Regular Session - April 23, 2001
5705
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 23, 2001
3:08 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
5706
P R O C E E D I N G S
THE PRESIDENT: The Senate will
come to order, please.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: With us this
afternoon to give the invocation is Rabbi
Shmuel M. Butman, from Lubavitch Youth
Organization, in Brooklyn.
RABBI BUTMAN: Thank you very
much, Madam Chairman.
Let us pray together.
We're here every year around this
time. It's to celebrate the 100th birthday,
or the beginning of the centennial year of the
Rebbe Menachem M. Schneerson, the leader of
the Chabad Lubavitch movement.
It is customary to see the chapter
and psalm that corresponds to the year in
which a person enters. Which means when a
person becomes 99 years, he says Psalm Number
100. And Psalm Number 100 is called, in
5707
Hebrew, Mizmor L'Todah, which means the Psalm
of Thanks, of giving thanks to Almighty God.
And in this psalm King David speaks
to each and every one of us and tells us about
the importance of thanksgiving, of giving
thanks to God on a steady basis, on a daily
basis. As a matter of fact, in our liturgy we
do this three times a year.
I know in America there's a great
day called Thanksgiving, but that's only once
a year. And also many of us, when it comes to
that day, many times we're more busy with the
turkey and with the trimmings than with the
actual giving of thanks.
Thanksgiving has to be every single
day. We thank God for all the good things
that He has done for us, we thank Him for the
constant miracles, we thank Him for the life
that He is giving us, we thank Him for the
sustenance, we thank Him for all the good
things. And that, the thanks that we offer
God, brings about that Almighty God bestows
His blessings on us in an ever-greater
measure. This is why the thanksgiving is so
important on a daily, daily basis.
5708
I want you to know, friends, that
every Saturday in our synagogues we say a
special prayer for each and every one of you.
We say a special prayer of [in Hebrew] for all
those who are occupied with public service, as
each and every one of you is. And Divine
Providence has designated you as the
custodians of justice and of peace and of
honesty and decency for all the great people
in the State of New York, and through the
State of New York, to all the people in the
Union, and through the United States by
extension, as an example, as a superpower, to
all the people of the universe.
So each and every one of you has a
special mission that is very, very dear and
very cherished. And every Saturday in our
synagogues we offer a special prayer for you,
for your health, for your sustenance, for your
constant success, and for the fact that you
should pass your budget immediately and you
should once and for all start getting paid.
Because it's very difficult to talk to people
who haven't gotten paid in a while.
What I want to do, the Rebbe tells
5709
us that we should -- this is the last
generation of exile, the first generation of
the redemption, and we can bring about the
great redemption by doing more acts of
goodness and kindness. And he instructed me
when I come here many years ago that I should
offer one dollar to tzedakah, in a tzedakah
box, and this is exactly what I'm doing. I'm
happy to do what the Rebbe told us to do.
And every member who wants to join
us -- not that this is going to make your
budget much easier, but if you want to join us
by contributing something to -- it's not going
to make a big fundraising effort. However,
each one will have a chance to be an act, an
additional act of goodness and kindness.
On behalf of the Lubavitch Youth
Organization and the Lubavitch movement, we
thank you for your constant support and for
recognizing one hundred years of the Rebbe,
and we pray for your continuous health and
sustenance, both in your private lives and in
your communal endeavors.
And let us all together say amen.
THE PRESIDENT: Reading of the
5710
Journal.
THE SECRETARY: In Senate, April
22, the Senate met pursuant to adjournment.
The Journal of Saturday, April 21, was read
and approved. On motion, Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Balboni.
SENATOR BALBONI: Thank you,
Madam President.
On page 31, I offer the following
amendments to Calendar Number 373, Senate
Print Number 3720, and ask that the bill
retain its place on the Third Reading
Calendar.
THE PRESIDENT: The amendments
5711
are received and the bill will retain its
place on the Third Reading Calendar.
SENATOR BALBONI: Thank you. And
also, Madam President, on behalf of Senator
Marchi, please place a sponsor's star on
Calendar Number 372.
THE PRESIDENT: The bill is
starred.
SENATOR BALBONI: Thank you very
much.
THE PRESIDENT: You're welcome.
Senator Skelos, we have some
substitutions to do now.
SENATOR SKELOS: Can we make the
substitutions, please.
THE PRESIDENT: The Secretary
will read the substitutions.
THE SECRETARY: On page 6,
Senator Farley moves to discharge, from the
Committee on Civil Service and Pensions,
Assembly Bill Number 4248 and substitute it
for the identical Senate Bill Number 2308,
First Report Calendar 434.
On page 7, Senator Leibell moves to
discharge, from the Committee on Civil Service
5712
and Pensions, Assembly Bill Number 6612 and
substitute it for the identical Senate Bill
Number 3321, First Report Calendar 437.
On page 7, Senator Leibell moves to
discharge, from the Committee on Civil Service
and Pensions, Assembly Bill Number 6614 and
substitute it for the identical Senate Bill
Number 3322, First Report Calendar 438.
On page 7, Senator Leibell moves to
discharge, from the Committee on Civil Service
and Pensions, Assembly Bill Number 5733 and
substitute it for the identical Senate Bill
Number 4259, First Report Calendar 439.
And on page 7, Senator Leibell
moves to discharge, from the Committee on
Civil Service and Pensions, Assembly Bill
Number 5734 and substitute it for the
identical Senate Bill Number 4260, First
Report Calendar 440.
THE PRESIDENT: Substitutions
ordered.
Senator Skelos.
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President. I hereby give notice,
5713
pursuant to Rule XI, that I will move to
amend -- to add a new rule, XV, to the rules
of the New York State Senate that will set
ethical standards for officers, employees, and
members of the New York State Senate.
THE PRESIDENT: The notice has
been received, Senator Dollinger, and will be
filed in the chamber.
Senator Skelos.
SENATOR SKELOS: Madam President,
unless anyone objects, could you please
recognize Senator Lachman, who would like to
make a short statement.
THE PRESIDENT: Hearing no
objection, Senator Lachman, you have the
floor.
SENATOR LACHMAN: A very short
statement.
Usually after Rabbi Butman speaks,
Senator Marchi and I usually say a few words
about the Lubavitch movement. It's a movement
that is all over the world, not only in North
America but in Europe and Latin America, Asia,
Africa, throughout the continent and all
continents.
5714
And it has achieved a measure of
recognition because it is not afraid to go
where others fear to tread. You can find
Lubavitcher representatives in Alaska or
Hawaii or any small areas in the country,
because they are supposed to, and they do,
provide educational resources and religious
resources to all communities around the world.
And I know that they have been very
much involved in many of our communities. In
fact, Rabbi Butman, a few weeks ago we were
discussing variances regarding the Lubavitcher
movement in certain Long Island communities.
And the reason we were discussing variances is
because they were there doing things that are
noble and wise.
They're also at the -- I know that
they have played a key role at the SUNY
Binghamton campus, where there's recently been
a major outpouring of anti-Semitism and the
Jewish community has been very concerned, and
the Lubavitcher rabbi, I believe Rabbi Slonim
there, has been one of the leaders in the
situation in terms of getting to the
perpetrators and to allow the students and
5715
faculty a certain amount of protection within
that area.
So this is all done. And as Rabbi
Butman said, this is the 99th anniversary of
the birth of the late Lubavitcher Rabbi, of
blessed memory. And may the Lubavitch
community continue for many more years to do
the good deeds and the noble deeds that they
do throughout America, North America, and the
world.
Thank you.
RABBI BUTMAN: Thank you very
much.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, I would just like to add to some of
the remarks of Senator Lachman.
I first became familiar with the
Lubavitcher movement in New York City in the
mid-1980s, when I was working for the Queens
District Attorney's office and their -- the
Lubavitcher Youth Movement and the National
Conference for the Furtherance of Jewish
Education, and a lot of the work that they did
deprogramming individuals of all faiths who
5716
had sometimes fallen into the hands of sort of
cult theories and myths which perpetuated
really the attack and devaluation of one
religion to enhance another. Something that
we've read about in the past few days in the
newspapers happens, that people who for some
reason cannot observe their faith without
having completely misguided views about the
faith of others.
And so it's people like Rabbi
Butman and many of his colleagues who are
stationed all around the world that try to
sanitize the minds and souls of people and try
to bring them more into grips of what it's
really like to live on this planet in harmony
with each other.
And I wanted to just add my voice
to that of Senator Lachman and Senator Marchi,
who are traditionally very moved and well
spirited by the work that they do.
I hope that this hundredth
anniversary, really the 99th year and the
hundredth anniversary of Rabbi Schneerson's
life on this planet will be in a sense a
rebirth and a beginning for those of us who do
5717
believe that, rather than bringing our people
together, that we recognize that we really are
one people.
Thank you, Madam President.
RABBI BUTMAN: David, thank you
very much.
THE PRESIDENT: Senator Marchi.
SENATOR MARCHI: Madam President,
it's -- I don't know if this is your first
experience or, but I hope it augurs well for
the future. Oh, your third. Well, then
you've enjoyed
RABBI BUTMAN: Madam President is
doing very nicely.
SENATOR MARCHI: -- the treat
that we all value, and that's the -- you've
heard him heralded.
And I just got in here a little
late, but not too late to join with my
colleagues in expressing pleasure at your
presence, representing, as is represented here
today, a wonderful tradition, historical
tradition. The formulation of the Torah, the
oral -- from oral law into something that we
can see goes back into the history of this
5718
gentleman who graces us with his presence.
And it led to the scholastic
philosophy that was later joined in by Thomas
Aquinas, by the leading Arab of this world at
that time. In fact, you paved the way for a
general acceptance and recognition what you
made so palpably clear through your ancestors.
So it's a great pleasure to be here
with my colleagues and to do something which
I've been doing annually, I guess, for the
past -- oh, no, I won't say the number of
years, because he's younger than that.
RABBI BUTMAN: Not much.
SENATOR MARCHI: Not much. Very
good. God bless you. So good to see you.
RABBI BUTMAN: Thank you,
Senator. Thank you, Madam President.
THE PRESIDENT: Senator Goodman.
SENATOR GOODMAN: Madam
President, I too would like to add warm words
of welcome to Rabbi Butman and to tell him how
delighted we are that he could be with us
today.
As one who has actually visited the
Lubavitcher Rebbe at his headquarters location
5719
in Brooklyn, I just wanted to say that it's a
particular delight to reflect upon that
occasion, in which there were thousands of
people literally gathered outside of his
residence, and I had the privilege of being
escorted in to see him and to share a small
libation with him, which is the custom of
visitors who are so beautifully received by
the Lubavitcher Rebbe.
I just want this rabbi to know that
as an ambassador from the Rebbe he is warmly
welcomed in this chamber, we're delighted to
have him here. And we're very pleased indeed
to welcome you.
RABBI BUTMAN: Thank you very
much, Senator.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Thank you, Madam
President. If we could go to the
noncontroversial calendar.
THE PRESIDENT: Thank you,
Senator.
The Secretary will read.
THE SECRETARY: Calendar Number
107, by Senator Volker, Senate Print 1694, an
5720
act to amend the Criminal Procedure Law, in
relation to expanding.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
229, by Senator Wright, Senate Print 2198, an
act to amend the Penal Law, in relation to
assault.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
293, by Senator Maziarz, Senate Print 1897, an
act to amend the Vehicle and Traffic Law, in
relation to increasing.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
5721
aside.
THE SECRETARY: Calendar Number
311, by Senator Saland, Senate Print 2200, an
act to amend the Insurance Law and the General
Obligations Law.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
316, by Senator LaValle, Senate Print 1368, an
act to amend the Domestic Relations Law and
the Family Court Act.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
324, by Senator Stafford, Senate Print 3438A,
an act to amend the Highway Law.
SENATOR ONORATO: Lay the bill
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
5722
337, by Senator Nozzolio, Senate Print 225, an
act to amend the Executive Law
SENATOR SKELOS: Lay it aside,
please, for the day.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
359, by Senator Wright, Senate Print 2970, an
act to amend the Judiciary Law.
SENATOR ONORATO: Lay the bill
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
364, by Senator Rath, Senate Print 2618, an
act to amend the Civil Practice Law
SENATOR SKELOS: Lay it aside for
the day, please.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
374, by Senator Seward, Senate Print 2406, an
act to amend the Parks, Recreation and
Historic Preservation
SENATOR SKELOS: Lay it aside for
5723
the day.
THE PRESIDENT: The bill is laid
aside for the day.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Madam President,
can we please go to the controversial
calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
107, by Senator Volker, Senate Print 1694, an
act to amend the Criminal Procedure Law, in
relation to expanding.
SENATOR ONORATO: Explanation.
THE PRESIDENT: Senator Skelos,
an explanation has been requested of Senator
Volker's bill.
SENATOR SKELOS: Madam President,
if you could lay that aside temporarily and go
to Senator Wright's bill, Number 229.
THE PRESIDENT: The bill is laid
aside temporarily.
The Secretary will read Calendar
229.
5724
THE SECRETARY: Calendar Number
229, by Senator Wright, Senate Print 2198, an
act to amend the Penal Law, in relation to
assault.
SENATOR ONORATO: Explanation,
please.
THE PRESIDENT: Senator Wright,
an explanation has been requested.
SENATOR WRIGHT: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
SENATOR WRIGHT: The bill before
us this afternoon amends the Penal Law by
adding two sections to increase the penalties
for assault of a police officer, peace
officer, correction officer, or court officer
with a noxious material.
THE PRESIDENT: Senator Onorato.
SENATOR ONORATO: Madam
President, will the sponsor yield for a
question, please.
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
5725
THE PRESIDENT: You may proceed
with a question, Senator.
SENATOR ONORATO: Senator, would
you mind telling us what actually constitutes
a noxious substance, material? Do we have it
defined?
SENATOR WRIGHT: Actually,
Senator, it is defined in law. And I would
refer you to the appropriate section of law in
Article 265 and Section -- let's see. Under
Section 270.05, it defines noxious material.
SENATOR ONORATO: Madam
President, will he continue to yield for
another question?
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR ONORATO: What other
examples are there, besides Mace, of
self-defense sprays that you know of?
SENATOR WRIGHT: Well, Mace is
the most commonly referred to one, Senator.
5726
There are other like products. I don't know
their particular names or brand names.
But the definition of noxious
material is rather broad. For example, it
means container which contains any drug or
other substance capable of generating
offensive, noxious or suffocating fumes,
gases, or vapors, or capable of immobilizing a
person.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Yes, Senator.
SENATOR PATERSON: If Senator
Wright would yield for a question.
THE PRESIDENT: Senator Wright,
will you yield for a question?
SENATOR WRIGHT: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, I'm
just curious. Are all self-defense sprays
considered to be noxious? Are they all -- do
they all possess the chemical elements that
5727
meet the threshold for which they'd be
considered noxious?
SENATOR WRIGHT: Frankly, I don't
know that, unless you were able to define the
specific item that was -- you were referring
to.
SENATOR PATERSON: Madam
President, the Senator's point is well-taken.
If I might ask him to yield for another
question.
THE PRESIDENT: Senator Wright,
will you yield for a question?
SENATOR WRIGHT: Yes, I will,
Madam President.
THE PRESIDENT: You may proceed
with a question, Senator.
SENATOR PATERSON: Then, Senator,
I think that what I'm driving at is, are you
aware of any types of spray that don't possess
the chemicals that allow it to be designated
as noxious? Because I don't know of any, and
I wondered if there are any.
SENATOR WRIGHT: Well, I'm not
specifically aware of any. But the law
specifically -- a previous section of the
5728
statute specifically makes reference to
self-defense spray devices that are not
prohibited. So I assume that that provides
that are certain products. I'm simply not
aware of what they are.
SENATOR PATERSON: Madam
President, if the Senator would yield for one
last question.
THE PRESIDENT: Senator Wright
SENATOR WRIGHT: Yes, I will,
Madam President.
THE PRESIDENT: You may proceed
with a final question, Senator Paterson.
SENATOR PATERSON: Senator, the
reason I'm raising this is that I just have a
concern about the specific definition of the
type of spray that would qualify, to the
extent that if somebody sprayed a deodorant or
some type of household cleaning spray in the
direction of a police officer or a peace
officer at some point, if the spray itself is
not as harmful
THE PRESIDENT: Excuse me,
Senator Paterson.
I'm going to ask the members, if
5729
you are conversing, to please take your
conversations out of the chambers. Thank you.
You may proceed, Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President.
And so what I'm saying is that are
you assured that the designation that you have
used to apply this legislation is not one that
something less harmful could be included in
the offense?
SENATOR WRIGHT: Yes, Senator,
I'm convinced of that. I believe that perhaps
others are, since the definition we are
utilizing has been on the books since 1996,
and I'm not aware of any particular problem
with that definition during that time frame.
Nor have we amended that definition in any
way, shape or fashion.
SENATOR PATERSON: Thank you.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
5730
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56. Nays,
1. Senator Montgomery recorded in the
negative.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
would you please call up Senator Wright's
bill, Calendar Number 359.
THE PRESIDENT: The Secretary
will read Calendar Number 359.
THE SECRETARY: Calendar Number
359, by Senator Wright, Senate Print 2970, an
act to amend the Judiciary Law, in relation to
appointment.
SENATOR PATERSON: Explanation,
please.
THE PRESIDENT: Senator Wright,
Senator Paterson has requested an explanation.
SENATOR WRIGHT: Thank you, Madam
President.
The act before us this afternoon
5731
amends the Judiciary Law in relation to the
appointment of a grand jury stenographer by
the district attorney in the County of Oswego.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, will the sponsor yield for a
question?
THE PRESIDENT: Senator Wright,
will you yield for a question?
SENATOR WRIGHT: Glad to, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Through you,
Madam President. There was a time, obviously,
in this state where the State Legislature in
its wisdom determined that stenographers
should only come from the county in which the
grand jury is sitting.
What has changed -- other than the
practical circumstances, that it may be
difficult to find them, is there any policy
shift embodied in this bill?
SENATOR WRIGHT: None that I'm
5732
aware of, Senator. I believe it's simply a
change in direction and careers and career
opportunities, and therefore the ability to
recruit, retain, and attract stenographers
from a given geographic area.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will continue
to yield.
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed
with a question, Senator Dollinger.
SENATOR DOLLINGER: To your
knowledge, Senator, is the pay that's made
the payments that are made to a stenographer a
factor in attracting those kinds of court
reporters?
SENATOR WRIGHT: Not to my
knowledge.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will continue
to yield.
THE PRESIDENT: Senator Wright,
5733
will you
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: Thank you. You
may proceed.
SENATOR DOLLINGER: Do you know
what the approximate fees are paid for a grand
jury transcription in Oswego County?
SENATOR WRIGHT: I do not.
SENATOR DOLLINGER: Final
question, Madam President, if Senator Wright
will continue to yield.
THE PRESIDENT: Senator Wright,
will you yield for a final question?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR DOLLINGER: Current law
gives the district attorney the ability to
appoint the stenographer. And my question is,
I assume that one of the reasons for keeping
it inside the county is that they could
negotiate favorable rates, given the fact that
these were people in the local communities.
5734
Is there any switch in this bill
with respect to the unfettered discretion of
the district attorney in making that
appointment? He'd have the ability to appoint
anyone; is that correct?
SENATOR WRIGHT: Well, first of
all, I don't accept the assumption that you
made in articulating why that authority is
granted to the district attorney.
But that aside, there's nothing
here that would amend or modify the authority
of the district attorney other than by
expanding the parameters of the selection area
so that it's expanded beyond the county per
se, but to include the judicial district.
SENATOR DOLLINGER: Through you,
Madam President, just one final question that
occurs to me in reading this bill, if Senator
Wright will continue to yield.
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
5735
SENATOR DOLLINGER: Does this
bill require that the individual be appointed
from the same judicial district in which
Oswego County is located, or could
SENATOR WRIGHT: That is correct,
Madam President. It remains within the Fifth
Judicial District, of which Oswego is a member
county.
SENATOR DOLLINGER: Thank you,
Madam President. Just briefly on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR DOLLINGER: Madam
President, the drafting of our laws, probably
in the dawn of the last century or, frankly,
the century before that obviously made a
provision that was referenced in the first
line of Senator Wright's bill, in his
amendment, which says that every stenographer
appointed under the provision of this title
shall be a citizen and resident of the county
in which -- of course it says "he," I assume
in a different time when only "hes" qualified
as court reporters. That has obviously
changed, thank heaven.
5736
But, Madam President, there was
obviously a policy here at one point that the
county should -- the county district attorney
should only appoint someone from their own
county. And it seems to me, as this bill text
indicates, we've now created more exceptions
than there are rules with respect to that. I
would just suggest that Senator Wright's
proposed bill amending this portion of the
statute should, quite frankly, become the law
in this state rather than the exception.
The old notion that stenographers
for grand juries had to come from the same
county doesn't seem to make a lot of sense in
this world of court reporting that happens
from many, many different communities.
Certainly in the Rochester area, from
Rochester, Syracuse, and Buffalo, there are
court reporters that do a lot of traveling.
And I would suggest that the notion
that court reporters come from the county in
which the grand jury sits is an anachronism
that ought to be consigned to the dust heap of
a different time in New York.
What we ought to do is not only
5737
pass Senator Wright's bill, but we ought to
change the entire language of subdivision 1 of
Section 322 of the Judiciary Law and simply
permit district attorneys to appoint any
competent court reporter in the state in order
to transcribe grand jury proceedings. They're
critically important to the criminal justice
system, and it's important that we have
accurate and dutiful court reporters. But it
seems to me the way to do it is just recognize
we live in the 21st century and just get rid
of this ridiculous restriction on where the
court reporters come from when they transcribe
grand jury proceedings.
I'll be voting in the affirmative.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
THE PRESIDENT: The bill is
5738
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
would you please call up Calendar Number 107,
by Senator Volker.
THE PRESIDENT: The Secretary
will read Calendar 107.
THE SECRETARY: Calendar Number
107, by Senator Volker, Senate Print 1694, an
act to amend the Criminal Procedure Law, in
relation to expanding.
SENATOR PATERSON: Explanation,
please.
THE PRESIDENT: Senator Volker,
Senator Paterson has requested an explanation.
SENATOR VOLKER: Madam President,
this is a bill in relation to expanding the
rights of victims and their families to speak
at the sentencing of the defendant.
This bill resulted from the murder
of a police officer, I believe in New York
City, Officer Anthony Sanchez. And what had
happened was that he was murdered while a
holdup man was fleeing from him, and in the
shootout he was killed. And his parents had
5739
requested the opportunity to speak at the
sentencing phase of his trial and were unable
to see because the judge ruled that only one
person, which was the victim's widow,
Elizabeth, was able to testify.
So this bill, which was proposed to
us by a number of groups, including the
Metropolitan Police Association and a number
of other victims' rights groups, is a bill
that I have sponsored and I hope one day we'll
be able to get the Assembly to do also.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Volker would yield for a
question.
THE PRESIDENT: Senator Volker,
will you yield?
SENATOR VOLKER: Yes, I will.
Certainly.
THE PRESIDENT: You may proceed
with a question.
SENATOR PATERSON: Senator, am I
clear on this, that we're doing two things
with this bill? We're expanding the pool of
family members that would be allowed to
5740
speak
SENATOR VOLKER: Yes.
SENATOR PATERSON: -- and we're
also expanding the number of participants that
might speak at a sentencing?
SENATOR VOLKER: Yes, that might
speak.
I think the thing about it is here
that we're not -- as you'll notice in the
legislation, it doesn't name a specific
amount. The reason for that is that we are
just citing certain members that could speak
and saying that more than one person can
speak. We're not saying that they all have to
speak or that they can. It would be up to the
judge, in effect, to decide on how many would
speak.
But this would give the opportunity
for more than one person to speak, and then we
set out in the legislation exactly who that
could be. And the judge, for instance, could
say, All right, the wife can speak and one of
the grandparents, or whatever. We don't say
that it has to be all of them. We're saying
that they could speak.
5741
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Volker is willing to
yield, I want to
SENATOR VOLKER: Yes, I yield.
THE PRESIDENT: You may proceed,
Senator Paterson, with a question.
SENATOR PATERSON: Senator,
currently is it within the discretion of the
court to allow more than one person to speak
at the sentencing?
SENATOR VOLKER: Apparently the
decision has been, under the present
legislation, that judges have decided that
only one person should be allowed to speak.
And although I would argue that our
legislation does not necessarily restrict it
to one person, apparently most judges have
taken the attitude that it does, and that's
what precipitated this legislation that we
have before us today.
SENATOR PATERSON: Madam
President, if Senator Volker is willing to
continue.
SENATOR VOLKER: Sure.
5742
THE PRESIDENT: Senator Volker
does yield.
You may proceed, Senator Paterson.
SENATOR PATERSON: So, Senator,
the tragic circumstances that in a sense
generated the idea for this legislation were
that we needed to clarify the legislation such
that the judge in that particular case could
not make the ruling that he made -- assuming
that it was a male -- in which it was
determined that only one person could speak,
so the widow spoke, rather than the parents.
But under the legislation now, it would be
possible for all three parties to have spoken;
is that correct?
SENATOR VOLKER: That is exactly
right.
And as I'm sure you know, Senator
Paterson, judges are tending lately to be very
restrictive in the way they interpret our
legislation. So as a result, we've had to in
a number of cases be a lot more specific,
which is not probably all bad, because in the
past, we have given a lot more, I think,
discretion maybe than we should have.
5743
But what we're trying to do here is
give the opportunity, in the appropriate
cases, for more than one person to speak at a
sentencing phase of a trial.
SENATOR PATERSON: Now, Madam
President, I'd like to turn to the issue of
those who are eligible to speak, if Senator
Volker is willing to yield.
THE PRESIDENT: Senator Volker,
would you yield to a question?
SENATOR VOLKER: Sure.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President.
Senator Volker, under the present
law, and comparing it to the legislation we
are deliberating on at this moment, in which
ways have we expanded the number or the type
of family members that can speak at the
sentencing?
SENATOR VOLKER: Well, I think
the present law says that a member of the
family can speak. What we're doing here is
we're saying that members of the family, and
5744
we're -- of the victim. These are families of
the victim, obviously.
SENATOR PATERSON: Right.
SENATOR VOLKER: And then we
specifically say who those people are. And I
think the reason is to give, you know,
guidance to the judge as to who should be
allowed to make any statements. So that we
don't get down, for instance, to second
cousins and all the rest of the things.
The idea is to give sort of a
designation of who those people would be that
the judge could allow to speak, in addition,
for instance, obviously to the husband or wife
or -- and so forth. So I think it's as much
for guidance as anything else.
SENATOR PATERSON: Madam
President, if Senator Volker would continue to
yield.
SENATOR VOLKER: Yes.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, it's
just a thought -- and I can anticipate the
answer to my own question, because it can
5745
become, as in many memorial-type situations,
almost a carnival of the desires of the living
rather than respect for the dead, where
everybody wants to be involved and everybody
wants to speak.
But because of the different
natures in which people live and the
preferences that they've made in life, would
it be necessary that we put actual
classifications of which family members speak?
Would it not be an idea to just say "family
members" or just "concerned parties"? Because
we have domestic partners, we have people who
may not have a legal relationship yet have a
very strong relationship -- perhaps a friend
of an elderly person who was murdered in the
park or something like that. Certainly
stepparents, and those relationships where
perhaps the stepfather is the one strong
enough to speak and the biological mother
doesn't choose to speak and the victim is
deceased.
Would it be a possibility in the
future of visiting the opportunity to just not
have a classification but at the same time
5746
making sure that the court has the discretion
to make sure that it doesn't turn into a
parade of individuals speaking about their
lost victim?
SENATOR VOLKER: I think that
certainly is a possibility.
I think the thought here is that
what is trying to be done here is to suggest
the people who would be most likely to speak
or be allowed to speak. And since the judge
in these cases seems to want some specific
guidance, we're giving that judge specific
guidance and listing those people.
And there's nothing in this
legislation, by the way, that says that some
of the people that you just suggested would
necessarily -- or could not necessarily be
allowed to speak also.
But what this legislation says is
that if more than one, members, and we're
suggesting who these people should be.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President. On the bill, briefly.
THE PRESIDENT: You may proceed.
5747
SENATOR PATERSON: I think this
is really an excellent bill and very sensitive
to the grieving period that families undergo
or that victims are put through and that it
gives them an opportunity to feel a sense of
recapturing their lives to actually address
the perpetrator at certain times. And I think
that the expansions that Senator Volker has
asked for are in order.
And, Madam President, I believe
Senator Dollinger has a couple of questions.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President. Will Senator Volker yield to
two questions?
THE PRESIDENT: Senator Volker,
will you yield for a question?
SENATOR VOLKER: Sure.
THE PRESIDENT: You may proceed.
SENATOR DOLLINGER: Senator, the
way this bill is drafted now, it's a
conditional statement by members of the
family. It's only if the victim is unwilling
to speak, unable to speak, dead or otherwise
5748
incapacitated.
My question is, did you consider
just dropping all the prefatory language and
allowing the family members as described to
speak regardless of whether the victim speaks
themselves?
SENATOR VOLKER: We could do
that, I suppose. But the assumption is if the
victim is actually there to speak, that the
victim should be the best person to speak in
the situation like this and it wouldn't really
be that necessary for someone else besides the
victim to speak.
This, I think, assumes the problem
where the victim is either unable or -- unable
to speak, that we would allow someone else to
speak for him or her. But I don't, you know,
I don't know if -- if -- in fact, that might
almost be too indefinite. If we have the
victim, then I think some would argue that
that's enough for the time being.
SENATOR DOLLINGER: Thank you,
Madam President. Just briefly on the bill.
THE PRESIDENT: You may proceed,
Senator.
5749
SENATOR DOLLINGER: I understand
Senator Volker's conclusion that the victim is
probably the best person to offer evidence to
a sentencing judge about the effect of crime.
I would just suggest, however
and I also agree with one other thing that
Senator Volker said, and that is that our
judges is generally reluctant to allow large
numbers of the people to testify at the
sentencing hearing.
I think that reluctance is
ill-founded by members of our judiciary, and I
think we ought to tell them very specifically
that the victim gets the opportunity to talk
and so do a certain number -- and it shouldn't
be an unlimited number -- but relatives,
family, and friends.
I know -- Senator Volker, I hope
you won't mind if I take the liberty, but I
would suggest that your friend and colleague
from Suffolk County knows you as well as
anyone. And I would suggest that if something
happened to you and there were an issue of the
effect on your character, on your personality,
on your family, Senator LaValle would
5750
certainly be, in my mind, apart from your
family members would certainly be an eminent
witness to testify as to the impact of a crime
on you.
And my concern here, Madam
President, is that this is a bill where I
think what we ought to do is say that the
victim gets to testify, the victim's family
members get to testify. I agree with Senator
Paterson, the definition of who's in that
family could be expanded to include friends.
And lastly, Madam President, this
is another one of those bills that we've
approved twice by unanimous margins in this
house and we can't seem to get the other house
to move. I would suggest, Senator Volker, if
you wanted to propose a message to the
Assembly that says convene a conference
committee on this issue to define and clarify
who gets to talk at the sentencing phase of
criminal proceedings, and say to them that
this is a bill that has twice passed with
unanimous support from this house, it should
be considered by the Assembly, there should be
a conference committee on criminal justice or
5751
public protection, whatever we call it, that
deals with this issue and this bill ought to
be right at the top of the list.
I think it's a good idea. I think
it would be better if we eliminated all that
prefatory language and did as Senator Paterson
suggested, increase the definition to
recognize relationships in our community, in
our state. But I would strongly suggest this
is just the kind of thing that we should send
a message to the Assembly about and tell them
that this bill ought to become law.
Instead of simply passing it year
after year, 60 to nothing, 59 to nothing, 61
to nothing, let's send them a message, a
formal message from this house to the Assembly
that says we think this bill ought to be part
of a conference committee deliberation. Then
there's much better chance it will become law.
I'll vote aye.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, would you suggest to Senator Volker
that in spite of his great friendship with
Senator LaValle that if he were ever
5752
victimized by a crime and couldn't speak for
himself at the sentencing, that he have
Senator Dollinger speak for him, to ensure
that the perpetrator receive the greatest
suffering that he would ever have known.
(Laughter.)
THE PRESIDENT: Senator Volker,
do you yield to that question?
SENATOR VOLKER: I yield to that
question. I would say that is absolutely
correct. Since one of the former Senators is
in fact up here, I think he would probably
agree that since Senator Franz Leichter is
gone, you're the best pick I could think of.
(Laughter.)
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
THE PRESIDENT: The bill is
5753
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
would you please call up Calendar Number 293,
by Senator Maziarz.
THE PRESIDENT: The Secretary
will read Calendar 293.
THE SECRETARY: Calendar Number
293, by Senator Maziarz, Senate Print 1897, an
act to amend the Vehicle and Traffic Law, in
relation to increasing penalties.
SENATOR HEVESI: Explanation,
please.
THE PRESIDENT: Senator Maziarz,
Senator Hevesi has requested an explanation.
SENATOR MAZIARZ: Thank you,
Madam President.
This bill amends the Vehicle and
Traffic Law in order to increase penalties for
certain alcohol-related driving convictions.
This bill would make it a Class E felony
offense if you are convicted of a fourth, a
fourth DWAI within ten years in the State of
New York. It would also increase the fines, a
minimum fine of at least $1,000, a maximum of
5754
$5,000, and it would require a one-year
license revocation.
SENATOR HEVESI: Madam President.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President. Would the sponsor yield?
THE PRESIDENT: Senator Maziarz,
will you yield for a question?
SENATOR MAZIARZ: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: Thank you.
Through you, Madam President.
I very much appreciate this type of
legislation being brought to our attention,
because it moves in the right direction to
address a problem that we all know exists,
which are the inadequacies of the current law
as they pertain to DWI and DWAI offenses, but
they also highlight some of the problems which
I've got to get into here with you.
My first question to you is, a DWAI
offense is a Breathalyzer which reveals what
range of scores on the Breathalyzer to qualify
5755
for a DWAI offense?
SENATOR MAZIARZ: I'm sorry, what
range?
SENATOR HEVESI: Yeah, Madam
President, if I can clarify, through you. My
understanding is a DWI, to receive a DWI
conviction, you must have a Breathalyzer which
reads 0.1 or higher. My understanding is that
the threshold for a DWAI is a lower threshold.
Can you tell us what that threshold is for the
DWAI?
SENATOR MAZIARZ: No, I
understand it's lower, but I'm not sure of the
exact alcohol content, Senator.
SENATOR HEVESI: Okay. Madam
President, would the sponsor continue to
yield?
THE PRESIDENT: Senator Maziarz,
will you yield?
SENATOR MAZIARZ: Yes.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: One of the major
concerns I have here -- and I understand that
for a DWI conviction the first offense is a
5756
misdemeanor offense, the second DWI
conviction, there is an eligible penalty for a
felony, it's a felony offense with possible
incarceration.
My question to you is, on the DWAI
offenses, we are waiting till the fourth
offense, under your legislation, before we
even make the individual eligible for
felony-level penalties. My question to you
is, why would we wait until the fourth time
that somebody that committed an offense before
we move to take a serious step to curb this
type of activity?
SENATOR MAZIARZ: Quite frankly,
Senator, I would like to see it much earlier
myself, in my opinion, but we've had some
trouble getting a sponsor in the other house
of the Legislature.
And this year we have been able to
basically get a sponsor and to negotiate with
them, and we think that we can get did passed
in both houses this year with the fourth
conviction.
SENATOR HEVESI: Okay. Thank
you.
5757
Madam President, would the sponsor
continue to yield?
SENATOR MAZIARZ: Yes.
THE PRESIDENT: Senator Maziarz,
you do yield.
You may proceed, Senator Hevesi.
SENATOR HEVESI: I'll address the
inadequacies of the current law and the fact
that this is a good piece of legislation but
it doesn't go far enough, I'll address that
when I speak on the bill.
But I have a question for you in
terms of whether or not your legislation or
whether any current provision of law provides
either a treatment option or a required
treatment based on someone's DWI or DWAI
convictions. And the reason I ask that,
Senator Maziarz, is that there are a number of
studies which show that rates of recidivism
are decreased dramatically when treatment is
undertaken by the individual who has committed
the offense.
SENATOR MAZIARZ: This
legislation, no, does not require any
treatment. Now, that may be part of a plea
5758
bargain, which in most cases for the DWI that
is a part of the it, and sometimes for the
DWAI. But it's not a part of this
legislation, no.
SENATOR HEVESI: Thank you.
Madam President, on the bill.
THE PRESIDENT: You may proceed,
Senator, on the bill.
SENATOR HEVESI: Thank you.
Madam President, my problems with
this legislation extend far beyond what
Senator Maziarz is trying to do. And I very
much appreciate what Senator Maziarz is trying
to do here. But even this piece of
legislation -- and I'm not looking to ascribe
blame as to who is responsible for this. But
even this bill, it really -- I don't believe
this is going to have a major impact.
We've got a serious problem here in
the law that nobody seems to want to address.
The fact that someone can reoffend on a
DWAI -- and I have some information. I
believe that it's between .05 and 0.1, which
would qualify somebody for a DWAI offense.
The fact that we wait till the fourth offense
5759
before there is an eligibility for
felony-level penalties is most unfortunate.
In fact, I would probably elevate
to a felony-level offense the third DWAI
conviction and probably have a mandatory
incarceration of some moderate extent, 15 to
30 days, perhaps on the second or third
conviction.
Nobody should drink and drive the
first time out of the box. But I have
absolutely no tolerance for those who reoffend
on these types of offenses. And we hear all
too often the terrible tragedies that happen,
and they're very often punctuated by stories
which are just inexplicable. And if I can
relate one to you, on the "Today" show this
morning, there was a very poignant story, a
tragic, heart-wrenching story about a woman in
Las Vegas who a few months back won a
$35 million jackpot in the slot machines in
Las Vegas and several weeks after this
wonderful stroke of luck, she's driving in her
car with her sister and a drunk driver comes
by, kills the sister, and renders the woman
who won the $35 million a quadriplegic.
5760
Tragic enough except that when you examine
what actually occurred in this type of
incident, the gentleman who drove drunk and
caused the deaths was on his 16th conviction,
16th conviction, for a drunk-driving-related
conviction. I mean, 16th conviction.
So we have to be intolerant of
people who commit the offense the first time,
but there will be some leniency there the
first time in recognition of the fact that
people who have too much to drink and get in
their car are not hardened criminals. But
that sympathy, that feeling goes out the
window when we see people who reoffend.
And this past weekend, Madam
President, in Albany there was the highest
number of arrests for DWI-related offenses of
any weekend in the past year. There were 600
cars that were stopped at Albany police
checkpoints, and 31 individuals were arrested
for DWI or DWI-related offenses. That's 5
percent.
And what's really scary about this
whole subject is for the amount of times that
somebody is caught driving while intoxicated
5761
or ability-impaired or under of influence of
drugs, the number of times that they probably
drove under those conditions is multiplied
exponentially, because nobody would logically
suggest that we're catching everybody the only
time they do it. So we've got a tremendous
problem here.
And one other point to really
highlight this. There have been studies done
in California, in Texas, Delaware, and New
York that show that individuals who receive
treatment after having arrested for
drunk-driving-related offenses were
25 percent -- 25 percent of them were
reoffending within the first year or year and
a half. Which sounds high in and of itself,
except you compare that 25 percent who are
reoffending within the first year or year and
a half, of those who got treatment, to
70 percent of people who did not receive
alcohol rehabilitation, 70 percent of those
folk who is got no treatment reoffended within
the first year or year and a half.
And so how we don't have a
treatment option -- and I know that Senator
5762
Duane has spoken on the floor of this house on
numerous occasions about the fact that we only
combat this problem by increasing penalties
for these offenses and we don't have a similar
energy to dedicate ourselves to preventing
individuals from reoffending by providing them
with the treatment they need.
And it's not just the moral issue,
it's not just that it's the right thing to do,
it's going to save people's lives. So we have
to make a commitment of money, because these
drunk driving arrests, there were 1.4 million
drunk driving arrests in the United States
last year. And that cost us $5.2 billion in
an economic assessment.
So forget the morality and even
forget the aspect of it that says that if we
don't do this we're going to have higher
recidivism. We're draining our police
resources and costing the taxpayers even more
money. So for those who suggest that to spend
additional money on treatment is not a worthy
public policy goal, that is the ultimate
example of cutting off your nose to spite your
face.
5763
So I would take a two-tack approach
here. One is to adopt what Senator Duane has
been calling for for a long time and have
mandatory treatment upon the first conviction
for a DWI and DWAI offense, and of course for
all subsequent offenses, and make that a
condition of whatever agreement is reached
between the district attorney and the person
who is convicted. And, on the second front,
tighten up penalties much further than what
Senator Maziarz's well-intentioned bill tries
to do so.
And until we do this, until we say
to somebody, If you reoffend, you're going to
have severe, severe consequences then society
is going to continue to live in the constant
danger that people are going to thumb their
nose at the system, not take what we're trying
to do here seriously, and possibly -- and this
happens with frightening regularity -- kill or
maim other people because they just don't
care.
Well, we care. And let's show we
care by doing a treatment option, let's show
we care by adopting Senator Maziarz's bill as
5764
a good first step and then tightening it up
afterwards. Let's stop this problem. This is
not rocket science or brain surgery, how to do
this. This is one of those things where we
know if we take Step A and Step B that we will
achieve Result C, and Result C is too
important a goal not to address.
I vote for this bill. Thank you,
Madam President.
THE PRESIDENT: Senator Espada.
SENATOR ESPADA: Thank you, Madam
President. Will the sponsor yield to a
question, please.
SENATOR MAZIARZ: Yes, Madam
President.
THE PRESIDENT: Senator Maziarz
yields.
You may proceed, Senator Espada.
SENATOR ESPADA: I thank Senator
Maziarz.
The question is really we've heard
some -- again, some excellent comments. And
my question would be, why not have a balanced
approach? I took it from one of your answers
that you're not against treatment, clearly.
5765
Why not have a balanced approach with a
mandatory treatment upon the first conviction?
Why only deal with the penalty phase or the
increased penalty phase first and only in your
bill?
SENATOR MAZIARZ: Well, as I
said, Senator, most of the plea bargains that
come about do have some sort of a treatment
option within them. But I thought this, quite
frankly, was a bill that we could get passed
through both houses of the Legislature.
SENATOR ESPADA: But through you,
Madam President, if I may just, as a follow-up
question
SENATOR MAZIARZ: Yes.
THE PRESIDENT: Senator Maziarz,
you do yield.
You may proceed, Senator.
SENATOR ESPADA: My
recommendation would only be that we talk
about mandatory again, that mandatory
treatment upon the first conviction. In that
it appears through the comments that I have
heard that it costs about $32,000 or so to
incarcerate and about $18,000, or half the
5766
price of incarceration, to treat.
So wouldn't it be more
cost-effective, wouldn't it be more effective
and prudent to make it mandatory? Increase
the penalties, yes. Perhaps have even a more
escalated, accelerated pace, as Senator Hevesi
has indicated. But as pertains to the
immediate bill at hand, why not amend it to
include mandatory upon the conviction of a
Class E felony?
SENATOR MAZIARZ: I'm sorry,
Senator, I didn't quite
SENATOR ESPADA: In other words,
I think that logically I would agree with
every argument that has been proffered by
Senator Hevesi. And my question to you would
be, why not amend the bill to include a
mandatory treatment provision to coincide with
the increase in penalties?
SENATOR MAZIARZ: Because I think
that that would attach a huge fiscal
implication to this bill, and I'm not sure
that we could get it passed in both houses and
signed by the Governor.
This bill I think we can get passed
5767
and signed into law. And I agree with Senator
Hevesi also. I think it's long overdue. And,
quite frankly, I don't think it does enough
early enough. But I think it's a compromise
that we have to make to get it signed into
law.
SENATOR ESPADA: If I may, Madam
President, the response just begs another
question.
THE PRESIDENT: Senator Maziarz,
will you yield for a question?
SENATOR MAZIARZ: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR ESPADA: That is, is your
bill fiscally neutral? Would your bill have
no increased fiscal implications?
SENATOR MAZIARZ: I don't think
it would have any major -- I'm sure it has
some, Senator, but I don't think there would
be any major fiscal implications.
SENATOR ESPADA: And lastly,
Madam President, through you.
SENATOR MAZIARZ: Yes.
5768
THE PRESIDENT: You may proceed,
Senator.
SENATOR ESPADA: Have increased
penalties on their own been more effective in
reducing the number of offenders, Senator?
SENATOR MAZIARZ: Have increased
penalties reduced the number of
SENATOR ESPADA: On their own,
have increased penalties reduced the number of
repeat offenders?
SENATOR MAZIARZ: I don't have
any statistical data at my fingertips here,
Senator. But if an individual certainly is
incarcerated, they're not out committing
additional crimes.
SENATOR ESPADA: And as to the
incarceration, under the bill, how long would
a person, upon being convicted, be
incarcerated? The penal code is referenced,
but perhaps can you clarify that for me.
SENATOR MAZIARZ: I believe,
Senator, that the maximum jail term would be
one year. Yes, one year.
SENATOR ESPADA: Madam President,
we thank the sponsor. We thank you.
5769
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
would you please call up Calendar Number 316,
by Senator LaValle.
THE PRESIDENT: The Secretary
will read Calendar Number 316.
THE SECRETARY: Calendar Number
316, by Senator LaValle, Senate Print 1368, an
act to amend the Domestic Relations Law and
the Family Court Act, in relation to
visitation rights.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator LaValle,
5770
Senator Paterson has requested an explanation.
SENATOR LAVALLE: Thank you very
much, Madam President.
This legislation would add, to
grandparents, would add great-grandparents
that would allow them visitation rights under
certain circumstances. When the initial law
was drafted, we in this Legislature codified
case law that allowed for two situations, one
being an absolute right of a grandparent. And
by adding great-grandparent, we are allowing
great-grandparents that absolute right in the
case where the parents are deceased.
The second situation, the courts
indicated, would exist as a matter of equity.
And in both cases, the grandparent would have
to go before the court and the court would use
the best interest of the child as the standard
in making a decision whether visitation rights
would be granted.
Madam President, that's the sum and
substance of the legislation.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, did Senator Montgomery want to
5771
ask
SENATOR MONTGOMERY: I'll defer
to you, Senator.
SENATOR PATERSON: Madam
President, if Senator LaValle would yield for
a question.
SENATOR LAVALLE: Yes, Madam
President.
THE PRESIDENT: You do yield,
Senator LaValle.
You may proceed, Senator Paterson.
SENATOR PATERSON: Senator, I was
reading that there are 40,000 people in the
United States who are over 100 years of age,
and ten years ago, in 1991, there were 20,000
people. So just the time period in which
people are living certainly creates the
opportunity for there to be a much larger pool
of great-grandparents and even
great-great-grandparents.
And my question is, does the issue
of the restricted rights of the grandparents
vis-a-vis the right of the parents -- in other
words, that most of the state courts have held
that the grandparents don't have visitation
5772
over the objections of the parents. That
isn't changed at all by your attempt at this
legislation, is it?
SENATOR LAVALLE: No.
SENATOR PATERSON: Madam
President, if Senator LaValle would yield for
a question.
THE PRESIDENT: Senator LaValle,
will you yield?
SENATOR LAVALLE: Yes.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Has it been
the case that great-grandparents have been
restricted, even though it would seem kind of
a technicality, since grandparents are granted
visitation? Have there been cases where
relying strict on the black-letter law that
judges have denied great-grandparents the
right to visitation?
SENATOR LAVALLE: Yes. That's
why this bill is before us.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
5773
President, I would like to have Senator -- ask
a question of the sponsor.
THE PRESIDENT: Senator LaValle,
will you yield for a question?
SENATOR LAVALLE: Yes, I will.
THE PRESIDENT: You may proceed,
Senator Montgomery.
SENATOR MONTGOMERY: All right.
Senator LaValle, there was recently a U.S.
Supreme Court case which seemed to rule out
the right of grandparents and, I would
presume, great-grandparents in cases of
visitation disputes of their grandchildren.
Does your bill address -- or how do
we get around that Supreme Court ruling with
your legislation?
SENATOR LAVALLE: Senator, I
remember at the time reading that decision and
saying that the New York law -- and even
articles that were written at the time seemed
to indicate that the New York law would meet a
challenge.
And one of the reasons is the
explanation of the bill, which I said what we
did was to codify it. We actually have case
5774
law in both situations in which grandparents
have an absolute right and where the courts
ruled that they can, as a matter of equity,
intervene.
And so what we have taken is our
own case law here in New York State, and we
actually, consistently with those decisions,
formulated our grandparent law. And as I said
in my legislation, by amending the law to add
great-grandparents, we are just taking that
one step further.
SENATOR MONTGOMERY: Madam
President, if -- I just have a couple of
THE PRESIDENT: Senator LaValle,
will you yield for a question?
SENATOR LAVALLE: Yes, I will.
THE PRESIDENT: You may proceed.
SENATOR MONTGOMERY: Okay, thank
you.
Well, Senator LaValle, why do we
find it necessary to have our state enact
legislation for this purpose? Is there a
particular interest that we need to address
with this legislation?
SENATOR LAVALLE: Yes. Yes,
5775
Senator.
I think in the dialogue I had with
Senator Paterson, I think that once we define
in a law and we create groups of individuals
that we are empowering or giving specific
rights, then in strict interpretation and
reading, the law applies only to that one
group.
And in our law we say grandparents.
And so if we are to broaden that group beyond
grandparents, then we as a Legislature and a
matter of policy must specifically cite
great-grandparents.
And if next year or two years from
now we felt it was siblings, we would have to
statutorily add to the list of parents and
grandparents, because we are now specifically
prescribing who has the benefits to go before
the court of law for visitation rights.
SENATOR MONTGOMERY: Madam
President, just one last question.
THE PRESIDENT: Senator LaValle,
will you yield for a question?
SENATOR LAVALLE: Yes, I will,
Madam President.
5776
THE PRESIDENT: You may proceed
with a final question.
SENATOR MONTGOMERY: Senator
LaValle, in cases where there is a very
contentious divorce and visitation becomes
part of the contention or the, you know, the
difficulty with the proceedings, do you still
want to give the right to great-grandparents,
grandparents or great-grandparents the ability
to intervene in this process and become part
of what would already be a contentious
situation? Or how does your bill prevent them
from becoming an even greater burden?
SENATOR LAVALLE: Senator, one of
the things in our law, and the courts have
held that the rights of the biological parents
are preeminent over all others except in
certain situations, which we have again
prescribed, where parents would be in jeopardy
of losing custody over their children. Those
would be in situations where there was abuse
or drug abuse on the part of the parents.
Very extreme, extreme situations.
There is one case where the court
ruled for the grandparents where a parent
5777
had -- the wife was dying, the husband, who
had been rarely a parent to his children, gave
up his own rights to -- after the wife passed
away, of custody of the children. And the
courts very carefully said that the
grandparents had always -- in this case, it
happened to be the maternal grandparents
had always been part of the children's life.
In other words, the court said it
was in the best interests of the children to
continue having the interaction of the
grandparents in terms of not only visitation
but custody, but also that the father in this
case gave up his rights, said, I was never
really there, I don't want to be there. And
so that was very, very easy.
So the courts are reluctant in the
case of biological parents to intervene only
in the most egregious situations of abuse or
neglect of the children.
SENATOR MONTGOMERY: Okay. Thank
you, Senator LaValle.
Madam President, just briefly on
the bill.
THE PRESIDENT: You may proceed
5778
on the bill, Senator.
SENATOR MONTGOMERY: Yes. I know
that I have tended to oppose this legislation.
And one of the reasons is that I
caution the state's involvement in these
situations that are often extremely difficult.
And it is usually the children that are used
by one parent or another or one side of the
argument against the other, and the children
are caught in the middle without really much
in terms of protection.
So I'm reluctant to support our
allowing or encouraging or making it possible
for not only grandparents but now
great-grandparents to be able to come into a
situation where a family may be dissolving,
for one reason or another, and become part of
the configuration of what happens to the
children and who has the rights or who does
not have the rights to visit or to have
custody of those children.
So I certainly understand Senator
LaValle's intent. I think he wants to do the
positive thing and have great-grandparents be
able to intervene. But I still am a little
5779
reluctant, and I will vote no simply because I
don't feel totally convinced and comfortable
that this is the right thing for us to be
doing as a state.
So I'll vote no, Madam President.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Paterson,
to explain your vote.
SENATOR PATERSON: Madam
President, I'm glad that we debate these
bills, because Senator Montgomery has
convinced me. I think I'm going to vote no,
even though this is extremely well-intended
legislation.
But the problem is that it really
does not cure the constitutional defect that
has already been judged by the courts to
exist, in that the grandparents -- e.g., the
5780
great-grandparents -- don't have any better
rights than the parents do. And that what we
would have to do is really change the notion
of the entire law. We can't add on new
protective classes to the existing law, which
in many respects has already been overruled by
the courts.
Now, I don't think Senator LaValle
was considering the issue of a battle between
the parents and the grandparents. He was
thinking more of situations where the parents
are somewhat incapacitated. But because of
the way I think that the courts have spoken
recently, I want to vote against this and hope
that Senator LaValle will go back and address
the broader issue to allow for grandparents
and great-grandparents to have the visitation
that they properly deserve.
THE PRESIDENT: Senator Paterson,
you will be recorded as voting in the negative
on this bill.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 57. Nays,
2. Senators Montgomery and Paterson recorded
5781
in the negative.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
would you please call up Calendar Number 324,
by Senator Stafford.
THE PRESIDENT: The Secretary
will read Calendar 324.
THE SECRETARY: Calendar Number
324, by Senator Stafford, Senate Print 3438A,
an act to amend the Highway Law, in relation
to the New York State Scenic Byways System.
SENATOR PATERSON: Explanation,
please.
THE PRESIDENT: Senator Stafford,
Senator Paterson, I believe, requested an
explanation.
SENATOR STAFFORD: Thank you,
Madam President. It gives me a great deal of
pleasure to stand here and be a protagonist
for a bill that will cost no money whatsoever
but will be a most worthwhile endeavor.
And what this bill does, it creates
the Champlain Canal Byway as a component of
5782
the New York State Scenic Byways System, which
consists of Route U.S. 4 from the
Waterford-Cohoes Bridge in Waterford to the
Canal Lock 12 in Whitehall.
It's a beautiful area. We all know
how important tourism is. We all know how
important the historical aspect of New York
State is. And it is a real, real step in the
right direction and will also make it possible
to receive federal funding. So we of course
are most supportive of the bill.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: If the
Senator would yield.
THE PRESIDENT: Senator, do you
yield for a question?
SENATOR STAFFORD: I certainly
will, Madam President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR OPPENHEIMER: I just have
a few questions, which don't -- they are not
against the bill, which I support, but just
trying to define a little more information, if
5783
that's okay with you.
Are there other areas that are
designated as components of this New York
State Scenic Byway System? It's something I'm
not familiar with.
SENATOR STAFFORD: Madam
President, I of course feel very positive that
you're supporting the bill. Now we can have,
I'm sure, a dialogue that's relaxed and
constructive, sensitive, and, you know,
informative.
The answer is yes.
SENATOR OPPENHEIMER: Yes?
SENATOR STAFFORD: Yes.
SENATOR OPPENHEIMER: If you
will, Senator.
THE PRESIDENT: Senator, will you
yield for another question?
You may proceed, Senator
Oppenheimer.
SENATOR OPPENHEIMER: It seems to
me that was like a Yogi Berra answer about
when you come to a crossroads in the highway,
take it. What were you saying? Yes to what?
SENATOR STAFFORD: Yes to your
5784
answer.
SENATOR OPPENHEIMER: There are
other areas. Do you know what they are?
SENATOR STAFFORD: I see, Madam
President. You want to know what are the
other components. That's the question.
SENATOR OPPENHEIMER: That's it.
SENATOR STAFFORD: Well, we're
really making headway here.
Madam President, this is throughout
the state that we have the components. And in
1992, we passed a bill whereby areas could
apply to become part of the scenic byway
system.
I will get you the exact other
areas in the state. Because my counsels
always have information at their fingertips,
but I think we're -- maybe right here we don't
have the information. But we will certainly
get it for you, and there are a number.
I believe -- now, I'm just giving
you this off the top of my head, but I believe
the Leatherstocking area is an area. I
believe the Seaway Trail, that's an area. And
I believe in the Mid-Hudson area you will find
5785
that there are a number of these scenic
highways, byways.
SENATOR OPPENHEIMER: Is there
if you'll yield for one more question.
SENATOR STAFFORD: Sure. Yes,
Madam President.
SENATOR OPPENHEIMER: Is there a
fiscal implication to these scenic highways,
byways?
SENATOR STAFFORD: This is why,
Madam President, we're so excited about this
program. The fiscal implications are not
there, but you're able to apply for federal
funding for this program when you are a -- let
me get the exact wording here -- New York
State Scenic Byways System. Passed in 1992.
SENATOR OPPENHEIMER: Well, then,
just to clarify, the monies are coming from
the federal Scenic Byways Program, or is
SENATOR STAFFORD: Yup. Exactly,
Madam President. It's the National Scenic
Byway Program.
SENATOR OPPENHEIMER: But we have
a state law which was passed in the early
'90s?
5786
SENATOR STAFFORD: 1992.
SENATOR OPPENHEIMER: I see. And
that's the pass-through.
Thank you very much.
SENATOR STAFFORD: Thank you.
SENATOR OPPENHEIMER: And I
willable very curious to see what other areas
are scenic byways.
This sounds like an excellent bill,
and I'm happy to support it. And I think the
more areas that we can get into the scenic
byways system, the better off we are, because
the funding isn't coming from us, it's coming
from the feds. And anything we can do to
promote our tourism and to keep our scenic
areas thriving, through maybe this infusion of
funds, can only benefit us.
So I think this is a fine bill.
I'll be voting yes.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
5787
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
THE PRESIDENT: The bill is
passed.
Senator Kuhl.
SENATOR KUHL: Yes, Madam
President. Will you now call up Calendar
Number 311, please.
THE PRESIDENT: The Secretary
will read Calendar 311.
THE SECRETARY: Calendar Number
311, by Senator Saland, Senate Print 2200, an
act to amend the Insurance Law and the General
Obligations Law, in relation to the use of
lands.
SENATOR DOLLINGER: Explanation.
THE PRESIDENT: Senator Saland,
Senator Dollinger, I believe, asked for an
explanation.
SENATOR SALAND: Thank you, Madam
President.
Madam President, this bill is an
effort to accomplish a couple of items, one of
which would be to expand the existing
5788
categories under General Obligations Law 9103,
under which a landowner who permits the use of
his property for certain specifically
enumerated items -- and there's a laundry list
of them there, probably anywhere from a dozen
to twenty of them -- is effectively free from
liability, other than malicious or gross
liability on his or her part.
And it also provides that the
Superintendent of Insurance shall make a
recommendation to the Governor and to the
Legislature dealing with the issues of
property and liability insurance for
landowners who permit the public to use their
lands for recreational or conservation
purposes, and that report is to be submitted
within 18 months after this legislation will
have become law.
This bill is, I believe, identical
in form to a prior version of this bill that
we considered in this house I believe during
the 1999-2000 session.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
5789
President, will the sponsor yield for a
question?
THE PRESIDENT: Senator Saland,
will you yield for a question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: This bill as
it deals with the problem of property and
casualty coverage on vacant land, can you tell
us what impact the prior version of this
section of the General Obligations Law has had
on premiums paid by landowners? Has there
been an impact?
SENATOR SALAND: Let me suggest
to you -- and perhaps I was remiss in my
opening remarks -- the intention of this bill
is basically to encourage owners of land and
privately owned water areas to permit the use
of the land for recreational and conservation
purposes.
Clearly, with the expanding desire
of people to access recreational
opportunities, government in and of itself
5790
can't accomplish that end. And we believe and
have reason to believe that land is
consistently becoming more frequently posted.
In terms of your -- going to your
question, what we do know is that this, we
believe, has encouraged the use -- and this is
anecdotal -- of lands for the sundry purposes
that are enumerated in the bill. And I'm not
going to bother to read them. You have them
there as well.
I can't tell you, however, what the
impact that has had on current liability rates
of property owners, and the purpose of this
legislation is in part to be able to make some
definitive -- come to some definitive
conclusion as to what that might be.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will again
yield to another question.
THE PRESIDENT: Senator Saland,
will you yield for a question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed
with a question.
5791
SENATOR DOLLINGER: Senator
Saland, to cut sort of right to the chase of
this, we enacted the provision that provided
an incentive for landowners to open up their
land for public use. And it's my
understanding that there have been a number of
cases which have somewhat narrowly -- we in
essence said we want to reduce the duty to the
landowner to the potential person who is on
their property, and that what the courts have
done is interpreted that more narrowly than we
intended and therefore left liabilities in the
landowner that we had thought we had somewhat
removed. Is that a fair statement? And, if
so
SENATOR SALAND: I don't know if
I could be as general as you. I've read some
of the cases. And certainly the courts have
made distinctions between those situations in
which there was a municipality, perhaps
operating a park, and those in which there
were private owners who had opened their
property for any one of, again, the enumerated
items.
And, I mean, there's four or five
5792
lines from camping to -- I'm sorry, canoeing,
boating, trapping, hiking, cross-country
skiing, tobogganing, sledding, et cetera, et
cetera, et cetera. My understanding is that
cases continue, from what I've seen and cases
that I've read, continue to uphold the
legislative intent.
What we're attempting to do here is
to expand that intent to make it clear and to
encourage people to open their property for
all recreational uses. We're effectively
saying what we want to accomplish with this is
to give more opportunity for people to
recreate on property that is currently being
posted by people who are concerned about
liability consequences.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will continue
to yield.
THE PRESIDENT: Senator, will you
yield for a question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
5793
SENATOR DOLLINGER: I just want
to make sure I understand. I mean, we have,
under the Basso doctrine from the court of
Appeals, a very broad definition of landowner
liability and the circumstances under which
the people coming into the property are now
required -- or the landowner is required, if
he's aware of some defect in that property, he
has an obligation to put up some reasonable
form of notice which will be fact-specific in
each case.
Is it your intention in this
legislation to lower the duty of the landowner
with respect to defects, either latent or
otherwise?
SENATOR SALAND: There is
nothing -- if you read this bill, there is
nothing in this bill that deals whatsoever
with changing whatever the existing law is
with regard to the determination of liability.
Absolutely nothing.
What this does, however, is to
expand and make it clear that whatever the
enumerated recreational uses are in this
particular bill, they are not exclusive. That
5794
by adding the term "any recreational use,
including but not limited," we are expanding
the number of uses for which 9103 would be
applicable, under whatever the existing
liability standards are today as determined by
the Court of Appeals or any other court that
has ruled on the issue of liability.
SENATOR DOLLINGER: Again through
you, Madam President, if the sponsor will
continue to yield.
THE PRESIDENT: Senator Saland,
do you yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Just so I
make sure I understand it, if there's a posted
trespass sign, then there's a series of rules
that -- liability that flows from the posting
of that sign. In essence, that they become
uninvited guests or they are no -- and the
duty is somewhat minimized because of the
notice.
Does this suggest that if you
5795
remove that sign, your duty is less for the
SENATOR SALAND: This has
absolutely nothing to do with the issue of
what flows from posting. It's totally
irrelevant.
What this does is merely say that
we are encouraging you to not post your
property so that more people will have the
opportunity to use your property for
recreational or conservation purposes.
We do nothing to impact whatever
the existing law is. We're merely seeking to
expand opportunities to give people greater
access to properties, keeping full well in
mind that it's impossible for the state to
reach into its treasury and fund by itself all
of the recreational and conservational
opportunities that we would like.
SENATOR DOLLINGER: Through you,
Madam President. With that in mind, Senator,
I just want to make sure I understand this.
If he will continue to yield, Madam President,
just
SENATOR SALAND: Yes, Madam
President.
5796
THE PRESIDENT: He does continue
to yield. You may proceed with a question,
Senator.
SENATOR DOLLINGER: On page 2 of
the bill where it talks about -- lines 20
through to 24, where it talks about an owner,
lessee, or occupant of the premises who gives
permission to another to pursue any of the
activities upon such premises does not
thereby -- and it's Section 2 that you've
amended. It used to read "constitute the
person to whom permission is granted, an
invitee to whom a duty of care is owed."
And your new language would say, if
you go back to the prior section "does not
therefore enter into any relationship with the
recreational user that could serve as a basis
for imposing any duty of care on the owner."
Doesn't the use of those two
phrases "any" mean in essence that there's no
duty of care owed by the owner of the land to
the invitee, trespasser, or permissive
recreational participant?
SENATOR SALAND: No. That if you
go back to the language that prefaces it, it
5797
says "any owner, lessee, or occupant who gives
permission to another," is giving permission
to someone to come upon their property. That
effectively is a change that is semantic and
not substantive.
SENATOR DOLLINGER: Okay. Madam
President, on the bill, please.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR DOLLINGER: Thank you,
Senator Saland, for your explanation.
I have to acknowledge, Madam
President, that reading for it and focusing
for it on the first time, I'm not quite sure
what this is intended to achieve. And I
appreciate Senator Saland's comment.
But the way I read it, it says any
owner who gives permission to pursue any such
activities upon such premises does not
thereby. In other words, merely by the
permission, by the fact they're allowed to
come in, he does not create -- or he does not
enter into any relationship with the
recreational user that could serve as a basis
for imposing any duty of care on the owner.
5798
And, Senator Saland, I understand
the intention of this bill. But that use of
the phrase "any duty" on the part of the owner
seems to suggest that we're creating no basis
for any liability to flow from the owner to
the person who is given permission to enter
the property. Which would mean even with
respect to latent defects.
I think we've talked about this,
Senator Saland, before when we did this bill,
about the bridge with the -- you know, the
wooden bridge in the middle of the forest that
covers the small creek that has wooden slats
in it that, you know, several of the slats are
out or you know that they might be weak and
rotted.
What liability or what obligation,
what duty does the landowner have if he knows
that the slats in the bridge are defective,
what duty does he have to post some notice to
anyone who enters onto the property?
And at least as I read that
section, and I would be the first to
acknowledge that having looked at it in detail
for the first time, that what it seems to
5799
suggest is that by giving -- if you give them
permission, if they're an invitee, under the
old common law doctrine then and they enter
into the property, then they -- that fact does
not create a relationship with the
recreational user that could serve as a basis
for imposing any duty of care on the owner.
That seems to me to carry the language as
another way of stating an absolute immunity
from possible action under those
circumstances.
I've debated this bill before, I've
talked against it, I've voted against it. I
appreciate what Senator Saland is doing. I
know that there are large tracts of land in
private hands. I know that in the Adirondacks
the Governor has purchased land from major
paper companies, that those lands are largely
used by the public for just the kind of
recreational programs that Senator Saland has
talked about that I think we'd like to
encourage.
But it seems to me that we
shouldn't approve a bill that creates, in
language, in essence an absolute immunity for
5800
the landowner under those circumstances.
Exactly for the example I cited, which is that
the rotting bridge over the small stream in
the forest, if the landowner knows that
there's a risk of liability and a risk of
danger and an unreasonable risk of danger, it
seems to me that the landowner has some
obligation to the unwary person on the
property, whether they're there by permission
or whether they're there by circumstance, or
even if they're trespassers, had the landowner
known that there was trespassing occurring, it
seems to me that there's some continuing
obligation to post that defect and give the
person upon the property some notice of that
defect.
Madam President, I'm all for
increasing the use of nonpublic lands and
trying to make them more available. But I do
believe that in balancing in the interests, if
the landowner knows and if it's reasonably
foreseeable that an invitee, a trespasser,
anyone with or without permission may expose
themself to an unnecessary harm, I think it's
contrary to the long common-law history of
5801
this state to enact a statute that grants a
form of immunity from those kinds of lawsuits.
Under those circumstances, Madam
President, I've voted against this bill in the
past, I will vote against it in the future. I
think that we'd like to have more and more
people out on semipublic lands or on wide open
lands and encourage them to use nonpublic
lands. But we shouldn't tell those landowners
that they are going to be free from liability
if the harm that eventually causes damage to
someone is one that was reasonably foreseeable
to the landowner.
I believe that that common-law
doctrine has held us in very good stead, Madam
President, in the course of the last 150
years. There's no reason why we should change
it in this instance.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: I'm very
supportive of this bill. I was listening to
my colleague, and I guess I would need some
explanation. So if he would -- if my
colleague Senator Dollinger would yield for a
5802
question, Senator Dollinger. Senator
Dollinger, I'm asking you to yield.
THE PRESIDENT: Senator
Dollinger, do you yield for a question?
SENATOR DOLLINGER: Yes, Madam
President, I will. Be glad to.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: If Senator
Dollinger would explain the common-law piece
to me.
SENATOR DOLLINGER: Through you,
Madam President, the common-law piece is very
simple. The doctrine is that
foreseeability -- that is, the chance that
something might happen and the circumstances
under which you must exercise reasonable care
to prevent it. That's the common-law theory
of torts. And foreseeability -- that is, the
chance that something will happen, that a harm
will occur -- is a combination of two things:
The gravity of the harm, how much it could
hurt you if it happened, and the likelihood
that it would occur.
The best example is to use the
5803
foreseeability of a nuclear weapon going off.
What's the chance that it would happen? Very,
very small. What's the consequence when it
happens? Very, very dire.
So under those circumstances, you
take the foreseeability, which is a
combination of those two factors, and then you
determine what reasonable care is necessary to
prevent it.
In this case with respect to
Senator Saland, the question for a landowner
is what's the chance that someone will walk
across the bridge with defective slats. The
answer to that question depends on how much
the landowner knows, whether it's happened in
the past, whether the landowner knows it's
happened in the past, whether the landowner
knows that there are people walking in that
section of the woods. That's the chance that
it will happen.
What's the consequence if they do?
If they're falling a foot and a half into a
small stream, well then he doesn't have a big
obligation to go out and give them lots of
notice. If they're falling 150 feet into a
5804
gorge, then he's got an obligation to post a
big, huge sign that says, Don't use this
bridge, because you could fall and kill
yourself.
That's the common-law theory of the
public liability. It's a combination of the
gravity of harm, how much you could get hurt,
and you balance that against the likelihood
that it would occur. And when you conduct
that balance, you then determine what
reasonable conduct is required to prevent it
from happening.
SENATOR OPPENHEIMER: I thank
Senator Dollinger very much. That's sort of
fascinating. Maybe we all are getting a legal
education in the last few weeks.
If I may speak from a layman's
point of view on the bill, Madam President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR OPPENHEIMER: This is
very pragmatic and very close to me, and this
is my experience. My experience is that I
have land where part of it is forest and part
of is a ten-acre meadow with a pond. The land
5805
was posted for many years. I felt comfortable
not having hunting going on on the property,
and I felt comfortable not having people I
didn't know on the property.
Then I was approached by a Boy
Scout leader, troop leader, asking if they
could ice skate on my pond. And I decided
that was something that I wanted to promote,
and I gave them permission. And now that pond
seems to be in constant action, having
constant action on it, and I feel good about
that. I feel if I had to bear some liability
because one of the young men fell through the
ice, I feel I would not be comfortable with
having granted this permission.
So from a very pragmatic point of
view, I think if we want people to open up
tracts of land to hikers and hunters in season
and other people who are coming just to enjoy
the property, that we should not be liable for
any accidents -- a gunshot wound, a broken
leg, a sprained ankle, a youngster falling
through the ice. I don't think that's going
to encourage people to open their private
property for the common good.
5806
And so I feel very strongly that
this issue of liability to the property owner
should not be. And I would think a reasonable
person, applying a reasonable person's
standard, if a reasonable person had a very
weakened wooden bridge on the property, I
think there would be some kind of notification
that this was a weakened wooden bridge and
that people should stay off it.
So I strongly support it and think
it's a fine bill and encourages public usage
of private land.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. If the Senator would
yield to a question.
THE PRESIDENT: Senator, will you
yield for a question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. Through you.
5807
Senator, in this discussion one of
the things that occurs to me is that in
reading the language you talk about the
landowners willful or malicious failure.
Would not after this discussion the language
negligent failure also be something that you
might want to consider inclusion in the bill?
SENATOR SALAND: Senator, no, I
would not, because that would basically gut
the bill.
In my opinion, the example given by
Senator Dollinger in which he referred to this
bridge with defective planks that the owner
would be aware of, I think that would be
certainly, at the very least, gross negligence
on his or her part not to let anybody who he
might be permitting the use of his property
know of. And I think the example that he
cited would have been covered in the existing
law.
This is an attempt to eliminate
issues of liability, to place some -- which is
the existing law. I mean, if you look at
existing 9103, General Obligations Law, it
basically lists a series of outdoor activities
5808
for which an individual who permits their
property to be used is in effect free from
liability unless their conduct is willful or
malicious or unless he or she charges a fee.
And this -- what we're attempting
to do here is to continue that idea, to
encourage people to let others use their
property, only we're attempting to get beyond
the boundaries of what's specifically
enumerated and make it all recreational uses.
SENATOR HASSELL-THOMPSON: Madam
President, through you, if the Senator would
continue to yield.
THE PRESIDENT: Senator Saland,
will you yield for a question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON:
Senator, then would you entertain with me a
different example? Several years ago, Baby
Jessica fell into a well.
THE PRESIDENT: I'm sorry, would
you repeat that?
5809
SENATOR HASSELL-THOMPSON: There
was the case of Baby Jessica who fell into a
well.
There are many pieces of private
property where a well, having been dug many,
many, many years ago, might inadvertently not
have been filled on that same stretch of
property. Should someone in the performance
of an event, an activity, fall into that well,
would you not consider that that forgotten
well might fall under the category of
negligent failure as opposed to gross
malicious and willful failure as you define
it?
SENATOR SALAND: That would be a
question of fact. That would be a question of
fact.
And in this particular case if the
law today permitted that child or someone on
behalf of that child to sue, the law as I'm
proposing to change it would similarly permit
that child to sue. If the law did not permit
that child to sue, as exists under 9103
currently, then it certainly is not going to
change under the language that I've proposed.
5810
SENATOR HASSELL-THOMPSON: Thank
you, Senator.
Through you, Madam President, on
the bill.
THE PRESIDENT: You may proceed.
SENATOR HASSELL-THOMPSON: Then I
too have to join my colleague Senator
Dollinger. Because until that last statement,
I was comfortable in thinking that the nature
of the law would in fact allow for a greater
expansion and use of properties for
recreational activities.
As in the case of Senator
Oppenheimer, I'm very clear. I know her area
as I do mine. And as we lose open space to
different needs for economic development
activities, we have to always look for ways to
create other open space. And so that I had
the feeling that your bill had a lot going for
it, and I could be very supportive of it.
But I would be very, very
uncomfortable if such an incident should occur
and we had passed this bill without giving our
own opportunity to consider those activities
that might not be willful or malicious but
5811
still would fall under the category of
negligent failure, which I think we should not
hold anyone harmless for their negligence
anymore than we should for willful and for
malicious failure.
So, Senator, under those
circumstances, back in the district, we may
have to discuss this, but I will have to vote
no.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: Madam
President, if Senator Saland will answer a
couple of questions.
THE PRESIDENT: Senator Saland?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR STAVISKY: In the
situation that Senator Oppenheimer described,
what if the Boy Scouts came on to her property
without her knowledge? Would she then be
subject to liability?
SENATOR SALAND: Well, first let
me suggest to you that you have to be coming
5812
onto the property for recreational purposes.
That's the start. So the situation that was
just described by Senator Hassell-Thompson,
really, if that toddler wandered onto the
property, fell into the well, this law would
not apply. If that was a toddler. If he or
she came on the property for recreational
purposes, that changes the entire format.
The Boy Scouts would have to be
coming on for recreational purposes and there
would have to be some permission granted by
whomever the property owner is -- in this
case, Senator Oppenheimer -- before they could
come upon the property in order for them to be
protected.
But being mindful of the specific
language that's in here, I mean, that would
not be applicable to the situation that
Senator Oppenheimer described.
SENATOR STAVISKY: Well, if she
were to put a fence around the property -- if
the Senator would continue to yield.
SENATOR SALAND: Yes, Madam
President.
SENATOR STAVISKY: If she were to
5813
put a fence around her property
THE PRESIDENT: You may proceed,
Senator. Thank you.
SENATOR STAVISKY: -- would that
come under the provisions of your legislation?
SENATOR SALAND: The question
again goes to the issue of permission. So if
she puts a fence and someone scales it, I
mean, you know, it's still clearly
SENATOR STAVISKY: For the
purpose of ice skating. Someone scales the
fence for the purpose of ice skating.
SENATOR SALAND: She still would
not have given her permission.
SENATOR STAVISKY: A couple of
other questions, Madam President.
THE PRESIDENT: Senator Saland,
will you yield for a question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Stavisky, with a question.
SENATOR STAVISKY: I thank you.
And I thank, incidentally, Senator Dollinger
for his lessons. I suspect at the end we may
5814
all take the bar exam after.
Is she responsible for maintaining
the fence that she would put up to keep out
people who do not have permission to engage in
recreational activities on her property?
SENATOR SALAND: I'm sorry, would
you say that again?
SENATOR STAVISKY: She presumably
would have to maintain the fence if she so
decides to put up a fence to limit the number
of people who are going to come ice skating on
her property.
SENATOR SALAND: The law makes
distinctions between invitees and trespassers.
What this attempts to say is if you
give permission, in effect, as long as you're
not -- and again, I'll tell you to take a look
at Section 3 -- if you're not willful or
grossly negligent, if you're not charging a
fee, you effectively are permitting others to
use your property. There's a certain
assumption of risk for the use of the
property. And you're not going to be
concerned if you have, quote, unquote, mere
negligence.
5815
If she has a fence and she doesn't
give her permission, there's nothing that this
does one way or the other. Whatever the law
would be today would be the law under this
bill. Absolutely zero impact.
SENATOR STAVISKY: That's what I
would assume.
And my last question, if the
Senator would yield.
THE PRESIDENT: Senator, will you
yield for a final question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR STAVISKY: On page 2,
line 8, you add the phrase "whether or not a
farm." I was curious as to why you're
inserting the phrase "whether or not a farm."
SENATOR SALAND: Merely to make
it clear that farmland would be treated
similarly as any other land that would be the
subject of this bill.
SENATOR STAVISKY: Thank you.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
5816
Then the debate is closed.
Please read the last section.
THE SECRETARY: Section 3. This
act shall take effect 180 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Paterson,
to explain your vote.
SENATOR PATERSON: Thank you,
Madam President, to explain my vote.
I think that the definitions that
exist in the law now are pretty broad and
pretty wide, and I can't even think of the
definitions that were left out that would make
for such a broad definition as exists in this
legislation.
I'm just imagining suburban
property like a pool and someone giving
permission to children to play in their pool,
and then some kind of accident. I don't know
if that limits liability in those situations.
But I think that this opens the
door for a lot of really misfeasances on the
part of landowners. Although we don't want
them sued for actions that were not their
5817
fault, we certainly want them taking
responsibility for circumstances that should
have been in their contemplation at the time
that they left their property in the condition
that it was.
And what this does is apply such a
strict standard that it doesn't give the
courts any jurisdiction to make the final
decision. So regretfully, Madam President,
I'm going to vote no.
Thank you.
THE PRESIDENT: Senator Paterson,
you will be recorded as voting in the negative
on this bill.
Senator DeFrancisco, to explain
your vote.
SENATOR DeFRANCISCO: I'm going
to vote no as well. I think the whole concept
of limiting liability to malicious and willful
only I think has gone a little bit too far.
There was some discussion about
gross negligence. Well, it doesn't say in
this bill gross negligence. In order for
someone to be liable, it's either got to be
willful -- that means you intend to do it
5818
or malicious, which means you have some evil
intent.
Gross negligence is even a standard
below that. And people could get away with
being grossly negligence just because they
gave permission to avoid liability, the way I
read the bill.
And, secondly, the concept is
protection of people. And 99 percent of these
people have insurance for a very simple
reason, to have a risk taken care of. And a
risk is covered by the insurance because we
want to make sure people are compensated if
they're in some way wronged.
So I guess -- and one other point,
and then I'll just vote my no -- that I think
is important. If you give permission under
this bill and somebody gets hurt, you may not
be liable. If you don't give permission, you
may very well be liable. There's something
that doesn't make any sense to me with that
kind of distinction. Under existing law, you
could still be liable.
So I guess my point is I hate these
exceptions. We have a general theory of law
5819
that we should follow. And I therefore vote
no on this bill.
THE PRESIDENT: Senator
DeFrancisco, you will be recorded as voting in
the negative on this bill.
The Secretary will announce the
results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 311 are
Senators Brown, Connor, DeFrancisco,
Dollinger, Duane, Espada, Hassell-Thompson,
Markowitz, Montgomery, Onorato, Paterson,
Sampson, Santiago, Schneiderman, A. Smith, M.
Smith, and Stavisky.
Ayes, 42. Nays, 17. Also Senator
Morahan in the negative. Ayes, 41. Nays, 18.
THE PRESIDENT: The bill is
passed.
Senator Kuhl.
SENATOR KUHL: Yes, Madam
President, is there any housekeeping at the
desk?
THE PRESIDENT: No, there is not,
Senator.
SENATOR KUHL: There being no
5820
further business to come before the Senate at
this time, I move we stand adjourned until
tomorrow
THE PRESIDENT: Senator Santiago.
SENATOR SANTIAGO: Madam
President, I would like to be -- with
unanimous consent, I would like would be
recorded in the negative on Calendar 316,
please.
SENATOR KUHL: No objection.
THE PRESIDENT: You will be so
recorded as voting in the negative on Calendar
316.
Senator Kuhl.
SENATOR KUHL: Now, there being
no further business to come before the Senate
at this time, I move we stand adjourned until
tomorrow, Tuesday, April 24th, at 11:00 a.m.
THE PRESIDENT: On motion, the
Senate stands adjourned until Tuesday,
April 24th, at 11:00 a.m.
(Whereupon, at 5:06 p.m., the
Senate adjourned.)