Regular Session - April 2, 2001
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NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 2, 2001
3:00 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we bow our heads in a moment of
silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Friday, March 30th, the Senate met pursuant to
adjournment. The Journal of Thursday,
March 29th, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
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Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Marcellino.
SENATOR MARCELLINO: Yes, Madam
President. I move that the following bill be
discharged from its committee and be
recommitted with instructions to strike the
enacting clause. And that would be my bill,
Senate 495.
THE PRESIDENT: So ordered.
SENATOR MARCELLINO: And on
behalf of Senator Libous, please place a
sponsor's star on Calendar Number 193, 235,
and 309.
THE PRESIDENT: The bills will be
starred, Senator.
SENATOR MARCELLINO: Thank you.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Crime Victims, Crime and Corrections Committee
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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.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution at the desk by
Senator DeFrancisco. May we have the title
read and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
DeFrancisco, Legislative Resolution Number
1116, recognizing the White Ribbon Campaign,
sponsored by Vera House, of Syracuse,
New York, to take place during March 30th to
April 8th, 2001.
SENATOR PATERSON: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Thank you,
Madam President.
Each year I sponsor this resolution
for what I think is a very important cause,
not only in Central New York but also
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throughout the state. I've distributed the
white ribbons to everyone -- all the Senators,
at least, and I would request and hope that
they would wear them as a symbol of their
solidarity with Vera House of Central
New York, an organization that has been in
existence for quite some time to help victims
of domestic violence.
And there's all kinds of statistics
in the resolution that I'm not going to go
through. But the cause is a good one, and
it's worthy of our support. And hopefully we
can bring this message throughout all of
New York State and, by the awareness of the
people we meet, help stop this very, very
terrible event called domestic violence.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
passed.
Senator Skelos.
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SENATOR SKELOS: Madam President,
may we please have the reading of the
noncontroversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
32, by Senator Goodman, Senate Print 694A, an
act to amend the Penal Law and the Criminal
Procedure Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
158, by Senator Wright, Senate Print 1087, an
act to direct the Department of Public
Service.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
252, by Senator Skelos, Senate Print 399, an
act to amend the Family Court Act and the
Criminal Procedure Law.
SENATOR PATERSON: Lay it aside.
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THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
259, by Senator Farley, Senate Print 2839, an
act to amend the Banking Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
286, by Senator Kuhl, Senate Print 3071, an
act to amend the Vehicle and Traffic Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
290, by Senator Fuschillo, Senate Print 1070,
an act to amend the Vehicle and Traffic Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
299, by Senator Marcellino, Senate Print 2384,
an act to amend the General Municipal Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
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aside.
THE SECRETARY: Calendar Number
300, by Senator Kuhl, Senate Print 2491, an
act to amend the General Municipal Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
302, by Senator Padavan, Senate Print 2774, an
act to amend the General Municipal Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
305, by Senator LaValle, Senate Print 1208, an
act to amend the Education Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Madam President,
if we could take up the controversial
calendar.
THE PRESIDENT: The Secretary
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will read.
SENATOR SKELOS: Well, we'll
start with Calendar Number 300, by Senator
Kuhl, if we could, Madam President.
THE PRESIDENT: The Secretary
will read Calendar Number 300, by Senator
Kuhl.
THE SECRETARY: Calendar Number
300, by Senator Kuhl, Senate Print 2491, an
act to amend the General Municipal Law, in
relation to authorizing.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Kuhl, an
explanation has been requested.
SENATOR KUHL: Thank you, Madam
President.
This is a bill that is specifically
directed to one school district in the state,
namely, Elmira City School District, which
happens to be in my Senate district. And it
allows the school district to establish an
insurance reserve fund for the purposes of
funding self-insured accident and health
insurance plans and cover risks that are not
currently available under accident and health
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coverage policies.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Kuhl would be willing to
yield for a question.
THE PRESIDENT: Senator, do you
yield?
SENATOR KUHL: Yes, I would
yield.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Madam
President, this question was phoned in by a
listener.
I'd like to know, Senator Kuhl, if
the uniqueness of this particular district
offers us a specific problem that they're
having with the insurance not covering all of
the situations and issues that can come up,
and why that is the case. What is specific to
this school district that compels this amount
of attention by the Legislature?
SENATOR KUHL: It's my
understanding, Senator, that this -- the
creation of a reserve account for these
specific purposes is not able to be done under
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current law without a specific piece of the
legislation from this body and from the
Assembly and signing by the Governor for them
to do that.
And they have requested the
opportunity to do that.
SENATOR PATERSON: Thank you,
Madam President. If Senator Kuhl would be
willing to continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR KUHL: Yes, I'll yield to
another question.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Senator, do
you have any idea what the legislative intent
was by having school districts such as
Elmira -- I don't have a problem, really, with
the school district coming back here. But I
just want to know, what is the public policy
in which we force districts on almost a
piecemeal, case-by-case basis -- I think you
discussed this with me before -- where we're
coming back over and over to do this?
Isn't there some way to establish
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some policy so we don't have to waste really
not only our time but the school district's
time putting them through the ordeal of
getting this legislation passed?
SENATOR KUHL: Senator, I don't
know what the public policy was when the law
was created the way it currently exists. I
don't think I was in this body, nor was I in
the Assembly, and I don't believe you were
either. But there are actually two bills that
I've presented, and one was specific to
Elmira, and another one is a generic that
would do exactly what you would suggest, and
that is to do it on a one-time basis.
I decided to approach this one
first because it seems that the other house
often at times has difficulty, not only with
local bills, but has more difficulty with the
generic kinds of changes to specific areas of
the legislation that's currently in existence,
such as the Insurance Law or some other law.
So what I decided to do was to -
because I really only had one request from any
school district -- was to approach it on a
local-bill basis.
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SENATOR PATERSON: I'm wondering,
Madam President, if Senator Kuhl would yield
for another question.
THE PRESIDENT: Senator, do you
yield?
SENATOR KUHL: Yes, I'd be happy
to yield.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Senator, I'm
trying to assess the risk of self-insuring, as
in a school district. I just thought that one
of the reasons we had insurance companies was
to actually perform this duty. Do you see any
risk in taking this course to relieve this
problem?
SENATOR KUHL: I don't believe
there's any more of a risk, Senator, in
allowing the school district to do what
they're asking to do here than there is really
in other areas.
You know, I -- several years ago,
Senator, from your background, you wouldn't
necessarily know this, but I had the great
good fortune of being the county attorney for
the County of Steuben. And Steuben County was
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a self-insured county. And as you know,
school districts are considered to be
municipalities much like counties and villages
and cities are. And we went through the same
kinds of things that insurance companies do.
We analyzed our risk, we saw what the payouts
were, we established a reserve account, and we
managed our own account.
And we did that internally without
having to pay some private body who you knew
was actually going to extort some sort of a
profit from the taxpayers. So we did it
internally with our own employees, and the
school districts want to do the same sort of
thing. Particularly as it relates to accident
and health policies.
If you were on the Education
Committee, Senator -- I know you're not -- you
would have heard from your school
superintendents, but you may have anyway, that
they have some concerns. And one of their
biggest ones is the rising cost of health
insurance.
And so this is an attempt by a
local school district to try to minimize the
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cost to their taxpayers and provide a quality
education without trying to diminish, really,
the quality of the education by having to pay
exorbitant fees to private insurers.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Yes, thank
you, Madam President. I appreciated that
answer by Senator Kuhl. I had not heard some
of the testimony in the Education Committee by
the superintendents that have been there.
If Senator Kuhl would continue to
yield.
SENATOR KUHL: Yes, I would
yield, Madam President.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Madam
President, I want to suggest an alternative,
an option by which perhaps Elmira could
take -- I think this bill is fine, and I think
I'll vote for it.
But if they were unable to meet the
cost or feel that it would more feasible not
to have a cost that would be associated with
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the type of insurance that's on the market
right now, they still have to cover themselves
for some huge possible loss. And what about
the stop-loss insurance alternative or
catastrophic health insurance, separate from
the insurance policy, as a -- you know, as a
means to do this rather than self-insuring,
which I think has some risk attached to it,
Senator.
SENATOR KUHL: You know, that's
not contained in the bill, Senator. But
certainly that is a possibility.
And what you find is that a lot of
the people who do self-insure don't
self-insure the entire potential for loss.
What they will do is go and buy some
catastrophic insurance which is at minimal
cost to them, and then just insure the kind
of -- I should say the risks that in fact are
manageable within their scheme of budgetary or
fiscal kinds of conditions that they see.
I would share with you, Senator,
that this is not a single entity, Elmira City
School District, as being self-insured. There
are, at least the information I'm given,
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several other, perhaps as many as ten schools,
like Scarsdale and Ossining and Syracuse and
Katonah-Lewisboro and Queensbury and Pulaski
and Southern Westchester BOCES and
New Hartford and North Tonawanda, who I
believe already do some self-insurance.
So it's not a singletary kind of
sole example that exists out there. And as
I've said to you before, I'm sure that there
are other municipalities who are still
self-insuring because they see it as a cost
benefit to their taxpayers.
SENATOR PATERSON: Therefore,
Madam President, if the Senator is willing to
yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR KUHL: Yes, I'll yield to
another question, Senator Paterson.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: It would be
safe to say that this is why you offered the
generic legislation, because there are at
least ten school districts that you've been
able to uncover that have this problem?
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SENATOR KUHL: Yes.
SENATOR PATERSON: All right. If
the Senator is willing to yield, Madam
President, I have another question.
SENATOR KUHL: I'll yield to
another question, Madam President.
SENATOR PATERSON: Madam
President, I'm just wondering about the
reserves that would be available for these
school districts acting as municipalities that
are self-insuring at this point, either
generically or even in this individual case.
What constitutes the threshold? At what point
would we say that it's feasible that we feel
safe that the school district has the reserves
to cover this type of policy?
SENATOR KUHL: I don't think -
Senator, if I may, I don't think that there
are any -- there's nothing in this legislation
that defines that, number one. This is really
kind of a conceptual brush that we're dealing
with here. And that is to provide the
opportunity for the creation of a, quote,
unquote, reserve account.
There may be some rules and
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regulations that are set up for self-insurers
which I would expect fully as to what kind of
participation. But again, we're not really
exposing ourselves, I don't believe, as an
entity, as a body. The school districts
themselves, as you may know, have the ability
to raise revenues from levying taxes, like the
other municipalities do. And so certainly
those people, if they don't make good, bona
fide decisions, are going to be responsible,
as they should be, to the taxpayers and to the
voters in those districts.
SENATOR PATERSON: Madam
President, if the Senator is willing to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR KUHL: Yes, I'd yield to
another question.
THE PRESIDENT: You may proceed,
Senator.
SENATOR PATERSON: Thank you,
Madam President. Thank you, Senator.
My question represent to the issue
of governance. I'm just not clear on once
there is self-insuring -- and you described it
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very well in terms of Steuben municipality.
But how will the school district -- and I know
you wouldn't know the specifics. But if you
can just give me a general sense of what will
be, who will be involved -- you know, not
specifically, but what type of decision maker
in the district and what will be the method of
which they reach a consensus on the policy.
And I just want to know a little
bit about how it works. Because after that I
want to ask you a question about the Insurance
Department. I just want you to understand
where I'm going with this.
SENATOR KUHL: Well, I don't know
the specifics, Senator, so anything I would
tell you would simply be a guess. But my
guess would be that the business manager, who
is the person that I have had the contact with
and who has made the request for the creation
of this account, would come up with a proposal
which that person would then submit to the
superintendent of schools, who is essentially
the manager of the school systems, but is
employed by the school board.
And that would then be presented to
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the school board, who are all elected by the
voters, and they in fact then would decide
whether or not the policy that they suggested
was correct.
And so the ultimate determination
would be made by the school board of the City
School District of Elmira.
SENATOR PATERSON: Madam
President, if the Senator is willing to yield,
I have another question.
THE PRESIDENT: Senator, are you
willing to yield?
SENATOR KUHL: Yes, I'll yield to
a question.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Senator, the
Insurance Department itself is charged, of
course, with overseeing this process. And
what I wanted to know is, since it's not
really in the bill, what would be -- is there
a threshold of what resources have to be
available, what reserves have to be available
in order to establish this? What would be the
size of the school district acting as a
municipality that would qualify the school
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district? What guidelines has the Insurance
Department set on this? Because as I was
sitting here with Senator Connor, we were
talking a little earlier about the situation
sometimes where the unthinkable happens where
an entity is self-insuring and you've got a
big problem on your hands if you have a major
catastrophe.
SENATOR KUHL: Did that happen in
New York City?
SENATOR PATERSON: It actually
happened in New Jersey.
SENATOR KUHL: Oh, okay.
I don't know, Senator. I honestly
don't know if there are any rules or
regulations. My guess is that it's entirely
up to the school district.
After all, let me just follow on
that, Senator, we all know the Insurance
Department of the State of New York has
certain kinds of rules and criteria that they
require of professional insurers who hold a
product out for sale. But if somebody decides
that -- for instance, as far as I know,
there's no requirement that a school district
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cover, say, a minimum of a million-dollar
individual liability policy or a $5 million
fire policy or any type of insurance,
certainly. But if in fact they don't insure,
then they do stand the subject of being sued
for a loss. And a loss then that they would
have to bear for themselves and wouldn't have
the benefit of combined premiums to call upon
which had been set aside in reserve accounts
to actually fund their loss. And they do have
that power to raise that money.
And at this point, I'm not aware
that there's any problem here. I think it's
just a question of economics. No, I don't
think there are any Insurance Department
requirements or demands that they fulfill a
certain need.
The health insurance that they'd be
looking for would be essentially providing
health insurance to their employees, which
would be a contractual agreement between the
municipality themselves and their employees.
The Insurance Department would have no
oversight over that.
Because, as you know, there is no
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requirement to provide health insurance to any
employer, that that is totally contractual
unless it's required by, say, the State
Legislature to require all state employees to
have health insurance of basic minimums. But
those are generally contractual agreements
between the executive branch of the
municipality, which in this case would be the
superintendent approved by the board of
education.
So I don't know that there's any
requirements to provide insurance in these
particular areas that are being mandated upon
these districts.
SENATOR PATERSON: Madam
President, if Senator Kuhl is willing to yield
for another question.
THE PRESIDENT: Senator, do you
yield?
SENATOR KUHL: Yes, I do.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Madam
President, the Senator is correct,
particularly when he talks about the
prescriptions and what the requirements are
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and that they don't necessarily -- these are
contractual agreements, as he stated. But
between the school districts and the Insurance
Department, in spite of those requirements, I
would presume that it would be the latter
would be the better authority on what the
industry allows and what would be at least
proprietary under the -- what would be the
spirit or the scope of what insuring entails.
And I wondered if the Insurance
Department has commented on these separate
legislations or even your proposed legislation
that would be somewhat curative en masse and
whether or not they have let us know how they
feel about allowing these school districts to
insure themselves.
SENATOR KUHL: I've had no
communications, Senator, with the Insurance
Department of the State of New York suggesting
that they have an opinion one way or the
other.
SENATOR PATERSON: Well, Madam
President, I am very much in debt to Senator
Kuhl for his forthright answers to these
questions.
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If I may speak on the bill.
Hearing no objection, I guess I'll
speak on the bill, Madam President, and let
you know that I do have a concern. It's one
that doesn't exist in statute. I can't give a
reason under the law why we should not pass
this bill. Senator Kuhl has crafted
legislation that fits right within the ambit
of protection, and these municipality
contracts don't call for this type of action.
But I just wonder if the occasion
would arise, the more and more school
districts that we approve for this
self-insurance coverage, when we all regret it
sometime down the road because of what would
really be a supervening cause, one not within
the contemplation of the contractors, and
there are heavy casualties. And those are the
times that people start asking questions about
how these types of contracts came into being
and what the foreseeability was of any type of
disaster.
And in spite of the fact that
overwhelming numbers of times these things
don't happen, when they do, we in the
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Legislature are asked, we are presumed to take
responsibility that we sought when we looked
for the vote of our constituents.
And I'm just saying that this is
this is probably something that will go
through, it will never be thought about again.
But self-insuring does bring into question the
full protection that insurance provides.
And I can vote for this bill, but
just with this admonition that if we're going
to create a generic piece of legislation to
cover all these districts, I think now I can
understand why the Assembly, on this point, is
a little resistant. Because we don't want to
create a situation that there would be many
employees covered under around the state, only
to find out one day that in one of these
municipalities or one of these school
districts we have a problem that we can't
aptly address in terms of the insurance
coverage provided.
So I'll vote for the bill, Madam
President, but just a thought that we consider
in our deliberations.
SENATOR OPPENHEIMER: Madam
4386
President.
THE PRESIDENT: Senator Breslin,
I believe you have the floor next.
SENATOR BRESLIN: Thank you,
Madam President. Would the sponsor yield for
a question or two?
THE PRESIDENT: Senator, do you
yield?
SENATOR KUHL: Yes, I'd yield to
Senator Breslin.
THE PRESIDENT: You may proceed,
Senator Breslin.
SENATOR BRESLIN: Madam
President, has this been tried in any other
districts in the State of New York?
SENATOR KUHL: I can't answer
that. I don't know.
SENATOR BRESLIN: Then again
through you, Madam President, then you're not
aware of any other laws that would allow any
other districts to employ self-insurance?
SENATOR KUHL: Senator, as I
indicated, there are, as you probably know,
close to 700 school districts throughout the
state. And there are only ten that I know of
4387
who carry self-insurance programs. The rest
obviously carry -- if they have insurance,
carry insurance through private providers.
I'm not aware at the moment that
there is any of these other ten that I'm aware
of who have self-insureds have asked for the
creation of reserve accounts as we have in
Elmira.
SENATOR BRESLIN: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Does the Senator
yield?
SENATOR KUHL: Yes.
THE PRESIDENT: You may proceed.
SENATOR BRESLIN: Obviously, the
school district thinks it's in their best
interests to create this kind of legislation.
Do you know whether or not they sought out the
advice of the State Insurance Department and,
if so, what the recommendations from the State
Insurance Department were concerning the
self-insurance?
SENATOR KUHL: I don't know that.
SENATOR BRESLIN: Again through
4388
you, Madam President, if the sponsor would
continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR KUHL: Yes.
SENATOR PATERSON: You may
proceed.
SENATOR BRESLIN: We all know
that the Insurance Department is very
sophisticated in knowing how to set up
reserves and know how to regulate insurance
companies. And in this self-insurance scheme,
can you tell us what the school district has
done to prepare itself to set up reserves?
SENATOR KUHL: I can't tell you
that either, Senator.
SENATOR BRESLIN: On the bill,
Madam President.
It's very difficult to speak
against something in a local school district
that they choose to do, they feel they can be
successful. But I have some severe
reservations when there's no knowledge of
whether or not they sought out the advice of
that agency which is set up in New York State
4389
to regulate insurance, the State Insurance
Department, or that they looked to see if
other school districts had done similar types
of self-insurance or if there has been any
research to determine the efficacy of a
self-insurance program for the school
district.
But given the local nature of the
bill and that it only refers to that one
particular school district, I will in fact
vote in the affirmative.
Thank you, Madam President.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Thank you.
If the sponsor would yield for a question.
THE PRESIDENT: Senator, will you
yield?
SENATOR KUHL: Yes, I'd yield to
a question from Senator Oppenheimer.
THE PRESIDENT: You may proceed,
Senator Oppenheimer.
SENATOR OPPENHEIMER: I
personally have no complaints with
self-insurance, though I do recognize certain
4390
problems with it. Basically, that there are
no reserves established, there are no
capitalizations established because there is
no oversight, state oversight of these
individual self-insurance programs that have
been set up in the various school districts.
Would you like to comment on
whether you think there ought to be oversight
as far as capitalization and as far as
establishment of reserve funds by the
Insurance Department?
SENATOR KUHL: We didn't consider
that in the bill, Senator. And again, I'm
trying to answer questions that are relative
to the bill, rather than conceptual, because I
really didn't get into a conceptual analysis
of this particular problem.
As I indicated to Senator Paterson,
I had the benefit of being the administrator
to the self-insured program in Steuben County
for, oh, close to five years, I think it was.
And so I know how essentially a self-insurance
program works and how much in advance and how
you have reserves that are set aside and all
that kind of stuff.
4391
Well, what's interesting to me is
that the school district is really in a little
different position because they're solely
self-insured. As opposed to the county that I
administered the plan for also had numerous
towns within the county who participated in
the self-insured program. So you had more
than one participant, so there was a need to
devise a budget, anticipate what your losses
would be, what the payouts were going to be,
establish a reserve and certainly had an
ongoing report as to what outstanding claims
you had and carryover reserves and that sort
of thing.
So that what you did was to look
always ahead and monitor, because if you
underestimated or you had some catastrophic
losses, then you had to go back to all those
participants.
Well, the school district is in a
little different position, because they're the
sole bearer of the loss. And the reason -
one of the reasons, and probably the most
predominant reason for creating this account,
as you know, being the ranking Minority member
4392
on the Senate Education Committee, you know
that we constantly hear from superintendents
that they're only allowed to have 2 percent of
a carryover of their budget and they would
love to have 5 percent. Well, if you only
have 2 percent and, I mean, you're talking
about a budget the size of some of our school
districts, whether it's four or five or six
million dollars, that doesn't give you a lot
of extra money.
So that if in fact you do have an
unanticipated catastrophic loss, then you
cannot go to your reserves because you don't
have any reserves. You only have that 2
percent. And then you'd have to exhaust all
the other potential contingency claims against
that 2 percent outstanding balance.
And so what this school district
has said is, Look, we know that that may in
fact happen. It hasn't. But let us plan for
that. And let us -- as long as you're not
going to give us a 5 percent contingency
account, let us create a special reserve
account for insurance and let us put a little
bit of money aside each year so that we can
4393
get to a level that we feel comfortable.
So they're not exposing themselves
to any risk, as some of our colleagues might
think. What it is is they're preparing for
the future. They don't want to have a large
claim come against them that they cannot fund
from that year's fund balance. They want to
have a specific reserve account, which the
state law does not allow them to create,
created so that they can put a little money
aside for that specific purpose, those
uninsured, contingency, unforeseeable kinds of
claims on health and accident policies.
SENATOR OPPENHEIMER: That raises
another question, if Senator Kuhl will yield
for another question.
THE PRESIDENT: Senator, will you
yield?
SENATOR KUHL: Yes.
THE PRESIDENT: Thank you.
Senator Oppenheimer, you may
proceed.
SENATOR OPPENHEIMER: Your
experience when you were dealing with a
variety of communities in a single plan, when
4394
you were in that position in Steuben County,
we have a similar situation set up for a
variety of school districts dealing through
BOCES for insurance needs. And we believe
that BOCES permits us to spread the risk,
which is fundamental to insurance. And surely
better than a catastrophe happening in a
single school district, where you can get
wiped out, you're spreading your risk with
several school districts.
Does that -- does BOCES exist in
your area? And if it does, does it offer an
insurance program like our Southern
Westchester BOCES?
SENATOR KUHL: Well, there are 38
BOCES districts in the state. As you know,
they include all except for a couple of the
Big Five cities and a couple of other cities.
But as far as I know, the BOCES does not
provide any kind of self-insurance program.
I think the City of New York -- or,
excuse me, the City of Elmira struck out on
its own because that was the most
cost-effective mechanism for them. That's
solely a guess on my part.
4395
SENATOR OPPENHEIMER: Well, thank
you, Senator Kuhl.
On the bill for a moment. Madam
President, on the bill.
Well, two things strike me. One is
that I think this is an opportunity for the
BOCES in Senator Kuhl's area to step up to the
plate and get involved in this, because this
is an important function of BOCES. And I
would say in those areas where they are able
to help several school districts that
individually would have considerable trouble
meeting certain needs, such as doing a major
search for a new superintendent of schools or
insurance or dealing with special ed kids or
dealing with vocational ed kids, this is the
function of BOCES. And I think it ought to be
explored in the area of this school district.
But I for one do not have any
problems with self-insurance. When I was
mayor of Mamaroneck, I did take my village
into self-insurance because of the enormous
costs involved with purchasing insurance. So
I'm going to support the bill. But I think
this is an area that should be explored more
4396
and try and bring in the Board of Cooperative
Educational Services to add -- to take
responsibility.
I'll be voting yes, Madam
President.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. If the sponsor would yield
for a few questions.
THE PRESIDENT: Senator, will you
yield?
SENATOR KUHL: I'd be happy to
yield to a question from Senator Schneiderman.
THE PRESIDENT: You may proceed,
Senator.
SENATOR SCHNEIDERMAN: Thank you.
Again through you, Madam President. I am not
completely clear on the financing for this
fund. Do I understand that the school
district does not have an existing fund, or
does it have a fund but just not able to
purchase this kind of -- provide this
particular type of insurance?
SENATOR KUHL: As I understand
4397
it, Senator, the law prohibits the creation of
reserve funds for this particular type of
activity by school districts.
And the purpose of this bill is to
allow them to create such a fund.
SENATOR SCHNEIDERMAN: Through
you, Madam President, does this school
district already have a reserve fund but just
is not -- is it just because they're not able
to use it for these purposes or they had not
yet created any reserve fund yet?
SENATOR KUHL: School law -- and
I don't claim to be an expert in education
law. But as I understand it, the Education
Law does allow a school district to set up
reserve funds for specific types of events
like a building fund, like an equipment fund.
But there is not one -- there is not the
availability as I understand it for them
legislatively, or at least legally,
statutorily, to create a reserve fund for
health and accident insurance.
SENATOR SCHNEIDERMAN: Thank you.
Again, through you, Madam President. The
existing law, though, as I understand it,
4398
allows -- and this is in the language, line 4
of the bill, it allows the governing board of
any municipal corporation to establish a
reserve fund and then sets limit on what this
insurance reserve fund is for.
My question is, does Elmira have an
existing insurance reserve fund and they're
just not able to apply it for these purposes
or have they not ever set up an insurance
reserve fund?
SENATOR KUHL: I can't answer
that, Senator. I don't know.
SENATOR SCHNEIDERMAN: Okay,
thank you.
Again through you, Madam President,
if the sponsor will continue to yield.
THE PRESIDENT: Senator Kuhl, do
you yield?
SENATOR KUHL: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR SCHNEIDERMAN: Thank you.
I note that this legislation amends
paragraph A of subdivision 2 of Section 6-N.
But it does not appear to amend Section 4,
4399
which sets limits on how much money the school
district or governmental entity can place into
the reserve fund.
And my question is, has any
attention been paid to the fact that there are
some fairly strict financial limits on what
can be placed in a reserve fund which is
not -- are not modified by this legislation,
so the school district is taking substantial
additional burdens, but there is no change in
the amount of money they're allowed to put
into their insurance reserve fund?
SENATOR KUHL: There's never been
any request for any monetary limitation or
expansion, Senator.
SENATOR SCHNEIDERMAN: Okay.
Thank you. Thank you, Madam President. On
the bill.
I thank the sponsor for his
answers. I think that it is interesting that
the -- let's put it this way, the attitude
toward school districts or, you know, the
organizations that run our schools and our
assumption that when they make a request it's
the right thing is very different in New York
4400
City than it is in other parts of the state.
Where, in New York City, the request of the
board of education, individual school
districts are sometimes subjected to the most
rigorous scrutiny and with, in many quarters,
a presumption that they're probably up to
something that is not good.
This sounds reasonable. I must say
I don't really understand the market
circumstances that have led school districts
to enter into self-insurance programs. I
share Senator Paterson's concern that this
could, under difficult circumstances, lead to
a disaster.
And I know that our local
governments that support schools, whether
school districts or municipalities, are going
to be under increasing pressure over the next
three, four, five years to provide additional
funds for the different kinds of high-need
students and high-need programs that have been
identified in the Campaign for Fiscal Equity
litigation. And I suspect that the resolution
that we ultimately reach in the Legislature is
going to involve appropriation of state funds
4401
but also some mandates to local governments to
provide some additional funds.
Under those circumstances, having
the potential exposure for a self-insurance
fund with these sorts of limits on what can be
paid into the fund I think raises some
questions that should be addressed. And I
would think that it might be prudent and I
would suggest to the sponsor it might be
prudent to have the State Insurance Department
take a look at this so that we can be sure
that we're headed down the right road as we
rely on the local school districts to tell us
what they need.
I do plan to vote for the bill, but
I think there are some issues raised here that
we will need to address, if not in this
session, then in the near future.
Thank you.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: I wonder if
the sponsor would yield for a couple of
questions.
THE PRESIDENT: Senator Kuhl,
will you yield for some questions?
4402
SENATOR KUHL: Yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR STAVISKY: Through you,
Madam President, does the Superintendent of
Insurance have any regulatory powers or
general oversight function when it comes to
the implementation of the self-insurance
aspect for the school district?
SENATOR KUHL: I don't know,
Senator. I don't know.
SENATOR STAVISKY: Then my second
question, since we don't know what oversight
power the Department of Insurance will have,
how can we be sure -- my second question, if
the Senator would yield.
THE PRESIDENT: You may proceed,
Senator Stavisky.
SENATOR STAVISKY: Thank you.
How do we know that there will be
adequate reserves in the case of a claim
against the school district?
SENATOR KUHL: Senator, as far as
I know, there's no requirement in state law
that requires school districts to provide any
4403
insurance, that that's a voluntary commitment
that they make, a contractual agreement that
they make with their employees. So I don't
see that the Insurance Department has any kind
of oversight in this particular area.
But keep in mind, the municipality,
the city school district is responsible for
their acts and their actions. They do have
the power and the ability to levy taxes. So
their -- to the trial attorneys regiment, they
have deep pockets, just like the State of
New York does. So what they don't have in a
budget, haven't provided for, whether it's in
a reserve fund or whether it happens to be in
a contingency account planned in their budget
makes no difference whatsoever, because they
have the ability to raise money.
So it's going to be their
responsibility as to whether or not they
provide adequately within the requirements,
the unforeseen requirements in their
particular region.
SENATOR STAVISKY: I didn't
expect that answer. Madam President, one last
question, then.
4404
Can we assume that if there are a
great number of claims against the school
district, that this conceivably can cause an
increase in the property taxes -
SENATOR KUHL: No question about
it.
SENATOR STAVISKY: -- to pay for
any unexpected claims?
SENATOR KUHL: No question about
it. And the same would be true, Senator, if
in fact there were the same number of claims
and whether it was self-insured or insurance
provided through a private provider of
insurance. Next year, their premiums would
escalate and they'd be part of that overall
pool and up they'll go, and certainly the
taxes would go up.
But the fundamental purpose of this
bill is to try to contain that cost for those
taxpayers. And certainly there's a risk.
There's a risk for every one of us as we walk
down the street. There's a risk for every
kind of thing that goes on in an area like
this when you have young students being taught
and you have multiple exposures to the
4405
elements, to the environment.
And what they're trying to do then
is in the most efficient way -- we may
remember, we had some major insurance
renovations years ago which really rewrote how
insurance is provided or how it's able to be
provided in a number of areas. And this
school district is just trying to do the most
efficient thing that they can do. And that's
what I'm trying to do, is to allow them to do
that.
SENATOR STAVISKY: Thank you.
Madam President, on the bill.
It's interesting that Senator Kuhl
mentioned insurance revisions over the years.
When I first got out of college, my first job
was working for an insurance company in the
actuarial department. And the same way that
Senator Oppenheimer last week indicated the
11th Commandment was that you don't borrow
against your expense budget, I was taught in
the actuarial department that we have to take
a very careful look at the reserves.
This became a problem, if my memory
is correct, at the turn of the century when we
4406
had major scandals because insurance companies
in New York State were not providing the
proper cash reserves in the event of a claim.
And it seems to me that we have to be very
careful with this legislation also.
I'm going to vote for the bill.
But I do caution my colleagues that presumably
the taxpayers of the Elmira City School
District could be faced with an increase in
their property taxes come a series of claims
that are unanticipated.
Thank you.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Thank you, Madam
President. I'd like to close for the
Minority.
I voted for this bill last year.
But I really have to confess, Madam President,
I was totally unaware of it and what it did.
As has been the practice for many, many years,
not only in this house but the other house,
legislation moves rather quickly, and this
bill is not of major significance, it would
seem, statewide, although I have no doubt that
it's of important significance to the City of
4407
Elmira School District.
And let me say at the onset that I
have nothing against Elmira. I remember it
fondly as the place where early in the last
century, the great Senator John Murtaugh was
sent to this body and sat in that chair as the
Democratic Majority Leader of the State
Senate. So if anything, that gives me warm
feelings toward Elmira, New York.
But I see a problem in going down
this road. Many years ago, when I was in my
teens and lived in the city of Trenton, New
Jersey, the city council had passed a bill
availing itself of the municipal right to be
self-insured. And someone on the floor of
that city council, and I can't remember who it
was, said: But what if one of our fire
engines ran into another of our fire engines?
And he was assured that that possibility was
extraordinary remote.
And in a tragic accident not two
years later, speeding to a fire from different
directions, two hook-and-ladders collided, and
many, many firefighters were killed and
injured. And the liability to that city was
4408
enormous, enormously more than anyone had
anticipated when they decided to self-insure
against accidents and liabilities by municipal
vehicles.
The whole function of insurance is
to spread the risk, spread the risk among
many, many possibilities for an event taking
place. And my concern with this bill is, it
doesn't spread the risk of some catastrophe
which I hope, certainly hope never befalls the
City of Elmira School District.
But possibilities would include -
I'm sure significant numbers of employees of
the City of Elmira School District routinely
eat in the cafeteria the same food.
Risks of illnesses caused by food
poisoning and so on could in fact have an
inordinate percentage of the school district's
employees putting in substantial claims at the
same time. And of course we hope it never
happens, but we have seen in this state
disasters often strike a particular building
or school or whatever and result in a lot of
people being hospitalized, the potential
medical expenses cumulatively being very, very
4409
great.
What I see of this is the idea of
self-insurance is a misnomer. Self-insurance
really means no insurance. That's what it
means. No spreading of the risk. It means
keeping all the risk in one place. Ah, yes, a
reserve fund will be created, but apparently
it's capped at a certain dollar amount. And
ah, yes, deep pockets, deep pockets, the
school district has deep pockets.
If there were ever catastrophic
demands on whatever reserve fund was set up,
Madam President, as Senator Kuhl pointed out,
oh, you could just sock the taxpayers and
raise their property taxes.
Well, I don't think we ought to let
a school district get in that kind of
jeopardy. We in this Legislature have
recognized over the past years that real
property taxes, school taxes have been an
enormous burden on the people of New York
State.
That's why we had programs like
STAR and Enhanced STAR and all those other
programs, to provide property tax relief to
4410
taxpayers in school districts.
This in fact would put these
taxpayers at risk. I'm not sure exactly how
it works, but of course school budgets need to
be approved by the voters in a district such
as this. I can't imagine they would approve a
budget that enormously raised their taxes to
answer some claims.
If they didn't, I suppose
contractual litigation could ensue and
judgments could be obtained and the school
district would be forced to do it. But I
would think that the reluctance of the school
tax voters would make it so that educational
programs would be at risk in order to satisfy
such claims.
I really think it's unwise public
policy. The fact that they asked for it, the
fact that it solves some perceived economic
interest -- you know, gee, it will be
cheaper -- Madam President, we never, never
confuse -- we should never confuse "it will be
cheaper" with "it will be more efficient."
Those two things don't equate.
But obviously this city school
4411
district thinks somehow or other it will be
cheaper. I daresay what they're really doing
is making a judgment that no insurance is
cheaper than having insurance. And that's
always true if nothing happens, if no claims
are filed.
But the whole purpose of having
insurance is to guard against unlikely events
and to provide for unlikely events that create
an enormous liability or number of claims
against the insurer. You spread it over many,
many school districts throughout the state or
throughout the area that an insurer would
cover. Efficiency does get built into that.
You hold all the risk in the City of Elmira
School District, I suggest that's unwise.
So unlike a lot of my colleagues,
Madam President, I will not be deterred from
voting against this by the mere fact that I
voted for it in the past. I think such
consistency is the hobgoblin of small minds.
Now that I've studied it and now that I've
heard my colleagues ask questions and Senator
Kuhl give straightforward answers, cooperative
answers, I am confident that I know what the
4412
right thing to do with respect to this bill
is, and that's to vote no.
So that's what I intend to do.
Self-insurance means no insurance. That's bad
public policy.
Thank you, Madam President.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Duane, to
explain your vote.
SENATOR DUANE: Thank you, Madam
President. Once again, I'm appalled that a
bill has come out of without apparently
appropriate oversight having been done in
committee. And practically no information was
added on the floor here today. It's shocking
that such an important issue has gotten such
little scrutiny and that we're passing it with
such a vacuum of information.
4413
I was very compelled by what our
leader had just said. And for that and other
reasons, I'm going to vote no on it.
I also think, though, the real
issue is, since we're talking about an issue
that concerns the Elmira School District, is
that we didn't pass a budget on time. That's
an important issue to every school district in
the state. That we have not passed a budget
and thereby protected the education for Elmira
is wrong.
So maybe what we should do first is
actually work on the issues that are most
important and most timely, which is the
budget, and then move on to other issues in
the future. And maybe that will give us
enough time to get information on them.
I'm voting no, Madam President.
THE PRESIDENT: Senator Duane,
you will be recorded as voting in the
negative.
Senator Paterson, to explain your
vote.
SENATOR PATERSON: Madam
President, with all sentiments to the Elmira
4414
School District, and I'm sure there's some way
that we can actually work this out. It was
just a little thing during the debate, and
it's probably a good thing that we have
debates and that we really look into these
pieces of legislation, because I said on the
record that this was fine with me.
But Senator Oppenheimer and Senator
Schneiderman and then eventually Senator
Connor touched on this point, which was that
insurance is for those events that are
unforeseen. That's why we have insurance.
We're insuring against the
unlikelihood of things happening. And as rare
as those occasions may be, the incident that
Senator Connor described about the two
hook-and-ladders colliding and all of the
liability that the township was responsible
for and the difficulties they had kind of
convinced me that we need to talk about this
some more.
I'm sure we'll find a way to
provide decent insurance to the Elmira School
District. But I'm going to vote no on this
legislation, Madam President. And I want to
4415
thank all my colleagues, including Senator
Kuhl, for that discussion because it made me
feel a little differently than I did when I
first came in here.
THE PRESIDENT: Senator
Schneiderman, to explain your vote.
SENATOR SCHNEIDERMAN: Yes, thank
you, Madam President. I, as I indicated
before, was inclined to vote for this bill.
In addition to the debate that has
taken place, which has helped me to clarify my
views, I've also just received a definition of
the insurance that would be authorized under
this bill. And it does reinforce my concern
that this is a serious fiscal problem that we
are allowing.
We are enabling the district in
Elmira to undertake accident and health
insurance, meaning insurance against death or
personal injury by accident or any specified
kind of accident, against sickness, ailment,
and noncancelable disability insurance. So
this is really where the big money is for
claims.
I think we have protected school
4416
districts in the past by putting the funding
cap on and limiting them from undertaking to
insure against the really most major sources
of payments for self-insurers. I think this
is fiscally imprudent.
And I'm afraid that, based on that
and based on the comments of my colleagues -
Senator Connor, Senator Paterson and others -
that I will be also voting no. I am
sympathetic to the issue in Elmira, but I
think we are enabling school districts to go
down a very dangerous path with this sort of
bill.
Thank you.
THE PRESIDENT: Senator
Schneiderman, you will be recorded as voting
in the negative.
Senator Onorato.
SENATOR ONORATO: Madam
President, to explain my vote.
I heard the discussions here and,
from a personal aspect of it, when I was the
secretary-treasurer of the Bricklayers Union,
we were self-insured at the time also. And we
started to notice, after several lengthy
4417
decisions, our funds were almost depleted, and
it wasn't the right way to go.
And I think as a sure way of
protecting the Elmira School District, I don't
think they should be in the business of
self-insuring. And for that reason, I think
it would be prudent for them to purchase the
insurance rather than subject the entire
tax-based community for any catastrophe
insurance claims that may take place.
Therefore, I vote no.
THE PRESIDENT: Senator Onorato,
you will be recorded as voting in the
negative.
Senator Stavisky, to explain your
vote?
SENATOR STAVISKY: To explain my
vote.
I too have been listening to what
everyone has said. And I'm troubled by the
potential for disaster, as Senator Connor
described the two fire engines having the
accident in New Jersey.
The fact that there is no oversight
by the State Insurance Department, the fact
4418
that there are a number of problems with this
bill caused me also to vote in the negative.
THE PRESIDENT: Senator, how do
you vote?
SENATOR STAVISKY: No.
THE PRESIDENT: You will be
recorded as voting in the negative.
The Secretary will announce the
results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 300 are
Senators Connor, Duane, Onorato, Paterson,
Schneiderman, Stachowski, and Senator
Stavisky. Ayes, 49. Nays, 7. Excuse me,
also Senator Hassell-Thompson. Ayes, 48.
Nays, 8.
THE PRESIDENT: The bill is
passed.
SENATOR MARCELLINO: Madam
President.
THE PRESIDENT: Senator
Marcellino.
SENATOR MARCELLINO: Could we
call up at this time Calendar Number 32.
THE PRESIDENT: The Secretary
4419
will read Calendar Number 32.
THE SECRETARY: Calendar Number
32, by Senator Goodman, Senate Print 694A, an
act to amend the Penal Law and the Criminal
Procedure Law, in relation to prohibiting.
SENATOR PATERSON: Explanation,
please.
THE PRESIDENT: Senator Goodman,
an explanation has been requested by Senator
Paterson.
SENATOR GOODMAN: Madam
President, this is a rather fascinating
subject this afternoon on the matter of
identity theft.
Identity theft occurs, believe it
or not, when an individual is actually able to
steal various credentials which make it
possible for them to assume a false identity;
that is to say, the identity of an individual
who they then fraudulently cheat out of many
thousands of dollars.
In June of 2000, the Senate
Investigations Committee issued a report
entitled "Identity Theft: Is Your Identity
Safe?" In this report we have some evidence,
4420
through testimony and various bits of
information obtained by the committee, which
deals with a number of specific thefts that
occurred in this area. I'd like to share a
few of them with you.
First of all, one victim in the
East Side of Manhattan told her story as
follows, indicating that some person succeeded
in having her address changed. She then
promptly attempted to obtain cash advances and
payments for gasoline and repair bills in the
Bronx. It took over six months to turn the
nightmare around. It involved having to close
down a checking account, on the advice of her
account manager.
The same individual filed a medical
claim on May 28, 1998, using this individual's
Social Security number, basing it on
employment with Metro North, et cetera, and
making it clear that this was not the
individual involved. Nonetheless, extensive
medical charges were charged to that
individual.
A media buyer from New City in
Rockland stated that his personal line of
4421
credit was pilfered by an international
network of thieves who used his Social
Security to obtain a checking account in his
name. Using his personal information, the
thief also opened 30 credit card accounts and
charged large amounts of money on goods
purchased overseas.
In another instance that came to
the attention of the Investigations Committee,
a ring stole credit cards, made their own
credit cards, and assumed the identities of
thousands of unsuspecting cardholders. In ten
months, the organization stole $650,000 in
goods and cash advances and had credit card
numbers with access to $8 million, stealing
credit card numbers from invoices and
contacting credit reporting agencies, mortgage
agencies, and the like.
Perhaps you're aware of the fact
that when you charge a credit card at a
restaurant, sometimes you get a carbon copy of
your charge slip. Unless you carefully
dispose of that charge slip, it can be picked
up out of the ashcan of the restaurant in
which you ate and someone can forge your
4422
signature on your credit card number very
readily, using the carbon copy as a piece of
evidence.
According to the Newark Star
Ledger, in March of '98 a man assumed the
identity of a New York anesthesiologist in an
identify fraud scheme, stealing more than a
quarter of a million dollars from the
physician's account. Furthermore, this
individual then opened an account at another
bank by assuming the identities of others
using driver's licenses and credit cards.
And we could go on and on. I think
perhaps the most extreme case of which we were
advised was a woman who one day answered a
ring at her front doorbell in her suburban
home.
Two burly men came in and said,
"Where is the BMW?" She said, "What BMW?"
They said, "The BMW that you purchased with
your fraudulent credit card." She said, "I
have no such thing." They said, "We insist on
searching your garage." They then bulled
their way into the garage. Finding no BMW,
they beat a hasty retreat. The fact was,
4423
however, that a BMW had been charged to this
lady without her knowledge, due to the
fraudulent theft of her identity.
This goes on and on. And in
extreme cases, an individual can be literally
bankrupted and then faces the problem of
untangling the skein of evidence which led to
the bankrupting through fraudulent information
in the first place.
So to try to respond to this, the
Senate Investigations Committee made several
recommendations, some of which are embodied in
the legislation before us. The bill before us
is one which I think properly defines the
crimes involved and, defining them, describes
penalties at different levels of identity
theft.
In that respect, I think we're
addressing a major problem now confronting our
society which, due to increased
computerization and increased credit
availability, is causing very serious problems
throughout society and creating great hardship
among constituents and consumers.
THE PRESIDENT: Senator Paterson.
4424
SENATOR PATERSON: Madam
President, this is a very important subject.
The issue of identity fraud has really become
the number-one crime of the information age,
as it reflects on credit and it reflects on
identity, and is one that has destroyed the
lives of people.
There have been all kinds of
exposes, "20/20" and all of these programs,
"48 Hours," about people whose lives have been
destroyed. And even when they were able to
show a great degree of identity theft, they
still ran the risk of problems with other
creditors and other companies.
There did not seem to be a way -
you can contact all the credit companies if
someone is in arrears, but you don't seem to
have that same opportunity if an individual is
in the situation where they have been
defrauded.
And it certainly is one that needs
some redress. I'm just a little concerned as
to whether or not this is the form in which we
would want to address it.
Now, the Federal Identity Theft and
4425
Assumption Deterrence Act, U.S. Codes 1028,
covers a lot of this. And if Senator Goodman
would yield for a question.
THE PRESIDENT: Senator Goodman,
will you yield for a question?
SENATOR GOODMAN: Yes, I would be
glad to.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, how
would your legislation on the state level
interface with federal protections that we
have already ascribed through legislation in
the House and Senate and signed by the
President?
SENATOR GOODMAN: There would be
no conflict between them, Senator.
SENATOR PATERSON: Thank you,
Madam President. If the Senator would yield
for a question.
SENATOR GOODMAN: Be glad to.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Well, Senator,
there may not be a conflict in the structure
4426
of the legislation. But when one looks at the
use of the Internet and the crimes that take
place in cyberspace and the fact that many of
these companies now are relocating -- 300 of
the Fortune 500 companies now have offices in
Charlotte, North Carolina, not in New York
anymore. And we have different centers of
service that are provided all over the
country. Boulder, Colorado, is a major one.
Silicon Valley in California is another one.
So I'm just saying, can local
governments -- can the state actually provide
protection on this type of situation when,
once the theft is made, the companies in which
the perpetrators are interacting with
basically are not always located in New York
State and then have really what would be a
national flavor to this whole sense of
identity fraud?
SENATOR GOODMAN: Senator, if the
crime occurs in New York, if it's perpetrated
in New York, our penalty structure is relevant
and applicable.
SENATOR PATERSON: Senator -- if
the Senator would yield for a question.
4427
SENATOR GOODMAN: You can
consider this an open invitation to yield to
anything you'd like to ask in the next 15
minutes.
SENATOR PATERSON: Well, thank
you, Senator, I -
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR GOODMAN: I'll let you
know when 15 is up, though.
SENATOR PATERSON: Thank you. I
appreciate that very much.
All right, Senator -- Madam
President, do you think that we could close
the door?
SENATOR GOODMAN: Madam
President, may we have some order, please.
We're having a little trouble hearing with the
door open.
SENATOR PATERSON: Madam
President, my question to Senator Goodman
applies to the section of the law in which he
desires to add legislation, and that would be
Section 190.25 of the Penal Law. Which is
really the act relating to the impersonation
4428
of others for benefit or for theft. And that
is right now -- the second degree of that
offense constitutes an A misdemeanor.
What I would assume, Senator, and I
just wanted your comment on it, is that the
difference between your legislation and the
one that's now on the books is that the
legislation that we have now really sets up
the banks and the credit agencies as the
victims, whereas your legislation, from my -
and, I'll admit, cursory reading of it, really
applies the protection more to the actual
victim.
Would that be an accurate statement
of what you're proposing here today, Senator.
SENATOR GOODMAN: I must say your
cursory observation is very telling and
accurate. It's not cursory at all, it's very
penetrating.
SENATOR PATERSON: Thank you.
Well, as I go on, you may find out how cursory
it is, Senator, so help me through this.
Madam President, I now wish to ask
Senator Goodman about the credit companies
themselves.
4429
Certainly we had a situation that
we read about just two weeks where the busboy
from Brooklyn, when you think about it, all he
used was a list of the Fortune 400 wealthiest
people. He used a cell phone that had
Internet access. He used the computers in the
public libraries. And acting with those
pieces of information and a voicemail, with
those four apparatus, basically took the
identities of some well-known and wealthy
people, and he also was able to impersonate
them to commit a fraud. He was also able to
take goods, money, property, and services away
from them.
And in spite of the crime that this
individual committed, I want to talk about the
responsibility of the companies themselves.
And I wanted to know, Senator Goodman, about
the -- where the legislation would apply to
the credit card companies, who are all too
often sending us these preapproved
applications, they have our names on them,
they can easily be stolen. And I just wanted
to ask you how you address the credit card
companies in this legislation.
4430
SENATOR GOODMAN: May I point
out, sir, that I don't believe that the blame
in this situation rests with the credit card
companies, but rather with those who seek to
take advantage of the existence of credit
cards through computer technology.
May I parenthetically point out
that the plural of "apparatus" is "apparati."
SENATOR PATERSON: Madam
President, I'm well informed, based on that
answer from Senator Goodman. And I would like
to ask if he would yield the floor to another
question.
SENATOR GOODMAN: I will.
THE PRESIDENT: You may proceed,
Senator.
SENATOR PATERSON: Well, Senator,
the blame would always rest with the
perpetrator, I agree with you about that. But
I'm talking about the foundation for the
actual crime itself. And I think that there
certainly is some responsibility and that at
certain points it might even incur criminal
liability.
Let me cite one of those examples
4431
for you.
Suppose the individual has made it
clear to the credit company that they do not
want any of their information to be listed,
that they've put out a credit alert that
someone may be stealing their credit. Don't
you think that it would then rise to a level
of a criminal violation if the credit card
company continues to issue credit in that name
and that for that we might want to either
include it in your bill or include it in
succeeding legislation that's germane to this
subject?
SENATOR GOODMAN: Let me go back
to your root question. I think the question
directed itself to the matter of whether or
not, by making it easy to have access to
credit through credit card issuance, that
creates culpability on the part of the credit
card company.
My answer to you is definitely not.
I think in an age where many people need
credit that is available through credit cards
that it's a deprivation for them not to be
able to have such access. And making it
4432
easier in a situation where it can't be done
unilaterally, but must require their consent,
should not be regarded as a crime. In fact,
it may be constructive if used with a degree
of discretion.
If people are spendthrift, that's
another matter, but that's not a crime either.
That's a matter of bad judgment.
SENATOR PATERSON: Madam
President, just very quickly, if the Senator
would continue to yield.
SENATOR GOODMAN: Yes, I will.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Just for
purposes of clarity, Senator, you're saying
that the bad judgment is on the part of the
consumer or on the part of the credit card
company? I just didn't hear your answer.
SENATOR GOODMAN: Senator, I
think you said earlier that you were inquiring
whether it would be appropriate to place
penalties on credit cards companies which
issue cards in a way that makes it easy for
the individual to obtain credit.
4433
My response was even in those
instances it's necessary to have bilateral
agreement. That is to say, the acceptance
must be initiated by the person receiving the
credit card, and in so doing they assume
certain responsibilities. If they wield those
lightly or with lack of discretion, or
carelessly, that becomes their problem, and I
don't think it's the problem of government to
punish people who are in effect spendthrift
without any personal controls over their money
as it flows out of their persons.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield as he has agreed to.
SENATOR GOODMAN: Yes, I will.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Well, Madam
President, you see, what I'm really pointing
out here is if you put some of these questions
that I've asked Senator Goodman together, what
I'm really driving at is the fact that we in
this society -- not only have the banks and
other lending institutions and credit cards
4434
companies suffered great losses from theft,
but right now -- and one of the reasons I
think Senator Goodman tailored this
legislation specifically to talk about the
victims, people who, like the woman he
described, just answer their door and suddenly
they are being harassed about credit that they
are supposed to have extended that they had no
memory of because they didn't do it. And what
I'm saying is if that's the intent of the
legislation, then I want to go back to the
actual cause.
Now, perhaps, Senator, you're
right, maybe we're out of the realm of
criminality. But we're certainly on the same
subject of what we can do as lawmakers to try
to diminish this problem. And I'm saying
since most of the incidents that are going to
come up with this widespread identity theft
are relating specifically to what would really
be interstate commerce, I don't know that this
law has as much application as it would if we
were to address the issues that actually lay
the foundation for these bad practices in the
first place.
4435
And let me cite an example of one
of them.
If these preapproved applications
are mailed to an address and someone sends in
a form stating that they want to borrow money
but they send in a different address, well,
that could be a change of address. But I
would want to require the credit card
companies to verify three different pieces of
identification -- a Social Security number, a
driver's license, a place of employment,
something to let the credit card company know
that this is on the level, that this isn't
someone that just stole the mail of the
addressee and then took the preapproved
application and used it in a fraudulent
manner.
And so, Senator Goodman, even if
we're out of the criminal law, my question to
you is, don't you think that along with your
legislation that we should be really in many
ways shortening the leash on the credit card
companies' ability to continue to almost
seduce us with these applications, preapproved
credit applications, when this is really
4436
opening the door -- it may not be the crime,
but it certainly is the catalyst for the crime
that is inevitably committed by perpetrators
in our society?
SENATOR GOODMAN: Senator, I
understand what you're driving at. Let me say
if a bank chooses to issue credit cards on
relatively lenient terms and requires various
forms of identification which it feels are
adequate, that's the responsibility of the
bank. I presume the bank does this with
fairly careful forethought and decides that
the risk-to-return ratio is such that it pays
to do this.
And I don't think it's up to this
Legislature to intervene in an attempt to
discipline banks and say to them thou shalt
not issue credit cards on too liberal terms,
because often it serves a useful purpose.
Therefore, I'm afraid that my
philosophy of government might differ a little
from yours in the fundamental respect that we
should try to punish crimes severely where
they occur, but where there's no crime and
where there's only a presumption that one
4437
might result from a certain pattern of action
which has a commercial purpose, I'd be very
loath to interject myself into that
legislatively.
SENATOR PATERSON: Madam
President, one of the reasons that I didn't
get up and pursue a line of questioning with
Senator Goodman about Penal Law Section 190.25
is that I thought I understood what the
Senator was saying, that we want to direct our
protection to the individuals, not to the
banks or the credit-lending institutions. And
so I understand what Senator Goodman is
getting at.
And since the Senator has kindly
been willing to yield, my question at this
point, Madam President, is, what do we do to
protect the victim beyond sending the
perpetrator to jail if we find them?
Let's go back to the Brooklyn
busboy for a minute. The Brooklyn busboy only
got in trouble not for stealing the money, it
was when he started pooling some of the funds
from different accounts to try to make large
financial interactions that really sent off a
4438
signal to the institutions in the first place.
He'd still be doing it if we hadn't caught up
with him.
But let's take some of the victims.
Not the victims who were high-profile and on
the Fortune 400 list, let's take the victims
who on the lower frequencies of our society
don't have the means to protect themselves
when they are actually put in the situation.
Wouldn't it be a perfect addendum to this
legislation to add on the opportunity to
freeze the credit reports from being
distributed to private institutions if the
individual requests that of the credit card
companies?
And further, Madam President,
wouldn't be it important to establish a system
where we provide free copies to every resident
of this state of their credit condition so
they could find it out right now to try to nip
the problem in the bud if it were to arise?
SENATOR GOODMAN: Senator, it
occurs to me that the icy fingers of this type
of crime have reached right into the Senate
chamber. Only late last week did your
4439
Minority Leader and I discover that someone
had stolen our identity and put our names on a
bill which purported to be our bill, and they
printed up the bill with our names on them as
sponsor and cosponsor, and it is only
belatedly that we found that we had nothing
whatever to do with the bill, nor were we even
aware that it had been circulated until it was
brought to our attention.
So this is a ubiquitous type of
crime, one which we have to be very alert to.
And I mention that just to show you the extent
to which this can occur.
But let me just say this, if I may.
Responding to your expression of concern about
the consumer, I want to invite your attention
to the report on identity theft which the
Senate prepared in June of 2000. I hold it up
before me.
Within that, there's a section
which states that there are various things
that can be done for consumers to protect
themselves against identity theft. These
include the following. And I'm just going to
share this with you for a moment, if I may. I
4440
think it's germane to your question.
THE PRESIDENT: Senator Paterson.
SENATOR GOODMAN: Excuse me,
Madam President, I still have the floor in
response to the Senator's question.
THE PRESIDENT: Excuse me,
Senator Goodman.
SENATOR GOODMAN: Here are some
safeguards that we recommend.
Don't display your Social Security
number in obvious places or give it out unless
it is vital to do so.
Identity thieves steal preapproved
credit offers from your mail. To prevent
credit reporting agencies from providing your
information to lenders, call a certain number,
which we provide.
Check your credit report at least
once a year, and before making applications
for mortgages and education loans, to monitor
fraudulent activity.
Bring envelopes with checks to the
post office rather than leaving them in a
mailbox for the postal carrier to pick up.
Buy a shredder and destroy
4441
financial documents.
Carry no more than one or two
credit cards in your wallet or purse, and
close all unused credit card accounts.
Reduce information available to
direct marketers by placing your name on a
purge file which is sent to 3600 subscribing
organizations. We give the address of same.
Delete your name and phone number
from telemarketing lists by ordering
telemarketers to put your name and address on
a "do not call" list.
May I remind you that the Majority
has launched an extensive program, involving I
believe close to a million responses
statewide, which has people on a "do not call"
list, which has been an enormously successful
preventive program.
Furthermore, reduce the amount of
information released to the highest bidding
marketer by opting out of the data sold
through the New York State Department of Motor
Vehicles.
Refuse to give personal information
or financial data over the phone or the
4442
Internet except to known or reputable
establishments.
Remove your name from lists that
are used for marketing purposes by contacting
a certain number given in the report.
Call the FTC -- that's the Federal
Trade Commission -- to report incidents of
identity theft.
Report any tampering with your
securities, investments or brokerage accounts
to the Securities and Exchange Commission and
your broker.
And, finally, contact the Social
Security Administration's fraud hotline number
given if someone is using your Social Security
number for employment purposes.
Those -
THE PRESIDENT: Senator Goodman,
we cannot hear your pearls of wisdom, and we'd
all like to.
SENATOR GOODMAN: I'm sorry,
Madam President. I won't repeat the whole
thing. Let me say to anyone who's
interested -
THE PRESIDENT: Well, I believe
4443
it was the last few sentences.
SENATOR GOODMAN: Madam
President, I present with my compliments to
you and anyone in the chamber who is
interested a copy of the Senate Investigation
Committee's identify theft report. It's
illuminating and I think is probably
responsive to many of the questions which the
good Senator is asking.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, on the bill.
I commend Senator Goodman for his
legislation and for his diligence on this
issue and many other issues that we've been
privileged to receive his advice and counsel
on. And he's always a gentleman. I said that
behind his back, and I hope it got back to
him.
On this particular piece of
legislation, I just feel that this Senate, and
particularly the most distinguished among us,
such as Senator Goodman, are capable of
greater than what exists in this legislation.
Now, we have a Federal Information
4444
Theft and Assumption Deterrence Act that
already exists. And what Senator Goodman has
accomplished quite adroitly is to carve out
analogous protections for this state that
would address the same issues if the companies
are right within New York.
Now, I don't really feel, Madam
President, that because of the interstate
commerce practices of these companies that
they still cannot be prosecuted under the
federal law. So I think that there is a
little overlap between the federal law and
what Senator Goodman is proposing.
Nonetheless, I do think we need to
propose it. I'm not at all in disagreement
with what Senator Goodman is doing.
All I'm saying -- and the best way
to describe it, Madam President, is I would
call it a notion of coalesced dreams. It is
the desire of certain individuals in our
society to defraud and impersonate others for
their own benefit and to injure the other
party through the theft of goods, services,
property or money.
Now, at the same time, it is the
4445
desire of the credit card companies, in a
different way, to literally squeeze as much
credit out of all of us as citizens as they
possibly can. And in addition to doing that,
they recognize that there's going to be a
certain amount of debt that's not repaid. And
they charge those accounts off after 18
months.
Further, they understand that these
types of practices or fraud are actually going
to exist. Moreover, they've accommodated in
their projections for what would be service
and what would be mitigated by the losses in
providing that service.
We had a bill that was sponsored, I
believe by Senator Farley, talking about
extending credit to college-age students. And
I think the credit card companies know that
college-age students are less likely than
their elders to pay back these loans. But
again, in the end, when you count the numbers,
it works out to be a benefit to the credit
card company. And that's fine. If they want
to undertake those risks and they have
factored it out to a degree that it works for
4446
them and it benefits their cause, that's fine
with me that they do that.
But we're in the business of
protecting the residents of New York State,
our constituents. And to that end, what I'm
saying is, that we have not, as I said before,
tightened up the reins on these companies.
They are sending out preapproved
applications. They are sending information to
addresses where they don't really know who is
the actual resident of those addresses. And
they are not requiring the type of
identification that would really be necessary
to protect consumers from this type of
practice. We can't blame them, but we
certainly can require them under the law to do
so.
And I think that if we were going
to do our own arithmetic right here in the
Senate chamber, let's add up what would really
benefit the consumer, I don't think there are
going to be that many cases under Section
190.25 of the Penal Law. There haven't been
to this point. And if you add Sections 77 and
78, they are good law, they're certainly
4447
well-drafted, and Senator Goodman is to be
commended.
But I'm talking about the results.
If we want to limit the opportunity of
perpetrators to steal from us through credit
and on the Internet and in cyberspace, I'm
suggesting that the best way to do it, the
most feasible means that we could be taking
right here in the Senate today would be what I
would call preventive medication against
credit fraud. And that would be to limit
these individuals from getting in the door.
It's not a crime to allow your own
house to be robbed, but it would be a crime to
leave the door open -- I'm saying it's not a
crime to do that, but it would be
irresponsible to leave the door open on your
way out of someone else's house, allowing the
perpetrator to see the entry point.
And I'm saying that that's what
these institutions have done to us, only
because they're not regulated.
They have opened the door for these
perpetrators to come in. And if we were to
require the three pieces of identification -
4448
you know, what the Brooklyn busboy was able to
do was he went and found the mother's maiden
names of all of these famous people, and
that's one of the ways that he got into the
credit card companies and was able to
impersonate them. Because they all have this
strict standard that probably sounded pretty
bright ten years ago, but the infiltration of
unscrupulous people has caught up with the
ability of those of us to protect ourselves
against it.
So I know that we can give manuals
telling consumers how to be protected. But
why not send to each resident -- this would be
a little cost to the companies, but I think
they've shown they can endure it. They've put
up with all of these criminals. They can put
up with all of us who are trying to fight
criminality as much as we are. Send us a copy
of our credit records annually. Send it to us
so the beginning, the poisonous tree can be
been before the fruit of it involves someone
showing up at the door of a poor innocent
woman demanding to look in her garage to see
if she has a BMW in it.
4449
That's what I'm saying. I'm
talking about not necessarily the validity of
this legislation. It fits and encapsulates
the violations set forth in Section 190.25 of
the Penal Law quite admirably. But what I'm
saying is, we can add to it. We can make sure
the door is closed to limit and reduce our
resources from having to fight all situations
to identifying those individuals who are at
least wily enough to commit these crimes.
It's so easy that it's hard. And it is being
done with just a cell phone that has computer
access, with library computers, with a list
that you could get from any magazine as to who
the 400 wealthiest people in this country
might be. And just those elements, anybody in
this room, in spite of how the public
sometimes feels about our ability, yet we
still could do the same thing that the
Brooklyn busboy did.
So I'm just recommending that to
Senator Goodman, through you, Madam President,
and hope that this will be the first step in a
continuing fight to try to prevent the
impersonation or the identity theft that is
4450
pervading this society. It is dictating and
pervading the notion of credit here in this
country. And all I'm saying is this is a good
bill, but it's not enough.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. If the sponsor would yield,
please.
THE PRESIDENT: Senator Goodman,
will you yield?
SENATOR GOODMAN: Yes.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Thank you.
What happens now if someone is
caught engaging in identity theft?
SENATOR GOODMAN: Not much.
SENATOR DUANE: Through you,
Madam President.
SENATOR GOODMAN: Not much,
Senator. Not much. In certain cases,
nothing.
SENATOR DUANE: And through you,
Madam President, in the other cases is there
anything in current law that does cover this?
4451
SENATOR GOODMAN: There can be.
It depends on the nature of the crime. What
sort of crime did you have in mind?
SENATOR DUANE: You know, Madam
President, I'm sorry, he said -
SENATOR GOODMAN: What sort of
crime did you have in mind, Senator? I can't
answer generically. Would you be a little
more specific in your question?
SENATOR DUANE: Through you,
Madam President, generic. Generically.
SENATOR GOODMAN: Madam
President, I can't answer that generically
because there's no such thing as a generic
identity theft. There are various types and
sizes, shapes and flavors. And until I know
what you have in mind, I can't respond.
Have you had a chance, Senator, I
might ask, in case we might abbreviate this
discussion in its less productive moments, to
read the report of this committee on this
subject?
SENATOR DUANE: Is the Senator
asking me to yield?
SENATOR GOODMAN: I'm asking you
4452
to yield to let me know if you've had an
occasion to look at the report of the
committee.
THE PRESIDENT: Senator Duane,
will you yield to Senator Goodman?
SENATOR DUANE: Yes, Madam
President. Actually, I have, although I'm
still waiting for that moving van one from
'92.
SENATOR GOODMAN: I couldn't hear
the Senator. Waiting for what?
SENATOR DUANE: I said yes, I
have seen that and reviewed it, but I'm still
waiting for the '92 report about moving vans
which you promised me a couple of weeks ago.
SENATOR GOODMAN: A report about
moving vans? You think there's identity theft
in connection with moving vans?
SENATOR DUANE: Through you,
Madam President, if I may just explain what
I'm saying.
I have read the report on identity
theft, and it was very interesting. However,
a couple of weeks ago the Senator promised me
a copy of his '92 report on moving vans, and I
4453
have not yet received that report. And I
would offer to copy the original, but my Xerox
doesn't work so good.
SENATOR GOODMAN: It's thoughtful
of you to inquire about that, but there has
never been a report on moving vans as such.
I'm not sure what you're referring to.
SENATOR DUANE: Through you,
Madam President, I think it's moving
companies. But whatever.
If the sponsor would continue to
yield.
THE PRESIDENT: Senator Goodman?
SENATOR GOODMAN: I will give you
an open season on yielding for about four
questions, at the end of which we'll determine
whether I can continue to yield, Senator.
THE PRESIDENT: You may proceed
with a maximum of four questions, Senator
Duane.
SENATOR DUANE: What happens now
if someone in Texas steals a credit card from
someone in New York -- for instance, over the
Internet, just to get a little more specific,
as was requested -- how would we be able to
4454
get that person from New York to Texas?
SENATOR GOODMAN: The answer,
Senator, is unless the crime is -- I think you
might not have heard the debate earlier. I
answered that unless the crime is perpetrated
within New York State, you cannot go out of
reach of the punishment. It's these people
who perform this type of crime within the
state who can be punished under this law.
SENATOR DUANE: So the answer
is -- through you, Madam President -- there is
nothing can be done?
SENATOR GOODMAN: Excuse me? Did
you say something else? I'm sorry.
SENATOR DUANE: Through you,
Madam President, the answer is that nothing
could be done in that kind of a situation, now
or with this bill?
SENATOR GOODMAN: I've responded,
Senator. Do you have another question?
That's two so far.
SENATOR DUANE: But, Madam
President, I -- I'm sorry, I must -- the
microphone must not be working well. I didn't
hear the response to my original question.
4455
THE PRESIDENT: Senator Duane,
you've asked two questions. You have a
maximum of two more, sir.
SENATOR DUANE: But I'm allowed
to get the answers, am I not, Madam President?
THE PRESIDENT: And you've
received an answer. Could you proceed if you
have another question, sir?
SENATOR DUANE: You know, I don't
mean to be inappropriate, but I really did not
hear the answer. And I frankly had trouble
hearing a lot of the earlier debate.
THE PRESIDENT: Senator Goodman,
would you repeat your last answer?
SENATOR GOODMAN: I'm glad to
repeat the answer. The answer is that unless
the crime is committed in the State of New
York, it is not punishable by New York law.
SENATOR DUANE: Then through you,
Madam President, what about the reverse? If
someone in New York steals a credit card
number or an identity from someone from Texas,
can they be prosecuted here in New York for
stealing identity in Texas?
SENATOR GOODMAN: Senator, if
4456
you've listened to the debate with Senator
Paterson, you'd know I've already answered
that question in the affirmative.
SENATOR DUANE: I just -- I'm
accepting that answer under protest, Madam
President, because it was incredibly difficult
to hear the earlier debate.
THE PRESIDENT: Senator, do you
have a fourth question? You have the floor
for a fourth question if you -
SENATOR DUANE: Am I up to number
four, Madam President?
THE PRESIDENT: Yes, you are,
sir. Please proceed.
SENATOR DUANE: Okay. I'm
wondering if there are any minority sponsors
of this legislation and, if not, why not.
SENATOR GOODMAN: There are not,
sir, that is correct.
SENATOR DUANE: And then, just
finally, may I go on the bill, Senator?
SENATOR GOODMAN: You're asking
me if you may go on the bill? The answer is
have you ever requested to go on the bill?
THE PRESIDENT: Senator, could
4457
you direct that request to me?
SENATOR DUANE: Yes, through you,
I am -
THE PRESIDENT: You may proceed
on the bill.
SENATOR DUANE: Thank you, Madam
President. I am requesting to go on the bill
right now. I think that it's urgently needed
to have more bipartisan bills here.
But I -- from what I heard of the
earlier debate -- and again, it was incredibly
difficult to hear, and I did call that to the
President's attention, as did others call that
to attention. It was difficult to hear. But
it sounds to me as if this is really something
that we should spend more time getting the
federal government to take a position on and
to pass legislation. I mean, it's kind of
feel-good, but it doesn't seem that it would
capture that many people here in New York
State.
Identify theft, particularly during
these times of the Internet, is actually much
more of a federal problem. And at some point,
if it hasn't already, it's an international
4458
problem. And, yes, it happens to some small
extent here in New York State, I suppose. It
really is something that needs the attention
of the federal government. And I would be
more than happy, in addition to trying to help
get this passed in the other house -- which I
was going to ask about, but it wasn't as
important as the other four questions I was
allowed. But if I had a chance, I'd like to
know who it was in the Assembly, because I'd
like to work on it with them and encourage
them to make the bill bipartisan as well.
So -- but that said, I think that
our time might be better spent on focusing the
federal government's attention to this
problem, because that's really where this kind
of crime can best be fought. So I'll vote yes
for it, and of course I'd love to be a part of
it, because there do seem to be an awful lot
of names on the bill. But I also think that
we should reach out to the federal government.
Thank you, Madam President.
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: Yes, would
Senator Goodman yield for a question, Madam
4459
President.
THE PRESIDENT: Senator Goodman,
do you yield?
SENATOR GOODMAN: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR LACHMAN: I also
unfortunately didn't hear some of the
debate -- because of the noise in the
chambers -- between you and Senator Paterson,
and I regret that. But I would like to go
back to the initial question in terms of the
constitutionality of this.
I'm delighted Senator Goodman and
others in this chamber feel this is a major
threat to our democratic society, the issue of
identity theft. But Senator Goodman knows, in
American history in terms of constitutional
law, in 1801 the Hamiltonian principle of
federalism was strongly established, upheld by
Chief Justice Marshall, our second chief
justice of the U.S. in Marbury versus Madison.
Now, if there are any flaws in the
federal legislation, should we not therefore
4460
improve the federal legislation which goes
into all fifty states, and can even go out of
the fifty states, rather than using a
legislation that is limited to what Senator
Goodman said is problems that arise in
New York State?
SENATOR GOODMAN: May I just
respond by saying that Marbury versus Madison
was a matter relating to judicial review. I
think you meant the Claremont Steamboat case?
SENATOR LACHMAN: No, no, I meant
Marbury versus Madison, which upheld the power
of the federal government to -- and the U.S.
Supreme Court of the federal government to
make decisions relating to federal issues.
SENATOR GOODMAN: I believe you
referred to judicial review. Be that as it
may, Senator, may I say that in 1801, to the
best of my knowledge, credit card fraud was
not a notable problem.
(Laughter.)
SENATOR LACHMAN: Can you slow
down? You're going too fast for me. Madam
President, I really want to hear Senator
Goodman's answer, but I have difficulty. It
4461
might be my ears. It might be the chamber.
SENATOR GOODMAN: I was just
observing that in 1801 it's my impression that
credit card fraud was not one of the major
problems confronting the nation.
But nonetheless, apparently you
seek to draw precedence from that. And I'm
not sure -- maybe it's just the number of
years that have intervened in between. I've
somehow lost, in the annals of history, the
thrust of your question. What was the point
you were trying to make?
SENATOR LACHMAN: Madam
President, through you, another question.
Fraud was always a problem in this
nation, including in 1801. And the
Hamiltonians said if there is any conflict
between the state and the federal government
on any of these issues, the federal
government's position should be dominant,
especially in interstate commerce and
especially in issues that involve interstate
matters.
Of course there was no credit card
or moving van or any other issues that pertain
4462
to today. But we've interpreted the law, as I
see it -- and I thought you would see it,
Senator Goodman -- that if the federal law
does not sufficiently extend to cover the
problems of the state statute, the federal law
should be changed to improve that so it could
encompass all fifty states.
SENATOR GOODMAN: Senator, I
understand your good intentions. May I point
out to you that there are certain problems
which we as state legislators can address,
that we do not have any power to pass federal
laws. And under the circumstances, we attempt
to solve problems somewhat closer to home with
our legislative involvement, such as things
such as gun control, in which clearly the
federal role would play a major part, but we
nonetheless seek to control the illicit use of
guns on an intrastate basis.
Similarly, with this type of crime,
we seek to try to prevent the use of -- there
are some 30,000 complaints, as revealed by the
Federal Trade Commission, that relate to
intrastate matters in New York State alone.
In view of that volume, obviously it's
4463
desirable to try to prevent this.
May I just ask in conclusion if
you'd yield to me for a moment. Is it your
contention that because federal law -
SENATOR LACHMAN: Can you slow -
Madam President -
SENATOR GOODMAN: Is it your
contention, Senator, is it your contention
that because federal law might also apply here
that we should abnegate any responsibility as
state legislators to try to solve this
problem?
SENATOR LACHMAN: Madam
President, can I respond to that?
THE PRESIDENT: Senator, do you
yield?
SENATOR GOODMAN: No, I've asked
the Senator if he would yield.
SENATOR LACHMAN: Yes, I do yield
to that, Senator Goodman.
I feel there is a major avenue,
many major avenues for state law and state
legislation. But I also feel that if there
are federal laws on the books and if we feel
these federal laws are imperfect and these
4464
federal laws reflect fifty states rather than
just one state, where the Senator said this
would just apply, then I would go for federal
law.
Also, how does this -- Madam
President, will the Senator yield for a -
THE PRESIDENT: Senator Goodman,
will you yield?
SENATOR GOODMAN: Yes, I will,
Senator.
THE PRESIDENT: You may proceed.
SENATOR LACHMAN: Unfortunately,
because you were talking so rapidly, I
couldn't pick up the major debate between you
and Senator Paterson. How does this law -
which I think is a very, very important law,
and I will probably vote for it -- how does it
interface with federal law? Is it subsumed
under federal law? Are the fifty states now
going to have their own laws? Or will the
federal government attempt to protect the
fifty states by going through them through the
federal legislation?
SENATOR GOODMAN: I pointed out a
moment ago there are many areas in which both
4465
federal and state law can punish various
crimes. Are you able to hear me? There are
many areas in which federal and state law can
punish various crimes, would you agree?
SENATOR LACHMAN: Yes, I would
agree.
SENATOR GOODMAN: And under the
circumstances, we're attempting to punish
crimes that occur within New York State which
are within the reach of our long arm of the
law. That's all this law seeks to do. And I
think that if we should fail to act, it would
be an abnegation of our responsibility.
SENATOR LACHMAN: One final
question, Madam President, through you. Will
the Senator yield?
SENATOR GOODMAN: Yes.
THE PRESIDENT: You may proceed,
Senator Lachman.
SENATOR LACHMAN: Okay. Senator
Goodman, are you therefore saying that if a
federal law needs improvement in this area, it
should be improved through our Congressmen and
U.S. Senators and if state law needs
improvement in this initial legislation, it
4466
should be improved through the two houses of
the State Legislature?
SENATOR GOODMAN: I'm saying that
we need a state law, and I think if there are
curative measures that could be taken at the
federal level, it would certainly be helpful
to have that accomplished.
SENATOR LACHMAN: Thank you.
THE PRESIDENT: Senator Nozzolio.
SENATOR NOZZOLIO: Thank you,
Madam President. On the bill.
Madam President and my colleagues,
I wish to rise and congratulate Senator
Goodman for the drafting and the forwarding of
an excellent piece of legislation, a piece of
legislation that is not designed to
participate in any grand scheme but to protect
individual consumers in each of our districts
across this state.
Senator Lachman waxed on about the
federal preemption. Senator Paterson tried
allude to it. But frankly, this isn't a
question of federal law, this is a question of
federal prosecution. The prosecutors of this
state are, we hope, going to utilize this tool
4467
to protect consumers. The U.S. Attorneys
across this country have their hands full, and
identity theft is by and large not a crime
which will be prosecuted at the federal level.
But it is a crime that is
unfortunately the fastest-growing crime in
America. Today there are over 750,000 victims
of identity theft, and that number is rising
each year.
Now, we all have horror stories of
constituents confronted with the not just
difficulty but the at times dangerous
situation where they are accused of taking and
buying and leasing property when in fact they
had no economic or personal connection to that
acquisition whatsoever. Senator Goodman
eloquently discussed an individual who faced
severe threat because of this crime
perpetrated upon her.
And the emotional toil is a
significant aspect of this crime. When
identity theft can occur to individuals as
notorious as Tiger Woods, as Martha Stewart,
it can happen to anyone. And frankly, those
of you who are debating that the merits of
4468
this case do not rise to a state crime that
could be subject to state prosecution are
ignoring the fact that there is just no time
for federal prosecutors to engage in adequate
consumer protection.
It's the obligation of this house
and the other house, the entire Legislature,
to protect New York consumers from frauds
perpetrated on them in this state. And that's
what this measure does. This measure presents
a tool for prosecutors to fight this crime.
For those of you who wish to ignore that, you
do so at your peril.
Senator Goodman is a protector of
consumers. I'm fighting for this legislation.
I want to congratulate the Senator for his
efforts and, Madam President, move the rapid
adoption of this legislation.
THE PRESIDENT: Senator Brown.
SENATOR BROWN: Thank you, Madam
President.
THE PRESIDENT: Excuse me.
Senator Paterson.
SENATOR PATERSON: Madam
President, I was going to ask if Senator
4469
Nozzolio would yield for a question, but I'll
yield to Senator Brown.
THE PRESIDENT: Thank you,
Senator Paterson.
Senator Brown.
SENATOR BROWN: Madam President,
if I may, I'll yield to Senator Paterson.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Nozzolio would be
willing to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR NOZZOLIO: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Senator, could
you cite for me where it has been written by
United States Attorneys -- I mean, I think
this is something that we all know, that in
law enforcement it's very hard to get
prosecutors as interested in these crimes of
either white-collar crimes or even just these
crimes of fraud, as serious as they are. But
generally speaking, can you tell us where you
4470
have received information that the United
States Attorneys in New York are not
interested in prosecuting these cases,
particularly in light of the fact that we had
a rather extensive federal intervention on
this matter in the U.S. Code Section 1028?
SENATOR NOZZOLIO: Madam
President, I did not say that U.S. Attorneys
were not interested in prosecuting these
cases. In some cases, the more major cases,
they are prosecuting aggressively.
However, in the vast majority of
cases, there is just not the -- they do not
rise to the dollar amount that prosecutors can
invest in, that there are many, many, many
more cases that federal prosecutors are not
engaging in than they are engaging in in this
crime.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator Nozzolio?
SENATOR NOZZOLIO: Yes, Madam
President.
THE PRESIDENT: You may proceed,
4471
Senator Paterson.
SENATOR PATERSON: Madam
President, the Senator raises a good point.
And it's about the dollar value. And I agree
with him that I don't see this -- I alluded to
the fact not that there was federal
preemption, I alluded to the fact that most of
the actual companies engaged in interstate
commerce. So all I was saying is, doesn't
that impede the prosecution in a lot of ways?
And by the way, I'm a supporter of
this bill, Senator. And I didn't hear anyone
else get up to discuss the bill that did not
describe themselves as a supporter. So we are
just talking about the priorities of
legislation here.
But nonetheless, my question is, is
there any reason to believe that it would be
easier to prosecute these cases by the state
when many of the companies that are affected
are actually housed in other states?
SENATOR NOZZOLIO: Madam
President, I'll answer that very rambling and
disjointed question by stating that in 1998
the United States Senate Judiciary Committee,
4472
in a report of identity theft, said that
federal legislation alone cannot eradicate
identity theft.
The committee, after hearing
testimony from the United States Secret
Service, strongly encouraged state and local
governments and the private sector to
complement the federal role in this matter.
That's what exactly what Senator
Goodman has done, in listening the Judiciary
Committee of the United States Senate, and
that's why this legislation is before us
today.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator Nozzolio,
do you yield?
SENATOR NOZZOLIO: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR PATERSON: Madam
President, nonetheless -- I agree with Senator
Nozzolio that if there is a void, or even if
4473
there wasn't one, that to augment the federal
legislation, the state legislation is
meritorious. And I think we all complimented
Senator Goodman.
Nonetheless, I didn't feel that I
got an answer to my question, which was did
the location of companies outside the state
impede the prosecution of fraud or the
impersonation of others right here in the
State of New York? Isn't that true, Senator,
that if the companies are located out of the
state that it makes it more difficult to
prosecute them?
SENATOR NOZZOLIO: Madam
President, I'll answer that by indicating that
each of the 750,000 cases of identity theft
occurring on our citizens across this country
each year have individual circumstances of
fact. No two of them are exactly alike. That
identify theft may have risen to fraudulent
obtaining of leases, may have obtained
fraudulent credit card information and the
acquisition of goods therefrom. It could have
been a number of those types of instances.
That you can't say that two cases are exactly
4474
alike.
And I'd have to say that the
location of anyone who engages in commerce in
this state will be subjected to Senator
Goodman's bill. That's really the point that
should be made. This legislation, it affects
everyone who does business in New York State
with New York consumers.
SENATOR PATERSON: Madam
President, I want to thank Senator Nozzolio,
and I also want to thank him for being here.
Could we have a quorum call, Madam
President?
THE PRESIDENT: The Secretary
will call the roll and ring the bell.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Present.
THE SECRETARY: Senator Balboni.
SENATOR BALBONI: Present.
THE SECRETARY: Senator Bonacic.
SENATOR BONACIC: Present.
THE SECRETARY: Senator Breslin.
SENATOR BRESLIN: Present.
THE SECRETARY: Senator Brown.
SENATOR BROWN: Here.
4475
THE SECRETARY: Senator Bruno.
(Senator Bruno was recorded as
present.)
THE SECRETARY: Senator Connor.
SENATOR CONNOR: Here.
THE SECRETARY: Senator
DeFrancisco.
(No response.)
THE SECRETARY: Senator
Dollinger.
(No response.)
THE SECRETARY: Senator Duane.
SENATOR DUANE: Here.
THE SECRETARY: Senator Espada.
(No response.)
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Present.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Present.
THE SECRETARY: Senator Gentile.
SENATOR GENTILE: Here.
THE SECRETARY: Senator Gonzalez.
(No response.)
THE SECRETARY: Senator Goodman.
4476
SENATOR GOODMAN: Here.
THE SECRETARY: Senator Hannon.
(No response.)
THE SECRETARY: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Here.
THE PRESIDENT: Senator Hevesi.
(No response.)
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Aye. Present.
THE SECRETARY: Senator Johnson.
(No response.)
THE SECRETARY: Senator Kruger.
(No response.)
THE SECRETARY: Senator Kuhl.
SENATOR KUHL: Present.
THE SECRETARY: Senator Lachman.
(No response.)
THE SECRETARY: Senator Lack.
SENATOR LACK: Present.
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Present.
THE SECRETARY: Senator LaValle.
SENATOR LAVALLE: Present.
THE SECRETARY: Senator Leibell.
4477
(No response.)
THE SECRETARY: Senator Libous.
(No response.)
THE SECRETARY: Senator Maltese.
(No response.)
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Present.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Present.
THE SECRETARY: Senator
Markowitz.
(No response.)
THE SECRETARY: Senator Maziarz.
(No response.)
THE SECRETARY: Senator McGee.
SENATOR McGEE: Present.
THE SECRETARY: Senator Meier.
SENATOR MEIER: Present.
THE SECRETARY: Senator Mendez,
excused.
Senator Montgomery.
SENATOR MONTGOMERY: Present.
THE SECRETARY: Senator Morahan.
SENATOR MORAHAN: Present.
4478
THE SECRETARY: Senator Nozzolio.
SENATOR NOZZOLIO: Present.
THE SECRETARY: Senator Onorato.
SENATOR ONORATO: Present.
THE SECRETARY: Senator
Oppenheimer.
(No response.)
THE SECRETARY: Senator Padavan.
SENATOR PADAVAN: Present.
THE SECRETARY: Senator Paterson.
SENATOR PATERSON: Present.
THE SECRETARY: Senator Rath.
(No response.)
THE SECRETARY: Senator Saland.
SENATOR SALAND: Present.
THE SECRETARY: Senator Sampson.
(No response.)
THE SECRETARY: Senator Santiago.
SENATOR SANTIAGO: Present.
THE SECRETARY: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Present.
THE PRESIDENT: Senator Skelos,
we have a quorum.
SENATOR SKELOS: Thank you. If
4479
we could continue.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Nozzolio would be
willing to yield.
THE PRESIDENT: Senator Nozzolio,
will you yield?
SENATOR PATERSON: Thank you,
Madam President.
SENATOR SKELOS: Madam President,
I believe Senator Nozzolio may have stepped
out of the chamber temporarily. If we could
continue with the questioning.
THE PRESIDENT: Pardon me,
Senator? I didn't hear the last part of your
statement.
SENATOR SKELOS: If we could just
continue with the normal debate.
THE PRESIDENT: Senator Brown.
SENATOR BROWN: Thank you, Madam
President. I'd like to speak on the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR BROWN: I too would like
to commend Senator Goodman for this piece of
4480
important legislation which I do feel will
safeguard consumers. Identity fraud is
something that could victimize any citizen,
and I think this goes a long way to protecting
citizens.
I want to also thank Senator
Goodman for responding to the questions of my
colleagues, because I too did have a number of
questions. But from the debate, all my
questions were answered, and I certainly
understand this bill and its effects a lot
better than I did when I initially read the
bill memo.
I am very pleased to join my
colleagues who have spoken, those who have
spoken in support of this piece of
legislation, and will certainly be voting in
the affirmative.
THE PRESIDENT: Senator Malcolm
Smith.
SENATOR MALCOLM SMITH: Yes, on
the bill, Madam President.
THE PRESIDENT: You may proceed.
SENATOR MALCOLM SMITH: Yes,
Madam President, I also want to tip my hat to
4481
Senator Goodman.
Identity theft is clearly a crime
that is on the rise, there is no question
about it. It is clearly being sistered with
the theft of intellectual property as well,
and it is my hope that we will also pursue the
rigors of legislation that will also
effectuate some type of response to that
problem as well.
I had the ability to be in a room
along with a couple of my colleagues and the
DA from Queens, and it was clear to him that
identity theft was one of the fast-sweeping
crimes in the Borough of Queens and New York
City, and it has gone as deep as even to the
theft of religious leaders' identity, some of
which would rather be unnamed. But it's
clearly a piece of legislation whose time has
come.
To Senator Goodman, I would just
ask that he pursue this and also we look at
the potential for how we will finance the
support of identity theft. Because while the
law is clear in terms of what prosecutors have
been able to do in terms of prosecution and
4482
the actual degree of the offenses, there is
need for financial support as well to make
sure that they can pursue these particular
felonies.
And so I would just tell Senator
Goodman, while we support the bill, perhaps we
could also have some discussion around the
financial support as it relates to the
prosecution of such thefts.
Thank you.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President, on the bill.
THE PRESIDENT: You may proceed.
SENATOR HASSELL-THOMPSON: I too
want to commend Senator Goodman. As a member
of the Consumer Protection Committee, I know
that consumers need all the help that they can
possibly get.
I think my major concern, though,
is that most consumers, while they may not
object to being -- to Amazon.com and some of
the other practices of sending them book
titles and things of information that they
4483
think may be of importance to them, or of
interest, I think what I object to, if they
knew what was happening in the way that the
Internet business track web uses websites to
collect information about such things as their
spending habits, income, illness, and
occupation, which can be in fact used against
them with insurance companies -- and I think
that that's a piece that we haven't talked
about and explored on the floor.
But certainly I am hoping that as
we go forward with this bill, that these will
be additional strengths that we will be adding
from a state perspective to those of the
consumer.
Also, I still agree with Senator
Paterson from the perspective that while the
consumer has a responsibility to protect
themselves, I think that because so much
information in cyberspace can be obtained
without their permission and without their
knowledge, that we also have to hold the
credit industry somewhat responsible for their
behavior.
I know that, for instance, credit
4484
card companies send college students who are
not the responsible party credit cards,
preapproved. And so those are some of the
concerns that I continue to have in terms of
who has been responsible for bills that
students run up. And while that might not be
perceived as fraud, it's still an issue from a
consumer protection perspective as we look at
how do we protect consumers, because parents
are consumers as well.
So I thank you and I commend you on
the step that you have taken, but I would hope
that as we review this bill we will continue
to amend it to give it strength and support
that may need to go to our federal partners.
Thank you, Madam President. Excuse
me, Mr. President.
ACTING PRESIDENT MEIER: That's
all right, Senator Hassell-Thompson.
Senator Onorato.
SENATOR ONORATO: Mr. President,
I intend supporting this legislation. I think
it's high time that we did something to
protect our -- I was just wondering what the
difference was between identity theft and
4485
fraudulent use of a credit card.
And I'll give you an example. My
wife lost her credit card a couple of years
ago. I didn't report it for several months,
knowingly, because the person who found her
card was charging much less than she was. So
I was actually saving some money.
SENATOR OPPENHEIMER: Oh, stop
that.
(Laughter.)
SENATOR ONORATO: But, Senator
Goodman, will you yield to a question? And I
guess you didn't hear my earlier statement.
SENATOR GOODMAN: I'd be grateful
if you would repeat it so I can join in.
SENATOR ONORATO: I just
wondering, what is the difference between
identity theft and simply using a credit card
fraudulently?
SENATOR GOODMAN: You don't know
the difference, Senator? You shock me.
I'm not sure that I know it either.
Just a moment, let me see if my lawyer can
clarify.
ACTING PRESIDENT MEIER: Senator
4486
Paterson, why do you rise?
SENATOR PATERSON: Mr.
President -- I'm sorry.
SENATOR GOODMAN: The answer is,
Senator, that the identity theft is a child of
the modern age in which we have things like
computer theft, various telephonic types of
theft -- Madam President, could the -- Mr.
President could the New York Post be asked to
help us restore order to the chamber?
ACTING PRESIDENT MEIER: We can
ask, but I doubt if it will be efficacious.
Could we have some order so we can
hear Senator Goodman explain identity theft.
Senator Goodman.
SENATOR GOODMAN: If I read you a
list of the items covered in the bill, it may
manifestly respond to your question.
You get name, address, telephone
number, date of birth, driver's license
number, Social Security number, taxpayer ID
number, mother's maiden name, financial
services account number or code, savings
account number of code, checking account, et
cetera, et cetera. E-mail address or computer
4487
password, public/private government employee
or place of employment, and employee
identification number.
These matters expand the scope of
the reach of the law.
SENATOR ONORATO: Thank you,
Senator.
ACTING PRESIDENT MEIER: Senator
Stachowski.
SENATOR STACHOWSKI: Mr.
President, on the bill.
ACTING PRESIDENT MEIER: Senator
Stachowski, on the bill.
SENATOR STACHOWSKI: I think that
the need for this kind of law is obvious in
the computer age. I think that a lot of the
questions asked were good ones. I think that
there might have been some misinterpretations
by some people on the floor of where the
questions were going, but I think they were
good questions.
The fact that the individual has
his identity stolen and then has to go through
this whole web of entanglement to try to get
all their personal items straightened out.
4488
And Senator Goodman's answer that, you know,
there's great suggestions in his report, well,
unfortunately, some of us have his report,
some of us read his report, others didn't,
others probably couldn't find it if they had
to look for it.
And the general public is -- it's
not available to the general public, so they
can't -- they don't have this readily at their
fingerprints, so that response to a question
about what does this law does for victims was
a valid one.
And maybe what we should be
considering or what Senator Goodman should be
considering, since he's the sponsor, is a
follow-up legislation maybe addressing what
can be done for victims in this kind of
situation.
And to just slough off the fact
that credit card companies and banks, et
cetera, have no responsibility in this, that
it's a light use of credit opportunities by
individuals that sometimes leads them to have
their credit card applications or identities
stolen, that's not entirely true. Because
4489
nowadays, with those instant credit forms
coming through the mail rapidly and people
just throwing them out, everybody doesn't have
a shredder and everybody can't afford the $29
extra right now, with all the utility bills up
and everything else up, to run out and buy
one. They don't actually think about the fact
that when they throw that in the garbage -
they think, like most people, who's going to
go through my garbage? Because they would
never think of going through somebody else's.
So that their identity is available
because they throw these things out whole,
sometimes, they don't even open them because
they recognize them by the envelope. And
oftentimes companies that offer this credit
will send even an altered form where the
alteration is I've since moved since you first
sent this by the time I got to apply, and now
you're sending back the credit card possibly
to the person at a different address.
So, I mean, I think there is some
responsibility to those people. And of course
in this legislation, because it's only looking
to punish the perpetrator -- which is a good
4490
starting point -- nothing is done to try to
safeguard this and try to do a little bit of
curtailment maybe on not only junk mail but
also on the fact that some of these forms go
out and that they're very risky to people that
aren't careful with what they do with the
forms that are sent to them, they just toss
them whole, and somebody might be able to -
because if they're interested enough to go
through your garbage, they might be crafty
enough to get your Social Security number.
Which wouldn't be a major lift nowadays with
some of the things available on the Internet.
So that I think that the fact is
that they should bear some responsibility, and
maybe they should bear the financial
responsibility if it can't be gotten from the
perpetrator. Rather than the victim even
taking the $50 hit when he didn't even get the
credit card. So it's not like he had the
credit card and somebody got one of their -
they didn't tear up their receipt and they got
it from that, that's one thing. And okay,
maybe you are a little careless there. But
nowadays, you might not even have that
4491
company's credit card and somebody else has
one in your name. And all the other things
that they can do with it is interesting.
And an interesting thing -- and
this is kind of a Goodmanesque part of my
statement, something that Roy would sometimes
do, Senator Goodman would sometimes do in his
explanations or in his opening descriptions.
But I got a little confused before I
started -- I'm going to give you this -- I got
a little confused because I understood that
this bill came out about as a result of your
Investigations Committee. And somebody from
another Ivy League school tried to tell me
that it came about because of a Senate
committee report. That's probably some kind
of competitive thing between Cornell and
Harvard, I don't know. But I'm going to side
with Harvard this time.
And this is the Goodmanesque part
of my presentation, that the right of privacy,
at the time it first was put forward, had
nothing to do with law or the Bill of Rights
or the Constitution or even statute. This
came from the Harvard Law Review, the first
4492
mention of the right of privacy. And that was
in 1889, and it was written by two Boston
lawyers, Louis Brandeis and Samuel Warren.
And the fact that they talked about this,
because it was a great technological error.
And everybody takes some of this technology
from that period, like photography and
telephony for granted, but that was the great
technological changes in its infancy.
And because of that putting forward
of the right to people's privacy, that
eventually, in a series of cases, it was
various law principles held up that protected
people's privacy. And that's why privacy is
so taken for granted by us now, but why it's
protected somewhat by law.
And I thought you'd appreciate the
fact that it came from the Harvard Law Review,
and that's why I brought it up. And that was
my Goodmanesque part of this. I figured as
long as it's Senator Goodman's bill, I might
as well use the Goodmanesque part of this and
straighten out the little bit that confused me
between the Cornell Senator and the Harvard
Senator.
4493
But the fact is, I think that the
bill itself should be a good step forward. I
think there's a lot that remains to be done.
I think that there's some things we should be
putting out to help the victims when these
things happen to them. And obviously if it
happens to high-profile people, as the Cornell
Senator mentioned -- and we know it happens to
everyday people a lot easier -- so that I
think that Senator Goodman has a good idea
here, but I hope that he will follow up with a
lot of the things we mentioned.
And that since his report isn't
available to the general public, maybe he
would think of having the printing people
start putting out a pamphlet that would cover
the same things that are covered in his
report. Because obviously everybody won't
have that at their fingertips.
So I'm also going to vote for this
bill. I didn't hear any of my colleagues
saying they were against the bill, they were
just asking different questions trying to find
out different parts about the bill or if the
bill would eventually cover this, or maybe at
4494
least to give the sponsor ideas for future
legislation where he can continue to protect
the individual and maybe make it easy for him
to get out of this web of entanglement they
find themselves in once someone steals their
identity and maybe commits crimes and all the
other things that happen to them as a result
of that theft.
And with today's computer age,
that's more easy than ever. And some of these
people that are so good on computers -- I not
being one of them. I'm lucky I can get
through on the Internet and find the easy
things, much less any of the difficult things.
So with that, I also wanted to rise
and support Senator Goodman's legislation, but
also offer a little clarity on what some of my
colleagues are trying to do, and also take my
opportunity to give the Goodmanesque part of
the explanation.
ACTING PRESIDENT MEIER: Senator
Stavisky, we have a list going.
Senator Lachman was next, I
believe.
SENATOR LACHMAN: Yes. On the
4495
bill.
ACTING PRESIDENT MEIER: Senator
Lachman, on the bill.
SENATOR LACHMAN: I will be
voting for this bill, Senator Goodman -- and
through you, Mr. President -- because I think
it initially is an attempt to fill a loophole
in the legislation that currently exists.
Now, we've mentioned the steamboat
law in terms of interstate commerce. I know
David mentioned that to you and to us. But we
mentioned Marbury versus Madison. We
mentioned an unknown lawyer writing in the
Harvard Law Review who 25 years later was
appointed a member of the U.S. Supreme Court,
Louis Brandeis, taking it from a different
point of view and the point of view of the
right of privacy in the information age.
But I do think that there should be
a greater connection between the legislation
that we pass here and the legislation that
exists in the fifty states as passed by the
federal government and the Congress of the
United States.
But you are attempting to respond
4496
by filling a loophole, and I think it's a very
good initial step, and I would like to see it
extended in other areas as well.
I support the measure.
SENATOR GOODMAN: On the bill,
Mr. President.
I just wanted to express my
gratitude, if I may, to some of our
colleagues. I'd like to start with Senator
Nozzolio, who, Senator Stachowski, you should
know is the chairman of a task force that
addressed this question after our special
Senate Committee on Investigations did so. We
held a press conference involving most of the
Majority Senators and widely publicized the
contents of this ultimate piece of
legislation. I want to thank Senator Nozzolio
very much for his involvement in this.
And I'd also like to extend sincere
thanks to my colleagues on the other side of
the aisle. Senator Smith, Senator Brown,
several of the rest of you who were kind
enough and gracious enough -- including my
good friend, Senator Paterson, I might say -
to suggest that this legislation did have some
4497
usefulness, and to do it in very gracious
terms.
There have been from time to time
suggestions that there is a tension that grows
between us in this chamber, and I think that
your conduct this afternoon suggests quite the
reverse. And I for one wish to extend my
personal thanks to each of those of you who
were kind enough to make your very gracious
remarks.
Thank you.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 7. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Stavisky, to explain her vote.
SENATOR STAVISKY: Yes, Mr.
President.
I too would like to compliment
Senator Goodman on the work he has done on
4498
this bill.
About three or four weeks ago the
district attorney of Queens County had a
meeting in the LOB, and he brought with him
some material that he had collected concerning
identity theft. And to look through the books
and see all kinds of names of people whose
identities have been stolen was very
revealing, because there were people from all
walks of life. Some names were very
recognizable.
The district attorney in Queens
County has done considerable work on identity
theft, and I'm sure that he will be delighted
too with the work done by this chamber this
afternoon.
So I vote yes.
ACTING PRESIDENT MEIER: Senator
Stavisky will be recorded in the affirmative.
Senator Gentile, to explain his
vote.
SENATOR GENTILE: Thank you, Mr.
President.
I too join with my colleagues on
both sides of the aisle in congratulating
4499
Senator Goodman for this piece of legislation.
As a former prosecutor, this piece of
legislation will clear the air as to what
someone committing a crime of this type can be
charged with, rather than just trying to patch
different pieces of the law together.
In addition, I too have been a
victim of identity theft. Indeed, about three
or four years ago, there was a credit card
stolen from my gym locker. And little did I
know that after I went back to the locker, the
person who had that credit card went on a
little shopping spree.
Indeed, it was around Valentine's
Day, and they want to the Staten Island Mall.
And Senator Marchi knows well that there are
many stores there at the Staten Island Mall,
and it seemed that that person's girlfriend
had a great Valentine's Day on my credit card.
So certainly -- and it took many
months to correct that whole situation, so -
unfortunately, that person was never
apprehended. But in any case, there should be
an apprehension, Senator Goodman's bill will
go a long way in making sure that this state
4500
is on record as strongly as possible to use
this as a deterrent for future identity theft.
So congratulations. Thank you,
Senator Goodman. And I'll be voting yes.
ACTING PRESIDENT MEIER: Senator
Gentile will be recorded in the affirmative.
Senator Schneiderman, to explain
his vote.
SENATOR SCHNEIDERMAN: Yes, thank
you. Through you, Mr. President, I will be
voting yes on this bill. I appreciate the
work Senator Goodman has done on this and his
graciousness in presenting it to us today.
There is one area of concern that I
would raise really that I think may require
some additional attention, and that relates to
the difficulty, particularly in Internet
commerce, where there's the tremendous
potential for abuse and identity theft, the
difficulty of New York courts obtaining
jurisdiction over the Internet thief.
The law is very unclear in this
area. If a company is based in California,
the only contact is over the Internet, they
steal the goods in California by charging them
4501
there, it's not clear that we could actually
obtain jurisdiction in New York to punish such
a felon.
And I think it's good that we're
criminalizing the behavior, and I hope that we
can continue to work to make these laws more
effective.
But I would commend to Senator
Goodman and others working on this that the
jurisdictional issue is an additional aspect
of this that may require our attention and
that will emerge as these laws are prosecuted
and as we move forward.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Schneiderman will be recorded in the
affirmative.
Announce the results.
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
would you please call up Calendar Number 158,
by Senator Wright.
4502
ACTING PRESIDENT MEIER: The
Secretary will read Calendar 158.
THE SECRETARY: Calendar Number
158, by Senator Wright, Senate Print 1087, an
act to direct the Department of Public Service
a prepare a report.
SENATOR PATERSON: Explanation.
SENATOR WRIGHT: Read the last
section.
(Laughter.)
ACTING PRESIDENT MEIER: Senator
Wright, an explanation has been requested of
Senate 158 by Senator Paterson.
SENATOR WRIGHT: Thank you,
Senator Meier. Thank you, Senator Paterson.
The bill that you have before you
directs the Public Service Commission to
prepare a report relative to the rural
communities of this state and their ability to
access telecommunications. And it directs
that the report will be prepared by no later
than February 1, 2002, copies to all of us.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
4503
it's a pleasure to dialogue with Senator
Wright. And if he would yield for a question.
ACTING PRESIDENT MEIER: Senator
Wright, do you yield for a question?
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, what
have been the reports from rural residents of
the state about some of the difficulties that
they have encountered with Internet access?
SENATOR WRIGHT: Well, the
difficulties we're talking about have
principally focused on the ability to access
the ability to utilize new telecommunications
systems, the most newest technologies.
Typically you will find that
service providers make the investment in the
primary markets where they will have a quicker
and more prompt return on their investment.
So you have seen investments being made across
the state in the urban centers, and that has
not been the case in the rural areas of the
state.
4504
So as a result, when you're a small
business in a rural area of the state trying
to compete with a like small business in an
urban center, you're not in a position to
compete on a level playing field.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
if I could speak on the bill so that -
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: I may have
another question for Senator Wright in a
moment.
But this is a problem that has an
historical nature in this country, and it
really accompanies the invention of different
facilities that have obviously changed the
course of doing business and changed the
culture of our nation. And what's interesting
about that is that in the issues involving the
invention of electricity and also the
invention of the telephone, that government
actions preceded the one that I assume we're
going to take today in trying to pull all
4505
segments of the population together and,
actually, particularly those who live in the
rural communities.
For instance, when the electric
lightbulb was first invented, it took 36 years
to get electricity into what would be the
threshold that would mean that it was in most
of the homes in the United States. Now, when
the telephone was invented, it took only 16
years. So already we saw the movement, the
inertia of the society catching up with a new
invention.
But interestingly enough, it took
the computer only seven years. And the
general feeling is that Internet access, when
it first became available in the mid-'90s,
only took four years to inculcate most regions
of the country. But there have been many
areas that, while they may meet the threshold
test in accordance with what were the
perimeters of the study, nonetheless there are
huge numbers of individuals who are not able
to be online. The connection with schools and
libraries onto the Internet is very important
when it's related to our educational
4506
processes. Particularly upstate, where
there's been service delivery of health care
issues -- as there have been all over, but
particularly magnified upstate -- the issue of
Internet access for health care would assist
there too.
Some of the other communities
around the state, the minority neighborhoods
have also lagged behind what would be the rate
of access of the rest of the state. The
African-Americans in this state who have
salaries that exceed $75,000 a year
interestingly enough have equal access to
their white counterparts. So do
Hispanic-Americans with salaries of $75,000 a
year or more, with a little less
effectiveness, but still falling within the
ambit of what would be equal protection if we
divided by race.
But it seems to be more what
Senator Wright was talking about in terms of
the companies and flooding the urban markets
quicker. As they flooded the urban markets,
they have also neglected the inner city
markets.
4507
At this point, Mr. President, if
Senator Wright would yield for a question.
SENATOR WRIGHT: Yes, I will.
SENATOR PATERSON: Thank you.
Mr. President, my question is, do
you think it would be possible in future
proposals and studies to include some of the
other neighborhoods around the state that are
still bereft of the vital need for Internet
capacity?
SENATOR WRIGHT: I certainly
wouldn't exclude that, but we're talking two
different issues in terms of what we're
speaking to in this bill.
We're basically looking to
establish the backbone that would link the
various regions of the state with the high,
wide fiber band that we need, otherwise known
as the backbone system. I believe what the
Senator is speaking to is really what's
referred to as the last mile or last 100 feet,
where you're actually talking individual
access.
So that the bill that we're
advancing addresses a different issue than the
4508
one that Senator Paterson raises. I'll be the
first to agree that Senator Paterson does in
fact raise a valid issue, but it is not
germane to what we're attempting to do with
this bill.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
that's actually quite interesting. If the
Senator would yield for a follow-up question.
ACTING PRESIDENT MEIER: Senator
Wright, do you yield?
SENATOR WRIGHT: I will.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: So, Senator,
what I should understand is that when I was
talking about the linkage between libraries
and schools and the information superhighway
and the healthcare systems and their
connection, then I was a lot closer to what is
really the genesis of this legislation.
In other words, those individuals
who live in the upstate regions who are
obfuscated from full capacity of service
4509
regarding online capacity would not
necessarily be -- that that goal and objective
to include them would not necessarily be
enhanced through the study that you're
proposing, but a completely different type of
study that would probably be analogous to the
issue that goes on in some of the inner cities
of our state. Is that accurate?
SENATOR WRIGHT: Well, Senator,
what I believe what we're attempting to do
with this bill is establish that multilane
interstate highway which that you referred to.
And once that's established, then be it a
school district or a hospital or a residence,
the individual neighborhood or individual
residence of a neighborhood, then have a
second series of access questions that we have
to address.
But prior to reaching that second
series of questions, we need the actual
highway or infrastructure in place. And in
the rural regions of the state, that does not
exist at all. We believe that that needs to
be documented, we believe that there needs to
be alternatives explored on how that system or
4510
that highway we're referring to becomes in
place and can be utilized, whether it's done
through a system of fiber optics, whether it's
done through wireless, whether it's done
through some combination thereof, there truly
needs to be a system and infrastructure in
place.
That's what we're trying to focus
on first, because without an initial
infrastructure being in place, the secondary
question is really moot at that point.
SENATOR PATERSON: Thank you, Mr.
President. I appear to be a little bit of
ahead of myself. But if Senator Wright would
yield for another question.
ACTING PRESIDENT MEIER: Senator
Wright, do you yield?
SENATOR WRIGHT: Thank you, Mr.
President. I would never accuse the Senator
of being ahead of himself.
ACTING PRESIDENT MEIER: I
believe he yields.
SENATOR PATERSON: Mr. President,
my question relates to the information that we
are to derive out of the study. I get the
4511
impression that this is a study in which even
just a cursory examination of the issue would
reveal that it's going to demonstrate more
specifically that which we already know, which
is that many of the facilities of the regions
in the rural communities are not connected to
the Internet as readily as we would like them
to be.
Senator, what would we be proposing
to do with the information when we actually
complete the study?
SENATOR WRIGHT: Well, it's our
intent to do several things. First of all, in
many instances we're talking about proprietary
information that is held by the
telecommunication providers.
So while I think we can generically
agree or acknowledge that what is known as the
concept of "digital divide" and has been
articulated across this nation as it reflects
rural communities, while we know that New York
is not unique compared to other areas of the
nation, what we don't know are specific
locations, capacities that are in place. And
that's what we're attempting to identify.
4512
We utilize the Public Service
Commission because they in turn frequently are
dealing with proprietary information of these
private companies. So while we're not looking
to put them at a competitive disadvantage, we
do need to have that information available so
that we can plan and design an appropriate
system.
Speaking to that issue, you've had
a -- we've had a report prepared. It was
chaired by the Lieutenant Governor, who
unfortunately isn't here with us now, was
earlier, identifying New York's priorities
across the state under the Quality Communities
Interagency Task Force. And one whole area of
that task force report deals with using
technology to distribute information, create
development tools, and eliminate barriers to
quality development.
So we believe that when we can
ascertain the technical, detailed information
from the communities that will identify what
is in place and what is available, we can then
design the necessary priorities to move ahead
and develop a cohesive policy that will
4513
encourage and facilitate a private and public
partnership to facilitate expansion of that
information highway.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
President. If the Senator would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Wright, do you continue to yield?
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Mr. President,
will the study be comprehensive in the sense
it will inculcate itself into all the
different regions of the state that we would
describe as being rural? Or will it be kind
of the dialectic study where we would assume
that there isn't a variance between different
neighborhoods and different counties around
the state to the extent that we might only
conduct the study in a few areas that the
4514
Senator might want to be specific about and
conclude from that what the alternative plan
that the Senator laid out for us just a moment
ago would be?
SENATOR WRIGHT: No, I do not
anticipate that it would be limited to a few
exclusive areas. But it would cover all of
the regions of the state.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
ACTING PRESIDENT MEIER: Senator
Wright, do you yield?
SENATOR WRIGHT: I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator,
preliminarily, just even including the entire
country, are you aware of any studies that
have created that comparison between those
providers who, in a rush to accommodate
telecommunications services, have moved right
into the more heavily populated areas and have
eschewed the opportunity to cover the country
4515
as a whole?
Do you have an idea of what the
breakdown or what the lessened opportunity has
been for people who live in the rural areas,
not only if it's been done in this state -- I
assume not -- but just nationally?
SENATOR WRIGHT: I can't cite a
specific study, because I've simply not done
that in terms of reviewing studies. But if
one spends any time all reading the literature
involving the telecommunications industry,
you'll find that there's extensive discussions
of the concept of the digital divide and the
delineation between urban centers and more
metropolitan areas and rural areas in their
ability to access high-speed, wide-band
capacities.
That concept of digital decide is
not unique to New York or the Northeast, but
in fact is nationwide. A number of states
have looked at different approaches. There's
even a concept of community ownership of a
fiberoptic network system being implemented in
some areas of the nation as well as some
regions of this state, simply to have a
4516
community investment to facilitate the
participation of the private sector, which
typically starts with primary markets, those
being the major metropolitan areas.
And if you look at our state, that
same phenomenon holds true, starting in the
city, working north along the -- literally,
the Thruway corridor, moving north to the
Capital, then taking a left-hand turn and
moving west across the state, again following
that Thruway corridor to Buffalo.
So that you find that Buffalo,
Rochester, Syracuse, Albany, Utica, and then
further south, down to the city, you'll find
that you have a high degree of access there.
You find that there are multiple private
sector providers competing with one another.
You go into the more rural regions of northern
and western New York, and you'll find that
there are very limited providers, very limited
access.
So we're trying to document exactly
what's available, trying to develop a strategy
that will enable those rural regions of the
state to participate in the same way that the
4517
primary markets of this state have.
And as we've met with
telecommunications providers in the state, you
know, they acknowledge the fact that they're
going to focus on the primary markets
initially, then they'll be moving into
secondary markets.
Unfortunately, when you live in
areas that are in the tertiary market, you
know that you're going to be waiting a long
time. And with the technology changing as
rapidly as it's changing now, we don't believe
that we should be waiting that long. We need
to facilitate and encourage that investment.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
if Senator Wright would be willing to yield
for another question.
SENATOR WRIGHT: Yes, I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, I'm
in favor of this report.
4518
The question I guess I want to ask
you is that in the meetings with
telecommunications companies and the like,
they've indicated that this was their plan all
along. So is the nexus of the report the idea
to accumulate information to kind of speed the
plan up?
Because otherwise, I would wonder
why we were going to do a report if the needs
of the marketplace serving priority to the
initial and secondary markets and then
eventually getting around to the tertiary
markets would actually relieve themselves just
by the inertia of commerce.
So the real desire of this report
to document the information to in a sense
force the industry to speed it up a little
bit?
SENATOR WRIGHT: Yes.
SENATOR PATERSON: If the Senator
would continue to yield.
ACTING PRESIDENT MEIER: Senator
Wright, do you yield?
SENATOR WRIGHT: I will.
ACTING PRESIDENT MEIER: The
4519
sponsor yields.
SENATOR PATERSON: Senator, I'm
just curious about the report itself and its
deadline.
Will -- since I thought that you
would probably use some sample counties, and
you enlightened me to the fact that we're
going to try to go into all the rural areas
around the state, would February of 2002 be
adequate time to accumulate that amount of
data?
SENATOR WRIGHT: I believe so,
yes.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
SENATOR WRIGHT: I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: When we are
able to access what would be the mechanisms
or, as I have now learned, the apparati with
which we might actually transfer this kind of
information to try to get the systems more in
line with each other, is there going to be any
replication of effort?
4520
In other words, wouldn't it have
been more prudent and still commercially
successful to have connected all of the
regions originally in the same system? Or is
the compliance with the system that is already
in place going to be more difficult given the
fact that the technological increases are
probably going to be sent to the cities and
the initial markets while we on the back end
are just beginning to connect some of the
tertiary markets?
SENATOR WRIGHT: I guess I kind
of lost the point of the question, Senator.
SENATOR PATERSON: Well, Mr.
President, the point of the question is by the
time the train gets to some of our rural
areas, wouldn't some of the technological
advances be again directed back to the cities,
in a sense almost eliminating the value of
trying to connect some of these areas that
have not been addressed?
SENATOR WRIGHT: No.
SENATOR PATERSON: Mr. President,
if the Senator would yield for a question.
ACTING PRESIDENT MEIER: Senator
4521
Wright, do you yield?
SENATOR WRIGHT: I will yield.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Then I guess
my final question -- and I want to thank
Senator Wright for his patience with me -- is
just in terms of the whole scope of the
region. I got the impression that you were
not as alarmed as I would be hearing that the
industry was in a sense taking its time, as I
see it, and ignoring people that live in rural
communities, as I would not want them to do.
Senator, are you assured enough by
them to feel that they're addressing this
quickly enough? Because they don't seem to be
doing it minus this report.
SENATOR WRIGHT: No, I'm not
assured that they're moving ahead enough,
which is why we're moving ahead with this
initiative, why you see the Lieutenant
Governor leading the effort to focus on
telecommunications and those rural issues, why
you see the administration working through the
Office of Technology to move ahead on these
4522
issues.
We recognize that the companies,
certainly while we're looking at broader
public policy initiatives, they are looking at
it from a commercial-venture standpoint where
they have an investment that has to be made.
That capital investment has to be subject to
prudent management decision-making and
receptivity to their shareholders. All of
which is the standard, typical private-sector
model that works so well in New York State and
other states.
However, that does not preclude our
ability to encourage, to incentivize, to move
ahead and try to establish broader public
policy goals that we believe are in the best
interests of the state and believe are in the
best interests of the people in various
communities of the state.
There are a number of examples in
the past where the state has done that. In
fact, the Senator is very well informed as he
speaks about the electricity and that being
extended throughout this state and the nation
through a rural electrification program,
4523
similar activities done with telephones and
now, of course, the Internet and the whole
aspect of information technology.
So as we continue to advance that,
there's a long history of precedent where
government has partnered with the private
sector when the private sector would not
necessarily be in a position to commercially
advance these endeavors. So that is the
justification or part of the rationale for why
we're moving ahead with this report.
And I appreciate the Senator's
cooperation and questions this afternoon.
SENATOR PATERSON: Thank you, Mr.
President. And kudos to Senator Wright for
his work on this issue and informing us this
afternoon.
If I may speak on the bill.
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: Senator Wright
is, I think, very balanced in his approach and
I think is a little more patient with some of
the telecommunications professionals in the
industry than perhaps I am.
4524
And the reason just is that at the
same time that these companies have a real
bias for geographic location -- and listen, I
live in New York City, so I would be a
beneficiary of that bias at times. New
implementations come to our areas before they
get to other areas.
But at the same time, it's
interesting that, for instance, in the
telecommunications in New York City, we are
paying the same rates as our neighbors are in
New York City, but let's take cable, for
instance. We've been hearing about changes
that are supposed to come to the neighborhood
that I live in, and I meet with the
telecommunications people, they have a dinner
up here every year and they tell us about the
new advances and how they're coming. But they
still haven't gotten here.
And I've been hearing about these
things for about three years, about how you
will actually want to go on the cable to speed
up Internet access, that they can move faster
than some of the providers, but this exists in
some parts of the city and it doesn't in
4525
others. Yet at the same time, they will take
your billing register just as quickly.
And so what I'm pointing out is I
want to see a little more of a hurry. I'm
very happy that Senator Wright is doing this
study, and I hope it will be a precursor to a
different study that addresses individuals,
homeowners, people that live in apartments,
people that are coopers who are hoping to
receive the same type of service and don't
want to wait two and three and four years to
see it provided because the industry is making
money.
Now, we have nothing against the
industry making money. But we as public
servants have an opportunity to regulatory
that. But they're not going to take huge
amounts of payments from people when they
haven't provided adequate services that
they've provided to others based on where they
live or how profitable it is for the actual
company. Certainly, left to the marketplace,
we understand that.
But that's why we have established
commissions, to try to make sure that the New
4526
York State taxpayer gets equal services
regardless of the geographic location where
they live, regardless of the neighborhood
where they live, regardless of the economic
plight of the people who live in the
neighborhood with them.
So I'm in favor of this bill. But
in the same way that Senator Wright and we as
the Legislature are going to encourage the
industry to speed it up a little bit and
create access to the different mechanisms
around the state, I want to encourage us as
well to make sure that we do everything we can
in our power to hasten the day when every
resident of this state will receive the same
type of services for the same money that we're
spending every month when we get a bill from
the cable company, an Internet provider, or
some other service that is providing greater
services in other parts of the state.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you, Mr.
President. If the sponsor would yield,
please.
4527
ACTING PRESIDENT MEIER: Senator
Wright, do you yield for a question?
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is the study
designed to find out a way to do this at any
cost? Or are they authorized to come to a
conclusion -- I mean, in other words, does it
matter how much it costs, or are they directed
to just do it at any cost?
SENATOR WRIGHT: Well, the Public
Service Commission is directed to do the study
and we believe in conversations that that can
be done at a reasonable cost.
SENATOR DUANE: Through you, Mr.
President, to just get a clarification, I
don't mean the study and how much that would
cost, but I mean the cost that would be
incurred through its mission.
SENATOR WRIGHT: Well, that's the
intent of the study, to try to identify the
system that is in place and then to offer a
series of recommendations.
4528
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Wright, do you continue to yield?
SENATOR WRIGHT: I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: And so those
conclusions will also have a dollar sign
attached to them?
SENATOR WRIGHT: I don't know
that for a fact. The language of the bill
does not specifically require that.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Wright, do you yield?
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Might it not,
4529
though, be important to know how much it would
cost for the different proposals that might
come as a result of the study?
SENATOR WRIGHT: Well, it
certainly would be germane to the
decision-making when it comes to implementing
those recommendations, but not viewing the
recommendations in and of themselves.
So I'm sure before anyone, be it
the administration or this legislative body,
made a decision on implementation, there would
certainly be numbers tied to them.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Wright, do you yield?
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Would that
require another study?
SENATOR WRIGHT: I don't believe
so.
4530
SENATOR DUANE: Then through you,
Mr. President, if the sponsor would continue
to yield.
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Then who would be
responsible for telling us what that cost
would be and how would they going about
finding out the cost?
SENATOR WRIGHT: Well, since I
don't know what the recommendations are going
to be, it's rather difficult to predict how
that would be done.
But since both houses have fiscal
committees and the administration has a budget
office, I believe the wherewithal would be
there to establish the cost.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
4531
sponsor yields.
SENATOR DUANE: Is there an
Assembly sponsor for the bill?
SENATOR WRIGHT: We are currently
having conversations with the Assembly on that
issue. Last year it was sponsored by
Assemblyman Vann. We're currently speaking
with the Speaker's office in terms of a
sponsor this year.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR WRIGHT: I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you.
Could the sponsor maybe just list
the advanced telecommunications that we're
talking about here?
SENATOR WRIGHT: Well,
essentially we're talking about, in the
broadest sense, access to the Internet and the
ability to access high and wide-band fiber
optics.
SENATOR DUANE: And through you,
4532
Mr. President, if the sponsor would continue
to yield.
SENATOR WRIGHT: I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is the sponsor
aware of anything that's being done at the
county level to deal with this issue?
SENATOR WRIGHT: Yes. In fact,
there are several counties in the state that
are pursuing this same type of initiative.
They in fact have asked for and are
seeking funding in the budget to develop local
strategies to begin implementing this kind of
initiative. They are supportive of our
initiative, feeling that one supplements the
other and that we have a mutual focus on
telecommunications.
We've been having those
conversations with the State Economic
Development Council, which represents economic
development agencies at the county level
across the state.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
4533
yield.
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I'd like to ask
the same question about federal efforts on
this, if this is envisioned to dovetail off
the federal efforts on expansion of access.
SENATOR WRIGHT: It certainly
would be compatible. I'm not aware of any
specific federal effort at this particular
point in time.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: In light of the
regrettable circumstances which we had last
week about a report not being accomplished on
time, I'm wondering what would happen in this
case if the report is not done on time.
4534
SENATOR WRIGHT: I suspect it
would be deemed late.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Wright, do you yield?
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is there any
punishment associated with that? Does the
law -- I mean, what's the point of passing the
law, then?
SENATOR WRIGHT: Well, I think
the point is that we're articulating our
expectations. And I think that our
expectation is that that will be met with in
good faith.
And it's been my experience in
previous legislation that I've initiated that
has a deadline, those deadlines have been met.
As you can tell by reading the
bill, there is no specific penalty if it is
4535
late.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Could this kind
of a study have just been done at the request
of the Governor?
SENATOR WRIGHT: That's possible.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Had that
possibility been explored before the bill went
to the Committee on Energy and
Telecommunications?
SENATOR WRIGHT: No.
SENATOR DUANE: Through you, Mr.
4536
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Wright, will you yield?
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: He
yields.
SENATOR DUANE: Is it envisioned
that the study would have a component of
public hearings?
SENATOR WRIGHT: The bill does
not call for that.
SENATOR DUANE: Through you, Mr.
President, would the sponsor continue to
yield?
SENATOR WRIGHT: I will continue
to yield.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: The sponsor
indicated that there had been conversations
with the Public Service Commissioner. I'm
wondering whether the issue of public hearings
ever came up in those discussions.
4537
SENATOR WRIGHT: I don't know. I
didn't have the discussions.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Wright, do you continue to yield?
SENATOR WRIGHT: I will, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Would it be
appropriate to ask who did participate in the
discussions, if not the sponsor?
SENATOR WRIGHT: It would be
appropriate to ask.
SENATOR DUANE: Then, Mr.
President, if the sponsor would continue to
yield.
SENATOR WRIGHT: I will continue
to yield, Mr. President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Then I'd like to
be so bold as to ask who was involved in those
4538
discussions.
SENATOR WRIGHT: I believe it was
a member of my staff.
SENATOR DUANE: Thank you, Mr.
President.
Thank you.
SENATOR WRIGHT: Thank you.
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
Wright, do you yield?
SENATOR WRIGHT: I will yield.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
My question really relates to the
sponsor's earlier statements and the colloquy
with Senator Paterson. I'm not sure I
understand what you're talking about when you
talk about the need for the development of a
backbone for the rural areas. And I must
admit I know something about the Internet and
4539
law relating to the Internet; I really don't
know what the situation is in the rural areas
of New York State.
But is the situation relating to
telephone cables, the need for T1 or T3? Does
it relate to satellite access? What does it
mean when you say we have to investigate what
we need in the way of a backbone?
SENATOR WRIGHT: Well, what we're
talking about is ensuring that rural areas
have the same access to the higher levels of
technology, the DSLs and other areas of
technology that currently exist in the urban
areas. They are typically not made available
to the rural areas.
That can be in the form of
fiberoptic access, but it equally can be in
the form of wireless, satellite, et cetera.
SENATOR SCHNEIDERMAN: Through
you, Mr. President. I guess my question is
this. Anyone who has access to a telephone,
as far as I'm aware, has access to the
Internet. And we actually do have a very
serious problem, which Senator Paterson and
others have mentioned, in urban areas that I
4540
think we may need to address in this or a
similar bill.
And my question really is aimed at
identifying the difference. Is the difference
really in the access to telephone services in
rural areas?
SENATOR WRIGHT: No, it's not a
question of access to phone service.
Certainly rural areas have access to phone
service and, by virtue of that. You have
access to dial-up service, which of course is
slow and expensive.
As opposed to the high, wide-band
technologies that are available, and as a
result you have much quicker utilization, much
quicker access, you can move a great deal,
particularly data. So it becomes very
critical to businesses that are trying to
compete, trying to move video, trying to move
data, that, while to varying degrees that can
be done, it cannot be done at the same speed
and the frequency that exists in more
sophisticated, higher levels of technology.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor would
4541
continue to yield.
ACTING PRESIDENT MEIER: Senator
Wright, do you continue to yield?
SENATOR WRIGHT: I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Well, I
think that that answer really underlines the
concern that I have with this bill.
This is a bill that is limited to
rural areas, finding that persons -- it says
the Legislature finds that persons living in
rural areas may not have access to advanced
telecommunications services and capabilities.
The difficulty I have is that in
most of the poor communities in the cities of
our state, they do not have access to ISDN,
they don't have access to broadband service
or -- well, broadband doesn't really exist,
but T1 or T3 cables.
And I'm not sure that we're not
suggesting by this bill that it's a problem in
rural areas that is not a problem in urban
areas. And I still must say if we're not
4542
talking about telephone service, I don't
really understand what the difference is
between a poor community in the city, where
all that's available is dial-up, and a rural
community where all that's available is
dial-up.
Is there some difference I'm
missing?
SENATOR WRIGHT: I'm not sure
what you're missing, Senator.
SENATOR SCHNEIDERMAN: Well,
through you, Mr. President, if I may follow
up.
ACTING PRESIDENT MEIER: Senator
Wright, do you yield to a follow-up question?
SENATOR WRIGHT: I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: My point
is -- and I appreciate the fact that, you
know, the sponsor represents a predominantly
rural area and is concerned about the need of
those communities for Internet access.
My concern is that if we pass a
4543
bill with a legislative finding that persons
living in rural areas may not have access to
advanced telecommunications services, it
sounds -- it suggests that we do not have the
same concern for people in urban areas.
And I guess my question is, is
there any difference between someone in a poor
urban community who only has access to dial-up
services and someone in a rural community that
only has access to dial-up services that would
necessitate us making that distinction in this
bill?
SENATOR WRIGHT: Well, I don't
know, Senator, I've not had the occasion to
compare the two. What I have been doing is
focusing on the literature and the issue that
speaks to the concept of the digital divide
focusing on the rural communities, thereby the
origin of this bill.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. On the bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I think
this is a bill to address a tremendously
4544
important problem. I think, though, that the
issue that has come out through these
questions -- and again, I think Senator Wright
is doing a good job for his constituents.
I would urge, though, that in his
capacity as our leader on issues of
telecommunications, you take a look at the
fact that this bill expresses a concern about
rural communities that as far as I can tell is
a concern that exists for a far larger number
of New Yorkers who live in poor communities in
our urban areas.
And the story of access to cable is
still something that we're dealing with in the
City of New York. I mean, there was a
tremendous difficulty in any of the
predominantly black or Latino neighborhoods of
New York City getting cable in. I remember at
one point we discovered that there was an
illegal cable operation going on in the South
Bronx because none of the regular
cable-service providers would provide cable
services, as they were on some long timetable
that was constantly delayed. The way we found
out about the guerilla service was that they
4545
were the only people who could install cable
in the office of the local congressman and
state legislators.
So the problem of access to
telecommunications in poor and predominantly
minority communities is very serious. And if
we're going to undertake a study like this for
rural communities to find out what is required
for them to have access to this, I would urge
that we also consider communities in urban
areas that may face very similar problems.
I think that if you look at the
provision of Internet technology in the City
of New York, you will find that Senator Wright
is absolutely correct, there are many major
businesses that have access to ISDN lines,
they have their own cable wiring system, they
have faster access. Most people who live in
the city who live in poorer communities do not
have such access. Most of the small
businesses in poorer communities do not have
such access.
I think the problems addressed here
are equally present in the city and in many
suburban areas as well. And I think that we
4546
would be doing ourselves a disservice if we
only have a study by the Department of Public
Services of rural areas. I don't think it
would be that much more difficult to expand
this to include suburban and urban areas. I
think it would probably save money, because
rather than conducting two separate studies,
perhaps they could do it all at the same time.
And also, I think that the
solutions for this problem, to the extent that
we want to provide some incentives for the
private sector or provide some direct
government investment in some of these
technology services, I think you'll find it
much more cost-effective, much easier to
influence industry to partner with us if we
are including the areas with larger
populations as well.
So I commend you for looking into
this. I just would urge that such a study be
expanded. And I think it can be, even without
legislation, to include urban and suburban
communities.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Does any
4547
other member wish to be heard on this bill?
Senator Malcolm Smith.
SENATOR MALCOLM SMITH: Thank
you, Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Malcolm Smith, on the bill.
SENATOR MALCOLM SMITH: I believe
that Senator Wright's intentions as well as
the bill itself is a good one. There's no
question about that.
But I believe my colleagues,
Senator Paterson, Senator Schneiderman, raise
an issue which is very real for us in New York
City, and that is that there many
neighborhoods in our area where we are
struggling now to get basic service to them,
whether it is the Internet, access to even
DSL, which is not accessible in some of the
areas of our community.
I also believe that if Senator
Wright takes the time and -- not that he has
not listened to some of the business entities
that are probably the ones that are pushing
this particular issue, because as you know,
the Internet now becomes a market access
4548
instrument more so than just information. And
I think if he approaches it that way, he will
also find out that the businesspersons
throughout the entire state would be more than
happy to have this type of study conducted,
not only in the rural areas but also in the
downstate area.
Because the entire access to
information today, while at one point it was a
commodity, is now a way of life. And the
information that one can receive and have
access to is clearly a wonderful business
market for many business entities throughout
this state.
Upstate New York, while it is
suffering in an economic way, clearly having
access to rural customers upstate and having
access to more customers downstate will put
businesses upstate at a very supportive
situation as it relates to trying to do
business throughout the State of New York.
I think it's a good bill. I think
there's no problem with it, and I think
Senator Schneiderman is right. My research
tells me that once this bill is passed, it
4549
really does not require further legislation to
make the study beyond just the rural areas but
that it can also be promulgated just through
administrative agreement within the PSC, and
they will go further and expand this.
So perhaps, Senator Wright, if it
is okay with you, upon passage of this -- and
obviously I'm not sure if it passes both
houses. But if we can do a letter, not only
supporting your bill and explaining why we
have supported the bill, but also asking that
the PSC take the study beyond just the limits
of just the rural areas and also does it
throughout the State of New York.
Thank you.
ACTING PRESIDENT MEIER: Any
other member wish to be heard on the bill?
Debate is closed.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
4550
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
would you please call up Senator Fuschillo's
bill, Calendar Number 290.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar 290.
THE SECRETARY: Calendar Number
290, by Senator Fuschillo, Senate Print 1070,
an act to amend the Vehicle and Traffic Law,
in relation to increasing fines.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: Can I ask who
requested the explanation?
ACTING PRESIDENT MEIER: Senator
Fuschillo, Senator Paterson has asked an
explanation.
SENATOR FUSCHILLO: Thank you,
Mr. President.
The bill increases the penalties
for repeat alcohol- and drug-related driving
offenses. Specifically, it would raise the
4551
minimum find from $1,000 to $2500 -- the
maximum fine of $5,000 is unchanged -- when a
person convicted of DWI or driving while his
ability is impaired.
The bill also increases the license
revocation period from one year to two years
and adds a new section which would have a
permanent disqualification for repeat
offenders.
As stated, the bill targets repeat
DWI offenders. The national rearrest rate of
DWI offenders is approximately 31 percent,
whereas in New York State it's about
52 percent.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
President. And if Senator Fuschillo, my
friend, will yield for a question.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, would
4552
you define for us the difference between a
permanent license revocation and a permanent
disqualification? Because for the life of me,
I don't know the difference.
SENATOR FUSCHILLO: Yes, I will.
Through you, Mr. President, the changes,
Senator Paterson, in this is a permanent
disqualification for repeat offenders who have
been convicted two times previously within the
last 10 years. What we did in the bill was
gave the Commissioner of Motor Vehicles the
discretion after 10 years, if there's no
violation of the VTL, to allow for a
probationary license given back to the
individual, solely at his discretion.
SENATOR PATERSON: Thank you, Mr.
President. If the Senator would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, I'm
interested in perhaps the last time that the
4553
amount of the fine was raised. Because we're
going to increase it by 250 percent here, and
I just wanted to know when was the last time
we did this.
Because I don't think anyone would
really ever vote against an increase in the
fine for that type of violation. But if we
did this recently, I would wonder why we're
doing it again. I'm just a little hesitant
about piling on. We have an offense, we have
a punishment for it, and I just want to make
sure we're not just relegislating issues that
we've already addressed.
SENATOR FUSCHILLO: Senator,
which part are you referring to?
SENATOR PATERSON: The increase.
SENATOR FUSCHILLO: From $1,000
to $2,500?
SENATOR PATERSON: Right.
SENATOR FUSCHILLO: Senator, I
don't have that information, but I'll be happy
to supply it to you when I get it.
The bill did pass last year,
Senator, but one member did vote against it as
well.
4554
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: For the
moment, Mr. President, we're kind of -- what
I'll do is -- I think that completes my
questioning for the time being of Senator
Fuschillo.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor would yield
for a few brief questions.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: I want to
understand what the sanction for permanent
license revocation really means. Is it any
different from a permanent disqualification?
SENATOR FUSCHILLO: Through you,
Mr. President. Senator, in the sense that
after a 10-year period, the Commissioner does
have discretion to issue a probationary
4555
license after a 10-year period.
SENATOR SCHNEIDERMAN: And
through -- oh, I'm sorry, I didn't mean to
interrupt.
SENATOR FUSCHILLO: Not a
problem.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, then I gather that under
the current law there's no provision -- is
there a provision for any kind of a revocation
in this?
SENATOR FUSCHILLO: Permanent,
Senator? No.
SENATOR SCHNEIDERMAN: Because it
doesn't seem to me in reading this that this
permanent revocation really is necessarily
permanent. Is there a provision currently for
a different type of revocation?
SENATOR FUSCHILLO: There is a
permanent -- let me just look at the law,
Senator. In reading the bill, there is a
revocation for five years for a different type
of license, for commercial vehicles only,
right now under the current law.
SENATOR SCHNEIDERMAN: Through
4556
you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: So just so
I understand, the current law is five years,
but limited to commercial licenses. So for
noncommercial licenses in the current law
there is presently no provision for
revocation?
SENATOR FUSCHILLO: Right.
Suspension, Senator.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the sponsor
would continue to yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you continue to yield?
SENATOR FUSCHILLO: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: I think
that again, as Senator Paterson has stated,
it's hard to oppose increasing penalties in
this area.
But I wonder if in addition to the
4557
emotional and moral aspect of this, is the
sponsor aware of any study or report that
indicates that increased sanctions and fines
actually have reduced the incidence of drunk
driving in other jurisdictions?
SENATOR FUSCHILLO: Through you,
Mr. President, the National Transportation
Safety Board has issued statistics. And,
Senator, I'd be happy to provide you with them
at any time.
I believe since the early '80s,
when the Mothers Against Drunk Driving made
this a priority of theirs and fought for
greater laws throughout the country, the
statistics have shown that greater penalties
have decreased the incidence.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, I just want to
make sure I understand one other point, if the
sponsor would yield for another question.
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR FUSCHILLO: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
4558
SENATOR SCHNEIDERMAN: You drew a
distinction earlier between commercial
licenses and noncommercial licenses. Now, as
I read this, most of the language, the
specific language relating to commercial motor
vehicles is left intact in the statute. Does
the provision for a permanent disqualification
or permanent revocation apply to commercial
licenses?
SENATOR FUSCHILLO: Through you,
Mr. President, no.
SENATOR SCHNEIDERMAN: So if I
understand correctly -- again, through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Someone
who has a commercial license and drives as a
part of their job -- and in a real sense is
under tighter state control because it is a
business enterprise and potentially is, you
4559
know, subject to more pressure for those
reasons -- really now would face a lesser
sanction than a private driver if this bill
was passed; is that true?
SENATOR FUSCHILLO: Senator, the
bill specifically deals with noncommercial.
SENATOR SCHNEIDERMAN: But
through you, Mr. President, if I understand
correctly, then that the result of this bill
that only deals with noncommercial is that
commercial drivers who had problems with DWIs
would actually be subject to less punishment
than noncommercial drivers; is that correct?
SENATOR FUSCHILLO: Senator, the
changes deal strictly with noncommercial
vehicles.
SENATOR SCHNEIDERMAN: Is there
any reason -- and it doesn't sound like there
is, but I must ask the question, if the
sponsor would continue to yield, is there
any -
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you continue to yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
4560
sponsor yields.
SENATOR SCHNEIDERMAN: Has there
been any determination or is there any reason
for restructuring the law so that the penalty
for drunk driving when you're a commercial
driver is now going to be less than for a
private driver?
SENATOR FUSCHILLO: No, Senator.
Again, we were dealing only with noncommercial
vehicles when drafting the amendments. But
this has been a bill that's come before this
house for many, many years. My predecessor,
Senator Levy, chairman of the Transportation
Committee, had pushed this through for the
Senate. And myself, when I was elected. But
again, we were dealing strictly with
noncommercial vehicles.
SENATOR SCHNEIDERMAN: All right.
Thank you very much.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I think
that, you know, we are in the glorious day of
the activist Legislature here. And as Senator
4561
Connor pointed out earlier, bills that have
been sliding along with little inspection or
questioning now in this bright new
post-enlightenment realm are getting some
scrutiny.
And I think that I voted for this
bill last year. I certainly don't oppose the
notion that there should be enhanced penalties
for noncommercial drivers. But it does strike
me as a bizarre twist of public policy in the
State of New York that a commercial driver who
is driving to make money, pursuant to a
business, working for a corporation, would be
subject to a lesser standard than a private
driver who, you know, presumably has to get
around for all of their personal business of
life.
I mean, if anything I think those
who would come into New York State, operate
commercial vehicles, make use of our highways
for profit-making enterprises, engage in
business activities in their capacity as
drivers, really if anything should be subject
to a stricter standard. And I'm afraid that,
intentionally or unintentionally -- and we all
4562
share in the blame for not having more closely
examined this in past years -- I think this
bill will produce that sort of an anomaly.
And I think it's unfortunate.
I would urge that this gets some
attention. It may be that in the unlikely
circumstance this bill does not pass the
Assembly in its precise current form, and we
have a chance to look at it again, Senator
Fuschillo perhaps -- I don't mean to distract
you from more conversation. Well, or less
interesting conversation -- Senator Fuschillo
perhaps could take a look at this anomaly and
if this doesn't pass the Assembly, maybe we
could broaden it to deal with that problem.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Montgomery, and then Senator Duane.
Senator Montgomery.
SENATOR MONTGOMERY: Thank you,
Mr. President.
There's some confusion for me that
I would like to have clarified, if I could.
I have information here that says
that there are some -- in 1997, this is a
4563
little bit outdated, but nonetheless the staff
has supplied me with this information. In
1997, an estimated 513,200 offenders were on
probation or in jail or prison for driving
while intoxicated by alcohol.
So my question, if the Senator
would yield, Senator Fuschillo would yield for
my question -
SENATOR FUSCHILLO: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR MONTGOMERY: Okay, thank
you.
My question to Senator Fuschillo,
through you, Mr. President, is I'm confused
about what is the meaning of this legislation
vis-a-vis the fact that hundreds of thousands
of offenders are already serving time in one
way or another. So there seems to already be
some kind of a conviction that people receive,
and so you're now removing their license -
Senator Fuschillo is removing their license,
for some of them permanently.
So I'm just trying to figure out
4564
how these two pieces fit together, removing
the license as a punishment as well as or
instead of arresting and incarcerating people
for similar offenses.
SENATOR FUSCHILLO: Through you,
Mr. President. Senator, I don't know where
you receive your statistics from, but I stated
when I opened up regarding the bill that the
national rearrest rate is approximately
31 percent and in New York State it's
approximately 52 percent. And the overall
statistics of arrest rates have declined in
the past decade.
But what we're trying to do is here
is to strengthen the anti-DWI laws and take
them off the road. Because as I said to you,
52 percent in New York State are being
rearrested.
SENATOR MONTGOMERY: Through you,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you continue to yield?
SENATOR FUSCHILLO: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
4565
SENATOR MONTGOMERY: Thank you.
So does that mean, then, that the
current law that we have which requires a jail
or prison term for DWI people is not enough?
In other words, we now -- we can at this point
in time charge them with criminal behavior,
based on the laws that are on the books now.
They can be jailed, they can go to jail, they
can go to prison under certain circumstance.
But that still is not enough.
So, Mr. President, my question is
do we still need further action; i.e.,
removing their license permanently?
SENATOR FUSCHILLO: Through you,
Mr. President. Senator, in 1999 there were
approximately 19,000 DWI arrests. There were
approximately 26,000 driving while impaired
arrests.
Now, I think that we as a
legislative body and we as a state constantly
have to review these laws and make them as
strong as possible. So I do think there's a
strong desire for it, yes.
SENATOR MONTGOMERY: Mr.
President, if Senator Fuschillo would continue
4566
to yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Okay, thank
you.
Senator Fuschillo, the other
question that I have for you is I note that
the large number of DWIs or at least a
percentage of the DWIs are in areas upstate,
sort of the rural areas, suburban areas, many
of them in places where one is required to use
a vehicle when they are trying to get to and
from work.
So I'm just wondering if you
have -- in addition to suspending the license,
if there is a strong enough program of other
incentives so that people essentially don't
lose completely their capacity to drive, since
they need to drive, but have some access to
some counseling, some kind of remediation of
their driving behavior.
Is that -- I'm just wondering if
4567
you thought about using that as a means of
addressing this issue, as opposed to removing
their license permanently.
SENATOR FUSCHILLO: Senator, you
know, once again, this bill specifically deals
with raising the fines and adding a new
section. There are state-run programs,
Senator, that deal with that. But this bill
is limited specifically to the fines and the
permanent revocation.
SENATOR MONTGOMERY: All right.
Thank you, Senator Fuschillo.
SENATOR FUSCHILLO: Thank you.
SENATOR MONTGOMERY: That sort of
answers my question.
And on the bill, Mr. President, I
certainly can identify with and I am in
agreement that we must address the issue of
people who drive while intoxicated. I just -
I'm just careful. I think that we need to
proceed carefully since, in some areas of our
state in particular, there basically is no
transportation system. And if there is, even
in places where there is a transportation
system, very often it shuts down at an hour
4568
that leaves many people unable to get to jobs
unless they have access to their own personal
transportation.
And I would further add that I'm
certain that a large percentage of our DWIs,
especially the ones that are most lethal in
their outcome, are very young drivers. So
there is a possibility that we can remediate
their behavior, we can address the way that
they are engaged in sometimes what ultimately
is -- what I consider to be suicidal behavior
without penalizing them in a way that
essentially jeopardizes their ability to
support themselves and their families, to get
to school, to get to their jobs and so forth
and so on.
So I am going to support the
legislation. I wish that we had another
section in here that talks about looking at
alternative programs to address the source of
the problem as opposed to just addressing the
problem. So perhaps, Senator Fuschillo, we
can -- Mr. President, we will come -- Senator
Fuschillo will come with another kind of bill
at some point that will help us address the
4569
problem on the other level.
But I certainly will vote yes on
this particular bill. Thank you.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you, Mr.
President, if the sponsor would yield.
SENATOR FUSCHILLO: Yes, I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: There was
discussion about this not passing the
Assembly, only the Senate. Does the bill in
fact have an Assembly sponsor?
SENATOR FUSCHILLO: Yes, it does,
Senator.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would yield -
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: -- and share with
us who that is.
4570
SENATOR FUSCHILLO: Assemblywoman
O'Connell.
SENATOR DUANE: And if the
sponsor would continue to yield.
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I'm wondering if
the sponsor has any statistics on what the
numbers are of repeat drunken drivers.
SENATOR FUSCHILLO: Yes, I do.
Through you, Mr. President. Senator,
convictions in 1999 in New York State, 18,069
for DWI. For DWAI convictions in 1999,
25,956.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
4571
SENATOR DUANE: Is that broken
down by drugs and alcohol and combination?
SENATOR FUSCHILLO: The driving
while ability is impaired is, but the DWI is
strictly driving while under the influence.
But the statistics I have, Senator,
are broken down as far as the priors, were
there any priors and, if there were, how many
were there.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR FUSCHILLO: Yes, I do.
SENATOR DUANE: Have the -- has
the State Police weighed in on the bill?
SENATOR FUSCHILLO: With regard
to what, Senator?
SENATOR DUANE: Whether they
support the bill or not.
SENATOR FUSCHILLO: I have not
spoken to the State Police, but I'm confident
they would support the bill. Anything to help
them, Senator, I'm sure would be welcome.
4572
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: And how about DAs
or judges, have they weighed in on the bill?
SENATOR FUSCHILLO: We've
conferred solely with MADD, Mothers Against
Drunk Driving, who have worked with us on
this, Senator.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Were there
hearings on this bill?
SENATOR FUSCHILLO: No, Senator.
This bill has -- again, since I've been in the
Senate, we've introduced it for the three past
4573
previous years. But I know my predecessor,
Senator Norman Levy, has had it for many years
as well, and he was chairman of the
Transportation Committee.
I have not had any hearings, and I
don't know if he had any.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR FUSCHILLO: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: In that the fine
is being raised to $2,500, or the potential
fine is being raised to $2,500, could the
sponsor tell me where the extra money would
go, of the fine would go? Does it just go
into the general fund or -
SENATOR FUSCHILLO: State general
fund, I believe, Senator. I'm being advised
the state general fund.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator,
4574
do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Does the sponsor
think there might be -- since the bill may not
have had as much attention recently as in
Senator Levy's days, do you think it would
make sense to have some or all of that money
go towards treatment or deterrence?
SENATOR FUSCHILLO: It may be a
possibility, Senator. We'll be happy to look
into that.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR FUSCHILLO: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Has there been
any consideration of requiring ignition locks,
the technology of making sure that a person
hasn't been drinking before they can start the
car up?
SENATOR FUSCHILLO: Senator, this
4575
bill is specific with its intent. I know that
there are bills introduced in the Senate that
deal specifically with that issue. When it
comes about, I'd be happy to discuss that with
you.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would be willing to
yield.
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: The reason I
raised that is that in this bill has been
around for quite a while and the technology of
ignition locks, you know, has moved forward,
I'm wondering whether or not consideration can
be made to, instead of what I consider to be
taking away judicial discretion on sentencing,
to instead encourage as part of the sentencing
ignition lock technology for those convicted
of numerous drunk driving or serial drunk
driving incidents.
SENATOR FUSCHILLO: Again,
4576
Senator, this bill deals with a specific
issue. It doesn't deal with that. If that
bill comes up before the house, I'd be happy
to discuss it with you.
But have I considered it, with
whether or not I would support it? Yes, I
would.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I'm wondering if
the sponsor is concerned that the bill does
take sentencing discretion away from the trial
court judge when in fact they already have the
ability under present law to not exactly
sentence according to this bill but pretty
close to it.
SENATOR FUSCHILLO: No, I don't,
Senator. I think we have to continually
review and strengthen our anti-DWI laws. And
4577
based on the conviction numbers that I read to
you previously, I think we have to take more
of a hard stand.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you continue to yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Could the sponsor
tell me when this bill was first introduced?
SENATOR FUSCHILLO: I don't know
the original date when Senator Levy had
introduced it, Senator, but I've reintroduced
it for three years now.
SENATOR DUANE: And through you,
Mr. President, one final question.
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: It's actually a
4578
two-parter.
I'm wondering why there are no
Minority sponsors for the bill and if the
sponsor would be willing to allow Minority
sponsorship of the bill.
SENATOR FUSCHILLO: Senator,
we're dealing -- through you, Mr. President -
with specific issues here that increase fines
and revocation periods, not with
cosponsorships. I'll be happy to deal with
that at another time.
SENATOR DUANE: On the bill, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
SENATOR DUANE: Well, first, I
just think it's weird that we only have bills
come before us here that are sponsored by the
Majority party. It just -- I mean, if you
visited here from someplace else and saw that
the only legislation we have in this house is
Majority-sponsored legislation, frankly, I
think that's weird.
I don't think that we can really
put up with the excuse anymore, well, the
4579
other house does it, because you know what?
We're the Senate. And perhaps it's up to us
to set an example about how legislation should
be crafted and passed in this state.
I'm concerned that this bill and
the technical parts of the bill and the
effectiveness of the bill, should it be
passed, has not been revisited in who knows
how many years. I mean, as I understand it,
Senator Levy was here for a long time. So
this bill could be very old. In fact, it
could be from -- it's certainly before there
were pilot programs on the ignition lock
technology.
Of course, we've started studies on
ignition lock technology. I've never seen any
results of them. I'm wondering whether they
have or whether we've broken yet another law
by requiring a study and then not seen the
results of the studies. But I was afraid to
ask that because I thought I would be ruled
out of order if I raised that.
I also think that we've gotten a
lot further along in understanding the disease
of alcoholism and we have a better
4580
understanding of what kind of treatments work.
And so to tie a judge's hands and not really
provide for treatment modalities and interlock
technology I think is somewhat irresponsible.
I also think if we're going to
raise the fines, then we ought to raise the
amount of money which we spend on treatment in
this state of alcoholism and drug addiction.
You know, previously I served on
the Alcoholism Committee here, and the only
bills we ever really looked at had to do with
drunk driving. We never, ever had any
legislation having to do with treatment for
drugs or alcohol. That's why I got off it. I
mean, I can vote on drunk driving bills from
now till kingdom come, but what I'd really
like to hear about is the most recent
technology on interlock and what's happening
with those studies. I'd like to know what
other states are doing, what's successful in
other states on the issue of driving under the
influence of alcohol and drugs. I'd like to
talk more about how we need more programs in
this state for people who are suffering from
substance abuse.
4581
But I have to tell you, that
committee was a wasteland about it. The only
thing we did was have bills on stricter
penalties for drunk driving. And we never had
a hearing on it, never had a hearing on any of
these drunk driving bills.
And, you know, I have a tremendous
amount of respect for MADD. I think they've
done a great job. However, I don't think that
we can only consider what they believe to
be -- and for that matter, this could be a
MADD bill from, you know, twenty years ago.
We don't really know. Certainly things have
changed over the past twenty years in our
understanding of addictions and how it impacts
on drunk driving.
Anyway, you know, I actually
consider myself to be very tough on the issue
of driving under the influence of drugs and
alcohol. I think it's a really terrible thing
and your ability to drive is a license, not a
right, in this state, in this country. So the
dangers of driving drunk are such that I think
that we should have strong penalties at the
discretion of a judge.
4582
I find myself in a difficult
position. I'm not opposed to raising
penalties, provided a judge has the discretion
to raise penalties, depending on the
compliance of the defendant. But I also think
the judge should have the discretion to use
interlock technology and also to require
treatment.
I look at alcoholism and drug
addiction as the disease and not just a
criminal justice issue. I understand and also
believe that people have to take
responsibility for their actions even while
they're addicted. That's true. They have to
take responsibility for their actions. And
the punishment should be commensurate with
their actions. But I also believe that we
have to have a health component to it as well
which deals with the underlying addiction.
Because in fact, someone who is a drunk driver
is probably someone who is very unhealthy at
home as well and doesn't just impact on the
person or death or injury that they may have
killed but is probably destroying the family
and the household in which they're living.
4583
And so, yes, I think they should be
punished for what it is that they've done.
And the proof of their addiction and
alcoholism is repeat drunken driving. But
that's only a terrible symptom of a disease
which is probably impacting a lot of other
people besides those that are directly injured
by it.
And I think that it is the
responsibility of a judge to look at all of
that. And in fact, in this kind of case a
judge has a very, very powerful position. And
if they had the ability to sentence someone to
rehabilitation, I think that that would be a
very important power for them to have. But I
don't see that in this bill.
And I also think that it would be a
further problem because there are not that
many places where people can go to deal with
their alcoholism and drug addiction. In fact,
it used to be that people could go to rehabs
for a 28-day program, but now they can't. The
most you can get, pretty much, and be covered
in insurance is about 14 days. And that's
really not enough time to take someone out of
4584
their environment.
And if the person happens to be a
woman and she happens to have children,
there's virtually no place for them to go to
get treatment in this state.
Many of us have been pushing for
more treatment slots. Not only would that
help on the issue of what we're talking about
here, repeat driving while under the influence
of drugs and alcohol, but it would probably
also help to not make it so that so many
people are being sentenced to our prisons
under the present drug laws.
In California, someone who is
stopped for being under the influence of drugs
or selling drugs automatically has the option
or is required to be sent into treatment. I
actually think that's a model that we should
start looking at here. But there isn't the
money for that.
So, you know, I find myself
conflicted because I certainly am tough on
drunk driving, but I think the issue is much
more complicated than what's just in this one
bill. So I'm going to wait and listen to the
4585
rest of the debate until I make up my mind on
it.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. On the bill.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson, on the bill.
SENATOR HASSELL-THOMPSON: A
great deal of what Senator Duane says I concur
with. I have the same concern, sitting on
Transportation and sitting on the Committee on
Alcoholism and Substance Abuse. And I think
that it continues to be a concern for me and
for others that at the same time we are
increasing the penalties, we are not looking
at the substantive causes and making the
parallel kinds of allocations into the budget
to support those.
Having said that, however, I also
have a major concern when I look at statistics
that tell me that one-third of all drunk
drivers have been on probation or have been
repeaters on several occasions. And it's
4586
unfortunate that it takes high-profile
incidences of drunk driving for us to become
consciously or continually aware of the hazard
of drunk driving as well as under the
influence of other substances.
I must support this bill, but I
support it in the same way that I did as in
committee. Many times I do without
recommendation, and I do primarily because
until we get to the point that we begin to
have hearings -- not just hearings to do a
show and tell, but to have hearings for us to
be able to seriously substantiate that we're
not -- there is no real strong parallel
between the numbers of -- the increases in
penalties and the reduction in incidences,
rather, that there needs to be a parallel
that's drawn between treatment and a reduction
in instances.
So I continue to support these
bills, even on the floor, without
recommendation, primarily because I think
we're not doing enough in the State
Legislature to ensure that treatment runs
parallel with the increase in penalties that
4587
we impose in the Senate.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Onorato.
SENATOR ONORATO: Mr. President,
will Senator Fuschillo answer a question?
ACTING PRESIDENT MEIER: Senator
Fuschillo, will you yield for a question?
SENATOR FUSCHILLO: I'd be
delighted to, Senator.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR ONORATO: I think Senator
Thompson asked part of it.
I was wondering, Senator Fuschillo,
do you have any previous statistics to
compare? Has there been more of a reduction
in reducing DWI through the fines or through
the imposition of mandating some sort of
treatment? Which was more effective in
cutting it down somewhat?
SENATOR FUSCHILLO: I don't have
any specific statistics, Senator, but from my
past experience in running a nonprofit agency
that dealt with alternatives in treatment
4588
facilities, I would say it's a combination of
both.
SENATOR ONORATO: Through you,
Mr. President, will you would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR ONORATO: Do you know of
any other states that currently have the same
law on the books for three convictions?
SENATOR FUSCHILLO: Are you
talking about the permanent disqualification
of the license?
SENATOR ONORATO: Right.
SENATOR FUSCHILLO: Senator, I'm
sorry, I'm not aware of any other states that
have it.
SENATOR ONORATO: I wanted to
find out if we had any statistical comparison.
But there are no other states that you know
of.
SENATOR FUSCHILLO: There may be,
4589
Senator, but my information doesn't provide
for that.
SENATOR ONORATO: Thank you.
ACTING PRESIDENT MEIER: Any
other member wish to be heard on the bill?
Senator Bruno.
SENATOR BROWN: Yes, thank you,
Mr. President. Through you, would Senator
Fuschillo yield for a question?
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield for a question?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: Senator
Fuschillo, I certainly know of your reputation
in running community-based organizations, and
in fact through you had the ability to read
and learn more about the organization that you
operate.
And like many of those who have
raised some questions before me, I'm just a
little bit concerned about taking the
discretion away from the trial judge to make a
decision about whether or not to revoke the
4590
license or for how long a period to revoke the
license.
In your researching this, was that
a concern of yours, and how did you decide to
come to this point in the legislation?
SENATOR FUSCHILLO: Senator -
and you've been sitting here, and I think the
numbers clearly speaks for themselves. It's
about getting the drunk drivers off the
street.
You know, how many times do we open
up the papers, and I'm sure in your community,
in your district, do you read about the
fatalities and how they're repeat offenders?
And that's really the basis for the decision
here to get them off the street. And I've
seen with my experience and the clients that
the agency handles, they are repeat offenders.
In New York State, as I stated
before, the average for repeat offenders is
much higher than the national level.
SENATOR BROWN: Through you, Mr.
President, would Senator Fuschillo yield for
another question?
ACTING PRESIDENT MEIER: Senator
4591
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: Senator,
certainly through your experience you worked
with alternatives to incarceration, and
certainly you assisted people in their
rehabilitation.
The other concern that I have, an
18-year-old goes out, in a year's period of
time abuses alcohol, clearly has a problem,
has three offenses, 10, 15 years goes by, this
person has gotten their life turned around.
This would then still prevent them from ever
having a driver's license even if after a long
period of time they've gotten their alcohol or
substance abuse problem under control?
SENATOR FUSCHILLO: No, Senator.
And exactly what you're stating is why we put
in the bill to allow, after a ten-year period,
give the Commissioner of Motor Vehicles the
discretion to evaluate on a case-by-case basis
and issue a probationary license.
SENATOR BROWN: Okay. I'm sorry,
4592
I misread that. I confused that. If I may,
through you, Mr. President.
ACTING PRESIDENT MEIER: Go
ahead, Senator Brown.
SENATOR BROWN: I confused that.
Is there also a ten-year provision
that if they had an offense in another state,
they're -
SENATOR FUSCHILLO: Right. Yes,
there is, Senator.
SENATOR BROWN: Okay, I was
confusing that.
SENATOR FUSCHILLO: But again, to
deal specifically with what you're talking
about, first of all, this legislation does not
take away the judicial discretion to authorize
somebody to go to a treatment program. And
hopefully, you know, after a ten-year period,
if there's no violation of the Vehicle and
Traffic Law and they successfully complete it,
there would be a favorable rating from the
Commissioner of Motor Vehicles to give back
the license on a probationary period.
SENATOR BROWN: If I may, on the
bill, Mr. President.
4593
ACTING PRESIDENT MEIER: Senator
Brown, on the bill.
SENATOR BROWN: Let me just take
a moment to thank Senator Fuschillo for his
work and his response to mine and other
questions. I do have a better understanding
of the bill.
And like many other Senators who
have spoken, I too feel that we need to do
something about people who drive while under
the influence of alcohol or illegal
substances. And like many others in my
district, I have seen the pain and heartache
of families who have lost loved ones to people
who drive drunk or drive while under the
influence of some kind of drug. So I do think
that we have to crack down.
I was concerned that this might
have some negative impact on the ability of
people to rehabilitate themselves and then
have the ability, once rehabilitated, to be
able to drive to earn a livelihood. But
Senator Fuschillo has sufficiently explained
to me how the legislation works, and I feel
comfortable that we can crack down on driving
4594
while drunk and on drugs and, at the same
time, if the person has turned their life
around and has gotten their substance or
alcohol problem under control, at some future
point they will be able to obtain a license to
operate a motor vehicle.
Thank you.
ACTING PRESIDENT MEIER: Senator
Stachowski.
SENATOR STACHOWSKI: If Senator
Fuschillo would yield for a couple of
questions.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield for a question?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR STACHOWSKI: Why do we
use the term "permanent revocation" if it's
really not permanent?
SENATOR FUSCHILLO: Through you,
Mr. President, if the Commissioner of Motor
Vehicles does not give the license back,
Senator, it would be permanent.
SENATOR STACHOWSKI: That's one
4595
of the confusions I have.
The other one is in the bill it
says after the ten-year period they really
don't get their license back, they get a
permanent temporary -
SENATOR FUSCHILLO: Probationary
license.
SENATOR STACHOWSKI: Permanent
probationary license. The question I have is
what would be the insurance ramifications of
trying to get car insurance with a permanent
prob -- probationary license? Easy for me to
say.
SENATOR FUSCHILLO: Through you,
Mr. President, I don't know. I don't know,
Senator.
SENATOR STACHOWSKI: Thank you,
Senator.
On the bill. I would think that
the fact that you had DWIs, for one, would put
you on a list that it would be extremely
difficult to afford insurance unless you were
particularly well off.
And secondly, if you had a
permanent probationary license due to a past
4596
history with DWIs, I don't know where they'd
fit you in in car insurance and if that would
a new, special part of the risk pool. I'm not
sure. But I'd think that the average working
guy couldn't afford to drive.
I'm not sure that Senator Brown's
worries are completely answered, because the
fact is if you can't afford car insurance,
you'd better not be driving, because you got a
whole other set of problems coming up if
you're driving without it.
So not that I'm against increasing
the penalties, but I don't see anyplace where
we're increasing the treatment available. And
with the edge of the change in the Rockefeller
Drug Laws and the increase in the number of
people that are going to be using our drug and
alcohol treatment facilities just through that
area alone, and the fact that we're short on
spaces right now for people that need this
kind of help, I'm just not sure how we're
doing all these things without putting any
kind of accompanying money into treatment
facilities.
Not that people deserve extra
4597
consideration if they're driving drunk.
However, the fact is that if you're a constant
repetitive drunk driver, more likely than not
you're a person suffering from alcoholism.
And the fact is if you are actually a person
suffering from alcoholism, you have a physical
disease.
That's what the studies have shown,
that contrary to former beliefs that it was
some sort of character weakness or some sort
of escape kind of behavior, the fact is that
more times than not, it really is a physical
disease. And that's what they've found with
their research that originated in Houston,
Texas.
So the fact is that these people
need help. And the fact that they constantly
drive knowing that they can lose their license
forever is kind of their way of crying out for
the help they need, because they can't stop.
And I don't know that we're helping them by
not providing any accompanying treatment money
for every time we do one of these bills.
There's nothing wrong with these
bills. We should get drunk drivers off the
4598
road. But we should also recognize when we're
doing that that a lot of these people happen
to have an illness. And nobody is addressing
it, particularly the person that has it,
because they probably don't recognize that
they have it or don't want to admit that they
have it.
So that's the one problem I have
with this, is that we don't ever talk about
those things, we just talk about increasing
penalties. And I'm not against it, I -
Senator, if you'd yield for one more question,
I have one more.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR STACHOWSKI: Actually,
before Senator Brown and you exchanged and I
read that little section, I didn't have any
other ones except this one.
Do you have any idea why the
Assembly continues not to pass this bill?
SENATOR FUSCHILLO: No, I don't,
4599
Senator.
SENATOR STACHOWSKI: Thank you.
SENATOR FUSCHILLO: Senator, but
on the treatment side, that is a separate
issue with this. Again, you know this is
specifically dealing with the fines and
revocation periods.
The Senate Majority previously put
forth a very ambitious program called "Road to
Recovery," which adds $20 million for exactly
what you're talking about.
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: I have a
question for the sponsor, if he would yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, will you yield for a question?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR OPPENHEIMER: We were
just talking about something which I really
have to question you. What if the person who
is accused of drunk driving doesn't have a
license? There's a lot of people driving who
4600
do not have licenses. What would happen to
them?
SENATOR FUSCHILLO: Senator, I
don't know the exact penalties for that. I
mean, this bill is specifically for the
revocation and increasing fines.
SENATOR OPPENHEIMER: Well, you
know, I'm one of the founders of MADD in
Westchester. So obviously this is something I
think is important.
Though I have another question, if
you would yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield for another question?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR OPPENHEIMER: This bill
has been around a long time.
SENATOR FUSCHILLO: In my
opinion, too long, Senator.
SENATOR OPPENHEIMER: Well,
obviously years and years is very long.
The opposition in the other house,
if you could tell me?
4601
SENATOR FUSCHILLO: Senator, I
don't know what the opposition was. The
former sponsor is no longer a member of the
Assembly. I'm hoping with the new sponsor any
obstacles will be overcome and it will become
law.
But I can guarantee you, Senator, I
will not give up on this. And I appreciate
the support that you've given in the past.
SENATOR OPPENHEIMER: Thank you.
On the bill.
ACTING PRESIDENT MEIER: Senator
Oppenheimer, on the bill.
SENATOR OPPENHEIMER: You know,
we seem to be giving the same message from
this side of the aisle, which is -- and I
thank Senator Stachowski for giving us the
information that he had on the fact that there
is no question, you don't have to cite
reports, there is no question that alcoholism
is an illness and should be treated as an
illness.
And we ought to be putting a whole
lot more money into the prevention and helping
them -- not that they are ever cured, but they
4602
consider themselves recovering. And if they
are strong of will, they can really help
themselves once they get the initial help.
So that's, you know, an issue I
feel strongly about, because very often young
people make mistakes too. And aside from the
actual substance abuser who is ill, we have
instances of young people making mistakes.
And to think that they will never be able to
get this mark, black mark off their records,
having to get a probationary license for the
rest of their lives, and God knows how they
would be able to pay for the insurance, that's
very concerning.
One thing that I would like to
mention here, which isn't exactly on the bill,
is that we ought to be doing more for our
young people as far as driving, and we ought
to be giving them the opportunity to have a
graduated driver's license so that there will
be a period of time where they will be able to
learn how to drive. It is required that 30
hours of driving time be demonstrated, and six
months of learning time to elapse before a
junior license could be offered to them. And
4603
I think this is the direction we have to go to
make for safer roads and to make our children
more knowledgeable about driving.
I'll be voting yes.
ACTING PRESIDENT MEIER: Senator
Brown, why do you rise?
SENATOR BROWN: Mr. President, I
don't mean to belabor it, but if I may ask
Senator Fuschillo if he would yield for
another question.
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: Senator, on the
point of the restoration, potential
restoration of a license after a ten-year
period where the person would be able to get a
probationary license, counsel just mentioned
to me that that's kind of a new provision.
And what would be the process by
which a judge or DMV could actually consider
restoring a -- well, providing a probationary
license after ten years?
4604
SENATOR FUSCHILLO: Senator, it's
at the discretion of the Commissioner of Motor
Vehicles.
And the correct term for the
license would be a permanently probationary
license. But -
SENATOR BROWN: I'm sorry, I
didn't hear.
SENATOR FUSCHILLO: Permanent
probation license.
But again, the decision made would
be at the discretion of the Commissioner of
Motor Vehicles.
SENATOR BROWN: Through you, Mr.
President, would Senator Fuschillo yield for
one additional question?
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: My other concern
related to this, Senator, is there seems to be
an absence of criteria by which DMV would be
able to restore a license under this
4605
provision.
SENATOR FUSCHILLO: Senator, it's
referenced in the bill that during such
ten-year period -- and, Senator, if you want
to look at the bill, I could reference you.
SENATOR BROWN: Yes, I have it,
Senator.
SENATOR FUSCHILLO: Page 2,
starting at line 18 down to line 30.
SENATOR BROWN: Through you, Mr.
President, if Senator Fuschillo would yield
for a question.
ACTING PRESIDENT MEIER: Senator,
do you yield for a question?
SENATOR FUSCHILLO: Yes. Yes, I
do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: Senator, thank
you for bringing the section to my attention.
I see it, and I have read it.
Though it doesn't prescribe whether
there is a hearing or how someone would
trigger the process.
SENATOR FUSCHILLO: Senator,
4606
again, you know, the discretion in the
regulation would lie solely with the
Commissioner of Motor Vehicles.
SENATOR BROWN: Thank you,
Senator.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Does any
other member wish to be heard on this bill?
Senator Paterson.
SENATOR PATERSON: Mr. President,
if Senator Fuschillo would allow me to come
back and ask a couple of more questions.
SENATOR FUSCHILLO: Yes.
SENATOR PATERSON: Senator, right
now if someone is convicted of DWI or DWAI
drugs or vehicular homicide, can't the court
prohibit their use of an automobile for a
period of time as it stands in the law right
now?
SENATOR FUSCHILLO: Yes.
SENATOR PATERSON: Thank you,
Senator. This is something that Senator Duane
raised earlier, and I think it bears a little
further scrutiny.
So it's also true that the court
4607
right now has the authority to limit the
privileges of individuals with respect to the
operation of automobiles? That's also the
case; right, Senator?
SENATOR FUSCHILLO: Is that a
question, Senator?
SENATOR PATERSON: Yes.
SENATOR FUSCHILLO: I believe so.
SENATOR PATERSON: Then, Senator,
would you explain to me -
ACTING PRESIDENT MEIER: Senator
Paterson, do you wish Senator Fuschillo to
continue to yield?
SENATOR PATERSON: Yes, please,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you continue to yield?
SENATOR FUSCHILLO: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Then, Senator,
you know, what I'm just feeling is that we're
cutting out the middleman. In other words,
we're writing a law and we're enforcing it,
but we're really diminishing the need for the
4608
trial judge. And since the trial judge does
have these powers, I'm just wondering whether
or not the enactment of this legislation is
even necessary.
SENATOR FUSCHILLO: Senator,
based on my experiences -- and it was limited,
to a certain extent. But I saw all too often
repeat offenders. And then the question has
to be asked, when is enough enough?
And hopefully, if this becomes law,
it would be a strong enough deterrent. But
I'm sure, Senator, in your career here you
have seen mandatory sentences throughout this
house for many years.
But again, back to my experiences
in the nonprofit world dealing with this
issue, all too often we see repeat offenders
and the tragedies that are associated with
that.
SENATOR PATERSON: Mr. President,
if the Senator will continue to yield.
SENATOR FUSCHILLO: Yes.
ACTING PRESIDENT MEIER: Senator
Fuschillo yields.
SENATOR PATERSON: Senator, my
4609
question will certainly call for a really, in
many respects, subjective conclusion on your
part.
But seeing myself in the position
of the trial judge, I just would not want to
have to take the responsibility of people who
have violated the law in this respect once,
twice, sometimes three times, who come before
the court. I think that would be a little bit
too much of a burden for my conscience to
bear. And I'm sure it's, as the drafter of
this legislation, the same point of view that
you have.
And I'm just looking around the
chamber at our colleagues. And if they were
sitting in that same situation, I'd say that
the reasonable person would see it your way.
But taking your word for what
you've seen, I'm just wondering what did you
think was the reason that so many times you
observed individuals getting a chance to get
back on the road due to the, you know, perhaps
failure of the trial judge to restrict or
prohibit the use of the license?
SENATOR FUSCHILLO: Senator, are
4610
you asking the question why they would get
behind the wheel as a drunk driver once again?
SENATOR PATERSON: No, I'm asking
why the -- what would have been the reason
that these individuals got back out on the
streets when they were in the trial court.
Why did you think this happened?
SENATOR FUSCHILLO: Senator,
separate and apart from the specific issues
that we're dealing with in the legislation
here, alcoholism is a disease. And it's a
serious problem. Many individuals face that.
And I'm not an alcoholic, Senator,
so I can't tell from experience what goes
through somebody's mind.
SENATOR PATERSON: Thank you.
I'm sorry, Mr. President, I didn't phrase the
question properly. I take responsibility for
that.
What I'm saying is, what was in the
contemplation of the trial judges on these
occasions that you were referring to where
individuals who probably went out and broke
the law again were allowed to leave in
possession of their licenses?
4611
I know it's a subjective conclusion
on your part.
SENATOR FUSCHILLO: Yes, a very
subjective conclusion on it, Senator.
But through you, Mr. President,
each case is different, Senator. And I did
not personally evaluate these cases. But in
most cases when -- in all cases when they were
sentenced to us, it was for the treatment.
SENATOR PATERSON: Okay. Thank
you, Mr. President. I have another question,
if Senator -
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield for another question?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, the
permanency of this legislation bothers me, and
especially with respect to an issue that
Senator Schneiderman raised earlier. He was
talking about the difference between the
commercial and private use of an automobile.
I want to talk about the private
use of an automobile that's commercial to the
4612
individual themself. In other words, people
are granted limited licenses to drive back and
forth to work, to earn a living. Aren't we in
many respects restricting it by establishing
the permanency as we are in this legislation?
SENATOR FUSCHILLO: Senator, I
believe that would come under personal and
that would not be a commercial vehicle.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
ACTING PRESIDENT MEIER: Senator
Fuschillo, do you yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: No, I'm aware
of that, Senator. I'm just talking about the
ability of individuals to go back and forth
from work each day, that would qualify as a
commercial vehicle?
SENATOR FUSCHILLO: No.
SENATOR PATERSON: It would not.
Well, Mr. President, if the Senator would
continue to yield.
ACTING PRESIDENT MEIER: Senator,
4613
do you continue to yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Well, that was
what I thought, Senator. And I'm just asking
you that the permanency -- because I would
never use, in the presence of my counsel, the
word "permanentize." The permanency of this
legislation as it's established, in my
opinion, would restrict the court from in
situations allowing the person to operate the
automobile only for the purposes of satisfying
the needs of their employment.
Don't you think that that is hurt
by the passage of this legislation? Because
it affects other people, not just the
individual who is employed.
SENATOR FUSCHILLO: Senator, I
fully understand your position on this. It's
very strong, and the purpose of it is to serve
as a deterrent.
SENATOR PATERSON: Thank you,
Senator Fuschillo.
Mr. President, on the bill.
4614
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: I feel that
perhaps the issue of recidivism as it
respects -- in respect to treatment is
something that perhaps is an area that many of
our trial court judges might want to become
more familiar, sometimes. It's surprising how
high the recidivism rate is.
And yet I feel that very reasonable
people make these decisions every day and have
a real caution about the establishment of
mandatory sentencing of any kind. And I have
a real problem with it. Not to in any way
minimize the gravity of concern that Senator
Fuschillo exercises when he writes a piece of
legislation such as this.
But I would hope that it would be
recrafted to grant some leniency where often
the family members, the relatives of the
individual who is convicted is -- are still
given the opportunity to receive their just
reward from the employment of that individual,
so long as the person goes right back and
forth to work. And any violation of that
4615
obviously would be punishable at that
particular time.
But it is an important issue when
it comes to a number of the areas where the
automobile becomes the primary source of
connection between a person and their job.
And I think for that reason, I'd
like to really see another piece of
legislation that shows a little more faith in
the judicial system, particularly in the
criminal justice system, and also to the
families of the people who are involved.
There definitely have to be
deterrents. This is an area that Senator
Fuschillo has I think in many respects
properly addressed in the fashion that our
late colleague Senator Levy did. Senator
Balboni has also offered some legislation
here. And it's an area that we're addressing.
But I think that I'm a little
chagrined that we don't have a little more
faith in public servants who try to make
decisions based on information that will
protect the public.
ACTING PRESIDENT MEIER: Does any
4616
other member wish to be heard on this bill?
Debate is closed.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
SENATOR PATERSON: A slow roll
call, please, Mr. President.
ACTING PRESIDENT MEIER: More
than five Senators have arisen.
The Secretary will call the roll
slowly.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Yes.
THE SECRETARY: Senator Balboni.
SENATOR BALBONI: Mr. President,
to explain my vote.
ACTING PRESIDENT MEIER: Senator
Balboni, to explain his vote.
SENATOR BALBONI: I am always
amazed when I hear debate on driving while
intoxicated or driving under the influence
when there's so much compassion shown for the
driver for the loss of their license.
The reason why I say this is
4617
because there is a failure, a basic failure to
recognize that driving is nothing more than a
privilege. It may be a necessity for many
people in this day and age. It is still a
privilege that is governed by the rules of the
Department of Motor Vehicles.
But what is not a privilege is to
drive on our roads safely. Talk to one family
who's suffered a death through DWI and watch
one persistent violator get up in court and
try to explain why they continue to drive
drunk, and the reasons why this bill is
absolutely essential become patently obvious.
Senator Fuschillo is to be
congratulated on his leadership in this area.
And this is another bill that recognizes the
reality of what this dreaded situation can
cause and the havoc it wreaks on the lives of
New Yorkers.
I vote aye, Mr. President.
Thank you.
ACTING PRESIDENT MEIER: Senator
Balboni will be recorded in the affirmative.
The Secretary will continue to call
the roll.
4618
THE SECRETARY: Senator Bonacic.
SENATOR BONACIC: Yes.
THE SECRETARY: Senator Breslin.
ACTING PRESIDENT MEIER: Senator
Breslin, to explain his vote.
SENATOR BRESLIN: Thank you, Mr.
President.
I commend the sponsor for his
perseverance over the last several years and
also for his patience during this debate.
I am voting for this bill. But I
do have some reservations dealing with taking
some judicial discretion away from judges. I
also concur with Senator Balboni that there
are judges that it seems to me are much too
lenient. But there are also judges that
review cases, and they review cases in a very
careful and a very precise way.
And, you know, at times I've seen
studies that talk about driving under the
influence of alcohol and drugs, and that
disproportionately -- some of those statistics
say it disproportionately affects poorer
communities. And if that's so, then you're
taking away at times a breadwinner and the
4619
ability of that breadwinner to support a
family.
And if in fact there is evidence of
rehabilitation, rehabilitation through the
treatment modality, a treatment that is
consistent and fair, and there is the recovery
that is indeed necessary to allow that person
to be eligible to have that license back,
which helps put the family back together.
So I think that that statute has to
be more flexible, and I hope that we can look
in the future to make it more flexible.
I vote in the affirmative.
ACTING PRESIDENT MEIER: Senator
Breslin will be recorded in the affirmative.
THE SECRETARY: Senator Brown.
SENATOR BROWN: To explain my
vote, Mr. President.
ACTING PRESIDENT MEIER: Senator
Brown, to explain his vote.
SENATOR BROWN: Let me too
commend Senator Fuschillo for this piece of
legislation.
Let me make it clear, I don't weep
for the perpetrator. But I do believe that we
4620
need to allow for rehabilitation for people
who have had problems and who have turned
their life around.
Driving while under the influence
of alcohol or drugs and doing that repeatedly
is a terrible thing, something that we have to
try to protect the public from. And because
of that, I will vote for this piece of
legislation in the affirmative.
ACTING PRESIDENT MEIER: Senator
Brown will be recorded in the affirmative.
THE SECRETARY: Senator Bruno.
(Senator Bruno was indicated as
voting in the affirmative.)
THE SECRETARY: Senator Connor.
SENATOR CONNOR: No.
THE SECRETARY: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Yes.
THE SECRETARY: Senator
Dollinger.
(No response.)
THE SECRETARY: Senator Duane.
ACTING PRESIDENT MEIER: Senator
Duane, to explain his vote.
4621
SENATOR DUANE: Thank you, Mr.
President.
I have to admit I'm getting a
little tired about hearing explanations of
bills which, you know, the explanation starts
with "Well, this bill has passed for the past
twenty years." It just -- you know, it's just
not compelling to me anymore.
I mean, this is 2001. Senator
Levy, you know, was -- I'm sure he was one of
the greats of the Senate. But, you know, he
started quite a while ago, maybe 30 years ago
or something, I don't know exactly. But
that's, you know, kind of a different era.
I just think it's time to dust off
some of these oldies but goodies and look at
them anew. I mean, I think that we're paid to
actually revisit legislation and not just pass
tired old legislation.
So I think we could do better than
this bill. I think we could have an excellent
bill instead of just a bill that, you know,
just gets passed by one house. You know what?
We could even have a hearing. Imagine that, a
hearing on this. Wouldn't that be special, to
4622
have a hearing on this bill.
I think there's a lot of people out
there who can help us to craft better
legislation. DAs, judges, people in the
addiction field, people who are working on the
ignition lock technology. I think all of them
could bring something to the table. Also
those people who have been convicted of
drunken driving, and find out what it is that
they think could have stopped them before they
did that.
You know, I think that 1980 was a
great year. I remember it well, it was a
great year. But this is 2001. And I think
it's time to move on and look at legislation
anew.
I'm going to vote no on this, not
because I'm not tough on drunk drivers -- I
am. But I'm voting no on this because you
know what? We could do better than this.
Thank you.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the negative.
Continue to call the roll.
THE SECRETARY: Senator Espada.
4623
(No response.)
THE SECRETARY: Senator Farley.
(No response.)
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Aye.
THE SECRETARY: Senator Gentile.
SENATOR GENTILE: Yes.
THE SECRETARY: Senator Gonzalez.
(No response.)
THE SECRETARY: Senator Goodman.
SENATOR GOODMAN: Aye.
THE SECRETARY: Senator Hannon.
SENATOR HANNON: Aye.
THE SECRETARY: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Aye.
THE SECRETARY: Senator Hevesi.
ACTING PRESIDENT MEIER: Senator
Hevesi, to explain his vote.
SENATOR HEVESI: Thank you, Mr.
President.
I too rise to support this
legislation. And I have in the past commented
on other legislation of a similar nature, some
4624
of which was sponsored by Senator McGee, and
criticized that legislation for being too
lenient in its scope.
So I support this bill here
because, as I've said on the floor of this
house many times before, particularly for
nonviolent felony offenses, I'm perfectly
willing to be lenient the first time around,
but when somebody commits a repeat offense,
whether it's a violent felony or a nonviolent
felony offense, unless that person is
afflicted with a disease -- and alcoholism is
a disease, so in that case you can make the
argument that tough love is required -- but
leniency goes out the window.
And Senator Fuschillo indicated the
recidivism rates in respect to this kind of
offense. It's time we take action. I would
go further than this, even. And I know some
of my colleagues have some reservations, but
we have to be completely intolerant of this
type of behavior.
So I support this legislation. I
vote aye.
ACTING PRESIDENT MEIER: Senator
4625
Hevesi will be recorded in the affirmative.
Continue to call the roll.
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Aye.
THE SECRETARY: Senator Johnson,
excused.
Senator Kruger.
(No response.)
THE SECRETARY: Senator Kuhl.
SENATOR KUHL: Aye.
THE SECRETARY: Senator Lachman.
ACTING PRESIDENT MEIER: Senator
Lachman, to explain his vote.
SENATOR LACHMAN: Briefly on the
bill, Mr. President.
I strongly support this bill. I
think it relates to the issue of drunken
driving in a most positive manner. I've
supported similar bills by one of the
outstanding members of the Senate in the past,
Senator Norman Levy.
And I think Senator Fuschillo has
done an excellent job in recrafting this. I
only hope that he will be able to get a
sponsor in the Assembly to cosponsor this so
4626
that this bill becomes law.
ACTING PRESIDENT MEIER: Senator
Lachman will be recorded in the affirmative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Lack.
(No response.)
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Aye.
THE SECRETARY: Senator LaValle.
SENATOR LAVALLE: Aye.
THE SECRETARY: Senator Leibell.
SENATOR LEIBELL: Aye.
THE SECRETARY: Senator Libous.
(No response.)
THE SECRETARY: Senator Maltese.
(No response.)
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Aye.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Aye.
THE SECRETARY: Senator
Markowitz.
(No response.)
4627
THE SECRETARY: Senator Maziarz,
excused.
Senator McGee.
SENATOR McGEE: Yes.
THE SECRETARY: Senator Meier.
SENATOR MEIER: Aye.
THE SECRETARY: Senator Mendez,
excused.
Senator Montgomery.
ACTING PRESIDENT MEIER: Senator
Montgomery, to explain her vote.
SENATOR MONTGOMERY: Yes, Mr.
President.
As I indicated when I had my
opportunity to question Senator Fuschillo, I
am voting yes with reservations. I think that
we need to do more to look at what the problem
is rather than just addressing the symptoms of
a problem.
And I do believe that we need to
think very carefully about the possibility of
removing the only option that some people have
to get to and from their work, because they
have a problem that is only -- that comes out
in this business of them continuing to risk
4628
their own lives and the lives of others by
drinking while driving.
So I'm voting yes, but I want you
to know and I want the record to show that I
would like to see us address this in this
another fashion as well.
Thank you.
ACTING PRESIDENT MEIER: Senator
Montgomery will be recorded in the
affirmative.
THE SECRETARY: Senator Morahan.
SENATOR MORAHAN: Yes.
THE SECRETARY: Senator Nozzolio.
(No response.)
THE SECRETARY: Senator Onorato.
ACTING PRESIDENT MEIER: Senator
Onorato, to explain his vote.
SENATOR ONORATO: To explain my
vote, Mr. President.
I'm going to vote for this
legislation. I think it's a worthy piece.
But I also want to -- I'm sure we're going to
be revisiting this again. It hasn't passed
the Assembly yet.
And I certainly would like to
4629
address the problem that has been expressed
here on this side of the aisle, that we should
certainly be looking at ways and means of
preventing an individual from not ever
reaching the third conviction. Somewhere
between the first and third, we should make it
mandatory that there be some type of
rehabilitation offered to the individual that
was convicted of driving under the influence.
And there's another part that
hasn't been addressed here today, and I don't
know if it's a part of the bill. While they
talk about drugs, there's medicines that have
some of these same effects that alcohol does.
And many individuals, especially seniors, are
not really aware of some of the effects that
some of the medications that they take can
affect them while they're driving. So I think
there's another avenue that we should look at.
But I'm going to vote aye on this
bill.
ACTING PRESIDENT MEIER: Senator
Onorato will be recorded in the affirmative.
Continue to call the roll.
THE SECRETARY: Senator
4630
Oppenheimer.
SENATOR OPPENHEIMER: Aye.
THE SECRETARY: Senator Padavan.
SENATOR PADAVAN: Yes.
THE SECRETARY: Senator Paterson.
SENATOR PATERSON: No.
THE SECRETARY: Senator Rath.
SENATOR RATH: Aye.
THE SECRETARY: Senator Saland.
SENATOR SALAND: Aye.
THE SECRETARY: Senator Sampson.
(No response.)
THE SECRETARY: Senator Santiago.
(No response.)
THE SECRETARY: Senator
Schneiderman.
ACTING PRESIDENT MEIER: Senator
Schneiderman, to explain his vote.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
I have been listening carefully to
a lot of very interesting points that have
been made in the debate on this bill, and I
think it does raise some serious questions.
I am concerned about the issue of
4631
the lessening of judicial discretion and how
this fits into the overall statutory scheme
and the difficulty we have in New York State
of too many people perhaps being punished for
crimes at an inappropriate level. And that is
a subject that I know we'll be addressing as
the session wears on.
I also am very concerned about the
fact that this creates an anomaly in our law
whereby commercial drivers actually are held
to a lower standard or subject to a lesser
punishment than private individuals driving,
citizens of the State of New York. And I
think that is really a shame.
I hope that Senator Fuschillo, who
I would commend, if I could see him, would -
I hope that he will take that into account
when we are revisiting this issue, because I
suspect we may another chance to address this.
I think that with that adjustment, we can make
this a better bill.
I am voting yes in the hopes that
we can move forward to correct some of these
issues and provide an increase in penalties in
an area that is called for, but perhaps not
4632
with this precise legislation. I will vote
yes.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Schneiderman will be recorded in the
affirmative.
Continue to call the roll.
THE SECRETARY: Senator Seward.
SENATOR SEWARD: Aye.
THE SECRETARY: Senator Skelos.
SENATOR SKELOS: Aye.
THE SECRETARY: Senator A. Smith.
ACTING PRESIDENT MEIER: Senator
Ada Smith, to explain her vote.
SENATOR ADA SMITH: Thank you,
Mr. President.
Like my colleagues on this side of
the aisle, I have some trepidations about
taking away judicial empowerment. I'm also
greatly concerned that we do not have adequate
facilities for treatment of those who may be
convicted under this bill.
However, I'm greatly concerned
about drivers on the road who are under the
influence of either drugs or alcohol and who
4633
put all of our lives in danger. And because
of that, I will be voting in the affirmative.
ACTING PRESIDENT MEIER: Senator
Ada Smith will be recorded in the affirmative.
THE SECRETARY: Senator M. Smith.
(No response.)
THE SECRETARY: Senator Spano.
SENATOR SPANO: Aye.
THE SECRETARY: Senator
Stachowski.
ACTING PRESIDENT MEIER: Senator
Stachowski, to explain his vote.
SENATOR STACHOWSKI: Mr.
President, briefly to explain my vote.
First of all, I'd like to thank
Senator Fuschillo for his courtesies in
answering all the questions and his patience
with everybody's different concerns with the
legislation.
I think that we have to get the
drunk drivers off the road. I would hope that
in the future, now that this bill is obviously
going to pass this house again, that a
concerted effort would be made to find out why
the Assembly won't pass it and maybe try to
4634
work out the differences, rather than just
come back here year after year passing the
same legislation that's not moving anywhere in
their house.
I would rather see maybe even a
slightly less step forward if that would be
able to become a law, rather than just have a
real strong, powerful bill in the Senate that
never passes the Assembly.
I vote aye.
ACTING PRESIDENT MEIER: Senator
Stachowski will be recorded in the
affirmative.
THE SECRETARY: Senator Stafford.
SENATOR STAFFORD: Aye.
THE SECRETARY: Senator Stavisky.
ACTING PRESIDENT MEIER: Senator
Stavisky, to explain her vote.
SENATOR STAVISKY: Yes, Mr.
President. All of us are appalled at the
number of people who have been arrested for
driving while impaired or drunken driving.
And we're also concerned about the recidivism
rate.
Nevertheless, I'm also concerned
4635
about the discretion that is at the hands of
the sentencing judges, and at the lack of
rehabilitation facilities and our lack of
emphasis on rehabilitation.
I wish the people in the other
house could have listened to the debate here
today on this and on other bills. They would
have learned a great deal about the problem,
as I have.
And, Mr. President, I vote aye.
ACTING PRESIDENT MEIER: Senator
Stavisky will be recorded in the affirmative.
THE SECRETARY: Senator Trunzo.
SENATOR TRUNZO: Yes.
THE SECRETARY: Senator Velella.
(No response.)
THE SECRETARY: Senator Volker,
excused.
Senator Wright.
(No response.)
ACTING PRESIDENT MEIER: Call the
absentees.
THE SECRETARY: Senator
Dollinger.
(No response.)
4636
THE SECRETARY: Senator Espada.
(No response.)
THE SECRETARY: Senator Farley.
(No response.)
THE SECRETARY: Senator Gonzalez.
(No response.)
THE SECRETARY: Senator Kruger.
(No response.)
THE SECRETARY: Senator Lack.
(No response.)
THE SECRETARY: Senator Libous.
(No response.)
THE SECRETARY: Senator Maltese.
SENATOR MALTESE: Aye.
THE SECRETARY: Senator
Markowitz.
(No response.)
THE SECRETARY: Senator Nozzolio.
SENATOR NOZZOLIO: Aye.
THE SECRETARY: Senator Sampson.
(No response.)
THE SECRETARY: Senator Santiago.
(No response.)
THE SECRETARY: Senator M. Smith.
(No response.)
4637
THE SECRETARY: Senator Velella.
(No response.)
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Aye.
THE SECRETARY: Senator Wright.
(No response.)
THE SECRETARY: Ayes, 42. Nays,
3.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
is there any housekeeping at the desk?
ACTING PRESIDENT MEIER: We have
three substitutions, Senator.
SENATOR SKELOS: Can we make them
at this time.
ACTING PRESIDENT MEIER: The
Secretary will read the substitutions.
THE SECRETARY: On page 18,
Senator Lack moves to discharge, from the
Committee on Judiciary, Assembly Bill Number
7298 and substitute it for the identical
Senate Bill Number 2934, Third Reading
Calendar 247.
4638
On page 21, Senator McGee moves to
discharge, from the Committee on Alcoholism
and Drug Abuse, Assembly Bill Number 60 and
substitute it for the identical Senate Bill
Number 2512A, Third Reading Calendar 294.
And on page 23, Senator Seward
moves to discharge, from the Committee on
Insurance, Assembly Bill Number 5259A and
substitute it for the identical Senate Bill
Number 3168, Third Reading Calendar 313.
ACTING PRESIDENT MEIER:
Substitutions ordered.
Senator Brown.
SENATOR BROWN: Mr. President, I
move that the following bill, Senate Calendar
3219, be discharged from its respective
committee and be recommitted with instructions
to strike the enacting clause.
ACTING PRESIDENT MEIER: So
ordered.
Senator Skelos.
SENATOR SKELOS: Mr. President, I
move we adjourn until Tuesday, April 3rd, at
11:00 a.m.
ACTING PRESIDENT MEIER: On
4639
motion, the Senate stands adjourned until
Tuesday, April 3rd, at 11:00 a.m.
(Whereupon, at 7:39 p.m., the
Senate adjourned.)