said, Governor, we all
agree that you shall do this, he didn't do it,
a year and a half later, after not doing it,
now we're coming back and we're telling him to
do it again.
We write the word "shall" in the
Health Department, we say to the Health
Department, you shall provide us a report on
this. No report. We give them more time. We
have the Aging Committee bill that Senator
Maziarz did in which we said you shall conduct
an evaluation of this program and the Medicaid
consequences and long-term care. And the
Executive Department didn't bother to do that.
3460
So with all due respect to Senator
Seward, we now have a bill before us in which
Senator Seward I think properly acknowledges
that we have no evidence that the state
director hasn't given local communities their
fair share of veterans' service dollars. That
practice on behalf of the State Director of
Veterans' Affairs, has happened under
Democratic administrations, under Republican
administrations. This is money, let's face
it, that we tell the State Bureau of Veterans'
Affairs to get to the local commissions as
quickly as possible.
The way we do it is we use the word
"may," we say you may do it. But in essence,
we're telling him to do it. And sure enough,
he's actually done it. So we use the word
"may" in a statute, and it gets done. We use
the word "shall" in other states, and it
doesn't get done.
So with all due respect to Senator
Seward, I can't understand the difference
between these two words. Sometimes we say
"shall" and it's ignored; sometimes we say
"may" and it's done. I would suggest to
3461
Senator Seward that if today's experience has
any value to us, we ought to leave the word
"may" in there because that means that it may
actually get done.
And I would suggest that if we put
the word "shall" in there, it all but assures
the Executive will not do it. That's my
essence of what we've debated today. And
that's why, Senator Seward, your bill, which
has certainly a very beneficial intent -- I
appreciate, again, your responsiveness when a
constituent says, This raises a question, why
is it 'may' instead of 'shall'? I would
suggest that they're much better off with
"may," because "may" means that it happens.
And when we use "shall," it's a virtual
guarantee that it won't.
Under those circumstances, Mr.
President, I'm going to vote in favor of this
bill. I think we ought to tell them "shall."
My only question to the other members of this
house is, do we really mean it this time? Is
that what really we're intending to say?
I would suggest in our attempts at
legislative draftsmanship, and our people at
3462
the bill-drafting commission are so good and
so diligent, they've got to find a word that's
more powerful than "shall." How about "must"?
Let's use the word "must." Because maybe the
Executive branch will think then, if we pass a
bill that says "must," that we really actually
mean it. Instead of the word "shall," which
most often in our experience with the
Executive branch, certainly based on the bills
we've seen today, means, oh, I'll get around
to it when I want to.
Mr. President, I'm going to vote in
favor of this bill. I would suggest that
Senator Seward, before -
ACTING PRESIDENT MARCELLINO:
Excuse me, Senator.
Senator Montgomery, why do you
rise?
SENATOR MONTGOMERY: I wonder if
my colleague would answer a question.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, would you yield?
SENATOR DOLLINGER: Yes, Mr.
President, I'd be glad to.
ACTING PRESIDENT MARCELLINO: He
3463
yields.
SENATOR MONTGOMERY: Thank you,
Mr. President.
Senator Dollinger, would it satisfy
you if we created an E felony for anyone who
does not "shall," based on your -
SENATOR DOLLINGER: Yes, through
you, Mr. President, maybe that's what we
should do. We could guarantee that these
things happen in the Executive branch by just
making it a crime not to follow the
Legislature's intent.
I would note for Senator
Montgomery's edification that we do use the
word "shall" a lot in our Penal Law, and we
say that people shall do this or they shall be
punished. If anything, our experience today
has said when we use the word "shall" and we
tell the Executive to do something, it more
than likely will not get done.
I would suggest, Senator Seward,
when it's considered by the other house,
substitute the word -- make an amendment. I
can't make that amendment, because if I made
that amendment, we'd have a canvass of
3464
agreement to decide whether the word "shall"
or "must" ought to be inserted into this bill.
I would just suggest that the word that the
might actually catch the Executive's attention
and achieve the goal you're looking for, which
is a direct command to do it or else, is the
word M-U-S-T.
I'll vote in favor of it, but I am
afraid we only mean "maybe."
ACTING PRESIDENT MARCELLINO:
Senator Malcolm Smith.
SENATOR MALCOLM SMITH: Thank
you, Mr. President. Would the sponsor yield
for a question or two?
ACTING PRESIDENT MARCELLINO:
Senator seward, do you yield?
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR MALCOLM SMITH: Thank
you, Mr. President. Through you. I believe
the sponsor, as one who is a strong advocate
for vets, I think his bill is on the right
track. I just have a couple of questions I'd
like to ask him.
3465
And in terms of expenditure of the
funding for -- through the -- by the
commission, this is actually done through the
commission; correct? The commission makes
that decision before any expenditure can
happen, is that how it works?
SENATOR SEWARD: Well, Mr.
President, the way that the funds flow out to
the local governments is, as I described
earlier, every year in the budget of course a
total sum is appropriated, the last couple of
years, it's been $575,000. And then there is
a formula that exists in the law currently
that would continue, with this bill passing,
that distributes the money. It's based on
population. Obviously, the more populous
counties receive more funds. But there is a
minimum of $5,000 for the smaller counties.
SENATOR MALCOLM SMITH: Through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: He
3466
yields.
SENATOR MALCOLM SMITH: Thank
you, Mr. President.
Through you, Mr. President, is the
sponsor saying that the commission has no
involvement with the appropriation or when the
expenditure is released?
SENATOR SEWARD: Well, Mr.
President, the Senator refers to a commission.
We're really talking about the Director of the
Division of Veterans' Affairs. And the funds
are appropriated, obviously, by this
Legislature in the form of the budget passing.
And the formula that I have described exists
in the law. As a matter of fact, I think it's
been there since 1945.
SENATOR MALCOLM SMITH: Through
you, Mr. President, if the sponsor will
continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator Seward, do you yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR MALCOLM SMITH: It is my
3467
understanding, Mr. President, that there is a
commission that is involved that determines
the expenditure at that point in which
expenditure is done through the director.
SENATOR SEWARD: Yes, the Senator
is correct. Within the Division of Veterans'
Affairs, there does exist a Veterans' Affairs
Commission that the state director to which I
referred, with the approval of the Veterans'
Affairs Commission. That is correct, there is
that extra step there in the law.
SENATOR MALCOLM SMITH: Through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MARCELLINO: Do
you yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: He
continues to yield, Senator.
SENATOR MALCOLM SMITH: Thank
you, Mr. President.
Through you, does the sponsor know
how the commission is currently involved with
the fiscal affairs of the division at this
point?
3468
SENATOR SEWARD: Well, Mr.
President, it's my understanding that the
State Veterans' Affairs Commission is purely
an advisory panel made up of veterans and
others who advise the Director of the Division
of Veterans' Affairs. In terms of being
involved in the day-to-day administration of
the division of veterans affairs, they are
not. It's purely an advisory panel.
And I would suspect, Mr. President,
that the state director merely runs the
numbers by this commission. The state
director is really the key person, the true
administrator and the true head of the
Division of Veterans' Affairs.
Very often -- it's very common
throughout state government that various
so-called advisory panels are in existence,
and this Veterans' Affairs Commission is such
a body.
SENATOR MALCOLM SMITH: Through
you, Mr. President, if the sponsor will
continue to yield.
ACTING PRESIDENT MARCELLINO: Do
you continue to yield, Senator Seward?
3469
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: He
does, sir.
SENATOR MALCOLM SMITH: Thank
you, Mr. President. Through you.
From time to time there are
agencies, at no fault of their own, who don't
often utilize the funds, for whatever reason,
or it's not spent where it should be. Does
the director have any discretion, if he should
note such performance, to have the funds
appropriated elsewhere?
SENATOR SEWARD: Mr. President,
something that would also continue, which is
existing practice, required, the local
veterans' service agencies have to, you know,
file the necessary paperwork showing that -
their local budget, how they spend their
funds. And only upon the receipt of this type
of information, which is a full accounting of
their finances, does the state aid flow.
I might point out that we're really
talking about small sums of money here. You
know, it's $5,000 for the counties that I
represent, because they are under 100,000 in
3470
population. So it's a -- I must say it's
really a token, but yet very, very important
to putting together the financing of these
local veterans' service agencies.
SENATOR MALCOLM SMITH: Through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: He
continues to yield, sir. You may proceed.
SENATOR MALCOLM SMITH: Thank
you, Mr. President.
Through you, Mr. President.
Notwithstanding that it's a small amount, and
clearly I can agree with that, the question
before me becomes, in terms of -- as we were
talking earlier today, we were talking about
"shall," I heard a lot of discussion around
"shall" and "may." I'm not sure where all of
that was going. But can we be assured as a
Legislature that the funding will be available
for these particular agencies? Is it
guaranteed that that is such? Is there a
3471
memorandum for this bill as well that we can
be assured that the veterans will get this
money where necessary?
SENATOR SEWARD: Well, Mr.
President, that's the whole point of my
legislation, is to take away any sense of
ambiguity in the law by changing that word
from "may" to "shall." Now, I can't speak to
the other examples that have been cited here.
This is a sincere attempt, this legislation,
to honor the veterans of this state by taking
away any sense that their needs will not be
attended to with some state assistance to the
local veterans' service agencies that exist
around this state.
SENATOR MALCOLM SMITH: Through
you, Mr. President, one other question,
please, if the sponsor will continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield for another question?
SENATOR SEWARD: Yes. Yes.
ACTING PRESIDENT MARCELLINO: He
yields, sir.
SENATOR MALCOLM SMITH: Thank
you. Through you, Mr. President.
3472
The question, I guess -- and let me
rephrase it in terms of a memorandum on the
bill. My concern is, is there any guarantee
that the Legislature will put the funds or
make the funds available for this particular
program?
SENATOR SEWARD: Well, Mr.
President, in terms of the dollars involved
to -- that would flow through this formula for
the Director of the Division of Veterans'
Affairs to disburse to the counties through
this formula, the dollar amount obviously is
an annual decision that's made by this
Legislature through the appropriation process.
I certainly would support the continuation of
state support for these local veterans'
service agencies, and I'm sure you would as
well.
And once we pass another state
budget, I certainly have every expectation
that we're going to continue to support our
local veterans' service agencies through an
appropriation. We're just merely, through
this bill, tightening up language that exists
in the law. I think to honor our veterans,
3473
why continue to have ambiguity in the law, is
my question. A rhetorical question, Mr.
President.
SENATOR MALCOLM SMITH: Right.
Thank you, Mr. President. One more question,
through you, if the sponsor will continue to
yield.
ACTING PRESIDENT MARCELLINO: One
more question, Senator Seward?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: I
believe he yields.
SENATOR MALCOLM SMITH: And it's
just a simple question. Can you tell me how
many times the commission meets? Do you know
how often?
SENATOR SEWARD: Mr. President, I
really don't have the answer to that question.
SENATOR MALCOLM SMITH: On the
bill.
ACTING PRESIDENT MARCELLINO:
Senator Smith, on the bill.
SENATOR MALCOLM SMITH: Thank
you, Mr. President. And I thank the sponsor
too.
3474
I can tell you, as one who believes
that I am going to spend most of my life
speaking on behalf of veterans, I think
unfortunately they have allowed us to treat
them like second-class citizens to our fault.
For some reason, we tend to treat veterans as
though what they did for us was they did it as
a favor and we say thank you to them by simply
shaking their hand from time to time, by
having a particular day to their honor.
My belief is that we should
probably be honoring veterans every day of our
lives. Had it not been for them, probably we
would not be standing here or sitting here
having the liberties that we do have in this
country.
I have taken it upon myself to
devote a lot of my energy to veterans. And
whether it is shall or may or will, I can only
tell you that we must make sure that in
everything that we do, that we offer our
thanks and honor to veterans.
I think this is a good bill. I
think it's a small step. I think it could be
somewhere two or three or four or five times
3475
this amount, as relates to the formula for
allocation of these funds. And I would just
hope that my colleagues would support the
bill, and not because of anything more than
the fact that the vets deserve everything that
we give them and even more.
Thank you very much, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the sponsor
would yield for a few brief questions.
ACTING PRESIDENT MARCELLINO:
Senator Seward, would you yield?
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MARCELLINO: He
yields, sir.
SENATOR SCHNEIDERMAN: Thank you.
I am not completely clear on the
system of caps. And my reading of this sounds
as though -- it sounds like a very
well-intentioned bill, but it sounds like it's
actually not going to deliver very much money
at all in the cases of cities or counties with
a large population. Do I understand correctly
3476
that $5,000 limit on the $2500 per 100,000
limits, that's a whole gross number applying
to the whole budget of the agency, or is that
per program?
SENATOR SEWARD: Mr. President,
that is directed toward the gross budget of
the local agencies.
SENATOR SCHNEIDERMAN: So it
would not be the case if a county or city
wants to have a counseling program for
veterans and then it also has an education
program for veterans, each program would not
be eligible for that sum, the total that the
city or county agency would receive would be
the $5,000 or plus 2500?
SENATOR SEWARD: Well, Mr.
President, the -- it is not done an a
program-by-program basis. Obviously if the
local veterans' service agencies, in
conjunction with their local budget-making
process, wish to have these fine programs,
that's certainly up to them. What we're
talking about here is the state support for
the overall programs.
SENATOR SCHNEIDERMAN: Through
3477
you, Mr. President, if the sponsor will
continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, sir.
SENATOR SCHNEIDERMAN: How was
the determination made -- and again, I think
this sounds like a very worthwhile program.
I'm just concerned that the caps are far too
low for large metropolitan areas, for large
cities and counties. How was the
determination made about the $5,000 and the
$2500 per 100,000?
SENATOR SEWARD: Well, Mr.
President, the formula that is being referred
to has been in the law for some time, and we
could certainly have a discussion about their
inadequacy. That could be very well a subject
of another piece of legislation, or addressed
through our budget-making process a bit later
in the session.
The point of this particular
legislation is to take that initial step
3478
toward taking away any sense of discretion on
the part of the Division of Veterans' Affairs
in terms of the disbursement of funds under
the existing formula. The question of whether
the formula should be change or not is an
interesting one, and perhaps one that should
be explored. I'm not saying it shouldn't.
But that is not direction of this particular
piece of legislation.
SENATOR SCHNEIDERMAN: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT MARCELLINO:
Senator Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I think
this is a very worthwhile bill. And I echo
what others have said. And I know Senator
Smith, Senator M. Smith is very actively
involved in this area and is riling us up
about the need to do more for veterans.
It does seem to me, however, that
the formula is really out of whack with the
costs of doing business in 2001. And I know
that in the areas that I'm familiar with in
New York City and the surrounding counties,
$5,000 plus $2500 per 100,000 is not going to
3479
support very many veterans. So that while I
do support the bill, I do hope that we will be
able to address that issue later on in this
session. Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Onorato.
SENATOR ONORATO: Mr. President,
will the Senator yield for one question?
ACTING PRESIDENT MARCELLINO:
Senator, will you yield for a question?
SENATOR SEWARD: Yes.
SENATOR ONORATO: Senator Seward,
because we've been hearing so much about the
caps on the bill and how much we're going to
allow, does the director have any discretion
in denying perhaps some of the underutilized
areas of the state that are not perhaps in
need of as much money as some of the others?
Does he have any discretion in shifting some
of those funds around to areas that are more
in need of the funds than others, or must he
stay within the guidelines of the caps?
SENATOR SEWARD: Mr. President,
the formula is very well defined in the
statute currently. And in terms of the
3480
Director of the Division of Veterans' Affairs
being able to move money around within that
formula, that's not possible because the
formula is very well defined in the
legislation.
SENATOR ONORATO: Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Oppenheimer.
SENATOR OPPENHEIMER: If the
sponsor will yield to a question.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield?
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MARCELLINO: He
yields, Senator Oppenheimer.
SENATOR OPPENHEIMER: Thank you,
Jim.
I guess I'm questioning the
services that would be provided. I'm sorry, I
was out of the chamber just now for a few
minutes. And because -- I'll tell you why
item asking. We have a Veterans of Foreign
Wars that owns a building, and they're having
trouble keeping up the building, and they
wondered -- they asked me if there was some
3481
assistance for them to help maintain the
building. Is that a service that could be
included?
SENATOR SEWARD: Well, Mr.
President, are you talking about a -- like a
post, like a Legion post?
SENATOR OPPENHEIMER: Yeah, a
post.
SENATOR SEWARD: This is not
the -- these funds are not directed toward
individual veterans' posts. These funds are
directed toward either the county- or the
city-operated veterans' service agencies. You
know, they have the counselors and other
assistance to the veterans.
SENATOR OPPENHEIMER: Right.
Right.
SENATOR SEWARD: You'll have to
deal with your issue in another way. This
bill is directed to your county and city
veterans' service agencies.
SENATOR OPPENHEIMER: Well, we
tried.
On the bill.
ACTING PRESIDENT MARCELLINO:
3482
Senator Oppenheimer, on the bill.
SENATOR OPPENHEIMER: I think
whatever we can do to help the veterans -- and
we have done a lot at Montrose now which will
assist some of our aging -- after many years,
assist some of our aging veterans. And I
would agree that this is only a small amount
to start to meet the needs of them. But as
many of you know, I was brought up as an Army
brat. My father was a colonel in the Army.
And I think anything that we can do to assist
them, because they certainly went to bat for
us.
So I'll be voting in favor.
ACTING PRESIDENT MARCELLINO:
Anyone else wishing to be heard on this bill?
Seeing none, the debate is closed.
Read the last section, please.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
April.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
3483
ACTING PRESIDENT MARCELLINO: The
bill is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
would you call up Calendar Number 205, by
Senator Morahan.
ACTING PRESIDENT MARCELLINO: The
Secretary will read Calendar Number 205.
THE SECRETARY: Calendar Number
205, by Senator Morahan, Senate Print 1158, an
act to amend the Military Law, in relation to
extending certain benefits.
SENATOR ONORATO: Explanation.
ACTING PRESIDENT MARCELLINO:
Senator Morahan, an explanation has been
requested.
SENATOR MORAHAN: Certainly, Mr.
President.
This bill will amend current law,
the New York Military Law, that deals with
military personnel who maybe, because of
military duties or assignments, get a stay on
any civil actions that they may be involved
with. This bill now would extend those same
right to the minor dependent children of the
3484
military personnel.
ACTING PRESIDENT MARCELLINO:
Senator Malcolm Smith, you are recognized.
SENATOR MALCOLM SMITH: Thank you
very much, Mr. President. Mr. President,
through you, if the sponsor would yield for a
couple of questions.
ACTING PRESIDENT MARCELLINO:
Senator Morahan, do you yield?
SENATOR MORAHAN: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR MALCOLM SMITH: Mr.
Chairman, just a couple of questions. One,
with regards to the bill in terms of it
covering minors, is there any particular
reason why it doesn't cover adults such as
disabled or elderly?
SENATOR MORAHAN: It doesn't
cover them? No.
SENATOR MALCOLM SMITH: Is there
any particular reason why it doesn't cover
them, disabled, elderly, parents?
SENATOR MORAHAN: Well, I can't
give you a reason off the top of my head why
3485
they're not covered. But let me say this.
Right now the law is silent on minors, and in
a lawsuit or a law case, a judge did give the
extension of the benefits to minors. And
therefore, this language just clears it up to
coincide with a law case that was in New York
in, I guess, 1992.
SENATOR MALCOLM SMITH: Through
you, Mr. President, if the sponsor will
continue to yield.
ACTING PRESIDENT MARCELLINO: Do
you continue to yield, sir?
SENATOR MORAHAN: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields, sir.
SENATOR MALCOLM SMITH: Excluding
the Justino versus New York City Housing
Authority case, do you know how frequently the
stays are requested?
SENATOR MORAHAN: Pardon?
SENATOR MALCOLM SMITH: How
frequently are they requested, stays? Do you
know how frequently stays are requested,
excluding that particular case?
SENATOR MORAHAN: It's really
3486
indefinite. It's very hard to come up with a
number, inasmuch as this could be any time
they're deployed, reassigned, temporarily out
at maneuvers or whatever it may be. So it's
really hard to say how often this will come
up.
And to the first part of your
answer, on the disabled and the other people,
that's probably -- and elderly, if you will,
we're trying to clarify, and our law is a
takeoff of the federal law, the federal
Soldiers and Sailors Act. That act provides
only for the military personnel themselves.
Okay?
This will amend New York law to
include the military plus the minors.
SENATOR MALCOLM SMITH: Mr.
President, through you, I have another
question, if the sponsor will continue to
yield.
ACTING PRESIDENT MARCELLINO:
Senator Morahan, do you yield?
SENATOR MORAHAN: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, sir.
3487
SENATOR MALCOLM SMITH: Are there
provisions to accommodate the members of the
dependent family in instances such as these
when they are requesting or when the stays are
granted?
SENATOR MORAHAN: Senator, I'm
having difficulty understanding the question.
SENATOR MALCOLM SMITH: Are there
provisions to accommodate the military members
and their dependents? In other words, when
they're asking for these particular stays and
they're granted, are there facilities that are
available to them, to accommodate them?
SENATOR MORAHAN: Senator, I
don't know if I'm going to answer your
question exactly the way you would like,
because I'm having difficulty understanding
the question. But assuming I've heard you,
when you say facilities, what do you mean by
facilities?
SENATOR MALCOLM SMITH: Well,
provisions. Are there provisions made to
accommodate them? In other words -
SENATOR MORAHAN: When you say
provisions to accommodate, you mean like hotel
3488
rooms? I mean, what are you speaking about?
SENATOR MALCOLM SMITH: Fly them
there, fly them back during the time while
this is going -- I'm sorry, through you, Mr.
President.
SENATOR MORAHAN: No, this merely
changes a statute, okay, that now exists of
the New York State Military Law, the Soldiers
and Sailors Act, I think it's Section 340,
that now allows minors -- now, I don't know -
what, to come back for a civil suit? They
won't have to, under this law.
SENATOR MALCOLM SMITH: Through
you, Mr. President, if the sponsor will
continue to yield.
ACTING PRESIDENT MARCELLINO: Do
you continue to yield, Senator?
SENATOR MORAHAN: Yes, I do.
SENATOR MALCOLM SMITH: Let me
ask you the question a different way. Let's
talk about there are speedy trial requirements
in criminal cases. And I guess my question
is, in this particular instance when stays are
granted, how would that interact with the
speedy trial requirements?
3489
SENATOR MORAHAN: Well, I don't
know about speedy trial. That would be just
for criminal. This is just civil law.
SENATOR MALCOLM SMITH: Correct.
I'm -- through you, Mr. President, if the
sponsor will continue to yield.
ACTING PRESIDENT MARCELLINO: Do
you yield, sir?
SENATOR MORAHAN: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR MALCOLM SMITH: In
criminal cases, yes, there are speedy trial
requirements. My question is, in this
particular instance it is civil. They're
still requesting a stay in a civil act, what
have you.
SENATOR MORAHAN: Yeah. For as
long as it takes.
SENATOR MALCOLM SMITH: For as
long -- okay, that's the answer.
SENATOR MORAHAN: For as long as
they're away.
SENATOR MALCOLM SMITH: Just one
last question, if the sponsor would continue
3490
to yield, Mr. President.
ACTING PRESIDENT MARCELLINO: Do
you yield for another question?
SENATOR MORAHAN: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR MALCOLM SMITH: The
memorandum in the case that a proper notice of
claim was not filed on the minor's behalf, I
guess the question for me was a notice of
claim ever filed or -
SENATOR MORAHAN: Yes, there was
a case where the aunt -- the child had to
leave the country, and I believe it was an
aunt that went down as a guardian to speak for
and ask for a stay, and that's what gave the
genesis of this bill some impetus, because
they wanted to clarify that law. The judge in
the case I believe, okay -- I have the court
papers here, but I don't want to take the time
to read them. I believe they ruled that she
could serve as a guardian, and he was excused,
if you will, from the -- he got the stay based
on the fact that he was a minor child of a
member of the military.
3491
Now, what we're trying to do is
just take that court ruling, if you will, and
put it in law so it doesn't get repeated in
some other future case where somebody may need
that relief.
SENATOR MALCOLM SMITH: Thank you
very much, Mr. President. On the bill.
ACTING PRESIDENT MARCELLINO:
Senator Malcolm Wilson [sic], on the bill.
SENATOR MALCOLM SMITH: Mr.
President, I guess I can tell you, just one of
my joys working here thus far has been working
with the chairman of this particular
committee. I guess everyone tends to believe
that some of us in the Legislature can be very
cynical about what we do and how we pursue our
missions. And I can tell you the altruism
that Senator Morahan has for veterans and this
issue when was a joy to me when I began to
work with him.
I think the bill is right on, and I
hope he understood my questions as more out of
concern for vets and making sure they are
given every just cause and every benefit and
opportunity that they can to be dealt with in
3492
a fair and proper way.
So I would urge my colleagues,
notwithstanding their independent concerns on
this bill, to support the bill. And I would
just encourage Senator Morahan to continue the
path that he is going, and as the ranking
member on Veterans and Military, I'll always
offer my assistance to him.
ACTING PRESIDENT BONACIC:
Senator Breslin.
SENATOR BRESLIN: Mr. President,
would the sponsor yield for a couple of
questions.
ACTING PRESIDENT MARCELLINO:
Senator Morahan, will you yield?
SENATOR MORAHAN: Yes, I do.
ACTING PRESIDENT MARCELLINO: He
yields, sir.
SENATOR BRESLIN: Given the fact
that you indicated it doesn't apply to
criminal trials, and that most infants are, in
most situations immune from lawsuits, what
kinds of situations do you envision this
statute handling?
SENATOR MORAHAN: Well, they
3493
could be Office of Mental Health, it could be
a lawsuit that they're involved with. In
other words, they may be the victim of the
lawsuit, you know, of the -- they may be the
claimant, if you will, and they can't be there
to pursue it when the trial comes up.
It could be a custody matter, could
be a matter of custody in the Family Courts,
those sorts of things.
SENATOR BRESLIN: Then again
through you, Mr. President, if the sponsor
would continue to yield.
ACTING PRESIDENT MARCELLINO: Do
you continue to yield?
SENATOR MORAHAN: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, sir.
SENATOR BRESLIN: If in fact
there was a custody situation you indicated it
covers and they were the focus of that
investigation or that determination of
custody, and there was another -- there was
someone here in New York State alleging that
they should be the custodial parent of that
infant, does this statute protect that infant
3494
from coming back and being subject to a
custody proceeding?
SENATOR MORAHAN: Yes. As I
understand the question, it's if the custodial
parent is in the military and there may be a
court action regarding custody. But if that
child is in the custody of one parent and that
parent is in the military and that parent goes
overseas, then the child would go with the
parent.
SENATOR BRESLIN: Again through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MARCELLINO:
Does the sponsor yield?
SENATOR MORAHAN: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR BRESLIN: How would it
be, then, in a situation if there was a joint
custodial relationship, with each parent
having equal access to the child, and the
person in the military was transferred and
took that child with him? Would this
legislation then act to insulate that child
3495
from returning to any kind of custody
proceeding relative to the parent who lives in
the State of New York who is not in the
military?
SENATOR MORAHAN: Yes.
SENATOR BRESLIN: Again, through
you, Mr. President.
ACTING PRESIDENT MARCELLINO: Do
you yield, sir?
SENATOR MORAHAN: Yes, I do,
Senator.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR BRESLIN: Then it's
conceivable that there's a contested custody
situation where full custody has not been
determined and a child might be with a parent
who does not have full custody -
SENATOR MORAHAN: I'm sorry, I
was talking to counsel. Would you start your
question again? I'm sorry.
SENATOR BRESLIN: Again, through
you, Mr. President -
SENATOR MORAHAN: I'm trying to
listen to two people and it's hard, Senator.
3496
SENATOR BRESLIN: Might there in
fact be a situation where there is a custody
which is being challenged, that is still being
contested? And generally in custody
proceedings each parent would have an equal
right to a child.
SENATOR MORAHAN: Yes.
SENATOR BRESLIN: And in the
hypothetical, the military parent is
transferred to a jurisdiction outside of
New York State for a term of, let's say, four
years. Would this statute then insulate and
protect the military person and the child
against the other parent who has an equal
claim to the custody of that child?
SENATOR MORAHAN: Counsel advises
me that the court has some discretion and that
what is in best interests of the child would
be considered.
SENATOR BRESLIN: Again, through
you, Mr. President, if the sponsor will
continue to yield.
SENATOR MORAHAN: I continue to
yield, yes.
ACTING PRESIDENT MARCELLINO: He
3497
yields, Senator.
SENATOR BRESLIN: The best
interests of the child is the traditional,
accepted determination on custody of a child.
But if that child is not subject to our
jurisdiction, how can that be determined?
SENATOR MORAHAN: The court
access would have already started. This is
for a stay. This is for a stay of a
proceeding already underway. Okay? And they
can apply for the stay. When they make
application for the stay, the court, knowing
that the child has this right and is protected
under military law, and his mother may be
shipped over to Germany, that the court could
say in the best interests of the child that it
would go to Germany.
But it does afford the right to ask
for the stay. The issuance of the stay, I
would believe would have some discretion by
the judge.
SENATOR BRESLIN: Again, through
you, Mr. President, if the sponsor would
continue to yield.
SENATOR MORAHAN: I will continue
3498
to yield, yeah.
SENATOR BRESLIN: Well, in that
situation, wouldn't it be that a court has had
sufficient evidence to make a determination as
to what is in the best interests of the child,
but before -- there are many situations where,
before a court can make that determination, a
child would go with one parent who might have
an equal right to that child. Would this
statute then disenable the parent here in
New York from bringing that child to a court
proceeding?
SENATOR MORAHAN: I believe,
Senator, that the court would look at the
application, wherever they are in the process,
and look at the application for a stay and
both parents could talk to the stay, and
knowing that the child has this right, if the
court decides that -- you know, get the stay,
that the court could rule for the best
interests of the child. If it would be that,
you know, he's going for four years or the
youngster is going for four years, maybe
that's going to be some measurable determinant
for the court.
3499
SENATOR BRESLIN: Again through
you, Mr. President, if the sponsor would
continue to yield.
SENATOR MORAHAN: Yes.
SENATOR BRESLIN: If I were in
Family Court, if there was a situation wherein
there was a juvenile distinction petition or a
PINS petition that has been filed, would the
movement of that child with his military
parent either stay the proceeding which has
been initiated or, if it hasn't been
initiated, stay it prospectively being
initiated?
SENATOR MORAHAN: This is a civil
statute. And it's my understanding, okay,
that if the proceeding has not started, there
is no stay, and the person could take the
child -- if there's going to be a battle or a
divorce but they have not started it, there's
nothing to issue a stay about.
SENATOR BRESLIN: Then if there
was a -- and again through you, Mr. President
that isn't in the nature of a criminal
proceeding. It's civil in nature, Family
Court.
3500
SENATOR MORAHAN: I know that.
Civil, yes.
SENATOR BRESLIN: Then this
statute would prevent -- if someone -- there
were allegations of juvenile delinquency, the
child left with the military parent, is it
correct that it would then stay any -- not
stay, would prevent the initiation of any kind
of juvenile delinquency petition until that
child returned to New York State?
SENATOR MORAHAN: Now, you're
giving me a -- has this court action that
you're alluding to commenced?
SENATOR BRESLIN: No, it hasn't
been commenced.
Again through you, Mr. President, a
hypothetical. A child has committed a couple
of burglaries, and then there's all set to be
a commencement of a juvenile delinquency
petition, the parent gets transferred to
Germany -
SENATOR MORAHAN: This doesn't
speak to that issue. The current law is the
current law. This only speaks to commenced
proceedings. So if it hasn't been commenced,
3501
whatever the judge decides now, under whatever
existing statutes they work under, that's what
would happen.
SENATOR BRESLIN: Again through
you, Mr. President. Then this legislation is
only for cases which have been initiated by a
petition or a summons that are in being before
the transfer takes place; is that correct?
SENATOR MORAHAN: Yes, it's my
understanding that this is a stay.
SENATOR BRESLIN: Then again
through you, Mr. President, would it have
any -
SENATOR MORAHAN: You can't stay
anything that hasn't started.
SENATOR BRESLIN: Okay. Then in
fact, this would have no bearing on the
statute of limitations.
SENATOR MORAHAN: No. There's a
separate provision for that in the Military
Law, but we're not amending that today.
SENATOR BRESLIN: Thank you, Mr.
President. Thank you, Senator.
ACTING PRESIDENT MARCELLINO:
Senator Schneiderman.
3502
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the sponsor
would yield for a few questions.
SENATOR MORAHAN: Yes, I do.
ACTING PRESIDENT MARCELLINO:
He'll yield.
SENATOR SCHNEIDERMAN: Following
up on the very helpful colloquy between the
sponsor and Senator Breslin, I don't know this
area of the law very well, but I don't see
anything in this section that would limit this
to civil proceedings. Is there some other
section that limits this to civil actions?
SENATOR MORAHAN: The whole act
304 -- is it 340? Just bear with me a moment,
Senator.
The title of the act that we're
amending is the New York State Soldiers and
Sailors Civil Act.
SENATOR SCHNEIDERMAN: Through
you, Mr. President. So there's another
section other than Section 304 that addresses
that issue?
SENATOR MORAHAN: Twenty-five of
them.
3503
SENATOR SCHNEIDERMAN: Thank you.
SENATOR MORAHAN: Twenty-five of
them. Don't ask me to recite them, okay.
SENATOR SCHNEIDERMAN: All right.
I'll move to my next question.
Following up on the discussion with
Senator Breslin, it does seem to me that this
does shift the advantage substantially in a
joint custody situation to the parent in
military service. My reading of this is that
the discretion of the court is limited to a
finding that the ability of the plaintiff or
defendant to prosecute the action or conduct
their defense only relates to the party that
is in military service, I'm reading the last
five lines of the bill.
Isn't that correct that if there
was prejudice to the parent that was not in
military service, that would not enable the
court to apply its discretion?
SENATOR MORAHAN: There is an
intent, an inherent intent to give preference
to those people who serve in the military to
defend the nation. So -- and in that service,
you know, they don't voluntarily go from here
3504
to there. They're issued orders. And the
supposition here is that if their military
assignment requires them to be moved or to be
absent from the area for military reasons,
then they should not be harmed in any way and
they should have some consideration. And
that's the way the -- and the purpose of the
Soldiers and Sailors Civil Relief Act.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor will
continue to yield.
SENATOR MORAHAN: Yes, I continue
to yield, Senator.
ACTING PRESIDENT MARCELLINO:
Senator Schneiderman, he yields.
SENATOR SCHNEIDERMAN: Yes, thank
you. I appreciate that. My concern, though,
is that this really may have an unintended
effect of prejudicing the parent that is not
in the military or a party that would be
adversely affected by this. Because if the
judge's discretion was broad enough so that,
you know, you'd say the judge in the interests
of justice or in the best interests of the
child would decide to grant or refuse to grant
3505
a stay, that would be one thing.
That is not the language of this
bill, and that's what raises my concern. The
language of the bill that I want to address is
in the -- starting in line 13, which is the
description of the limitation on the court's
discretion. "Unless, in the opinion of the
court, the ability of plaintiff to prosecute
the action and defendant to conduct his
defense . . . The ability of the party to
represent his interest is not materially
affected by reason of his military service or
military service of the parent or guardian."
So that limits the judge's
discretion to ascertaining whether or not the
party that's in the military's ability to
defend or prosecute is materially affected.
So in a situation even if the particular
operation of the statute was to provide for
the most severe sort of prejudice to the
nonmilitary party, the court would be lacking
discretion.
And I don't think this is the
intended consequence, but I think that this
section is poorly drafted if the intent was to
3506
allow the court to exercise its discretion to
prevent any sort of a miscarriage of justice
under those circumstances.
Is that -- is my reading correct?
SENATOR MORAHAN: Yeah, you did a
good job.
SENATOR SCHNEIDERMAN: Well,
thank you. I'd like to get that section of
the transcript.
The -- I would urge in that case -
SENATOR MORAHAN: 25 cents a
page, Senator.
SENATOR SCHNEIDERMAN: On the
bill.
ACTING PRESIDENT MARCELLINO:
Senator Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: 25 cents a
page? That's better than I do in the supply
room.
I think this is a perfectly
reasonable bill and a modification of the
existing law. I am concerned that the
particular language in the last five lines has
the unintended effect of creating prejudice
where prejudice -- I'm sure the sponsor and
3507
distinguished counsel and staff did not intend
that. I think we should correct that to
ensure that we don't have unintended negative
consequences on other parties to these
proceedings.
But even in the absence of that, I
think this is a fine effort to protect the
dependents in the military and protect really
those who are serving from undue stress
created by these problems with their dependent
children.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO: Any
other Senator wishing to be heard on this
bill?
Seeing none, the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
3508
Senator Skelos, that completes the
reading of the noncontroversial calendar -
the controversial calendar, excuse me.
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Skelos.
SENATOR SKELOS: Would you please
lay aside Calendar Number 194 for the day, at
the request of the sponsor.
ACTING PRESIDENT MARCELLINO: So
ordered.
SENATOR SKELOS: Is there any
housekeeping at the desk?
ACTING PRESIDENT MARCELLINO: I
believe we have a motion by Senator McGee, if
we might return to motions and resolutions.
SENATOR McGEE: Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator McGee.
SENATOR McGEE: I offer the
following amendment to Calendar 32, S694, by
Senator Goodman.
One more.
ACTING PRESIDENT MARCELLINO: The
amendment is received, and the bill will
3509
retain its place on the Third Reading
Calendar.
SENATOR McGEE: And, Mr.
President, on behalf of Senator Goodman, I
move that the following bills be discharged
from their respective committees and be
recommitted with instructions to strike the
enacting clause. Senate Number 698.
ACTING PRESIDENT MARCELLINO: So
ordered.
SENATOR McGEE: Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Skelos.
SENATOR SKELOS: Please recognize
Senator Dollinger.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger.
SENATOR DOLLINGER: Thank you.
Mr. President, I hereby give
written notice, as required by Rule XI, that I
will move to amend the rules and add a new
rule, XV, in relation to ethical standards for
members, officers, and employees of the State
Senate.
Thank you, Mr. President, and
3510
thanks to the Deputy Majority Leader.
ACTING PRESIDENT MARCELLINO:
We've received the notice, and it will be
filed.
SENATOR DOLLINGER: Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Skelos.
SENATOR SKELOS: Please recognize
Senator Paterson.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: Mr. President,
I would like to advise the members of the
Minority that there will be a Minority
conference tomorrow morning at 10:30 a.m.
That's tomorrow, March the 28th, at
10:30 a.m., in Room 3.141925, which is the
furthest I can carry out pi at this particular
time, Mr. President.
ACTING PRESIDENT MARCELLINO:
There will be a Minority conference tomorrow
morning at 10:30 in Room 314.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there being no further business, I move we
3511
adjourn until Wednesday, March 28th, at
11:00 a.m.
ACTING PRESIDENT MARCELLINO: On
motion, the Senate stands adjourned until
Wednesday, March 28, at 11:00 a.m.
(Whereupon, at 4:40 p.m., the
Senate adjourned.)