Regular Session - May 1, 2001
6301
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
May 1, 2001
3:08 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we each bow our heads in a moment
of silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, April 30th, the Senate met pursuant to
adjournment. The Journal of Friday, April 27,
was read and approved. On motion, Senate
adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
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Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President. On behalf of Senator
Fuschillo, please place a sponsor's star on
Calendar Number 173.
THE PRESIDENT: The bill is
starred, Senator Marcellino.
SENATOR MARCELLINO: Thank you.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Consumer Protection Committee in the Majority
Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Consumer Protection
Committee in the Majority Conference Room.
Senator Skelos.
SENATOR SKELOS: Madam President,
while we're on motions and resolutions, what
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would our day be without recognizing Senator
Dollinger and his daily motion.
THE PRESIDENT: Senator Dollinger
is hereby recognized.
SENATOR DOLLINGER: For the daily
Journal, Madam President, I just give notice
of our intention to move an amendment,
pursuant to Rule XI of the Senate Rules, that
we'll add a new rule, XV, to create ethical
standards for members, officers, and employees
of the Senate.
Today is Tuesday; tomorrow shall be
Wednesday.
Thank you, Madam President.
THE PRESIDENT: Senator
Dollinger, the notice of amendment is received
and will be filed in the Journal.
Senator Skelos.
SENATOR SKELOS: Madam President,
may we please adopt the Resolution Calendar,
with the exception of Resolutions 1521, 1522,
1523, 1524, 1533, 1560, and 1569.
THE PRESIDENT: All in favor of
accepting the Resolution Calendar, with the
stated exceptions, please signify by saying
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aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is accepted.
Senator Skelos.
SENATOR SKELOS: Madam President,
may we please take up Resolution Number 1521,
by Senator Maziarz, have the title read, and
move for its immediate adoption.
THE PRESIDENT: The Secretary
will read Resolution Number 1521.
THE SECRETARY: By Senator
Maziarz, Legislative Resolution Number 1521,
memorializing the Honorable George E. Pataki
to proclaim the week of April 30 through
May 4, 2001, as Elder Abuse Awareness Week in
New York State.
THE PRESIDENT: Senator Maziarz.
SENATOR MAZIARZ: Thank you very
much, Madam President.
Yes, just very briefly -- we have a
lot of business to do today -- I wanted to
suggest to my colleagues that they stop by
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the -- in the lower level of the Legislative
Office Building, there are various displays by
several organizations from throughout the
state dealing with the issue of elder abuse
and recognizing that elder abuse is a problem
in this state year-round, but that we want to
choose this week to spread the knowledge and
the fact that there are many agencies out
there that are willing to help victims of
elder abuse.
Thank you, Madam President.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: If we could take
up Resolution Number 1522, by Senator Maziarz,
have the title read, and move for its
immediate adoption.
THE PRESIDENT: The Secretary
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will read.
THE SECRETARY: By Senator
Maziarz, Legislative Resolution Number 1522,
memorializing Governor George E. Pataki to
proclaim May 1, 2001, as "Senior Citizen Day"
in the State of New York.
THE PRESIDENT: Senator Maziarz.
SENATOR MAZIARZ: Thank you,
Madam President.
I would also invite all of the
colleagues in the Legislature to sign on as
cosponsors of the previous resolution and of
this particular resolution asking the Governor
to proclaim this as Senior Citizen Day.
THE PRESIDENT: Any member who
does not wish to be included on this
resolution, please notify the desk.
The question is now on the
resolution. All in favor signify by saying
aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
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Senator Skelos, would you like to
open up Resolution 1521 as well?
SENATOR SKELOS: Anybody who
wishes not to be on the resolution should
notify the desk.
THE PRESIDENT: Thank you,
Senator.
SENATOR SKELOS: If we could take
up Resolution Number 1523, by Senator Maziarz,
have the title read, and move for its
immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Maziarz, Legislative Resolution Number 1523,
memorializing Governor George E. Pataki to
proclaim May as "Senior Citizens Month" in the
State of New York.
THE PRESIDENT: Senator Maziarz.
SENATOR MAZIARZ: Move the
resolution.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
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THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up Resolution Number 1524, by
Senator Maziarz, have it read in its entirety,
and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Maziarz, Legislative Resolution Number 1524,
honoring Edward Polinski upon the occasion of
his designation as recipient of the 2001 New
York State "Senior Citizen of the Year" Award
by the Tribes Hill Iroquois Senior Citizens.
"WHEREAS, Senior citizens bring a
wealth of experience and knowledge to the
increasingly active roles they play in today's
society. Their past contributions and future
participation are a vital part of, and
valuable asset to, the fabric of community
life and activity; and
"WHEREAS, This Legislative Body is
6310
justly proud to honor Edward Polinski upon the
occasion of his designation as recipient of
the 2001 New York State 'Senior Citizen of the
Year' Award by the Tribes Hill Iroquois Senior
Citizens; and
"WHEREAS, Born on July 2, 1922,
Edward Polinski grew up and was educated in
the local schools, graduating in the class of
1940 from Wilbur Lynch High School, Amsterdam,
New York.
"From a young age, Edward Polinski
showed a great deal of interest in his
community. One early endeavor was his
involvement in his school's PTA, in which he
later became a lifetime member.
"Edward Polinski is currently
serving as Chaplain of the Tribes Hill
Iroquois Senior Citizens, and he is also
involved with all aspects of the organization.
In addition, he is an active member of the Sir
William Johnson Senior Citizens in Fort
Johnson; and
"WHEREAS, From the beginning,
Edward Polinski became involved doing charity
work for the Cerebral Palsy Association and
6311
Liberty Enterprises, serving on its human
rights committee. While putting family first,
he still finds time to volunteer at the
Sanford Home for Elderly Women, and the
Montgomery Transitional Services, a nonprofit
agency offering residential facilities to the
mentally challenged, as a Board of Directors
member. In addition, he's active at hospice;
and
"WHEREAS, An active member in his
church, Edward Polinski serves as Lector
during Mass and has been named Eucharistic
Minister for both St. Stanislaus and St.
Mary's churches; he makes visits and
administers Holy Communion and is an admirable
representative of St. Mary's Hospital.
"Edward Polinski, a very active and
industrious man, has inspired and enriched the
lives of his family and friends through his
love and respect for others, generously
sharing the wisdom gained over years of
experiencing life to its fullest; and
"WHEREAS, With him throughout is
his wife of 50 years, Genevieve, and their
son, Lee, both of whom feel privileged to be a
6312
part of his life and rejoice in his
achievements; and
"WHEREAS, It is the intent of this
Legislative Body to publicly recognize and
commend those who have witnessed and
contributed to the developments and
achievements of our nation, state, and
communities over the course of their
noteworthy lives; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to honor
Edward Polinski upon the occasion of his
designation as recipient of the 2001 New York
State 'Senior Citizen of the Year' Award by
the Tribes Hill Iroquois Senior Citizens; and
be it further
"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to Edward Polinski."
THE PRESIDENT: Senator Maziarz.
SENATOR MAZIARZ: Thank you very
much, Madam President.
On behalf of Senator Bruno, I want
to welcome our Senior Citizen of the Year for
2001, Edward Polinski, his wife, Gen, and son,
6313
Lee, here to the chamber this afternoon.
I also want to recognize my
colleagues from the other house, the chair of
the Assembly Aging Committee, Assemblyman
Steve Englebright, and also the representative
of Mr. Polinski's home district in the
Assembly, Assemblyman Paul Tonko.
Obviously, the Secretary read all
the accomplishments of Ed Polinski. We were
very pleased today to visit the Governor's
mansion, meet the Governor's mother, have
lunch there today.
And at this time I'd like to yield
to my colleague, Senator Farley, who
represents Mr. Polinski.
Thank you.
THE PRESIDENT: Senator Farley.
SENATOR FARLEY: Thank you very
much, Senator Maziarz.
I notice we have a number of future
senior citizens up in the gallery, youngsters.
You know, as the first chairman of
the Aging Committee in the New York State
Senate -- and Senator Skelos was also a former
chairman of this significant committee -- we
6314
have been involved in choosing a lot of Senior
Citizens of the Year. I've seen a number of
people that have come through with tremendous
credentials.
But Edward Polinski is a remarkable
man, a remarkable person. A father of a
challenged son, Lee -- with his wife of 51
years, I believe, Gen -- Ed Polinski in from
Montgomery County. He lives in Fort Johnson,
which is a suburb of Amsterdam. And he's very
active in the Tribes Hill Iroquois Senior
Center and throughout the city of Amsterdam,
in organization after organization, such as
hospice, and so many helping the less
fortunate.
You know, he said something very
interesting. He said today, as he was
receiving the award, if he could bring a smile
to somebody's face that he's working with or
trying to help, it's made his whole day
complete.
Ed Polinski is truly a model for
anybody and everybody to try to follow. He
was a farmer and a Polish-American. And
Amsterdam, the city of -- I believe of his
6315
birth, at least he went to Wilbur Lynch High
School -- really is proud of this man.
Everybody that knows him and knew of him said
that this is one of the nicest guys you ever
want to run across.
We're absolutely delighted -- as I
said earlier today, I've seen a lot of Senior
Citizens of the Year being nominated. This
fellow has to be one of the best that we've
ever nominated.
Ed Polinski, we're very proud of
you. Congratulations. And we're proud of you
and your entire family. Congratulations.
(Applause.)
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
6316
Social Services Committee in the Majority
Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Social Services
Committee in the Majority Conference Room.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up Resolution Number 1569, by
Senator Balboni, have it read in its entirety,
and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read Resolution 1569.
THE SECRETARY: By Senator
Balboni, Legislative Resolution Number 1569,
honoring Warren A. Werner upon the occasion of
his designation as recipient of the 2001
"Outstanding Contribution by a Senior Citizen"
Award by the Nassau County Department of
Senior Citizen Affairs.
"WHEREAS, Senior citizens bring a
wealth of experience and knowledge to the
increasingly active roles they play in today's
society. Their past contributions and future
participation are a vital part of, and
valuable asset to, the fabric of community
6317
life and activity; and
"WHEREAS, Attendant to such concern
and fully in accord with its longstanding
traditions, it is the intent of this Assembled
Body to honor Warren A. Werner upon the
occasion of his designation as recipient of
the 2001 'Outstanding Contribution by a Senior
Citizen' Award by the Nassau County Department
of Senior Citizen Affairs; and
"WHEREAS, Warren A. Werner is the
quintessential volunteer. He is dedicated to
making life easier for those who are in need.
"Warren A. Werner's volunteer work
on the local level includes the North Shore
Hospital, where he is in charge of the
emergency room volunteers; Temple Emanuel;
Grace Plaza Nursing Home; Great Neck Police
Force; and the North Shore Animal League.
"At the county level, Warren A.
Werner is involved with Meals on Wheels and
the Interfaith Nutrition Network, and he
transports seniors to and from doctors'
offices; and
"WHEREAS, Warren A. Werner is also
active on the national level with B'nai B'rith
6318
and with the Veterans Administrations, for
which he entertains veterans and brings them
treat; and
"WHEREAS, This 84-year-old man sang
at the Martin Luther King Interfaith Service,
in a beautiful, full voice, a refrain that
typifies his life activities.
"Throughout his impressive
lifetime, Warren A. Werner, a very active,
energetic, and industrious man, has inspired
and enriched the lives of his family, friends,
and colleagues through his love and respect
for others, and through the wisdom which comes
from many years of experiencing life to its
fullest; and
"WHEREAS, It is the sense of this
Assembled Body that those who enhance the
vitality and well-being of their community and
have shown a long and sustained commitment to
excellence certainly deserve to be recognized
and applauded by all the citizens of the great
State of New York; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to honor
Warren A. Werner upon the occasion of his
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designation as recipient of the 2001
'Outstanding Contribution by a Senior Citizen'
Award by the Nassau County Department of
Senior Citizen Affairs, and be it further
"RESOLVED, that a copy of this
resolution, suitably engrossed, be transmitted
to Warren A. Werner."
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: Yes, Madam
President, thank you.
It is an honor to rise today on the
Senate floor and to recognize someone who
enriches the community as much as Mr. Werner
does.
What was not mentioned in the
resolution are two key aspects. One is that
Mr. Werner is a veteran, having survived the
horrific event in World War II. The Lord
record meant for you to do great things,
Warren. You have done those for the
community.
And, secondly, Rabbi Woodham of
Temple Emanuel would never have let me leave
Albany if I did not stand and proclaim this
day as a great day for Great Neck and a great
6320
day for the Werners.
Mr. President, thank you very much
for the opportunity. And I invite any of my
colleagues, go shake this man's hand. He has
done a tremendous amount for the community, a
tremendous amount for the state, and is a
wonderful United States citizen.
Thank you very much.
ACTING PRESIDENT MARCELLINO: The
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO:
Opposed, nay.
(No response.)
ACTING PRESIDENT MARCELLINO: The
resolution is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could call up Resolution Number 1560, by
Senator Maziarz, have the title read, and move
for its immediate adoption.
ACTING PRESIDENT MARCELLINO: The
Secretary will read.
THE SECRETARY: By Senator
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Maziarz, Legislative Resolution Number 1560,
memorializing Governor George E. Pataki to
proclaim the week of May 6 through 12, 2001,
as Brain Tumor Awareness Week in the State of
New York.
ACTING PRESIDENT MARCELLINO:
Senator Maziarz.
SENATOR MAZIARZ: Thank you very
much, Mr. President.
I promise, Senator Skelos, this is
the last resolution that I have today. Today.
Obviously, Brain Tumor Awareness
Week is very important for individuals, to
encourage individuals to go out to be tested.
Brain tumors are the second leading cause of
cancer death for children under the age of 19
and the third leading cause of cancer death
for young adults ages 20 to 39.
In the United States, the overall
incidence of primary brain tumors is 11 to 12
per 100,000 people. And the incidence of
brain tumors is increasing, especially among
the elderly. Brain tumors are the second
fastest growing cause of cancer deaths among
those over the age of 65.
6322
I would move the resolution,
Mr. Chairman.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator Maziarz. The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO:
Opposed, nay.
(No response.)
ACTING PRESIDENT MARCELLINO: The
resolution is carried.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could call up Resolution Number 1533, by
Senator Gentile, have the title read, and move
for its immediate adoption.
ACTING PRESIDENT MARCELLINO: The
Secretary will read.
THE SECRETARY: By Senator
Gentile, Legislative Resolution Number 1533,
honoring Kenneth Richter and his colleagues on
their safe return following their capture by
the People's Republic of China.
ACTING PRESIDENT MARCELLINO:
6323
Senator Gentile.
SENATOR GENTILE: Thank you, Mr.
President.
Twenty-four crew members of a U.S.
Navy spy plane were forced to make an
emergency landing on Sunday, April 1, 2001,
off a Chinese island during a routine
surveillance mission. As we all know, the
U.S. Navy airplane was forced to make that
landing after colliding with a Chinese fighter
jet that was shadowing it.
On that plane, captured in the line
of duty, along with 23 other members of the
crew, was U.S. Navy Cryptic Technician Second
Class Kenneth Richter, who was held prisoner
along with his fellow crew members at the
Chinese air base.
Kenneth Richter grew up in the
Midland Beach section of Staten Island and is
the child of Marjorie and Ken Richter. He is
a 32-year-old Staten Island native, a graduate
of New Dorp High School, joined the Navy in
1995, was married in 1998 to Jan Richter, and
serves today as a U.S. navy cryptic
technician, second class.
6324
He, along with his other crew
members, for 11 days were held on that Chinese
island during 11 days of negotiation between
the President and the Chinese officials. In
that time his sister, Barbara DeStefano, began
a yellow ribbon campaign on Staten Island to
remind the Chinese government about the U.S.
servicemen and women and their families, their
families that were so concerned about them
here in this country. Barbara met with
Congressmen in Washington, D.C., to increase
the country's awareness about this issue.
And as we all know, on April 13th,
the crew members, Kenneth Richter included,
returned to the United States. And we are
certainly grateful to the crew for their
service to their country and their steadfast
bravery. We welcome back Kenneth Richter.
All of Staten Island and certainly
the rest of the country is glad to see them
home safely, and we're happy to have them,
welcome them to the arms of their families,
their friends, and their fellow Americans.
Because this goes beyond Staten
Island -- Senator Marchi and I are cosponsors
6325
on this resolution. But obviously, because
this goes beyond the confines of Staten
Island, Mr. President, I would like to open up
this resolution to anyone here in the house.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator.
Senator Skelos, with your
permission, we would open the resolution to
all those wishing to be on it. And anyone who
does not wish to be on it, please notify the
chair.
Senator Skelos.
SENATOR SKELOS: Mr. President,
did we adopt that last resolution?
ACTING PRESIDENT MARCELLINO: No,
we did not, Senator. It's my error. Thank
you.
The question is on the resolution.
All in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO:
Opposed, nay.
(No response.)
ACTING PRESIDENT MARCELLINO: The
resolution is passed.
6326
Senator Skelos.
SENATOR SKELOS: Mr. President,
there's a privileged resolution at the desk by
Senator Lack. Could we have the title read
and move for its immediate adoption.
ACTING PRESIDENT MARCELLINO: The
Secretary will read.
THE SECRETARY: By Senator Lack,
Legislative Resolution Number 1580,
memorializing Governor George E. Pataki to
proclaim May 1, 2001, as Law Day in the State
of New York.
ACTING PRESIDENT MARCELLINO: The
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO:
Opposed, nay.
(No response.)
ACTING PRESIDENT MARCELLINO: The
resolution is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could go to the noncontroversial
calendar.
6327
ACTING PRESIDENT MARCELLINO: The
Secretary will read the noncontroversial
calendar.
THE SECRETARY: Calendar Number
313, by Member of the Assembly Carrozza,
Assembly Print Number 5259A, an act to amend
the Insurance Law.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
351, by Senator LaValle, Senate Print 1879, an
act to amend the General Municipal Law.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
368, by Senator Kuhl, Senate Print 2122, an
act to amend the Vehicle and Traffic Law.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
6328
458, by Senator Bonacic, Senate Print 2271, an
act to amend the Criminal Procedure Law.
SENATOR PATERSON: Lay that
aside, please.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
461, by Senator McGee, Senate Print 3009, an
act to amend the Criminal Procedure Law.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
462, by Senator Wright, Senate Print 3059, an
act -
SENATOR SKELOS: Lay it aside for
the day at the request of the sponsor.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside for the day at the request
of the sponsor.
THE SECRETARY: Calendar Number
464, by Senator Maziarz, Senate Print 3279, an
act to amend the Penal Law.
SENATOR PATERSON: Lay that
6329
aside, please.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
465, by Senator Kuhl, Senate Print 3337, an
act to amend Chapter 689.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
556, by the Assembly Committee on Rules,
Assembly Print Number 2599, an act to amend
the Tax Law.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
560, by Member of the Assembly DelMonte,
Assembly Print Number 7221, an act to amend
the Alcoholic Beverage Control Law.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
Senator Skelos, that concludes the
6330
reading of the noncontroversial calendar.
SENATOR SKELOS: Mr. President,
if we could take up the controversial calendar
at this time.
ACTING PRESIDENT MARCELLINO: The
Secretary will read the controversial calendar
in the regular order.
THE SECRETARY: Calendar Number
313, by Member of the Assembly Carrozza,
Assembly Print Number 5259A, an act to amend
the Insurance Law, in relation to including
references.
SENATOR HEVESI: Explanation.
ACTING PRESIDENT MARCELLINO:
Senator Seward, an explanation has been
requested of your bill.
SENATOR SEWARD: Thank you, Mr.
President. Timing is everything.
The bill before us would amend
various sections of the Insurance Law to make
some technical amendments that were
necessitated because of a bill that we passed
last year -- in fact, it was Chapter 505 of
the Laws of 2000 -- which created a life
broker's license.
6331
Now, this bill includes a reference
to the term "broker," where appropriate, where
there are references to life insurance
"agents," to ensure that similar regulations
exist for life agents as well as this new
category of life brokers.
Just as a means of information,
now, the difference is, of course, an agent
generally works for a particular company and,
markets that company's products. In the
course of doing business, does look after the
interests, obviously, of their customers. But
primarily, they are responsible to and for the
interests of the company that they're
representing.
We created this broker's license
last year so that a broker can represent the
interests of the insured and seek a variety of
products from a variety of companies, which I
think is a very positive thing.
And this bill simply makes some
technical changes, because in last year's bill
we did not pick up, in all of the sections of
law, to inserting "broker" in addition to the
word "agent" in various provisions of the
6332
Insurance Law. This bill simply makes those
technical corrections.
ACTING PRESIDENT MARCELLINO:
Senator Hevesi.
SENATOR HEVESI: Thank you, Mr.
President. Would the sponsor please yield.
ACTING PRESIDENT MARCELLINO:
Senator Seward, do you yield for a question?
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR HEVESI: Thank you.
Through you, Mr. President, just
for clarification's sake, there was no reason
why any reference to brokers were left out of
Chapter 505 of the Laws of 2000?
SENATOR SEWARD: Mr. President, I
would describe it as an inadvertent omission.
SENATOR HEVESI: Okay. Thank
you. Mr. President, would the sponsor
continue to yield?
ACTING PRESIDENT MARCELLINO:
Senator Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: He
6333
continues to yield, Senator.
SENATOR HEVESI: Thank you. I
fully appreciate trying to clean up
legislation which we haven't been as perfect
on the first time around as we'd like.
There's no fault or shame in that.
I'm just curious to know, if we
were not to take this action, what's the
practical implication of the law existing as
it was passed last year, as opposed to making
these changes?
In other words, did some
circumstance occur which has already taken
place after that law was enacted, or is there
some foreseeable incident that could occur
that would give additional cause for us to
have to remedy this technical problem today?
SENATOR SEWARD: Well, Mr.
President, the -- Chapter 505 of the Laws of
2000 have taken effect on April 1st, one month
ago. And because it is a brand-new statute,
the Insurance Department has not, shall we
say, geared up, and there are none of these
new life brokers out there as yet.
So we still have time, by passing
6334
this legislation, which has already passed the
Assembly, to make these technical corrections
prior to having any practical impact on these
prospective new brokers as well as their
clients.
If we were not to pass this
legislation, the implications could be
summarized in this way. The brokers would not
clearly be under the same regulations and
statutes in the Insurance Department which
govern the operation in their practice of
their profession out in the marketplace. And
I think it is important, as a -- frankly, as a
consumer protection to make sure that these
new category of brokers are under the same
rules and regulations, statutes, as the
agents.
SENATOR HEVESI: Thank you. Mr.
President, would the sponsor continue to
yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MARCELLINO: He
continues to yield.
SENATOR HEVESI: I just want to
be completely clear on this one point. The
6335
additional references to brokers in your
legislation who are agents -- not agents, who
are individuals who are acting on behalf of
the insured, those individuals are
indistinguishable from the category of
individuals in Chapter 505, the life brokers?
Or are there two separate and distinct
categories, brokers and life brokers?
SENATOR SEWARD: Mr. President,
the legislation that we are considering today
would deal with the new category of life
broker. They would add -- wherever we see in
the Insurance Law a reference to a life agent,
it will now say, under this legislation, a
life agent, comma, broker.
So we're adding the word "broker"
every time the word "agent" appears,
specifically in the category in terms of life
and health. And the products that these
agents and brokers market are life insurance
products, annuities, and also health insurance
products.
SENATOR HEVESI: Thank you, Mr.
President. Thank the sponsor.
ACTING PRESIDENT MARCELLINO: Any
6336
other Senator wishing to be heard on the bill?
Seeing none, the debate is closed.
Read the last section.
THE SECRETARY: Section 18. This
act shall take effect on the same date as
Chapter 505 of the Laws of 2000.
ACTING PRESIDENT MARCELLINO:
Call the roll, please.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
THE SECRETARY: Calendar Number
351, by Senator LaValle, Senate Print 1879, an
act to amend the General Municipal Law, in
relation to creating.
SENATOR LACHMAN: Explanation,
please.
ACTING PRESIDENT MARCELLINO:
Senator LaValle, an explanation has been
requested by Senator Lachman.
SENATOR LAVALLE: Very simply,
Senator Lachman, this establishes and allows
for the creation of a community development
agency for the township of Southampton. And
6337
there are, within the State of New York, many
town community development agencies that have
been created by this Legislature over the
probably 30 or more years.
That's it.
SENATOR LACHMAN: Mr. President,
through you, will the distinguished Senator
yield for a question?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields, Senator Lachman.
SENATOR LACHMAN: What is the
public involvement that's necessary to
establish a community development agency? Is
there a public input?
SENATOR LAVALLE: Senator, as you
may know -- I'm not sure whether the
President, the presiding officer mentioned,
but there's a home rule message as part of
this. Which means that the locality, before
it takes an action to request this legislation
of this body of the Legislature, must have its
local approval.
So the local elected members, the
supervisor and the council members, have held
6338
public meetings in which the public
participates, have given their input. As well
as, by the way, in a community such as the
town of Southampton, where there is a very
active local newspaper, the Southampton press
attends all of those meetings. And so the
proceedings are well publicized. And at some
meetings, even Cablevision.
And so the community is really in
touch, whether they are directly there
participating or through the local media.
SENATOR LACHMAN: Mr. President,
will the Senator yield for one final question?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO: I
believe he yields.
SENATOR LACHMAN: What are the
sources of funding for those community
development agency projects?
SENATOR LAVALLE: State and
federal monies that come in under various acts
created both at a state level and a federal
level.
SENATOR LACHMAN: Not the county
level, but state and federal?
6339
SENATOR LAVALLE: That is
correct.
And I'm not aware of whether -
there could be county contributions to various
projects. But in order for the town to
receive this, the conduit is the community
development agency.
And the projects can be many. It
could be monies that come in for signage. We
have just such a project in the town I live
in, in the town of Brookhaven, where they are
doing some signage in the Hamlet of Rocky
Point.
It could be, as in the past, where
community development agency -- federal monies
came in through the community development
agency to put in public water.
It could be for facing of
commercial facilities in downtown areas, or to
put lighting in to make curb or street
improvements.
It's a whole myriad of things that
community development agencies do.
SENATOR LACHMAN: Thank you,
Senator.
6340
On the bill, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Lachman, on the bill.
SENATOR LACHMAN: Very briefly.
I'm delighted to support a good
piece of legislation such as this.
Thank you.
ACTING PRESIDENT MARCELLINO:
There is a home rule message at the desk.
Senator Onorato.
SENATOR ONORATO: Mr. President,
will the Senator yield for one question?
ACTING PRESIDENT MARCELLINO:
Senator, will you yield?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR ONORATO: Senator
LaValle, how does the community development
differ from a business improvement district?
SENATOR LAVALLE: A business
improvement district, or a BID, is once again
established by this Legislature as a request
of a locality. It's a special district, and
the businesses within that special district
6341
actually raise monies and expend them
according to the wishes of the commercial
people within a business improvement district.
It's entirely different. It's a
special district and is located within a
restricted area. The legislation we're
debating here is for an entire township,
whereas a business improvement district is in
a locality.
Example, in the hamlet of
Riverhead, downtown Riverhead, there's a
business improvement district. In the village
of Port Jefferson, where I live, there's a
business improvement district that is created
by the businesses that actually vote to create
the district, establish a budget, and expend
the money on projects that the district
participants wish it to be spent on.
SENATOR ONORATO: Thank you.
ACTING PRESIDENT MARCELLINO: Are
there any other Senators wishing to be heard?
Again, there is a home rule message
at the desk.
The Secretary will read the last
section, please.
6342
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
THE SECRETARY: Calendar Number
368, by Senator Kuhl, Senate Print 2122, an
act to amend the Vehicle and Traffic Law, in
relation to authorizing.
SENATOR ONORATO: Explanation,
please.
ACTING PRESIDENT MARCELLINO:
Senator Kuhl, an explanation has been
requested.
SENATOR KUHL: This is a very
easy bill, Mr. President, to understand this
bill.
It would allow the issuance of a
second Purple Heart license plate to a Purple
Heart recipient, or his spouse, or her spouse,
for the sum of $15, normal registration fee.
ACTING PRESIDENT MARCELLINO:
6343
Senator Onorato.
SENATOR ONORATO: Mr. President,
will the Senator yield to a couple of quick
questions?
ACTING PRESIDENT MARCELLINO:
Senator Kuhl, do you yield to a question?
SENATOR KUHL: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR ONORATO: Senator, what
is the demand basically now for the second set
of Purple Heart? Has there been a great deal
of demands made for it?
SENATOR KUHL: Well, currently,
Senator, it's prohibited under law. So there
wouldn't be any demand. There would no record
of any request for a demand.
SENATOR ONORATO: If you'd
continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you continue to yield?
SENATOR KUHL: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR ONORATO: One last
6344
question, sir.
We now have numerous types of
veterans' plates. Would this be more
compatible with Senator Morahan's bill that
will make it all uniform prices, Purple Heart,
a veteran of Vietnam? Will all these fees
have the same charge to them?
SENATOR KUHL: Yes, Senator.
Currently there's a $15 charge specifically
for this plate, just like there is for your
second Senate plate. Which currently Purple
Heart recipients are not able to get.
So in this particular case, a
Purple Heart recipient would now be granted
the same status that you have preferentially,
by being able to get a second plate. Except
that would just be a Senate 2 on your plate.
SENATOR ONORATO: Through you,
Mr. President, that wasn't what I meant. I'm
not referring to the second plate of ours.
But is it comparable to the prices
that a veteran, a Vietnam veteran -- does that
license plate have the same charge as the
Purple Heart will have?
SENATOR KUHL: I don't know that,
6345
Senator. All I know is the current charge is
for $15. This duplicates that same charge for
the second plate.
SENATOR ONORATO: Thank you.
ACTING PRESIDENT MARCELLINO: Any
other Senators wishing to be heard?
Seeing none, debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
ACTING PRESIDENT MARCELLINO:
Call the roll, please.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
The Secretary will read.
THE SECRETARY: Calendar Number
458, by Senator Bonacic, Senate Print 2271, an
act to amend the Criminal Procedure Law, in
relation to denial of recognizance.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MARCELLINO:
Senator Bonacic, an explanation has been
6346
requested by Senator Paterson.
SENATOR BONACIC: Thank you, Mr.
President.
This legislation is intended to
amend the Criminal Procedure Law in relation
to a denial of recognizance or bail in certain
cases. More specifically, it prevents the
pretrial release, on recognizance or bail, of
persons charged with crimes of violence -- and
there are 11 specific categories, and I'll
read them to you shortly -- who have had
certain prior felony convictions or who are
charged with committing a violent felony crime
while at liberty on recognizance or bail for
another violent felony crime.
And it would prohibit the release
of such individuals charged with violent
felony crimes where their prior involvement
with the criminal justice system supports the
fact that the present charge is not an
isolated incident but rather an indication of
serious involvement with violent felonious
conduct.
And the 11 categories specifically
would be murder one or two; aggravated assault
6347
on a police or peace officer; criminal use of
a firearm in the first degree; arson one or
two; rape one; sodomy one; attempt to commit
any of the above; manslaughter one; robbery
one; burglary one; robbery two, when a third
party is injured or what appears to be the
display of a firearm; and, last but not least,
burglary two, where the defendant is armed or
causes injury to a third party or uses or
threatens the immediate use of a dangerous
weapon or displays what appears to be a gun.
What we're trying to do with this
legislation, there's been a high incidence of
recidivism for a violent felon who has been
convicted and is charged with a similar
violent crime in these 11 categories. We want
to get them off the streets, and we want bail
to be denied in those specific instances.
There are safeguards to the
defendant to make sure that defendant is
entitled to a fair and speedy trial. The
legislation calls for a trial within 60 days,
and that could be extended if the defendant
asks for a delay. The time period is tolled,
and every 14 days the defendant could make an
6348
application that he does not fall into the
category of this legislation and he should be
entitled to bail under the laws of the
Criminal Procedure Law of the State of
New York.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: Mr. President,
if Senator Bonacic would yield for some
questions.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield?
SENATOR BONACIC: I would, yes,
Senator Paterson.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR PATERSON: Thank you, Mr.
President.
This takes me back a long way, Mr.
President, but I believe that over 15 years
ago, when I worked in the DA's office, our
conviction rate on these types of felonies
when we brought these cases to trial was about
somewhere between 65 and 70 percent. And when
we would come back a second time with a
6349
situation where we'd received a conviction the
first time, we were somewhere between 75 and
80 percent.
So then my question to Senator
Bonacic is, isn't it reasonable to assume that
even on the arrest for a first offense that
the defendants in most of these types of cases
are going to be found guilty?
SENATOR BONACIC: Well, every
individual is presumed to be innocent until
convicted of a crime.
But I'd like to point out an
incident that happened in Connecticut where an
individual was convicted of a violent felony
crime and then he got charged with another
crime specifically in one of these 11
categories, and while out on bail he killed a
9-year-old boy.
And had this legislation been in
effect, he would have been incarcerated, never
having an opportunity to inflict injury on any
individual while waiting for a disposition of
that second violent felony charge.
SENATOR PATERSON: Mr. President,
I'd like to go over the facts of that case
6350
with Senator Bonacic. We don't have to do it
here. But that case took place in
Connecticut, it was actually an 8-year-old
boy, and his mother was also killed. And my
understanding is that they were killed on
order of the defendant.
And it doesn't make the situation
any more grave or any less tragic, and in no
way diminishes from Senator Bonacic's point.
I understand what he's saying.
But the question I'm raising with
Senator Bonacic is that if we presume this
innocence the first time, even though we
receive an overwhelming number of convictions,
what I'm saying is that between the first and
the second time, based on the percentage of
convictions we can receive, how can we turn
the notion of the presumption of innocence on
its head because we think that we have a
pretty good idea that the defendant was
guilty?
SENATOR BONACIC: Okay. I'll
just take a second with you. We did an
analysis of recidivism between that first
felony conviction and the charge of the arrest
6351
for the second felony.
And this goes back -- and the
statistics I'm going to quote are from the
Clinton administration. It was done back in
1994, and it was entitled "Pretrial Release of
Felony Defendants." And there was a
recidivism rate of approximately 63 percent.
Now, you know, that may be
different today, but my presumption is that
there's still a high recidivism rate of that
same defendant, in all likelihood, that he
would have been guilty the second time around.
SENATOR PATERSON: Mr. President,
I demur to Senator Bonacic's complaint. I
agree with everything he said. Not only -
I'll go further than that, Senator Bonacic, I
think there's an overwhelming possibility that
they were guilty the second time around. I'm
suggesting to you there's an overwhelming
possibility they were guilty the first time
around.
Because in these type of
situations, based on the convictions that we
receive, that the police and the other law
enforcement officials who made these arrests
6352
absolutely got the right woman or the right
man. And in these cases I think it's, you
know, pretty reasonable to assume that they're
going to be found guilty.
But my problem with all of this is
that we have decided, starting with the Sixth
Amendment to our Constitution and with other
codes that we put into our law enforcement
procedures, that we're going to give these
individuals the benefit of at least getting a
trial before we determine that they're
actually guilty.
And that although in my heart I am
completely with you on the issue of where
they've already been convicted, now they get
arrested again, we certainly have exacted some
further infringements on defendants once
they're found guilty. We take away their
right to vote. There are certain things that
even when they leave the correctional system
that we visit upon them. So I can at least
understand the first part of the legislation.
But if a person was arrested for a
felony, such as one of the 11 that you
describe, and while awaiting that trial is
6353
then arrested a second time, they haven't even
been convicted on the first complaint and
we're now taking that assumption and codifying
it into the law and forcing them to be held up
to possibly 180 days.
My question is, if they're found
not guilty on both charges, what do we give
them back for the 180 days?
SENATOR BONACIC: I take it that
you're certainly concerned with the
presumption of innocence, where one is charged
with a violent crime, not yet convicted, then
he is charged with a second violent crime but
still not convicted of the first. I think
that's your concern.
SENATOR PATERSON: Yes.
SENATOR BONACIC: Okay. I think,
under our legislation, the district attorney
has to make a good-faith application to the
court that this is a person who meets the
conditions of this legislation, even though
they were never convicted of a felony the
first time. You know, where there's smoke,
there's fire.
And I know we're very protective of
6354
the constitutional rights of the presumption
of innocence. That's something that is sacred
to all of us. But we tried to build in
safeguards to this legislation. I've already
talked about the every 14 days they can make
an application. There's got to be -- it has
to be tried in 60 days.
And the prosecution has to prove,
on a motion in this area, with clear and
convincing evidence, that this particular
defendant meets the requirements of the
legislation.
So it's a judgment call of the
district attorney, the prosecution, and the
judge, giving them the power to deny bail if
there are two charges, although not one felony
conviction, in these 11 categories that I've
described.
Most of the time, though, and the
thrust of this legislation, is where there is
a prior violent felony conviction and we're
dealing with an individual who is charged, you
know, with an arrest a second time around in
one of these 11 categories.
SENATOR PATERSON: Thank you,
6355
Senator Bonacic.
Mr. President, on the bill.
ACTING PRESIDENT MARCELLINO:
Senator Paterson, on the bill.
SENATOR PATERSON: That is the
easiest application the district attorney's
office will ever make. You won't even have to
have clear and convincing evidence. All you
have to show is that the person was arrested
the first time, they got arrested the second
time. There's nothing more clear and
convincing than that. It would be an
open-and-shut case every time. And it would
detain the defendant for up to 180 days.
Now, Senator Bonacic is very
responsible, and he offers this legislation in
good faith. But I guarantee you if we pass
this legislation, somebody is going to turn up
here in the next couple of years and extend
this to if we have a reasonable belief that on
the first arrest that the defendant is guilty,
we'll detain them up to 180 days. And then we
will have totally destroyed the concept that
our Constitution provided for when it was
drafted over 200 years ago.
6356
Even in this legislation, we're
saying that -- as Senator Bonacic termed it -
that where there's smoke, there's fire. Boy,
if we had a criminal justice system that
responded to where there's smoke, there's
fire, we would really have locked up a lot of
people who were appearing to be guilty, were
thought to be guilty, were deemed to be guilty
by the prosecutor, but were later found not to
be guilty.
There's nothing in this evidence
that actually demonstrates guilt on the part
of the defendant, only that they got arrested
before the trial for the first time.
Now, as I said, I'm sympathetic to
the notion that where there's been a previous
conviction, that we might exact some
punishments on the defendant that extend past
their stay in the criminal justice system. I
understand that.
But it is still possibly in
violation of the Constitution, because the
Constitution is very clear on what bail is
for. It's to guarantee the presence of the
defendant at the actual trial. It is not put
6357
there to punish the defendant. That is for
the result of the trial, if the defendant is
found guilty. That's the punishment stage.
Now, if the prosecutor wants to
make a good-faith argument to the judge who is
ruling in the bail hearing that there is
evidence that this individual is a danger to
the community and wants to cite the previous
arrest, then in the discretion of the judge,
they might want to raise bail to such an
extent that they don't think the defendant
could meet it or remand the defendant without
bail. These are decisions that the judge can
make.
And Senator Bonacic is talking
about good faith. But there's no good faith
when you write a law that bounds the court by
what the prosecutor says is the prosecutor's
good faith.
What you've got to do at this point
is to handle these cases in a case-by-case
situation so that if it's really kind of
sticking out that you have a predicate felon
on your hands, that the judge will take it
under his or her discretion to remand the
6358
defendant or set a very high bail.
This legislation doesn't do that.
It actually puts into law, it mandates that if
there's a previous arrest, you're going to sit
in jail for up to possibly 180 days until you
get a trial. And should you be found not
guilty on both counts, too bad, because we
thought that where there was smoke there was
fire. But we were wrong, and you will spend
that time and might as well have exhausted six
months of a sentence waiting for a trial.
That is exactly what our
foreparents were intending when they put the
amendment in the Constitution in the first
place.
I really think that this bill needs
to be voted down. It's bill that's a reaction
to the frustration that we all feel about what
defendants get to do when they're allowed to
run loose. But it's the frustration that we
all feel when we live in a democracy. We all
know what the further anxieties would be if we
did not live in a democracy.
I think this vote should be a no
vote, Mr. President.
6359
ACTING PRESIDENT MARCELLINO:
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President. I would like to ask a couple of
questions of clarification of Senator Bonacic.
ACTING PRESIDENT MARCELLINO:
Senator Bonacic, do you yield for a couple of
questions?
SENATOR BONACIC: I will.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR MONTGOMERY: Yes, Senator
Bonacic -- through you, Mr. President -- I'm
just wondering, the law as it stands now in
situations similar to what you're addressing
in the legislation, does the judge currently
have the authority to set bail or to deny bail
or to set bail at a high enough level that it
can't be met, possibly?
SENATOR BONACIC: First of all,
there is no constitutional right to have bail
in our present law.
Under the present law, a Supreme
Court judge has the judicial discretion in the
interests of justice, after hearing from the
6360
prosecution, the defense attorney, what the
extenuating circumstances are, whether to
grant bail or not to grant bail. If he grants
bail, he can grant it to the level that he
thinks is appropriate to protect or to ensure
that this defendant will appear again.
SENATOR MONTGOMERY: All right.
Then, Mr. President, if Senator Bonacic would
continue.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR BONACIC: Yes.
SENATOR MONTGOMERY: All right.
So the current law, as it stands in
our state, it says under circumstances
prescribed in this article, a court, upon
application of a defendant charged with or
convicted of an offense, is required or
authorized to order bail or recognizance for
release.
And so therefore what the bill
before us does is removes that authority as it
currently stands and, as in your legislation,
it says that notwithstanding the provisions of
subdivision 1 of this section, when it appears
6361
that the defendant is a person who must be
committed to the custody of the sheriff, a
Superior Court judge may not order
recognizance or bail.
So in other words, you remove the
judicial discretion as it relates to setting
bail and/or recognizance.
SENATOR BONACIC: That is not
exactly correct.
SENATOR MONTGOMERY: No, it's
not? I'm not reading this right?
SENATOR BONACIC: And I would
point out on page 2 the specific language, 10
to 14. And if I may, if a principal be
determined to be a person who must be
committed to the custody of the sheriff, the
court may nevertheless issue an order
providing for recognizance or bail, if it
further determines that the interest of
justice so demands and his reasons are put on
the record.
So we don't mandate on -- the judge
still has that judicial discretion even in
those set of facts that you've described.
It's not taken away from him.
6362
SENATOR MONTGOMERY: So, Mr.
President, one last question.
ACTING PRESIDENT MARCELLINO:
Senator, do you yield for one last question?
SENATOR BONACIC: I do.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR MONTGOMERY: Thank you,
Senator Bonacic.
So the fact of the matter is that
unless the situation meets the criteria as you
have established in this new legislative
language, the judge still has the authority to
either deny or give recognizance, deny bail or
set bail?
SENATOR BONACIC: That is
correct.
SENATOR MONTGOMERY: But once it
meets the criteria established in your
legislation, then the judge no longer has
that.
SENATOR BONACIC: No, no, the
judge always has the discretion.
It's just that we as a Legislature
are expressing legislative intent that we
6363
want -- we prefer bail be denied if there's
been a conviction of a violent felony, in 11
categories that I've described, and there's an
arrest for a second one.
So that judge could still put that
defendant out on bail, but he'd better state
for all of the reasons why he is not following
what our legislative intent is.
SENATOR MONTGOMERY: Okay. Thank
you, Senator Bonacic.
Just briefly on the bill.
ACTING PRESIDENT MARCELLINO:
Senator Montgomery, on the bill.
SENATOR MONTGOMERY: Yes, Mr.
President. It just appears that based on the
language in -- at least in the -- on page 3 -
page 4, that there is the intent. And under
Section 530.10, page 3, line 39 -- line 42,
actually, it appears to me that the intent of
Senator Bonacic's legislation is to
essentially establish a pretrial incarceration
that will perhaps in some instances, as
Senator Bonacic has said, may detain someone
who may be inclined to do something else.
But without question, it's
6364
certainly going to mean that people who are
charged will not have the ability to
adequately defend themselves, essentially,
because they have been detained prior to an
actual conviction or an opportunity to go to
court.
So I'm going to oppose this
legislation. I think I have voted no on
legislation like this in the past, and I will
do so again today.
Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank
you, Mr. President. On the bill.
ACTING PRESIDENT MARCELLINO:
Senator Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I
appreciate the sponsor's responses to the
other questions. And I just want to make two
very brief points.
The first is that I think there's a
tremendous danger in using the sort of
predictive methods of saying, well, the odds
of someone who was convicted once doing
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something again -- I mean, you know, the
social sciences are becoming very
sophisticated. And it is true that some
people are perhaps more likely than others to
have committed crimes.
But it is extraordinarily dangerous
to our system of the presumption of innocence
to inject that into the process. Those
factors are able to be considered by a judge
now. The need to make them presumptions that
a judge would have to move against in order to
grant bail does not seem to me to be
overwhelmingly persuasive.
We have to be careful because there
are people who do say, you know, look, poor
children from broken homes are more likely
than others to be criminals. People expelled
from school, you know. I mean, the predictive
stuff is very, very troublesome.
I appreciate all the information
about recidivism. I'm very familiar with it.
But the issue before us now is are people
going to have an opportunity to enjoy the
presumption of innocence, to be out on their
own, to help their lawyers prepare their
6366
cases, all the things that go along with this.
And I respectfully submit that
there is a very powerful class bias built into
this sort of legislation.
One of the most remarkable hearings
I ever attended in my career as a lawyer was a
hearing on bail in the United States District
Court for the Southern District of New York.
The defendant was Adnan Khashoggi, a Saudi
arms merchant, who had been guilty of various
violations of law in the past and had more
ability, I think, than anyone I'd ever seen in
my life to flee the jurisdiction. He had,
however, the best lawyers money could buy, and
he was released on bail.
I assure you that this sort of
presumption placed in the law will present a
severe disadvantage to poor people attempting
to wend their way through our criminal justice
system. The fact of the matter is we don't
provide the resources for adequate defense for
poor defendants even at the trial stage and
the sentencing stage, much less to do this
sort of a bail hearing, to provide the
information, to do the analysis, to come up
6367
with the counterarguments. It's not there.
So essentially what we're saying is
this would make every poor defendant who comes
before the court more likely than not to be
denied bail, while the rich defendants who can
hire fancy lawyers -- like, you know, I used
to be -- can get out on bail. And I think
that this is just something that really bears
closer scrutiny.
I understand the concern about
recidivism and the crime rate. But this is
something I think that really expands a class
bias in our criminal justice system that has
already grown to frightening proportions. And
I don't think that is something that is in the
intent of the sponsor or any of the supporters
of this bill, but I point it out because I do
think it is an issue that we are going to have
to address.
I will vote no.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Hevesi.
SENATOR HEVESI: Mr. President, I
will yield to Senator Duane.
6368
ACTING PRESIDENT MARCELLINO: We
have a list, but I think you were first.
SENATOR HEVESI: Oh, was I on it?
ACTING PRESIDENT MARCELLINO:
Yes.
SENATOR HEVESI: Thank you. Mr.
President, would the sponsor please yield?
ACTING PRESIDENT MARCELLINO:
Senator Bonacic, do you yield?
SENATOR BONACIC: I will.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR HEVESI: Thank you. I
notice that one of the crime categories that
was -
ACTING PRESIDENT MARCELLINO:
Senator, before you -- excuse me for a second.
If we could just keep the
conversations down, please. There is a rising
hum making it difficult for the stenographer.
Proceed, Senator.
SENATOR HEVESI: Thank you, Mr.
President.
I notice that in the group of
crimes for which this bill would be
6369
applicable, burglary in the first degree is
included. And this grouping of crimes is what
we often see when we're discussing violent
felonies.
My question is -- and this has
always troubled me, so maybe you can clarify
this -- what does burglary in the first degree
entail that justifies it being included with
these other crimes as a violent felony?
SENATOR BONACIC: I just want to
check with counsel. I want to pull out the
Penal Code and read that to you specifically.
SENATOR HEVESI: Sure.
SENATOR BONACIC: I've discussed
it with counsel, Senator Hevesi, and they
indicate that it's a B felony. It's entering
a dwelling at night. And because it's an
invasion of one's home at night, it warrants a
B felony, and that's why they put it into this
category.
I can't say per se that it's the
essence of violence, but it's a message that
we don't want an individual to be going into
one's home at night, in all probability for an
act of violence, or not afraid of an act of
6370
violence if there is confrontation.
SENATOR HEVESI: Thank you. Mr.
President, would the sponsor continue to
yield?
SENATOR BONACIC: I will.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR HEVESI: Thank you.
Perhaps this is a discussion for
another day, except that burglary in the first
degree is included here. My question to you
is the following. And I very much understand
our need to protect and deter people from
committing burglaries. But if somebody is a
burglar and this was their intention, my
understanding is their central goal is not to
have any contact with an individual.
And in addition, if they do have
contact with an individual in the home while
they are trying to rob the place, it's no
longer burglary, it becomes a robbery. Is
that accurate?
SENATOR BONACIC: No. If I may,
I'd like to just point out a couple of things
to you of burglary, first degree.
6371
He or she goes into the home with
intent to commit a crime, armed with
explosives or a deadly weapon, or causes
physical injury or threatens the immediate use
of a dangerous instrument or displays what
appears to be a pistol, gun, machine gun.
So there are the ingredients for
that burglary in the first degree. And you
must prove an intent to commit a crime when
you go in there. Okay? That's one of the
ingredients, intent.
SENATOR HEVESI: Mr. President,
would the sponsor continue to yield?
SENATOR BONACIC: I will. I
will.
SENATOR HEVESI: According to
that definition, it is possible that somebody
can be charged with burglary in the first
degree if they go into commit that offense,
have a weapon on them, but never come into
contact with another individual.
So if I go somebody's house with a
gun late at night and I steal their stereo, I
can get charged with burglary in the first
degree; is that correct?
6372
SENATOR BONACIC: That is
correct.
SENATOR HEVESI: Okay. Mr.
President, would the sponsor continue to
yield?
SENATOR BONACIC: I will.
SENATOR HEVESI: And again, maybe
this is a discussion for another time. In my
estimation, there is a very distinct
difference between a violent felony, as all
the other crimes laid out here are, which by
definition have a face-to-face, one-on-one
interaction, violent interaction, threatening
interaction with the victim. Burglary in the
first degree may have that, but it may not.
And my problem with the inclusion
of that in this legislation is that you could
have somebody who is a recidivist burglar who
has never been convicted of any other violent
felony, and this person is now denied bail.
And I want you to know I voted for this bill
in the past. But I'm concerned about that, as
I'm concerned about the inclusion of burglary
in the first degree as long as it doesn't
require that face-to-face interaction whenever
6373
we include violent felonies.
So my question to you, to phrase
this as a question, is do you have a problem
with this, or is this something that we may
want to specify in your bill that there must
be a face-to-face interaction, threatening
interaction, with the first-degree burglary
conviction?
SENATOR BONACIC: I think we want
to make a public policy statement that your
home is sacred. It's a place where you live
with your spouse and your children. And when
someone comes into your home at night with a
weapon, stop. You're going to be held
accountable, even if you're fortunate never to
see anybody in there and you leave without
that confrontation of violence. That's the
message we're sending.
SENATOR HEVESI: Thank you. Mr.
President, would the sponsor continue to
yield?
SENATOR BONACIC: I will.
ACTING PRESIDENT MARCELLINO: The
sponsor yields.
SENATOR HEVESI: Thank you. I
6374
agree with that. And I probably would not
object to leaving that statute as it is for
the very reasons that you discuss.
But now we're putting it in the
context of whether somebody who committed
burglary in the first degree and never had a
violent interaction or any interaction with an
individual, whether that person now is able to
get out on bail or not.
But let me ask you a different
question, and I'll just speak on the bill.
And again, I voted for this bill last year. I
understand the purpose of it. And I'm very
much comfortable with preventative detention
when there has been a violent felony
conviction on the first offense, with the
exception that we just discussed, first-degree
burglary when there was no interaction.
My question to you is -- and I
listened to Senator Paterson in his discussion
about an individual who is out on bail on his
own recognizance, what have you, and has never
been convicted of another crime and now is
charged with another violent felony -- it
could be burglary in the first degree again,
6375
or both instances -- and now this person is
completely denied the opportunity for bail.
My question to you is, why is the
second piece necessary? Why do we have to put
the second provision in this bill which says
that if somebody is out on bail, having been
accused but not yet convicted of a violent
felony, that that is one of the two triggers,
that if you then get charged with another one,
you can have preventative detention? Why not
just leave it as a first conviction and then
the second one we can do preventative
detention? What's the purpose of the second
one?
SENATOR BONACIC: I understand
your concern. But I again come back to a
course of repetitive conduct of antisocial or
almost criminal behavior that a judge will
make a decision on in his discretion.
I happen to think, in that fact
pattern that you set, I think most judges
would allow bail. In that specific
burglary-first-degree arrest, no violence, no
confrontation, and then there's a second
arrest. Never a violent felony conviction, in
6376
your fact pattern.
That's a judicial discretion call.
And we're not saying to the judge: Deny bail.
We're saying that we trust your judgment,
looking at these kind of cases every day, and
you know what antisocial behavior and criminal
activity is, and we'll trust you to do the
right thing.
That's the only way I can answer
it.
SENATOR HEVESI: Thank you. Mr.
President, one final question for the sponsor.
ACTING PRESIDENT MARCELLINO:
Does the sponsor yield for one final question?
SENATOR BONACIC: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR HEVESI: In the instance
where there has been a prior conviction for a
violent felony, under your legislation the
judge is not mandated to impose preventative
detention? It is still, even in that
circumstance, fully discretionary?
SENATOR BONACIC: That is
correct.
6377
SENATOR HEVESI: Thank you,
Senator Bonacic. Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MARCELLINO:
Senator Duane, on the bill.
SENATOR DUANE: Thank you.
I was under the impression that
refusing bail was only appropriate when there
was a flight risk. I think that there are
sharp constitutional issues regarding using
bail as a preventive detention tool. And it
either always is or at least in most cases is
unconstitutional.
This bill may be crafted in such a
way that that's not the case, but I can't be
sure of that. And I would actually be very
interested to hear what people in the law
enforcement and criminal justice field had to
say about it. I'd like to know what DAs had
to say, and judges, the Office of Court
Administration, Judge Kaye, Katie Lapp,
defense attorneys, the New York State Civil
6378
Liberties Union, I would like to see what
their take on this bill is.
As I say, I thought that bail was
supposed to be used for people who are a
flight risk. I'd like to know how many people
were -- that this law would capture. It seems
to me that judges and DAs tend to know who is
a flight risk and who's not a flight risk, and
so to tie their hands is not a good idea. I
tend to have faith in the criminal justice
system, insofar as I think that judges and DAs
try to do the right thing.
I think that we also run the risk,
although I don't know because there are no
statistics, of overfilling our local jails. I
have no idea how many people -- I mean, I've
heard anecdotes, but I don't have any hard
statistics about how many people this law
would impact and how many slots in our local
jails the people captured under this law would
be -- you know, what that would be.
I would have liked to have heard
that in some kind of a hearing so that I could
hear what the Governor's criminal justice
people and judges and DAs and OCA had to say,
6379
but we don't really have that information.
And so, lacking that, I think that
it's important that we err on the side of
constitutionality and make it so that we do
continue to have bail as something that's used
regarding flight risk and not as punishment.
This feels to me like it's having to do with
punishment and not having to do with flight
risk. And I just think that that's not the
way that we should be going here.
I would be open to other things. I
just don't think that those of us here in the
chamber have that kind of expertise. I know
that I depend on what district attorneys have
to say about this and what OCA would have to
say about it. I would like to see what the
experts have to say about this.
I don't know whether the Governor
would sign this bill into law. I don't know
whether this is a bill that has a real chance
of passing in the Assembly. I mean, I
guess -- I mean, there aren't very many people
here in the chamber to see, you know, what's
going on with this. Maybe that shows what
that bill's chances are, that it's getting
6380
such a little bit of attention.
But, you know, whenever we fool
around with someone's civil liberties,
whenever we tinker with the criminal justice
system, I think we run a big risk. And in the
absence of a really better direction, I would
recommend to my colleagues that we vote no on
this.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator.
Are there any other Senators
wishing to be heard on this bill?
Seeing none, the debate is closed.
Read the last section.
THE SECRETARY: Section 11. This
act shall take effect on the first day of
January.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MARCELLINO:
Senator Paterson, to explain his vote.
SENATOR PATERSON: Mr. President,
I listened in earnest to the discussion
6381
between Senator Hevesi and Senator Bonacic.
And Senator Bonacic was saying to Senator
Hevesi: What we're saying is that we trust
the judge's discretion.
And perhaps we do trust the judge's
discretion, but that's not what this bill
does. This bill mandates that if an
application is made, that if there was a
previous arrest for a felony and there's a
second arrest for a felony, because of this
bill, the judge's hands are tied. The
prosecutor has met the threshold, and
therefore you have got to deny the bail.
Now, bail is not a right. But one
of the reasons that it's not a right is
because it doesn't really involve a righteous
conduct. It involves ensuring the defendant's
presence for trial. And in those types of
situations, we have to understand that we are
really challenging the presumption that is
vested in our Constitution that a person is
presumed innocent until proven guilty.
We cannot say that because, as a
reasonable set of circumstances or percentages
or that kind of thing, that it is -- that we
6382
have to obey it in that particular one case.
That particular one case can be discharged by
that particular one judge that's sitting on
it. And all the information that Senator
Bonacic reveals in his bill can be revealed
right now, and the judge can reach the same
decision on his or her own.
But to -- I vote no, Mr. President.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator Paterson. You will be
recorded in the negative.
Senator Schneiderman, to explain
his vote.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
I urge that the sponsor of this
bill -- whose, you know, sincerity I cannot
possibly question on this matter -- and other
supporters deal seriously with the
implications of this legislation and other
things that are coming before us this session
for the preexisting class prejudice in our
criminal justice system.
The language that's been the
subject of a lot of this discussion is the
6383
statement that everyone who comes before the
court under these -- meets these criteria is
going to be denied bail unless the court
determines that the interests of justice so
demand, and provided that the reasons therefor
be clearly stated upon the record.
I urge that the court is not going
to go out on its own and do that work, and
unless you have competent counsel representing
you to marshal the evidence for the court, to
make the case that the interests of justice
demand someone get bail, you're not going to
get it. So what this is is a preventive
detention bill for poor New Yorkers. That's
all it is.
And I urge that in the rest of this
session every time we look at bills like this,
let's take a look at the fact that we are
providing woefully inadequate funding for
legal representation of the poorest among us
in these situations.
I vote no.
ACTING PRESIDENT MARCELLINO:
Senator Schneiderman will be recorded in the
negative.
6384
Announce the results, please.
THE SECRETARY: Those recorded in
the negative on Calendar Number 458 are
Senators Connor, Duane, Gonzalez,
Hassell-Thompson, Brown, Markowitz,
Montgomery, Paterson, Santiago, Schneiderman,
and Stavisky. Ayes, 48. Nays, 11.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
THE SECRETARY: Calendar Number
461, by Senator McGee, Senate Print 3009, an
act to amend the Criminal Procedure Law, in
relation to eligibility.
SENATOR DOLLINGER: Explanation,
Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator McGee, an explanation has been
requested.
SENATOR McGEE: Yes, sir. Thank
you, sir.
Under the New York State law,
present New York State law, young people 16 to
18 years of age who have been charged with
crimes are eligible to be treated as youthful
offenders. Youthful offender treatment
6385
provides significant benefits to those youths,
since it vacates a criminal conviction and
provides a more lenient sentence upon
conviction.
Every youth in this age category is
eligible for youthful offender treatment
unless that youth is convicted of any of the
following serious crimes: A Class A-1 or a
Class A-2 felony, an armed robbery in which a
firearm is used; the following violent B
felonies -- first-degree rape or first-degree
sodomy, aggravated sexual assault and abuse,
previously convicted and sentenced for a
felony, previously adjudicated as a youthful
offender following a felony conviction.
This legislation expands the
exceptions for youthful offenders eligible to
include all of Class B violent felonies. The
crimes added by this bill frequently are
serious and involve a degree of harm to the
victim equal to or greater than the crimes
already listed as exceptions to youthful
offender eligibility.
Among the crimes which this bill
would add are attempted second-degree murder;
6386
first-degree manslaughter; first-degree
robbery and burglary if no firearm is used,
but which may involve the use of a dangerous
instrument and may result in serious physical
injury to the victim; second-degree arson; and
kidnapping.
SENATOR DOLLINGER: Through you,
Mr. President, if the sponsor will yield for a
question.
SENATOR McGEE: Certainly.
ACTING PRESIDENT MARCELLINO: She
yields, Senator.
SENATOR DOLLINGER: Thank you,
Mr. President.
Senator, as I understand this bill,
this bill would establish a series of crimes
for which youthful offender status could not
be granted under any circumstance. Is that
correct?
SENATOR McGEE: No, that's not
correct. That is not correct.
This bill, there is -- and in fact,
in the bill itself it does say there are
exceptions, which gives the court discretion
to allow youthful offender status, of
6387
mitigating circumstances or because the
defendant was a minor participant in the
crime.
SENATOR DOLLINGER: Okay.
Through you, Mr. President, if the sponsor
will continue to yield.
SENATOR McGEE: Certainly.
ACTING PRESIDENT MARCELLINO: She
continues to yield.
SENATOR DOLLINGER: As I
understand the way youthful offender status
occurs, it's that the first critical
ingredient in making a determination is the
nature of the crime charged by the district
attorney. And so what you have is you have a
crime has occurred, a charge is filed. If the
charge is among the charges that this bill
involves, then under those circumstances it
would be presumed they're not entitled to be
youthful offenders, and they would have the
burden of showing that they are qualified for
it.
My question is, doesn't that flip
the current statutory scheme 180 degrees?
Isn't the way it works now that they're
6388
entitled to youthful offender status unless
the district attorney can show mitigating
circumstances of why they should be treated as
an adult?
SENATOR McGEE: That's correct.
SENATOR DOLLINGER: Through you,
Madam President, if the Senator would continue
to yield.
ACTING PRESIDENT MARCELLINO:
Excuse me?
SENATOR DOLLINGER: Will the
Senator continue to yield?
ACTING PRESIDENT MARCELLINO: Oh.
Madam President?
SENATOR DOLLINGER: Excuse me,
you're correct. Mr. President. I apologize.
ACTING PRESIDENT MARCELLINO: I
have a good lens doctor for you.
Senator, will you yield?
SENATOR McGEE: Certainly, Mr.
President, I will continue to yield.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator, for your clarity of
vision.
SENATOR DOLLINGER: Thank you,
6389
Mr. President.
Doesn't this bill really vest
tremendous discretion in resolving the issue
of youthful offender status solely in the
hands of the district attorney? Because it's
at the time that they're charged, regardless
of what they're eventually convicted of, that
will dictate whether they're a youthful
offender or treated as an adult.
SENATOR McGEE: My learned
counsel -- I'm not an attorney. You have an
advantage over me.
SENATOR DOLLINGER: I appreciate
that, Senator. I'll let you consult with your
counsel and -
SENATOR McGEE: Thank you.
You're very kind.
But my attorney tells me that the
conviction determines whether they're a
youthful offender.
SENATOR DOLLINGER: Through you,
Mr. President, if the sponsor will continue to
yield.
SENATOR McGEE: I will.
ACTING PRESIDENT MARCELLINO: I
6390
believe she will continue to yield.
SENATOR DOLLINGER: My
understanding is, and maybe I'm incorrect on
this, that it's the youthful offender
adjudication is made before conviction, that
the -- and my question is, and the reason why
I'm concerned, is does this allow the district
attorney, by the level of offense that he
charges, to in essence strip away the youthful
offender system and get them into the adult
system and then that affects the -- what
happens in 95 percent of these cases, there's
a plea bargain.
And the question is whether it's a
plea under youthful offender or whether it's a
plea under the criminal justice system for
adults. That's really my question.
SENATOR McGEE: My understanding
is under Section 720.20 of the Criminal
Procedure Law, Section 1: "And at the time of
pronouncing sentence, the court must determine
whether or not the eligible youth is a
youthful offender."
SENATOR DOLLINGER: Through you,
Mr. President, if the sponsor will continue to
6391
yield.
SENATOR McGEE: Absolutely.
ACTING PRESIDENT MARCELLINO: She
continues to yield.
SENATOR DOLLINGER: If the
individual between ages 16 and 18 is charged
with one of the offenses in your legislation,
do they negotiate with the district attorney
as a youthful offender or do they negotiate
with them as an adult during that process,
that period of time after there's an
indictment but before there's a trial? As
you, I know, Senator McGee, knows, most of
us -- everybody knows, 95 percent or so of the
cases in this state, criminal cases, are
resolved through plea bargaining.
My concern is, does this statute
change the dynamics of plea bargaining for
those who are between 16 and 18 and charged
with these offenses?
SENATOR McGEE: My understanding
is it does not do so. And the thought behind
and the contention behind this legislation is
that young people who commit felony crimes
should not enjoy the benefits of youthful
6392
offender status. And that's exactly what this
does. It make makes them atone for whatever
crime they've committed.
SENATOR DOLLINGER: Okay. Mr.
President, just on the bill briefly.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, on the bill briefly.
SENATOR DOLLINGER: The concern I
have with this bill -- and I appreciate
Senator McGee's comments. I think I've voted
for this in the past, and I'm going to vote
for it again. But I do so with a little more
trepidation.
And the reason is because it seems
to me that the way this will work in actual
effect in the courts of this state is that you
will have someone who is eligible for youthful
offender status between 16 and 18, they will
be charged with a crime, the new brand of
crime, the new version of crime that Senator
McGee is now including. We are expanding the
definition from certain crimes to other crimes
as well.
Well, during the initial indictment
phase, as oftentimes happens, there will be a
6393
discussion between the district attorney and
the defense counsel as to whether they will be
treated as a youthful offender or whether
they'll be treated in the adult criminal
justice system. Because that will become part
of the negotiation over the appropriate plea
bargain.
And my concern is that what this
legislation in essence does is it alters the
dynamic of that plea bargaining because it
says to the person, the young person between
16 and 18, we're going to presume that if
you're convicted of these crimes or found
guilty of these crimes, you will be treated as
an adult. And as a consequence, we're going
to deal with you under the adult criminal
justice system.
The effect of those heavier
penalties is going to be that more and more
juveniles who are between 16 and 18 -- we can
have a debate about whether they still
constitute juveniles at that age. But
nonetheless, we have to be sensitive to
altering the plea bargaining process with
respect to those people between 16 and 18.
6394
What this bill does is it changes
the dynamics of 95 percent of the criminal
cases that involve those between 16 and 18.
Senator McGee, I went along with
this last year. I'm still willing to go along
with it. But I still think that any time we
tinker with that process of plea bargaining,
we have to be sensitive to the fact that we're
putting a greater onus on the defendant during
the period of time before their guilt or
innocence has been adjudicated, during the
plea bargaining phase, which may result in
them being more likely to be treated in the
adult criminal justice system rather than the
youthful offender system.
I understand that's the general
point of your bill, to make that more likely.
But at the same time, we may be pushing more
and more youthful offenders who deserve some
youthful offender treatment into the adult
criminal justice system.
I'm sensitive to the fact that
these are serious crimes and that these are
serious behaviors, but I'm not convinced. And
I'll withhold judgment until maybe next year,
6395
if this bill comes back, to see what the
impact is on altering the dynamics of plea
bargaining for criminal justice defendants
between 16 and 18.
ACTING PRESIDENT MARCELLINO:
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President. If the sponsor would yield,
please.
ACTING PRESIDENT MARCELLINO:
Senator McGee, will you yield?
SENATOR McGEE: Certainly.
ACTING PRESIDENT MARCELLINO: She
yields.
SENATOR DUANE: Thank you.
I was wondering whether the sponsor
is aware that in most states in the nation,
young people accused of a crime start in
family court and the family court judge makes
the decision about whether or not that case
should go to criminal court or stay within the
family court's jurisdiction.
SENATOR McGEE: No, I was not
aware.
SENATOR DUANE: And I'm wondering
6396
if the sponsor was aware that in New York
State, not so many years ago, the decision was
made -- frankly, a decision I disagree with,
but so be it -- the legislators in their
wisdom decided to have these cases start in
the criminal courts and have the criminal
court judge decide whether or not to keep them
or send them to Family Court.
SENATOR McGEE: Are you speaking
of the laws in New York State or other states?
SENATOR DUANE: I'm now, through
you, Mr. President, speaking of the law in
New York State.
SENATOR McGEE: My understanding,
in the laws of New York State, if they're 16
to 18 years of age, they don't go to Family
Court.
SENATOR DUANE: That is correct.
ACTING PRESIDENT MARCELLINO: Now
that we agree, can we read the last section?
Just trying.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MARCELLINO:
6397
Does the sponsor continue to yield?
SENATOR McGEE: Certainly, Mr.
President.
ACTING PRESIDENT MARCELLINO: She
yields.
SENATOR DUANE: Well, in light of
the fact that most states have these cases
start in family court and have the family
court judges make the determination about
whether the case should proceed there or in
criminal court and New York State, already
trying to make their laws against young people
harsher, decided to put them in criminal court
first, where judges don't have much experience
working with youthful offenders, if perhaps
the sponsor believes that the intent at that
time was to give the New York State criminal
justice system a harsher aspect to it for
youthful offenders than other states, and if
that maybe was an intention which we don't
really need to build upon.
SENATOR McGEE: Mr. President,
through you, I would say quite honestly that
perhaps they are a little more stringent,
Senator, but these are very serious crimes
6398
that they're being asked to atone for or to
answer to, and these are crimes that
whether -- whatever their age is, from 16 to
18 years of age, are serious crimes that have
inflicted harm on other people, and at that
age they should be responsible.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MARCELLINO:
Will the sponsor continue to yield?
SENATOR McGEE: Absolutely.
ACTING PRESIDENT MARCELLINO:
Absolutely.
SENATOR DUANE: Is the sponsor
questioning the decision-making by the
majority of judges in the state on how to
handle these cases?
SENATOR McGEE: I would never
question the judges, thank you very much, sir.
SENATOR DUANE: Then through you,
Mr. President, is the sponsor questioning
district attorneys' work on these cases?
SENATOR McGEE: I don't see
anywhere in the bill where that question would
6399
even arise.
What I am saying to you is that
there are certain amounts of heinous crimes,
if you will, that 16 to 18 years of age
people, that there are exceptions for them to
seek youthful status. I am merely extending
the pool of what those crimes are. That's
what I'm asking this bill to do.
There is a discretion they can -
in fact, the court has a discretion to allow
youthful offender status to those individuals
under mitigating circumstances who play a
minor role in the crime.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MARCELLINO:
Does the sponsor yield?
SENATOR McGEE: Sure.
ACTING PRESIDENT MARCELLINO: She
continues to yield.
SENATOR DUANE: I'm wondering if
the sponsor has numbers on young people who
have been treated too lightly in the criminal
justice system and thereby we need to change
6400
this law to make it so that judges' hands are
tied on how to treat these defendants.
SENATOR McGEE: No, sir, I don't
have any figures available right now. But I
can certainly cite you at least two cases
where it would appear within my own district.
So I don't have any numbers for you, no, I
don't.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR McGEE: Certainly.
ACTING PRESIDENT MARCELLINO: I
believe she continues to yield, Senator.
SENATOR DUANE: The sponsor
believes that there are two cases in her area
of the state where a youthful offender was
given youthful offender treatment and the
judge made a terrible mistake by allowing that
to happen?
ACTING PRESIDENT MARCELLINO: I
believe that's what the sponsor said earlier,
Senator. The chair heard that.
SENATOR DUANE: I'm just trying
to -
6401
SENATOR McGEE: I'm sorry, was
there a question involved there? I didn't
hear the question.
ACTING PRESIDENT MARCELLINO: I
thought you were asking for a repeat of her
statement -
SENATOR DUANE: There was a
comment, but I didn't hear a question.
ACTING PRESIDENT MARCELLINO: The
chair did hear her make that same statement.
I believe she yields for another
question.
SENATOR McGEE: Would you care to
repeat what you just said?
SENATOR DUANE: Yes. My
understanding is that the sponsor said that
there were two cases in her area of the state
where a judge made an egregious error and
granted youthful offender status to two young
people and the sponsor believes that the judge
should have been forced to treat them in the
criminal court as adults.
SENATOR McGEE: I don't believe
that's what I said, Senator. What I said was
that there were some cases where these
6402
additional crimes would be added to which
would then make that a part of the bill.
So I'm not sure that you're
understanding what I'm saying. I'm taking
those things that already are exceptions to
youthful offenders and now I am adding another
pool. And so therefore that's what this bill
does.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MARCELLINO: Do
you continue to yield, Senator?
SENATOR McGEE: Mm-hmm.
ACTING PRESIDENT MARCELLINO: She
does.
SENATOR DUANE: Just to clarify,
is the sponsor saying that the judge was not
allowed to treat these offenders as adults or
the judge chose not to treat them as adults?
SENATOR McGEE: I'm saying that's
correct, they were not allowed to treat them
as -- well, are you asking me, number one,
if -- repeat your question, sir.
SENATOR DUANE: Is the sponsor
6403
maintaining that the judge in these cases was
prohibited from treating the offenders as
adults in the criminal justice system?
SENATOR McGEE: No, they were
given youthful offender status because these
are not exceptions to the youthful offender
status. If that's what you're saying.
I'm saying to you I want these
crimes to be put in a pool that these people,
these individuals 16 to 18 years of age, would
have not -- could not be granted youthful
offender status. I think that's relatively
clear in the bill.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR McGEE: I will.
ACTING PRESIDENT MARCELLINO: She
yields.
SENATOR DUANE: But just to be as
clear as I can about my question, in these
cases the judge could have, because he or she
was not prohibited from treating these
defendants as adults.
SENATOR McGEE: Yes, that is
6404
correct. I'm sorry.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MARCELLINO:
Will you continue to yield, Senator McGee?
SENATOR McGEE: Certainly.
ACTING PRESIDENT MARCELLINO: She
will.
SENATOR DUANE: I have no memos
in support or in opposition to this piece of
legislation. I'm wondering if the State
District Attorneys have a position on it.
SENATOR McGEE: We're not aware
of anything. This bill has been submitted for
several years in a row, I believe.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MARCELLINO: The
sponsor yields.
SENATOR DUANE: In the seven
years that this bill has come before the
Senate, has it had an Assembly sponsor?
SENATOR McGEE: I'm not aware of
6405
one. I've only carried it, I believe, for,
what, three years now? So I'm not aware of
any previous Assembly sponsor.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MARCELLINO:
Senator McGee?
SENATOR McGEE: Certainly.
ACTING PRESIDENT MARCELLINO: She
continues to yield.
SENATOR DUANE: Has the
Governor's office of criminal justice taken a
position on this bill yet?
SENATOR McGEE: I don't think so.
Not to my knowledge.
SENATOR DUANE: Thank you, Mr.
President. Thank you.
SENATOR McGEE: You're welcome.
SENATOR DUANE: On the bill.
ACTING PRESIDENT MARCELLINO:
Senator Duane, on the bill.
SENATOR DUANE: Thank you. As
many of you know, I often take the position
here that we should not tie the hands of
6406
district attorneys and judges. I believe that
judicial discretion and leaving district
attorneys some leeway on how it is that they
want to charge people on crimes, in concert
with a judge and, frankly, with defense
attorneys, is actually a very good thing.
I'm troubled at the trend that we
have of treating more young people as adults.
Many experts in the field of juvenile justice
would say as it is New York State has made a
big mistake by having these cases start in
criminal court. Criminal court judges
actually don't have very much experience with
young people. They are generally not aware of
alternatives to incarceration which the Family
Courts use to try to dissuade young people
from crime.
Young people going into the
criminal justice system rather than to the
juvenile justice system have a much higher
recidivism rate. They tend to graduate not
from school, but they tend to graduate to
worse and sometimes more violent crime.
Tragically, and I think when you
look at who it is that supports this
6407
legislation -- DAs, juvenile justice experts,
certainly the entire Assembly, none of these
people think that this bill is a particularly
good idea. I think that a case could be made
in and of itself that it's not a good idea to
have these cases start in criminal court to
begin with.
My understanding is -- or I
shouldn't say my understanding, my opinion is
that the reason we have these cases start in
criminal court had to do with one particularly
heinous crime that happened several years ago
in New York State. And the Legislature, in
its rush to look like it was doing something
on juvenile justice, passed legislation to
have these young people go to criminal courts
rather than to Family Court. I think we made
a grave mistake.
So in and of itself, having these
cases go to criminal court is harsh. And to
try to harshen them up even more I think is
doing all of us a big disservice. As I say,
there is not one study that shows anything but
there's tremendous harm in making young people
go through the adult criminal justice system.
6408
Our Family Court system is far better able to
deal with the issue of criminal behavior in
young people and in fact to thwart it in the
future.
And even though there aren't many
people here in the chamber to listen to this,
though it's an important issue how we treat
our young people who are not old enough for
vote for us one way or the other, I think that
we would do a big disservice by voting yes on
this legislation, and I urge my colleagues, in
the interests of making a good criminal
justice system and a good juvenile justice
system, to vote no on this and let judges and
DAs do their jobs.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator.
Are there any other Senators
wishing to be heard on this bill?
Seeing none, debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
6409
ACTING PRESIDENT MARCELLINO:
Call the roll, please.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 461 are
Senators Brown, Duane, and Montgomery. Ayes,
56. Nays, 3.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
THE SECRETARY: Calendar Number
464, by Senator Maziarz, Senate Print 3279, an
act to amend the Penal Law, in relation to
creating definitions.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT MARCELLINO:
Senator Maziarz, an explanation has been
requested of your bill.
SENATOR MAZIARZ: I'm sorry,
could you tell me what calendar number this
was again, please?
ACTING PRESIDENT MARCELLINO:
Calendar Number 464, Senator.
SENATOR MAZIARZ: Yes, this
legislation was brought to me by the New York
State District Attorneys Association, the
6410
elder abuse committee.
This bill amends the sections of
the Penal Law to include the crime of
financial exploitation of the elderly by
amending the larceny section of the Penal Law.
This bill defines the term
"mentally disabled" and "mentally
incapacitated" within the statute. It also
amends the Penal Law, which defines a wrongful
taking, to include thefts by defendants who
know or have reason to know that the victims
suffer from a mental disability or incapacity.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger.
SENATOR DOLLINGER: Will the
sponsor yield to just one question, Mr.
President?
ACTING PRESIDENT MARCELLINO:
Senator, would you yield for a question?
SENATOR MAZIARZ: Certainly, Mr.
President.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR DOLLINGER: The breach of
6411
trust kind of issues that this bill is
designed to get at, do you have any report or
any information about the extent to which
those problems have cropped up in New York? I
know there's a lot of anecdotal evidence, but
is there any quantifiable evidence?
SENATOR MAZIARZ: Actually, I'm
glad you asked that question, Senator
Dollinger. It's one of the few questions you
asked that I'm really glad that you can -
SENATOR DOLLINGER: I have
others, but you may not want -
SENATOR MAZIARZ: Well, you said
one.
But I do have a report from a
Eugene R. Kelly, who is the deputy district
attorney under Charles Hynes, the District
Attorney of Kings County. He is the deputy in
charge of their Senior Affairs Bureau, and he
does have a report which I will make available
to you, Senator.
SENATOR DOLLINGER: Okay. Just
briefly on the bill, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, on the bill.
6412
SENATOR DOLLINGER: This issue of
the financial exploitation of the elderly, I'm
not familiar with all of the terms of it. I'd
simply say this. I think that Senator Maziarz
hits on a critical issue.
In my own experience as a private
trial lawyer, I find that oftentimes the
biggest problem is financial services,
brokerage houses and insurance, that elderly
people who can understand that they need to
keep their money in bank accounts and are
familiar with bank accounts and savings
accounts, when they get into the sophisticated
world of financial investments and the
appropriateness of certain investments such as
insurance policies, term policies, and life
policies, these can be extremely difficult for
elderly people to deal with.
And I think any step we take that
says we're going to give them a special status
under the law and protect them from this
egregious form of elderly abuse or taking
advantage of their financial circumstances, I
think it's a step in the right direction.
So I'll be supporting Senator
6413
Maziarz's bill.
ACTING PRESIDENT MARCELLINO:
Senator Hevesi.
SENATOR HEVESI: Thank you, Mr.
President. Would the sponsor yield?
ACTING PRESIDENT MARCELLINO:
Senator Maziarz, do you yield?
SENATOR MAZIARZ: Certainly, Mr.
President.
ACTING PRESIDENT MARCELLINO: He
yields, Senator Hevesi.
SENATOR HEVESI: Thank you.
Through you, Mr. President. I just
have one question on the language in this
legislation. And it may not render sufficient
harm to the legislation that I would vote no,
but it does beg the question.
If I can just draw your attention
to the final section in your bill, which is
the affirmative defense section, where you
indicate in any prosecution for larceny
committed by trespassery, taking or
embezzlement from a mentally disabled or
mentally incapacitated person, it's an
affirmative defense if the defendant
6414
appropriated such property in the course of
rendering assistance which benefited such
person in the management of his or her affairs
and the value is commensurate with the benefit
conferred.
My question to you is, why is that
section necessary at all? Because if the
provisions of the affirmative defense existed,
then the individual who is being accused did
not in fact commit larceny at all.
ACTING PRESIDENT MARCELLINO:
Senator Maziarz, before you answer, can we
just have a little order in the house, please.
SENATOR MAZIARZ: I'm told by
counsel that the defendant would have to show
that he received a benefit, as defined, from a
perch who is defined as being mentally
incapacitated. And that is the way that the
District Attorneys Association actually
recommended that the bill be written.
SENATOR HEVESI: Mr. President,
would the sponsor yield for an additional
question?
SENATOR MAZIARZ: Surely.
ACTING PRESIDENT MARCELLINO: He
6415
yields, Senator.
SENATOR HEVESI: My assessment or
my concern of that provision would be that we
would seem to be laying out for a defendant
the defense that he or she could use to avoid
prosecution.
If you're going to assure me that
the District Attorneys Association has
supported not only this bill but that
particular provision of -- that particular
section, then I'm satisfied. But maybe you
can explain to me why they specifically wanted
that language in the legislation. I don't
know why it would be in their interest to have
that in the law.
SENATOR MAZIARZ: I'm told, again
by counsel, that they have to show, the
district attorney has to show that the
individual knew, in fact, that the victim was
or would fall under the definition of mentally
disabled or mentally incapacitated.
SENATOR HEVESI: Mr. President,
one final question, if the sponsor would
yield.
SENATOR MAZIARZ: Surely.
6416
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR HEVESI: Just so I'm
clear on this point so I have a hundred
percent comfort when I vote for this bill,
it's the New York State District Attorneys
Association that has endorsed this
legislation?
SENATOR MAZIARZ: Yes. Yes, it
is. And it came, as I said, from District
Attorney Charles Hynes through Eugene Kelly,
the deputy assistant district attorney of the
Senior Affairs Bureau.
SENATOR HEVESI: Thank you,
Senator Maziarz.
Mr. President, on the bill.
ACTING PRESIDENT MARCELLINO:
Senator Hevesi, on the bill.
SENATOR HEVESI: Very briefly.
I support this legislation. I
think it moves us in a direction that we need
to go in. And with the one caveat that I'm
not fully understanding why that section is in
there. And notwithstanding my concern that a
defendant is going to take a look at that
6417
section of the law and try and craft a defense
around the affirmative defense that we've then
provided for him.
Notwithstanding that, I'm going to
support this. But if the District Attorneys
Association had not specifically endorsed this
bill, I might not support the bill.
But nonetheless, I commend the
sponsor for addressing a very important
problem that we face, and hopefully this will
provide a remedy for those who are mentally
incapacitated to reduce the likelihood that
they are victimized in the future.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO: Any
other Senator wishing to be heard?
Seeing none, debate is closed.
Please read the last section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
6418
ACTING PRESIDENT MARCELLINO: The
bill is passed.
THE SECRETARY: Calendar Number
465, by Senator Kuhl, Senate Print 3337, an
act to amend Chapter 689 of the Laws of 1993.
SENATOR MORAHAN: Lay it aside
for the day, please.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside for the day at the request
of the sponsor.
THE SECRETARY: Calendar Number
556, by the Assembly Committee on Rules,
Assembly Print Number 2599, an act to amend
the Tax Law.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MARCELLINO:
Senator Spano, an explanation has been asked
for.
SENATOR SPANO: Yes, Mr.
President.
This is the bill that extends the
sales tax by the City of White Plains for two
years.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger.
6419
SENATOR DOLLINGER: I yield to
Senator Paterson, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: Mr. President,
would Senator Spano yield for a question?
ACTING PRESIDENT MARCELLINO:
Senator Spano, do you yield?
SENATOR PATERSON: Senator, could
I hear that explanation again?
(Laughter.)
SENATOR SPANO: This is Senator
Oppenheimer's bill to increase the sales tax
for the people of White Plains for two years.
ACTING PRESIDENT MARCELLINO: The
bill was perfectly clear to me.
SENATOR PATERSON: Explanation
satisfactory, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Oppenheimer, why do you rise?
SENATOR OPPENHEIMER: I'd like to
speak on the bill.
ACTING PRESIDENT MARCELLINO:
Senator Oppenheimer, on the bill.
SENATOR OPPENHEIMER: It sounded
6420
like those tax-and-spend Democrats; right?
Which we know how fallacious that is.
This is something that has been a
part of the tax mix of White Plains for many,
many years. And we have to do this every two
years, which I find sort of foolish. We've
been doing it every two years, I think, for
the 17 years I've been here. And it's
something they require, this one-half of
1 percent sales tax.
And in my opinion, it ought to be
made permanent so we don't have to go through
this every two years. But here it is, and I
hope we'll have the support of this body.
Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Smith.
SENATOR MALCOLM SMITH: Yes, Mr.
President, I just rise to have unanimous
consent to be recorded in the negative on
Calendar Number 461.
ACTING PRESIDENT MARCELLINO:
Senator, can you wait until after the roll
call, please.
SENATOR MALCOLM SMITH: Oh, roll
6421
hasn't been called yet?
ACTING PRESIDENT MARCELLINO: Not
yet. But if you would wait until after we do
that, I'd appreciate it.
Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, will Senator Spano yield just to
one question.
ACTING PRESIDENT MARCELLINO:
Senator Spano, do you yield for a question?
I believe he yields.
SENATOR DOLLINGER: Senator, how
much income does the half-penny produce for
White Plains?
SENATOR SPANO: 6.8 million.
SENATOR DOLLINGER: Through you,
Mr. President, I just didn't hear the answer.
SENATOR SPANO: 6.8 million,
Senator Dollinger.
SENATOR DOLLINGER: For the
half-penny?
SENATOR SPANO: Yes. If White
Plains did not have this property increase,
they would have to raise their local property
taxes by 18 percent.
6422
SENATOR DOLLINGER: Okay.
Through you, Mr. President, just briefly on
the bill.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, on the bill.
SENATOR DOLLINGER: I've voted
against these sales tax increases, I think
I've voted against them all over the state.
I've taken that position for years, and I'm
going to continue to take it.
I understand Senator Spano's view
that the extra half-penny, the 6 million plus
that's raised, probably the local share, I
assume this takes it to 8 percent. That means
that the local share is generating about
$50 million in cash a year.
That's a tax that of course grows
with the price of goods. The more expensive
goods get, the higher the tax gets.
And in addition, it's not federally
deductible. And one of the things about
property taxes, although nobody likes to
charge them, because you have to pay them in
the fall and in the spring, and everybody
rails against property taxes, nonetheless
6423
property taxes are hugely subsidized for those
who itemize their income taxes. In some
cases, to the tune of up to 40 percent of the
property tax is subsidized.
So I appreciate Senator Spano's
comment, and I understand the reality of sales
tax. But I just think that we rely so heavily
on those economy-sensitive taxes. Lo and
behold, if we find that we enter into a
recession, we're going to find shortfalls all
over the place with respect to the sales tax
decline.
So I'm going to continue to vote
against these, Mr. President, and you can cast
me in the negative.
ACTING PRESIDENT MARCELLINO:
Senator Hevesi.
SENATOR HEVESI: Thank you, Mr.
President. Would the sponsor please yield?
ACTING PRESIDENT MARCELLINO:
Senator Spano, do you yield for another
question?
I believe I yields.
SENATOR HEVESI: Thank you.
Through you, Mr. President, is it
6424
true that this legislation only impacts the
City of White Plains?
SENATOR SPANO: Yes.
SENATOR HEVESI: Mr. President,
would the sponsor continue to yield?
ACTING PRESIDENT MARCELLINO:
Senator, do you yield?
SENATOR SPANO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR HEVESI: I know that you
are the sponsor of this legislation. My
question to you is, my understanding is that
Senator Oppenheimer represents about
90 percent of White Plains and that you
represent the other 10 percent of White
Plains.
SENATOR SPANO: Currently.
SENATOR HEVESI: That's correct?
SENATOR SPANO: Currently.
(Laughter.)
SENATOR HEVESI: Mr. President,
would the sponsor continue to yield?
ACTING PRESIDENT MARCELLINO:
Senator Spano, do you continue to yield?
6425
SENATOR SPANO: Yes.
SENATOR HEVESI: Thank you.
Through you, Mr. President, is that
current split about to change?
SENATOR SPANO: Excuse me?
SENATOR HEVESI: Is that current
split about to change for some reason?
SENATOR SPANO: What current
split, the sales tax?
(Laughter.)
SENATOR HEVESI: Mr. President,
would the sponsor yield for an additional
question?
SENATOR SPANO: Yes.
ACTING PRESIDENT MARCELLINO: He
yields, Senator.
SENATOR HEVESI: Thank you.
Through you, Mr. President.
Senator Spano, I appreciate you bringing this
legislation, and I believe Senator Oppenheimer
appreciates you bringing the legislation. But
isn't it a fact that as the individual who
represents almost all of White Plains that it
really should be Senator Oppenheimer who
sponsor this is bill?
6426
SENATOR SPANO: This bill was
introduced by the Rules Committee.
SENATOR HEVESI: Thank you.
On the bill, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Hevesi, on the bill.
SENATOR HEVESI: I'll take my
question and invert it as a statement.
Since Senator Oppenheimer
represents 90 percent of White Plains,
Senator Oppenheimer should be the sponsor of
this legislation. It is one of those
circumstances in this house that I find highly
objectionable, as I know my colleagues do.
I mean no disrespect to any
Majority member who puts a bill in that
addresses issues in another member's district,
but it continues to happen. It happened two
weeks ago with a piece of legislation that
affected Senator Duane's district, which he
was not even consulted on, let alone being
asked to sign on as a sponsor or even a
cosponsor.
I would just suggest to everyone in
this house that it's disrespectful to the
6427
institution, in addition to being
disrespectful to the individual, though it may
not be intended that way, to have this
circumstance and this situation continue.
Senators who represent a particular area
should be the sponsors of legislation to
change policy in that area.
And so I'm going to support this
legislation because I believe that Senator
Oppenheimer supports the legislation, but I'd
be much happier supporting it were she to be
the sponsor of this legislation, as everyone
at least on this side of the aisle believes
she should be.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO: Any
other Senator wishing to be heard?
Senator Duane.
SENATOR DOLLINGER: Through you,
Mr. President, just on the bill briefly.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, Senator Duane has been
recognized to be heard.
SENATOR DOLLINGER: My apologies,
Mr. President.
6428
SENATOR DUANE: Mr. President,
I'll yield.
ACTING PRESIDENT MARCELLINO: No,
it's your turn, Senator. He will speak.
SENATOR DOLLINGER: Go ahead.
SENATOR DUANE: Thank you, Mr.
President. I also don't understand why it is
that bills which really are -
ACTING PRESIDENT MARCELLINO:
Senator, are you speaking on the bill?
SENATOR DUANE: I'm speaking on
the bill, yes.
ACTING PRESIDENT MARCELLINO:
Senator Duane, on the bill.
SENATOR DUANE: -
noncontroversial bills that impact our
districts are not bills which in fact we carry
through this body. I just -- I mean, I don't
know what anyone is -- you know, what the
point of that is or, you know, what enjoyment
people get out of that. It just strikes me as
something that really demeans the body and
those of us who represent districts and serve
in this body.
Really, I would say shame on us for
6429
allowing this kind of thing to happen. It's
just really beneath us. And people that
participate in it, Senators that participate
in it I think should be ashamed of themselves.
I mean, I'm going to vote for it,
but I just think it's a real disgrace. I
think it's -- frankly, I think it's pathetic.
And of course, there aren't many people here
to hear me say that, but I really think it's
pathetic. And childish. And stupid.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, do you wish to be heard?
SENATOR DOLLINGER: I'll waive my
opportunity to speak on the bill, Mr.
President.
ACTING PRESIDENT MARCELLINO:
Thank you. Are there any other Senators
wishing to be heard on the bill?
Seeing none, the debate is closed.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT MARCELLINO:
Call the roll.
6430
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57. Nays,
2. Senators Dollinger and Gentile recorded in
the negative.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
Senator Smith.
SENATOR MALCOLM SMITH: Yes,
thank you, Mr. President. I rise to ask
unanimous consent to be recorded in the
negative on Calendar Number 461.
ACTING PRESIDENT MARCELLINO:
Without objection.
SENATOR MALCOLM SMITH: Thank
you.
THE SECRETARY: Calendar Number
560, by Member of the Assembly DelMonte,
Assembly Print Number 7221, an act to amend
the Alcoholic Beverage Control Law, in
relation to home vintners.
SENATOR DOLLINGER: Explanation,
Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Maziarz, an explanation has been
requested.
6431
SENATOR MAZIARZ: Thank you very
much, Mr. President.
Yes, this legislation defines a
home vintner, creates a temporary home vintner
tasting permit. Current state law does not
address the issue of a home vintner and
whether he or she can participate in a
wine-tasting event.
This bill would allow a home
vintner to have a wine-tasting permit for up
to a three-day period.
Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Onorato.
SENATOR ONORATO: Mr. President,
will the sponsor yield to a question?
ACTING PRESIDENT MARCELLINO:
Senator Maziarz, will you yield?
SENATOR MAZIARZ: Absolutely, Mr.
President.
SENATOR ONORATO: Senator
Maziarz, will the vintner be able to sell the
wine also or is it strictly for tasting
purposes?
SENATOR MAZIARZ: No, this is
6432
strictly for tasting purposes, Senator.
Now, there may be an admission
charged to go to the wine-tasting event by the
sponsoring organization.
SENATOR ONORATO: But they will
not be selling it?
SENATOR GENTILE: They would not
be selling the wine, no.
ACTING PRESIDENT MARCELLINO:
Senator Dollinger.
SENATOR DOLLINGER: Yes, Mr.
President. I have actually no questions. I
had 20 or 30 on -
ACTING PRESIDENT MARCELLINO:
Senator Dollinger, on the bill.
SENATOR DOLLINGER: I had 20 or
30 on this bill, but if I'd asked them all, I
would have been accused of whining, so I will
just sit down.
(Groaning.)
SENATOR MORAHAN: Read the last
section.
ACTING PRESIDENT MARCELLINO: I'm
waiting for the air to clear.
Read the last section, please.
6433
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
Senator Stachowski.
SENATOR STACHOWSKI: Mr.
President, may I have unanimous consent to be
recorded in the negative on Calendar Number
464, please.
ACTING PRESIDENT MARCELLINO:
Without objection, so ordered.
Senator Morahan.
SENATOR MORAHAN: Mr. President,
is there any housekeeping at the desk?
ACTING PRESIDENT MARCELLINO: I
believe the house is squeaky clean.
SENATOR MORAHAN: Okay. There
being no further business, I move we adjourn
until May 2nd at 11:00 a.m.
ACTING PRESIDENT MARCELLINO: On
motion, the Senate stands adjourned until
6434
Wednesday, May 2nd, at 11:00 a.m.
(Whereupon, at 5:19 p.m., the
Senate adjourned.)