Regular Session - May 2, 2001
6435
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
May 2, 2001
11:12 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we bow our heads in a moment of
silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Tuesday, May 1, the Senate met pursuant to
adjournment. The Journal of Monday, May 30,
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 Velella.
SENATOR VELELLA: Madam
President, may we offer up a privileged
resolution by Senator Morahan and have the
title read.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Morahan, Legislative Resolution Number 1598,
commending the Rockland Business Association
upon the occasion of its designation as
recipient of the Small Business Not-For-Profit
Organization of the Year Award by the New York
State Small Business Advisory Board, on May 7,
2001.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
6438
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Velella.
SENATOR VELELLA: Madam
President, I believe there's a privileged
resolution at the desk by Senator
Hassell-Thompson. May we read the title.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Hassell-Thompson, Legislative Resolution
Number 1599, commending Reverend Robert Keith
Williams upon the occasion of his Second
Anniversary as Pastor of the White Rock
Baptist Church, Mount Vernon, New York.
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.
6439
Senator Velella.
SENATOR VELELLA: Madam
President, I'd ask you to recognize Senator
Dollinger for his daily recitation.
And I hope that you will not
reflect back to your prior life and move a
motion to dismiss for failure to prosecute the
resolution.
But Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President.
THE PRESIDENT: Moving right
along.
Senator Dollinger.
SENATOR DOLLINGER: I will keep
it short and ripe, for the lawyers in the
room.
I just hereby give notice of an
intention to move an amendment to the Senate
Rules. That notice is given pursuant to
Senate Rule XI, that I will move to amend the
rules to add a new rule, XV, which will create
ethical standards for officers, employees, and
members of the New York State Senate. I'd ask
that it be recorded in the Journal, Madam
6440
President.
THE PRESIDENT: The motion has
been received and will be filed in the
Journal, Senator Dollinger.
Senator Velella.
SENATOR VELELLA: Madam
President, I understand there are some
substitutions at the desk, if we can do those
at this time, please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 8,
Senator Spano moves to discharge, from the
Committee on Health, Assembly Bill Number 7184
and substitute it for the identical Senate
Bill Number 3659, First Report Calendar 632.
On page 11, Senator Saland moves to
discharge, from the Committee on Children and
Families, Assembly Bill Number 3535A and
substitute it for the identical Senate Bill
Number 4664, First Report Calendar 659.
And on page 12, Senator DeFrancisco
moves to discharge, from the Committee on
Tourism, Recreation and Sports Development,
Assembly Bill Number 4917 and substitute it
6441
for the identical Senate Bill Number 4427,
First Report Calendar 669.
THE PRESIDENT: Substitutions
ordered.
Senator Velella.
SENATOR VELELLA: Madam
President, may we please have the
noncontroversial reading of the calendar now.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
185, by Senator Alesi, Senate Print 520, an
act to amend the Public Health Law.
SENATOR CONNOR: Explanation.
THE PRESIDENT: We're on the
noncontroversial calendar, Senator Connor.
SENATOR CONNOR: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
435, by Senator Spano, Senate Print 3069, an
act to amend Chapter 667 of the Laws of 1977.
SENATOR CONNOR: Lay it aside.
THE PRESIDENT: The bill is laid
6442
aside.
THE SECRETARY: Calendar Number
437, by Member of the Assembly Vitaliano,
Assembly Print Number 6612, an act to amend
the Civil Service Law.
SENATOR CONNOR: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
438, by Member of the Assembly Vitaliano,
Assembly Print Number 6614, an act -
SENATOR CONNOR: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
439, by Member of the Assembly Vitaliano,
Assembly Print Number 5733 -
SENATOR CONNOR: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
440, by Member of the Assembly Vitaliano,
Assembly Print Number 5734 -
SENATOR CONNOR: Lay it aside,
6443
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
457, by Senator Kuhl, Senate Print 2215, an
act to amend the Penal Law.
SENATOR CONNOR: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
462, by Senator Wright, Senate Print 3059, an
act to amend the Penal Law.
SENATOR CONNOR: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
465, by Senator Kuhl, Senate Print 3337 -
SENATOR CONNOR: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
481, by Senator Larkin, Senate Print 3998, an
act to repeal Chapter 987 -
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SENATOR CONNOR: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
532, by Senator Rath, Senate Print 1453, an
act to amend the Public Authorities Law.
SENATOR CONNOR: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
Senator Velella, that completes the
reading of the noncontroversial calendar.
SENATOR VELELLA: Thank you,
Madam President. May we now have the reading
of the controversial calendar, in order.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
185, by Senator Alesi, Senate Print 520, an
act to amend the Public Health Law, in
relation to mandatory reporting.
SENATOR CONNOR: Explanation.
THE PRESIDENT: Senator Alesi,
Senator Connor, I believe, has asked for an
6445
explanation.
SENATOR ALESI: Thank you, Madam
President.
This bill provides for the
mandatory reporting of suspected abuse of a
person who is physically or mentally incapable
of reporting that abuse themselves.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will just
yield to a question, please.
THE PRESIDENT: Senator Alesi,
will you yield?
SENATOR ALESI: Yes, Madam
President. I'll be happy to.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: This statute,
as I understand it, Senator, is patterned
after our child abuse reporting requirements.
And I just -- do you have any sense or any
information about how effective or how the
system has responded to those kinds of
complaints?
6446
We have similar penalties, we have
criminal penalties, minor criminal penalties
for failing to report. Do you have any sense
of how that system has worked vis-a-vis
increasing our ability to detect and report
and prevent child abuse?
SENATOR ALESI: Through you,
Madam President, I don't have any specific
numbers to report, because that would be
impossible to do. Because of the number of
incidents that probably go unreported, we
couldn't weigh that against them.
But I would venture to say that we
have laws that cover virtually everything, and
there may or may not be a way of saying how
effective they are in terms of dealing with or
preventing circumstances.
The point is that this broadens the
number of people who would be required to
report the abuse, rather than just leaving it
up to their own conscience as to whether or
not they would report it.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will continue
to yield.
6447
THE PRESIDENT: Senator, do you
yield?
SENATOR ALESI: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Do you know
whether there have been actually any
prosecutions under the child abuse reporting
requirement for failure to report?
I mean, we have minor criminal
penalties, I think misdemeanor penalties
associated under the child abuse laws with a
requirement that you report and if you don't
report you can actually be prosecuted. Have
there been many of those? Has it worked as a
spur to report this?
SENATOR ALESI: Madam President,
as much as I'd like to say that the child
abuse reporting law is the template for what
we're doing here today, I'd prefer to debate
the bill at hand. And I appreciate Senator
Dollinger's concerns about the fact that since
we are patterning it after the child abuse
laws, that we could say whether it has been
6448
successful or not.
But I would prefer to proceed with
the bill at hand, Senator, with your good
graces.
SENATOR DOLLINGER: Okay.
Through you, Madam President, just
one final question.
THE PRESIDENT: Senator, do you
yield for a final question?
SENATOR ALESI: Yes, Madam
President. I'd be happy to.
THE PRESIDENT: You may proceed.
SENATOR DOLLINGER: The issue of
good faith in the reporting as creating a
certain immunity from any kind of civil
liabilities, could you just explain -- I mean,
I don't know whether there's a good faith
provision in the child abuse reporting law. I
mean, has this triggered civil litigation?
Has this -- I know the trial
lawyers, I gather, have raised this issue of
the good-faith immunity. Has that triggered
litigation? Has there been litigation over
the child abuse -- failure to report child
abuse as creating civil liability for the
6449
nonreporting person?
SENATOR ALESI: Madam President,
at least as far as the bill at hand is
concerned, there is, as you correctly point
out, an immunity for good-faith reporting for
many civil liabilities. And I think that my
response would be specific to the bill at hand
in that matter.
SENATOR DOLLINGER: Okay. Just
on the bill, briefly, Madam President.
THE PRESIDENT: You may proceed.
SENATOR DOLLINGER: I've voted
for this bill in the past; I'm going to vote
for it again.
I commend my colleague from Monroe
County in putting this bill together. I think
it has a clear beneficial intent. I think it
drives home the importance of reporting
incidents involving abuse of some of our most
vulnerable New Yorkers.
I do hope that when the bill gets
to a conference committee, which I think is a
good thing, and this bill is ironed out with
our colleagues in the Assembly -- I know we
passed it last year. I would suggest that I
6450
would certainly vote in favor of a message to
the Assembly telling the Assembly to come to
the table on this issue, to come up with a
bill that will achieve the goal that my
colleague from Monroe County is attempting to
achieve, which is provide additional
protections for people who suffer from mental
disease or defect, and that they have an
opportunity to enjoy that same kind of
protection. This kind of abuse should not be
tolerated.
I don't mind a strict reporting
requirement. I think it will be beneficial.
And I just think that this bill deserves the
attention of both houses and should become a
part of our law.
The issues of the good-faith
immunity, the issues that involve the
reporting and the written reports and how the
system has worked, I think that's worthy of an
extensive discussion with the other house. My
hope is that we get to there and that this
bill eventually becomes law.
I feel that continuing to pass it
as a one-house bill does a disservice to my
6451
colleague from Monroe County as well as to the
people he's trying to protect. We ought to do
this as a companion bill with the Assembly and
get this bill or something very much like it
into law as quickly as possible.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
SENATOR CONNOR: Last section,
please.
THE PRESIDENT: Then the debate
is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
435, by Senator Spano, Senate Print 3069, an
act to amend Chapter 677 of the Laws of 1977.
SENATOR CONNOR: Explanation.
THE PRESIDENT: Senator Spano,
6452
Senator Connor has requested an explanation.
SENATOR SPANO: Thank you, Madam
President.
This is a bill that extends the
agency shop fee for two years.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Madam President,
if the Senator will be so kind to yield for a
question.
SENATOR SPANO: Yes.
THE PRESIDENT: The Senator does
yield.
You may proceed, Senator Connor.
SENATOR CONNOR: Thank you, Madam
President.
Madam President, I would inquire of
the Senator whether any consideration was
given to a longer extender than two years with
respect to the agency shop fee.
SENATOR SPANO: Senator Connor,
we discuss this every two years. And I do
have the -- I am carrying the bill that would
allow for a permanent mandatory agency shop,
and that possibly that we may address before
the end of this session.
6453
But I think it's important that we
at least put in place an agency shop fee
proposal that we can get to the Governor, have
it signed into law for a two-year extender.
This is something that we have
discussed with our public employee
representatives across the state, and they
very strongly feel that this measure is the
most prudent way to go.
So to answer your question
directly, have we thought about it, yes. We
do have a bill in to do that. I agree that we
should. But at this point, this is just the
two-year extender.
SENATOR CONNOR: Madam President,
if Senator Spano would yield for another
question.
SENATOR SPANO: Yes.
THE PRESIDENT: You may proceed,
Senator Connor.
SENATOR CONNOR: Thank you, Madam
President.
I would ask Senator Spano is he
aware that I put in a bill for a permanent
agency shop in 1979 and carried it for many
6454
years thereafter. And I believe that predates
the Senator's membership in this body.
SENATOR SPANO: I remember that.
I was in the Assembly then, and I remember
that bill.
(Laughter.)
SENATOR CONNOR: Thank you, Madam
President. Thank you, Senator.
SENATOR SPANO: You continue to
be a pioneer, Senator Connor.
SENATOR CONNOR: On the bill,
Madam President.
THE PRESIDENT: You may proceed,
Senator Connor, on the bill.
SENATOR CONNOR: In 1977 a great
experiment was enacted, and that was to allow,
through our public employee collective
bargaining agents, the ability to collect an
agency shop fee because of the work that they
do representing all employees in the
bargaining unit, whether or not they be union
members and pay dues because of being members.
Under the fundamental principles of
collective bargaining, the union has to
represent everyone who works in the unit,
6455
whether or not they belong to the union. And
of course that imposes expenses on the union
for lawyers and arbitration fees and
representation and all sorts of other
responsibilities that the union has as part of
their duty of fair representation to represent
all.
It was originally a two-year
experiment in 1977 with a promise that if it
worked out, it would be made permanent. We
are now -- let me get my math right -- 24
years later, doing another two-year extender.
And frankly, there have been
occasions -- I confess to exploiting this
issue politically myself in 1979. Because the
history was such that until just a few years
ago, a minority of the Majority members
supported this bill, and virtually every
Democrat did support it.
And in 1979 I offered an amendment
to make it permanent. It failed, as happened
to all but two amendments that I've ever seen
introduced on this floor since I've been here.
And then all the Democrats voted against the
main bill, because that's what the unions
6456
wanted, a permanent agency shop. And of
course the extender failed.
And for about six or seven weeks,
there was rather a crisis in the public
employee union quarters until the bill to
extend it for two years was brought back, with
a promise to look shortly thereafter -- this
being 1979 -- at a permanent agency shop.
I have over the years offered an
amendment to make it permanent which has
failed. It's 24 years later. And frankly, no
one is fooled by the -- and I've said this on
the floor before, Madam President, the
political intent of a mere two-year bill is to
force the public employee unions to come back,
hat in hand, to this Legislature every two
years and be nice and make nice in order to
get another two-year extender on what in fact
is financially of utmost importance to them
because it allows them to have the capacity to
represent all their members to the best of
their ability.
I think it's time we end this
charade and have a permanent agency shop. I
hope, Madam President, that Senator Spano is
6457
serious in pursuing the idea this year of
doing a permanent agency shop. The issue
is -- frankly, it's not pretty to have this
every two years as a hammer over the unions by
the two majorities.
And frankly, Madam President, after
24 years the issue is getting rather boring,
and I wish we'd put it to rest.
Last section, please.
THE PRESIDENT: Does any other
member wish to be heard?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 48. Nays,
1. Senator Marcellino recorded in the
negative.
THE PRESIDENT: The bill is
passed.
Senator Balboni.
THE SECRETARY: Also Senators
Hannon and Balboni.
6458
THE PRESIDENT: The debate has
been closed, and we're ready to announce the
results.
THE SECRETARY: In relation to
Calendar 435, those recorded in the negative
are Senators Balboni, Hannon, Maltese,
Marcellino, and Skelos. Ayes, 44. Nays, 5.
THE PRESIDENT: Senator Duane,
did you wish to explain your vote, sir?
SENATOR DUANE: No, Madam
President, I was going to raise a point of
order. I was just wondering what the delay
was.
THE PRESIDENT: It's moot at this
point, Senator.
Senator Velella.
SENATOR VELELLA: Can we proceed?
Since he doesn't have a point of order, can we
proceed with the reading of the calendar?
Thank you.
THE PRESIDENT: The bill is
passed.
The Secretary will read.
THE SECRETARY: Calendar Number
437, by Member of the Assembly Vitaliano,
6459
Assembly Print Number 6612, an act to amend
the Civil Service Law, in relation to
extending.
SENATOR CONNOR: Explanation,
please.
THE PRESIDENT: Senator Leibell,
an explanation has been requested.
SENATOR LEIBELL: Thank you,
Madam President.
This would amend Paragraph D of
Section 209 of the Civil Service Law to extend
the provisions of the law which grants police
and firefighters binding arbitration rights
for an additional two years, until July 1,
2003. Without this bill, such binding
arbitration rights would sunset and expire
this year on 1 July.
Binding arbitration has been a huge
success since its inception in 1977, but
through its provisions it supports the Taylor
Law prohibition against strikes or slowdowns
by critical public safety employees by
providing a guaranteed outlet to settle labor
disputes. Firefighters and police, who
already have the heavy burden of performing a
6460
difficult and dangerous job, should not have
to carry an additional burden of worrying
about how to resolve a concern with respect to
compensation or working conditions.
It should be noted that there have
been very few -- there have been no
significant increases or decreases in
settlements due to the use of arbitration as
opposed to settlements imposed prior to its
institution. As a result, binding arbitration
has provided no disadvantage to either party
in the labor process but has ensured that the
process it has a determined fair finality.
This law helps police,
firefighters, municipalities, the general
public, and it merits extension.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Yes, Madam
President. If Senator Leibell will be so kind
to yield to a question.
THE PRESIDENT: Senator Leibell,
will you yield for a question?
SENATOR LEIBELL: Yes.
THE PRESIDENT: You may proceed,
Senator Connor.
6461
SENATOR CONNOR: Yes, thank you.
Madam President, I would like to
inquire of Senator Leibell whether or not he
gave any consideration to sponsoring binding
arbitration for other public employees. And,
if not, why not.
SENATOR LEIBELL: To answer your
question, Senator, we constantly review in our
committee and look at all segments of the
labor workforce to see what protections they
need, what benefits are out there. And yes,
to answer your question, they are constantly
reviewed.
SENATOR CONNOR: Madam President,
if the Senator will be kind enough for yield
for another question.
THE PRESIDENT: Senator Leibell,
will you yield?
SENATOR LEIBELL: Yes.
THE PRESIDENT: You may proceed,
Senator Connor.
SENATOR CONNOR: Thank you, Madam
President.
Madam President, I would like to
know from Senator Leibell whether any
6462
consideration was given to making this
provision of the law permanent rather than a
mere two-year extender.
SENATOR LEIBELL: There are,
Senator, many, many, as you are aware,
provisions of law that have extenders on them
that are not permanent. And there's a reason
this Legislature has done that over the course
of years, and that's a reflection of our
understanding that times change and situations
can change and facts can change.
So that by doing a two-year
extender, it allows us to constantly stay
abreast of any changes that may occur at the
same time that we're making sure that these
members of our labor force are protected.
I would also note that this
provision has already been passed by the
Assembly, and Assemblyman Vitaliano sponsored
it.
SENATOR CONNOR: Madam President,
on the bill.
THE PRESIDENT: You may proceed,
Senator Connor, on the bill.
SENATOR CONNOR: I agree with
6463
this bill because it strikes at a fundamental
problem that's created by the Taylor Law, and
that is that we forbid public employees to
strike.
Obviously, in the case of police
and firefighters, that's very, very important
that we ensure that the public safety is not
disrupted because of a labor dispute. And our
solution to that problem in 1977 was to adopt
binding arbitration for police and fire. It
didn't apply in those days, and for many, many
years thereafter, to New York City.
And the fact is, it was fair. You
tell these people under all circumstances you
must go do work with or without a contract,
with or without a collective bargaining
agreement. There has to be some way to
resolve those disputes.
I would only suggest that when we
look at other public employees who are
forbidden from engaging in strike
activities -- and many of those unions have
been fined severely. We've had union leaders
on occasion imprisoned because of strikes in
the public sector -- that we ought to afford
6464
those unions and their employees some method
of working out collective bargaining disputes
in a way other than through a strike, which
we've made illegal.
I guess the best way to look at it
is if one is a bus driver or a union
representing bus drivers, if it happens to be
a privately owned bus company, the employees
can strike. If it's a publicly owned bus
company, the employees can't strike.
So unlike in this bill, where the
very nature of the work, police and fire, is
so unique. There's no such thing as private,
paid fire-fighting forces or police forces.
But when you -- it's clearly appropriate here,
but when you translate it to what we do to
other employees, the ban on striking and the
lack of providing an alternative is really,
really egregious, because it really -- we
should look at the function.
Private school teachers can strike;
public school teachers can't. I talked about
bus drivers and others. And I think we ought
to look at the whole thing, health care
workers, and we ought to look at it
6465
functionally, we ought to provide where we
forbid someone from striking, we ought to
provide an arbitration process that resolves
the dispute in the interests of fairness.
With respect to the issue of
another two-year extender, this is another one
24 years old, a great experiment. I've yet to
see any real reports or analysis that
evaluates this experiment over any two-year
period. Senator Leibell is correct, many
areas of the law sunset. But many don't. And
if circumstances change, we have a Legislature
that can react to those circumstances.
I sometimes think all these laws -
and there are several we're taking up today
for two-year extenders -- to an outsider might
look like the "Full Employment of the
Legislature Act." It gives us stuff to do
every two years. We can say we passed -
well, today we're going to pass four bills, I
assume, and we can say, Well, that's four more
laws we passed.
And harking back to an earlier day
when the Minority was accorded a little
different consideration in this house, I can
6466
assure my colleagues my walls are full of PEN
certificates. I don't understand why every
two years we have to keep passing the same law
over and over again. Let's save the public
the expense. Let's make this a permanent
provision of law.
I don't really think -- and I
didn't mean that, by the way, to address
either Assemblyman Vitaliano or Senator
Leibell. I'm sure they have plenty of PEN
certificates too. And I daresay who would
want to hang one that's the same as the one
you hung -- hung, is that the right word? -
hanged two years ago.
But I guess some people would
rather be right than hanged, or something like
that. Did someone say that?
So, Madam President, I'm going to
vote for this. But I think we ought to
really, after 24 years, stop this silliness of
forcing now the police and fire unions to say,
Please give us our binding arbitration once
again.
Last section, please.
THE PRESIDENT: Does any other
6467
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
438, by Member of the Assembly Vitaliano,
Assembly Print Number 6614, an act to amend
Chapter 695 of the Laws of 1994.
SENATOR CONNOR: Explanation.
THE PRESIDENT: Senator Leibell,
an explanation has been requested by Senator
Connor.
SENATOR LEIBELL: Thank you,
Madam President.
This bill would amend Section 209A
of the Civil Service Law to extend the
provisions of the Fair Employment Act relating
to granting injunctive relief for improper
employment practice cases until June 30, 2003.
6468
This extension will provide for the
continuation of an expedited method to resolve
improper labor practice issues.
The injunctive relief continued by
this bill was enacted in 1994 to provide for
this expedited method to resolve improper
practice cases in the public sector where that
was deemed to be an immediate and irreparable
harm that would result absent such an
injunction.
Since its enactment, this law has
enabled labor and management to resolve
numerous issues and has proven an effective
tool to protect workers' rights. It merits
extension.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Madam President,
on the bill.
THE PRESIDENT: You may proceed,
Senator, on the bill.
SENATOR CONNOR: Madam President,
this is an example of retrogression. In 1994,
it was enacted, and it was a three-year bill.
Then in 1997, it was enacted as a two-year
extender. So frankly -- and a two-year
6469
extender again in '99, and now a two-year
extender.
My question, Madam President, what
was wrong with the three-year provisions of
the bill? What analysis or evaluation didn't
take place over three years that could then
take place over two years at a time?
This measure is a good measure, but
it was first enacted in 1994. It's seven
years later. It's now on a two-year instead
of three-year cycle. I see another 24 years
coming here, Madam President.
If it's a good law, let's make it
permanent. Maybe we can take a day off in two
years if we make all these laws permanent, and
we don't have to come back and go through the
whole legislative process to extend them over
and over and over and over again.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
6470
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
439, by Member of the Assembly Vitaliano,
Assembly Print Number 5733, an act to amend
the Retirement and Social Security Law, in
relation to extension.
SENATOR CONNOR: Explanation.
THE PRESIDENT: Senator Leibell,
an explanation has been requested by
Senator Connor, I believe.
SENATOR LEIBELL: This bill would
amend Sections 470 and 480 of the Retirement
and Social Security Law to provide for the
extension of the temporary benefits and
supplementation programs until 1 July, 2003.
It would also amend Sections 615
and 625 of the Retirement and Social Security
Law to provide for the extension of certain
temporary designated rights and benefits for
public employees until 1 July, 2003.
Specifically, this bill would
extend the right of public employees and
6471
public employers to negotiate for retirement
benefits not requiring approval by act of the
Legislature, thereby extending for two
additional years every temporary right,
privilege, or retirement benefit conferred by
law for a member of a public retirement
system.
This bill stems from a 1973 act of
this Legislature that determined that changes
in retirement benefits payable by a public
retirement system should be made only by way
of collective negotiations. Accordingly,
these sections extended today were enacted to
provide all negotiations between public
employers and their employees must be made in
the context of coalition bargaining.
This law has proven very successful
and merits extension.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Madam President,
on the bill.
THE PRESIDENT: You may proceed,
Senator.
SENATOR CONNOR: Now, this is an
ancient one, Madam President. It goes back to
6472
1973. We're extending it every two years, two
years after two years after two years, since
1973.
If someone had had the wisdom to
make it a ten-year bill, we could revisit it
but we wouldn't have to take up our time nor
have this whole privilege relating to certain
members of the retirement system up for grabs
every two years.
Madam President, it's not like
we're seeing any creativity or originality
here. It's extended every between years in
its present form. It's not made any better,
it's not made any worse, it just keeps getting
older.
1973 was long before I ever came
here. And whoever had the good idea then
ought to get credit for it rather than seeing
new authors and new sponsors every two years
extending the same old good idea. Can't we
make it better? Can't we change a semicolon
or a comma? Can't we do something to make
this interesting and worthy of the
Legislature's attention, rather than just
change the date constantly?
6473
Let's pick a different date. I
don't know, pick a different day or something,
so that we have some justification for the
effort that goes into printing and reporting
and the passing this legislation.
It's a good bill. It's just 1973,
an experiment in 1973 that is still on the
experimental list for two-year extensions. It
starts to, frankly, in my opinion, bring into
question the credibility of the entire
Legislature and the way we make laws.
Maybe we could have a session every
other year instead of every year and save
everybody a lot of money if we didn't
constantly have these things expiring that we
well could have made a little longer in
duration.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
6474
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
440, by Member of the Assembly Vitaliano,
Assembly Print Number 5734, an act to amend
the Retirement and Social Security Law, in
relation to the membership.
SENATOR CONNOR: Explanation.
THE PRESIDENT: Senator Leibell,
an explanation has been requested by Senator
Connor.
SENATOR LEIBELL: This bill would
amend Section 440 of the Retirement and Social
Security Law to extend the provisions of the
law granting certain police officers and
firefighters reduced retirement contributions
until July 1, 2003.
Specifically, this bill would
continue the provisions that placed police
officers and firefighters who have enrolled in
a public retirement system on or after
July 31, 1976, under the provisions of Article
11 of the Retirement and Social Security Law
for purposes of reducing their amount of
6475
retirement contribution. Effectively, this
makes them Tier 2 members for that purpose.
This bill is essentially identical
to previously extender legislation that's been
passed by this Legislature. This bill keeps a
promise to those police and firefighters for
their retirement contributions and merits
extension.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Madam President,
if Senator Leibell would yield for a question.
THE PRESIDENT: Senator Leibell,
will you yield for a question?
SENATOR LEIBELL: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator Connor.
SENATOR CONNOR: Thank you, Madam
President. I would ask the Senator, when was
this particular Tier 2 provision first enacted
into law?
SENATOR LEIBELL: I don't have
the history of it. We're going to try and
check that out in front of us. The last
extender we did was '99.
6476
SENATOR CONNOR: Thank you, Madam
President.
If I may, on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator Connor.
SENATOR CONNOR: I don't have
that number either, and I guess that proves my
point, Madam President.
Here we go, two-year extender after
two-year extender, we kind of lose sight of
where this originally came from. It seems to
work, it isn't broke, so we don't fix it, we
just extend it for two years, we don't make it
better, we don't make it worse, it just goes
on and on and on, two-year extender after
two-year extender.
I don't know. I have a number in
mind. How about four, Madam President? Maybe
four-year extenders ought to become something
that we do just in the interest of efficiency
and moving along the legislative process.
Two-year after two-year. Now we
have the tier status of police officers and
firefighters at jeopardy, every two years has
to be renewed.
6477
Madam President, for fear of being
odd, may I humbly suggest five years, an odd
number, that we do that just to move things
along.
In the meantime, I guess we're
stuck with this. I've probably said all I'm
going to say today. It looks like someone's
legislative agenda is concluded with two-year
extenders. But I know, Madam President,
they'll all be back in two years. Hopefully
most of us will be back to see them again.
Thank you.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President. I just want to echo the
sentiments of the Minority Leader.
I guess what I find so astounding
about this entire process is that only in the
state of New York, only in the State of New
York could we take what was seen as a
government reform measure -- that is, the
concept of sunset bills, Senator Connor, where
what we would do is we as a government would
say, This is an idea we're going to try, and
6478
before we make it permanent, what we're going
to do is we're going to analyze how it works
and then we will make a judgment as to whether
it should become permanent or not.
That was a reform born in the
mid-1970s. Let's put sunsets on things, let's
force government to work again, to rethink and
see whether its proposed solutions are solving
the problems. And if they don't, let's let
them go out of business.
A wonderful, an interesting
movement in the government reform movement in
this nation was to put sunset provisions, to
force government to, over a period of time,
rethink whether its proposed solutions are
resolving the problems of this state.
Only in New York would we take that
reform movement and turn it into something
that has an appearance of what I believe is
the corrupting influence of biennial
elections. I will never understand it. I
find it astounding that that's what New York
has done. Our democracy works somehow
contrary to the democracy to such an extent
that we can even take what is perceived as a
6479
reform and turn it into a chain that ties
certain interest groups to having to come back
to this chamber.
I just don't understand it. I
think it's a terrible, terrible indictment of
our democracy in this state.
And what I would say again, the
greatest casualty in the corruption of that
reform is the public's confidence in their
government. No wonder they seem to have so
little about us in this state.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: Madam
President, very briefly on the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR STAVISKY: Yesterday we
had a bill which involved retirees' health
benefits and the non-diminution of their
benefits. And I said yesterday that I had
never seen a bill with so many sunsets. And I
was wrong, Madam President, because we saw
today these bills have seen more sunsets than
the space ship revolving around the earth.
I think it's wrong, and I urge the
6480
Civil Service and Pensions Committee to put an
end to these sunset bills and to make all of
them permanent.
Thank you, Madam President.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
457, by Senator Kuhl, Senate Print 2215, an
act to amend the Penal Law, in relation to
criminal possession.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Kuhl, an
explanation has been requested by Senator
Paterson.
SENATOR KUHL: Thank you, Madam
President.
6481
This bill is a bill that would set
a penalty for a person found to have
possession of a rifle or a shotgun within ten
years of the time that they'd had a previous
felony conviction.
Currently there is no provision in
the law that would make it a felony to possess
a rifle or a shotgun if you've had a felony
conviction before. There is a provision for a
misdemeanor, but that is not an increasing
sanction, if you will. And so that's what
this bill intends to do.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Kuhl would yield for
some questions.
THE PRESIDENT: Senator Kuhl,
will you yield for a question?
SENATOR KUHL: Be happy to.
THE PRESIDENT: You may proceed
with a question, Senator Paterson.
SENATOR PATERSON: Madam
President, my understanding, if Senator Kuhl
would reflect on this, is that what this bill
really does is it punishes repeat violations
6482
of the statute. Because there's no provision
for that right now in Section 265.01 of the
Penal Law, so that's why we would add Section
256.02, to not only enforce repeat violations
but to upgrade this from an A misdemeanor to a
D felony. Is that correct?
SENATOR KUHL: I think Senator
Paterson's explanation is probably better than
mine, Madam President.
SENATOR PATERSON: Madam
President, if Senator Kuhl would yield for a
question.
SENATOR KUHL: I'd be happy to.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, is
there any distinction between nonviolent
felony offenders and violent felony offenders
in the law right now?
Or, more specifically, is it your
desire for the nonviolent felony offenders
that they violate the statute on a repeated
number of times whereas the violent felony
offender would only violate the statute once
and then would qualify to be prosecuted under
6483
the felony statute?
SENATOR KUHL: No. There's no
intent, Senator, to pick on any one group as
opposed to the other. This bill applies
equally to both groups, nonviolent and violent
felons.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator Kuhl,
will you yield?
SENATOR KUHL: I'd be happy to.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Well, Madam
President, I'd like to inquire of the Senator,
what are the penalties for rifle or shotgun
use right now?
And if he would further enlighten
us on perhaps the possibility of registration
for shotguns and for rifles. Because what
appears to be the problem here, at least for
me, Madam President, is that I'm not quite
understanding in which way the person would
have possession of a rifle or of a shotgun.
6484
In other words, had not there been
a conviction within ten years of the
possession, then the possession would be
lawful; is that correct, Senator?
SENATOR KUHL: Senator,
currently -- I think you're hitting on a point
that I think is correct, but let me explain it
to you.
There is currently no requirement
for registration of a rifle or a shotgun.
What this bill attempts to do is to make it a
felony for the second possession of a rifle or
a shotgun if you have previously been
convicted of a felony. It's an attempt to
take guns out of the hands of felons,
particularly on the second occasion, by
increasing the penalty from a misdemeanor
which is a Class A misdemeanor to a Class D
felony.
SENATOR PATERSON: Thank you,
Madam President. And thank Senator Kuhl for
his responses.
Madam President, on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator Paterson.
6485
SENATOR PATERSON: I'm going to
vote for the bill. I endorse the bill,
actually. I think it's a good idea that a
person that has been convicted -- although my
understanding of the bill memo differs from
that of Senator Kuhl.
I think there is somewhat of a
distinction between the violent felony
offender and the nonviolent felony offender,
in the sense that the repeated violation of
the statute by the nonviolent felony offender
becomes the qualification for the prosecution
under the felony statute, and yet only one act
of violence by a felony offender would qualify
them.
And I don't even disagree with it
even as much as I think we had two different
understandings of what it said. That's
perfectly fine with me. The whole bill is
fine with me.
I just wanted to point out that if
we were registering shotguns and registering
rifles, it would make it easier for us to
determine those individuals -- or at least it
would deter those individuals from even
6486
thinking about possessing them. Whereas the
way it stands now, even with the upgrade from
a violation of possession of this type of
weapon, upgrading it from fourth degree to
third degree is also a deterrent, but you
would have to first be caught with the actual
weapon.
What I'm suggesting is if we had a
registration process, you might be afraid to
even have the weapon. Because at any time, if
your registration is challenged, it would be
easy to determine that there was no
registration, perhaps because the person knows
that they couldn't register anyway. As
opposed to this situation where there would
have to be a determination of what the
previous conviction is of the violator to
actually stop them.
But the intent of the bill is good.
And even if my suggestion were added, the
upgrade from fourth degree to third degree
also seems quite satisfactory.
Thank you, Madam President.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
6487
President. Would the sponsor please yield?
THE PRESIDENT: Senator Kuhl,
will you yield for a question?
SENATOR KUHL: Yes.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President.
I very much appreciated Senator
Paterson's comments. I have made similar
comments on this floor and in private about
the need, in my opinion, to have registration
of rifles and shotguns in New York State. The
response has repeatedly been that rifles and
shotguns are almost never used in the
commission of crimes, and therefore we don't
need rifle and shotgun registration and
licensing in New York State.
My question to the sponsor is
whether or not he believes that that's true.
SENATOR KUHL: Well, Senator, I
don't know as I have a position in response to
your question.
What this bill intended to do was
essentially to take guns out of the hands of
6488
people who have been convicted of felonies.
And Senator Paterson raised a good
point, in the summary of -- which I'd just
like to comment on. In the summary in the
memo, the summary of the provisions,
unfortunately the word in the third line -
and I don't know whether you have that in
front of you, Senator, or not, but it talks
about this new subdivision would provide
penalties, actually, that an individual who
has been convicted of a violent felony.
Well, that is true. But it
probably should have said a violent and a
nonviolent felony, because it applies to all
of them. So it is not totally correct when it
says what it does say. It's not -- it's only
telling half of the story, in essence. And I
just want to make that point clear in our
discussion, Senator.
But this bill is totally aimed at
not license or registration or anything like
that, it's just meant to recognize that in
fact there have been people who have been
convicted of felonies before, they have been
found in the possession of weapons, there is
6489
there is a crime upon their possession, but
there's no additional penalty for somebody
who's caught the second, the third, the fourth
or the fifth time.
So what this does is increases the
severity of the penalty on that second
conviction for possession of a weapon.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator, will you
yield?
SENATOR KUHL: Yes.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: Thank you.
And I appreciate that explanation.
I have a pretty good grasp of what this
legislation does, and I support this bill.
But it begs the question, since the
area we're exploring here is to provide
protection to the citizens of New York from
individuals who would use rifles or shotguns
in the commission of a crime. And the
licensing of these rifles and shotguns has
been an issue, and the response has been
6490
they're not used in the commission of crimes
with frequency at all. Yet in your memo, you
dispute that by suggesting rifles and shotguns
may be the weapons of choice for felons who
cannot obtain pistols or sidearms requiring
permits.
And I believe that that's true. I
believe your memo is correct. But if it is
true and if it is correct, is that not a
strong argument, in addition for everyone to
support the bill that you've sponsored, but
for a licensing requirement for rifles and
shotguns?
SENATOR KUHL: Senator, let me
respond to you this way. I don't have any
quantitative information that would tell you
that in the course of the commission of 20,000
crimes by violent felons that they have used a
shotgun or they have used a pistol. I don't
know that information.
I only know that in fact that
there's no disincentive, if they've been
convicted once, to use that a second time or
to even have it in their possession. Many
crimes are not committed, as you know. That's
6491
why we have attempted crimes, where there's an
intent to do something but they never get to
the actual commission.
The intent of this is to increase
the severity of the penalty to eliminate any
possibility that in effect they'll even
anticipate or even consider committing a crime
with a shotgun or rifle. If there were one
individual that this might stop, that might be
one life they would save.
And so that's the intent of this.
It's more preventative than it is in reaction
to something that's out there that we know of
quantitatively.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator, do you
yield?
SENATOR KUHL: Yes.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: With the
greatest of respect to the sponsor, I would
suggest that the exact opposite is true, that
this legislation in fact is not preventative,
6492
this is punitive after the fact. Which is
fine.
And what would really be
preventative is by going ahead and imposing a
licensing requirement that would preclude
somebody from getting a rifle or a shotgun in
the first place so that we then wouldn't be in
the unfortunate situation of having had that
individual get the rifle or shotgun because
there is no licensing, and then go out, having
been previously convicted of another violent
or nonviolent felony, and then be subject to
your additional penalties.
So if we really wanted to be
preventative, wouldn't a licensing requirement
which would stop the individual from getting a
rifle or shotgun in the first place really be
the way to address this, in addition to what
you're trying to do here?
SENATOR KUHL: Well, one of the
elements of this, Senator, is just as Senator
Paterson has addressed, that there are
deterrents in this world. And I believe that
this particular proposal would be a deterrent
to a prospective violator.
6493
SENATOR HEVESI: Thank you.
Madam President, on the bill.
THE PRESIDENT: You may proceed,
Senator Hevesi, on the bill.
SENATOR HEVESI: Madam President,
I fully appreciate what Senator Kuhl is trying
to do, and I don't dispute the need for the
legislation that's before us.
But I want to state again, I
brought this issue up on any number of
occasions. You can go right now anywhere in
New York State, with the exception of the City
of New York -- anywhere outside of the City of
New York, and you can walk in as long as
you're 18 years old to any gun store, and buy
a long gun, a rifle or a shotgun, without any
kind of background check.
And when I did this with my
predecessor, Senator Gold, a number of years
ago, what we had to do was fill out an
Alcohol, Tobacco and Firearms Bureau -- ATF
Bureau Form 4473, where we, as the people who
were purchasing the weapon, certify on that
piece of paper that we are not fugitives from
justice, where we certify that we are not
6494
mentally incompetent, those types of
self-certifications. And there's never a
background check. That form never even gets
sent to BATF unless the store, the gun store,
closes at some point.
So there's -- and that exists
today. So I can go right now and buy a rifle
or a shotgun. And it seems to me that the
argument that was always advanced against
licensing of rifles and shotguns -- and I've
heard it on this floor and I've heard it on
numerous occasions from my colleagues on the
other side of the aisle that you don't need to
do that because rifles and shotguns are almost
never used in the commission of violent
crimes. Or any crimes, for that matter.
And then -- and I disagree with
that wholeheartedly, and I'm glad to know that
Senator Kuhl, who sponsors this good bill,
disagrees with that too, because he's put it
in his legislation that this is necessary, and
he states rifles and shotguns may be the
weapons of choice for felons who cannot obtain
pistols or sidearms requiring permits.
There could be no stronger
6495
statement, there could be no more definitive
proof that we need licensing of rifles and
shotguns than the statement contained within
the sponsor's memo on Senator Kuhl's bill.
It's time we do this, we take the
right step. If we're going to punish somebody
on the back end for using a rifle or a shotgun
in the commission of a crime, it's almost
criminal of us not to make it difficult, if
not impossible, for these prospective
criminals to get the rifles and shotguns in
the first place that we're going to punish
them for after they get it. You know,
bizarrely, it's almost strange, it's almost
unjust to do to the criminal. This is really
a bizarre circumstance.
We've got to take the additional
preventative action. This bill is a good
bill, but it's after the fact. Let's hit this
on the front end, since we now know from the
sponsor that rifles and shotguns are used in
the commission of crimes, and the lack of
licensing, according to the sponsor, is one of
the reasons why this legislation is necessary.
I agree with Senator Kuhl
6496
completely. I support this bill, Madam
President.
THE PRESIDENT: Senator Kuhl.
SENATOR KUHL: Just briefly on
the bill, Madam President.
I'm glad to see that my young
colleague agrees with everything that I say.
But that's not -- his interpretation of what
is in the bill memo really isn't as it's
stated. And I'll just state it for the
record.
And it simply says that rifles and
shotguns, and I underline the word "may," may
be the weapons of choice. That's what we're
trying to do, is to prevent the opportunity
for them to be able to do that, establish a
deterrent.
There is nothing here that suggests
that rifles and shotguns should go through
registration, nor will this sponsor ever
propose legislation to do that.
Thank you, Madam President.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
6497
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56. Nays,
1. Senator Montgomery recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
462, by Senator Wright, Senate Print 3059, an
act to amend the Penal Law, in relation to the
crimes of vehicular assault and vehicular
manslaughter.
SENATOR PATERSON: Explanation,
please.
THE PRESIDENT: Senator Wright,
Senator Paterson has requested an explanation.
SENATOR WRIGHT: Thank you, Madam
President.
The act is to amend the Penal Law.
It adds two new crimes, one vehicular murder,
the other aggravated vehicular assault, and
6498
then takes the existing crimes of vehicular
assault and vehicular manslaughter and
redrafts those two provisions.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Wright would be so kind
as to yield for a question.
THE PRESIDENT: Senator, will you
yield?
SENATOR WRIGHT: I surely will,
Madam President.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, I'm
just a little confused on the upgrade of the
punitive quality of the bill. In other words,
what will be the difference in the punishment?
I can certainly see why we want to
have a difference; I just want to know what it
is.
SENATOR WRIGHT: Well, in the
case of vehicular assault, Senator, we're
changing that from a Class E felony, which is
one to three years, to vehicular assault in
the first degree, which is a Class D felony,
6499
three to seven years.
In the case of aggravated vehicular
assault, it's established as a Class C felony,
which is 4½ to 15 years. Vehicular
manslaughter in the second degree is a Class D
known, three to seven. And vehicular murder
is established as a Class B felony, 8 to 25
years.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President. Would the sponsor please yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: The Senator will
yield.
You may proceed, Senator Hevesi.
SENATOR HEVESI: Thank you.
This is a little bit of a
complicated bill. I just want to make sure
that I have all the specifics down in terms of
what this legislation does.
So just for clarification's sake,
the amendments to the current provisions of
law as they pertain to vehicular assault and
vehicular manslaughter in the second degree,
6500
this bill seeks to take out the element where
the prosecutor has to prove criminal
negligence and at the same time provides an
affirmative defense that if the intoxication
was not a cause of the accident, that the
individual should be not guilty of the crime.
Is that accurate?
SENATOR WRIGHT: That is
accurate, Senator. It provides for the
elimination of the statutory requirement of
criminal negligence and then also provides for
the creation of an affirmative defense.
The intent being that it's to
provide that accommodation while at the same
time we are increasing the penalties so that
we provide an additional tool for the
prosecution of these cases and can facilitate
that prosecution.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor continue to
yield?
THE PRESIDENT: Senator Wright?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
6501
Senator Hevesi.
SENATOR HEVESI: Thank you.
My understanding, though, is for
those two crimes, vehicular assault and
manslaughter in the second degree, that you
need, one, the element -- under current law,
the element of criminal negligence and, two,
the person who's being accused to have driven
while intoxicated. If we remove the criminal
negligence standard, we are left just with the
individual having driven while intoxicated.
My question to you is, what
categories of criminal negligence or what
types of behavior that constitute criminal
negligence exist within the law right now that
we are removing under this bill?
SENATOR WRIGHT: You're correct
in terms of the criminal negligence provision
being removed. But at the same time -- there
is the requirement that you are intoxicated,
number one, but, at the same time, either
cause death or serious physical injury.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
continue to yield?
6502
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: Thank you.
I'm just a little bit unclear.
Under current law, if I drive while
intoxicated and cause a serious injury or
death to somebody, under current law I need an
additional element of criminal negligence in
order to be convicted of vehicular assault or
manslaughter two. What additional element,
for example -- can you give an example of what
additional element of criminal negligence may
have to exist for me to get this type of
conviction? Because we're now removing that
element from this statute.
SENATOR WRIGHT: That is the
point, Senator. We are removing that element,
so there is not that additional requirement.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator, will you
6503
yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: I understand
what the bill does. I'm just trying to
ascertain the ramifications. Can you give me
an example of criminal negligence that would
apply under the current statute that will no
longer apply after this bill is passed?
SENATOR WRIGHT: The intent in
removing the additional requirement of
criminal negligence is that the defense has
consistently been that due to the
intoxication, you couldn't meet the standard
or the requirement in terms of demonstrating
criminal negligence.
Therefore, to focus upon the aspect
of the intoxication as well as the death and
serious physical injury provisions, the
requirement for that additional criminal
negligence is being removed.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
6504
THE PRESIDENT: Senator Wright?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: I'm having
difficulty with this. Under the current
statute, you have to have criminal negligence
and the additional element of the individual
having driven while intoxicated. Obviously
the driving while intoxicated cannot
constitute criminal negligence under current
law, because current law requires the two
elements. So we're removing criminal
negligence.
I don't understand what the bill is
designed to do or how we would make it easier
for prosecutors, which I'm interested in
doing, because I don't know what criminal
negligence is that we are now removing as an
element to vehicular assault and manslaughter
two.
SENATOR WRIGHT: Thank you, Madam
President. Senator, what we're attempting to
do is eliminate the prosecutor's obligation to
prove criminal negligence, in that that
6505
definition is when he fails to perceive a
substantial or unjustifiable risk.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator Wright?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: Could that be
the individual, in addition to driving while
intoxicated, is speeding, changes lanes
without signaling? Is that -- you know, is
that one of the elements that would constitute
criminal negligence that we're now removing?
SENATOR WRIGHT: Thank you, Madam
President. That could be, although it's not a
specific requirement.
The fact is, under this bill, the
fact that you are intoxicated would be
sufficient.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
continue to yield?
THE PRESIDENT: Senator Wright,
6506
do you yield?
SENATOR WRIGHT: I will, Madam
President.
SENATOR HEVESI: Thank you. And
I very much appreciate the patience of the
sponsor.
Here's my question to you, in light
of what we're learning about this bill. If
now you only require the element of an
individual having driven while intoxicated and
obviously caused the injury or death of
somebody for that to constitute vehicular
assault or vehicular manslaughter in the
second degree, doesn't that statute exist
right now and if we pass this we will have two
penalties for the exact same crime of
differing degrees?
Because right now, if you simply
drive drunk without the additional other
element of criminal negligence -- you know,
speeding or something else -- you're guilty of
a crime. And now we're going to have, if this
passes, two sections of law that provide a
punishment for the exact same crime that have
two different penalties. Is that accurate?
6507
SENATOR WRIGHT: No, Senator, we
don't believe that to be the case. But by
making the elimination, there will be two
criteria. Therefore, it will not be the same
crime.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: Thank you.
Under current law, if I drive while
intoxicated and injure or kill someone without
any other criminal negligence, what crime have
I committed?
SENATOR WRIGHT: Senator, I don't
know which particular statute you would be
charged in violation of. That would up to the
officer and the prosecuting attorney.
But under current law, the statute
requires that you be charged with criminally
negligent homicide -- or, excuse me, criminal
negligence, which is the difficulty in
6508
prosecuting some of these cases. So as a
result, that is the standard we're attempting
to eliminate.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: So just so I'm
clear, if I drive drunk and seriously injure
or kill somebody, I get charged with
criminally negligent homicide?
SENATOR WRIGHT: I don't believe
I said that, Senator. But if I did, I spoke
inaccurately.
SENATOR HEVESI: I'm just trying
to get a clarification of what are the
offenses I will have committed if I drive
drunk and injure or kill someone.
SENATOR WRIGHT: Well, it's
possible you could be charged with vehicular
manslaughter.
6509
Again, I think my statement was
based on the circumstances of the officer
investigating the case and the prosecutor in
question.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator Wright?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: Thank you.
And again here, I'm not trying to
be difficult. But if I, under current law,
drive drunk and kill or injure someone,
according to my reading of the statute that
we're seeking to amend today, I can't be
convicted of vehicular assault or vehicular
manslaughter in the second degree because
there wouldn't exist, under the hypothetical
I'm proposing here or presenting here, the
additional element of criminal negligence.
Since I know that you're not
allowed to drive drunk and kill or injure
someone and that that is punished under the
6510
law, we will then, by definition, have -- if
we pass this and it becomes law, have two
different statutes that punish the exact same
crime with presumably different degrees of
punishment.
And if that's true, my question is,
is that what the sponsor intended?
SENATOR WRIGHT: Well, Senator -
through you, Madam President -- no, I don't
believe that to be the case. And that was not
our intent.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator Wright?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: Let me ask one
last question on this, and I'll move on to
another point. How could that not be the
case?
SENATOR WRIGHT: Because I
believe that's the case, Senator.
SENATOR HEVESI: Madam President,
6511
I'll move on. But if the sponsor would yield
to a question on a different point.
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I'll continue to
yield, Madam President.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: Thank you.
According to my reading of this
bill, we're creating, in addition to amending
the sections that we were just discussing, two
additional crimes, vehicular murder and
aggravated vehicular assault, the first being
a B felony, the second being a C felony.
I'm trying to determine the
difference between vehicular assault and
vehicular manslaughter and the new crimes,
vehicular murder and aggravated vehicular
assault. Both presumably occur when somebody
has driven while intoxicated. The penalties
are much higher for the new crimes that we're
creating here.
My question is, what's the
difference between the crimes we're creating
6512
and the crimes which currently exist which
we're seeking to amend under this bill?
SENATOR WRIGHT: Madam President,
the difference would be acting recklessly and
the definition of "recklessly" meaning the
injury or death was foreseeable.
SENATOR HEVESI: Well, Madam
President, would the sponsor continue to
yield?
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: So recklessly,
under the new statutes we're creating, is if
there was a foreseeable risk that the
individual had.
And the criminally -- criminal
negligence portion of vehicular assault and
manslaughter two that we're removing was what?
Could the sponsor tell us again what that was,
the standard which we removed from the lesser
offenses?
SENATOR WRIGHT: Excuse me, Madam
6513
President. I believe the definition was
"recklessly" means the injury or death was
foreseeable, Senator.
SENATOR HEVESI: Thank you, Madam
President. Let me clarify the question.
The question was I understand that
that is the standard for "recklessly" under
the new provisions we're attempting to create
here. What was the standard of criminal
negligence as defined in the current law which
right now exists as one of the two elements
for vehicular manslaughter or assault in the
second degree that we're removing?
SENATOR WRIGHT: I believe,
Senator, that goes back to the old issue of -
SENATOR HEVESI: Yes.
SENATOR WRIGHT: -- criminal
negligence that is being eliminated, and this
is a new provision that is being added.
SENATOR HEVESI: Yes, I
understand that. I'm asking if you could, so
that we could juxtapose the two -- because
we're removing one, and we're elevating the
penalties for the other, where we're adding
that element -- if you could just refresh my
6514
memory from the debate five minutes ago what's
the standard for criminal negligence that
exists under current law for vehicular assault
and manslaughter two that we are now removing?
SENATOR WRIGHT: Madam President,
through you, for the third time, Senator, I'll
read: When it fails to perceive a substantial
and unjustifiable risk.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
continue to yield?
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: Thank you.
Could you explain to me the
difference between failing to perceive a
substantial risk or your definition of
"reckless," which was the inability to foresee
the events which would occur?
SENATOR WRIGHT: Thank you, Madam
President. My layman's interpretation would
6515
be meaning that "recklessly" means you were
aware of the risk and in the prior instance
you were not.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Thank you.
But in both cases, the individual
should have known that the risk existed; is
that correct?
SENATOR WRIGHT: No, I'm advised
that "recklessly" means they knew it exists
and in the first instance did not.
SENATOR HEVESI: Thank you, Madam
President. Would the sponsor continue to
yield?
THE PRESIDENT: Senator Wright,
will you yield?
SENATOR WRIGHT: I will, Madam
President.
THE PRESIDENT: You may proceed,
6516
Senator.
SENATOR HEVESI: Thank you.
Is this legislation supported by
the District Attorneys Association or any
other law enforcement organizations in
New York?
SENATOR WRIGHT: Yes, Madam
President, through you, I'm informed that it's
supported by the District Attorneys
Association.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
THE PRESIDENT: Senator Wright,
do you continue to yield?
SENATOR WRIGHT: And MADD as
well, Madam President.
Yes, I will continue to yield.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Thank you.
I don't have that memo, and I don't
know why it wasn't circulated to me or any of
the other members of my conference.
Is there anyone else who's
supported this or who has opposed this
particular piece of legislation? Because now
6517
I'm a bit concerned because I don't have all
of the advocacy from both sides here.
SENATOR WRIGHT: Madam President,
to my knowledge no one has opposed it. It has
been supported by the Stop DWI Coordinators
Association as well.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
continue to yield for one final question?
THE PRESIDENT: Senator Wright,
will you yield for a final question?
SENATOR WRIGHT: Certainly, Madam
President.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President.
In light of the fact that we're
having some difficulty in actually
ascertaining what the earlier provisions would
do in terms of amending this section of the
law and potentially leaving two sections of
the law -- or creating two similar sections of
the law with different punishments, would the
sponsor consider starring this legislation to
6518
have a discussion about the language in it?
Because I think this is potentially
a good bill, I'm just very unclear about
how -- you know, some of the technical
approaches that we've taken here and what the
repercussions might be. Would the sponsor
consider starring this?
SENATOR WRIGHT: Thank you, Madam
President. No, Senator, I would not. I
decline that opportunity.
Perhaps I think it's your
perception as opposed to mine, but in fact
while I'm not a lawyer and practicing, I have
confidence in the people who have drafted the
technicalities of the legislation, as, in
looking at the vote last year, do a number of
members of this house when it passed 55 to 1.
SENATOR HEVESI: Madam President,
I know I said one last question. I promise
this is the last one. Will the sponsor yield?
THE PRESIDENT: Senator, do you
yield?
SENATOR WRIGHT: Certainly, Madam
President, I'll be glad to yield.
THE PRESIDENT: You may proceed
6519
with a final question.
SENATOR HEVESI: I'll just ask it
one more time. Because since we're not going
to pull this bill for further consideration,
I've got to vote on this. And notwithstanding
the fact that I supported it last year, I'm
not sure I debated it last year. And so I
wouldn't have, then, last year asked the
questions that I've asked today and gotten the
responses that I've gotten today, which have
left me with a question that I don't believe
has been answered yet, which is the following.
And I'll ask it for the last time, and that
will be the end of it.
Currently, driving while
intoxicated, if an individual injures or kills
somebody, that individual is guilty of a
crime. If we change the law the way the
sponsor wants to change it here and remove
from the statutes of vehicular assault and
vehicular manslaughter in the second degree
one of the two elements which exist under
current law -- one being that you are drunk,
two being criminal negligence -- if we remove
criminal negligence, we've created a new crime
6520
which must already exist.
And I am concerned that there will
then be two sections of the law which punish
the same crime with different penalties. My
question is, how is that not the case?
SENATOR WRIGHT: Thank you, Madam
President. Senator, unless you can prove
criminal negligence as the current statute
provides, one only becomes convicted of DWI.
So we obviously are trying to provide a higher
standard and higher penalties.
SENATOR HEVESI: Madam President,
on the bill.
THE PRESIDENT: You may proceed,
Senator, on the bill.
SENATOR HEVESI: Thank you, Madam
President.
I have great respect for the
sponsor and what he's trying to accomplish,
but I absolutely do not understand that
response or the similar responses during this
debate to that one question that I've asked.
And I don't know what I'm going to
do here. This is very difficult for me.
Because I did vote for the bill last year. I
6521
didn't know that we had this problem. It's
one of the reasons why the further exploration
of legislation that the Democratic conference
has undertaken this year has been fruitful.
In fact, I've changed my vote on several
pieces of legislation.
I'm not sure what I'm going to do
here. I don't know if the District Attorneys
Association -- which I understand, but don't
have their memo, has endorsed this
legislation -- but I don't know if they were
responsible for the drafting of it and whether
there's a good reason why we pulled criminal
negligence out as an element, how that makes
it is easier to prosecute. It probably does.
I would have liked to have known why we should
do that. I would like to make it easier for
prosecute for these types of offenses.
But the nagging question remains,
there's no other condition that can exist
except that this bill becoming law will create
two similar sections, if not identical
sections, which punish the exact same crime,
presumably with different levels of penalties.
And that, at the very least, is inconsistent
6522
with the way we've structured our penal code;
at the very most, is going to provide for a
conundrum for prosecutors and for judges, and
is kind of irresponsible of us.
And, you know, I would again
implore the sponsor to just consider pulling
this bill to work out that one detail, because
we don't want to have this problem in the law.
This is one of those -- unless
somebody can suggest otherwise, this is one of
those steps of logic where we all know it's
right now a penalty to drive drunk and injure
or kill someone. There is -- that is a crime.
I asked what the crime was, and I didn't get a
definitive response, but I know that that is a
crime.
And so if that exists as a crime
and we know it's not vehicular assault or
manslaughter in the second degree, because in
that, there is at additional element necessary
of criminal negligence -- now we remove the
criminal negligence, and you have the same
statute that we're going to create with this
bill which is drive drunk, injure or kill
somebody, it's vehicular assault or vehicular
6523
manslaughter in the second degree. And
whatever the current statute is, if you just
drive drunk and have not committed any other
offense.
We're creating the same crime in
two different sections, and presumably they'll
have different penalties. That's -- it's
just -- that's incredibly problematic. I
don't know -- I don't know what else to say
here.
I'm going to again implore the
sponsor and all my colleagues on the other
side of the aisle, please pull this bill so we
can rectify this or remedy it. There's no
other logical way that what I've articulated
here cannot be true. If it is, somebody
please suggest how it's not true.
And if it is in fact true, how can
we justify passing this bill today? It
creates a major problem.
And I'm not -- listen, Madam
President, I'm not trying to score political
points, I'm not trying to do one-upsmanship, I
want to make sure that the product that we
produce out of this body is the best it can be
6524
and doesn't have flaws.
And one of the reasons why I
particularly want to do this is if we pass
this bill and the Assembly is interested in
tackling this important issue and cracking
down on drunk drivers, which has been a theme
in this house this session, they may be
precluded from acting on this bill for the
reasonings that I've spelled out here today.
In which case the fatal flaw in the
bill today not only is that we have produced a
product that is inconsistent with the way
we've structured our penal code and will
create a problem for prosecutors, it may
prevent the Assembly from even acting on this.
And we may have to kick it back to redo the
bill and amend it anyway.
So, you know, again, and I've said
it a bunch of times, with the greatest of
respect to the sponsor, who I know is
well-intentioned and who is doing something
good here, I respectfully request that the
sponsor pull this legislation so that we can
have a better product here that doesn't create
the problems we've been discussing.
6525
THE PRESIDENT: Senator Volker.
SENATOR VOLKER: Very quickly, I
don't agree with you, Senator. And I think
the quickest way I can explain this -- and
this bill, by the way, is -- and I don't mean
to intrude on Senator Wright. He can well
handle this.
This is an amalgam of about four
bills. We were talking about this yesterday.
This bill -- initially part of the bill was a
Volker-Tokasz, part of it was obviously Jim's
bill, which a good part of it was his bill,
part of it was Senator McGee.
At any rate, what I think is -- and
I think where you -- I don't know if you
realize, presently there is no drunk driving
manslaughter. The fact that you're drunk and
kill somebody, there really is no penalty for
that. You then have to prove criminal
negligence in order to -- they say that, but
it's true.
What this bill will do is set up a
new standard for a person who's intoxicated
and kills somebody. I think under -- your
question, what happens under the present
6526
situation, you -- the same thing could happen.
Because part of the drunk and intoxicated and
manslaughter, what you really prove anyway is
the negligence. I mean, in other words,
that's what happens. It's not really the
intoxicated part of it now that happens, you
really prove the bad driving and all the rest
of the stuff.
Which you're still going to do,
except that you have a standard now that says
if a person is actually intoxicated, then
you're going to upgrade the penalty of
manslaughter. That's the way we look at it.
We will certainly look at it. And,
Senator, in all honesty, this bill is going to
be looked at because we hope to deal with the
Assembly on this bill this year. I know
Senator Wright intends to try very much to get
this bill done. This has been around, aspects
of this bill, for some time. But we're going
to -- he's going to try to work on that.
SENATOR HEVESI: Madam President.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: May I ask
Senator Volker to yield for a question?
6527
THE PRESIDENT: Senator Volker,
will you yield for a question?
SENATOR VOLKER: Yeah, although
I -- you know, I -
THE PRESIDENT: Senator Hevesi,
you may proceed with a question.
SENATOR HEVESI: Thank you.
I'm kind of startled to hear what
you're saying. That would be a perfectly good
explanation for the question I've been asking,
but absolutely startling.
So let me just see if I got it
right. If right now I get into my car, I'm
drunk, I don't commit any traffic infraction
and I happen to kill or seriously injure
someone, I have not committed a crime?
SENATOR VOLKER: It's a tough
problem. You've got DWI, and you can try to
charge somebody with vehicular manslaughter.
But you're going to have a tough problem
because if you have nothing else but the
intoxication, you still have to prove -- for
instance, I'll give you a classic example.
It's an actual example. A truck driver is
sitting at a corner of -- at an intersection
6528
in my district, totally smashed. Okay?
Drunk. He's registered like a .28, something
like that.
A completely sober driver driving
am 80 miles an hour runs into the back of his
truck. The truck driver is totally -- he
didn't do anything. He was sitting there.
That's a DWI accident, by the way. But you
can't charge the driver with vehicular
manslaughter, because he had no responsibility
for it happening even though he was sitting
there drunk.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield? I'm
sorry, would Senator Volker continue to yield?
THE PRESIDENT: Senator Volker -
SENATOR VOLKER: Sure. Sure.
That happened, by the way, just so
that you know.
THE PRESIDENT: All right. You
may proceed, Senator Hevesi.
SENATOR HEVESI: Thank you.
Senator, I understand that
situation. That's somewhat innocuous. But
the situation could very well exist where an
6529
individual who is drunk has an accident with
somebody, has not committed a traffic
infraction, but very easily, because of the
fact that he was intoxicated and his reaction
time was slow, though he may not have been
speeding or what have you, that individual
caused the accident, the death or serious
injury of somebody.
And I for one am absolutely stunned
that that's not a crime under New York State
law. And I would then question why it is that
we have this complicated change that we're
attempting to make here and we've done, God, I
don't know, five or six other DWI bills and we
done have a simple stand-alone bill to
criminalize that act?
SENATOR VOLKER: If you have
don't have some sort of criminal negligence
involved in it, other than the fact that the
person is intoxicated, I don't think you can
actually convict somebody of vehicular
manslaughter.
What his bill is doing is setting
up an actual vehicular manslaughter statute.
That's what I think he's doing.
6530
SENATOR HEVESI: Okay. Thank
you, Madam President. Thank you, Senator
Volker.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: I'm wondering,
Madam President, if the Senator would yield
for an additional question.
THE PRESIDENT: Senator Volker,
would you yield for an additional question?
SENATOR VOLKER: Okay. Sure.
THE PRESIDENT: I think that was
a yes.
SENATOR VOLKER: Yes.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Would the very
popular Senator Volker yield.
I've been reading in the Albany
Times Union and the local television here,
because my life at night is rather boring here
that -- just the nights -- about a police
officer who was just convicted, though, of
vehicular manslaughter. And so it seems to me
that the law the way it's written now works,
because he was convicted by a jury in two
6531
hours of drunk driving and vehicular
manslaughter.
Why do we need to tamper with this
law if it seems to be working?
SENATOR VOLKER: Quick question.
He said no traffic violation. This car was
speeding, went off the road, flipped over, if
I'm not mistaken, and the police officer was
killed as part of the accident.
We were talking about if there was
no other traffic violation. There was
certainly traffic violations involved in that
accident, and it was reckless conduct,
speeding and so forth, I remember -- the
reason I remember it. So that's the answer.
What Dan was talking about is just
being intoxicated, no other evidence of
recklessness or whatever, could you convict
somebody. And I think the answer is probably
no.
SENATOR DUANE: Just one last
question, Madam President, if the Senator
would yield.
THE PRESIDENT: Senator Volker,
do you yield for a final question?
6532
SENATOR VOLKER: Yes. Yup.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Then the position
of this bill makes it strict liability no
matter what and the DA wouldn't have to prove
liability?
SENATOR VOLKER: Well, you'd
still have to prove some sort of liability.
But what it does is it allows what
Dan, I think, was talking about, what
Senator -- I'm sorry, what Senator Hevesi was
talking about. The fact that you're
intoxicated presents some sort of a
presumption that your reflexes and so forth
are not as good. But if somebody could
actually show that someone else was
responsible, you probably couldn't get
convicted of manslaughter either, quite
obviously.
But this at least sets a standard
that intoxicated driving and killing someone
is a presumption, virtually, of -- given,
obviously, the jury's ability to look at no
other cause, the presumption that you should
6533
be convicted of a higher standard, which is
manslaughter.
SENATOR DUANE: Thank you.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 7. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Hevesi,
to explain your vote.
SENATOR HEVESI: Thank you, Madam
President.
I'm going to vote for this bill.
And the reason I'm going to do it is in
recognition of the fact that I just learned,
that it's not currently a crime just to drive
drunk and kill somebody. Which is startling,
to say the least.
What I would suggest we should do
here is have a stand-alone bill that says that
driving while intoxicated constitutes criminal
6534
negligence and therefore becomes the evidence
that you need to convict under the statutes
that we're discussing here today. It's pretty
stunning that we don't have that type of law
on the books right now.
And because this bill, according to
the sponsor and Senator Volker, would now
create a penalty for what we're talking about,
which I and I believe that everybody else in
this chamber believed existed, because
nobody -- (A) it's common sense, and (B)
nobody contradicted me when I discussed it,
since it now creates the penalty by removing
the second element of criminal negligence, so
now, if we pass this, presumably if you drive
drunk and kill somebody, you've committed a
crime, I support the bill.
But, Madam President, this
highlights some real legislative problems that
we have in this house, in the other house, and
in the state.
I vote yes.
THE PRESIDENT: You will be so
recorded as voting in the affirmative, Senator
Hevesi.
6535
The Secretary will announce the
results.
THE SECRETARY: Ayes, 56. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
Senator Meier.
SENATOR MEIER: Madam President,
may we lay aside the balance of the calendar
for the day.
THE PRESIDENT: The remaining
bills are laid aside, Senator.
SENATOR MEIER: Madam President,
is there any housekeeping at the desk?
THE PRESIDENT: Yes, there is.
Senator Marcellino has a motion.
SENATOR MARCELLINO: Madam
President, on page number 46 I offer the
following amendment to Senator Johnson's bill,
Calendar Number 498, Senate Print Number 3346,
and ask that said bill retain its place on the
Third Reading Calendar.
THE PRESIDENT: The amendment is
received, Senator Marcellino, and the bill
will retain its place on the Third Reading
6536
Calendar.
SENATOR MARCELLINO: Thank you.
THE PRESIDENT: Senator Meier.
SENATOR MEIER: Madam President,
there being no further business, I move we
adjourn until Monday, May 7th, at 3:00 p.m.,
intervening days being legislative days.
THE PRESIDENT: The Senate stands
adjourned until Monday, May 7th, 3:00 p.m.,
intervening days being legislative days.
(Whereupon, at 12:50 p.m., the
Senate adjourned.)