Regular Session - April 3, 2001
4640
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 3, 2001
11:13 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: The Reverend
Peter G. Young is with us once again this
morning, from Blessed Sacrament Church in
Bolton Landing, to give us the invocation.
REVEREND YOUNG: Let us pray.
Dear God, we thank You for this
beautiful spring day with its sunshine, and
with the hope of warmer weather and our Senate
recess.
May we pray for our airmen being
held in China, and that they resolve
peacefully their return.
We pray for the Senators and their
strength, who commit themselves to the demands
of public service, resulting too frequently in
a loss of their family time of togetherness.
With the intensity of their legislative
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duties, the Senators sacrifice for the State's
priorities their personal family time. May
You keep them strong and blessed in their
dedication to both their personal and public
responsibilities. We pray for their strength
now and forever.
Amen.
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, April 2nd, the Senate met pursuant to
adjournment. The Journal of Friday, March
30th, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Transportation Committee in the Majority
Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Transportation
Committee in the Majority Conference Room.
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Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: If we're on
motions and resolutions -
THE PRESIDENT: Yes, we are,
Senator Skelos.
SENATOR SKELOS: -- if we could
adopt the Resolution Calendar in its entirety.
THE PRESIDENT: All those in
favor of adopting the Resolution Calendar in
its entirety please say aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted in its entirety.
SENATOR SKELOS: Madam President,
I believe there's a resolution by Senator
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Morahan, 1175. If we could open that up to
sponsorship.
Anybody who does not wish to
sponsor it should notify the desk.
THE PRESIDENT: Any member not
wishing to response this resolution, please
notify the desk.
SENATOR SKELOS: I believe there
is a substitution at the desk, if we could
make it at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 20,
Senator Trunzo moves to discharge, from the
Committee on Transportation, Assembly Bill
Number 5831 and substitute it for the
identical Senate Bill Number 3527, Third
Reading Calendar 288.
THE PRESIDENT: Senator Skelos,
the substitution is ordered.
SENATOR SKELOS: Thank you, Madam
President.
If we could return to reports of
standing committees, I believe there's a
report of the Judiciary Committee at the desk.
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I ask that it be read.
THE PRESIDENT: Reports of
standing committees.
The Secretary will read.
THE SECRETARY: Senator Lack,
from the Committee on Judiciary, reports the
following nominations.
As a judge of the Family Court for
the County of Broome, Robert J. Madigan, Jr.,
of Binghamton.
THE PRESIDENT: Senator Lack.
SENATOR LACK: Thank you, Madam
President. I rise to move the nomination of
Robert J. Madigan, Jr., of Binghamton, as a
judge of the Family Court for the County of
Broome.
We received Mr. Madigan's
credentials from the Governor. The staff of
the committee has examined his credentials.
He was presented to the committee this
morning, and on a unanimous vote of the
committee has been moved for consideration to
the floor at this time. And it is with great
pleasure that I yield for purposes of a second
to Senator Libous.
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THE PRESIDENT: Senator Libous.
SENATOR LIBOUS: Thank you, Madam
President. And thank you, Senator Lack.
It is indeed an honor and privilege
for me to stand before this body to second the
confirmation of Robert J. Madigan, Jr., to the
Family Court of Broome County.
Madam President, I have known Bob
Madigan for a number of years and have had the
pleasure of knowing his family, his brothers
and sisters, mother and father. And certainly
Bob has possessed from them the unique
qualities that it takes to aspire to lead this
type of court position.
Bobby's background is a background
of sound legal experience. Mr. Madigan spent
22 years as a lawyer. He worked as a
litigator in state and federal courts. He
also served the City of Binghamton as a
commissioner for the Civil Service Commission
and later, Madam President, served as the
chairman of that body, as he possesses great
leadership skills.
He currently is a member of the
Workers' Compensation Board. He has served on
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that board for the last four years. He was
confirmed by this body four years ago. He has
shown the compassion that it takes to work on
a day-to-day basis as you deal with injured
workers and claims that come before the
workers' compensation system. And it is that
sort of compassion, Madam President, that he
will take to the Family Court of Broome
County.
I can tell you that the screening
committee was wise in their decision. The
Governor has sent us a sound nominee. And I
know that, as I said early on, that knowing
him for as long as I have that both his mom
and dad, if they were with us today, would be
extremely proud of his accomplishments. His
father was a friend of my uncle, who was the
mayor of Binghamton and a fishing buddy and
legal advisor. And many of the fine qualities
that Mr. Madigan possessed are in Robert
Madigan, Jr.
Madam President, it is an honor for
me to second this nomination that has gone
through the Judiciary Committee.
THE PRESIDENT: The question is
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on the nomination of Robert J. Madigan, Jr.,
of Binghamton, as a judge of the Family Court
for the County of Broome, for a term ending
December 31, 2001. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The nominee is
hereby confirmed.
We congratulate Judge Madigan and
his wife, Jill, and his son, Grant, who are
with us this morning.
(Applause.)
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: As a judge of the
County Court for the County of Madison, Dennis
K. McDermott, of Oneida.
THE PRESIDENT: Senator Lack.
SENATOR LACK: Thank you, Madam
President.
I rise once again to move the
nomination of Dennis K. McDermott, of Oneida,
as a judge of the County Court of the County
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of Madison. Mr. McDermott's credentials also
have been examined by the staff of the
committee, they have been found to be
eminently satisfactory. He appeared before
the committee this morning, received a
unanimous vote from the floor for
consideration at this time.
And before yielding to Senator
Hoffmann, for my colleagues, this once again
is one of the rare examples we have these days
of the confirmation of -- for those
downstaters, as a person who is known upstate
as a triple-hatter, serves as the county court
judge, as required under the Constitution for
every county in the State of New York outside
of the City of New York to have a County Court
judge that also performs the duties of a
Family Court judge and a Surrogate for that
county, which happens in the small counties.
And an excellent example of a
general practitioner in law who is able, upon
taking the bench, to exercise a
multidisciplined approach to the ability to be
a very fair and good jurist, acting in several
fields at one time.
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And another example of reasons why
the 11 different trial courts in this state
should be combined and put together into two
trial courts, and the Constitution be amended
to allow this to happen in not only the small
counties, where it's a necessity, but in our
large jurisdictions as well, so there can be
more commingling and fungibility of jurists
across multidisciplinary fields.
That having been said, it is with
great pleasure for purposes of a second that I
yield to Senator Hoffmann.
THE PRESIDENT: Senator Hoffmann.
SENATOR HOFFMANN: Thank you,
Madam President. Thank you, Senator Lack.
The esteemed chairman of the
Judiciary Committee has just given us a
wonderful civics lesson, and explaining, in
far better language than I could come up
with -- and I'm not even sure about the word
"fungibility" myself. But its application in
this process is something that we can review
later.
The key point here that we need to
make is that we are really right on target
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with a very, very well qualified individual
who has, by his community and legal
activities, demonstrated that wide range of
experience that Senator Lack pointed out is so
important when somebody is required to wear
multiple hats in the performance of his job as
County Court judge in Madison County.
Dennis K. McDermott, who is here
with us today, is joined by his wife, Barbara,
and his daughter Maria, and he has several
friends with him as well -- Rani Blakeney,
Donald and Sara Dew, good friends, and William
and Kristine Agan.
And in confirming Dennis McDermott
to this position today, it's nice to reflect
on some of the activities that he has
undertaken as a good citizen of beautiful
Madison County that has led him to this great
distinction.
He's a graduate of St. Bonaventure
University, where he was a member of the honor
society Phi alpha Theta, a graduate of Albany
Law School and Union University. He was
admitted to practice in the Northern District.
He's been engaged in general practice in
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Oneida since 1976. He's focused in the areas
of matrimonial and family law, real estate,
estates, municipal law, business law, criminal
law, personal injury claims, and trial and
appellate practice.
He was appointed by the Appellate
Division of the New York State Supreme Court,
Third Department, to its committee on
professional standards, where he served as
vice chairman in 1999 and 2000.
He's the president of the
Federation of Bar Associations of the 6th
Judicial District, which covers Broome,
Chemung, Chenango, Cortland, Delaware,
Madison, Otsego, and Tioga, as well as
Tompkins and Schuyler counties.
He's a member of the Bar
Association of the State, the Madison County
Bar, and served as the Madison County Bar
Association treasurer.
He served as city attorney in
Sherrill, New York, member of the board of
directors of the Madison County Legal Defense
Bureau, 1996 to the present, and he negotiated
the 1996 to 2001 contracts with the Madison
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County Board of Supervisors, so we have left
out labor law. But again, another one of
those many hats that Judge McDermott has
demonstrated he's suited to wear.
He's been appointed on numerous
occasions as a law guardian, a guardian ad
litem, referee, court evaluator, he's been a
panel member on the Surrogate Decision Making
Committee for the New York State Commission on
Quality Care for the Mentally Disabled.
He's also been an adjunct professor
at Onondaga Community College, teaching law
and banking principles, a lecturer on a wide
range of topics.
And in his civic capacity, he has
been a member of the St. Patrick's Church in
Oneida, where he's served as parish trustee, a
member of Oneida Rotary Club, a member of
Rotary Districts Youth Exchange Committee, and
director of International Service for Rotary
as well.
I could go on, because there are
many, many more remarkable civic activities.
It's hard to believe that one person can have
done as many things as Judge McDermott has
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done. And I'm delighted to be able to second
the nomination of Dennis K. McDermott to the
great position of Madison County Court judge.
THE PRESIDENT: Senator Meier.
SENATOR MEIER: Thank you, Madam
President. Just very briefly, as someone who
practices in the neighboring county of Oneida,
I've had a number of occasions to see what a
great lawyer Dennis McDermott is.
In fact, unfortunately for me, the
Appellate Division, Fourth Department, also
agrees with that by a five to nothing vote.
And nonetheless, I second the nomination of
Dennis McDermott, who will be a great judge.
THE PRESIDENT: All in favor of
the confirmation of Dennis K. McDermott, of
Oneida, as a judge of the Court for the County
of Madison, please signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: Dennis K.
McDermott is hereby confirmed.
Congratulations, Judge McDermott,
and best wishes.
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(Applause.)
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: As a judge of the
Family Court for the County of Schenectady,
Eli I. Taub, of Schenectady.
THE PRESIDENT: Senator Lack.
SENATOR LACK: Thank you. Once
again, Madam President, I rise to move the
nomination of Eli Taub, of Schenectady, as a
judge of the Family Court for the County of
Schenectady.
We received the nomination from the
Governor, the staff of the committee examined
the credentials of Mr. Taub, found them
eminently satisfactory. He appeared in person
before the committee this morning, received a
unanimous vote for consideration on the floor.
And at this time it is with great pleasure
that I yield to my esteemed colleague Senator
Farley, from Schenectady.
THE PRESIDENT: Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
It is with enthusiasm and pride
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that I help move the nomination and second the
nomination of Eli Taub, a dear friend of mine
for a quarter of century or more.
Eli Taub is one of the most
renowned attorneys, practicing attorneys in
this entire area, the Capital District area,
not just Schenectady. He has served in every
area of the law, in every court. But more
important, I think he has the judicial
temperament to be a superb Family Court judge.
He has been outstanding in his
volunteerism. He has served for 25 years, I
believe, or longer, maybe, on the Northeast
Parent and Child Group, the Alcohol Substance
Abuse Council, the State Street Arts Council,
the Capital District Planning Commission, the
Schenectady Community College, he was a
paralegal advisor. He's been involved with
the Schenectady Light Opera. He's a past
president of B'nai B'rith. He was voted the
Volunteer of the Year -- he should be the
Volunteer of the Decade.
But Eli Taub has really been a
large part of this community. As I say, he
will make an outstanding Family Court judge.
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He is here today with quite an
entourage, and of course being led by his most
valuable asset, Nancy Bell, his wife and
mother of their daughter, Dr. Jennifer Taub,
who is a clinical psychologist serving a
fellowship in Boston.
Eli Taub will be an asset to the
bench, and one that I'm confident that will
make this house and the State of New York
proud of the appointment. It is with
enthusiasm and pride that I nominate Eli Taub
for Family Court judge.
THE PRESIDENT: Senator Breslin.
SENATOR BRESLIN: Thank you,
Madam President.
I will echo Senator Farley's
remarks about Eli Taub. As a practicing
attorney here in the Capital District, Eli
Taub is one of the most highly respected
members of our bar.
And, more importantly, when you -
each of these three judges that have been
presented by the Governor have the academic
credentials, they're involved in their
community. But speaking on behalf of the
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Democrats on the Judiciary Committee, we were
all impressed with their ability to
communicate a caring, a wanting to be on the
bench, particularly in Family Court, because
of the need today in our society to treat many
dysfunctional situations.
And each of these gentlemen -
Judge Madigan, Judge McDermott, and Eli
Taub -- presented to us that ability, that
ability to reach out and touch families and
touch children who are in need. And in years
past, that wasn't always the situation in our
Family Courts.
And I commend the Governor, and I
commend each of these individuals for wanting
to go to Family Court, and in some situations
to sacrifice a great deal of money that they
might have been making. And I look forward to
each of them performing in a very responsible
and caring way in their roles as judges.
Thank you, Madam President.
THE PRESIDENT: The question is
on the confirmation of Eli Taub, of
Schenectady, as a judge of the Family Court
for the County of Schenectady. All in favor
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signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The nominee is
hereby confirmed.
Congratulations and best wishes.
Judge Taub is here with his wife,
Nancy Bell, and her parents, Rita and Lou
Bell, as well as other family members and
friends. Congratulations.
(Applause.)
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up the noncontroversial
calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
5, by Senator Maltese, Senate Print 95, an act
to amend the Penal Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside, Senator Paterson.
THE SECRETARY: Calendar Number
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105, by Senator Balboni, Senate Print 862, an
act to amend the Civil Practice Law and Rules.
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.
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,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
260, by Senator Farley, Senate Print 2964, an
act to amend the Banking Law and others.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
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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
299, by Senator Marcellino, Senate Print 2384,
an act to amend the General Municipal Law.
SENATOR PATERSON: Lay it aside,
please.
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 MONTGOMERY: 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,
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please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
329, by Senator Goodman, Senate Print 3948, an
act to amend the Tax Law.
SENATOR PATERSON: Lay it aside,
please.
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 Calendar Number 329, by
Senator Goodman, I believe Senator Goodman is
on his way in.
THE PRESIDENT: The Secretary
will read Calendar Number 329.
THE SECRETARY: Calendar Number
329, by Senator Goodman, Senate Print 3948, an
act to amend the Tax Law, in relation to
creating.
SENATOR DUANE: Explanation,
please.
THE PRESIDENT: Senator Goodman,
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Senator Duane has requested an explanation.
SENATOR GOODMAN: Madam
President, this bill seeks to create an office
of taxpayer advocate for the purpose of
providing a means with which taxpayers can
have an opportunity to fight the bureaucracy
in an orderly fashion.
Unfortunately, on occasion the Tax
Department is perceived is a monster which
presses down its bureaucratic impositions on
people without adequate justification. This
bill attempts to create a device whereby that
type of procedure can be rebutted and handled
in an orderly fashion.
Specifically, the taxpayer advocate
is an individual who is appointed by the
Department of Taxation and Finance and reports
to the Governor. The purpose of the taxpayer
advocate is to assist taxpayers in resolving
problems with the Tax Department, to identify
areas in which taxpayers have problems dealing
with the department, to propose administrative
changes to departmental practices and
procedures, to recommend legislative action,
and to prepare an annual report by December
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31st of every year which identifies
initiatives taken, which summarizes the most
serious taxpayer problems, describes actions
taken and not taken, recommends administrative
and legislative action to mitigate taxpayer
problems, and includes any other pertinent
information.
It seems to me that this is a very
useful potential device which will assure
taxpayers the opportunity to be heard, not
necessarily with regard to specific complaints
that they're being overcharged by the Tax
Department, but rather, when they object to
policies and procedures of the department,
this provides them with a vital means of
defending themselves and of seeking redress of
their grievances.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. Would the sponsor yield, please?
THE PRESIDENT: Senator Goodman,
will you yield?
SENATOR GOODMAN: Yes, I will,
Madam President.
THE PRESIDENT: You may proceed,
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Senator Duane.
SENATOR DUANE: An identical bill
was introduced by the sponsor in January. It
was Senate Number 698. But the enactment
clause was stricken, and a new bill was just
introduced as S3948. Why is that?
SENATOR GOODMAN: Senator, the
bill that was originally introduced was a bill
that I initiated. This is a Governor's
program bill. And that's why we defanged the
first bill and substituted this one.
SENATOR DUANE: And through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Senator, will you
yield?
SENATOR GOODMAN: Yes, I will,
Senator, to a reasonable number of questions.
THE PRESIDENT: You may proceed
with a reasonable number of questions, Senator
Duane.
SENATOR DUANE: So there was
no -- so I'm to understand that -- I didn't
see any change, so there is no change, the
bills are identical?
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SENATOR GOODMAN: No, there have
been changes, Senator, of different varieties.
If you're interested, I can detail those for
you.
SENATOR DUANE: Through you,
Madam President, would the sponsor continue to
yield for a clarification?
SENATOR GOODMAN: Yes, I will.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: I didn't -
perhaps I didn't -- there is a difference or
there is no difference?
SENATOR GOODMAN: Madam
President, could we close the chamber door so
the audibility is improved?
THE PRESIDENT: Would the
sergeant-at-arms please close the chamber door
to reduce the noise level.
SENATOR GOODMAN: Would you
repeat your question, please, Senator?
SENATOR DUANE: At first I
thought that there was no change, but then I
thought I heard the sponsor say that there was
a change, but I couldn't hear that well. So
4667
I'm just trying to clarify that.
SENATOR GOODMAN: There were no
changes in the bill put in earlier this year,
Senator, I misspoke. The changes related to a
bill that was previously introduced last year.
SENATOR DUANE: Thank you for the
clarification.
I'm wondering if the sponsor is
concerned that we are -- if this bill were to
pass, that we're giving the Governor a new
appointment without the advice and consent of
the Senate and whether institutionally that's
a good idea.
SENATOR GOODMAN: You were
wondering or do you wish to ask me a question,
Senator?
SENATOR DUANE: Through you,
Madam President, it's my polite way of asking
a question.
But is the Senator concerned about
giving the -- as I am, about giving the
Governor an appointment without the advice and
consent of the Senate and is he concerned, as
I am, institutionally about that impact on the
Senate?
4668
SENATOR GOODMAN: Senator, in
this specific case the Governor is on our side
of this. We seek to find a means of
bureaucratic redress, which this would
provide.
And since our objectives are
identical, I see no reason for us to have to
go through the process of advice and consent
on this particular appointment.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: I note that the
Senator said "our." However, I notice that
there are no Minority sponsors of the
legislation. Were Minority Senators asked to
go on the legislation? And if not, why not?
SENATOR GOODMAN: Senator, I
begin to detect a pattern. I think every time
you rise to ask a question, you raise the same
question. And I'll give you the same answer,
to the best of my ability. This is a Majority
initiative in which no Minority Senator was
4669
asked to participate.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: You may proceed
if you have a new question, Senator Duane.
SENATOR DUANE: Yes, more
questions, Madam President.
Was that your question, Madam
President?
THE PRESIDENT: You may proceed
if you have a new question, Senator Duane.
I'll repeat my clarification for you.
SENATOR DUANE: Thank you.
Speaking of joint sponsorships -
well, I'll go to that later.
Is the sponsor concerned that this
proposal will create another layer of
bureaucracy within the Tax Department?
SENATOR GOODMAN: No, I'm not,
Senator.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Senator Goodman,
4670
do you continue to yield?
SENATOR GOODMAN: You've had four
questions, Senator. Suppose I plan to yield
to four more and we'll call that a limit. May
we do that by agreement?
THE PRESIDENT: You may proceed
with a maximum of four questions, Senator
Duane.
SENATOR SKELOS: Madam President.
SENATOR DUANE: Through you,
Madam -
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: If I could just
interrupt for a moment, Senator Duane.
There will be an immediate meeting
of the Tourism Committee in the Majority
Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Tourism Committee in
the Majority Conference Room.
Senator Duane, you may proceed.
SENATOR DUANE: Thank you.
Is it not the Tax Commissioner's
job to do pretty much what the advocate's job
is supposed to be? For instance, assisting
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taxpayers in resolving problems with the
department, identifying areas in which
taxpayers have problems dealing with the
department, proposing changes in the
administration and practices and procedures of
the department, recommending legislation?
Aren't there already employees and
in fact a commissioner -- is the commissioner
not responsible for exactly those things? And
if he's not doing a good job or she's not
doing a good job, can't the Governor replace
that commissioner?
SENATOR GOODMAN: Not in my
opinion, Senator.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Senator Duane,
you have authorization now for three more
questions, maximum.
SENATOR DUANE: Thank you, Madam
President. I'm pleased that since we're on a
tax, there's so much counting going on here.
THE PRESIDENT: Senator, if you
have a question, you may ask it. That's what
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you're authorized to do, not the gratuitous
comments.
SENATOR DUANE: Exactly, Madam
President.
THE PRESIDENT: Thank you. I'm
glad we agree. Please proceed with a
question.
SENATOR DUANE: Is there an
Assembly sponsor for this bill, or is this a
one-house bill at this point?
SENATOR GOODMAN: There is not an
Assembly sponsor at this time, Senator.
Assemblyman Espaillat sponsored this
legislation last year. We presume he may wish
to do it this year. We don't know that yet.
SENATOR DUANE: Madam President,
I couldn't hear the second half of the answer.
SENATOR GOODMAN: Assemblyman
Espaillat was the sponsor last years. I don't
know whether he'll wish to sponsor it again.
He'll be given that opportunity.
SENATOR DUANE: And through you,
Madam President, if the sponsor would yield.
SENATOR GOODMAN: Senator, I
already indicated I would yield.
4673
THE PRESIDENT: Senator, you're
delaying this process. I've now said twice,
as clarification, that you have authorization
now for a maximum of two more questions.
SENATOR DUANE: Thank you, Madam
President.
THE PRESIDENT: Is this a
countdown of some sort, Senator?
Senator Paterson.
SENATOR PATERSON: Madam
President, point of order.
Senator Goodman has the right to
answer as many questions as he would like.
However, Senator Duane also has the right to
state his opinion about whether or not he
should be granted that number of questions. I
don't know that that's a point to chastise
Senator Duane, since we're acting in civility.
The Senator then asked Senator
Goodman to yield; there was no answer. And
then, if I'm not correct, you accused Senator
Duane of delaying the proceedings. He was
waiting for an answer.
THE PRESIDENT: And we are still
delaying the proceedings. Senator Goodman
4674
authorized Senator Duane to ask a maximum of
four questions well over four minutes ago.
And I'd like to proceed with that now, without
further delay.
SENATOR PATERSON: Well, Madam
President, point of order. It's fine with me
whichever way that you would like to proceed.
But I'm just saying that Senator Duane has a
right to his opinion. There is no rule here
about the questions and the answers.
Senator Goodman set what he thought
was an approximate number of questions that he
could answer. Senator Duane does not have to
agree with that. And his statement in
opposition to it is something he's entitled
to. There's nothing under the rules that
prohibits him from doing that. I don't see
any reason, if we're acting in civility, to
chastise him at that point.
THE PRESIDENT: First of all,
Senator Paterson, your point is not well
taken.
Second of all, if Senator Duane
chooses to ask fewer than four questions, we
would certainly welcome that decision.
4675
Let us proceed. Senator Duane, do
you have another question, sir?
SENATOR DUANE: Actually, Madam
President, I'm going to speak on the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR HEVESI: Madam President.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Would Senator
Duane yield for a question?
THE PRESIDENT: Senator Duane,
will you yield?
SENATOR DUANE: With pleasure,
Madam President.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: Thank you.
Through you, Madam President. I'm
curious in terms of this legislation as to why
it's necessary that this legislation be
enacted, as opposed to the Tax Department on
its own, seemingly in accordance with its own
purpose, doing everything that this
legislation would enable it to do.
My question to you, Senator Duane,
4676
is why do you believe that the Tax Department
needs the legislative requisite that this
legislation creates in order to advocate on
behalf of taxpayers?
SENATOR DUANE: Thank you,
Senator. That's an excellent, excellent
question. In fact, the sponsor noted before
that he believes that the Governor is on our
side, although it must mean that side of the
aisle, since there are no Minority sponsors of
this legislation. Nor do I remember the bill
being circulated to us -- to me, anyway, to
sign onto.
But it seems to me that the duties
of the Tax Commissioner include to assist
taxpayers of the State of New York in
resolving problems with the Tax and Finance
Department, to identify areas in which
taxpayers have problems in dealing with the
department. I believe that the department and
the commissioner should work together with the
Legislature to propose changes that may be
needed legislatively, and also within the
agency to propose changes in the
administrative practices and procedures of the
4677
department to mitigate problems.
And I also believe that the
Governor, since the Governor appoints the
Commissioner of Taxation and Finance, I don't
understand why the Governor needs another
appointment at high level in that department
to do exactly what his original appointment
should be doing.
So I'm as perplexed as you are,
Senator, as to why this is necessary. And
apparently at this point, though we seem to be
coming up to tax season -- and I wonder
whether or not this bill has anything to do
with April 15th looming. But even at this
late date, there is no Assembly sponsor for
this legislation, so it won't even pass, as I
can see it, in time for April 15th. Although
I could see it going out in newsletters saying
that it was passed in this body by April 15th.
But again, why would the Governor
support creating another layer of bureaucracy
within a department that he really, you know,
controls the highest echelons of? So I am,
frankly, as perplexed as you are, Senator.
I might also note that this bill
4678
has taken on an air of urgency. In fact,
interestingly, we were called to a special
meeting of the committee, even though this
bill had been introduced originally by the
sponsor in January, did not get a hearing in
the committee which the sponsor of the bill
actually chairs until the Governor made it one
of his bills, and then it came to the
committee. So that's fascinating.
Now, interestingly, the week
before, in that very same committee, the
Sexual Orientation Nondiscrimination Act was
passed by the committee, and yet that hasn't
come to the floor. So here we have a bill
that was introduced a week later that's here
on the floor today, and yet the Sexual
Orientation Nondiscrimination Act, which has
been around the Legislature for 30 years, has
not made it onto the floor here.
So here we have, weeks ago, SONDA
coming out of committee and not coming to the
floor, and just last week this bill, in an
emergency session of the committee, at the
urging of the Governor, comes to the committee
and gets passed and all of a sudden it's here
4679
on the floor. It's like magic the way this
bill came to the floor. But SONDA -- did I
mention 30 years it's been around this
Legislature? -- even though it's been passed
out of committee here, has never made it the
floor.
It's all very perplexing, Senator.
Thank you for the question.
SENATOR HEVESI: Madam President,
would Senator Duane continue to yield?
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR DUANE: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Thank you.
Senator, I very much appreciate
your informative answer because I was unaware
that this legislation had been fast-tracked,
as it were. And that in and of itself raises
some serious concerns with me, because I'd
like to know -- and if you can enlighten us,
that would be wonderful. Or perhaps I'll put
this question to the sponsor if you're not
familiar with where I'm going with this.
4680
In light of the fact that the
Governor believes and Senator Goodman believes
that this legislation is absolutely urgent, do
you know the extent to which, in the time
since we passed this bill last year till now,
the Tax Department has done anything of the
sort of the remedies that are included in this
legislation?
In other words, it's so essential
that we fast-track this legislation now, I
believe that the Tax Department could
undertake almost all of the actions that this
legislation calls for. Is it your
understanding that the Tax Department has done
nothing in the realm of taxpayer advocacy in
the last year?
SENATOR DUANE: That's an
excellent question, Senator.
I would have to regrettably answer
yes, that they have done nothing. Because if
they had done something, perhaps this bill
wouldn't be coming before us.
Now, if I were more cynical, which
I am not, but if I were more cynical, I would
say that this bill isn't really much more than
4681
a feel-good bill to make taxpayers feel as if
certain legislators who may be sponsors of the
legislation on the other side of the aisle are
trying to help taxpayers while others are not.
But as I say, I am not a cynical
person, and so that's not what I think. And I
hope, hope that no one else thinks that
either.
However, I do think that this
points to the inaction -- and it sounds as if
the Governor may not be able to have much
influence over what the Tax Commissioner is
doing if the Governor is unable to get the Tax
Commissioner to assist taxpayers in resolving
problems and to identify areas in which
taxpayers have problems in dealing with the
department. Or perhaps the Tax Commissioner
and his department are unable to propose
administrative practices and procedures that
might mitigate problems which have come up.
And so -
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Yes, if I could
interrupt, there's a meeting of the Local
Governments Committee in the Majority
4682
Conference Room. Immediate.
THE PRESIDENT: There's a meeting
of the Local Governments Committee in the
Majority Conference Room.
SENATOR DUANE: So sadly and
regrettably, because I am not a cynical
person, I must come to the conclusion that the
Governor has lost control of the Tax
Department and that's why we need to appoint
this person.
Although I'm not sure I'm going to
vote for this, because hope springs eternal
that we may be able to rein in that agency and
really make it be on the side of the taxpayers
as well as to collect much-needed revenue to
provide programs for the state.
SENATOR HEVESI: Thank you, Madam
President. Would Senator Duane yield to
another question?
THE PRESIDENT: Senator, would
you yield to one or more questions, sir?
SENATOR DUANE: As many as he
wants, Madam President.
THE PRESIDENT: You may proceed
with a reasonable number of questions, Senator
4683
Hevesi.
SENATOR DUANE: Or unreasonable.
I don't care.
THE PRESIDENT: Well, I'll make
that decision.
SENATOR HEVESI: Madam President,
just a procedural clarification.
THE PRESIDENT: Yes, Senator
Hevesi.
SENATOR HEVESI: Since Senator
Duane has indicated that he will yield to an
unlimited number of questions, am I then
required to ask through the chair each time if
Senator Duane will yield to a question?
THE PRESIDENT: No. And thank
you for asking me that question.
You may proceed -- Senator
Paterson.
SENATOR PATERSON: Madam
President, point of order.
That has been the custom of this
chamber which you have enforced, Madam
President. The questions are supposed to go
through the chair. This is the point that I
tried to explain to you a few moments ago.
4684
When Senator Duane asked Senator
Goodman to yield, even though there was a
prerogative on Senator Goodman's part to cut
off the questioning at four questions or at
any time, even if he changed his mind and
wanted to cut off the number at three
questions, he was entitled to do that under
the rules. But the questions still have to go
through the chair.
That is my understanding of the
rule, Madam President.
THE PRESIDENT: Senator Paterson,
we've had a multitude of instances here in
recent weeks where Senators have authorized
and yielded for a series of questions. I have
accepted that yielding, and the Senate has
proceeded smoothly. I'd like to continue that
right now.
SENATOR PATERSON: Madam
President, point of order.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Are you
waiving your duty as the chair to have the
questions go through the chair once there is a
series of questions that the two Senators have
4685
agreed to?
THE PRESIDENT: Certainly not.
And I just clarified that with Senator Duane,
saying I'll make that determination, sir.
SENATOR PATERSON: Well, then,
Madam President -
THE PRESIDENT: Let us proceed
now.
SENATOR PATERSON: Madam
President, point of order.
THE PRESIDENT: Yes, Senator.
SENATOR PATERSON: This is a
point of order. We're trying to maintain
order in this chamber, and we're trying to
maintain civility at the same time.
THE PRESIDENT: Absolutely,
Senator.
SENATOR PATERSON: Could you
please tell us what is the rule so that the
Senators know when you would like the
questions to go through the chair and when you
would like the questions to continue without
going through the chair if there is a series
of questions.
THE PRESIDENT: Senator Paterson,
4686
your point is not well taken.
Senator Hevesi, please proceed.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Do you have
another -
SENATOR PATERSON: What does your
"point is not well taken" mean?
THE PRESIDENT: Do you have
another point of order, Senator Paterson, that
you'd like to raise with me?
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Yes or no,
Senator?
SENATOR PATERSON: Madam
President, my point of inquiry is you haven't
ruled on the -
THE PRESIDENT: Is this a point
of order that you're raising, sir?
SENATOR PATERSON: Yes, it is.
You have not -
THE PRESIDENT: You may proceed,
then.
SENATOR PATERSON: You have not
4687
ruled on my last point of order, which is that
I'm trying to get clarification of which of
two ways which you've been conducting this
chamber you prefer. Is it the value of having
all the questions go through the chair, or
that when there's a series of questions that
the Senators will then continue with the
questioning and not go through the chair?
We've done both here. I'm simply
asking for you to make this clear to all of us
who are trying to follow the rules here -
that's what we are trying to do -- whether or
not you would prefer, when there's a series of
questions, that after each question the
question go through the chair, which a minute
ago you said that was the way you wanted to do
it, or whether the question should just go
directly to the other Senator, which is what
you said five minutes ago to Senator Duane.
Which of the two do you prefer?
THE PRESIDENT: I did not make
that latter statement to Senator Duane,
Senator Paterson. All questions should go
through me as President of the Senate.
Secondly, when the sponsor yields
4688
to three questions, four questions, I will
make a determination as to whether the Senator
asking the question may proceed with three
questions, four questions. I have been making
those determinations in each case. I will
continue to do that.
Your point -- your original point I
already ruled on. It was not well taken. And
I have now clarified your second point of
order.
I'd like to proceed now, Senator
Paterson.
SENATOR PATERSON: Madam
President, point of order. And I'm going to
tell you, if you would like, we can get the
stenographer to read the record. Senator
Duane -
THE PRESIDENT: That won't be
necessary.
SENATOR PATERSON: -- asked
Senator Goodman to yield for a question.
There was no response, and you then ruled
Senator Duane out of order for delaying the
proceedings. He did not. He asked the
question through the chair, which is exactly
4689
what you just said the members should do.
That's my point of order.
THE PRESIDENT: Senator Paterson,
out of respect for you, I will give one more
clarification.
Senator Goodman very graciously
yielded to a maximum of four questions. I
authorized Senator Duane to proceed with a
maximum of four questions. I would allow a
Senator to proceed then with four questions,
directed through me as President of the
Senate, in that type of a situation.
I think that's an adequate
clarification. I'm now going to acknowledge
Senator Goodman, who again has been very
graciously standing, waiting to have the
floor.
Senator Goodman, you may proceed.
SENATOR GOODMAN: Madam
President, merely to clarify the point of
order which I believe is under discussion.
May I just say that first of all, the matter
relating to Senator Duane involved not four
questions. After he asked the first four
questions, I suggested that I be willing to
4690
yield for four more questions, with the clear
understanding that that yield would be through
you for each of those four.
Under the circumstances, it seems
to me there's total consistency in the ruling
which you made that if a Senator does wish to
yield to a series of questions rather than
subject you and the whole chamber to the delay
inherent in asking time whether it should be
done through you, it's done seriatim, through
you by mutual consent.
Therefore, if I may say so, I think
this matter can now resume its normal course
of discussion. In 32 years, I have never
rationed questions. But in this case
involving Senator Duane, it appears that it
becomes necessary simply to permit the session
to end sometime between now and next
Christmas. Thank you.
(Laughter.)
THE PRESIDENT: I think we can
all concur in your latter statement. That
would be my hope and belief, anyway.
Senator Hevesi.
SENATOR HEVESI: Madam President,
4691
one final clarification, since it was my
inquiry that sparked this exchange.
If a Senator has given his
agreement to answer or to yield to several
different questions and you have subsequently
given your permission for that Senator to be
questioned without going through the chair, if
I choose to go through the chair, am I
entitled to do that for each question that I
choose to ask?
THE PRESIDENT: Absolutely,
Senator, as you did just now, for a
clarification. And all statements should be
directed through me, as President of the
Senate.
You may proceed, Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President, will Senator Duane yield to another
question?
THE PRESIDENT: Senator Duane,
would you yield to another question?
SENATOR DUANE: With great
graciousness, yes.
THE PRESIDENT: You may proceed,
Senator Hevesi.
4692
SENATOR HEVESI: Thank you.
Through you, Madam President.
Where we last left off, we were discussing
gubernatorial appointment of the tax advocate
and the ramifications and implications of that
appointment -
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Excuse the
interruption again.
There will be an immediate meeting
of the Codes Committee in Room 124 of the
Capitol.
THE PRESIDENT: There will be an
immediate meeting of the Codes Committee in
Room 124 of the Capitol.
Senator Hevesi, you may proceed
with your question.
SENATOR HEVESI: Thank you, Madam
President. My question is the following.
It's my understanding that the tax
advocate, as proposed under Senator Goodman's
legislation, would be a position within the
Tax Department. So I have a question in terms
of jurisdiction and authority and whom is
subordinate to whom.
4693
Is it your understanding, Senator
Duane, that the tax advocate would report to
the Tax Commissioner?
SENATOR DUANE: Through you,
Madam President, yes, that is my
understanding, that the tax advocate would be
reporting to the very same commissioner, who
because apparently the Governor and the
sponsor of the bill believe he's not doing or
she's not doing their job appropriately -
report to that person that they've been
appointed to show that they're not doing a
good job. It's bizarre.
SENATOR HEVESI: Thank you.
Madam President, would Senator
Duane continue to yield?
SENATOR DUANE: Yes.
THE PRESIDENT: Senator Duane, do
you yield?
You may proceed, Senator Hevesi.
SENATOR HEVESI: Thank you.
Senator Duane, in addition to this
being a bizarre scenario in terms of why this
is necessary, I have an additional concern.
And the concern is notwithstanding the fact
4694
that we -
SENATOR DUANE: Madam President,
I'm sorry, I can't hear.
THE PRESIDENT: Senator Hevesi,
could you clarify and speak up, please.
SENATOR HEVESI: Thank you.
Notwithstanding the fact that we
may have questions as to whether or not it is
necessary to have a tax advocate, I think most
of us would agree that if we do have a tax
advocate, that that individual should be able
to perform his or her job effectively. So my
question is, is a tax advocate -- that is, an
individual who operates within the Tax
Department and, it seems to me, under the
authority of the Tax Commissioner -- is that
tax advocate independent?
In other words, can that individual
truly perform his or her duties as an advocate
for the public under a Tax Commissioner who it
seems to me by definition was unable to
perform or unwilling to perform those same
duties, thus the need for this bill?
SENATOR DUANE: Through you,
Madam President, the answer to that is I don't
4695
know. And it's really sort of a conundrum.
In fact, one would hope that a person
appointed to such a position would have the
integrity to be able to be forthright and
honest to the commissioner who happens to be
their boss. But it is a difficult situation.
But we find it in other parts of
government as well. For instance, someone who
is overlooking contracts, are they able to
stand up to a commissioner who appoints them
to that job even if they have a disagreement
about that contract? Or there are
quasi-judicial appointments which are made by
governors and mayors and managers across the
state, and the same question could be asked of
any of them: Are they willing and able to be
truthful and forthright and honest to the
people who actually control whether or not
they keep that job?
So it's a very, very difficult and
interesting question, and one which frankly
people in government have wrestled with for a
very long time.
Now in this case, I think that
citizens get -- what's the word I'm grasping
4696
for? I would say agitated, but that's not
quite right. But when it comes to taxes,
there's a very high level of interest,
anxiety, anger, support, understanding. I
mean, paying taxes really is a big test of
citizenship. Because you have to trust when
you're paying taxes that it's fair and that
the money is going to appropriate programs and
things that are good for the state and
everyone who lives in the state.
That said, one would hope that a
person who takes the job as Tax and Finance
Commissioner takes that job with the
sensitivity of how important it is to the
people of the State of New York and the
businesses of the State of New York. And so
to a certain extent, who that person is needs
to have the highest possible scrutiny.
What I'm concerned about is -
okay, so we put that aside. Now, here we're
appointing someone whose job it really is to
critique the department being run by that
commissioner. And yet they have to report to
that commissioner. It's a difficult,
difficult situation.
4697
And, you know, I know it was a long
answer to a short question, but I don't think
there could be a short answer to that
question, because it's a very complicated
system that we've set up. And although I
think while it's not a great system, it's
certainly better than any other system that
anyone has ever thought of. But it does call
into question things like independence and
integrity.
And the other thing is that the
Governor would make this appointment of this
person, but we would never really have a
chance to look at that person's qualifications
or frankly where their heart is. They would
never come before any committee in this body
or the body as a whole for their appointment.
So that's also of concern as well, because I
think that we need to maintain, as much as we
possibly can, advice and consent over
high-level appointments, particularly when it
impacts everyone in the State of New York;
that is, the taxpayers and the businesspeople
of the State of New York.
SENATOR HEVESI: Thank you.
4698
Mr. President, would Senator Duane
continue to yield?
ACTING PRESIDENT KUHL: Senator
Duane, do you continue to yield to a question
from Senator Hevesi?
SENATOR DUANE: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR HEVESI: Thank you.
Through you, Mr. President.
Following up on this theme, I'm very troubled
by this. And I didn't have an opportunity to
have a part of the process that led to the
drafting of this legislation, so I'm concerned
about additional ways in which this
legislation could have been drafted.
In fact, Mr. President, if I may
request -- put my request for Senator Duane on
hold and ask the sponsor to yield for a
question.
ACTING PRESIDENT KUHL: Well,
Senator Hevesi, that would be rather abnormal,
because Senator Duane has the floor, as I
understand it. And I may be wrong there, but
Senator Duane had the floor in which you're
4699
entitled to ask him the question, he has the
floor. You would then be asking the chair
here to give you the floor, and that wouldn't
be normal procedure.
So after Senator Duane is finished,
if you'd like the floor, then perhaps the
sponsor would yield to a question.
SENATOR HEVESI: Okay. I will
yield the floor back to Senator Duane.
ACTING PRESIDENT KUHL: Okay.
Senator Duane, why do you rise?
SENATOR DUANE: Thank you. On
the bill, Mr. President.
ACTING PRESIDENT KUHL: Senator
Duane, on the bill.
SENATOR DUANE: It's interesting,
the terrific questions that I was just given
really have opened up for me a whole new area
which I don't think has been explored here.
And I would like to use my time on the bill to
speak about some of those things.
It seems to me that if a taxpayer
wanted to use this hardship provision, as I
read the bill, first they would have to
exhaust all of the administrative
4700
possibilities within the department before
they could go to the advocate. So there are
many, many things in place in the department
already which the taxpayer would have to go
before, advocate before, before they went to
this taxpayer advocate.
Now, chances are -- and I would
recommend that if a person were to go before
the State Department of Taxation and Finance,
that they bring in professional help with
them. Because it's very hard for an average
citizen who may not have as great a knowledge
of the state's tax codes as the people working
in the department, and so they would be at a
disadvantage as they went through all of the
different processes in the Tax Department.
So chances are they would have to
hire someone to help them out. Now, that
would be a very expensive proposition. So the
taxpayer would have to decide whether or not
it was worth the investment in hiring someone
to help them before they made the decision on
how far they wanted to go in the appeal.
Because maybe they would win the appeal, but
would have paid out everything that they were
4701
appealing in hiring someone to help them.
Well, that's not a very good situation for the
taxpayer.
And so what's of concern is here we
have yet another layer that's been added on,
the advocate. And so then you would have to
hire someone perhaps to go before the
advocate. So here's another expense. And
even if he won before the advocate, as I
understand it, the commissioner can overturn
what the advocate says. So your investment in
hiring someone, your investment in time might
all be for naught. And so that's of great
concern to me.
Here we're making it potentially
possible for a taxpayer who's an amateur in
tax matters to spend an awful lot of money,
maybe win before the advocate but not really
get any money back because they've spent all
of it, or win before the advocate, pay their
expert, and then have the decision overturned
by the governor. So almost like double
indemnity. So that's a big concern of mine
about this.
Now, as I understand it, there
4702
already is a conciliation bureau within the
Tax and Finance Department. I personally have
not had to go before them, but I'm sure that
people have gone before them. And I
understand what the difference is between the
advocate and the conciliation bureau. But it
seems to me for some of the things you would
go to the conciliation bureau for, you would
go to the tax bureau for, and other things you
would go to other people within the tax
department. So it seems to be sort of, you
know, a duplication of duties all over the
place.
I'm wondering, you know, for
instance, what happens if you go to the
taxpayer advocate and the taxpayer advocate
says, You know what? I don't think this is a
very good case. I don't think I should bother
hearing this. Well, that's not really
advocating, is it? And yet the advocate is
allowed to say, I don't think your case has
merits.
Now, there is no -- or I'm not sure
about this, and maybe someone could ask this
of the sponsor, because I couldn't fit it in
4703
in my four questions. But I'm wondering about
the time limit. And is it possible that while
you're going through all these processes that
the statute of limitations might run out?
Interesting. And of course that would defeat
the whole purpose of having the taxpayer
advocate there as well.
Now because, with the exception of
what the advocate may say -- the only
exception is that the commissioner can
overturn that -- I think that raises
constitutional issues. And I think that those
constitutional issues about due process need
to be explored before we rush into that
legislation.
So, you see, there are a lot of
things here that really need to be explored.
Which is one of the reasons why I said, why
are we rushing with this bill? What is the
rush? Why don't we have a hearing? Why don't
we bring in taxpayers who have actually
suffered at the hands of the Tax and Finance
Department. Let's bring the Commissioner in.
Let's find out what the problems are. Maybe
we could even get a report. Maybe a report,
4704
that might be a good idea. We could get a
report on what's happening.
And I'm also wondering, you know,
that we're putting -- potentially we're
putting this advocate in a difficult position.
Here they are, they're a member of a
department that they're critiquing. I mean, I
would think that that would be almost a
hostile work environment.
Many of us have experienced
hostility in our public lives. I mean, it
happens to the best of us. But could you
imagine every day going to work in a
department and your job is to critique that
department and point out what people are doing
wrong? That's an impossible situation. I
personally would not want to do that. Very,
very difficult.
If they were totally independent -
you know, we have independent prosecutors.
There are certain things put in for these
people to sort of shield them from that. But
could you imagine sitting at your little desk
in the middle of a big department where
everyone is concerned that you're going to go
4705
after them? That would be completely
untenable. I don't know how anyone could live
with that.
So again, we need to look at why
has the Governor lost control of this agency
and why does the Governor then need to put in
a tax advocate. Why is it that no one in the
Assembly this year thinks that this is
important enough to get it done by April 15th?
Or maybe they agree with us and believe that
this issue should be explored more fully and
more of these questions should be put on the
table.
I mean, it would be very difficult
for anyone to vote against this, because it
seems to be a pro-taxpayer piece of
legislation. But we in government, we're not
just supposed to vote to pander to our
constituents. We are here to do things that I
would hope are going to be helpful towards all
of the people of the State of New York and, if
you will, the right thing to do. And this
seems like the right thing to do for
taxpayers, but is it really? Is it really?
Or does it really say that we're failing in
4706
many ways?
And we have a Constitution which
protects all of the people of the State of
New York on the state level, and of course on
the federal level we have a Constitution which
protects all of the citizens of the United
States. Well, shouldn't we make sure before
we all vote on this legislation that it will
pass both state and federal muster? I mean,
isn't that part of our responsibility? I
don't think that we should shirk our
responsibilities just in order to pump a bill
out from one house by April 15th.
And I would be remiss if I didn't
say -- I mean, I'd like, you know, maybe if my
name were on the bill -- no, you know, that's
not true. Even if my name were on this
bill -- although it was not offered to me to
put my name on this bill -- but even if my
name were on this bill, I would like to think
that I would be raising these very same
issues.
But what I would have liked is for
these issues to have come up in committee. I
would have liked to have asked the taxpayers
4707
what they thought about this. I would have
liked to have talked to the Tax Commissioner.
I would like to have heard from the Governor's
representatives why the Governor thought this
bill was so very important. I'm not saying
it's not important. It's just a lot of
questions about why this bill has taken on
such an air of urgency.
I mean, to me, if you look at a
bill like SONDA, 30 years the Sexual
Orientation Non-Discrimination Act has been
before this Legislature. 30 years. In fact,
maybe for longer than you're alive, some of my
colleagues, it's been here. But there's no
urgency about that. It came out of committee
before this legislation, yet this legislation
has hit the floor beforehand. You know, some
things are beyond me here.
Now, the other thing is if there
were Minority sponsors of this bill, I would
like to think that we would be able to bring
some expertise to this legislation. I read
time and time again about how bipartisanship
is really the way to go. President Bush
prides himself on bipartisanship. I think of
4708
myself as a bipartisan kind of guy. I think
that maybe that's how we need to go in this
house.
You know, a good example of
bipartisanship -- which this bill is not -
but look at McCain-Feingold. Minority,
majority. Although now they're all equal in
the Senate, they're both majority parties,
which is really, if you think about it, just
the perfect example of bipartisanship. But
tragically -- or regrettably, maybe not
tragically, maybe regrettably, this bill is
not bipartisan. And I think that the more
voices you bring to the table, the more voices
you bring to the bill -- you know what,
Majority party people, Minority party people,
we all represent taxpayers. All of us
together represent taxpayers. And I think all
of us need to have our voices heard on this
bill.
Same is true of SONDA, which has
been around for 30 years. Majority party
members could avoid discrimination because of
SONDA, Minority party members also could
profit by passing SONDA. It would make for a
4709
much more equal state.
The same is true with this. I
think in a bipartisan spirit we would be able
to make for a much better bill, and a bill
which would pass constitutional muster both on
the state and the federal level, in addition
to really finding out what the Governor's
motives were in advancing this bill so quickly
before our house.
ACTING PRESIDENT KUHL: Senator
Lachman, why do you rise?
SENATOR LACHMAN: Mr. President,
through you, I would like to ask the Senator a
question.
ACTING PRESIDENT KUHL: Senator
Lachman, I did have Senator Hevesi wishing to
speak next. I have a list running here.
So, Senator Hevesi, do you desire
still -
SENATOR HEVESI: Thank you, Mr.
President. Would the sponsor yield?
ACTING PRESIDENT KUHL: Senator
Goodman, do you yield to a question from
Senator Hevesi?
SENATOR GOODMAN: Yes, I will,
4710
Senator. Gladly.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR HEVESI: Thank you.
Through you, Mr. President, the
discussion that we've been having here has
been a good and thorough discussion. I voted
for this bill last year, but I have a lot of
questions now. They're sincere and genuine
questions about whether or not I'm going to
vote for this bill again.
My question to you is, as I peruse
the legislation, the purpose of the office of
taxpayer advocate will be to assist taxpayers
in resolving problems with the department and
to identify areas in which taxpayers have
problems dealing with the department and to
recommend administrative changes and propose
legislative remedies to mitigate against those
problems.
My question for Senator Goodman,
Mr. President, is, aren't those all
responsibilities that the Tax Department is
currently charged with and should be engaging
in?
4711
SENATOR GOODMAN: My answer is
that those are responsibilities which ought to
be fulfilled by the Tax Department, but it's
clear that in the perception of the
government, and in my perception after some
years of examining the function of the
department, that it's not adequately carried
out.
It's my belief that this additional
individual will be helpful in discussing
policy and procedural matters -- not
individual complaints that they're being
soaked with a specific tax, but rather the
ways in which things that are being done do
not make sense.
I'll give you one specific example,
if I may. There's an interesting continuing
discussion as to the concept of who and who
are not residents of the State of New York for
tax purposes. I've had people come to me and
complain that they're being charged -- being
asked to pay resident taxes when in fact
they're nonresidents. The reason for this is
that every time they come in and out of La
Guardia or Kennedy Airport on a business trip
4712
and that's reported in the log of their
corporation, that they're then charged with a
day of residence in New York even though they
don't reside in New York, simply went to the
airport and passed it on their way home.
Therefore, this raises an
intriguing question as to what constitutes
actual residency and permissible charging of a
day of residence in New York. And that's the
type of question which this sort of an
individual would hopefully be able to review
and give a ruling on.
Let me point out that once the
ruling is made, that ruling is binding unless
specifically overridden. It would require a
positive act on the part of the commissioner
to override the ruling; otherwise, it stands.
And this is a helpful way of combatting
bureaucratic excesses.
SENATOR HEVESI: Mr. President,
would the sponsor continue to yield.
SENATOR GOODMAN: Yes, I will.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR HEVESI: I thank Senator
4713
Goodman for enlightening us with that primary
example of why or how the Tax Department is
currently failing. And so I very much
appreciate the candor with which, Senator
Goodman, you have answered that question, that
this is necessary because the Tax Department
isn't doing its job and therefore we need an
additional entity to come in and do a job that
the Tax Department should be performing.
However, in light of that -- and I
accept that. I don't like it, and I would
explore it. As Senator Duane has called for,
I think there should be hearings and a fuller
discussion in committee and discussion from
both sides of the aisle on this.
But in light of that situation, why
would you have a taxpayer advocate report
directly to the Commissioner of the Tax
Department, putting those two entities in
fundamental conflict? They are and probably
should be in an adversarial relationship, but
we haven't taken steps to ensure the
independence of the taxpayer advocate. Aren't
we cutting off our nose to spite our face,
Senator?
4714
SENATOR GOODMAN: I presume in
drafting this the Governor has studied the
examples of twenty other states who have this
type of apparatus in effect.
It's been proven very effective in
such states as Massachusetts and Pennsylvania
and has worked well for them, and it's his
belief it would work well in New York.
SENATOR HEVESI: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT KUHL: Senator
Hevesi, on the bill.
SENATOR HEVESI: I don't know how
I'm going to vote on this bill. I honestly
don't know how I'm going to vote on this bill.
And I supported it last year, and
it passed unanimously. But in the time that
we passed that bill last year, and in this
time, almost by definition, the Tax
Department -- and I'm assuming that this
Governor's program bill came at the request of
or through consultations and discussions with
the Tax Department where they are
acknowledging that they have been deficient in
the performance of their duties.
4715
And let's be perfectly honest here.
The purpose of the Tax Department is not just
to collect taxes. The purpose of the Tax
Department is to collect taxes in a just and
fair way and to establish procedures and
remedies for individuals who have been
shortchanged, who need additional
information -- such as the case when Senator
Goodman outlined that example -- and to
provide a structure or remedies or measures to
meet problems that it will encounter as a
government agency.
And it can't do it, for some
reason. I don't know why it can't do it.
And perhaps we should have had a
discussion about the extent to which this
agency is being funded appropriately. And
maybe it's not being funded appropriately.
Maybe that's the problem. But a hearing
certainly would have indicated whether or not
the Tax Department has sufficient resources to
be able to in and of itself perform
effectively as a state agency.
I mean, this is a real problem
here. Forgetting first the merits of
4716
legislation, what's wrong with the Tax
Department? And if this bill is so essential
and we need it done so expeditiously -
although, to be honest, I doubt that. We're
seeing this bill now, in April. The tax date
is coming up in a few weeks. Why didn't we
see this bill in January? I have no idea.
Why is there no Assembly sponsor this year?
But it's so absolutely essential
that we pass this legislation, but the Tax
Department has done nothing, nothing in the
past year to remedy the problems that I
believe -- and I defy anybody else in here to
get up and discuss with me the reasons why the
Tax Department cannot and should not do
exactly what is called for under this
legislation. We're empowering a different
entity to do a job that the Tax Department
should be doing.
Okay, that's problem number one.
Problem number two is if you are
going to acquiesce, if you are going to say,
We quit, we can't as the Tax Department do our
job, so we need another entity to come in and
do that job -- and there may be merits to
4717
having an adversarial relationship here, just
as we have in our judicial system. There may
be merits to it.
But why would you then take that
entity, which is in some ways in conflict with
the Tax Department because they're moving in
different directions, because one is empowered
to advocate on behalf of the taxpayer, the
other one has not been doing that, so there's
the need for this legislation -- why would you
then take the taxpayer advocate and put that
individual under the direct supervision of the
Commissioner of the Tax Department? I mean,
it really doesn't make sense.
And now we have a process and
procedure set up here for taxpayer orders,
assistance orders and what have you. But what
if the Tax Commissioner decides that the
system is becoming too much of an advocate on
behalf of the taxpayer or the process is
taking too long so it's costing more money and
they can't get additional revenue out of the
Executive or the Legislature to facilitate
such a process in a timely fashion, so it's a
drain on their resources, so the Tax
4718
Commissioner turns around to the taxpayer
advocate and says: No, curtail your process,
cut it short. Why wouldn't he do that? He
very well might do that.
You have a system that you are
setting up here, if this passes -- and the
more I discuss this, the less likely I am to
vote for this legislation -- where you have a
need for an -- if you believe that you need
this legislation, you have the need for an
independent entity that you are then putting
under the constraints of not being independent
by making that individual report to somebody
who's not doing the job he should be doing
right now.
We have a State Comptroller that
audits agencies of the State of New York.
That individual is elected independently. He
operates independently. That's a good idea.
Because you don't do auditing from within your
agency. You can do it, but you lose your
objectivity and you lose the credibility as to
whether or not the audit which has been
performed has truly been done on the merits.
That's why you have a State Comptroller.
4719
That's why you have, as Senator Duane points
out, special prosecutors in some cases.
In New York City, the New York City
Board of Education has an independent
investigator that has -- we're talking about
the other extreme now. This individual has no
checks and balances, almost. So strong was
the need to prevent the organization from
influencing the ability of the independent
investigator, Ed Stancik, to do his job that
they didn't even do any checks and balances,
any oversight, which incidentally is
problematic.
But in New York City you have that
special investigator on the New York City
Board of Education. You have the New York
City Comptroller, who audits all the city
agencies and reviews the contracts and is in
fundamental conflict in many different areas
with the mayor, and he is independent.
And most tellingly in New York
City, because we're talking about a taxpayer
advocate here, we have a public advocate in
New York City. Now, some suggest that the
public advocate's office shouldn't exist. And
4720
that's a debate for another time. But if the
office is going to exist, of course it has to
be independent of the entity which it is
fundamentally opposing on behalf of somebody
else.
I mean, this is just silly. I'm
not going to vote for this bill. I'm not
going to vote for this bill. I regret my vote
on this last year. This is a bad idea.
Because the real danger here -- and
you may say, Well, Senator Hevesi, why don't
you go ahead and vote for this anyway, because
is this going to be worse if we pass it than
if we don't pass it. And I suggest to you now
as I'm going through this, Yeah, it will be
worse.
And here's how. And I'll take some
of the political burden. Because a lot of
times we're asked to vote on things here that
seem like they're going to be costly to us
politically, because a no vote makes the
burden on us, that we now have to explain why
we voted against the taxpayer advocate.
Well, here's my explanation and
here will be the explanation that I provide to
4721
any of my constituents who question my vote on
this. Number one, this takes the heat off the
Tax Department right now. It says we're okay
with the Tax Department not doing its job.
We're okay with that. Go ahead, Tax
Department, continue not to do what you should
be doing. Okay? I reject that. I repudiate
it on its face. That's flat-out wrong.
And, number two, it will give the
impression -- and Senator Duane alluded to
this. It will give the impression that if
this office has been created, the taxpayer
advocate's office has been created, that there
is true advocacy, there is a true remedy,
there is a true mechanism for taxpayers to go
to get relief. But we know that that's not
true, because that taxpayer advocate doesn't
operate independently, and he may have his
processes curtailed, he may have his wings
clipped if he's doing his job effectively, he
may be under budgetary constraints, he is not
probably going to be under any oversight.
There wasn't any oversight or any
hearings that led us to this legislation. And
so therefore, we may be in a situation where
4722
we've said to taxpayers, we've shifted the
burden, we've said, You know what, we created
this office of taxpayer advocate for you.
That's it, end of story. When in fact it
really is a guise and what it's doing is
creating the impression that we have provided
a remedy that we actually have not provided.
And that, I submit to everyone in this
chamber, is more dangerous than taking no
action in and of itself.
And I hope my colleagues vote no on
this bill. Because the Tax Department has
failed. I'd like to see a hearing of the Tax
Commissioner right now. I want to hear
complaints from taxpayers. Because this
legislation is the proof that there are major
problems within the Tax Department. You
cannot deny the existence of these problems
and at the same time say we need a taxpayer
advocate. Those two things are fundamentally
in conflict with each other. This is not a
good piece of legislation.
And this is, Mr. President, one of
those examples where the debate, discussion,
and deliberations that we engage in on the
4723
floor of this house -- which we don't do
enough of in committee, which we hardly ever
do in hearings, which are almost nonexistent,
or the hearings are only one-sided in terms of
having Majority-only task forces or what have
you, where its credibility is by definition
called into question -- but where we
deliberate and we have discussions and now we
realize, as I have realized today on the floor
of this house, this bill is a bad bill. I
made a mistake by voting in favor of this bill
last year, and I'm not going to make that
mistake again. And I urge all my colleagues
to vote no on this bill.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Lachman.
SENATOR LACHMAN: Mr. President,
will the sponsor yield for a question?
ACTING PRESIDENT KUHL: Senator
Goodman, do you yield to a question from
Senator Lachman?
SENATOR GOODMAN: Yes, I do.
ACTING PRESIDENT KUHL: The
Senator yields.
4724
SENATOR LACHMAN: Last year,
Senator Goodman, I believe that you
cosponsored a similar bill with Assemblyman
Adriano Espaillat in the Assembly; is that
accurate?
SENATOR GOODMAN: That's correct.
I mentioned that earlier, Senator.
SENATOR LACHMAN: Right. Now,
why was this bill not passed in the Assembly?
Were there procedural reasons, logistical
reasons, policy reasons, or you don't know?
SENATOR GOODMAN: I don't know
why it was not passed in the Assembly.
SENATOR LACHMAN: Through you,
Mr. President, will the Senator continue to
yield?
ACTING PRESIDENT KUHL: Senator
Goodman, do you continue to yield?
SENATOR GOODMAN: Yes, I will.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR LACHMAN: Has Assemblyman
Espaillat offered a comparable bill in this
area this year?
SENATOR GOODMAN: Let me see if I
4725
can respond in this fashion. This bill has
undergone change since last year. The changes
reflect gubernatorial suggestions. And as I
explained earlier, although at the start of
the year being a straight Goodman bill, it's
now been modified, it's a gubernatorial
program bill. This reflects the imprint of
the Governor on the bill.
SENATOR LACHMAN: Mr. President.
ACTING PRESIDENT KUHL: Senator
Lachman.
SENATOR LACHMAN: Through you,
will the Senator continue to yield?
ACTING PRESIDENT KUHL: Senator
Goodman, do you continue to yield?
SENATOR GOODMAN: Yes, of course.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR LACHMAN: Has your office
and the office of Assemblyman Espaillat been
in negotiations in regard this bill?
SENATOR GOODMAN: No, we have
not, because the Assemblyman has not yet
indicated his willingness to be on the bill.
SENATOR LACHMAN: Okay. On the
4726
bill, Mr. President.
ACTING PRESIDENT KUHL: Senator
Lachman, on the bill.
SENATOR LACHMAN: I view this
bill as a consumer bill rather than a bill
within the Department of Finance and Taxation.
But I think it is a good bill in general. It
needs some fine-tuning. And I would be
hopeful that your office and the office of
Assemblyman Adriano Espaillat will reach out
to each other to get the type of language that
is necessary to secure the passage in both
houses of a pro-consumer bill.
I would also like to thank your
office, Senator Goodman. I was somewhat
pleasantly surprised when I arrived in my
office last night to see a 15-page decision of
Gibbons versus Ogden, authored by Chief
Justice Marshall in the year 1824, dealing
with interstate commerce. I thank you and,
through you, David Lewis, who wrote a little
note attached to it.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, did you wish to be
recognized?
4727
SENATOR HASSELL-THOMPSON: Yes,
thank you, Mr. President. Just on the bill.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, on the bill.
SENATOR HASSELL-THOMPSON:
Senator Goodman, I think that you have
proposed something that has a great
possibility of being an excellent advocacy
bill. But if we're going to pass this bill
that you propose, I think we need to consider
the possibility that there truly can be some
conflict of interest.
The conflict at least for me exists
because the question that it raises is who
does the tax advocate answer to. And the
answer should be to the public, but not the
way it's structured.
The other question it raises is,
who does the tax advocate represent? Again,
the answer should be the public. But the way
it's structured, it's probably not possible.
Possible remedy. I never like to
raise an issue without giving a suggested
remedy. And whether it's accepted or not, I
think that it's worth merit. And that is that
4728
while this is an excellent bill, we have some
other possibilities. And because I'm the
ranking member on Consumer Protection, I
always think of that as a possible remedy for
many things. So that this department could in
fact be folded over into consumer protection.
There's also the possibility of the AG's
office. Or it can be a freestanding office.
But as it is proposed, as good as
it is, I believe that we would be perceived as
creating a conflict that never is going to get
resolved. I think that we have identified
very clearly that the Tax and Finance
Department has some serious issues that
they're not able to resolve. Therefore, this
is a possible remedy.
By putting, however, this within
that department, you will not only not remedy
that situation, but we will be expending
taxpayers' money in a tailspin.
And so those are the
recommendations that I would like to offer,
and I would hope that we would lay the bill
aside and continue to work on it. And
certainly I would be willing to offer at least
4729
my voice, if not any serious expertise, to
participate in coming up with something that
would make this a really excellent bill that I
know will pass here with unanimous support and
perhaps would even pass in the Assembly.
Thank you. Thank you, Mr.
President.
ACTING PRESIDENT KUHL: Senator
Paterson, why do you rise?
SENATOR PATERSON: Madam
President, if the sponsor would yield for a
question.
ACTING PRESIDENT KUHL: Senator
Paterson, perhaps the voice will be a better
indication of the salutation to which you
should use. It should be "Mr. President."
Senator Goodman, do you yield to a
question?
SENATOR PATERSON: Did I say
Madam President?
ACTING PRESIDENT KUHL: I'm
sorry, sir, you did.
(Laughter.)
SENATOR PATERSON: Mr. President,
that was anxiety.
4730
Would the sponsor yield for a
question?
ACTING PRESIDENT KUHL: Senator
Goodman, do you yield to a question?
SENATOR GOODMAN: Yes, I do,
gladly.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR PATERSON: Senator, two
previous members talked to you about this
substitution of the bill. And I understand
that. It's a modification, really, to be more
exact.
What I'm just interested in is
something that you alluded to earlier and
expressed a willingness to discuss a little,
and that was just some of the changes that you
made in the legislation from last year to this
year.
SENATOR GOODMAN: Senator, let me
preface this by saying that I happened to, in
my earlier days as a public servant, been the
Tax Commissioner of the City of New York. And
as such, I presided over one of the largest
jurisdictions in terms of tax collection in
4731
the United States of America. It was under my
administration that we introduced,
unfortunately had to introduce the income tax
in the City of New York.
Therefore, I would like to suggest
to you the basic motivation of this, which
will apply to your question as well.
The fundamental motivation of this
bill is to try to provide a device whereby the
Tax Commissioner can see himself more clearly
as others see him and can understand any areas
in which excessive bureaucratic zeal may have
led to abuse or might lead to abuse in the
future.
Another example I'd like to give is
the occasion on which the Tax Department sent
its agents into the state of New Jersey, with
cameras, to large shopping centers, photograph
the license plates of shoppers, and
subsequently trace the owners of the cars
bearing those license plates and sought to
collect from them sales tax on purchases made
in New Jersey.
That was a very egregious, in my
opinion, excessive zeal on the part of the
4732
department, and this was ultimately brought to
their attention by my office and discontinued
upon the public exposure of that.
Had this particular device been in
place at that time, I suspect that it would
not have been necessary to go through
senatorial review have that procedure. But
that's just an example of the type of behavior
which I think this type of a bureaucratic
instrument can preclude.
The idea here is not to have an
appeal mechanism as such, but rather to
provide a lens through which the commissioner
can understand the extent to which his own
department may be failing to fulfill its
mission adequately. And I think for the most
part most tax administrators seek to be fair
and even-handed, but unfortunately, as they
become overwhelmed with work, they may
overlook various aspects of their work which
require review and a clear understanding on
their part of their impact.
So that's the fundamental point.
As a result, the bill was modified last year
to the extent of making this a device which
4733
was subject to the review of the commissioner
himself rather than some external force. It's
arguable whether that's an improvement or not,
and I would be open to various views on that.
But let me just say that in view of the
fundamental notion that I just propounded to
you of the basic purpose of the bill, it seems
to me it's consistent with it.
ACTING PRESIDENT KUHL: Senator
Paterson.
SENATOR PATERSON: Mr. President,
if the sponsor would yield for another
question.
ACTING PRESIDENT KUHL: Senator
Goodman, do you continue to yield?
SENATOR GOODMAN: Yes, I will.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR PATERSON: This came to
mind, Mr. President, as Senator Goodman was
speaking. I grew up in New York City, so I am
aware that he was the Tax Commissioner for the
City of New York. I don't know if everybody
here is. And so this is an opportunity
perhaps to ask a question of the Senator that
4734
I might not ask the normal sponsor of a bill,
because it's general to policy itself.
When you were talking about the
situation where someone comes to an airport
and whether or not the corporation should be
considered in residency in the city or the
state for that particular day, it comes to
mind, what about baseball teams that come to
play in New York, like one did yesterday -
and they lost -- and do we charge them a tax
as a resident for the day?
The question is, where do you draw
the line between what would be administrative
review on the part of the Department of
Taxation and Finance and what we might
consider law that would come under the
jurisdiction of those lawmakers in the
Legislature?
SENATOR GOODMAN: That's a hard
thing to generalize about, Senator. But if I
may just point out, your perception is just a
little bit unclear as to the point about the
example I gave.
The issue here is whether you spend
more than half your time in New York, whether
4735
there's evidence that you resided in New York
for more than half of a 365-day year. If
there is evidence of any kind that you were in
New York or even touched base in New York,
under the old arrangements that would -- for
more than 185 days, you'd be charged with
residence status and thus asked to pay a
higher tax.
The point that I'm making, however,
is that the importance of setting criteria for
this purpose rather than specifically dealing
with an overcharge is the purpose of this
individual who we've described in this bill.
And I think this is a useful purpose, one
which serves both the interest of the public
and the commissioner, helping him to do a
better job.
Let me remind you, as I said
before, that this has been tried successfully
in other states, include Florida, California,
Minnesota, Massachusetts, Pennsylvania, New
Hampshire, Arkansas, Alabama, Indiana,
Michigan, Nebraska, Hawaii, and South
Carolina. So we're not treading on totally
unfamiliar ground here. This has been tried
4736
and it's been found to be a very useful
administrative adjunct to the functioning of
the department.
SENATOR PATERSON: Mr. President,
I can't help but share with you my feelings
about the eruditeness with respect to Senator
Goodman's consultation. He did not slip by me
the use of the term "touching base" in the
City yesterday.
If the Senator would continue to
yield.
ACTING PRESIDENT KUHL: Senator
Goodman, do you yield to another question?
SENATOR GOODMAN: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR PATERSON: Senator, under
Section 173-A of the law as it stands right
now, we have a bureau of conciliation in the
Tax Department. How will the legislation
you're proposing today interact or vary from
what seemed to be an institutional remedy that
the Tax Department had set up that apparently
is -- in our judgment has not really been as
much help as we would have preferred?
4737
Where will your legislation improve
upon this and how will it interface with what
we've previously put in place in the Tax
Department to this point?
SENATOR GOODMAN: That's a good
question, one which I'm glad to try to
clarify.
The fact is that the administrator
we're speaking of here deals with policy
questions and broad-gauge procedural matters
rather than individual claims. The specific
bureaucratic instrument to which you refer
relates to specific claims.
If the department claims you owe
them $10,000 and you say you only owe them
$5,000, that's the type of thing which can go
do conciliation based upon the facts. But if
the factual basis of that claim relates to a
concept which is being misapplied by the
department or a perceived misinterpretation of
the law in broad-gauge terms, that's where
this particular bill comes into play.
I think it's a valid distinction,
and one worth keeping in mind.
ACTING PRESIDENT KUHL: Senator
4738
Paterson.
SENATOR PATERSON: Mr. President,
I'm properly informed and would like to ask
another question if Senator Goodman is willing
to yield.
SENATOR GOODMAN: Yes, I would be
glad to yield.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR PATERSON: Mr. President,
I want to present an example and get Senator
Goodman's response. Let's say someone files a
claim with the office of the tax advocate and
at a certain point the tax advocate has
determined that they cannot take any action on
this, they're not going to rule in favor of
the claimant; in fact, they're not going to
address the issue at all. The statute of
limitations that would run on the penalty
phase of failure to pay or some enforcement
that is due onto the taxpayer at that point in
time vested in the Tax Department, is there a
tolling of the statute of limitations during
this period that the taxpayer seeks relief
from the office of the tax advocate?
4739
SENATOR GOODMAN: I'm told that
there is a tolling based upon the date of the
application of the taxpayer.
ACTING PRESIDENT KUHL: Senator
Paterson.
SENATOR GOODMAN: Until the
decision is reached.
SENATOR PATERSON: Until the
decision is actually reached?
SENATOR GOODMAN: Yeah, right.
SENATOR PATERSON: Thank you, Mr.
President.
Then if the office of tax advocate
makes a decision and the taxpayer is not
pleased with the decision, there is no
recourse at that point, because from -- I
understand the concept of your bill is that
you can't go to the office of tax advocate
until you've exhausted your administrative
remedies in all other areas of the Tax
Department; is that correct?
SENATOR GOODMAN: That's correct,
Senator.
SENATOR PATERSON: Okay, Mr.
President, if Senator Goodman would yield to I
4740
believe two last questions.
ACTING PRESIDENT KUHL: Senator
Goodman, do you yield?
SENATOR GOODMAN: Yes, I do.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR PATERSON: Then, Senator
Goodman, there is -- I guess there are layers
of responsibility here. And this is somewhat
situational. But since the last contact with
the Tax Department would then have been with
the office of the tax advocate, then my
question to you is, are there some
constitutional problems -- if the office of
tax advocate rules against the taxpayer and
then at that point the taxpayer does not have
any remedy, would that in a sense violate the
constitutional right to due process, not
because the Tax Department set up an appeal in
the first place but because the Tax Department
had a second institution within it that did
not grant an appeal?
SENATOR GOODMAN: The answer is
no, Senator.
SENATOR PATERSON: I worked hard
4741
on that question, Mr. President. All I can
get is a no?
If the Senator would continue to
yield.
ACTING PRESIDENT KUHL: Senator
Goodman?
SENATOR GOODMAN: The answer is
yes, I will continue to yield.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR GOODMAN: And that's my
final decision.
(Laughter.)
SENATOR PATERSON: I have always
protested when the Senator is referred to as
euphemistic, Mr. President. I'm happy to see
that we've brought him down to the basic
answers here.
But my last question just involves
that interaction between the office of tax
advocate within the realm of the jurisdiction
of the commissioner, something that is
concerning Senator Hevesi to a great degree
and is also concerning myself.
If the tax advocate does find a
4742
problem with the department -- in other words,
the tax advocate wants to rule on behalf of
the taxpayer, the grievant, is there at that
point -- what is -- what duties and
responsibilities does the Department of
Taxation and Finance and specifically the
commissioner have? Can the tax advocate be
overruled? Can the tax advocate force upon
the department perhaps vanquishing a lien on
property? Or to what extent does the tax
advocate have final jurisdiction, or is there
now another jurisdictional process that goes
on within the department itself?
SENATOR GOODMAN: The procedure
would be in the event that there's merit found
in the matter brought before the tax advocate,
that he issues a decision. That decision is
one which normally would carry the weight of
finality. But in instances in which the
commissioner wished to override it, he would
have the ultimate power to do so in writing.
It would then become a very public
matter, and obviously there would be a
reluctance on the part of the commissioner to
override that individual. There's a certain
4743
amount of moral suasion in the position of the
tax advocate which I think would command a
fair degree of respect.
ACTING PRESIDENT KUHL: Senator
Paterson.
SENATOR PATERSON: Mr. President,
I wish to risk my friendship with Senator
Goodman. I promised that that would be it,
but his answer actually elicited another
question.
SENATOR GOODMAN: Go right ahead,
Senator. Our friendship is not at stake, I'm
happy to respond.
SENATOR PATERSON: Thank you, Mr.
President.
My question is, have we outlined in
the legislation -- and I know this is
difficult because we can't imagine every
opportunity or instance that can actually come
up. But to what degree of specificity have we
delineated in the legislation what points that
the commissioner, using the broad supervisory
powers that are implicit with his or her
appointment, can overrule the taxpayer
advocate and restore the original judgment of
4744
the department?
SENATOR GOODMAN: I'm sorry,
would you -- I didn't quite catch the thrust
of this. You say at what point does what
happen?
SENATOR PATERSON: I guess all
I'm saying is I'm trying to figure out whether
the office of the tax advocate really has
strength and validity or if, let's say, some
commissioner that doesn't like being told no,
someone in a supervisory position that does
not feel particularly admonished by the ruling
of some kind of ombudsman built into the
agency, might just always overrule what the
tax advocate proposes.
In other words, the legislation as
it stands is very apt. But appointed
officials, administrators, have on occasion
probably been very overbroad with their
authority and have not been willing to listen
even to different types of institutions that
are put in under their jurisdiction that are
put there for the purpose of advice or counsel
or perhaps suggesting that there needs to be a
change in policy on the part of the
4745
department.
So what I'm just trying to
understand is how often was it in your
contemplation, having written the legislation,
would the right of the commissioner to
overrule the advocate be utilized? Would it
be seldom or would it be something that we
might find happens all too often?
SENATOR GOODMAN: If the Tax
Commissioner had a cavalier attitude toward
the findings of his advocate, I think that
would bring down a degree of public opprobrium
which would be an embarrassment to the
department and probably cause public outcry.
To the extent that public opinion
would weigh in heavily and be reflected
possibly in other disciplinary action to be
brought through a legislative body and the
like, I think that would be a powerful
influence on making certain that adequate
respect is shown to the advocate in this type
of situation.
ACTING PRESIDENT KUHL: Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
4746
President. I want to thank Senator Goodman
for his gracious responses.
SENATOR GOODMAN: I just want to
say thanks to you, Senator. May I just make
one brief observation, with your permission?
There are various ways of posing
questions on this floor, Mr. President, and
something that comes to my attention is the
fact that certain questions come with a degree
of optimism and goodwill about the motivation
of the sponsors. Others seem to imply that
the sponsor is attempting to unhatch a plot on
the unsuspecting public and is therefore
guilty of a dirty trick.
I think in this body we've come
over the years to respect one another's
integrity to the point where it is not assumed
that bringing a piece of legislation of this
type is intended to be an underhanded effort
to subvert the processes of our free society.
And I'm grateful to you and several of your
colleagues for the way in which you pose your
questions, which are not dripping with
suspicion or with negative implication.
Thank you.
4747
ACTING PRESIDENT KUHL: Senator
Paterson.
SENATOR PATERSON: I'm very
happy, Mr. President.
No, in all seriousness, we all here
have the utmost respect for the dedication of
Senator Goodman and his integrity. Sometimes
it might appear that the questions might -
I'm speaking on the bill, Mr. President.
Sometimes it might appear that the questions
have a degree of suspicion or negative
motivation, and I just wanted to assure
Senator Goodman that it is not as much the
case with respect to the individuals,
sometimes it's just the case about the
process.
I think there were three of us that
asked questions about the modification of the
legislation. We just didn't understand what
it was actually about. And although there
haven't been many plots that were hatched that
would inure to public detriment from Senator
Goodman, it's certainly our opinion that at
times there could be greater notification or
greater understanding.
4748
And unfortunately, as Senator
Goodman pointed out, when there is a breakdown
in that communication, there can be
perceptions and fears and anxieties that all
of us feel. But I want to thank the Senator
for reassuring us and talk about the
legislation.
And to that end, I'm a little torn
between the notable objective and sincerity
that Senator Goodman presents but also the
very steadfast discipline, criticism, and
honesty that I think that Senator Duane and
Senator Hevesi elicited in their discussion
about how effective this actually can be in
the Tax Department where, since we already
have -- and it is a section that's not applied
to the specific policy or application of
policy as Senator Goodman's bill -- but we
already have a bureau of conciliation under
Section 173-A that was at least an institution
that was designed to provide some relief for
taxpayers.
And I think that there certainly
is -- not in any way connected to Senator
Goodman's bill -- some dissatisfaction on the
4749
part of the public. We've seen nationally a
complete mistrust of our Internal Revenue
Service. And there is a feeling that these
organizations have implementary power, they
have at times harassed and bullied individuals
over what were honest mistakes or just
miscalculations on the part of public
citizens.
And so Senator Goodman probably was
speaking to that notion when he put this
legislation together and wants to set up what
would really be a second tier of relief, a
second examination of an issue. Not a finding
but necessarily an issue that's being raised
that has not worked well for the particular
taxpayer or entity that's paying taxes in a
specific situation.
And what Senator Hevesi is saying
is that that may be true, but still the
inevitable power rests with the commissioner,
and it would be very hard without some
independence or independent nature to an
entity to really be assured that there would
be an apt change in policy, because too often
when agencies rely to their detriment for a
4750
long period of time on the application of a
policy, some succeeding determination that is
designed to actually supersede that notion is
met with a great deal of resistance.
And so what Senator Hevesi is
saying is things are not always as they seem.
It would appear to be a viable entity that
would shed some additional opportunity on the
part of the taxpayer, but may inevitably just
be a further exercise in bureaucracy, that not
only inures to the detriment of the taxpayer
but provides no review as the original
Department of Taxation did in the first place.
I think I'm inclined to vote for
the bill, because I can't really think of an
option that would provide some independence
other than to set up a board that would be the
same tax advocacy process and let the board
rule. In other words, just let them rule in
favor of the taxpayer and force the agency to
make the appropriate change in policy.
Because the issue is specific, as
Senator Goodman pointed out, to the issue and
not to the specifics of a case -- did you owe
$5,000 or did you owe $10,000, I believe that
4751
was Senator Goodman's example -- I don't know
how we could set up a board that would be
independent, because that would then become
the de jure Tax Department itself.
So I think that we're going to have
to rely on the ability of individuals to heed
the call when in a number of instances the
office of the taxpayer advocate tries to
change policy on the part of the department,
and just make sure that we as a Legislature
read those reports that the office of tax
advocate will send to us each year and take a
look at those reports and see whether or not
their admonishments are being considered by
the department.
This is the reason again why when
Senator Duane raised the issue of the
Department of Taxation as it relates to the
appointment of this agency, and that it not
involve the advice and consent of the Senate,
that that's somewhat important, because here
is a second opportunity that we're not
encouraging a legislative position.
In spite of that, I think I'll vote
for the bill. But I am going to be somewhat
4752
haunted if we find down the road that Senator
Duane and Senator Hevesi are proven correct,
because they really have left us with some
valuable thoughts today that I think we really
need to consider very carefully. And those
thoughts relate to not necessarily the scope
or the spirit of the legislation itself, but
really the application.
You know, sometimes there's too
much discussion about conspiracy. You know,
nobody may have sat in the room and actually
decided to do this. But if the results are
the same as if they had, there really isn't
much of a difference.
So leaving aside -- and I think we
can all agree that this is a valid idea, which
perhaps might need a little adjustment, but
it's certainly a valid idea. But the point is
whether or not this agency within an agency is
going to have the kind of broad power that we
would like it to have so that people have some
type of redress.
What I'm encouraged by is that last
year's legislation was to some degree not
totally satisfactory with all the parties
4753
involved, and Senator Goodman did, rather than
just bring it back here for another exercise
in futility, took the legislation and made
some adjustments. Maybe not enough for all,
but it demonstrates his willingness to work
with us and try to craft what appears to be
needed legislation that will change the
opportunity for people who are thrust into
these situations to seek the relief that they
deserve.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Onorato, why do you rise?
SENATOR ONORATO: Mr. President,
will the sponsor yield to a question?
ACTING PRESIDENT KUHL: Senator
Onorato, before that happens, Senator Rath,
why do you rise?
SENATOR RATH: Mr. President,
there will be an immediate meeting of the
Veterans Committee at 1 o'clock, Room 328.
Also an immediate meeting of the Energy and
Telecommunications Committee in the Majority
Conference Room.
SENATOR GOODMAN: Mr. President,
4754
I will yield.
SENATOR ONORATO: I only have one
question, Senator.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR ONORATO: You have in the
bill there that the advocate would be required
to report to the Legislature annually. Which
raises a serious problem, because we've had
some discussions here recently with some other
agencies that were supposed to have made
reports to this body and haven't done so, some
of them two years, some of them as much as six
years.
Is there anything in here that
would actually put some teeth into it to
require, other than simply stating that they
should give the -- what happens if they don't
give us the report on an annual basis? What
can we do to bring it forth?
SENATOR GOODMAN: Senator, this
report is a very serious one, and let me just
outline its contents to you, if I may.
The annual report will be a full
and substantive analysis of the activities,
4755
and the report is made directly to the
Governor, Temporary President of the Senate,
Speaker of the Assembly, and the Commissioner
by December 31st, 2002, and every year
thereafter, without prior review by the
Commissioner.
The report must contain statistical
information and shall identify initiatives the
taxpayer advocate has taken, summarize and
describe the most serious problems encountered
by taxpayers, contain an inventory of items
for which action has been taken and their
result, identify any taxpayer assistance order
which was not honored by the department in a
timely manner, and contain recommendations for
administrative and legislative action to
resolve problems encountered by taxpayers, and
include such other information as the advocate
deems advisable.
In short, he is required by law to
give a comprehensive and specific report to
this triple-report-receiving group.
SENATOR ONORATO: Mr. President.
ACTING PRESIDENT KUHL: Senator
Onorato.
4756
SENATOR ONORATO: If he will
continue to yield.
ACTING PRESIDENT KUHL: Senator
Goodman, do you continue to yield?
SENATOR GOODMAN: Yes, I will.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR ONORATO: I understand
what he's supposed to do, or he or she,
whoever it may be. What happens in the event
that they don't do it?
SENATOR GOODMAN: Then he goes to
the electric chair or something like that.
No, I think that the answer is that
he would again be subject to serious criticism
or oversight by the Legislature, which would
certainly be aware of this failure, because
the Legislature is one of those receiving the
report, not to mention the Governor himself.
There's no specific penalty in the
law for failure to do this, but I don't think
that's a realistic possibility.
SENATOR ONORATO: Thank you,
Senator.
ACTING PRESIDENT KUHL: Any other
4757
Senator wishing to speak on the bill?
Senator Stachowski.
SENATOR STACHOWSKI: Just on the
bill.
ACTING PRESIDENT KUHL: Senator
Stachowski, on the bill.
SENATOR STACHOWSKI: I don't
really have any questions for Senator Goodman,
because he's answered quite a few questions.
And I'm still not exactly sure which part in
particular the Governor had to get in there,
but -- and I know he answered Senator Paterson
on that, and I might have just missed it when
I was listening.
But anyway, regardless of that
fact, I think that Senator Hevesi and Senator
Duane brought up some good questions on the
bill. I find it hard to oppose a taxpayer
advocate proposition. Although it is kind of
funny that he reports to the commissioner, he
questions the commissioner, and how hard will
somebody question the person they work for?
It's a difficult situation that
you're going to put this person in. And quite
frankly, after sitting through budget hearings
4758
the last couple of years, if the Governor is
okay with this bill, that tells me that the
advocate is just going to support the policies
of the Governor, basically the same as the
commissioners do at the budget hearings.
So I really don't know what we're
accomplishing here, except that we're going to
be able to say that we've established the
office of taxpayer advocate within the
Department of Taxation. Maybe, if an
Assemblyperson will decide to sponsor this
bill, now that the Governor got whatever
changes it is that he got -- which I got to
believe have something to do with that he
works for the commissioner, he questions the
commissioner, and he reports to the
commissioner.
Other than that, I think it's not a
bad idea. I thought it was a better idea last
year, because it was sponsored by an
Assemblyperson. And whatever reason it didn't
get through there, I still will continue to
support it.
I again thank Senator Goodman for
his graciousness to all my colleagues in
4759
patiently answering their questions. I also
kind of enjoy when there's a little excitement
in here, so at least it started out with a big
flurry. Maybe everybody didn't find that
enjoyable, but it woke everybody up, got
everybody in the right frame of mind to be
sitting here and discussing various pieces of
legislation.
But I will still support Senator
Goodman's bill, even though I do have some
series questions about the point that I
mentioned, that the person questions the
commissioner, he works for the commissioner,
and he reports to the commissioner.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Any other
Senator wishing to speak on the bill?
Hearing none, the Secretary will
read the last section.
THE SECRETARY: Section 4. This
act shall take effect in 60 days.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Senator
4760
Montgomery, why do you rise?
SENATOR MONTGOMERY: Mr.
President, I just want to explain my vote.
ACTING PRESIDENT KUHL: Senator
Montgomery, to explain her vote.
SENATOR MONTGOMERY: Yes, thank
you. Just very briefly.
I have listened very intently to
the debate on this legislation, and the
thought occurs to me that I really have had a
very positive response over the years when I
have approached the Department of Taxation on
behalf of my constituents. And one of the
reasons that I assume that there's a positive
response is that I can communicate with the
commissioner, the commissioner then directs
his or her staff to take care of issues, and
usually it's very, very efficient and they do
it very quickly and promptly.
So I really don't see the need for
an entirely new bureaucracy within the
bureaucracy to whom, as several of my
colleagues have pointed out, that person -
it's not clear who that person is ultimately
accountable to, whether or not it's actually
4761
in fact the public or whether or not it's just
another arm of the Governor or -- i.e.,
through the commissioner to buffer direct
access to the commissioner.
So I'm going to vote no. I'm not
opposed to an advocate, but I find and I trust
that the commissioner really is truly the
ultimate advocate and has the ultimate
authority to make decisions within the
Taxation Department.
Thank you.
ACTING PRESIDENT KUHL: Senator
Montgomery will be recorded in the negative.
Senator Duane, why do you rise?
SENATOR DUANE: Thank you, Mr.
President. To explain my vote.
ACTING PRESIDENT KUHL: Senator
Duane, to explain his vote.
SENATOR DUANE: Thank you.
Maybe 30 years ago there was a way
of doing things and a way of not doing things.
I hope that 30 years ago, debate wasn't cut
off after four questions. And I hope that
questions that were asked appropriately were
answered appropriately.
4762
I'm going to vote no on this bill.
A lot of it has to do with the debate and
discussion that occurred on the floor today.
I think it would have been tragic if the
debate on the bill had been limited to four
questions, but I'm pleased that that didn't
happen and we had a chance to have a complete
and thorough discussion on the bill.
But it's based on the things that
were brought out during that discussion that
made me decide to vote no on the bill.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Duane will be recorded in the negative.
Record the negatives and announce
the results.
THE SECRETARY: Ayes, 54. Nays,
2. Senators Duane and Montgomery recorded in
the negative.
ACTING PRESIDENT KUHL: The bill
is passed.
Senator Marcellino.
SENATOR MARCELLINO: Mr.
President, would you please call up at this
time Calendar 105.
4763
ACTING PRESIDENT KUHL: The
Secretary will read.
THE SECRETARY: Calendar Number
105, by Senator Balboni, Senate Print 862, an
act to amend the Civil Practice Law and Rules,
in relation to prohibiting.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT KUHL: Senator
Balboni, an explanation has been requested by
the Acting Minority Leader, Senator Paterson.
SENATOR BALBONI: Thank you, Mr.
President.
This bill would amend Section
1411-A of the Civil Practice Law and Rules in
relation to codifying common sense. That is a
very simple proposition: If you commit a
felony in this state, the last thing that you
should be able to do is to bring a lawsuit
against the person that you tried to either
rob, assault, run over, steal from, or break
into their home.
And as we've discussed before,
three separate years now, there are a legion
of cases, a legion of articles, and a legion
of newspaper examples that underscore the
4764
utter ridiculousness of the ability of a
convicted felon of bringing these types of
lawsuits.
This bill would change around what
some legal commentaries have described as a
misstep in 1975, when this Legislature adopted
1411-A but did not carve out an exception for
felonious conduct.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
there was a tragedy a couple of weeks ago in
China when a number of children were playing
with explosives and firearms. And there was
an accident, and 20 to 30 people were killed.
And there will be no lawsuits there, because
China doesn't have lawsuits.
And one of the frustrating and at
times tiring aspects of living in a democracy
is the fact that we try to keep our courts
open as often as possible. Now, Senator
Balboni's point is well taken. And it's
actually difficult for me to get up and debate
Senator Balboni on this issue, because the
4765
individuals who have often tried to sue people
after they were committing a crime -- they
broke into someone's house and at some point,
maybe leaving the scene, they fell and hurt
themselves and now they want to sue the
property owner. That's how ridiculous it
actually gets. And because of it, our first
reaction is to shut it down, to stop it, not
to allow anyone to sue.
And Senator Balboni's sentiment is
my sentiment. I'm not trying to let anyone
off or give anybody a break who is a felon,
who is a robber, a burglar, a murderer, a
rapist.
Yet at the same time, what
distinguishes living in this country is that
we do extend to our democracy the jurisdiction
in our courts to make those actual
determinations.
And I think that this is too rigid
a rule. I think that there are situations
that I could describe for Senator Balboni, and
I will in a moment, where it would be really
creating an open season on individuals who are
breaking the law who, believe it or not, even
4766
at that point have rights as well.
Now, if Senator Balboni would yield
for a question.
ACTING PRESIDENT KUHL: Senator
Balboni, do you yield?
SENATOR BALBONI: Yes, I would,
Mr. President.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR PATERSON: Senator
Balboni, when -- Mr. President, when Senator
Balboni first came to the Senate, which I
believe was in 1996 -
SENATOR BALBONI: 1997.
SENATOR PATERSON: 1997. It just
seemed longer.
But when he came here, I remember a
particular debate between Senator Balboni and
Senator Leichter and Senator Gold where he
regaled this chamber and totally overwhelmed
his colleagues with the reciting of case law
of courts involving Barker versus Kallash and
even a case that went back to 1894, for which
I had to go and read the case just to try to
understand. I think it's the Bailey case?
4767
SENATOR BALBONI: Riggs versus
Palmer.
ACTING PRESIDENT KUHL: Riggs
versus Palmer, I'm sorry.
My question, Mr. President, relates
to the issue of police who are arresting
individuals, arresting them for what would
later be convicted felonies. Are you saying
by this that the only administrative relief
for police brutality would then be
administrative within the police department,
that there would be no civil action that could
be taken against the police officer as, there
was in the Louima case?
Because remember, in the Louima
case, because of the resisting arrest, Louima
could have been charged with a felony, could
have theoretically been convicted, and
therefore this case we're reading about where
the victim is suing the police officer who
injured him right now, who is later convicted
of a felony himself, couldn't do it civilly
because he committed a felony.
SENATOR BALBONI: Senator
Paterson, for purposes of making sure that the
4768
record is complete, the incident that you
began your comments with regarding the
explosion at the school, with fireworks, in
China -- I believe it happened 2½ weeks ago,
is the approximate time -- if you followed the
news, you would see that at this point in
time, they have a man in custody who actually
went into the school with the intent to set
off explosives. So there was no accident
associated with that particular incident.
The reason why I just state that is
because I believe that that is something
that -- we should just make sure that we
understand that that was a felonious act in
and of itself. And this bill would relate to
that individual. He had a problem with the
school itself. So I'm not sure that that
necessarily applies in this particular
situation.
But as to your discussion about
police brutality, that has been -- if there's
any emotion that attaches itself to this
particular issue, that is the emotional
element. Are we going to deny particularly
minorities the right to bring a lawsuit -
4769
because as you know better than anybody else,
in the minority community there's a great
concern about the relations with police
officers. And the last thing I would want to
do would be to advance a measure that would
take away the ability of any individual who
has suffered brutality to effectuate their
rights.
This proposal does nothing of the
kind, and I'll tell you why. The proposal we
could have chosen to do that we could have
passed in this house would have been the
adoption of a strict assumption of risk
proposal. That would mean that if you
committed a felony, then anything you would
have done from then on, you would have been
liable for without recompense.
That is not the proposal that's
before us, that is not the bill we have
passed. We are passing a bill that sets up a
standard that would be utilized by the court
in determining whether or not dismissal of
this case would be appropriate in the given
case. Not wholesale, not by class, but rather
at the specific case. And that word that
4770
should be focused on is the word "culpable."
The court is to determine whether
or not the actions that resulted in the
conviction were the culpable cause of the
injury that's being sued upon. That is the
safeguard against any denial of a civil remedy
in the course of a police brutality action.
But there's another argument that
I've advanced that I would wish that this
house would consider, and this comes from
years of experience in the trial bar on my own
behalf as an attorney trying cases involving
not so much police brutality but cases
involving lawsuits against police officers.
It is a proposition I've stated
before. I will state it again. The
practitioner who seeks to bring a cause of
action for police brutality in the state court
does so as akin to malpractice. And I'll tell
you why. Because under the federal rules, you
can get attorneys fees, the cases are much
more expeditiously handled, and normally you
can get more favorable forums, particularly in
this state, if you do the federal route than
if you do the state route. I've seen that
4771
firsthand, particularly downstate.
And you have a 1983 civil rights
cause of action that this bill does nothing
to. So the statement that my legislation
before this house would abrogate any and all
civil remedy in a police brutality case is
wrong on two counts. The first is, it's wrong
because of the word "culpable." And secondly,
it is wrong because the federal forum is still
available.
And the third is that as a public
policy matter in this state we want to deter
police brutality in every instance against any
community, against any individual. The way we
do that -- this is not by anecdote, this is
not by supposition, this is by testimony of
police officers -- is by attaching to that
incredibly severe and serious act a penal
remedy, a criminal sanction. You put a police
officer in prison. That is the way you stop
police brutality.
Another practical matter, and I
would refer you to 50-L of the Civil Practice
Laws and Rules -- I'm sorry, the General
Municipal Law, Senator Paterson. Many
4772
municipalities have adopted immunity statutes
for police brutality as a civil remedy. So in
that regard, you don't have that available
either.
So I hope that that gives you kind
of a lay of the land as to why this particular
measure does nothing to change the law or the
effectiveness of a civil suit for police
brutality.
ACTING PRESIDENT KUHL: Senator
Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
if Senator Balboni would further yield for a
question.
ACTING PRESIDENT KUHL: Senator
Balboni, do you yield to another question from
Senator Paterson?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR PATERSON: Mr. President,
I'm a little unsure of what Senator Balboni is
proposing. Perhaps he's thinking about a
balance in terms of jurisdiction.
4773
Senator, you gave a remedy that I
didn't think that you'd be willing to admit.
In other words, if you're saying that we're
going to knock out the state remedy, you can't
go to state court, but you can go to federal
court, I just thought that this would be a
precursor to federal legislation also not
allowing the perpetrator who was convicted of
a crime to sue. I mean, certainly they could
sue under a civil rights statute.
But I'm saying civilly, the civil
case, which is one for damages, are you saying
that you're leaving the remedy of the use of
the federal courts? Or are you saying that
you don't believe that we should allow this at
all? Which is what I thought the intent of
the legislation was.
SENATOR BALBONI: Mr. President,
through you.
SENATOR PATERSON: Was that clear
enough?
SENATOR BALBONI: Yes, it was.
ACTING PRESIDENT KUHL: Senator
Balboni, why do you rise?
SENATOR BALBONI: In order to
4774
respond to the gentleman's question, Mr.
President.
ACTING PRESIDENT KUHL: Still
answering the question from Senator Paterson?
Fine, proceed.
SENATOR BALBONI: Thank you, Mr.
President.
The federal remedy in the 1983
cause of action sounds in conspiracy, sounds
in municipal neglect and negligence -- same
thing -- sounds in a different cause of action
than straight assault, which is what the state
cause of action for negligence, at least,
would sound in.
As you know, we in this Legislature
cannot bind the hands of the federal
government, and in this instance nor would we
want to. What we want to do here is bring
common sense from a jurisprudential
perspective to the state courts. See, the
people who are listening to this debate up
here, I'm sure that if you laid out the
example of a robber coming into your home at
night, sticking a knife to your throat and
taking your money, and then on the way out
4775
tripping over one of your children's toys and
breaking his leg, and then suing the
homeowner, that is literally adding insult to
injury.
And it says to all the God-fearing
taxpayers and people who are upstanding
citizens that there's something wrong with our
system. Our law is replete with examples of
how we have disenfranchised the felon, because
a felony is a very serious criminal act. We
are being consistent with the concepts of pari
delicto, with the concepts of insurance fraud,
with the concepts of civil debt under the
Civil Rights Law, that you're not able to
vote, hold a state or federal job if you're
convicted of a felony.
You and I, God forbid, if we were
ever to be convicted of a felony, would lose
our seat immediately. But yet we want to
maintain for that same individual who commits
a felony, commits an act against society, the
ability to use the very system that he or she
flaunted? Is that the message that we send to
our constituency, that we are not all the
same, that if we break the rules that we
4776
shouldn't lose the rights to participate in a
society?
That's what this bill is about.
That's all it has ever been about. I hope
that answers your question.
SENATOR PATERSON: Mr. President,
I want to thank Senator Balboni for the answer
and ask him another question.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Sorry, Madam
President.
Senator, we have a case that is
included in your memorandum, the McCummings
case. And this of course was a case of a
perpetrator who actually sued and won a couple
of million dollars, in fact. And I think it's
even more egregious than your example of the
person slipping on the toy, because here this
was a large recovery. But I want to make sure
that we're not legislating the exception,
4777
legislating that unique case sometimes that
makes us scratch our heads and wonder who it
was that was presiding over that particular
case and what jury brought back that verdict.
I want to talk about a number of
situations that could occur should we pass
this bill. First of all, I was quite
interested to hear your point of view about
the relief in the federal courts. We've I
think discussed this case on the floor about
five years now, and it's at least the first
time I remember hearing that you felt that
way, and I'm really a little more drawn to the
general concept because of that explanation.
But what I want to ask you is, what
about the situation now where the family of a
deceased perpetrator -- let's say someone who
was committing a felony at the time of an
offense -- might be barred from suing under a
wrongful death statute because the individual,
when they had completely subdued the
perpetrator, continued to brutalize them,
resulting in their death. Isn't that the
other side of what we're possibly legislating?
SENATOR BALBONI: Madam
4778
President, through you, if you are again
talking about the wrongful death having
resulted from police brutality while the
individual was in custody?
SENATOR PATERSON: Well, I'm
sorry, Madam President, just to clarify for
Senator Balboni, you know, the overwhelming
number of our police officers discharge their
duties with complete professionalism, and it's
certainly as high in if not a higher
percentage than any other profession. So I'm
not trying to turn this into some kind of an
assault on our law enforcement officials, who
work very hard. It could be anybody who was
resisting the advances of a perpetrator.
But the police get cited because
they are highly trained and because incidents
such as this really tug at the heartstrings of
people who recognize that the role of the
police is to protect citizens, so when there
is -- the same with us as elected officials,
when there's wrongdoing on our part, it's an
even more frightening concept for the public
to swallow.
But I'm really, for purposes of
4779
this question, just talking about anyone who
is resisting the advances of a perpetrator who
then goes over the top and becomes oppressive
in their actions and overly aggressive in
their physical resistance, perhaps resulting
in the death of someone who was committing a
felony.
SENATOR BALBONI: Madam
President, through you. I'd like to answer
your question in two regards.
The first is in regard to the
sympathy that you would have for the family of
a convicted felon who dies during the
commission of a felony and whose family is
unable to bring a wrongful death suit. That
is a harsh outcome. It is the same outcome,
however, Senator, for that same family should
the perpetrator live and be sentenced to jail
for a minimum of a year. They have no ability
to perhaps earn an income, they've now lost
the breadwinner. That is what our system of
justice has decided is the appropriate
response and deterrent to someone committing a
felony in our society.
So with that scenario and the added
4780
sympathies, the person who is at fault there
is the perpetrator, not society. The person
who should be the one who should answer to
their family is the perpetrator, not society.
But in regard to somebody who
perhaps sets up a spring gun -- and we talk
about that example -- in order to protect a
remote premises in a rural jurisdiction, they
set up a spring gun. And they set it so it's
a shotgun, and when you open up the door it
goes off, killing somebody or maiming them or
injuring them. In that case, the individual
property owner would be brought to trial and
would become in fact a felon and perhaps tried
for murder or assault first degree. That is
our response as a society to that particular
situation.
The fact that the individual is a
felon and should not be in the premises, that
does take away the ability to bring a civil
suit. But I assure you, the penalty and the
deterrent, which is what we are here to try to
promote, is the deterrence factor, is what we
should be focusing on. There is going to be a
harsh result in certain cases.
4781
But the initial examination should
begin with the conduct of the perpetrator.
They stepped outside the bounds of society to
commit the crime. Nobody told them to do it,
nobody forced them to do it. They should take
responsibility for it. The way that I ensure
that justice is done, to the extent we can in
an imperfect Legislature, is to include an
analysis by the court of whether or not the
conduct for which they are suing was culpable
in nature to the felonious act.
SENATOR PATERSON: Mr. President,
if Senator Balboni would be willing to yield
for another question.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Senator Paterson,
that's all right. As long as you refer to me
as President.
SENATOR PATERSON: Thank you.
4782
THE PRESIDENT: You may proceed.
And that was a joke.
(Laughter.)
SENATOR PATERSON: My question
relates to the issue of deterrence, Senator.
There are different aspects of punishment for
a crime. There's deterrence, there's
detainment, there's retribution. But you
define this as deterrence. And I'm just going
to ask you, let's say you and I completely
agree about this bill. I just want to ask you
about the nature of the bill itself.
I can understand that this would be
retribution. I mean, that's what I'd feel if
someone breaks into my house, puts a gun to my
head, takes all my money, and then falls down
the stairs and sues me because the stairs were
too slippery and they hurt themselves. I
would see that as more retribution.
If the person already risks
incarceration in the criminal justice system,
do you think the fact that they contemplated,
well, you know, I'm not going to break into
that house because just in case I get hurt, I
can't sue -- do you really think that's a
4783
deterrent, Senator?
SENATOR BALBONI: In certain
actions, I do. But more importantly, this is
not so much retribution as it is again
consistency.
Let me take you back to the year
1975. This Legislature enacted a law which
changed the way we pursued civil trials. The
law prior to 1975 was that if you were
contributory in your actions as a plaintiff,
you were not able to sue. That was the law.
So this harsh result that you were talking
about occurred all the time to people who did
not perpetrate felonious conduct to you and I
if we brought a lawsuit.
We changed that standard in 1975.
And if you go back and you read the bill
jackets, if you read the commentators' remarks
on the section, you will see that a lot of
people felt at the time that there should have
been an exception made for felonious conduct.
But there wasn't. Because, as you know, we
went from contributory negligence and
assumption of risk to a comparative negligence
scheme.
4784
But in the rush to do justice to
the civil justice system as a whole, we
neglected to carve out and continue the public
policy, which has been enunciated in a legion
of cases in this state, that if you commit a
crime you can't use the courts to effect a
civil remedy. And those cases, as you've
alluded to beforehand, begin in 1894 with
Riggs versus Palmer case, which was the case
about the guy who decided he wanted to get his
inheritance faster and therefore killed his
father, and the court said we are not going to
give you your remedy, to the case of Barker
versus Kallash, which I believe was Judge
Wachtler's finest opinion, where he said that
two children making a pipe bomb could not then
sue each other when it went off accidentally,
because that was against the whole notion of
fairness and justice in our system.
Now, what is so amazing to me,
Senator, is that -- and by the way, the cases
continue. There was a case two years ago
which I cited last year in debate -- 1997,
that held the same exact position. In fact,
we've never had a case in the last hundred or
4785
so years in this state which has held the
opposite, that comparative negligence did
apply. It's only in the statutory enactment
and the failure to continue this thought
process and this jurisprudential concern and
policy that we've not acted, because we have
not adopted this statute.
SENATOR PATERSON: Madam
President, I hope you're enjoying this
discussion. It's really one of the ones that
brings me back here every year because of
the -- well, in spite of the feeling that his
colleagues have, I enjoy the discussion with
Senator Balboni, because he's very
well-informed on the issue and in fact I
believe has written a law review article on
these types of issues.
But if the Senator would continue
to yield.
THE PRESIDENT: Senator?
SENATOR BALBONI: Madam
President, I yield.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: I could not
4786
fail to notice the haste in which we got off
of the subject of deterrence, which was the
basis for the last question, Senator. You
said you had some instances where you actually
thought that it was in the contemplation of
the perpetrator to be deterred by the fact
that they couldn't sue civilly if anything
happened to them -- I doubt if half of them
knew they could sue anyway -- based on the
results of what would be the commission of a
felony.
And my question is, were you really
going back and thinking about the Riggs case,
Riggs v. Palmer, where what you're saying is
when you kill your father because he didn't
give the inheritance you figured, well, even
if he died, I can get the inheritance anyway?
SENATOR BALBONI: Madam
President, through you, your characterization
of my discussion as being haste to avoid a
topic I refer to as emphasis. I chose to
emphasize other aspects, other beneficial
aspects of the adoption of the statute rather
than deciding that one aspect is not in fact
credible.
4787
They are all credible aspects of
this.
SENATOR PATERSON: Madam
President, if the Senator is willing to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: I am, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Can the
Senator cite for us instances where he
believes that it was in the contemplation of
the perpetrator that it would be better not to
commit the felony because they might not be
able to sue after the fact, what would be
termed the deterrence?
SENATOR BALBONI: Madam
President, it's difficult to cite common
sense. It is difficult to stand here and to
tell you what is in the operation of the mind
of a particular individual.
But what I will tell you is that in
my own personal history and experience, if you
said to the plaintiff's bar, You will not be
able to recover any judgment on behalf of an
4788
individual who commits a felony if that act
was in any way culpable in the injuries
sustained, I assure you from my experience and
my conversations that they would not bring the
cases.
That is my only citation.
SENATOR PATERSON: Madam
President, if the Senator will continue to
yield.
THE PRESIDENT: Senator?
SENATOR BALBONI: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: I didn't bring
this subject up, Madam President. Senator
Balboni brought this subject up. He said that
he could cite some instances. So I'm trying
to help him.
In the case Riggs v. Palmer, from
the 1890s, in this case someone killed their
father because they didn't get the
inheritance. I thought that perhaps the
perpetrator might have thought that at the
time of the commission of the act, even if
they were convicted and went to jail for a
4789
while, they would -- hopefully it would just
be a manslaughter, they could do ten years and
come out and take the inheritance.
Wouldn't be that different if the
person knew that they couldn't sue and
therefore might have eschewed the thought
about committing the crime? I'm only trying
to cite an example, Senator, because you
haven't given me an example. Do you have an
example?
SENATOR BALBONI: Madam
President, I appreciate the gentleman's
concern for my argument and my ability to
advance it in a cogent fashion.
Let me just say this. Two aspects
of your discussion need clarification. First
of all, there was -- the Riggs versus Palmer
fact pattern was not about an individual who
disappointed at the fact that they did not get
an inheritance, it was in the fact that they
were anxious about trying to receive an
inheritance and therefore tried to hurry up
the demise so they could get the estate,
because they figured the estate would go to
them.
4790
The second aspect, what you talk
about as being the deterrence, there wasn't
actually a civil suit; rather, a petition to
Surrogate's Court as an heir. So again, that
does not lend itself on all fours to this
particular argument.
What is of relevance is the court's
analysis and declaration of policy that this
court will not lend its assistance to those
who commit a felony. That is the reason why I
cite Riggs Versus Palmer. And I do not know
what effect, if any, the inability to bring
such a petition would have had on the
individual -- again, other than common sense.
SENATOR PATERSON: Madam
President, if the Senator will continue to
yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, I do.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: I'm going to
move to another subject, Madam President,
because Senator Balboni told me that he could
give me an example of a case that would be a
4791
deterrent.
My point is that if you're facing
all of the thrust of the criminal law and the
punishment, who would be deterred from
committing a felony by the further
understanding that you now can't sue the
victim that you perpetrated the felony
against? My common sense tells me that no one
would even think or factor it out to that
degree before committing a crime, that the
actual -- that the actual punishment or the
definition of the punishment that we would be
establishing would be more retribution, which
we might want to do.
There is retribution that's built
into our punishment. It's written into the
M'Naghten rules, along with deterrence and
detainment and other issues related to how we
penalize people for their actions.
I was just saying that I didn't
agree with Senator Balboni that deterrence is
an issue here, because my common sense tells
me that I don't know who thinks before they're
going to rob a bank that, you know, just in
case I fall down on my way out of the bank,
4792
maybe I can sue the bank. I just don't think
people about that. They think about going to
jail and whether or not they can get away with
robbing the bank. That was my point.
But let's move to 1975. It's a
year that's ingrained in Senator Balboni's
mind. And I want to know about the change
from the contributory negligence statute under
our civil law to the comparative negligence
statute. And I want to ask Senator Balboni,
why did we make that change?
Wasn't it true that at that time we
were unable to actually give the individuals
who were injured, even when they were
committing a felony, any other option when
there was excessive force used against them?
So a person that perhaps was robbing a house,
committed a felony but hadn't actually hurt
anyone, was then hit over the head several
times with a baseball bat and now needed
medical assistance for the rest of their life,
couldn't get anything out of the deep pockets
of the victim of the crime, but the
perpetrator of this offense, who may have
actually been a person that knew better, was
4793
wealthy enough to have helped the individual
and, even though this was a crime, there was
an excessive response to the crime -- isn't
that one of the reasons that contributed to
the change in the contributory negligence
standard to the comparative negligence
standard that we use today?
SENATOR BALBONI: Madam
President, I was not around in this chamber in
1975, so I don't recall what the actual
reasons were. However, I can point you to a
law review article in the Fordham Urban Law
Journal which talks, at Footnote 23, that
during the adoption in 1975 of the companion
sections of the New York Civil Practice Law
and Rules, Sections 1401 and 1402, enacted
around the same time as Section 1411, also
abolished the common-law rules of contribution
and permitted codefendants to seek
contribution from one another based upon the
degree to which each of them had contributed
to the plaintiff's injury.
These sections essentially codified
the decision of the Court of Appeals that had
rejected the common-law rules of contribution
4794
on the ground that they depended upon outmoded
notions that served as arbitrary or artificial
obstacles to the fair distribution of
liability.
In other words, the Legislature saw
as a whole the need to change a variety of
different statutes so that you could have a
comparative analysis and that you could take
the negligence of one defendant, the
negligence of another codefendant, and then
the negligence of a plaintiff and say, all
right, who is responsible? What degree can be
apportioned to each of them?
We do this in workers'
compensation, pursuant to case law. We should
do so also in straight negligence. I have no
problem with that analysis and the change.
And in fact, I think that it makes sense and
it's a fair result for law-abiding citizens.
My problem is that in the adoption
of Section 1411, we failed to continue
contributory negligence as it applies to the
felonious plaintiff. But I'll say this. I
believe that, at the risk of sounding
self-congratulatory, the language that is on
4795
our desks at this moment is superior to the
old contributory negligence language, in that
it adds the element of culpability, which
prior to that had really been in common law
and not statutory law.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: If the Senator
would be willing to yield again.
THE PRESIDENT: Senator Balboni?
SENATOR BALBONI: Madam
President, I yield.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Madam
President, I'm interested in this law review
article from the Fordham Law Review. Who was
the author of that article?
SENATOR BALBONI: I don't recall
at this time.
SENATOR PATERSON: Madam
President, I don't think that Senator Balboni
is being particularly responsive. I think
Senator Balboni was the author of that
4796
article, but he would rather that I enlighten
his colleagues -
THE PRESIDENT: I plead the
Fifth, Senator.
SENATOR PATERSON: Yeah, I think
that's the case. And quite frankly, in all
seriousness, he's done a tremendous amount of
work in this area, and it's actually my honor
to question him on some of these issues.
Senator, I want to know since 1975,
have there been a plethora of cases? I mean,
I mean the McCummings case which we described
earlier really aggravates all of us to read
about it. But has this been a tried and true
remedy for the perpetrator of felonies? Or is
this something that -- in other words, can you
approximate for me, other than our willingness
to perhaps address the law in this particular
incident, how many times this has actually
occurred that forces us today as lawmakers to
take an action?
SENATOR BALBONI: Madam
President, since 1975, by my count, there have
been nine cases, many of them at the Appellate
Division or Court of Appeals level, including
4797
McCummings, that have specifically addressed
this issue.
Does this happen every day? No.
But not including that nine was the case that
I tried, which was case of Key versus the
County of Nassau. And I also know, through
anecdotes from other colleagues, cases that
are not reported where this has also been an
issue.
Is this something that happens
every single day in our courtrooms? No. But
I would argue, and do so with the proposal of
this particular piece of legislation, that
this is something that needs to be done not
because there is a huge number of cases that
are out there that do this, but rather because
this sends a clear and consistent message that
people are going to be treated the same in
this state.
And as I said before, this is a
codification of common sense. So in that
regard, I think that we've had sufficient
enough fact patterns and liabilities that make
this an issue.
But let me just comment on
4798
McCummings. Though the fact pattern in
McCummings -- that is, that Sean Dunphy,
standing on the IRT subway platform, assaulted
by Bernard McCummings, had his head bounced
off the concrete several times, hospitalized,
and then upon the arrival of transit police
flees and is shot and then sues the City of
New York and recovers, after it goes to the
Appellate Division, $4.3 million, when the
victim, Sean Dunphy, got nothing, that fact
pattern always makes us angry. But the
difficulty with trying to utilize that fact
pattern alone is because if you take a look at
the trial transcript, there was differing
testimony as to whether or not McCummings was
fleeing and had his back turned or whether or
not he was trying to advance on the officers.
So there's a separate issue there
that muddies the waters, as it were, to make
this a crystal-clear-case fact pattern that
promotes this idea. The much better fact
pattern is Barker versus Kallash.
SENATOR PATERSON: Just as a
follow-up, Madam President, if the Senator
would yield.
4799
SENATOR BALBONI: I do, Madam
President.
SENATOR PATERSON: Senator, the
victim of the original crime, Dunphy, had the
option of suing McCummings, didn't he?
SENATOR BALBONI: Yes, he did.
SENATOR PATERSON: If the Senator
would continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, I do,
Madam President.
SENATOR PATERSON: Just a point I
wanted to clear up. I was talking to Senator
Connor about this.
This scenario that we discussed
about the wrongful death action, actually that
wouldn't really come up, would it, because
once the -- the decedent would never been
convicted, so therefore the bill you're
proposing is not -
SENATOR BALBONI: That's correct.
That's correct.
SENATOR PATERSON: Okay, good.
Then one final question, if the -
4800
SENATOR BALBONI: But we didn't
talk about a timetable as to when the death
would occur.
SENATOR PATERSON: Right. Right.
But it would be more likely that it would have
been before it was time to convict the -
SENATOR BALBONI: Depending upon
the fact pattern in the -- or the
hypothetical.
SENATOR PATERSON: Right. Madam
President, one final question for Senator
Balboni.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: I yield.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, I'm
just still uneasy -- and you certainly
enlightened me with that federal court option.
That's something that we hadn't talked about
in our past discussions on this.
But I'm still uneasy about what I
consider to be an open season on perpetrators,
when sometimes those crimes that meet the
4801
threshold test for a felony -- and we're in
here every day finding new ones. Yesterday we
were talking about different elements of
identity theft which would be a felony.
So someone acting under someone's
else's identity, you realize someone is
impersonating you, they're at a bank, and you
harm them in some way -- it just makes me
uneasy with how far this could actually go.
And I just want you to try to
assure me, and perhaps relieve some of my
colleagues, that there are some institutional
protections from that excessive reaction to a
felony being utilized.
SENATOR BALBONI: Madam
President, your answer is contained within the
concerns you've expressed today. That is that
jail is a much greater deterrent than civil
remedy. So the fact that there would be an
open season on individuals acting in a manner
that would be injurious to felonious
plaintiffs, that will not occur because,
again, people are afraid of going to jail
themselves.
But likewise, the concern is
4802
answered in the analysis by the court as to
the felony and as to the culpable nature of
the action. That will allow a court to decide
upon a motion for summary judgment at the
outset of the case, whether or not this case
is suitable for dismissal. That will be the
protection against any, quote, open season.
Madam President, thank you.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Thank you, Madam
President, on the bill.
I intend to oppose this, because I
think we have a misplaced focus here. I heard
Senator Balboni discuss deterrence, deterrence
to crime. And indeed, much of the Penal Law
is intended and its punishments thereunder is
intended not only to punish but to deter
people from such conduct.
And I think in the modern emphasis
in personal injury law, that it's all about
money and compensating victims, that we've
forgotten that in the great common-law
tradition of torts, certain doctrines evolved
that were not only designed to compensate
victims or the injured but were designed to
4803
deter certain dangerous conduct by the
tortfeasors.
That's why in various circumstances
there is imposed on the defendant an absolute
liability for certain inherently dangerous
conditions. It's not just about the injury
that gets inflicted in that case. The
absolutely liability is imposed because
there's a recognition that that tortfeasor
maintain an inherently dangerous condition so
recklessly dangerous that absolute liability
is imposed.
And it's not just to compensate the
victim. It's a warning to all who would
maintain such conditions that present a danger
to the public at large, to virtually anyone
who should come upon those conditions that
there's an absolute liability principle.
So deterrence of bad conduct,
deterrence of inherently dangerous conduct or
the failure to correct it by those responsible
for such conditions imposes an absolute
liability to deter that, because we don't want
the public at large at risk.
And a classic example, Madam
4804
President, a classic example of that is the
spring gun or booby trap doctrine. Yes, a
homeowner has a right to defend his or her
home from a trespasser, from an egressor, from
a burglar. But the law has always said if you
employ such an automatic device -- a booby
trap, a spring trigger on a shotgun pointed at
the door -- that you're absolutely liable, no
matter who should walk in there. And the law
has compensated, traditionally, burglars who
are injured by that.
Why? Not because, not because
there was any great sympathy for the burglar
but because there was a desire to deter all
homeowners from planting such traps. Not to
protect burglars. Oh, the press talks about
the time the burglar gets caught in the booby
trap. But the doctrine of law that imposes
absolutely liability was designed to deter
people from putting those booby traps in there
because innocent people may just
indiscriminately be injured.
Well, one may say, Well, innocent
people? If you didn't go into the house.
Well, children who are unaware, venturesome,
4805
really don't have the capacity or aren't
trying to burglarize might feel an apparently
abandoned house is an attractive nuisance,
let's peek in, let's look in there. People in
danger may take flight and attempt to take
refuge in such a house.
THE PRESIDENT: Senator Balboni,
why do you rise, sir?
SENATOR BALBONI: Would Senator
Connor yield for a question, please?
SENATOR CONNOR: Absolutely.
THE PRESIDENT: You may proceed,
Senator.
SENATOR BALBONI: Senator Connor,
are you aware of the mens rea requirement for
the prosecution and conviction of an
individual for a criminal act?
SENATOR CONNOR: Yes, I am.
SENATOR BALBONI: Madam
President, through you, would the Senator
yield to another question, please?
THE PRESIDENT: Senator, do you
yield?
SENATOR CONNOR: Yes, Madam
President.
4806
THE PRESIDENT: You may proceed,
Senator.
SENATOR BALBONI: Senator Connor,
in the analogy that you are making about
children trespassing upon land, would it be
your opinion that those children would have
the sufficient mens rea in order to be
convicted under a trespass statute?
SENATOR CONNOR: No, Madam
President, it's not.
And, Senator, this demonstrates,
Madam President, that Senator Balboni, fine
personal injury lawyer and expert though I
know he is, is missing my point.
The point is not that children who
stumble in there and don't have the mens rea
to commit a crime and get shot by the spring
gun shouldn't be compensated.
The point is you don't want anybody
shot automatically. You don't want anybody to
open a door -- a firefighter, a person taking
refuge, perhaps from an attacker chasing him
or her, to suddenly take the nearest refuge,
open the door, and get a shotgun blast in
their face.
4807
You don't want anybody to -- it's
not about compensating them after they're
shot. It's about deterring the homeowners
from setting such traps. And one way you do
it is you deliver the message that you'll
never benefit by this, because no matter who
gets shot by it, that trap gun, that spring
gun didn't know it was a burglar. You're
setting up an inherently dangerous, deadly
condition that will inflict its damage on
anyone who enters upon that premises.
And we don't want you to do that.
We don't want homeowners to do that, because
we don't want to have to worry about
compensating the parents of dead children who
wander in there, and we don't want to have to
worry about compensating the family of a
firefighter who goes in there when there's a
fire. We don't want those people to be
injured.
The way we want to prevent it is we
want to deliver the message, a deterrent -- a
deterrent. And tort law is not only to
compensate victims and spread risk, it is to
deter bad conduct.
4808
And we do that by saying if you set
that kind of trap, it doesn't matter who falls
into it. They get automatically compensated.
You're automatically liable. Not based on
their mens rea, based on the fact that you set
this condition that would indiscriminately
shoot anyone who walked in there.
And that's the very point. It's
not whether Senator Balboni's law would
prevent the parents of a child who wandered in
there and got shot by the spring gun -- the
point is, we don't want the spring gun to be
there. And there are similar examples
throughout tort law where absolute liability
is imposed.
And the reason isn't just to
compensate, it's to deter people from setting
or maintaining those inherently unsafe
conditions where the public at large, where
it's mere accident, saint or sinner, wanders
into that situation, they're going to get
injured by that condition.
And it's not about whether the
person who got injured is a saint or a sinner.
It's about deterring the people who are
4809
responsible for that condition from doing
that.
THE PRESIDENT: Senator
Marcellino.
SENATOR MARCELLINO: Madam
President, just to interrupt for a moment,
there will be an immediate meeting of the
Civil Service and Pensions Committee in the
Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Civil Service and
Pensions Committee in the Majority Conference
Room.
Senator Brown.
SENATOR BROWN: Was Senator
Connor finished, Madam President? Okay.
Madam President, thank you.
Through you, would Senator Balboni yield for
several questions?
THE PRESIDENT: Senator Balboni,
will you yield for a question?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed
with a question, Senator.
4810
SENATOR BROWN: Thank you, Madam
President.
For me, this debate really has been
quite fascinating, and I've tried to listen to
it intently.
But I'm trying to understand,
Senator Balboni, are you saying that through
this legislation you can legislate common
sense in the case of a convicted felon getting
injured during the commission of a crime and
then trying to sue and this preventing that
convicted felon from being able to do so?
SENATOR BALBONI: Yes, Madam
President.
SENATOR BROWN: Through you,
Madam President, if Senator Balboni would
continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: I yield.
THE PRESIDENT: You may proceed,
Senator Brown.
SENATOR BROWN: And not being a
lawyer, and listening to this debate being
carried by lawyers, and listening to the
4811
common-sense portion of this, it seems to me
that it kind of removes the common sense.
Because, like Senator Balboni, I
certainly don't want to see a felon, someone
convicted of a crime, being able to sue an
innocent citizen and get some benefit during
their commission of a crime.
But Senator Balboni, take a
situation where someone breaks into my house,
which I can tell you will piss me off. And I
am able to overpower this person, and I tie
this person up. And then in my anger, I
decide, well, I'm not going to turn this
person over to the police. They broke into my
house. And if I turn them over to the police,
they might get a slap on the wrist, and they
might be let out. So what I'm going to do, I
am so angry, and I never want to run the risk
of this person ever breaking into my house
again, I'm going to kill them. I'm going to
kill them and untie them and, when the police
show up, I'm going to say that there was a
struggle, they broke into my house, and the
only thing that I could do to protect myself
and my property is kill this person.
4812
Doesn't that felon, that convicted
felon, even though they broke into my house,
shouldn't they be protected against me just
killing them for no reason?
SENATOR BALBONI: Madam
President, in response to the gentleman's
question, I would respectfully refer to you
Black's Law Dictionary and a discussion of
culpability. It is an analysis that is
helpful in this argument.
Because in the fact pattern that
you describe, there would be a break in
responsibility. As the Lieutenant Governor
knows, having sat on the Supreme Court, the
court is in a position to decide what is
culpable conduct and what is not culpable
conduct.
It would be my argument and my
experience that should you be in court and
should you be faced with the fact pattern that
you describe, the point at which you had the
individual tied up is the point at which the
culpability of the trespasser and the robber
would cease.
And that is the very argument about
4813
police brutality that must be focused on that
Senator Paterson mentioned before. Once you
are in custody, the culpability -- in other
words, the responsibility for your own actions
as a perpetrator ceases. You are now in the
control of someone else. The law now puts a
division between one set of conduct and the
other.
That's what the word "culpable"
means. That's how it would be used in this
analysis.
SENATOR BROWN: Through you,
Madam President, if Senator Balboni would
yield for another question.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Brown.
SENATOR BROWN: And I appreciate
Senator Balboni explaining that and explaining
how culpability would work.
But in that case, the person has
still been killed. They cease to be culpable
4814
after I tie them up, but I still go ahead and
kill them. Would their family then not have
the option of suing me under this legislation?
SENATOR BALBONI: No, they would
have the ability to bring a lawsuit.
SENATOR BROWN: In this
particular -
SENATOR BALBONI: Yes. The law
would not be changed. They would be innocent
in that regard, because there would be a break
in the culpability.
SENATOR BROWN: Through you, Mr.
President, if Senator Balboni would yield for
a question.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield for a question?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: Senator, if you
would also, could you explain to me the
defense that was available to a civil action
for assumption of risk, that has been changed?
That no longer exists?
4815
SENATOR BALBONI: Yes, that no
longer exists.
SENATOR BROWN: What was that,
Senator, if you could explain it to me, as a
layperson?
SENATOR BALBONI: Assumption of
risk is defined as containing four elements.
The plaintiff has the knowledge of facts
constituting a dangerous condition. He knows
the condition is dangerous, he appreciates the
nature and extent of the danger, and
nonetheless he voluntarily exposes himself to
that danger.
That is the common-law concept of
assumption of risk. That was contained in
Section 1411 prior to the 1975 enactment.
That was changed when we adopted a
comparative negligence scheme; that is, that
you wouldn't be barred by your own conduct of
the plaintiff. Rather, your actions would be
taken into account and compared to the actions
of the defendant to see whether or not you had
any responsibility in your own activities.
SENATOR BROWN: Through you, Mr.
President, if Senator Balboni would yield for
4816
another question.
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: So then, Senator,
you're saying that the assumption of risk
provision was preferable to the comparative
negligence provision that presently exists?
SENATOR BALBONI: No, Senator, I
do not. I say that it is appropriate in the
analysis of conduct as between innocent
individuals, innocent litigants. It is not
appropriate in a discussion of a plaintiff who
is in fact a felon.
SENATOR BROWN: Through you, Mr.
President, if Senator Balboni would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: Mr. President,
I yield.
ACTING PRESIDENT MEIER: The
4817
sponsor yields.
SENATOR BROWN: I understand your
response, Senator, and I appreciate that.
So previously we had assumption of
risk. That was changed to comparative
negligence.
SENATOR BALBONI: Actually,
Senator, if I may stop you, it was really
contributory negligence is the more operative
phrase.
SENATOR BROWN: Contributory?
SENATOR BALBONI: Yes.
SENATOR BROWN: Okay, so it's -
SENATOR BALBONI: Contributory
negligence was changed to comparative
negligence under the 1975 amendment.
SENATOR BROWN: And contributory
negligence, contributory negligence was
preferable to comparative negligence?
SENATOR BALBONI: As it relates
to the felonious plaintiff.
SENATOR BROWN: As it relates to
the felonious plaintiff.
But you don't think that
contributory negligence should apply to the
4818
felonious plaintiff?
SENATOR BALBONI: No, I do. I
do.
SENATOR BROWN: Okay. That -
through you, Mr. President, if Senator Balboni
would yield.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR BROWN: Then if you do,
Senator Balboni, why does not the law as it
presently exists, providing for contributory
negligence, suffice in cases such as this?
SENATOR BALBONI: The law -- Mr.
President, through you, the law of
contributory negligence is no longer in
statute. It was done away with in 1975.
SENATOR BROWN: Okay. Thank you,
Senator. Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
4819
Mr. President. Through you, if the sponsor
would yield.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: Mr. President,
I yield.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Isn't this
really a statute that simply prevents a court
from doing what I take it you support in most
contexts, which is weighing the comparative
fault of the two parties involved?
SENATOR BALBONI: Yes.
SENATOR SCHNEIDERMAN: And isn't
it the case that if this statute were passed,
someone committing even the lowest level of
felony who was then apprehended and perhaps,
as Senator Brown posited, murdered by the
person who captured him -- with no break in
the action, let's assume -- that person would
be unable to get their claim even heard in
court if this bill were passed, isn't that
true?
SENATOR BALBONI: I have no
4820
information to that effect. I don't know the
fact pattern. And that's the problem with
these discussions. They're hypothetical in
nature.
And that's why this statute would
work, because it would take the hypothetical
fact situations when they became real, and
would allow the court the ability to perform
the analysis on a case-by-case basis and
determine what is in fact dismissible and what
is not.
See, that's why I was so surprised
by Senator Connor's analysis that this bill
does what it does. See, Senator Connor's
analysis would have it that we recognize
businessmen and place upon them absolute
liability for transporting gasoline. That's
what we do in this state. We say if you
transport gasoline and the tanker explodes,
you are absolutely liable for any injuries you
have.
But at the same time, though
comfortable with that imposition of strict
liability, absolute liability, Senator Connor
would not have that same liability attach to a
4821
felon. That surprises me.
And what also surprises me is that
Senator Connor's argument was undercut by
Senator Paterson when he talked about the
spring gun and the deterrence issue. Because
Senator Paterson recognized, as I'm sure most
of us do, that the deterrence factor is not in
being sued, it is, rather, in going to jail.
Because the typical trial lawyer -
and I mean this as an advocate, the typical
trial lawyer perspective is that the ability
to bring a lawsuit is sacrosanct.
Senator Schneiderman, I submit to
you it is not. Because you can initiate all
the lawsuits you want, you may never recover.
The defendant could be in fact judgment-proof,
without assets. So where -- what deterrence
factor would there be in suing an individual
with no money?
But that is exactly what's wrong
with Senator Connor's analysis, that he does
not appreciate the fact that the lawsuit, the
ability to bring a lawsuit, is not the Holy
Grail when it comes to deterrence or in making
an individual whole.
4822
And that's why this case and this
bill really allows our jurisprudence, when it
refers to our civil liability system, to bring
back common sense.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the
sponsor would continue to yield.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: Mr. President,
I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
I was not present for the discourse
of Senator -- between yourself and Senator
Connor or Senator Paterson. But I think that
the question I was asking, which I don't think
you've answered yet, is fairly
straightforward.
This bill puts a proviso in
essentially removing your right to bring a
civil action, providing for attorney's fees to
punish if you attempt it, if any culpable
conduct of the claimant or decedent resulting
4823
in a felony conviction shall -- it's a
complete bar.
Now, if someone is a burglar or
someone is committing some other action, let's
posit burglary, breaks in through the
window -- now, when I working in a prison,
there were several individuals who were
actually in prison for breaking into people's
homes while the people were actually there.
This was a very dumb set of prisoners, I will
admit, but they're entitled to rights without
regard to their intelligence.
Say someone breaks into a home -
and this happened in one case where the
resident of the house was a police officer and
had the other police officers in town in his
backyard for a barbecue.
Someone breaks into a house or
opens a door and goes in, trespassing -
felony possibility. Maybe even there's
someone who's just sitting in the car waiting
for the person to come out who could be
involved as a -- be convicted of a felony as a
coparticipant, even though he doesn't do
anything in connection with the house or the
4824
residents.
The person in the house, having not
studied adequately the Eddie Eagle classes,
takes out a gun, shoots the guy who broke into
the house, runs out into the street, shoots
the guy who's in the car.
Now, this would bar the person who
was in the car, to the extent there was a
felony conviction for his participation in
this burglary, from bringing any action, or
his family from bringing any action; is that
not correct?
SENATOR BALBONI: That is wrong.
SENATOR SCHNEIDERMAN: That is
wrong.
SENATOR BALBONI: Absolutely
wrong.
SENATOR SCHNEIDERMAN: Well, I
agree it's wrong. But would that be what your
bill provides?
SENATOR BALBONI: With your fact
patterns and your analysis, absolutely
inaccurate. And let me tell him why.
ACTING PRESIDENT MEIER: Just one
moment, Senator.
4825
Senator Marcellino.
SENATOR MARCELLINO: I hate to
interrupt this law school discourse, but we
have some business to attend to.
There will be an immediate meeting
of the Education Committee in the Majority
Conference Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Education Committee
in the Majority Conference Room.
Senator Balboni.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President -
SENATOR BALBONI: Mr. President,
by way of an answer. I'd like to make an
answer.
Here is why your analysis is
incorrect. Again, it goes to the term
"culpable." The person sitting in the car,
that their actions of sitting in the car,
though they may in fact be charged with a
felony, are not culpable in their injuries.
And might I also remind you,
Senator, that in this state it is the right of
every New Yorker to defend their home. Did
4826
you know that? Are you aware of that? That
the family sitting and watching this debate,
that, God forbid, someone were to enter into
their homes at night, there is no duty to
flee. Are you aware of that?
SENATOR SCHNEIDERMAN: Yes,
through you, Mr. President, I am aware of
that.
SENATOR BALBONI: Okay. Now,
that's important in your fact pattern, because
the law recognizes no civil or criminal
liability if someone in fact defends their
family in the middle of the night when a
robber breaks into the house.
And that's exactly the kind of
egregious actions we're talking about. Now, I
know that it is a trial lawyer's attempt -
and I mean that in the best way -- to try and
find a fact pattern that would make this law
not apply in the same -- with the same equity.
But I'll tell you what the intent
of the law is, and that's important. The
intent of the law is to address the most
serious of activities that are criminal in
nature and take away the right to sue. That
4827
is the intent of this law.
Now, the fact that there may be
individual situations and examples that you
and I, with your greatest imagination, cannot
contemplate, that's why we give to the courts.
You and I cannot legislate every fact pattern,
and we're not supposed to. What we're
supposed to do is establish policy.
And, Senator Schneiderman, I put it
to you, I doubt very much that you'd be
against taking away the right to sue from
someone who is a convicted felon or take away
their right to vote or take away their right
to enter into a contract and have those
contract rights enforced, or any of the other
statutes that are already in place. I doubt
very much that you, as an upstanding citizen
and Senator and public representative, find
those rights should be preserved for the
felon.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
4828
SENATOR BALBONI: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: I
certainly don't accept the notion that you in
your wildest imagination could not come up
with all of the relevant fact patterns here.
My question simply is this, and
it's the same question I've asked originally,
and I will just rephrase it, because I believe
I'm having trouble getting an answer. Any
culpable conduct is an extremely low standard.
Any. Not culpable conduct, any culpable
conduct.
Now, in the fact pattern that we
were positing before, if someone is the
getaway man, that's culpable conduct. You're
waiting for your friend the burglar to come
out of the house.
It's an -- I see gesticulation,
head shaking. Mr. President, could I get a
response to that orally?
SENATOR BALBONI: You're wrong.
SENATOR SCHNEIDERMAN: Through
4829
you, Mr. President, why am I wrong?
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: You're wrong
because your analysis of any culpable conduct
is not necessarily what the court's analysis
would be. You're trying to take a statutory
view of that phrase. That's not appropriate.
It is done on a case-by-case basis,
Senator Schneiderman. There's no other way
for us to legislate. We place with the judges
the ability to make that determination on fact
patterns that are not hypothetical but that
are real and before them. That's the only way
we can mete out justice.
And in your case, the wheelman,
what culpable conduct would he have done in
terms of someone coming out and shooting him
in a car? That's absurd.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, I think the difficulty
here, and the reason I'm concerned about this,
is that this statute actually takes away
judicial discretion to make these
determinations.
4830
You're saying any culpable conduct.
Judges have differing views on what
constitutes any culpable conduct. But for
many people, pulling up in the car and being
the getaway man for a burglar -- let's look at
the language used. Any culpable -- not just
any culpable conduct, in your bill. It says
any culpable conduct resulting in a felony
conviction.
So if there is a felony conviction
involved, as I believe -- correct me if I'm
wrong, I think if you're the getaway man in a
burglary and you drive up and you're ready to
take the burglar away, that could be a felony
conviction. How in the world, under your
statute, would a judge have the opportunity to
review the facts and weigh the relative
merits, because you're taking that ability
away from the court?
SENATOR BALBONI: Mr. President,
through you, I would recommend to the
distinguished Senator that he review the case
law as it relates to the definition and
application of the term "culpable." I assure
you, you will find a plethora of case law that
4831
limits the discussion of culpable.
And I apologize, I don't have the
cites in front of me, but I can get them for
you.
SENATOR SCHNEIDERMAN: I'm
prepared to wait, Mr. President, if you want
to go to the library.
SENATOR BALBONI: No, the two
hours will come and go. I apologize, Senator,
as much as I adore this debate.
And that is really the crux of your
issue as to what is culpable, what is
relevant. But really, the case law has
specifically spelled out in many instances
what is culpable conduct. The first case I
would turn you to is Palsgraf versus Long
Island Railroad. See, I do have a cite. That
has a wonderful discussion of the term
"culpable conduct." And I would say that if
you would analyze that and the subsequent case
law, you'd find a very clear decision by the
courts in this state.
But let me give you one true case.
Jamie Key, in 1980, was living in a community
in Nassau County. And he drank alcohol, got
4832
intoxicated, and got into an argument with a
cotenant. He picked up a knife, he went after
the cotenant, a neighbor called the police
officers, the police officer arrived at the
scene, and he ran at the cotenant with all
intents that could be perceived by the
witnesses to murder him, or at least stab him.
And when, as the officer retreated
and yelled, "Drop the knife, drop the knife,
drop the knife," Mr. Key continued advancing
upon the officer and the person behind him,
and he was shot by the officer. Mr. Key was
convicted of a felony of menacing a police
officer.
Nonetheless, Mr. Key brought a case
against the Nassau County Police Department,
and I was the attorney assigned to defend the
county.
I brought a motion for summary
judgment, and it was denied on the basis of
the fact that Section 1411 of the Civil
Practice Law and Rules denied the court the
discretion to grant such a motion, since the
conduct of the plaintiff must be compared with
the conduct of the officer.
4833
That case ended after a month,
greater than a month of trial, 23 witnesses,
enormous expense in terms of the costs for the
county, with a defendant's verdict. That is
the case which is the genesis of this bill.
That case should have been dismissed. It was
not.
This law will allow the court
greater discretion in applying either
contributory negligence as a standard or
comparative negligence as a standard upon a
felonious plaintiff.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor will
continue to yield.
ACTING PRESIDENT MEIER: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
I find that analogy -- and I too
carry resentments relating to cases that I
lost when I was trying cases. But I do think
4834
that your assertions about what this bill
would do don't line up with the facts.
From what you're saying, justice
was done in that case. Maybe justice
sometimes cost a little more than we would
like if we were in a totalitarian regime or a
regime where we make it difficult for people
to go to court, or a regime under the English
system where you're punished if you're the
loser in a case. But that's the American
system of justice.
I mean, why isn't -- is it only a
matter of the inconvenience and the expense of
not being able to get a summary judgment
granted quite so easily that makes the
operation established in Barker v. Kallash and
other cases like this barring a plaintiff from
recovery, quote, whose injuries are the direct
result of his commission of serious criminal
or illegal conduct, close quote.
Why doesn't that do the job, while
still preserving a plaintiff's right to his
day in court so a judge can evaluate whether
serious criminal or illegal conduct was at
issue instead of any culpable conduct?
4835
SENATOR BALBONI: Mr. President,
through you, I would suggest that the
gentleman has a problem not with this statute,
not with the proposed statute, but you have a
problem with the "unworthy heir" doctrine that
we codified in 1994, Section 4.16 of the
Estates, Powers and Trusts Law, that you have
a conflict with Barker versus Kallash, that
you have a conflict with Riggs versus Palmer,
that you have a conflict with the extensive
body of law that the state has developed which
says the very thing that you oppose.
You call it draconian. Many people
in this state call it common sense. That is
your right. But I assure you, if you were to
ask somebody who was the victim of a robbery
in their house whether or not they should be
subject to any civil liability as a result of
that person entering their house, they would
answer no.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
4836
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: I think
that what we have here is -- to me, I don't
see how the statute that you're proposing
achieves the result that you're talking about.
I still do not understand how a statute that
makes it impossible for a court to undertake
the inquiry you're describing by posing such a
low threshold accomplishes its goal.
If you will, let me posit another
hypothetical. What if there is a drug deal,
two drug dealers, a deal goes bad, arrests -
and as in the movies, while the police are
grappling with the two criminals, one shoots
the other. Now, according to this statute,
the drug dealer with the gun couldn't be sued;
is that correct?
SENATOR BALBONI: No.
SENATOR SCHNEIDERMAN: Well,
could you please explain to me that -- the
person who was shot was engaged in culpable
conduct resulting in a felony. How could it
4837
be possibly be an exception to this rule?
Unless there's some other -- you seem to be
suggesting there's some hidden exceptions that
aren't in the bill itself but embedded in the
body of New York case law. How would that not
fall within this section?
SENATOR BALBONI: It's the drug
dealer's exception.
SENATOR SCHNEIDERMAN: Ah, the
drug dealer's exception. I'm sorry, through
you, Mr. President, I don't seem to have
gotten the full copy of the legislation,
since -
SENATOR BALBONI: Well, I am
concerned that you are taking on the cause of
the drug dealers.
But notwithstanding that, I will
answer your question. Like I said, it's very
difficult to apply legislative intent in a
statutory enactment to an individual
hypothetical situation. You've now provided
this body with all of the facts. In addition
to which, you are asking for myself as the
sponsor to now operate in a judicial capacity.
I am ill-equipped to do so. We do not have
4838
witnesses, we do not know what testimony would
come in, we have no idea how the case would be
presented.
Therefore, you are guilty of the
same sin as Senator Connor, assuming that the
ability to bring a lawsuit in and of itself is
a remedy. It is not.
Therefore, I'm unable to address
whether or not the application of this statute
to that hypothetical scenario is in any way
appropriate.
SENATOR SCHNEIDERMAN: Well,
through you, Mr. President -
ACTING PRESIDENT MEIER: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: I trust
that our rule regarding civility will govern
your assertions as to my taking the side of
drug dealers as we proceed.
I am merely trying to illustrate
the most fundamental of American principles
4839
regarding our civil justice system, which is
that even a plaintiff or a party who is not
free of conduct has access to the courts, has
the ability to make their case and show that
they have a claim that should be heard.
I do not for a moment accept the
fact that you're unable to address these
hypotheticals, because with the finely keen,
honed legal mind that you have, I think you're
avoiding the reality that there is no drug
dealer exception, that that person in the
hypothetical I described would be barred from
bringing a civil action.
Once again, isn't this statute a
statute that only makes -- that makes it
impossible to get the full hearing that maybe
was inconvenient for you in the case you
described in Long Island -- but you achieved
the right result from your point of view in
that. The only difference now is that a judge
would never hear the competing claims. Isn't
that all this statute does?
SENATOR BALBONI: Mr. President,
by way of an answer, Senator Schneiderman, we
are at a fundamental point of disagreement,
4840
and so let me state it clearly.
It is my position that if you
commit a felony, you cease to have rights.
That is my assertion. That is what is
embedded in our statutory law, it is what has
been articulated in our common law.
And that if you believe that
someone who commits a felony should retain the
right to sue, then you are free to vote no on
this particular measure. But I also suggest
that perhaps you should introduce legislation
to allow felons to vote or to allow felons to
sue on a contract, which is illegal, or to
allow people to bring an action to recover
insurance proceeds after they've committed a
fraud, or any of the -- or, like I said, the
unworthy heir doctrine, which would allow
beneficiaries of an estate who have committed
a crime from being able to bring those type of
proceedings.
I disagree with you.
SENATOR SCHNEIDERMAN: Well,
through you, Mr. President, I appreciate the
enumeration of the disabilities under which
felons labor in the State of New York.
4841
The point of our civil justice
system, which I believe this legislation,
however well-intended, is an attack on, is not
just whether a felon gets their rights heard
in court. I think that's a good thing. It
also has to do with standards of culpable
conduct for the defendants who now will be
able to avoid calling witnesses, having a full
and fair hearing in front of a judge. They
can knock them out on summary judgment.
You are in fact -- through you, Mr.
President, I believe the sponsor is in fact
limiting the liability of another culpable
person in the name of restricting the rights
of a felon. And I don't see how you can
possibly avoid, although you can evade -- and
I don't really understand the Palsgraf analogy
at all. Negligence of the heir is not enough?
I mean, I've been thinking about that, and I
can't figure out how that fits into this
either.
But I don't really understand the
basis for this attack on the civil justice
system. If one person does a wrong, why
should we let another person who commits an
4842
independent wrong off the hook? Can you
answer that question?
SENATOR BALBONI: Mr. President,
once again, there is a fundamental
disagreement. Our civil justice system is
created for the benefit of our citizens. It
is okay in our system of justice to treat
felons differently. We do it all the time.
And I would respectfully refer the
gentleman to Section 3212 of the CPLR as to
what constitutes a motion for summary judgment
and its attendant doctrines -- that you need
an affidavit sworn to by an individual who has
actual facts and knowledge of the facts in
order to survive a motion for a summary
judgment. That is the basis upon which the
court would make this analysis.
Like I said, it is the comparable
and the culpable analysis that the court would
do at the outset to determine whether or not
the felonious activity is indeed relevant.
I'm attempting to use other words so we don't
get caught up in this "culpable" concept,
because that seems to be giving people
difficulty.
4843
And therefore, again, you know,
you've got to take a look at the job that a
justice has to do when considering any
individual case that's brought before them.
So I do not believe that this
limits today -- and Senator Schneiderman, your
characterization of a lawsuit as being
convenient or, you know, avoiding a lawsuit as
a mere convenience flies in the face of the
statistics about the costs that municipalities
undertake in trying cases, about the costs
that insurance companies and doctors and all
the individuals -- and litigants and
witnesses -- you know, to just slough it off
and say, Oh, a trial is not that big a deal,
just go forward with it, well, that's frankly
kind of an irresponsible statement.
Our justice system is a sacred
thing. It should be utilized for the benefits
of our citizens, not for the benefit of our
felons.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor will yield
for another question.
ACTING PRESIDENT MEIER: Senator
4844
Balboni, do you yield for another question?
SENATOR BALBONI: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: You
mentioned before that the judicial analysis
that would into the decision on a motion for
summary motion would involve whether the
culpable conduct at issue was relevant to the
felony. I do not see any provision in the
statute for that. Where do you get that?
If you were going to modify the
statute, say something like any culpable
conduct relevant to a felony that was -- you
know, that the person was convicted of, that
might be a different issue. But I don't see
any requirement for relevance. It just says
any culpable conduct resulting in a felony.
Is there something I'm missing regarding
relevance?
SENATOR BALBONI: Yes, Black's
Law Dictionary. And the case law.
SENATOR SCHNEIDERMAN: Well,
through you, Mr. President -
4845
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
I appreciate that.
And I'm not -- I haven't memorized
Black's Law Dictionary or the case law in this
area, but I have a fair amount of experience
at reading statutes. And I -- actually, let
me let Senator Balboni sit down.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I
understand Senator Balboni's concern. I just
don't see how this proposed statute fairly
accomplishes the issues that he is concerned
with.
Yes, our civil justice system is
burdensome, it is expensive. Our system of
voting is also burdensome and expensive. But
the civil justice system in this country is
4846
really one of the great creations of American
democracy.
And I respectfully submit that
efforts to limit people's access to the
courts -- for someone regardless of their
station in life to be able to go to court and
say, Yes, I can be heard, I can have a claim
heard, it doesn't matter if I'm poor, it
doesn't matter if I am the victim of
circumstances resulting in me, you know,
perhaps being engaged in some sort of criminal
activity, I can be heard, and my relative
culpability, my fault will be considered and
weighed against the fault of someone else in
that civil proceeding.
That I do think is a precious
right. And I think statutes like this
proposed statute that limit people's access to
the courts do a great disservice to really the
greatest institution of our government, which
is a system that has enabled us to actually be
a government of laws and not of men. The rule
of law is paramount.
And when you start limiting the
access of someone who you don't approve of,
4847
we're on a slope that leads to all sorts of
unpleasant consequences, and I think history
speaks well to that.
Ah, thank you. I now am going to
read a few short selections -- no, just
kidding. I will have this available for
further questions.
I think that this is a mistake, and
I think it's a mistake partly because -- I
appreciate Senator Balboni's desire for
everyone to get summary judgment and deny
every felon the possibility for a hearing even
under the most egregious circumstances where
the conduct of the defendant is completely
disproportionate to the conduct of the felon.
But I believe that the current
state of our law that provides for already
limitations on the recovery by someone who has
committed a crime more than covers this issue.
And I think that this opens the door to a lot
worse things.
I think what we should be working
on -- and we just came from a long session of
the Codes Committee, hearing about the
Rockefeller Drug Laws. We should be working
4848
on the issue of opening up the courts so that
we can see what is actually happening to
people, not closing it off.
I mean, there was a lot of
discussion in the hearing on the Rockefeller
Drug Laws of the fact that what is defined as
a felony, what is defined as a serious felony,
may in fact be quite arbitrary in certain
areas in the State of New York. And I think
that that is something that should be of
concern to anyone who would draft a statute so
broadly as to say any culpable conduct
resulting in any felony.
You know, there are things that are
felonies now that I suspect after we reform
the Rockefeller Drug Laws will no longer be
felonies. So let's not be too quick to impose
additional burdens on those who are felons,
those who have committed crimes. I think that
they should be subject to the full punishment
of the criminal law, but this statute doesn't
help make that punishment more just. This
statute just takes off the hook others whose
culpable conduct should also be punished.
I intend to vote no, Mr. President.
4849
But I thank the sponsor for his brief,
concise, timely, and civil answers.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. If the Senator will yield
to a question.
ACTING PRESIDENT MEIER: Oh, I'm
sure he would.
Senator Balboni, do you yield for a
question from Senator Hassell-Thompson?
SENATOR BALBONI: Yes, I do,
Senator.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HASSELL-THOMPSON:
Senator, I have sat here and I really have
listened to this debate very, very carefully.
And I think that before it's all over, you
guys are going to make me go to law school.
You're making it fascinating to me.
SENATOR BALBONI: Thank you.
SENATOR HASSELL-THOMPSON: But
because I lack the sophistication that you do,
I need you to help me with something. Can you
4850
apply -- through you, Mr. President -- this
ruling in the case of Bernard Goetz, which is
the case we're all more familiar with, tell me
how this case -- how this bill would apply to
that case.
SENATOR BALBONI: You've asked a
very, very good question. It probably
wouldn't. Because the question becomes
whether or not the act of shooting Mr. Goetz
was a break in the culpable nature. And also
it's not -- you're talking about the Goetz
case versus the McCummings case? I'm sorry.
SENATOR HASSELL-THOMPSON: Not
versus, no. The subway shooting.
SENATOR BALBONI: Right, okay.
SENATOR HASSELL-THOMPSON: Throu
gh you, Mr. President.
SENATOR BALBONI: Mr. President,
I don't believe -- again, neither case would
particularly involve this particular
situation.
SENATOR HASSELL-THOMPSON: Mr.
President, if the Senator will continue to
yield.
ACTING PRESIDENT MEIER: Senator
4851
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HASSELL-THOMPSON: Again,
because I lack sophistication -
SENATOR BALBONI: May I say, Mr.
President, you do not lack sophistication.
SENATOR HASSELL-THOMPSON: No, I
do. In the case of law, I lack
sophistication. And so I acknowledge that.
So let me stumble through this.
And I need you to really help me with this,
because a piece of this, as I've looked at
this -- Bernard Goetz was a vigilante. And
the outcome of that case was, if I remember
correctly, that the two young men who
participated in the efforts to rob him later
were able to sue him, and they won their case
based upon the condition in which he was -
they were left, based upon his action as a
vigilante.
How would this not apply? Through
you, Mr. President.
4852
SENATOR BALBONI: I'm sorry, Mr.
President, when you say "this," do you mean
the current law, how did the current law not
apply?
SENATOR HASSELL-THOMPSON: No,
the proposed bill. Your proposed bill.
SENATOR BALBONI: Oh, the
section -- how would it not apply?
SENATOR HASSELL-THOMPSON: How
would it not apply.
ACTING PRESIDENT MEIER:
Senators, as delighted as I am that we can
have this Socratic dialogue, can I ask both
Senators to address the chair.
SENATOR HASSELL-THOMPSON: We
said through you, but you didn't hear us.
ACTING PRESIDENT MEIER: I
understand that. Why don't we try to do this
in a little more organized fashion.
Senator Balboni, do you yield to a
question?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: Thank
you.
4853
SENATOR BALBONI: And in response
to the Senator's question, Mr. President, if I
may proceed -
ACTING PRESIDENT MEIER: Go
ahead.
SENATOR BALBONI: The Bernard
Goetz case had elements to it that I am
unfamiliar with. In other words, I don't
recall what the disposition of the issue of
whether or not -- I know he had an unlicensed
handgun. I don't recall if the possession of
that was a felony and if in fact -
SENATOR HASSELL-THOMPSON: Yes,
it was.
SENATOR BALBONI: Was he
convicted of a felony?
SENATOR HASSELL-THOMPSON: Mr.
President, through you.
ACTING PRESIDENT MEIER: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, Mr.
President, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HASSELL-THOMPSON: My
4854
understanding of the case, and some of the
other attorneys -- Senator Paterson,
whatever -- they probably could bail me out if
they were available. But in this case, he
was, because he had an unlicensed handgun.
And based upon that case, they were
able to win their civil suit against him based
upon the condition that they were in based
upon the shooting.
SENATOR BALBONI: Mr. President,
through you, I'm not sure that that was the
predicate for liability. And again, I'm
not -- that went to a jury trial. That could,
that case -- and depending upon what the fact
pattern was -- and I apologize again, I don't
recall what the fact pattern was with
specificity -- and depending upon what the
supporting documentation was in the motion for
summary judgment and its defense, it could or
it may not have survived the application of
this statute when it was brought at the time
of trial.
In other words, I don't know what
factors would have been involved in the
judge's consideration as to whether or not the
4855
actions of Bernard Goetz were culpable -- I
mean, I'm sorry, the actions of the
individuals were culpable in their injuries.
So, I'm sorry, I'm at a loss to say whether or
not in my opinion that this case would apply.
SENATOR HASSELL-THOMPSON: Thank
you.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson, on the bill.
SENATOR HASSELL-THOMPSON: I have
a lot of difficulty with this bill, Mr.
President, primarily because the case that I
am the most familiar with is the Bernard Goetz
case.
And my sense of this would be that
it would bar any civil actions against anyone,
in that position as a self-appointed
vigilante, from the victims for being able to
recover for actions that were proven to be
felonious.
And therefore, I've got to think
some more about this one, because I really -
I just have this sense that underlying all of
your best intentions -- and believe me, I
4856
think that I've stood here and I've made it
very, very clear that I represent a population
of people who are as much in favor of law and
order as you are. And because of that, they
have sent me here to be very vigilant about
the kinds of laws and the things that we pass
to reduce criminal activities in communities,
however that may apply.
SENATOR BALBONI: Mr. President,
would the Senator yield for just a quick
question.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson, do you yield for a question
from Senator Balboni?
SENATOR HASSELL-THOMPSON: Yes, I
do, Mr. President.
SENATOR BALBONI: Thank you, Mr.
President.
Senator Hassell-Thompson, do you
recall whether or not the individuals who were
shot by Bernard Goetz were actually convicted
of a felony?
SENATOR HASSELL-THOMPSON:
Through you, Mr. President, I do not think
that they were ever actually prosecuted.
4857
SENATOR BALBONI: See, that's the
difficulty of the application of this statute
to that instance. Because, Mr. President,
through you, if they were not convicted of a
felony, then the statute would not apply.
There would be no bar to a suit.
It was presumed, as I recall, that
they were attempting to rob Mr. Goetz. But
whether or not that actually resulted in a
criminal conviction as a felony would be the
critical factor in determining whether or not
this statute would bar their lawsuits.
But let me ask the question,
Senator. Through you, Mr. President, if the
Senator would yield.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson, do you yield to a question
from Senator Balboni?
SENATOR HASSELL-THOMPSON: I'll
continue to yield.
ACTING PRESIDENT MEIER: Go
ahead, Senator Balboni.
SENATOR BALBONI: Thank you, Mr.
President.
For the purpose of this debate, if
4858
those individuals were convicted of a felony
of attempted robbery on Mr. Goetz and were
injured in his defending himself, do you
believe that they should have been able to sue
him?
Or would you agree that the
application of assumption of risk, that they
knew the risk of going onto a subway car and
just picking somebody out, that they might
have a gun on them, that they might get
violent, that there might be some instance
where they might get injured because they were
participating in a violent felony -- would you
agree that our court system should not be in
the business of addressing that cause of
action?
SENATOR HASSELL-THOMPSON:
Through you, Mr. President, I was pretty much
prepared to answer that question until you
said were the courts prepared to address that
issue.
SENATOR BALBONI: Mr. President,
through you, if I may just continue with the
statement.
ACTING PRESIDENT MEIER: Senator
4859
Hassell-Thompson, do you -
SENATOR HASSELL-THOMPSON: I
continue to yield, Mr. President.
SENATOR BALBONI: That's what
this bill does. This bill takes these courts
out of the business of addressing those
claims. That's what we're doing here.
We're saying that if you are
engaged particularly in a violent activity, a
violent felony, that under the definition of
assumption of risk you should know and be
aware that you are taking a chance, you're
stepping outside the boundaries of society,
you're committing a crime, a felony, the most
serious of our crimes.
And therefore, you don't have the
right to then after that activity to go back
into court and say, Now, society that I've
flaunted, come and help me -- because you
don't deserve that help.
Would you agree with that
sentiment?
SENATOR HASSELL-THOMPSON: In
answer to that question, absolutely not. I
think that the courts absolutely should
4860
address the cases.
I think they should address it
primarily -- through you, Mr. President -
because again, according to that case and
several others, particularly as we explore and
as these cases are brought, the behavior of
everyone, the behavior of everyone is explored
in these cases.
And as we began to talk earlier, we
talked about police action, the use of
excessive force. Because the police
department has in these cases, in all of these
cases, unlimited, on-the-spot discretion as to
the amount of excessive force that they choose
to use.
And so that it is up to the court
to make the determination in these cases
whether or not the excessive force that was
used was appropriate. And in the case of
Bernard Goetz, he was a vigilante. He was not
a peace officer, not a law officer. He had no
right, no ruling, no authority to carry that
gun. And because he chose to do that, he
broke the law. There's a presumption of guilt
on his part.
4861
So no, all of these cases need to
come to the courts. And I do not and will not
participate in any kind of legislative
action -- you've helped me to decide. I must
vote against this bill. Because what we must
not do is ever preclude anyone from having the
opportunity to go into court and get a fair
hearing.
And that fair hearing may not be
prescribed by you and some of these people as
being fair and appropriate. But as long as
there is a Constitution, that Constitution
protects everyone with that inalienable right
until such time they are proven guilty.
So therefore, through you, Mr.
President, I do not agree, and therefore I
will vote against this bill.
Thank you.
ACTING PRESIDENT MEIER: Any
other Senator wishing to speak on the bill?
Senator Brown.
SENATOR BROWN: Thank you, Mr.
President. Through you, Mr. President, would
Senator Balboni yield for one question?
ACTING PRESIDENT MEIER: Senator,
4862
do you yield for a question?
SENATOR BALBONI: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR BROWN: Senator, does
this bill give the court the discretion to
make a determination if a suit brought by a
convicted felon can be heard or cannot be
heard?
SENATOR BALBONI: Yes, it does.
SENATOR BROWN: Thank you,
Senator.
SENATOR BALBONI: Yes, and that's
why I'm surprised at Senator Thompson's
description of the Constitution giving an
absolute right to everybody to participate in
the system. It doesn't. There's nowhere in
it that says that felons can participate.
And as a matter of fact, we in our
jurisprudential system say that you can't.
But this law says that a court will decide
that on a motion for summary judgment.
So there is that discretion. Thank
you, Mr. President.
ACTING PRESIDENT MEIER: Any
4863
other Senator wishing to speak on the bill?
Hearing none, debate is closed.
Read the last section.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT MEIER: Senator
Paterson, why do you rise?
SENATOR PATERSON: I just wanted
to say, as I said before.
ACTING PRESIDENT MEIER: Senator
Paterson, I closed debate.
SENATOR PATERSON: I was
standing, Mr. President.
ACTING PRESIDENT MEIER: I'll
take your word for it.
SENATOR PATERSON: No, I honestly
was standing, Mr. President.
ACTING PRESIDENT MEIER: I'll
take your word for it. Go ahead.
SENATOR PATERSON: I just wanted
to thank Senator Balboni for his responses on
behalf of all the members who asked questions
and just put in the record, Mr. President,
that last year we debated this bill and 13
members voted against it. Twelve of them are
still here among us. They are Senators
4864
Connor, Dollinger, Duane, Montgomery, Mendez,
Markowitz, and also the firm of Sampson,
Schneiderman, Smith, Smith, and Stavisky, and
the artist formerly known as Paterson.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
SENATOR PATERSON: Mr. President,
may I have a slow roll call on that bill.
ACTING PRESIDENT MEIER: More
than five Senators have arisen.
The Secretary will call the roll
slowly.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Yes.
ACTING PRESIDENT MEIER: Senator
Balboni.
SENATOR BALBONI: Yes.
THE SECRETARY: Senator Bonacic.
SENATOR BONACIC: Yes.
THE SECRETARY: Senator Breslin.
SENATOR BRESLIN: Yes.
4865
THE SECRETARY: Senator Brown.
SENATOR BROWN: To explain my
vote, Mr. President.
ACTING PRESIDENT MEIER: Senator
Brown, to explain his vote.
SENATOR BROWN: This debate was
quite educational for me. And I've been torn
on this, because I have looked at these
situations where felons, where criminals have
then sued the people they've tried to
perpetrate crimes against.
I'm a little concerned that maybe
this piece of legislation goes just too far in
terms of giving people the ability to do harm
to a felon greater than the harm that the
felon does to them. And not that I cry or
bleed or have sympathy for people who commit
crime. I just think that it could potentially
put someone who is committing a crime in a
situation where they could be injured beyond
the level of crime that they were committing,
even though that they are a felon.
So even though I'm -- I in
principle in a lot of ways agree with this
piece of legislation, and really thank Senator
4866
Balboni for his thoughtfulness, his response
to all of our questions, I think I'm going to
be in the position of having to vote in the
negative on this piece of legislation.
ACTING PRESIDENT MEIER: Senator
Brown will be recorded in the negative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Bruno.
(Senator Bruno was indicated as
voting in the affirmative.)
THE SECRETARY: Senator Connor.
(No response.)
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.
SENATOR DUANE: Thank you, Mr.
President.
I do have to say that the debate
4867
that I heard on the floor today really helped
me to break through the hypertechnical nature
of the malarkey that's in this bill, and it
really helped me to understand the
hypertechnical malarkey in the bill. And
that's why I've decided to vote no.
I do have to say, though, that I
think it's too bad that Senators don't stay in
the chamber and hear the debate. We get paid
a lot of money to be here, and I think we
should be here to listen to the debate.
Unless of course we're called to a
committee meeting off the floor during a
debate, which I object to, because I think we
should be here and not miss the debate on the
floor. People who work in factories or, you
know, farmworkers -- farmworkers, you don't
even know when they're going to get off. And
factory workers maybe get a half an hour off
for lunch. They don't really have the luxury
that we have to walk on and off, to hear the
hypertechnical malarkey of some of these bills
being discussed.
I just thought I should put that on
the record as I vote no on this bill. Thank
4868
you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the negative.
Continue to call the roll.
THE SECRETARY: Senator Espada.
ACTING PRESIDENT MEIER: Senator
Espada, to explain his vote.
SENATOR ESPADA: Thank you, Mr.
President, to explain my vote.
I heard the sponsor indicate that
this is about fundamental disagreements, and I
think it is about that. Even though, time
after time, there are specific situations that
are offered by way of a bill or a proposition
here that attempt to pigeonhole and really put
a stranglehold on due process. I think no one
could be more eloquent on that point than a
nonlawyer, my colleague, Senator Thompson
earlier.
This is an example of medicine
being more deadly than the disease. The
unintended consequences here, unforeseen by us
humans is just too drastic and arbitrary a
measure for the state to take, because indeed
it would result in arbitrary actions. I don't
4869
know where we would be without the video
camera in the Rodney King matter. It might
have been discussed; I was out of the
chambers. But the fact of the matter is that
Rodney King would be without the right or
recourse to civil action and many other future
Rodney Kings and others would be without the
recourse.
I think that there is enough law,
wrongful plaintiff rule on the books right now
to get rid of frivolous lawsuits. Our rights
are not frivolous. Due process is not
frivolous. And I intend and do so vote in the
negative.
ACTING PRESIDENT MEIER: Senator
Espada will be recorded in the negative.
Continue to call the roll.
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Aye.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Yes.
THE SECRETARY: Senator Gentile.
SENATOR GENTILE: Aye.
THE SECRETARY: Senator Gonzalez.
4870
(No response.)
THE SECRETARY: Senator Goodman.
SENATOR GOODMAN: Aye.
THE SECRETARY: Senator Hannon.
SENATOR HANNON: Yes.
THE SECRETARY: Senator
Hassell-Thompson.
(No response.)
THE SECRETARY: Senator Hevesi.
SENATOR HEVESI: Mr. President,
to explain my vote.
ACTING PRESIDENT MEIER: Senator
Hevesi, to explain his vote.
SENATOR HEVESI: Thank you, Mr.
President.
I too listened carefully to the
debate and the discussion on this issue, and
it is somewhat of a close call. And a lot of
my colleagues raised some very good points
here. But Senator Balboni had some good
responses to those issues that they raised.
And at the end of the day, we have
to make a decision on what's in the best
overall interest and have we satisfied the
lion's share of situations which are likely to
4871
arise and is the problem that we seek to
address remedies in a greater extent than the
potential harm that we may cause by a piece of
legislation. And I'm satisfied in this case
that barring somebody from suing them civilly
when they were in the process of committing a
felonious act is sufficient that we need to
take some action here.
And I may have drafted the bill in
a slightly different way, but at the end of
the day I think that this is a worthy piece of
legislation. And since Senator Balboni
sponsored it and his expertise in this field
is unchallenged and unmatched, and I have the
greatest of respect for him, I'm satisfied
with his answers to the very worthy questions
of my colleagues.
I will be voting aye.
ACTING PRESIDENT MEIER: Senator
Hevesi will be recorded in the affirmative.
Continue to call the roll.
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Aye.
THE SECRETARY: Senator Johnson,
excused.
4872
Senator Kruger.
SENATOR KRUGER: Yes.
THE SECRETARY: Senator Kuhl.
SENATOR KUHL: Aye.
THE SECRETARY: Senator Lachman.
SENATOR LACHMAN: To explain my
vote.
ACTING PRESIDENT MEIER: Could we
have some order in the chamber, please.
Senator Lachman, to explain his
vote.
SENATOR LACHMAN: In 1999, there
was an A version of this bill that I voted no
on. The bill was slightly changed, and I
voted yes on the bill last year. My concerns
are splitting me in half, but I'm going to
make a decision.
I have serious reservations about
the bill regarding public safety issues. And
even though there were changes between the A
version and the current version, I'm not sure
that these changes go far enough to offer more
protections to the public which I would like
to see in the future.
However, the bill does send the
4873
message, and the message that the bill sends
to the public is that criminals will not be
able to profit after committing a felony. I
therefore vote yes.
ACTING PRESIDENT MEIER: Senator
Lachman will be recorded in the affirmative.
Continue to call the roll.
THE SECRETARY: Senator Lack.
SENATOR LACK: Aye.
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Aye.
THE SECRETARY: Senator LaValle.
SENATOR LAVALLE: Aye.
THE SECRETARY: Senator Leibell.
(No response.)
THE SECRETARY: Senator Libous.
SENATOR LIBOUS: Aye.
THE SECRETARY: Senator Maltese.
(No response.)
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Aye.
THE SECRETARY: Senator Marchi.
(No response.)
THE SECRETARY: Senator
4874
Markowitz.
SENATOR MARKOWITZ: No.
THE SECRETARY: Senator Maziarz,
excused.
Senator McGee.
SENATOR McGEE: Yes.
THE SECRETARY: Senator Meier.
SENATOR MEIER: Yes.
THE SECRETARY: Senator Mendez,
excused.
Senator Montgomery.
SENATOR MONTGOMERY: No.
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 have to concur with Senator
Balboni on this bill. I think there are some
areas that have room for improvement, but I
have never been in the belief that a person
4875
committing a felony on another individual
should ever have the right to recover damages
from the individual.
While, again, I have some
reservations about the bill, I think it's a
step in the right direction. And perhaps if
and when the Assembly takes it up, there could
be a reconciliation to address more of the
concerns that were expressed here today. But
I do vote yes.
ACTING PRESIDENT MEIER: Senator
Onorato will be recorded in the affirmative.
THE SECRETARY: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Yes.
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.
SENATOR SAMPSON: No.
4876
THE SECRETARY: Senator Santiago.
SENATOR SANTIAGO: No.
THE SECRETARY: Senator
Schneiderman.
(No response.)
THE SECRETARY: Senator Seward.
SENATOR SEWARD: Yes.
THE SECRETARY: Senator Skelos.
SENATOR SKELOS: Yes.
THE SECRETARY: Senator A. Smith.
SENATOR ADA SMITH: No.
THE SECRETARY: Senator M. Smith.
SENATOR MALCOLM SMITH: No.
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.
I am going to vote yes on this
issue. I happen to think even though the
arguments were a little weak in supporting it,
I still will vote for it because I, along with
4877
Senator Onorato, don't believe that the
perpetrator of a crime should be recovering
damages.
And I'll have to agree with one
thing Senator Hevesi said, and that is that
nobody explains a one-house bill like Senator
Balboni.
(Laughter.)
THE SECRETARY: Senator Stafford.
SENATOR STAFFORD: Aye.
THE SECRETARY: Senator Stavisky.
ACTING PRESIDENT MEIER: Senator
Stavisky, to explain her vote.
SENATOR STAVISKY: I found the
discussion here very interesting, particularly
for a nonlawyer. I had complained in the past
that I did not understand a term, "mens rea,"
that my colleague had used. And when it was
explained to me and I heard the debate here
today, I understood fully what they were
speaking about. And I commend Senator Balboni
on his -
ACTING PRESIDENT MEIER: The
stenographer is struggling to try to hear
this, please.
4878
Senator Stavisky, go ahead.
SENATOR STAVISKY: And I commend
Senator Balboni for the fervor of his
arguments.
I thought it was interesting
because earlier we had quite a number of
schoolchildren sitting in the chamber, in the
balcony, and I think this was a wonderful
opportunity for schoolchildren to watch a
deliberative body in action.
My major regret is that I had two
committees called off the floor during the
debate on this bill, and therefore I could not
hear all of the arguments. But it seems to
me, on balance, that we are overprotecting the
vigilantes of the world, that this becomes a
vigilante protection bill, and, Mr. President,
I vote no.
ACTING PRESIDENT MEIER: Senator
Stavisky will be recorded in the negative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Trunzo.
SENATOR TRUNZO: Yes.
THE SECRETARY: Senator Velella.
4879
SENATOR VELELLA: Yes.
THE SECRETARY: Senator Volker,
excused.
Senator Wright.
SENATOR WRIGHT: Aye.
ACTING PRESIDENT MEIER: Call the
absentees.
THE SECRETARY: Senator
Dollinger.
(No response.)
THE SECRETARY: Senator Connor.
ACTING PRESIDENT MEIER: Senator
Connor, to explain his vote.
SENATOR CONNOR: Thank you, Mr.
President.
While I appreciate Senator
Balboni's expertise in this area in the -- I'm
sorry, Mr. President, I'm having a hard time
with the noise.
ACTING PRESIDENT MEIER: Can we
have some order in the chamber, please.
SENATOR CONNOR: While I
appreciate Senator Balboni's expertise and the
work that he's done in this field, and I
certainly appreciate the vigor with which he
4880
explained his bill and defended his bill and
the courtesy he showed to all the members who
questioned him, I'm going to vote no because I
really think we've lost track in the whole
area of tort law of one of the functions of
traditional tort law, and that is to deter
people from maintaining dangerous conditions,
conditions that are frankly dangerous to the
public at large.
And one of the reasons we impose
absolute liability in those situations is not
just to compensate someone who is injured, but
to deter the people responsible for it from
having those sorts of conditions. And that's
important not just to the victim of a
particular accident, but it's important to
all -- it's important to all -- I'm sorry, Mr.
President, this is really -
ACTING PRESIDENT MEIER: Can we
have some order in the chamber, please.
SENATOR CONNOR: Thank you, Mr.
President.
But it's important to all of
society and all the people we need to protect,
whether they're engaged in wrongdoing or not.
4881
Some of these conditions affect -- frankly,
they affect whoever happens to walk into the
condition, whether they're engaged in criminal
conduct or not. That's a very important
function of tort law. Therefore, I vote no.
ACTING PRESIDENT MEIER: Senator
Connor will be recorded in the negative.
The Secretary will continue to call
the absentees.
THE SECRETARY: Senator Gonzalez.
(No response.)
THE SECRETARY: Senator
Hassell-Thompson.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson, to explain her vote.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President.
A lot less passionately than I
discussed this bill. I really did listen very
carefully, and I think that the two points
that my able Senator, who -- I believe his
intentions are pure. And I think that I
understand very clearly the attitude and the
intent.
My concern became evident when the
4882
Senator asked me the question did I think that
the court should be addressing these kind of
cases. And I guess I belong to that
antiquated group of people who believe that
everything that appears to be isn't what is.
And that with these cases being appropriately
tried in the courts, that information usually
comes to light that perhaps did not come to
light before.
And so I am not prepared to always
summarily take away from the courts the
ability to use the discretion that they
already have in trying these cases.
And also, if I understand New York
State law at all, we have something called
wrongful plaintiff rule under common law that
already bars compensation to criminals when
there are serious violations of the law. And
so I see this as duplicative and repetitive
and somewhat unnecessary, but I also see it as
very dangerous because it again does not allow
the kinds of civil action -- and even though
the bill speaks to felonies, the continuing
use of the word "violent felony" by the
Senator in his explanation of the bill also
4883
begun to disturb me, because I didn't see that
in the context of the bill.
So therefore, I think that the bill
has some problems and some issues, and I think
that at this point I could not vote in favor.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson will be recorded in the
negative.
The Secretary will continue to call
the absentees.
THE SECRETARY: Senator Leibell.
SENATOR LEIBELL: Aye.
THE SECRETARY: Senator Maltese.
SENATOR MALTESE: Aye.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Aye.
THE SECRETARY: Senator Nozzolio.
(No response.)
THE SECRETARY: Senator
Schneiderman.
ACTING PRESIDENT MEIER: Senator
Schneiderman, to explain his vote.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
I found that the debate -- and I
4884
remember the debate from last year on this
bill, and if anything I'm more convinced than
ever that this represents a flawed approach to
civil justice, as Senator Connor pointed out,
a badly flawed approach to our tort system.
And I think that what we are seeing
here is the effort to eliminate access to our
civil justice system, not based on the merits
of the case but based on the fact that some
people, as evidently Senator Balboni
represented in a proceeding, want to be able
to get summary judgment instead of having a
full trial on an issue of tremendous
importance.
And I do not see that this furthers
any interests of justice that are not
legitimately served by the current set of
statutes. We already have a statute barring
wrongful plaintiffs from obtaining recovery.
We already have a system where they would be
required to bear the burden of proof in a
case.
So this is just a bill to restrict
access to the courts. This is just a bill to
limit judicial ability to conduct a full and
4885
fair hearing. I think this is wrongfully -
no, I think it's wrongfully construed. Well,
it may be appropriate in some cases, but it
may not be in others. I'm sorry, Senator
Hevesi was trying to help me here.
But the fact of the matter is the
only one who can determine that is a judge
after a full and fair hearing. This will
reduce the level of justice in our state. I
vote no.
ACTING PRESIDENT MEIER: Senator
Schneiderman will be recorded in the negative.
Record the negatives and announce
the results.
THE SECRETARY: Ayes, 40. Nays,
14.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
can we please call up Calendar Number 299, by
Senator Marcellino.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar 299.
THE SECRETARY: Calendar Number
4886
299, by Senator Marcellino, Senate Print 2384,
an act to amend the General Municipal Law, in
relation to including.
SENATOR OPPENHEIMER:
Explanation, please.
ACTING PRESIDENT MEIER: Senator
Marcellino, an explanation has been requested
of Calendar 299 by Senator Oppenheimer.
SENATOR MARCELLINO: Thank you,
Mr. President.
This bill would amend the General
Municipal Law to add soil and water
conservation districts to the list of
authorities and agencies that can enter into
agreements and contracts with other units of
government and municipalities.
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: If the
Senator would yield.
ACTING PRESIDENT MEIER: Senator
Marcellino, do you yield for a question?
SENATOR MARCELLINO: Surely.
ACTING PRESIDENT MEIER: The
sponsor yields.
4887
SENATOR OPPENHEIMER: Senator
Marcellino, I don't understand why we need
this. I mean, I thought we were already doing
this. How is this going to enhance a
municipality's ability to deal with the soil
and water conservation?
SENATOR MARCELLINO: Through you,
Mr. President, soil and water conservation
districts have experienced delays in getting
intermunicipal contracts approved because the
districts are not listed in Section 99-R of
the General Municipal Law, which lists the
state agencies with which municipalities can
enter into contracts.
This problem manifested itself
recently when New York City attempted to
contract with soil and water conservation
districts to carry out provisions of the
New York City Watershed Agreement. This has
caused confusion and delays in project
delivery.
Section 99-R is intended to cover
services not regularly provided to the public
as part of the general government services.
Stream protection, watershed inspections,
4888
wetland permit assistance, stream bank and
channel protection fall under this purpose and
are services provided by the soil and water
conservation districts. The addition of these
districts through Section 99-R will reduce
confusion and delays and therefore help
municipalities address important conservation
purposes.
SENATOR OPPENHEIMER: Thank you,
Senator. If you would yield for another
question.
ACTING PRESIDENT MEIER: Senator
Marcellino, do you yield for a question?
SENATOR MARCELLINO: Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR OPPENHEIMER: It's my
belief that the soil and water board is doing
it now, I mean, is helping on the watershed.
How are they doing it now, is the question.
SENATOR MARCELLINO: In a very
circuitous way, through you, Mr. President.
Because what happens, since these districts
are not specifically mentioned in 99-R -- I'll
give you a specific example. In New York City
4889
there was a contractor -- in New York City
Watershed, the Greene County Soil and Water
Conservation District had one contract with
New York City for a stream restoration project
for the Batavia Kill. There was a $2 million
contract with New York City. This contract
was executed apparently without any problem.
Despite the prior contract, when they
attempted to do a second contract for
additional stream restoration work, they were
told no contract could be used or could be
signed because the soil and water conservation
districts were not specifically listed in
Section 99-R of the General Municipal Law.
The water district made phone
calls, tried to work it out, and finally wrote
a 1½-page letter explaining why the city could
contract with them. Eventually, they got the
contract, but only after a six-month delay.
Normally a contract with the city
could take about a year to negotiate. That
would be in addition, this six months was in
addition to that year in time. Not only did
they miss the construction season, but because
of the delay, it also raised concerns from the
4890
EPA. The EPA wanted these projects done, and
without delays.
So what we're doing here with this
legislation is simply, if you look at the bill
itself, we've simply inserted the words "soil
and water conservation districts" in
appropriate sections of the law so that they
are specifically mentioned in the law.
Therefore, no new attorney who gets a caseload
dumped on his desk would then look at the law
and say, Well, you can't do this one, it's not
specifically mentioned. We specifically
mention them.
This eliminates the need to go back
and forth, write letters, and do all the -
this has happened numerous times to these soil
districts. They've come to us specifically
and asked us for this legislation.
It is, by the way, Mr. President,
supported by the EPA and environmental
advocates, supported by the Farm Bureau, and
supported by the New York City Watershed
Conservation District.
So this is a technical change.
It's an addition. But it would avoid a
4891
tremendous amount of delays and costs and
would permit very, very important projects to
go forward without unnecessary delay.
SENATOR OPPENHEIMER: Thank you,
Senator Marcellino. I don't want you to think
that -- I think this is a terrific bill. I
was just wondering the necessity for it,
because -- and I'll speak on the bill now.
ACTING PRESIDENT MEIER: Senator
Oppenheimer, on the bill.
SENATOR OPPENHEIMER: Because I
can tell you, in the 1970s and '80s, I was
using the soil and water conservation district
to help me. In my village where I was mayor,
we had flood problems and our main street
would sometimes go under two, three, four,
five feet of water.
And it was with the help of the
soil and water conservation folks, who
happened to be the same -- many of them are
the same people that work in our county
planning department. They have two roles.
And they were very helpful to me, because we
wanted to take a reservoir that was just above
of my village and have that reservoir made
4892
into a water-holding area during exceptionally
bad storms.
And our problem emanated from the
fact that more and more of the county,
Westchester County, was being blacktopped, and
so there were less and less areas that were
open space that could serve as sponges and as
ponding areas and areas where water could rest
and not merely flow over, like on blacktop.
So that we were having enormous quantities of
water come down our streams.
And it was through the help of the
county soil and water board that I was able to
make a good deal of headway with the flood
problems that we were having in our village.
And indeed, they did help to overcome the
problem, and we do not have severe flooding
anymore. Our problem was that we were at the
mouth of two rivers, and all the water that
was accumulating from the center of the county
was coming down and flooding us out at the
mouth of the river.
So we got a lot of help from them.
I know that in another instance, the soil and
water folks have helped with the Blind Brook,
4893
which runs through several communities. And
they were able to bring together -- they did a
hydrologic survey, and they were able to bring
together the communities and really improve
the condition of this small river, which also
was prone to a lot of flooding. They were
also helpful in the soil erosion that was
happening on the sides of this -- well, it's
really a brook, I guess. It's not a small
river. And they made several recommendations,
and some of them were as simple as pulling the
shopping cart that fell into the brook out so
that the brook could flow. But we also have
soil erosion problems. And we were able to
work with them.
That was pretty much what they did
in the '70s and '80s, which was flood control
work and helping us with soil erosion,
maintenance of streams so that they could flow
freely. But in recent years, they have been
active in another area which has proven
enormously helpful. And Senator Marcellino
mentioned the watershed management, which of
course has keen application for us here in
our -- in Westchester County, because we are
4894
party to the watershed agreement.
But they have also helped in other
ways in recent years. For instance, we have
hired them to do an independent analysis when
a developer has come in and done his or her
analysis to meet the SEQRA law, we have found
that sometimes it's best to have an
independent analysis done. And we have
actually hired the soil and water district to
come and do that for us. And they've been
valuable there.
But I think their main value now in
the last few years has been in the area of
non-point-source pollution and nutrient
management. We have had considerable problems
with nutrients flowing into the Long Island
Sound which have caused excessive algae blooms
which have, when they decomposed, caused fish
kills and shellfish kills.
And we have to reduce the amount of
nutrients that are going into, in this case,
the Long Island Sound, but believe me, we are
not the only -- it is not the only body of
water that will have to have a nutrient
reduction, particularly nitrogen reduction.
4895
Because it is very, very harmful to the living
creatures of the sea.
So we need the nutrient management,
and we have to be able to get on top of the
non-point-source pollution. And you may have
been reading about that. It certainly has
become much more in the public discourse now,
because it is one of the main reasons that we
are having this nitrogen problem in many of
our waterways.
And that is due to the many
different spots that are polluting our water.
It's not just a factory or a power plant, it
is coming from literally thousands of spots
that are contributing to the pollution of our
water bodies. And in some cases, it's due to
infiltration; in some cases, due to inflow of
our sewer lines.
Because sometimes there are cracks
in the old sewer lines, and water is flowing
into it during heavy rainstorms and causing
our sewer treatment plants to shut down. And
we have taken steps just in the last year to
hold containment areas where we can contain
this heavy flow of water during heavy storms.
4896
The other problem with the inflow
and infiltration problem is the many houses
through the last hundred years that have
connected their pipes from the house, their
gutters and their leaders, and they have
connected these pipes into the sanitary sewer
lines that come to their homes instead of into
the water lines, the storm sewers that -- the
storm sewer lines that run at the end of our
properties. And that's merely because the
sanitary sewer lines run right to our houses,
whereas the storm water lines are up on the
streets. And that's a distance, in some
cases, of maybe a hundred, 200 feet. And
these lines have to be brought at homeowner
expense from the house up to the storm-water
sewer.
So with these multiple of problems,
we have looked to the county soil and water
conservation districts, and they have been
very, very helpful to us. And believe me, we
have so many problems in this area that
without them, I don't know how we would be
managing.
So in other words, what I'm saying
4897
is this is a terrific bill. And we have had
no trouble contracting with our county soil
and water conservation board. So if other
people have had problems, I certainly commend
this legislation so that it can overcome those
problems. Because, as I said, I don't know
where we'd be without them.
I'll be voting yes.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
President. If Senator Marcellino would yield
for a question.
ACTING PRESIDENT MEIER: Senator
Marcellino, do you yield for a question?
SENATOR MARCELLINO: Yes, I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, under
Section 99-R of the General Municipal Law, I'm
just wondering what other entities other than
these soil and water conservation districts -
who can qualify now as a municipality other
than an actual county -- other than an actual
municipality?
4898
I'm just trying to get an idea of
how feasible this is within the ambit of the
construct of the law.
SENATOR MARCELLINO: If you would
permit me for a second, I have that
information for you. I'm just trying to find
it.
SENATOR PATERSON: Thank you.
SENATOR MARCELLINO: Section 99-R
is rather brief. It says: "Notwithstanding
any other provisions of law to the contrary,
the governing board of any municipal
corporation may enter into agreements and/or
contracts with any state agency, including any
department, board, bureau, commission,
division, office, council, committee or
officer of the state, whether permanent or
temporary, or a public benefit corporation or
a public authority or any unit of the State
University of New York, pursuant to and
consistent with Sections 355 and 6301 of the
Education Law, within or without, such
municipal corporation to provide water
supplies, street sweeping or maintenance,
sidewalk maintenance, drainage, sewage
4899
disposal, or any other services of government
not regularly provided to the public as a part
of the general government services."
What is missing apparently in some
attorneys' minds is it doesn't say soil and
water conservation district specifically. So
they have rejected contract agreements. This
has specifically occurred in numerous
occasions in the City of New York in the
implementation of the watershed agreement that
Senator Oppenheimer spoke so eloquently of.
This law, they came to us and have
asked us to alleviate the confusion by simply
adding this phrase to the bill and -- to this
section of the law in the appropriate
locations, so there can be no further
confusion.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Actually, if
the Senator is willing to continue to yield.
ACTING PRESIDENT MEIER: Senator
Marcellino, do you yield?
SENATOR MARCELLINO: Certainly.
4900
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: I think it was
the example that you gave a little earlier
about Greene County and New York City that
really drove the point home to me. That in
other words, it wasn't as if they couldn't do
it, but since there legally wasn't the
opportunity for the soil and water
conservation district to enter into contracts
with the actual agency, they went through this
process where they went around in circles and
the phone calls, as you described them, and
the letter.
So I understand how this situation
is cured. My question relates to the soil and
water conservation districts themselves. How
do they receive their funding? This is state
and county, and now they're seeking a greater
funding by the state? Would that accurately
reflect their view?
SENATOR MARCELLINO: It's all of
the above, Senator. And they also get money
from the EPF, which matches the amount that
the other entities provide.
4901
SENATOR PATERSON: If the Senator
is willing to yield.
ACTING PRESIDENT MEIER: Senator
Marcellino, do you yield?
SENATOR MARCELLINO: The spirit
is willing, sir.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Thank you,
Senator. So in terms of the funding that they
actually receive, the operational decisions
under the law that you cited are those
procedures such as sidewalk repair, water
supply, sewage disposal. And I'm curious
about this, it was not usually part of the
operation of government services.
I would have thought that it would
be, because that was one of the operations of
government services. And I'm not putting this
on you, Senator, that's just what you read.
Can you draw the distinction for me as to what
is and what is not a government service
vis-a-vis the soil and water situations?
Just to clarify, Mr. President, the
Senator was reading from the law, and it said
4902
not -- and I'm just paraphrasing, I heard him
read it -- it's not usually an operation
performed as a government service, as a
general government service, I think it said.
SENATOR MARCELLINO: Senator,
these agreements that would be signed by
municipalities with the soil and water
conservation districts could be as limited as
working with a farmer, for example, to help
that farmer devise a measure where, if cattle
in that particular section of his field,
leaving what cattle may leave in that section,
wouldn't wash off and run into a stream. So
they might advise the farmer as to how to
manage the water runoff from that section of
his field into the nearby waterway so it
doesn't affect them and impact them in a
negative way.
This might be a relatively small
project. It may only be someone going out
there and looking at the site and discussing
it with them. This is not something where the
municipality would have the obligation to
repair a sidewalk or repave a street. That
would be under normal provisions, maintenance
4903
of streets and programs would fit.
However, here we're talking about
engaging people and discussing soil and water
conservation mechanisms. The soil districts,
these districts were formed in the -- probably
back as far as the 1930s when there were soil
conservation districts to, you know, deal with
the Dust Bowl era to try to help farmers
reclaim their fields and reclaim their
topsoil. They became expanded to cover water
conservation as the need arose.
So we're talking about basically an
organization or organizations that every
county has one, at least, to go in and advise
people on how to protect groundwater. And
it's particularly important to New York that
these agreements relate to these upstate
communities, because the watershed is upstate
that provides the water, the drinking water
for New York City downstate.
SENATOR PATERSON: So would it be
safe to say -- if the Senator would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Marcellino, do you continue to yield?
4904
SENATOR MARCELLINO: Certainly.
Absolutely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: -- that the
conservation districts require more state
funding as a result of this added opportunity
that they will have to engage in contracts
with the municipalities or with the agencies?
SENATOR MARCELLINO: No, Senator,
they -- if I might, gentlemen, I can't -
please.
When the soil and water
conservation districts get signed into
contracts, they are reimbursed. They are paid
for the work that they do by the
municipalities that they engage their
contracts with. That's part of the deal. So
they get money. They're amply supplied, and
they get their money through either EPF direct
payoff or the contract agreements that they
make with the individual towns, counties,
villages, you name it, in that respect.
So there is no need of additional
money that has to be put in. We fund them as
4905
necessary, and their contracts fund them as
necessary.
SENATOR PATERSON: If the Senator
is willing to yield.
ACTING PRESIDENT MEIER: Senator
Marcellino, do you continue to yield?
SENATOR MARCELLINO: Sure. Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Then, Senator,
I understand now that they're performing these
functions not usually in the general
government services that are provided, and
they receive their funding from the county and
the state. But because contracts will bring
them these resources that come from the
municipalities that employ them, that will cut
out the bureaucracy of having to go through
the county.
I understand that there are 58 of
these soil and water conservation districts, I
assume one for each county and then one for
the five counties that cover New York City.
So I guess this -- I hope this
doesn't sound pedestrian, but what I'm just
4906
trying to understand is that since there is a
SWCD for each county, why has it been in the
past so difficult -- and maybe you answered
this before. But why has it been so difficult
to try and just not add another layer of
government but to let them receive their
funding by having the county enter into the
contract, since the counties already can, and
then from there they would -- the money would
just filter to the soil and water conservation
district because it's wholly held within the
county anyway?
SENATOR MARCELLINO: It might not
always be a county that is in need of the
services. It might be a lesser unit. You
could have a village that might be in need of
it. So that, you know, by making a circuitous
route through the county when they could make
a direct contract with the district -- in this
case, Greene County was where the problem was.
Greene County was making the contract for the
Batavia Kill.
So the contract was going through
the county, it was between the county and New
York City. And as the city operates, as I was
4907
told by a representative from the soil and
water conservation district of the City of
New York, every once in a while new attorneys
are brought in. And as the junior people on
the list, a pile of contracts get plunked down
on their desk, and they're told to mark them
up and make decisions. And they look at these
things and they come up with the fact -- some
say, okay, yeah, you have a previous contract,
and some say -- well, they don't even bother
to look, but they say that this is not
counted. They don't see the words "soil and
water conservation district" specifically in
99-R, and therefore issue a statement that you
can cannot sign this agreement, and they
advise their superiors not to sign.
That causes a delay, which is all
we're trying to eliminate. Ultimately, they
know they can get it done. But what's
happened is they've lost construction seasons,
they've lost working time -- in some cases,
six months or more in delays in addition to
the normal delay in getting a contract signed
with a municipality as big as New York City.
This delays the work, it increases the
4908
pollution, it causes great consternation from
the EPA, because they want this work done and
they don't want to take any nonsense. They
don't want to hear that, you know, somebody is
making a decision at a junior level that is
affecting 9 million people.
Have I confused you enough?
SENATOR PATERSON: No, actually,
Mr. President, Senator Marcellino has
explained it very well. It truncates the
process by which the SWCD can receive the
resources it needs to perform the functions
that are kind of outside of the regular
protections that government provides through
general services.
And if he would yield for one last
question of a -
ACTING PRESIDENT MEIER: Senator
Marcellino, do you yield for a question?
SENATOR MARCELLINO: Surely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: This question
really relates to the perimeters of living in
New York City. And of course New York City's
4909
filtration plant is a real concern to all of
us that actually live there. And the
encumbrances that were forced on New York City
by the federal government, and how the soil
and water conservation districts might be able
to mitigate some of that.
And I wanted to know what the
progress has been on that as, I guess, kind of
a forerunner to demonstrating why this would
be so important to give the option to the
SWCDs to speed up the process that they've
already started in many other cases.
SENATOR MARCELLINO: Senator, I
quite frankly don't have any idea how far
progressed they are. But we have been hearing
from the people at the New York City soil and
water conservation district directly, that
they are in need of this legislation so that
process can move in a more expeditious manner.
My guess is they are working apace, but it's
not as fast as they would like it.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: All right, Mr.
President. I want to thank Senator Marcellino
4910
for his responses and speak on the bill.
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: It really was
the issue of the SWCD that exists in Greene
County coming in to perform some work for New
York City and the delay that was caused by the
fact that even though they'd already performed
a contract. When they came back to offer
services for another need that the city had,
it was delayed because of the actual
structure.
And that the soil and water
conservation district, if they had the
contract power that would be implemented if we
pass this legislation, really through the
auspices of the General Municipal Law and
looking upon them as in a sense another
municipal corporation, which they basically
are, then that would obviously speed up the
process and help them to help us.
The concern that I had is just the
extra layering of government. See, I thought
this is what a government entity is supposed
to do. But I guess what would be in a sense
4911
my utopian concepts about how government
should run should give way to the value of the
pragmatism of just understanding that anything
that creates any further complication calls
for a further assessment of time.
And in many of these instances,
speed is of the utmost quality and need. And
so I think that that is probably the best
course to go on.
I don't know that I'm always in
favor of adding to the plethora of government
entities that contract, and what I thought was
confusion. But apparently the confusion lies
in the fact that heretofore the contracts
haven't been able to go through other sources
or have been delayed for long periods of time,
that even when they were performed we had to
come back a second time and start the
bureaucracy all over again.
So I understand what Senator
Marcellino is saying, and I have no further
questions for him.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
4912
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the sponsor
would yield for a few brief questions.
ACTING PRESIDENT MEIER: Senator
Marcellino, do you yield for a question?
SENATOR MARCELLINO: Certainly,
Mr. President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: I
appreciate the difficulty that led to the
drafting of this bill. I must admit, though,
that after your colloquy with Senator
Paterson, I'm a bit confused as to the funding
stream, because it does appear to be somewhat
circular.
Where did the soil and water
conservation districts get their money? I
understood you to say they get it from the
municipal corporations, but then they're
contracting with the municipal corporations.
SENATOR MARCELLINO: Well, the
contract, as you know, requires a payment.
They get paid for their work. So that if they
put in so many hours, they get paid.
4913
They're eligible for -- you know,
to get bonds from government agencies. They
can get federal grants. Which a lot of these
smaller entities might not able to. A local
farmer might not qualify for grant aids, could
not get bond act money to resolve an issue
concerning his or her particular farm and the
problem that it might be as a non-point-source
polluter.
So the soil and water conservation
district can enter into that agreement and
assist them in that level by having access to
other funding sources, including grants from
the EPF.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MEIER: Senator
Marcellino, do you continue to yield?
SENATOR MARCELLINO: Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Is there
any reason why the work of these soil and
water conservation districts cannot be
4914
performed by units of municipal governments or
county governments, as Senator Paterson
pointed out? There appears to be an extra
layer of government here.
ACTING PRESIDENT MEIER: No, it's
not an extra layer of expertise, it's a layer
of expertise. They have experts, they have
expertise and the ability to marshal these
resources where the government might not be
able to do that.
They can come in with -
specifically related to soil and water
conservation projects. That's all they do.
So when they go into a site, they are focused
on that particular issue. Upstate communities
love it, because they get the expertise and
the access to additional funding, which helps
them relieve a problem in their area. New
York City and the water you, Senator, drink
and I used to, and my children still do, is
cleaner because of it.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the
sponsor would continue to yield.
ACTING PRESIDENT MEIER: Senator
4915
Marcellino, do you continue to yield?
SENATOR MARCELLINO: Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Is there
any mechanism by which the local governments
can control the soil and water conservation
districts? I mean, is there any mechanism
through which there is input from the local
governments or the ability to veto projects in
their jurisdiction?
SENATOR MARCELLINO: There is a
board of directors that these districts -
each of these county SWCDs are created by the
board of supervisors of the county or the
designated body. So they're in effect
appointed members by either the county
executive in some areas or the elected
governing body of the county agency. So there
is that communication and control on a local
level.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, one
final question, if the sponsor would continue
to yield.
4916
ACTING PRESIDENT MEIER: Senator
Marcellino, do you yield for another question?
SENATOR MARCELLINO: Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: And
finally in the legislation you mentioned the
expertise in relation to issues of soil and
water. But the legislation does appear to
provide that in addition to water supply, the
contracts could be entered into for street
sweeping, maintenance, sidewalk maintenance,
and other areas. Is that something that soil
and water conservation districts also provide?
SENATOR MARCELLINO: Senator, I
was getting some advice from both ears, and I
don't have a third ear. So would you please
repeat it? I apologize.
SENATOR SCHNEIDERMAN: That's
quite all right. I have similar problems
myself you.
My question just was that the
language -- you mentioned the expertise in
areas relating to soil and water conservation.
The language here does extend to other types
4917
of municipal work, including sidewalk
maintenance and street sweeping. Do soil and
water conservation districts provide such
services?
SENATOR MARCELLINO: They have
their own section of law as well. 99-R
specifically deals with those intermunicipal
contracts. There is a law establishing these
districts that goes back to 1940, I believe.
SENATOR SCHNEIDERMAN: Thank you.
Thank the sponsor for his answers.
Through you, Mr. President, on the
bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: This seems
to be a simple addition to our body of law
that will make a difference for some
municipalities in the state and for the soil
and water conservation districts that service
them.
I think that the -- there is a
broader issue of funding for soil and water
conservation programs. We have spent a lot of
money from our recent bond issue. I'm afraid
4918
that we don't know where the rest of the money
is coming from. And we're at a point with the
New York City Watershed in particular where
we're really teetering on the edge of serious
problems.
There is, as -- the Environmental
Protection Agency has required the City of
New York to build a filtration plant. And our
efforts to come up with alternatives to
filtration so far have not been successful.
The difficulty with soil and water
conservation districts, as I understand it -
and this does make it easier for them to
obtain municipal contracts. But the
difficulty really is the lack of resources
from other sources. And I'm afraid that with
the change in administration in Washington,
there may be less money coming from the
federal government. I'm also concerned with
our ability as a state to continue funding
environmental programs at the same level.
What we've ended up with after a
decade in which there's been this tremendous
national economic boom which has benefited
New York State in particular because of the
4919
presence here of the securities industry, we
still haven't gotten the job done in a lot of
important environmental areas. I know that
we've also inflated our debt to the point that
it makes it very difficult to float new bonds
for environmental purposes.
And I think in addition to
municipal contracts, we do have to work to
ensure that other sources of funds are
available for these purposes. I think that
the new Environmental Conservation
Commissioner does appear to be sensitive to
those issues. But I think that in the course
of this legislative session, I'm not satisfied
that the Governor's proposed budget meets
these needs, and I hope that we will be able
to work together to ensure that more funds
from the state are available.
Thank you, Mr. President. I will
vote for the bill.
ACTING PRESIDENT MEIER: Any
other Senator wishing to speak on the bill?
Hearing none, debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
4920
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
would you please call up Calendar Number 5, by
Senator Maltese.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar Number 5.
THE SECRETARY: Calendar Number
5, by Senator Maltese, Senate Print 95, an act
to amend the Penal Law, in relation to
clarifying.
SENATOR OPPENHEIMER:
Explanation, please.
ACTING PRESIDENT MEIER: Senator
Maltese, an explanation has been requested by
of Calendar Number 5 by Senator Oppenheimer.
SENATOR MALTESE: Mr. President,
this bill is an act to amend the Penal Law in
relation to clarifying the definition of
4921
physical injury and serious physical injury.
This would lower the threshold of what
constitutes a physical injury or a serious
physical injury.
Taken right from the bill, physical
injury would mean impairment of physical
condition or physical pain, illness, or the
presence of a palpable contusion, laceration,
scalding or wound.
Physical injury may be established
by the testimony of the victim alone.
Physical pain may be established by evidence
of the injuries inflicted in the light of
common experience. You could read that to
mean also common sense. Serious physical
injury means physical injury which creates a
risk of death or which causes death or loss or
impairment of the function of any bodily organ
or member or the loss or impairment of any
mental faculty or extreme physical pain.
Serious physical injury may be
established by proof that the victim required
surgery or a course of medical treatment or
physical rehabilitation or was admitted to a
hospital as a patient for medical treatment.
4922
I'd like to refer to a memo in
support by the New York State Coalition
Against Domestic Violence, dated in January
when the bill was prefiled. "The New York
State Coalition Against Domestic Violence
supports legislation to amend the Penal Law to
codify the definition of physical injury to
better correspond with a more commonly
understood layperson's meaning. Victims of
domestic violence are often subject to an
ongoing series of criminally prosecutable,
abusive incidents.
"Presently, one of these individual
incidents may fail to rise to the level of a
misdemeanor offense under the current
definition of assault. Additionally, several
confessions of harassment will not result in a
criminal record that is citeable when future
battering occurs.
"The law's failure to adequately
respond to the repeated abuse endured by
victims of domestic violence is intolerable."
My point can be best made by
referring to a case which was before the
Supreme Court, Appellate Division First
4923
Department, May 23, 1991. And I'd like to
just briefly go into history of the case. A
judgment was rendered convicting the defendant
upon a jury verdict of murder in the second
degree -- which is not at issue here -
attempted murder in the second degree -- which
is also not an issue -- and assault in the
first degree which is at issue, and the
sentencing for the appropriate trials.
Defendant was convicted of
murdering one man, stabbing and slashing a
second, and wounding a third. It's the
wounding of the third that's at issue here.
Now, this is the opinion of the learned
Justices Murphy, Rosenberger, Wallach, and
Smith. Unanimous opinion.
"We reduce the assault in the first
degree conviction, however, because the
evidence does not establish beyond a
reasonable doubt the defendant's third victim
suffered serious physical injury," which is
the definition that we seek to change now.
Now, this is -- they're going to recite the
litany of what they do not consider serious
physical injury.
4924
This victim suffered two stab
wounds, one at the base of the neck and one on
the right shoulder. The record discloses that
the wounds required irrigation and suturing
and overnight observation in the hospital and
that thereafter the victim had some trouble
eating. He also stayed home from work for
several weeks because he had difficulty
walking.
And this is the clincher. "Taken
together, this evidence does not establish a
protracted impairment of health or protracted
loss or impairment of the function of any
bodily organ, and there is no evidence in this
record that these injuries were
life-threatening or caused protracted
disfigurement."
Mr. President, what we're seeking
to do is clarify these definitions of both
physical injury and serious physical injury so
that even the judges of the Appellate Division
and the Court of Appeals would understand
them.
SENATOR OPPENHEIMER: Thank you,
Senator.
4925
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Thank you.
I actually don't have any questions; I just
want to make a plea for everyone to support
this bill.
Because the courts have interpreted
the current statutory definitions of physical
injury and serious physical injury much too
narrowly. And as a result, very often, as was
just mentioned by Senator Maltese, the
criteria haven't been met and horrendous
situations and occasions have occurred because
of it. And I thought I'd just very briefly
mention four of them.
One, defendants who have caused a
victim to bleed or bruise are being prosecuted
for assault third degree, which is a Class A
misdemeanor, rather than a felony. So
apparently blood and bruise is not sufficient.
In another case, a gunshot wound
was found insufficient by itself to establish
substantial pain. And that was from the
People versus Rojas. That was a 1984
decision.
4926
Another instance, a black eye was
insufficient proof of physical injury. And
that was the Matter of Phillip A. in 1980.
And lastly of the only few I'll
mention were two punches to the face were
insufficient proof of physical injury, in
People versus Jiminez in 1982.
I think we have to have this bill
to make assault convictions a whole lot easier
to obtain, because women are getting beaten up
and bruised and broken and the courts have not
deemed it, very often, sufficient evidence.
So I think this is a very good
bill. And while I'm standing and talking, I
would like to say that there are some other
bills that would protect domestic violence
victims that I would very much like to see
come to the floor.
For instance, a new definition of
family would be very much appreciated, because
families are not what families were. And now
there are unrelated persons, and they often,
because they are not a husband or a have a
child in common with the other person, they're
also getting away with some pretty
4927
unforgivable acts. And it's because we don't
call a family what the family now is, which
are unrelated people who live full-time or
part-time with the woman. And I say woman
because the vast majority of the domestic
violence is against women, '95 percent. Only
5 percent are against men. So I don't want to
sound sexist, but that's why I'm using the
word "women."
So also orders of protection
against unrelated persons. That's passed many
times in the Assembly and has not passed here.
And we have to allow orders of protection to
be filed against unrelated people. There is
much that still has to be done.
Another bill that I think would
serve us very well and help us to save many
women who are subject to violence is to direct
the Secretary of State to accept service of
process and mail on behalf of victims of
domestic violence. Many of these victims want
to keep their address confidential. And if we
could have another source -- the Secretary of
State, in this case, in this bill -- if that
person would accept the service of process and
4928
mail on behalf of the victim, that would be a
very valuable addition for women suffering
from domestic violence.
So I commend this to you, Senator
Maltese. Your interest is appreciated very
much. This is an excellent bill, and I urge
everyone to support it.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you. If
the sponsor would yield, please.
SENATOR MALTESE: Yes, Mr.
President.
SENATOR DUANE: Thank you. I'm
wondering whether this bill only applies to
the Penal Law, or will it have an impact on,
for instance, workers' comp-definition civil
suit, other places in other parts of the law?
SENATOR MALTESE: Mr. President,
the sections that -- the criminal sections
that the bill would apply to are very, very
extensive. According to my notes, just about
every one of them is under Penal Law Section
120, with one exception are stalking laws. So
I believe they would apply, the definitions
4929
would apply only in the Penal Law.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Maltese yields.
SENATOR DUANE: I do understand
that. But there are other places where I
believe the words "physical injury" and
"serious physical injury" could potentially
apply. You know, I mean, in workers' comp, if
there's an injury on the job, would this
impact those proceedings or definitions used
by the Workers' Comp Board members and hearing
officers?
SENATOR MALTESE: Mr. President,
I believe they would not apply unless they
specifically refer to the definitions as set
out in the Penal Law as would be changed by
this legislation.
SENATOR DUANE: Thank you. And
if the sponsor would continue to yield.
SENATOR MALTESE: Yes.
4930
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: On line 7 of your
bill, the words "physical injury" may be
established by the testimony of a victim
alone. Is that a subjective or an objective
standard?
SENATOR MALTESE: Mr. President,
in response, the problem up till now has been
that the courts have specifically indicated
that the physical injury could not be proven
by the testimony of the victim alone. And as
a result, we've had what can be considered
very, very serious omissions, very, very
serious injuries that have not gone punished.
An example, Mr. President, is the
fact that in the year 2000, the last year that
we have records for, we had an amount of
75,318 assaults taking place in the State of
New York. Now, those assaults were divided
between 49,000 arrests under the felony -- as
4931
a felony, and 25,000 as a misdemeanor.
They become relevant when we see
the amount of convictions in those very same
instances where we have, for instance, under
misdemeanors, 38,000 arrests and only 9,000
convictions of any type. And then when we see
that as far as the convictions are concerned,
the pleas to the felonies were none,
relatively none, but even the pleas to the
misdemeanors were only 31 percent. And the
plea to a violation, where the maximum
sentence is up to 15 days and in some cases a
fine, were 68 percent were pleas to
violations. And so the assault as a felony
was not much better, where we had ultimately a
conviction rate that was very few in
proportion to the amount of arrests.
So the problem that this bill seeks
to address is that in most cases where the
prosecutor is not able to prove a case other
than by the testimony of the victim in the
assault cases, he is forced either to take a
plea to a violation, which is not a crime, or
to in some cases proceed to trial and
ultimately lose the case because so many of
4932
our judges and juries take the position that
these assaults are relatively harmless and not
as serious as the proponents of the type of
legislation that was supported by the
Coalition Against Domestic Abuse.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I sincerely
appreciate the statistics and circumstances
which the sponsor has just described for us.
But I do want to return to a
concern that I have about this bill, and that
is whether or not the words "physical
injury" -- I'm afraid I'm going to have to
repeat it in the same way -- which can be
established by the testimony of the victim
alone, whether we're creating a subjective
standard or an objective standard. I don't
know really how to say it and ask the question
any more clearly. There may not be an answer.
4933
But I would like to try to get to it if I can.
SENATOR MALTESE: Well, the
victim's testimony, while it would be
subjective, does not preclude the physical
evidence.
What we are trying to do is address
a problem where the judges have been totally
ignoring the physical victim's testimony.
Now, my definition of "objective," according
to Merriam-Webster's Collegiate Dictionary, is
"expressing or dealing with facts or
conditions as perceived without distortion by
personal feelings." So the subjective, we
have "judgments modified or affected by
personal views, experience, or background."
So using Merriam-Webster, I would
say that in this case it probably would be
both objective and subjective. And after all,
the bottom line is that serious physical
injury is objective. It's something that is
proved by other evidence in addition to the
testimony of the victim.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
4934
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I want to see if
the sponsor maybe would as well as using
Merriam-Webster's Dictionary, also consider
Black's Legal Dictionary, is that what it's
called?
SENATOR MALTESE: Yes, Black's.
Well, Mr. President, if that's a
question whether I would consider Black's,
Black's was the dictionary that we referred to
in law school, a very, very substantial
volume. I don't know that I've had many
occasions to consult it in the recent past.
But I'd certainly be open to any information
that my colleague has discerned from Black's
Dictionary.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
4935
Maltese, do you continue to yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: And along the
same lines, how about a reasonable person's
standard?
SENATOR MALTESE: Mr. President.
ACTING PRESIDENT MEIER: Senator
Maltese.
SENATOR MALTESE: If I understand
the question, the problem here is that some of
the judges have not taken a standard that a
reasonable person would adopt.
I think when we talk about common
sense, sometimes it appears from reading some
of the decisions -- we have the case that I
cited, the cases that were cited by my
colleague Senator Oppenheimer and others -
it's pretty obvious that this legislation is
badly needed, because what we're trying to do
is dot every "i" and cross every "t" so that
you would spell out very definitely the
situations that would prevail and the
4936
situations that exist that would enable a
judge or a jury to convict a person accused of
the applicable level of assault.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Without
disagreeing with the problems that have arisen
both in the examples provided by the sponsor
and by the sort of anecdotal situations
described by the sponsor -- and I still don't
think that -- and again, you know, I'm not an
attorney, but I thought that we need to be
clear about whether this is a subjective or an
objective standard.
And if that's not what's happening
here, then I'll accept that. But I just want
to sort of once and for all -- again, not in
any way negating or discounting the anecdotal
4937
or, you know, factual situations which the
sponsor has given us, I just want to know
whether that's one of the things we're trying
to achieve in this bill.
SENATOR MALTESE: Mr. President,
I understand that these definitions, as I
recall when we first put this bill before this
body in 1996, was taken from the Model Penal
Code. And I am informed by counsel that the
definitions are consistent with the FBI's
uniform crime reports definition of aggravated
assault and simple assault, which is the vast
majority of the cases where these definitions
would be applicable.
SENATOR DUANE: Thank you. And
through you, Mr. President, if the sponsor
would continue to yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is there a remedy
if someone abused this provision or if someone
4938
lied in trying to fall under this provision of
the law, is there a way that there would be
punishment for that or the person who's
impacted by that could have their wrong
redressed?
SENATOR MALTESE: Mr. President,
through you, I think it's a little afield.
But certainly all the normal laws and statutes
would apply as to perjury and falsely
reporting an incident. I think there's a
remedy. The remedy I think would be, you
know, the criminal penalties for perjury or
falsely reporting an incident.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I understand
that. But I have a concern just to be
covering all bases for a bill like this, which
4939
I definitely am leaning towards voting for,
because I do think we need it.
But just to make sure that we're on
very solid ground, it might be difficult to
prove that a person is not telling the truth
about this. How do you think that we could
protect ourselves from someone lying or
abusing this provision?
SENATOR MALTESE: Mr. President,
I just think that -- speaking as a former
prosecutor and, after that, a defense
attorney, I think the problem is not with
trying to punish those persons, those victims
or alleged victims who would come forward with
false claims. I think the problem here is one
that we're seeking to solve by making a
statute absolutely crystal-clear, the assault
statutes and those statutes that are similar
to them, specifically enumerated.
Here's a situation where we had a
law that would appear to be very plain on its
face, and yet we perhaps had judges relying on
a phrase we also, thinking of Black's, we
learned in law school: Expressio unius est
exclusio alterius, the fact that the
4940
expression of one would be the exclusion of
all others. And therefore, we did not
specifically recite every single instance that
would apply.
So in this case, what we did is go
back to the definitions and add every possible
variation, and that included the testimony of
the victim, which could be relied on to
include -- to be interpreted by the judge and
taken into consideration, perhaps not
exclusively, but to be taken into
consideration in rendering his judgment.
SENATOR DUANE: Through you, Mr.
President, if the sponsor could continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I know I covered
part of this before, but I just want to be as
thorough as I possibly can about this so that
we create good law. Does this bill extend to
any other crimes other than domestic violence?
4941
SENATOR MALTESE: Mr. President,
these are the crimes that would apply.
Assault in the third; reckless assault of a
child by a child daycare provider -- I was
hoping you'd ask this, by the way -- vehicular
assault in the second; vehicular assault in
the first; assault in the second degree;
assault in the second degree with a deadly
weapon; assault in the second degree referring
to police, EMT and fire personnel; assault in
the second degree with a deadly weapon; some
other assaults in the second degree; gang
assault; gang assault first; assault, police
firefighter; assault first; aggravated assault
of a police officer; aggravated assault of a
person; hazing stalking, menacing in the
first, second and third; hazing second;
reckless endangerment in the second; and
stalking in the first, second and third
degree.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
4942
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: In the list I
didn't hear rape included. Is rape included?
SENATOR MALTESE: I'm not aware
of the specific inclusion, but there may be
the definitions included in some of the
rape -- the recent -- but I'm informed by
counsel it's not required for rape.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Does the sponsor
perhaps think that, in that this new
definition is good for a whole list of crimes,
as he previously listed, that we should
probably also include rape in the list?
4943
SENATOR MALTESE: Mr. President,
the defining factor of rape is not so much the
physical injury or serious physical injury as
the basic crime of rape itself. And so I
don't think the problem there or the proof -
what has to be proved is physical injury or
serious physical injury, but the rape itself,
the elements of rape. The sexual elements of
rape.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I know that the
Coalition against Domestic Violence has
weighed in on this bill in a positive way.
I'm wondering whether DAs or judges or bar
associations, if they have weighed in on the
bill.
SENATOR MALTESE: Mr. President,
4944
first referring back to the rape, I'm advised
by counsel it is not included in the rape
statute.
And as far as the district
attorneys, this was originally proposed, I
believe, in 1996, when I first put it in, by
District Attorney Charles Hynes of Brooklyn.
And we put it in at the time. It has been
approved by the DAs Association since then.
And the bill itself is being carried in the
Assembly by Brian McLaughlin, and I believe at
last count it had some 30 cosponsors.
So it is a bill that has a
generally accepted level of support and
certainly overwhelming support from
prosecutors across the state. Also,
recollection brings to mind it was a program
bill of then Attorney General Dennis Vacco.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
4945
SENATOR DUANE: I looked at the
list of sponsors of the legislation, and as I
had previously said, this seems like a very
good bill to me. I'm wondering if any
Minority Senators were asked to sign on to the
bill and, if not, why not.
SENATOR MALTESE: Mr. President,
Minority members were not asked to sign on.
And as to the reasons why, I believe I'd have
to take that up with the Minority Leader, the
Majority Leader. And in addition, I believe
the question is rhetorical and that the asker
of the question, the questioner knows the
answer as well as I.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Comparatively
speaking, I'm, you know, new around here. So
4946
I came from a body where oftentimes bills were
wide open to sponsorship by members of both
sides of the aisle. So indeed, I don't really
know the reason. If the sponsor doesn't know
the reason, then so be it. But the sponsor
does know, I would appreciate an explanation.
SENATOR MALTESE: Mr. President,
I am somewhat familiar with the body that my
learned colleague left to join us. And they
have their own rules and regulations. And
while the Speaker is sometimes very generous
to the Minority of five members out of a body
of 51, I submit that five members in a body of
51 cannot do any real, and I'll it put it in
quotes, mischief.
As far as the reply to the
Senator's second part of the question, I'll
stand on my original reply.
SENATOR DUANE: On the bill, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
SENATOR DUANE: Thank you. I'll
start with the last section first.
I'm very familiar with the rules of
4947
body that I came from before I came here, and
I have become -- I was familiar with the old
rules, I'm familiar with the new rules. I may
not always utilize them perfectly, but no one
could ever say I haven't made best attempts to
work within the rules old and new.
And I know of no rule that says
that a member on the other side of the aisle
is not permitted to sponsor legislation. I
don't think there's a bill that I've -- well,
there may be a couple of bills which I hogged
to myself, but generally I have opened my
bills up to sponsorship by everybody in this
body, even encouraged people, by writing
letters and making phone calls. I've
certainly worked hard to pass bills in this
body which my name was not officially
associated with.
And to a certain extent, I guess it
could be said that, you know, nobody should
care -- as long as someone doesn't care whose
name is on a bill, you can pass anything. Or
something like that. It's an expression which
I think this body probably invented.
Anyway, this does strike me as a
4948
good bill. I understand that defining
something like physical injury or serious
physical injury is difficult to do but not
impossible to do. I think that for far too
long, particularly on issues of domestic
violence and violence against women, that the
standards were really pretty lax and that this
is a way that we have to try to tighten them
up and make it possible for victims to -
victims and survivors to get redress for
crimes committed against them.
I certainly would have liked to
have really sat in a committee meeting where
we could have heard the members of the
Coalition Against Domestic Violence, heard if
DAs and other victims' rights groups as well
as defense attorneys had any thoughts about
how this bill could be best put together. I
don't know whether this is the best that we
could do. It's certainly the only thing we
have in front of us today to try to make a
situation better so that people can get
redress.
I probably -- in fact, I have
decided I'm going to vote in favor of this. I
4949
know you're all losing sleep over what I was
going to do on this bill. But I still think
it would have been better to actually been
able to sit in a committee, had a hearing. I
know there was a hearing in the Codes
Committee, a brief hearing today on the
Rockefeller Drug Laws, which is very
important, although we only heard from one
side.
But that said, I think that a bill
like this deserves to have a full airing by
all asides, and open to questions from people
on both sides of the aisle. I even think that
we could do this kind of a bill, since there
seem to be so many sponsors in the Assembly -
and I hope there's some Minority sponsors. I
don't have any control over there. But
whether they do or they don't, I think we're
responsible for what happens in our own body
here.
But I think it would be good to get
everyone's input on it. I mean, the DAs, some
DAs were here today on the Rockefeller Drug
Laws. We could have asked them about this
bill. Their experience could have been added
4950
on to figure out -- it's not that I object to
us, you know, talking to each other here. I
mean, that's fine. But I do think that there
are people who are more expert than we are on
these things, and I think we need to have a
public space where we could have that kind of
hearing, public testimony.
I referred earlier to rules in the
body I used to be in and rules here. In the
body that I came from, rarely did a bill pass
before it had one, two, sometimes three
hearings. Oftentimes advocates would come in,
the administration would come in. I would
have liked to have known what Katie Lapp had
to say about this bill. She's someone I've
worked with before. I'm always compelled by
what she says. There was no forum for her to
come and speak about this bill. She may in
fact know more than you and I know about this
bill. In fact, I bet she does know more about
it than we do. Certainly more than I do, I
think probably more than you do as well.
And I think it would be -- I think
we would be better served to have hearings on
bills such as this one so that we could really
4951
hear that much more information. For
instance, the issue of rape which I raised.
Though I was compelled by what the sponsor
said about it, this was really the first time
that I thought to raise it. Not only was it
the first time I thought to raise it, I think
that's because this is the first time I'm
getting a chance to mull it over, if you will.
But I would have liked to have
heard what others had to say about including
rape and the crimes which the definition of
physical injury would have been a part of.
That's just one example of what could happen
in a public hearing. Oftentimes, you know, we
can learn things from people that come
forward. And actually the people that come
forward can learn an awful lot from each
other. Sometimes that's the best way to get
consensus on a bill and to really make good
public policy.
So as I say, I probably will -- I
most definitely will be voting in favor of
this. But I am disappointed that we didn't
have a chance before this. And in a way, we
don't really have enough -- you know, two
4952
hours to debate a bill, I mean, that's a
pretty good chunk of time. But two hours of a
hearing on a bill like this would be better.
And then we would have the time from the
hearing to discuss with people who were at the
hearing ways that we could come together to
make a really terrific bill.
And so I'm saddened that even
though we have just two -- you know, two hours
to discuss this on the floor, I wish that we
had had two hours to discuss this in a
committee meeting.
I am going to vote for it unless I
hear from one of my colleagues some reasons
why I shouldn't vote for it. But, you know, I
don't think that's the way it should be.
So thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. On the bill.
Mr. President, through you to
Senator Maltese, I think that this is an
excellent bill. And one of the things I had
some queries about was the bill's attempt to
4953
identify and to define, actually, serious
physical attack and injury. Even though I
recognize the necessity for it, I wanted us to
be very careful that we didn't go so far in
the other direction that we did harm.
However, I've been given a copy of
the Family Protection and Domestic Violence
Intervention Act and an interim report that
went to the Governor in January of '99
prepared by the Division of Criminal Justice
Services and the Office for the Prevention of
Domestic Violence. And part of what I found
in reviewing this was the numbers of cases -
and there are just hundreds. I don't need to
particularly read them.
But I think what the incidences in
each of them shows is that in the absence of a
definition of serious physical attack, many of
these cases ended up being considered as
violations, and prosecution did not occur.
And in these incidences, which are very, very
numerous, you know, it's a sad commentary.
Because without the presence of the offender
in most of these cases, and with only the
victim as the testifying person, most of these
4954
cases do not in fact get prosecuted. So from
that perspective, I can appreciate and support
the language of the bill.
For a couple of seconds I was a
little bit concerned by the victim being the
only one to testify. But I also remember a
lot about over the years the numbers of cases
that I have been involved with with former
clients where the act itself of abuse is done
very surreptitiously, not in the presence of
family members, children, or anyone. So that
it's the very insidious kind of ugliness that
underlies this kind of abuse and the
cowardliness that goes with this, so that
there is no physical evidence except those
present on the body of the person, and this
has not stood up in court.
So I commend you for this bill and
the work that you've done on it and the
sensitivity that you have brought to
attempting to define something that otherwise
would go unprosecuted.
Just a sidebar, it was interesting
because for a moment there when I thought
about extreme physical pain, it occurred to me
4955
someone had written down once that to kick a
guy in the scrotum constitutes extreme
physical pain, but to send somebody to jail to
four and a half to nine years is kind of
extreme. However, I know that that's not the
kind of thing that you're talking about in
this bill, and so I support the bill and I
support you in this effort.
SENATOR MONTGOMERY: Mr.
President.
ACTING PRESIDENT MEIER: Senator,
we have a list going. I do have everyone down
that indicated an interest in speaking.
Senator Stavisky has the floor now.
SENATOR STAVISKY: Thank you, Mr.
President. I've been listening very carefully
to the debate, to the questions, and to the
responses. And it's sort of difficult for
those of us who are not attorneys and who
frankly have very little experience in the
criminal justice system.
My question for the sponsor, or my
questions for the sponsor, if he would
yield -
ACTING PRESIDENT MEIER: Senator
4956
Maltese, do you yield to a question?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR STAVISKY: How would the
prosecution of cases improve if this -- in
terms of domestic violence if this legislation
were enacted? In other words, would it be -
would this legislation affect victims of
domestic violence or assaults or vehicular
accidents or -
SENATOR MALTESE: Mr. President,
through you, yes. Because the elements of
that recitation of the cases, all the assault
cases and the remainder under Section 120 and
I believe under Section 160, were all cases
that referred to the victim incurring either
physical injury or serious physical injury.
And the problem until now, or at
least until this bill hopefully becomes law,
is that the physical injury or serious
physical injury was not proven to the
satisfaction of either the prosecutor, who in
many cases realized he couldn't meet the
4957
burden of proof and therefore had to make a
plea or certainly reduce the charges, in the
vast majority of cases, or, where he chose to
prosecute the case as is, did not meet the
burden of proof imposed by the judge. So as a
result, you then ended up with decisions like
the one that I read and that Senator
Oppenheimer referred to.
I think that the problem here is
not so much -- not so much the normal
obfuscation that you have in Penal Laws or any
type of statutes. If you go back to the
physical injury and the changes that we're
talking about, we tried to include everything
which would be evident to the normal common
sense of a juror or the normal common sense of
a judge -- I'm sorry, a member of the jury or
a juror.
Now, here we're saying physical
injury means impairment of physical condition
or -- and originally you had a situation where
the bill said substantial pain, and that was
felt to be sufficient. Unfortunately, case
law tells us it was not. So we added, because
some judges were saying, well, an illness is
4958
not a physical injury -- and I suppose
technically it is not. So we added illness or
the presence of a palpable contusion.
And the reason that was added is
because in many, many cases, especially in the
so-called minor assault cases, you had
contusions and bruises which the judges were
saying this doesn't rise to the level of a
physical injury.
Then we added -- and you can almost
go back and pick particular erroneous, in my
opinion, judicial decisions that excluded
wording, and we are now attempting to add it.
And this is not a creation of mine or a
creation of any of us here. As was mentioned
earlier, it's in the Model Penal Code.
It's -- the FBI has come up with these
decisions because of cases all over the
country where they were faced with similar
problems.
So they added scalding, because in
some cases judges were saying, well, it's not
a physical injury if it's a burn, which by the
way defies common sense. And then they went
further here with the wording. "Physical
4959
injury may be established by the testimony of
the victim alone." Because in so many cases,
the only -- it's similar to a homicide. But
at least in an assault, you have a living,
breathing victim who can testify. But in most
cases, especially in spousal abuse, or in
abuse -- family abuse, you don't have -- it's
not done in the middle of a mall or in the
middle of a shopping center or anyplace where
there's victims. So they're trying to
establish physical injury by the testimony of
the victim alone.
And then we went further and said
physical pain may be established by evidence
of the injuries inflicted in the light of
common experience. Because, again, we had -
and especially judges coming up with the fact
that here this person -- and there's one case
in here where the person was hit with a
baseball bat. And they said, Well, it doesn't
seem to rise to the level of physical pain
necessary in order to prove the crime. Well,
it's too bad that that judge couldn't have
been the recipient of a good blow from a
baseball bat, so maybe it would have put some
4960
common sense into his head, because it's
self-evident.
And so -- but now we're going to
say it's in the light of common experience.
If you're hit with a bat, it's common
experience that you're going to suffer some
pain and that pain rises certainly to the
level of a physical injury.
SENATOR STAVISKY: Thank you,
Professor Maltese.
SENATOR MALTESE: Unlike
Professor Stavisky.
SENATOR STAVISKY: One other
question. Mr. President, through you.
SENATOR MALTESE: Sure.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield to another question?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: He
yields.
SENATOR STAVISKY: What has been
the experience in other states? Do they have
similar statutes?
SENATOR MALTESE: Mr. President,
through you, there have been other cases with
4961
very similar statutes, and that's the reason
that the model code was adopted. And once the
model code was adopted -- and I'm not sure
when, but I know we used it in 1996, so it had
to be before that -- other states across the
country immediately adopted it. And then when
the national District Attorneys Association
also recommended it, even more states adopted
it.
But I couldn't tell you whether -
how exactly it conforms to the statutes in
other states.
SENATOR STAVISKY: On the bill,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Stavisky, on the bill.
SENATOR STAVISKY: I commend
Senator Maltese for his learned dissertation
and his willingness to respond to all kinds of
questions from nonspecialists. And I
certainly intend to support this bill.
ACTING PRESIDENT MEIER: Senator
Gentile.
SENATOR GENTILE: Thank you, Mr.
President. And certainly this bill takes us a
4962
long way in this area. But I do wish to ask
the sponsor, Senator Maltese, several
questions, if he would yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield for a question?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Senator, first
of all, in the area that was earlier spoken
about, the area of rape, just to be clear
about it, a rape charge and an assault charge
are -- may happen -- the incident may happen
at the same time, but those are two distinct
charges. Am I correct about that?
SENATOR MALTESE: Mr. President,
as the former assistant district attorney well
knows, yes, you are absolutely correct.
SENATOR GENTILE: So that for the
members who might be concerned about this not
being in a rape statute, nothing precludes a
prosecutor from charging any type of assault
in addition to a rape should a victim be hurt
during the course of a rape.
4963
SENATOR MALTESE: Yes. Through
you, Mr. President, yes.
SENATOR GENTILE: If the Senator
will continue to yield, I'll -
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Thank you.
Thank you, Senator.
Also, I'm curious to know your
background, since you too are a former
assistant district attorney, about this
particular statute and the words "substantial
pain" which now you are changing. Would you
consider that terminology, "substantial pain,"
as the reason for which many courts have not
deemed many of the assaults to be an assault
and, rather, a violation or harassment?
SENATOR MALTESE: Mr. President,
in response, we're taking out the word
"substantial" because the judges and the
prosecutors in the appropriate cases simply
4964
didn't seem to be aware of what constituted
substantial pain.
So what we're seeking to do with a
recitation of the specific instances of what
constitutes, essentially, substantial pain,
we're seeking to clarify that.
SENATOR GENTILE: Right, by
taking out the word "substantial" and just
putting in "physical pain."
SENATOR MALTESE: Well, not only
"physical pain," but we're elaborating on that
by adding illness, presence of a palpable
contusion, laceration, scalding, or wound. In
other words, in those cases we're implying
that these cause pain -- or at least
expressing, not even implying, that these
cause pain and that it's self-evident that
they would cause pain. And then we refer to
the ways that physical pain or physical injury
might be established by evidence.
SENATOR GENTILE: I see. If the
Senator would continue to yield, I do have
other questions.
SENATOR MALTESE: Yes, Mr.
President.
4965
ACTING PRESIDENT MEIER: The
Senator continues to yield.
SENATOR GENTILE: Thank you.
Senator, you also include the word
"illness" in this definition. I'm just
curious as to how that fits into a definition
of physical injury.
SENATOR MALTESE: Mr. President,
in response to that, I just -- I don't
remember the names of the cases, but we had
situations where there would be an injury
sustained by a victim and the victim
thereafter, when called upon to testify, would
refer -- for instance, with blows possibly to
the stomach, would speak about stomach pains
and bowel problems and so on and so forth.
The same way which might be more correctly
classified as an illness.
And the same thing applies to blows
to the head, where the patient would testify
that -- to some maladies that would probably
be more closely akin to illness rather than an
injury as such.
So it's probably the result of an
injury that might result in an illness that is
4966
very clearly traceable to the original injury.
And therefore, we sought to make it
all-inclusive by adding the word "illness."
SENATOR GENTILE: If the Senator
would continue to yield -
SENATOR MALTESE: I don't think
we're talking, for instance, about, you know,
the normal illnesses, whooping cough, scarlet
fever or any of the others that are no longer
with us.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR GENTILE: So I'm trying
to understand, then, what illness -- what
illness -- if I'm a prosecutor, what illness
would I see in a victim that would make me
charge an assault?
SENATOR MALTESE: Well, let's
see. I think the -- Mr. President, through
you, the only ones I could possibly refer to
are the illnesses that might take place as a
result of the injury. Possibly by having an
injury to a particular organ, you might very
well be more susceptible to some illness.
And I don't -- possibly -- I'm told
4967
by counsel possibly burns might cause some
illness that would result as a -- would be
sustained by the victim as a result of the
original injury.
Your guess -- in final answer, your
guess is as good as mine.
SENATOR GENTILE: So, Senator, if
you would continue to yield.
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR GENTILE: If I gave you
an example. If a kick to the kidneys, for
example, produced incontinence, would that be
an illness?
SENATOR MALTESE: Mr. President,
I knew that if I left it up to the Senator,
he'd come up with a good one.
Yes, I think that would be
appropriate.
SENATOR GENTILE: That would
qualify?
In addition to the kick itself.
SENATOR MALTESE: In addition to
the kick itself, which might have other
4968
results, absolutely.
SENATOR GENTILE: So in effect,
it would be two counts of assault in that
case?
SENATOR MALTESE: Well, no, Mr.
President, through you, I think it would be
one count of assault with the result being
aggravated injuries. But the count I think
would still be the same. It was still the
original kick.
SENATOR GENTILE: Right. Well,
as a prosecutor -
ACTING PRESIDENT MEIER: Senator
Gentile, are you asking Senator Maltese to
yield?
SENATOR GENTILE: Yes, if he
would.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR GENTILE: I would think
under the statute you could charge someone for
4969
the pain related to the original kick and then
later on for the physical injury created by
the illness, whatever that might be. The
incontinence or whatever that might be.
SENATOR MALTESE: Well, Mr.
President, whatever specific urinary problem
the victim would have, we would throw into the
counts, as any good district attorney would,
so you'd end up a good indictment.
SENATOR GENTILE: If the Senator
would continue to yield, because -
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator continues to yield.
SENATOR GENTILE: -- you just
mentioned the word "indictment," and that sort
of segues into my next question.
And that centers around the issue
of the injury being established by the
testimony of the victim alone. Given that
statement in the law, would that preclude the
use of medical records to establish an injury?
4970
SENATOR MALTESE: Mr. President,
through you, absolutely not. What we sought
to do is in those cases -- and there are very
many of them, and I recited earlier the tens
of thousands of assaults that take place and
the arrests that are made as misdemeanor
assaults that are either dismissed or pled
down to violations.
What we are seeking to do is simply
indicate that if all we have is the testimony
of the victim, that if the victim is credible
and the -- either the judge or the jury
chooses to believe the victim, it can't be
overturned on appeal by an overzealous jurist.
SENATOR GENTILE: If the Senator
would continue to yield.
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Thank you,
Senator.
However, you and I both know that
medical records sometimes are the
incontrovertible evidence that a prosecutor
4971
uses to establish a count of the indictment.
In this instance if, for example, an injury
were borderline, a borderline injury, but the
testimony from the victim indicates that the
victim felt pain, was hurt and, you know,
maybe was doubled over for an hour, yet the
medical records at some point that you see
medical records don't really support any type
of injury that we would know in the common
sense, you're a prosecutor in front of a grand
jury, how would you make that decision based
on this statute whether to go with the
testimony alone and charge maybe a D felony
for serious physical injury and know somewhere
down the road there's nothing to really back
that up other than the testimony of a victim
who we assume is not a medical expert?
SENATOR MALTESE: Mr. President,
I believe that we would -- I'm looking down a
list of those instances in D felonies where
physical injury is sufficient. There are a
great deal of them. But I think that that
isn't the type of case -- the case enumerated
by the good Senator is not the type of case
we're talking about.
4972
The case law that we had and that
we were talking about with some of the DAs who
came to see us, the typical case was not one
that they had even medical testimony or that
they had hospital records. In many of those
cases, we had no corroborating evidence at
all, we simply had the testimony of the victim
as to the injury. And that was the problem.
So -- and as to what it was, as to what the
injury in fact was.
So I think it speaks for itself.
Where the prosecutor has additional evidence,
certainly he's going to use it and it's going
to come out in trial and he'll submit it to a
grand jury. But where it is a question of the
testimony of only the victim, as covered by
"physical injury" and not in "serious physical
injury" in those cases covered by the more
serious charges, they would have to rely on
what they have.
SENATOR GENTILE: If the Senator
would continue to yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes, Mr.
4973
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Thank you.
Through you, Mr. President.
Senator, then I would assume, then,
under this statute you would go ahead and
charge a -- charge an assault just based on
the testimony, even though that testimony may
be a close call. Whether it's really an
assault in terms of having physical pain,
illness.
It could be somebody, for example,
tripping somebody else in the course of
whatever else was happening. One -- the
defendant tripped the victim, and that victim
says, I hurt my knee. Now, that's the
testimony of the victim. As a prosecutor,
would you feel that to be sufficient enough to
go into a grand jury and charge an assault?
SENATOR MALTESE: Mr. President,
through you, I wouldn't go into the grand
jury, because that would probably be a
misdemeanor anyway. And if that was the
charge itself, quite frankly, somebody hurt
4974
their knee, I don't think it would reach any
type of criminal level.
That's probably the type of case
that you would want to settle with a little
kick in the pants, possibly, by the arresting
officer, rather than anything more than that.
SENATOR GENTILE: Senator, I
agree. You caught me on that one. Assault
thee would not be a felony even under this
statute.
But if you would continue to yield,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: I also notice
that in addition to taking out the word
"substantial," you also took out the very much
hated word by prosecutors "protracted," the
word "protracted," protracted disfigurement or
protracted pain.
But in taking out the word
4975
"substantial" and in taking out the word
"protracted," you did insert the word
"extreme." I'm wondering, Senator, how any
less vague is the word "extreme" from all the
problems we have been having prior to this
with the word "protracted" and the word
"substantial"?
SENATOR MALTESE: Mr. President,
through you, I took the liberty of having my
staff look up some of these commonly accepted
words that we think we know the meaning of.
And one of the few that actually means exactly
what we think it does is "protracted," which
they ended up coming forward also with
Merriam-Webster, with "to extend forward or
outward," which is the -- I took the most
simple definition.
I think the problem was that judges
and juries were having trouble with
"protracted" because they thought it meant
very far extended. So when they talked about
illnesses, they thought that it would have to
involve a lengthy hospital stay or involve a
protracted injury or illness.
If you look at the serious physical
4976
injury section as to what we took out, we took
out the substantial risk of death, because
judges were interpreting it as meaning that
you had to have something that practically
spoke about an amputation at the neck to have
a substantial risk of death. But we did leave
in "risk of death," which is the common-sense
definition, or an injury which causes death,
or -- and then we took out again "serious" and
"protracted" disfigurement and "protracted"
impairment of health. Same reason. We wanted
to leave in "impairment of health," so that if
you had a situation that led to a debilitating
illness, for instance, you then had a
situation that would still fit into serious
physical injury.
And then we had protracted loss or
impairment of the function of any bodily
organ. Same thing. We felt that the courts
were coming up with the fact that if you lost
the use of a bodily organ for, let's say, a
limited period of time, they said, Well, it's
not protracted, it's not extended enough.
Then we came up with those learned
masters of jurisprudence that indicated that a
4977
portion of an organ is not an organ. So we
added "or member," which, if we consult our
trusty Merriam-Webster again, came up with a
definition of "member" which is "a body part
of an organ." Very, very technical, but -
and that's being sarcastic. But it spells it
out so that even a judge could understand it.
And then we went into the serious
physical injury may be established by proof
that the victim required surgery. And that
was the same thing. For some reason, some
judges didn't feel that even injuries that
required surgical operation -- and in some
cases, they were operations of the stomach,
the body cavities, and what have you. They
still felt it didn't qualify.
So we added that, and we added "a
course of medical treatment or physical
rehabilitation," because they were completely
knocking out anything that required
rehabilitation or therapy or what have you.
So then, to make it all-inclusive,
because in the final analysis we wanted to
give them the framework that a jury could
still exercise its common sense, or a judge
4978
could exercise his common sense -- or a
defense lawyer could exercise his common sense
and try to weigh whether his client was going
to be found guilty, so that he could possibly
seek a plea and save the time and expense of
the state in seeking the conviction all the
way through trial.
So we tried to cover just about
everything. And it isn't -- when I say "we,"
it's the extended "we." As I say, it was the
model code. It wasn't my invention. We
adopted the model code, and we adopted the FBI
rules and regulations.
SENATOR GENTILE: Well, thank
you, Senator, for that very full-bodied
answer.
I'm still not clear how the word
"extreme" is more definitive than the other
words. As you so clearly said, we've had
tremendous problems with the word
"substantial," we had tremendous problems with
the word "protracted" as to what that really
means.
And having known the problems with
that, I just don't want to see us enact the
4979
statute, replace those words and enact a
statute that adds the word "extreme." Because
I'm not sure how the word "extreme pain" is
any more definitive than "protracted pain" or
"substantial pain."
SENATOR MALTESE: Mr. President,
through you, your guess is as good as mine.
We -- I'm looking at the section "extreme
physical pain." I think it means extreme
physical pain, and I'll have to rely on that.
As to -- one of the few words we
didn't look up, because we anticipated a
lengthy debate, was "extreme." So "extreme"
is extreme.
SENATOR GENTILE: The reason I -
ACTING PRESIDENT MEIER: Senator
Gentile, do you want to -- give me something
to do, please -
(Laughter.)
SENATOR GENTILE: Yes. Okay, I
will. I will do that, Mr. President.
ACTING PRESIDENT MEIER: -- so
that I can stay awake.
SENATOR GENTILE: Yes, Mr.
President.
4980
SENATOR MALTESE: Thank you very
much, Mr. President.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR GENTILE: This riveting
debate. Thank you, Mr. President, if the
Senator would yield, I would -
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR GENTILE: Well, Senator,
the reason I harp on this is because as a
prosecutor, you, I and many others here who
have been prosecutors would often go back to
the legislative intent of this section to
figure out what in the world did the Senate,
what in the world did the Assembly, what in
the world did the Governor mean by
"protracted," what did they mean by
"substantial physical pain," "protracted pain
or impairment," what did they mean?
And I have to tell you, Senator,
the legislative intent, as indicated when this
was passed originally, is not clear. Is not
4981
clear. And therefore, as a result, we get
many of the cases that you've just cited about
wild decisions, chaotic type of rulings by
courts as to what is substantial pain, what is
protracted impairment of health. We get
all -- it's all over the board. Because the
Legislature, either in its legislative intent
or in its actual wording of the law, was not
closer as to what that meant.
So what I'm concerned about now is
that we take those words out, but then we
introduce a word like "extreme," and we're
back to where we started in terms of what are
we doing here and what do we mean. And if
somewhere down the road a legislator comes
back to look at the legislative intent of this
bill, what would that legislator -- what would
that prosecutor see in terms of legislative
intent as to extreme physical pain? I'm not
sure it's clear enough, that we're back to
where we started from with the words "extreme
physical pain." Would you agree with me on
that?
SENATOR MALTESE: Mr. President,
I think it would -- I agree with the good
4982
Senator. And I think it would take an
extremely zealous prosecutor to read this far
into the debate and come to the definition of
extreme physical pain.
SENATOR GOODMAN: Mr. President.
ACTING PRESIDENT MEIER: Senator
Goodman.
SENATOR GOODMAN: May I prevail
upon you to permit me to make a very brief
introduction of an honored guest who happens
to be with us momentarily in the chamber?
ACTING PRESIDENT MEIER: Senator
Goodman.
SENATOR GOODMAN: I'm delighted
to present to you -- those of you who I know
are very enthusiastic watchers of "The
Sopranos" will be delighted to know that we
have in our presence today Mr. Joe Pantoliano,
who would be more familiarly known to you as
Ralphie from "The Sopranos." He's in the
front row. May we give him a warm New York
State Senate welcome.
(Applause.)
SENATOR GOODMAN: Thank you, Mr.
President.
4983
ACTING PRESIDENT MEIER: Now may
we appropriately enough return to the
discussion of pain and mayhem.
(Laughter.)
ACTING PRESIDENT MEIER: Senator
Maltese.
SENATOR GOODMAN: -- Mr.
President, you might find your kneecaps
broken. Thank you.
SENATOR GENTILE: Senator, I
don't know who is where, who goes next.
SENATOR MALTESE: Yes. Yes.
SENATOR GENTILE: But anyway, do
you see the concern I have about using those
types of words, that characterization, extreme
physical pain?
SENATOR MALTESE: Yes, Mr.
President.
SENATOR GENTILE: Given the
history we've already had with this section.
SENATOR MALTESE: Yes.
SENATOR GENTILE: Do you see
that?
SENATOR MALTESE: Yes.
SENATOR GENTILE: So at some
4984
point, I would ask that maybe we do an
amendment to this section so that we can
better define extreme physical pain.
SENATOR MALTESE: Mr. President,
in 1996 when we first discussed this
legislation, we took the recommendations of
Senator Al Waldon, and as a result I think we
ended up with this bill. We'll certainly take
a look at any suggestions that are made by
Senator Gentile.
The problem we have is that what
we're trying to do is stay very closely to the
model legislation so that we can in turn rely
on decisions in other states that are
utilizing the same wording. So that in
some -- so in some sense, we would have the
answer to Senator Gentile's thoughtful concern
about what the legislative intent was.
SENATOR GENTILE: Thank you,
Senator. I appreciate you taking that into
consideration for future amendments to this
section.
If the Senator would continue to
yield, I do have a question.
SENATOR MALTESE: Yes, Mr.
4985
President.
SENATOR GENTILE: Yes, Mr.
President, if the Senator would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
The sponsor yields.
SENATOR GENTILE: Thank you.
Senator, also in the legislation
you have, as part of a serious physical injury
may be established, and you go through a
series of different ways that serious physical
injury may be established, proof of a series
of things. One of them happens to be admitted
or -- was admitted to a hospital as a patient
for medical treatment.
Now, Senator, just taking that at
face value, what would be the situation if
someone were involved in a case, involved in
an assault, taken to a hospital but then
released the same day, treated and released,
treated and released within maybe an hour
after coming to the hospital? Would that be
sufficient under this section to charge a
serious physical injury?
4986
SENATOR MALTESE: Mr. President,
through you, I don't -- I believe that it's
the normal interpretation of admitted. I
assume that an admission usually is for an
overnight stay. I don't know any place in the
Penal Code or any other definition in the
statutes where they speak about "admitted."
So -- maybe committed, but not admitted.
So I don't know. But I assume it
would be for an overnight stay and it would be
weighed accordingly.
SENATOR GENTILE: So, Senator, if
you would continue to yield. Mr. President.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Thank you, Mr.
President.
Through you, Mr. President. So I'm
assuming, then, what you're saying is that the
word "admitted" presumes that it's at least a
24-hour period of time that someone is in the
hospital?
4987
SENATOR MALTESE: Mr. President,
through you, what we're seeking to do is
establish a level of serious injury, serious
physical injury. I think a prosecutor or a
juror or a jury would take a look at it and
see it for what it really is.
What we're seeking to do is cover
those situations where a person, as a result
of an injury sustained by a perpetrator, was
admitted to a hospital and none of these other
conditions applied. And I think that would be
weighed as far as whether it was a technical
admission, whether the person actually was in
the hospital for a couple of hours, or whether
the person was in for overnight or six months.
So I think it's a matter of
interpretation, and I think it would be
weighed accordingly.
SENATOR GENTILE: Then through
you, Mr. President, if the Senator would
continue to yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes, Mr.
President.
4988
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Given the types
of problems we've had with this section for
many years -- and you and I have dealt with
those problems -- to leave a section of this
law, as you say, to interpretation brings us
back into that quagmire of judges and courts
and juries deciding one way or the other
whether this is a serious physical injury.
Wouldn't it be better, given the
history we've had with this section, to really
pin down what we mean by an admission to a
hospital?
SENATOR MALTESE: Mr. President,
I think that we've attempted, as much as
possible, to specify exactly what we mean by
serious physical injury. And I think
admission to a hospital would, under ordinary
circumstances, imply that an injury is
serious.
So I think as far as the hospital
stay itself, I don't know that that is that
pertinent. And, quite frankly, I'm very
satisfied with the wording of the statute as
4989
it is. "Admitted to a hospital" I think
covers those isolated instances where the only
thing we had to indicate serious physical
injury was an admission to a hospital.
SENATOR GENTILE: And then,
Senator -- if the Senator would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: So given what
you just said, it still comes down to whether
a court or a judge or a jury decides whether
just an admission to a hospital rises to the
level of a D felony.
SENATOR MALTESE: Mr. President,
as the Senator is aware, I don't think that
that's the sole criteria. I think that this
is one of the factors taken into
consideration. And we might very well have
other factors -- the injury, the people
testifying to the circumstances of the injury,
4990
how -- where it occurred, how it occurred,
under what other mitigating circumstances.
And then where you have a question as -- only
dealing with the severity of the injury, the
fact that the person was admitted to a
hospital under ordinary circumstances would
certainly indicate to a thoughtful person of
normal discernment and intelligence that it
rises to the level of a serious physical
injury.
SENATOR GENTILE: Thank you,
Senator.
On the bill.
ACTING PRESIDENT MEIER: Senator
Gentile, on the bill.
SENATOR GENTILE: I want to thank
Senator Maltese. And certainly he's
criss-crossed this bill with definitions.
And unfortunately there was one on
the word "extreme" which still troubles me, in
that -- not because this is a bad bill. I
think this is a great bill and it certainly
will be a help to prosecutors and to victims
in getting better justice out of assault
charges.
4991
However, the word "extreme," as we
have discussed, is still troubling to me
because I just fear that that word "extreme
pain" will take us right back with defense
attorneys into this quagmire of what is and
what isn't extreme physical pain. And that is
just the same quagmire defense attorneys and
courts and juries have taken us into with the
words "protracted impairment of health" or
"substantial physical pain."
And the only reason I object to the
word or question the word "extreme" is that
I'm afraid we're not going to get out of that
quagmire. And that's why, Senator, I suggest
and implore that we look at that word, that
phrase "extreme physical pain" and maybe do a
further definition -- if not in this bill, in
a subsequent bill -- to that.
Having said that, let me
congratulate you on bringing this forth.
Because of any section of the Penal law that
has been a real problem for prosecutors and
for victims who are not getting the justice
they deserve, it has been the assault sections
of our Penal Law. And in order -- the way you
4992
have reworded our Penal Law sections on
physical injury and serious physical injury I
think for the most part will help that whole
issue of what is physical injury, what is
serious physical injury.
But for that terminology of
"extreme physical pain," I think you have done
a very excellent job of trying to pin it down
the best way we can in terms of what it means.
So I think victims, whether they be
domestic violence victims -- whether they be
victims of street assaults, whether they be
victims of assault or reckless endangerment or
any of the myriad areas of the law which these
definitions are a part of -- will benefit from
the fact that it's more precise with examples
of what physical injury is.
But for that word "extreme," I
would say this was a perfect amendment to this
section of the law. But even with the word
"extreme," it's a very good amendment to this
section of the law. So I will be voting for
it and urge my colleagues to do the same.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
4993
Montgomery.
SENATOR MONTGOMERY: Mr.
President, through you, I wonder if Senator
Maltese would answer a couple of questions.
ACTING PRESIDENT MEIER: Senator
Maltese, will you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Thank you.
Senator Maltese, I just want to be
clear about the family definition vis-a-vis
the legislation here. It refers to
domestic -- members of a domestic family.
SENATOR MALTESE: Mr. President,
through you, there's no definition of family
in the -- this is Senate 95. I think you
might be looking at a prior year's bill. I
think we had a more elaborate bill in '96 when
we debated it with Senator Waldon.
This is simply defines, in one
page, physical injury and serious physical
injury.
SENATOR MONTGOMERY: Oh, okay.
4994
Through you, Mr. President, then let me ask my
question another way.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield to another question?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR MONTGOMERY: In the event
that we have a situation where two youngsters
are -- get into an altercation and one of
those youngsters is injured -- i.e., a black
eye or some laceration or other -- and it
turns out, as young people do very often get
into physical contact with each other, it's
not really an instance of abuse or instance of
criminal activity that's guiding this physical
incident. Would that, at any rate, fall under
this legislation?
SENATOR MALTESE: Mr. President,
I'm looking at the definition of assault in
the third degree, which is punishable by up to
one year in prison. A person is guilty of
assault in the third degree when, with intent
to cause physical injury, he causes such
4995
injury.
I believe that type of an injury
would probably classify as an assault third
degree. At the same time, I can't see a
prosecutor making that anything other than a
violation, if they even make an arrest in the
first place.
SENATOR MONTGOMERY: Through you,
Mr. President, I would like to ask another
question.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield to a question?
SENATOR MALTESE: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR MONTGOMERY: Okay. So in
the case of the incident that I just
described, it could be two siblings in a home,
it could be two friends, it could be two
classmates in a school. But nonetheless, in
any event, there is no exception, except
through the judgment of the prosecutor, to
this law, who it applies to.
SENATOR MALTESE: Well, the -
4996
Mr. President, through you, I think when
you're writing criminal statutes, they say
that they must be strictly interpreted. And I
think that would be one of the situations,
aside from any -- if we use the underage
defendants as an instance, they would be
subject to penalties, of course, appropriate
to their ages.
But let's assume that we have two
people covered by this. I think that the
average prosecutor, even if a cop made an
arrest at the scene, possibly to break up a
fight, I think common sense would prevail and
this is the type of situation that would be
resolved with maybe an ACD or something like
that.
SENATOR MONTGOMERY: And one last
question, Mr. President.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield to another question?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Thank you.
4997
Through you, Mr. President, I'd just like to
ask Senator Maltese to clarify for me, even in
the event of a physical injury -- and I want
to continue to focus on -- essentially on
minors, on kids who get into these
altercations fairly frequently -- what is the
level of the conviction? Is that assault in
the third degree, or is it more than that? Or
how far does that go in terms of physical
injury versus serious physical injury?
SENATOR MALTESE: Well, Mr.
President, I think you might very well, in
that case -- I mean, if I were either a
defense lawyer or a prosecutor, I think that
would fall within the harassment statutes,
which are punishable as violations up to 15
days.
And I think there you would have -
even though the injury is classified as a
physical injury, I think it would probably be
more likely to fall under strikes, shoves,
kicks, or otherwise such other person to
physical contact or attempts or threatens to
do the same.
So I think especially where
4998
youngsters are involved, what you have is
common sense prevails. And I don't see, with
all that law enforcement has to do, that
anybody would seriously attempt to charge what
many of us engaged in as youngsters with an
assault charge or conviction.
SENATOR MONTGOMERY: Okay. One
last question, Mr. President.
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR MONTGOMERY: Thank you.
Senator Maltese, you have defined
physical injury here. I don't recall, from
the School Safety Act that we passed last
session, what the extent of -- how they define
this situation. But you do know that we now
have -- it is possible for a young person who
is in middle school, high school, even
elementary school to be charged with an E
felony.
And I'm just wondering, how does
this bill, your legislation, mesh with our
School Safety Act? Because in that instance,
in the event that there is an altercation in a
4999
school, it is possible for a person to be
charged with an E felony. And I'm just
wondering if this bill further defines what
those charges -- what would cause a person to
receive such a charge.
SENATOR MALTESE: Mr. President,
I'm informed by counsel that she believes that
was under the Education Act. What we have
here is a definition which can be referred to
by other statutes, but it's a definition under
the Penal Law. And these are a set of
definitions under Article 10 where we're
referring only to the Penal Law.
So I guess the bottom line, the
answer to your question is I don't know.
SENATOR MONTGOMERY: Okay. Thank
you, Senator Maltese.
Mr. President, just briefly on the
bill.
ACTING PRESIDENT MEIER: Senator
Montgomery, on the bill.
SENATOR MONTGOMERY: These bills
like this one and many others that we debate
and pass in this chamber are very troublesome
because, as I view it, more and more we are
5000
casting the net to younger and younger people
to be caught up in the criminal justice
system. They are not excluded in any of the
legislation. There is no indication that we
intend at all for prosecutors to consider age.
Even in the School Safety Act, it is not
there.
And so while, you know, this looks
very good, it's important to protect people,
especially people who are involved in domestic
violence situations, this really is going to,
in addition to making it possible for the
prosecutor to more specifically define and
prosecute based on the definitions here, it is
also going do leave open a very wide area
where prosecutors can also bring charges and
conviction against younger and younger people
for behavior which is essentially what most
young people get themselves involved in,
especially young males.
And I can say to you especially
young African-American males, because they are
very contact, physical-contact-oriented. So
one is going to get into a fight, the other
one is going to get a black eye or whatever it
5001
is that happens when they get into these
scrapes, they are friends the next day or the
next two days, but if one in a fit of anger
calls the police and there is an arrest
made -- or some parent, because it's very
often the parents who are most outrageous when
it comes to this kind of behavior, calls the
police, the police come, and that young person
is now with a felony conviction.
So while I am extremely concerned
and sympathetic about what happens in domestic
violence cases, I also am equally concerned
about what happens to young men and women who
might be caught up in this particular piece of
legislation, be charged, and really
unnecessarily, because they are just acting
out as regular teenagers or below.
So I'm going to be voting no on
this bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the sponsor
would yield for a few brief questions.
ACTING PRESIDENT MEIER: Senator
5002
Maltese, will you yield to a question?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
I have questions in two areas. I understand
the effort to come up with a definition that
is more workable, but I'm concerned that in
the drafting there may be some more problems
lurking here were this to become law.
First of all, I would ask -- I
don't think I understand the elimination of
the requirement for "protracted," the word
"protracted" being taken out when it comes to
the definition in Section 10 of this bill. It
would seem to me, then, by taking out
"protracted," it's possible that a very
painful but very brief impairment, which you
may suffer by having the wind knocked out of
you or by being kicked in a particularly
odious place, could fall into the
qualification of serious physical injury. Is
that correct?
SENATOR MALTESE: Through you,
5003
Mr. President, what we sought to do by the
elimination of "protracted" is having
"impairment" stand alone rather than -- in
other words, as I see it here, the
"protracted" is simply before "impairment of
health" or "protracted," again, "loss or
impairment of the function of any bodily organ
or member."
So I think -- and I don't -- I only
can speak for my own thoughts in adopting the
language. I don't know what was in the minds
of the original drafters. But it seemed to
make some sense to me when I read through some
of the case law that the word "protracted" was
being interpreted by judges to mean an
unnecessarily lengthy period of time.
So I think by leaving it out we end
up with not having a length of time as a
predicate toward the impairment of health or
the other situations that are enumerated in
the statute.
SENATOR SCHNEIDERMAN: Well,
through you, Mr. President, I understand the
difficulty. I'm just afraid that by taking
out any durational requirement, we're opening
5004
ourselves up to a whole other set of problems.
For example, the impairment, no
matter how short in duration, of the function
of any bodily organ. Well, you know, if
someone loses their breath or passes out -
and I actually had to defend someone in a case
like this once, where someone passed out as a
result of some sort of a chokehold or a
game -- not really a chokehold, but a game.
That would be a momentary impairment. The
person would revive themselves quickly. But
under this definition, certainly losing
consciousness, however briefly, is an
impairment of a function of a bodily organ.
So it seems that maybe we do need
to come up with something else. And I'm
wondering if you might consider something that
made it clear that a duration of a very short
period of time was not what was required, but
that something beyond the immediate pain of
being kicked, perhaps, resulting in no injury,
or the impairment through some contact that
departed quickly would not be what was
intended here.
SENATOR MALTESE: Mr. President,
5005
through you, I agree that that would not be
what was intended, certainly under a
definition of serious physical injury.
But at the same time, I think
although we didn't again say in the light of
common experience, I think this is just one
element of the crimes that would be -- the
perpetrator would be arrested for or charged
with or convicted of. And I think that what
we're simply trying to do is clarify the
definitions.
And we're not going to be able to
cover every single extension of law that could
possibly be inferred or implied or made up by
a good, ingenious district attorney seeking to
defend his client.
So I think what we have again I say
is pursuant to the model code. We have the
same section, pretty much the same section,
although I remember that it was exactly the
same section adopted as in some other states,
and as a result we'll have that other law to
rely on. And assuming we have some
particularly heinous situation, although I
can't imagine it, where somebody is either
5006
released or convicted under the flimsy -
either a flimsy case or a case that does not
call for such either heinous punishment or
slap-on-the-wrist justice, then you'll have
one of us coming up with a new definition.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, the
other area that I'm curious about is wouldn't
it be the case that under current law most of
what is going to be added to the law of
assault by this bill would be covered under
the law of harassment?
SENATOR MALTESE: I don't believe
so. Because what we're trying to do is cover
definitions that are beyond harassment and
into the assault categories.
SENATOR SCHNEIDERMAN: Well, no,
I understand we're trying to understand the
scope of what's covered by assault. But it
would seem to me that even absent this
statute, most of the examples that have been
identified, and particularly in the case of
domestic violence, my understanding is that
those would currently be covered under the law
of harassment, which I realize may in your
5007
view not be sufficient. But it seems to me
that we are intruding one area of the law into
another. And I'm not saying that's a bad
thing. But is it correct that most of these
incidents would be covered currently?
SENATOR MALTESE: I don't believe
so. I'm looking for my definition of
harassment. But I don't believe it involves
physical injury in harassment.
The harassment in the third degree
that I quoted earlier did not involve, if you
recall, any physical injury. It simply spoke
of pushing, shoving, and what have you.
Yeah, I'm informed by counsel that
it speaks of threat of physical injury rather
than physical injury itself.
I think what my colleague is
obviously talking about is what happens -- and
I refer to earlier when we spoke of the
conviction rate, is that where we had charges
of either assault third, which was a Class A
misdemeanor, or assault second, which was a D
felony, we had pleas to violations occurring
in 68.60 percent of the time and 47.60 percent
of the time. And they were just looking for a
5008
convenient charge to plead to because the case
itself either was unprovable under the present
definitions or the situation and the facts of
the case didn't call for any more.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I
appreciate the sponsor's efforts to come to
grips with what I think is a failing in the
current law. I share the concerns of some of
my colleagues that we may be creating other
problems. And whenever you have a statute
with language that is descriptive rather than
more quantitative, you have problems with
interpretation.
I think that the difficulty we have
here is that in addition to clever defense
lawyers, we have some very clever and
aggressive prosecutors in this state. I had
the pleasure of meeting one from Senator
Maltese's district earlier today at the Codes
Committee hearing. And I think that we do
have to be very, very cautious when we're
5009
expanding this sort of definition.
However, I do agree that the issue
of ensuring that the victims of domestic
violence have an easier time getting into
court is very, very important. I do happen to
believe that an expansion of the provisions of
the law of harassment, as currently drafted,
is an important aspect of this effort to fill
in the gaps. And I would urge that that's
something else that we should take a look at.
But, you know, I am cognizant of
the difficulty involved here and the effort
that's being made to fill in these gaps, and I
do appreciate that.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
if the Senator would yield for a couple of
questions.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield to a question from
Senator Paterson?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
5010
sponsor yields.
SENATOR PATERSON: Senator, I'm
interested in some terminology, as were some
of the previous questioners. And you have
here the issue of a palpable -- is it palpable
laceration or palpable -
SENATOR MALTESE: I think it was
palpable contusion.
SENATOR PATERSON: Palpable
contusion, that's it. I'm sorry, I forgot. A
palpable contusion.
Now, I'm trying to understand what
that means, because palpable can be something
you can touch. It's something that you can
see, as in something that's noticeable. Or
palpable could be something in the mind of the
person that believes that it happened,
something that would be manifest.
And I'm just wondering, what does
palpable mean with respect to the injury
described in this bill?
SENATOR MALTESE: Mr. President,
through you, first of all, I want to thank
Senator Paterson, because my staff members had
to look up all these words. And if he hasn't
5011
asked the question, the next time I asked them
to do it, they have been much more reluctant.
So this time at least I can point to this
debate and say that their work was not in
vain.
And "palpable" -- and I asked for
the simplest definition in each case -- was
capable -- quite correctly, as Senator
Paterson indicated -- capable of being touched
or felt, which was exactly as he spelled it
out.
Now, "contusion" I think was injury
to tissue, usually without laceration. So we
have a situation that I suppose it's an injury
to the tissue that you couldn't easily detect
by sight. And if we look at "laceration," we
have a torn and ragged wound.
So I assume that since -- it would
have seemed to me, if I were just talking
about laceration, I would have thought it was
just about -- would have covered any abrasion.
But since it did not, and it speaks of
something more serious, torn and ragged wound,
it would seem to me it would also cover some
sort of scraping or abrasion which would be
5012
palpable.
SENATOR PATERSON: Thank you,
Senator. And therefore, Mr. President, if
Senator Maltese would continue to yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Then is there
such an injury that would be nonpalpable?
Since "palpable," not only defining those
things that are tangible or discernible, would
also cover things that are manifest, something
that would be subjective in the mind of the
victim, would that be palpable?
SENATOR MALTESE: Well, through
you, Mr. President, I guess if we look at
physical injury and the use of the word
"palpable," what we were trying to do is cover
something I suppose of a lesser degree than
the laceration.
But it's just one of the things
that were mentioned in a recitation of a
5013
number of injuries. And therefore, I don't
want to venture into the medical arena as to
whether or not we could have an injury that
palpable -
I'm referred to by counsel, who is
being called on more and more on these
extremely technical legal terminology, she
said a bump on the head might be something
that would fall into that category.
(Laughter.)
SENATOR PATERSON: Thank you, Mr.
President. If Senator Maltese and his counsel
would be willing to yield for yet another
question.
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
The sponsor yields.
SENATOR PATERSON: And, Senator,
you've been quite comprehensive in your
responses.
I'm just curious about the
subjective conclusion of the victim providing
the only evidence in a particular type of
5014
case. Specifically, it just -- when a victim
signs the corroborating affidavit, they're not
going to say, Well, I wasn't really that badly
injured. Victims are going to tell you that
they were injured, and because they really
believe that they were.
Now, outside of any medical
reports, medical examinations, photographs
from the police, aren't we going down a bit of
a dangerous slope? And I recognize the
intent, Senator -- and I'd like to
parenthetically just set aside my question for
a moment just to tell you that domestic
violence cases are really difficult in that
respect, because they do often involve
evidentiary problems that make it difficult
for prosecutors.
And we're in this chamber, I came
here 15 years ago, when it was still difficult
to get, I think, lawmakers to understand the
horrible nature of domestic violence and the
way that it cripples families and divides
family members against each other. And now
we've reached that understanding, to a degree.
I think there are many that think that we have
5015
some distance to go, and perhaps we're going
some of that distance through the adoption of
the legislation that you offer.
But as Senator Montgomery so
cogently pointed out, we're not talking about
a policy here as domestic violence would be.
We're really talking about terminology:
Assault three, assault two, different types of
hazing. But also different types of
harassment and aggravated harassment and
aggravated assault. So we're really rewriting
the terminology so it can be applied to almost
any type of case.
Senator Duane raised with you the
issue of rape. I would hate to be a district
attorney trying a rape case where it was only
the conclusion of the victim, regardless of
whether or not the victims are right
90 percent of the time, as they probably are
in those instances -- but I'm just saying from
an evidentiary standpoint, it would be very
hard to defend against that without some type
of corroborating evidence. And as a person
who knows not only the difficulty of
prosecution but one of defense, I was just
5016
wondering about your willingness to put that
definition into the legislation.
SENATOR MALTESE: Mr. President,
through you, I think what we're attempting to
do is clarify a definition which is a part of
the requirements to fit within certain
statutes. And the assault statutes are the
statutes that in just about every case but
one, where we had the stalking, were
applicable here.
I think what we may be forgetting
is that it's simply one element of the case
which would end up putting it into that
classification of assault. For instance, in
the case law, the case squibs after the
definitions in Article 10, we have a case,
Matter of Sean, in 1996, where the victim's
testimony that his cheek and jaw were bruised
and swollen, that he had difficulty eating,
talking, and moving his jaw for several days,
and that he took pain medication to reduce the
pain, was sufficient to establish that victim
sustained a physical injury for purposes of
statute, providing that person is guilty of
assault in the third degree.
5017
So we have a situation where we're
simply trying to particularize the type of
injury, which is the physical injury, and
we're trying to arrive at an evidentiary proof
as to whether it rises to the level of
physical injury. So when you pick out that
it's only -- that it could be proven only by
the testimony of the victim, I think that it
is an unfair extension, because the case
itself would not end up relying -- in 99 cases
out of 100, would not end up relying
completely on the unsubstantiated testimony of
the victim.
I think that the average judge, and
we talk about common sense and what's commonly
accepted, would not accept the testimony only
of a victim with no other corroboration.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
President. That answers my question.
I have one additional question, if
Senator Maltese is willing to yield.
ACTING PRESIDENT MEIER: Senator
Maltese, will you yield?
5018
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Maltese yields.
SENATOR PATERSON: Senator, the
issue of illness as it's applied to this
particular case is an illness that might have
arisen out of -- as a result of one of the
statutory violations that are listed in the
class that you've presented.
I was wondering about the
possibility of a preexisting illness that
might have been aggravated by some sort of
attack. Would that qualify as an illness, or
is that something we might need to write into
the legislation?
SENATOR MALTESE: Mr. President,
through you, you know, harking back to the
prior questions and answers, I think that
Senator Paterson has come up with the
situation that could refer -- that could
further explain it. In other words, the
aggravation of a preexisting illness could
very well be a situation that would not fall
within the definition of an injury but could
5019
fall within the definition of an illness. So
that might very well be the illness that we
speak about in the definition of physical
injury.
I think a judge might be more prone
to give credence to the aggravation of a
previous illness than to classify the
aggravation of a previous illness as an
injury, which it would not be.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: I have been
one who for a long time has really wanted to
try to bring the laws that we enact here in
this state in line with what I thought would
be meeting even the barest threshold of
addressing the issue of domestic violence,
which we have covered up and left unaddressed
for a number of years. But I certainly have
not worked any harder on that than Senator
Montgomery, who I thought got up and really
5020
raised some very important issues, that
domestic violence, as serious and as tragic as
it is in our society, has divisive as it is in
families, nonetheless makes a very good
foil -- not that it was intended that way at
all, because I know of Senator Maltese's
commitment to this issue. But just in terms
of the way you look at the legislation, it
almost creates a veil.
I think that we all want to fight
domestic violence, but not all these cases
would necessarily be domestic violence cases.
Just about every kind of assault or attack is
listed herein. And when you look at those
type of attacks, it really is a little
eye-opening when Senator Maltese says that he
thinks that only in 1 percent of the cases
could you actually rely on the subjective
conclusions of a victim to provide the entire
breadth of evidence that's used against the
perpetrator.
Well, if that's the case, then I
don't think we need to have it in this bill,
quite frankly. We can help to try to close
the loophole which Senator Maltese describes.
5021
He talks about the Rojas case, where a gunshot
wound -- this was held in 1984 -- didn't
really constitute an injury. He talks about
the case of Phillip A., where a black eye did
not constitute a sufficient physical injury.
And he goes on to talk about the Jiminez case,
where two punches to the face didn't advance a
physical injury.
Well, you never know. Two punches
to the face, depending on who was throwing
them, might or might not. A gunshot wound
that, you know, perhaps perforated someone's
hand for a moment might not be. In most
cases, they certainly would be.
But in those seldom instances where
they are not that Senator Maltese is trying to
address in this legislation, I think he quite
properly can do that without going to the -
and here's a word that we had a lot of
discussion about, "extreme," which is defined
as something that's out of the ordinary or
going to a great length, or sometimes going to
an exaggerated length.
And I think that that's to some
degree what this legislation is doing, in
5022
spite of all the good that it does and in
light of all of the tremendous work that
Senator Maltese and his counsel put into it.
I really have to think about this
for a moment. But I'm just sharing with my
colleagues my caution about these situations
where you get the victim's word and then you
have a prosecution, like in To Kill a
Mockingbird.
And when you have an unfavorable
climate and you have an individual who stands
alone being prosecuted, they can't show you a
medical report, they can't show you any
medical evidence, any type of kit of some sort
where there was an examination of the victim,
they can't show you any police photos of the
victim and -
ACTING PRESIDENT MEIER: Excuse
me. Excuse me, Senator Paterson.
Senator Skelos.
SENATOR SKELOS: Mr. President,
what time did debate start?
SENATOR PATERSON: Oh, no.
ACTING PRESIDENT MEIER: 3:55,
Senator Skelos.
5023
SENATOR SKELOS: Mr. President,
pursuant to Rule IX, Section 3-D, I move we
chose debate at this time.
ACTING PRESIDENT MEIER: All
those in favor of closing debate signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
SENATOR CONNOR: Party vote in
the negative.
SENATOR SKELOS: Party vote in
the affirmative.
ACTING PRESIDENT MEIER: The
Secretary will call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 33. Nays,
23. Party vote.
ACTING PRESIDENT MEIER: Debate
is closed, the main question before the house.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
5024
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Paterson, to explain his vote.
SENATOR PATERSON: I'm back.
(Laughter.)
SENATOR PATERSON: Where was I,
Mr. President?
ACTING PRESIDENT MEIER: Use your
two minutes however you wish, Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
President. And thank you, Senator Skelos. I
was just getting warmed up.
SENATOR SKELOS: You have two
minutes to cool down.
SENATOR PATERSON: Mr. President,
Senator Skelos says I have now just about a
minute to cool down, so I'll do that just by
pointing out that I'm going to vote against
this piece of legislation. I think I can vote
for it in the future. I really would just
like Senator Maltese to augment just the
notion of the subjective conclusion of the
victim providing the basis for prosecution,
5025
even in the very few cases where it actually
occurs.
I really think we need to do that
just to make sure that the accused are not put
in the position where they have no ability to
defend themselves and the burden of proof is
switched to the defendant rather than to the
plaintiff in order to establish a case.
Everything else about this bill is
fantastic. I appreciate Senator Maltese's
work. He was extremely responsive to our
questioning. We appreciate it more than he'll
ever know.
And with that I vote no, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Paterson will be recorded in the negative.
Senator Connor, to explain his
rote.
SENATOR CONNOR: Thank you, Mr.
President.
I voted for this legislation last
year. And again, it was another one that I
have to confess I didn't scrutinize. It
looked okay at first reading. I certainly
5026
agree with what Senator Maltese is attempting
to accomplish by this legislation.
But upon the close scrutiny that
I've heard today and that's come out in the
questioning, particularly the concerns
expressed by Senator Paterson, I do think this
legislation is good, but I think it needs just
a little bit of a touchup here to address the
concerns that Senator Paterson expressed.
So in view of that at this time,
Mr. President, I vote no.
ACTING PRESIDENT MEIER: Senator
Connor will be recorded in the negative.
Senator Duane, to explain his vote.
SENATOR DUANE: Thank you, Mr.
President.
I am going to vote in favor of in
legislation, but I have to say I'm very, very
disappointed that debate was cut off. I don't
think that victims of domestic violence in
this state would be comforted to know that
they're only worth two hours of discussion in
this body. Certainly an issue of such
importance as domestic violence deserves as
thorough and thoughtful a discussion as we can
5027
possibly make it. I don't know what it is
that we're paid to do here, but certainly if
it's not to address the issues of domestic
violence, then I don't know why it is that
we're here.
I'm going to vote in favor of this,
but certainly more needs to be said about
domestic violence. And I hope we'll do that
another time.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the affirmative.
Senator Stavisky, to explain her
vote.
SENATOR STAVISKY: Yes, to
explain my vote.
I wish that there were additional
bills concerning domestic violence included.
Perhaps later in the session we will have some
of the bills that Senator Oppenheimer
described earlier.
But I'm delighted with this
legislation, and I vote yes.
ACTING PRESIDENT MEIER: Senator
Stavisky will be recorded in the affirmative.
5028
Senator Hevesi, to explain his
vote.
SENATOR HEVESI: Thank you, Mr.
President. I rise in support of this piece of
legislation, commend the sponsor for bringing
it.
But I also would concur with
Senator Duane that this is a very important
issue, domestic violence and victims in
general in this state. And I too again am
dismayed and I'm not going to stop talking
about the fact that not permitting sufficient
debate to run its course in this body does an
injustice not only to this institution but to
every member of this institution and the
people we represent. It's not right.
And this was an informative debate.
This is the fourth bill we've done today. I
actually changed a vote that I had made last
year based on the debate we had on the first
bill today. So these debates are fruitful,
they're important. This is a good bill, but
there's no reason why we need to cut off
debate on it.
So I'll support this legislation.
5029
I'm going to vote yes on this. But we all
continue to be disenfranchised by the rules
that cut debate off. It's really unfair and
really unfortunate.
But in the meantime, I vote yes and
commend the sponsor for bringing this
legislation. I believe it have a positive
impact. I vote aye.
ACTING PRESIDENT MEIER: Senator
Hevesi will be recorded in the affirmative.
Senator Onorato, to explain his
vote.
SENATOR ONORATO: Mr. President,
I rise too to support Senator Maltese. I
think he did an outstanding job on providing
us with many, many insights into what he's
really trying to accomplish.
But again, I know we're going to be
revisiting this again. And I would urge him
as a layman to get away from all of these
technical terminologies so that we can really
vote on knowing what is extreme, what is
problematic, and try to get back to the basics
of plain and pure simple English so that we
know exactly what's going on here.
5030
So again, I do support your
legislation, and I vote yes.
ACTING PRESIDENT MEIER: Senator
Onorato will be recorded in the affirmative.
Senator Stachowski, to explain his
vote.
SENATOR STACHOWSKI: Mr.
President, to explain my vote.
I'd like to thank Senator Maltese
for taking all the questions and answering as
thoughtfully as he had. I'd like to thank
Senator Gentile for his questioning. I
learned an awful lot in their exchange.
I think that the debate served a
purpose. I for one, not being a lawyer,
learned a lot about all the different facets
and how people get off. And I was fascinated
by Senator Maltese's reading to us of a case
where somebody got stabbed in the neck twice
and it wasn't a serious injury. I found that
kind of interesting. Not terribly surprising,
but very interesting.
And because I always support law
and order bills, whether they're one-housers,
whether a bill is without a sponsor in the
5031
Assembly or hopefully will eventually get a
sponsor, hopefully not, Senator, your good
friend Assemblyman Seminerio, because
currently I don't think he can get it passed.
But I would like to support the
bill and vote yes. Thank you.
ACTING PRESIDENT MEIER: Senator
Stachowski will be recorded in the
affirmative.
Senator Espada.
SENATOR ESPADA: Thank you, Mr.
President.
I indicated that I would be voting
no on this matter. And I share my colleagues'
laudatory comments with respect to the debate.
I actually started out believing strictly that
this was a domestic violence measure. But in
fact, to the heart of it, it really is the
uncorroborated evidence that, you know, would
put a defendant in the position where they
have inherited the total burden.
And I think that it did turn into
what I thought would be an issue of domestic
violence into an issue really of really
examining the ramifications of the shift in
5032
the Penal Law. And that's why I'm voting no.
ACTING PRESIDENT MEIER: Senator
Espada will be recorded in the affirmative.
Senator Breslin, to explain his
vote.
SENATOR BRESLIN: Thank you, Mr.
President. As a long time president of a -
ACTING PRESIDENT MEIER: Just a
second, Senator Breslin. I incorrectly stated
Senator Espada's vote. Senator Espada will be
recorded in the negative.
SENATOR ESPADA: In the negative,
Mr. President.
ACTING PRESIDENT MEIER: I'm
sorry.
Senator Breslin.
SENATOR BRESLIN: Thank you, Mr.
President.
As the long-time president of a
halfway house for women, many of whom were
victims of domestic violence, I applaud
Senator Maltese for his perseverance, for his
patience, and for this bill. I know many,
many cases where there was in fact violence
committed in these cases against women where
5033
charges were not brought and, if they were
brought, they weren't proved because the
statute wasn't clear and precise enough, and
people escaped because of that.
So even though I thought there was
some degree of irony having Ralphie from "The
Sopranos" come in during the debate, I still
don't think it took that much away from it,
and I applaud you and I vote in the
affirmative.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Breslin will be recorded in the affirmative.
Senator Malcolm Smith, to explain
his vote.
SENATOR MALCOLM SMITH: Thank
you, Mr. President.
I also rise to congratulate my
distinguished colleague from Queens. I think
what he has done here today says a lot to
especially a number of women who are
unfortunately in very abusive situations.
What happens most of the time is when someone
looks to seek charges against someone who has
committed such an assault against them,
5034
oftentimes the actual crime itself or the
degree of the crime cannot be established due
to this vagueness in the law.
And what happens subsequent to that
is there is an order of protection which
everybody around here knows, orders of
protection are just as good as the paper
they're on. There have been many deaths that
have resulted as a result of orders of
protection, because there has not been
substantial -- I guess one could say
substantial follow-through on that particular
order of protection.
What this bill now does is it
immediately establishes what the extent of the
crime is, or the problem is, and it will then
allow the judicial system to make the kind of
decision that will put a person in a position
where they're not able to commit such a crime
again.
I think that Senator Maltese has
probably won every woman's vote in the state
of New York because of this particular bill.
And I am also going to support this bill.
ACTING PRESIDENT MEIER: Senator
5035
Malcolm Smith will be recorded in the
affirmative.
Senator Lachman, to explain his
vote.
SENATOR LACHMAN: Yes, very
briefly I also want to commend Senator Maltese
for this bill. I have learned a great deal in
the discussion that I heard in the chamber, in
the lounge, and in library, with different
modulations of temperature in the three
different places.
I also want to commend my colleague
Senator Gentile, from whom I learned a great
deal about the legal implications.
But again, this is a worthwhile
bill, and Senator Maltese should be commended
for sponsoring it. I will vote yea.
ACTING PRESIDENT MEIER: Senator
Lachman will be recorded in the affirmative.
Any other Senator wishing to speak
on the bill?
Record the negatives and announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 5 are Senators
5036
Connor, Espada, Montgomery, and Paterson.
Ayes, 52. Nays, 4.
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
some motions, Senator.
Senator McGee.
SENATOR McGEE: Mr. Chair -- Mr.
Speaker -
ACTING PRESIDENT MEIER: No,
thank you.
SENATOR McGEE: Mr. President,
excuse me, on behalf of Senator Morahan, on
page number 10, I offer the following
amendments to Calendar Number 149, Senate
Print Number 197, and ask that said bill
retain its place on Third Reading Calendar.
ACTING PRESIDENT MEIER: The
amendment are received and adopted, and the
bill will retain its place on the Third
Reading Calendar.
SENATOR McGEE: Thank you, Mr.
5037
President.
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: Mr.
President, on behalf of Senator Libous, please
place a sponsor's star on Calendar Number 307.
ACTING PRESIDENT MEIER: So
ordered.
Senator Hevesi.
SENATOR HEVESI: Mr. President,
I rise to consent unanimous consent to be
recorded in the negative on Calendar Number
329, Senate Print 3948.
ACTING PRESIDENT MEIER: Without
objection, Senator Hevesi will be recorded in
the negative on Calendar 329.
SENATOR HEVESI: Thank you, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Mr. President, I
move we adjourn until Wednesday, April 4th, at
10:00 a.m.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
5038
Wednesday, April 4th, at 10:00 a.m.
(Whereupon, at 6:10 p.m., the
Senate adjourned.)