Regular Session - January 23, 2002
223
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
January 23, 2002
11:05 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 each bow our head in a moment
of silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Tuesday, January 22, the Senate met pursuant
to adjournment. The Journal of Monday,
January 21, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
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Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator McGee,
from the Committee on Alcoholism and Drug
Abuse, reports:
Senate Print 96, by Senator
Marcellino, an act to amend the Vehicle and
Traffic Law;
391, by Senator Skelos, an act to
amend the Vehicle and Traffic Law;
869, by Senator McGee, an act to
amend the Vehicle and Traffic Law;
1166, by Senator McGee, an act to
amend the Alcoholic Beverage Control Law;
2512A, by Senator McGee, an act to
amend the Insurance Law;
3519, by Senator McGee, an act to
amend the Vehicle and Traffic Law; and
5709A, by Senator Wright, an act to
amend Chapter 519 of the Laws of 1999.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
objection, all bills reported direct to third
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reading.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Rules Committee in the Majority Conference
Room.
THE PRESIDENT: There will be an
immediate meeting of the Rules Committee in
the Majority Conference Room.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Libous.
SENATOR LIBOUS: Thank you, Madam
President.
I move to amend Senate Bill 5793A
by striking out the amendments made on
January 22nd and restore it to its original
print, 5793.
THE PRESIDENT: So ordered,
Senator.
SENATOR VELELLA: Madam
President, can we please adopt the Resolution
Calendar at this time.
227
THE PRESIDENT: All those in
favor of adopting the Resolution Calendar
please say aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The calendar is
adopted.
Senator Velella.
SENATOR VELELLA: Madam
President, I believe there's a privileged
resolution at the desk by Senator Stachowski.
Can we have the title read and move for its
adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Stachowski, Legislative Resolution Number
3847, honoring John F. Schleifer upon the
occasion of his designation as recipient of
the "Educator of the Year" Award by the West
Seneca Chamber of Commerce on January 26,
2002.
THE PRESIDENT: All in favor
please signify by saying aye.
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(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Velella.
SENATOR VELELLA: Madam
President, can we proceed to the
noncontroversial calendar, please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
10, by Senator Padavan, Senate Print 2711, an
act to amend the Penal Law, in relation to
making.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
11, by Senator Leibell, Senate Print 3236, an
act to amend the Penal Law, in relation to
unlawful defilement of a water supply.
SENATOR PATERSON: Lay it aside.
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THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
14, by Senator Balboni, Senate Print 5823, an
act to amend the Criminal Procedure Law, the
Penal Law, and the Executive Law, in
relation
SENATOR VELELLA: Lay that aside
for the day.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
15, by Senator Skelos, Senate Print 5849, an
act to amend the Penal Law, in relation to the
possession of disguised knives.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 37.
THE PRESIDENT: The bill is
passed.
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THE SECRETARY: Calendar Number
26, by Senator LaValle, Senate Print 2589
SENATOR VELELLA: Lay that bill
aside for the day, please.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
31, by Senator Volker, Senate Print 6040, an
act to amend the Tax Law, in relation to the
imposition of sales and compensating use taxes
by the County of Erie.
SENATOR PATERSON: Lay that
aside.
THE PRESIDENT: The bill is laid
aside, Senator.
THE SECRETARY: Calendar Number
38, by Senator LaValle, Senate Print 6042, an
act to amend the Education Law, in
SENATOR VELELLA: Lay it aside
for the day, please.
THE PRESIDENT: The bill is laid
aside for the day.
Senator, that completes the reading
of the noncontroversial calendar.
SENATOR VELELLA: Madam
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President, can we stand at ease pending the
report of the Rules Committee.
We have some bills, we will have
active bills debated, but many of the members
are in the Rules Committee meeting right now
that want to debate the bill. So we'll stand
at ease pending the report of the Rules
Committee.
THE PRESIDENT: The Senate stands
at ease, Senator Velella.
(Whereupon, the Senate stood at
ease at 11:11 a.m.)
(Whereupon, the Senate reconvened
at 11:15 a.m.)
ACTING PRESIDENT MORAHAN:
Senator Velella.
SENATOR VELELLA: Mr. President,
there will be an immediate meeting of the
Commerce and Economic Development Committee in
the Majority Conference Room.
ACTING PRESIDENT MORAHAN: There
will be an immediate meeting of the Commerce
and Economic Development Committee in the
Majority Conference Room.
SENATOR VELELLA: And if we can
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return to reports of standing committees, I
believe there's a report of the Rules
Committee at the desk.
ACTING PRESIDENT MORAHAN:
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bill direct to third reading:
Senate Print 6094, by Senator
Maltese, an act to authorize certain voters.
SENATOR VELELLA: Move to accept
the report of the Rules Committee.
ACTING PRESIDENT MORAHAN: All in
favor of accepting the Rules Committee report
say aye.
(Response of "Aye.")
ACTING PRESIDENT MORAHAN: Nay?
(No response.)
ACTING PRESIDENT MORAHAN: The
report is accepted.
Senator Velella.
SENATOR VELELLA: Mr. President,
may we have the controversial reading of the
calendar at this time.
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ACTING PRESIDENT MORAHAN: The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
10, by Senator Padavan
ACTING PRESIDENT MORAHAN: Can we
have a little order in the house, please.
THE SECRETARY: Calendar Number
10, by Senator Padavan, Senate Print 2711, an
act to amend the Penal Law, in relation to
making citizenship document fraud.
SENATOR DOLLINGER: Explanation,
please.
ACTING PRESIDENT MORAHAN:
Senator Padavan, an explanation has been
requested.
SENATOR PADAVAN: This proposal,
Mr. President, would amend the Penal Law in
relation to making citizenship document fraud
in the first degree and second degree Class D
and E felonies, respectively.
There is a problem of individuals
having access to false documents -- birth
certificates, driver's licenses, Social
Security cards, and the like -- and having
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access to many, many venues, not the least of
which is social services, and certainly in
many, many other areas.
This bill has been before us
before, we have discussed it, and thanks to
the members it passed last year 54 to 1.
ACTING PRESIDENT MORAHAN: Thank
you, Senator.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 39. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MORAHAN: The
bill is passed.
THE SECRETARY: Calendar Number
11, by Senator Leibell, Senate Print 3236, an
act to amend the Penal Law, in relation to
unlawful defilement of a water supply.
SENATOR DUANE: Explanation,
please.
235
ACTING PRESIDENT MORAHAN:
Senator Leibell, an explanation has been
requested.
SENATOR LEIBELL: Thank you, Mr.
President.
There has been, understandably, a
great deal of discussion since the tragic
events of September 11th on ways in which we
can make our society more secure, make the
people of this state feel safe, and protect
the assets of this state.
The legislation which is before
this house today is an attempt to do that, and
in particular to address the need to protect
our critical water supply.
I would note that this is not new
to this house. Originally this was part of
legislation I introduced in 1997 which was
entitled the "Terrorism Prevention Act." This
piece of that bill, addressing the water
safety issue, was subsequently split off from
the main bill, reintroduced, and in 1999 it
was voted on here and passed, as well as in
the year 2000 and 2001. It was not acted upon
by the other house.
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What this attempts to do, this
legislation, is to define a defiling agent as
any chemical, biological, or radioactive agent
or substance capable, when introduced or
placed into a water supply, of causing the
sickness, physical injury, severe
disfigurement or death of a human being, or
causing irreparable harm to such water supply
or causing a disturbance to the public peace.
Presently there is currently no
crime which addresses the unlawful defilement
of a water supply. Although other criminal
conduct may cover such actions, such as
criminal tampering, there is no direct
criminal sanction for an activity that can
cause such severe potential harm.
Because of the natural conditions
and quantities consumed, water supplies are
often publicly exposed and readily accessible
to those who might wish to cause mass harm.
This establishes a new Class B felony which
would appropriately punish the poisoning or
adulteration of our water supply and sends a
strong message that we will take whatever
strong measures are necessary to protect our
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citizens and their vital needs.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
SENATOR DUANE: Through you, if
the sponsor would yield, please.
THE PRESIDENT: Senator Leibell,
do you yield?
SENATOR LEIBELL: Yes.
THE PRESIDENT: He does. You may
proceed, Senator Duane, with a question.
SENATOR DUANE: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
SENATOR DUANE: Could the sponsor
tell me -- or tell us, I should say, what
happens now if someone were to pour cyanide
into a reservoir?
SENATOR LEIBELL: There would be
no similar statute that would cover this.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Senator, will you
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yield for an additional question?
SENATOR LEIBELL: Yes, I will.
THE PRESIDENT: You may ask a
question, Senator Duane.
SENATOR DUANE: Thank you, Madam
President.
Does that mean that under present
law if a person poured cyanide into a
reservoir they would get off scot-free?
SENATOR LEIBELL: No. No, it
doesn't mean that, Senator. There certainly
would be some other regulation or statute that
could apply, such as criminal tampering.
But there's not something that is
directed towards the water supply, and nothing
that would give a Class B felony sanction.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR LEIBELL: Yes.
THE PRESIDENT: He does. You may
proceed, Senator Duane, with a question.
SENATOR DUANE: What would the
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additional penalty be for someone who pours
cyanide into a reservoir under the proposed
law?
SENATOR LEIBELL: I'm going to
ask you to restate that. I couldn't hear you.
SENATOR DUANE: Through you,
Madam President, what would be the additional
penalty for someone who performed that act
under the proposed legislation?
SENATOR LEIBELL: I can't say
what it would be in addition to, because I
don't know what other statute you would wish
to apply if this occurred.
But under this statute, it would be
the sentencing appropriate for a Class B
felony, which I believe is 8 1/3 to 25 years.
SENATOR DUANE: Through you,
Madam President, I'm just -- I'm a little
confused. Under tampering
THE PRESIDENT: Excuse me,
Senator Duane.
Senator Skelos.
SENATOR SKELOS: Thank you, Madam
President. If you would excuse the
interruption, there will be an immediate
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meeting of the Crime Victims, Crime and
Corrections Committee in the Majority
Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Crime Victims, Crime
and Corrections Committee in the Majority
Conference Room.
Again, excuse me, Senator Duane.
SENATOR DUANE: Madam President,
just a point of order. If we could just delay
that committee meeting, because I'm the ranker
on it and I'm actually involved in this
discussion here on the floor.
THE PRESIDENT: Senator Skelos,
do you have an objection to delaying the
committee meeting until Senator Duane
finishes?
SENATOR SKELOS: What we'll do is
we'll then call, instead, the Corporations,
Authorities and Commissions Committee meeting
in the Majority Conference Room.
THE PRESIDENT: Instead of the
Crime Victims, Crime and Corrections
Committee, the Corporations, Authorities and
Commissions Committee will meet now in the
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Majority Conference Room.
Ready, Senator Duane?
SENATOR DUANE: Yes, thank you,
Madam President.
THE PRESIDENT: You may proceed
with your question.
SENATOR DUANE: Under the
tampering laws that are on the books now, what
is the penalty for when you're convicted, when
a person is convicted of tampering? Is it a
felony? What degree is it?
SENATOR LEIBELL: It's a Class D
felony, with a possible sentence of 2 to 7.
SENATOR DUANE: Through you,
Madam President, just a clarification.
And this bill, this legislation
also makes the poisoning the water a Class B
felony?
SENATOR LEIBELL: B, a Class B
felony.
SENATOR DUANE: So through you,
Madam President, under present law someone
could be convicted of a Class B felony, as it
is, and under the proposed law a person could
be convicted of a Class B felony?
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SENATOR LEIBELL: It's a Class D
felony.
SENATOR DUANE: Class E?
SENATOR LEIBELL: D.
SENATOR DUANE: D.
SENATOR LEIBELL: As in "Duane."
SENATOR DUANE: Then through you,
Madam President, just because I want to make
sure I know what I'm voting on
THE PRESIDENT: Senator Leibell,
do you yield for an additional question?
SENATOR LEIBELL: Yes, I do.
THE PRESIDENT: You may proceed,
Senator Duane, with a question.
SENATOR DUANE: So under present
law if someone defiled, you know, the entire
New York City water supply, under present law
someone would only get 2 to 5?
SENATOR LEIBELL: Two to 7.
SENATOR DUANE: Two to 7? Is
that -- I'm asking
THE PRESIDENT: I believe he
answered 2 to 7.
SENATOR LEIBELL: Yes, it's a 2
to 7. That's what they would be found guilty
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of.
SENATOR DUANE: Wow.
THE PRESIDENT: Senator Duane, do
you have an additional question?
SENATOR DUANE: No, thank you,
Madam President.
THE PRESIDENT: Thank you.
Does any other member wish to be
heard on this bill?
(No response.)
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 PRESIDENT: Senator Balboni,
to explain your vote.
SENATOR BALBONI: Yes, Madam
President.
This bill is something that Senator
Leibell has brought to our attention and is a
part of an ongoing effort to realize the
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vulnerabilities of the existing infrastructure
in this state. It is something that we take
for granted, particularly those people who
live in the City of New York.
The vulnerability of the watershed,
the vulnerability of the water distribution
systems have been subject to some criticism
over the last couple of years. This is one of
the first steps we have to take.
A B felony as a penalty for anyone
who would try to defile water systems is based
primarily on intent, as opposed to result,
which is very important when you start getting
into things like biological or chemical agents
that can vary in terms of their toxicity.
This is a good first step.
Hopefully we'll be doing more as we progress,
perhaps even later next week in terms of the
weapons of mass destruction legislation.
I support the legislation, Madam
President. Thank you.
THE PRESIDENT: Senator Balboni,
you will be recorded as voting in the
affirmative on this bill.
Senator Duane, to explain your
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vote.
SENATOR DUANE: Thank you, Madam
President.
I just for the record want my
colleagues to know that I have written to the
home defense -- minister? Chair? Home
defense -- Homeland Security Chief Tom Ridge,
asking him to pay special attention our
New York City water supply.
And I think that this is -- again,
I can't imagine that someone that would defile
the New York City water supply would only get
2 to 7. Maybe that's true under state law.
But again, I think the federal government
would probably take jurisdiction over this. I
mean, maybe they would say: You know what,
we're so busy, New York, why don't you take
this case? But really, I think that the
federal government would take care of it.
And I don't understand -- based on
the other bill that we passed here after the
September 11th attack, it would seem to me
that this whole area of law would be covered
there as well.
I'm going to vote in favor of it,
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but I'm not convinced that it's a very
necessary bill.
Thank you, Madam President.
THE PRESIDENT: Senator Duane,
you will be so recorded as voting in the
affirmative on this bill.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 48.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
31, by Senator Volker, Senate Print 6040, an
act to amend the Tax Law, in relation to the
imposition of sales and compensating use taxes
by the County of Erie.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, may we have an explanation on this
bill.
THE PRESIDENT: Senator Volker,
an explanation has been requested by Senator
Paterson.
Senator Breslin.
SENATOR BRESLIN: I'm wondering
247
if Senator Paterson would yield so I might
ask
SENATOR PATERSON: Certainly.
THE PRESIDENT: Senator Paterson
yields.
Senator Breslin, you may proceed.
SENATOR BRESLIN: Through you,
Madam President, is there a home rule with
this bill?
SENATOR VOLKER: Yes, Senator,
there is. Although legally, as you know, the
Senate rules -- as a matter of our own
internal rules, we require that any sales tax
bill have a home rule. This one has a home
rule.
In fact, it had two of them,
because they were so excited they did it a day
before we actually introduced the bill. And
then we said, All right, calm down, just wait
till we get it -- and then we got another one.
So we have two of them on this one. So we got
them.
SENATOR BRESLIN: That satisfies
me, and I will -- I intend to vote on this
bill
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SENATOR VOLKER: Madam President,
if I might just say something.
THE PRESIDENT: Senator Volker,
on the bill.
SENATOR VOLKER: Senator Brown, I
think, is going to be back in just a minute.
He would like to make a statement on this
bill.
But let me just say that this is
the Erie County sales tax bill, which we have
passed as a temporary bill for something on
the area of 17 years. I have asked the county
legislature on several occasions if it might
not be a bad idea to permanentize this.
But for various reasons -- and I
just want to point out something, that I
will -- what we do here when we do sales tax
bills and enabling bills, these are not our
taxes. That is, we just enable the County of
Erie, for instance, or whatever county it is
to put the sales tax on. If they choose not
to, they don't have to.
Of course, the problem with this is
that the budget is already in place with the
tax money in it, so it's not likely that
249
they're going to do that.
But the point, I think, is that we
do not enact these taxes; all we do is enable
the various counties, which includes Monroe or
whoever that we do, to enact this tax if they
so desire.
The other thing that -- and Senator
Brown was going to speak a little bit about
the City of Buffalo. I would also point out
that if the County of Erie were to choose to
divide the tax something -- some way
differently, they could do that, irrespective
of what we do. And I only point that out here
because it's really not our responsibility to
make those kinds of decisions as to where the
proceeds of the bill goes.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
(No response.)
THE PRESIDENT: Then the debate
is closed.
Read the last section.
SENATOR VOLKER: Madam President.
THE PRESIDENT: Senator Volker.
SENATOR VOLKER: Could we just
250
hold this open for just a minute? Senator
Brown is supposed to be here.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President. I was going to make the same
suggestion.
Senator Brown is actually in a
meeting right now. And as soon as he gets
out, he'll be here.
Madam President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: To accommodate
the rest of the members, why don't we just
vote on the bill right now. And perhaps we'll
give Senator Brown a chance to make a comment
when he gets here.
THE PRESIDENT: The debate is
closed.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 31 are
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Senators Dollinger, Gentile, and Morahan.
Ayes, 46. Nays, 3.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Crime Victims, Crime and Corrections Committee
in the Majority Conference Room.
THE PRESIDENT: There will now be
a meeting of the Crime Victims, Crime and
Corrections Committee in the Majority
Conference Room.
Senator Maziarz.
SENATOR MAZIARZ: Thank you,
Madam President. I would like unanimous
consent to be recorded in the negative on
Calendar Number 15, Senate Bill 5849.
THE PRESIDENT: You will be so
recorded, hearing no objection, as voting in
the negative on that bill, Senator Maziarz.
SENATOR MAZIARZ: Thank you.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
if we could return to standing committees.
252
If we could at this time take up
Senate 6094, by Senator Maltese.
THE PRESIDENT: Reports of
standing committees.
The Secretary will read.
THE SECRETARY: Calendar Number
51, by Senator Maltese, Senate Print 6094, an
act to authorize certain voters in military
service.
SENATOR DOLLINGER: Explanation,
please.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
is there a message of necessity at the desk?
THE PRESIDENT: Yes, there is,
Senator.
SENATOR SKELOS: Move to accept
the message.
THE PRESIDENT: All in favor of
accepting the message of necessity please say
aye.
(Response of "Aye.")
THE PRESIDENT: Opposed?
(No response.)
THE PRESIDENT: The message is
253
accepted.
Senator Maltese, Senator Dollinger
has asked for an explanation.
SENATOR MALTESE: Thank you,
Madam President.
This bill would authorize certain
voters in military service to vote in the
special election of February 12th. As we all
know, there will be elections in various areas
of the state on February 12th. This would
authorize and provide for members in the
military service to vote in that special
election by absentee ballot.
Due to the horrific events of
September 11th, many New Yorkers have been
called into active military service or may
very well be in the process of being called or
may be called prior to Election Day of
February 12th. This bill would essentially
provide the same benefits that our prior
legislation provided for the November
election, enabling military voters to vote in
the election.
And it would provide that they
could apply for the ballots by telephone. And
254
it further authorizes the use of facsimiles so
that they could vote -- obtain the ballot,
obtain the application essentially in the same
mail, put them in the mail and get them to the
election board.
It also waives the seven-day
requirements and continues the condition that
the voter, the prospective voter can, on the
outside of the envelope, provide for the fact
that many of our military ballots were not
postmarked prior to Election Day or prior to
the day provided by law, and as a result the
requirement for a valid postmark -- because
many of the ballots are from APOs or fleet
post offices -- provide that as long as a
witness signs the outside of the envelope that
it was in fact mailed prior to Election Day,
it would be valid.
And it further provides, as in
existing law, the law that we passed for the
last election, which is still in effect until
December 31st, that the statement can be
inside the envelope with the actual absentee
ballot.
THE PRESIDENT: Does any other
255
member wish to be heard on this bill?
Senator Dollinger.
SENATOR DOLLINGER: Through you,
Madam President, will the sponsor yield to a
question?
SENATOR MALTESE: Yes.
THE PRESIDENT: Yes, he will
yield. You may proceed, Senator Dollinger.
SENATOR DOLLINGER: Senator
Maltese, could you just explain to me how the
facsimile transmission of the ballot will
work?
SENATOR MALTESE: Madam
President, my understanding is that the voter
now, the military voter, can call the board of
elections. The board of elections at that
point in time can obtain a fax number from the
prospective voter and fax both the application
and the ballot to the military voter.
The military voter then must mail
in the actual ballot and application to the
board.
SENATOR DOLLINGER: Through you,
Madam President, if Senator Maltese will yield
to another question.
256
THE PRESIDENT: Senator, do you
yield?
SENATOR MALTESE: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Does the
statute currently, or anything in this law,
require that the military voter fill out the
fax copy, or does it allow the fax to be
copied by the voter and then them to utilize a
copy of the ballot?
Generally I think the rule in
New York is we don't allow people to use
copies of ballots. We send them an absentee
ballot, and they fill out that big ballot with
all those checks, with all the official
notices on it.
I'm interested in finding out if
you fax a ballot to someone, do they have to
fill out the facsimile, which as you know
comes on a -- usually on a piece of paper, or
can they make a copy of that? Is there any
way to authenticate the ballot as to what it
was used for?
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SENATOR MALTESE: Madam
President, my understanding would be once they
have a fax, there's no way of differentiating
between a fax and a Xerox. I think either one
can be used.
The fact of the matter is that
what's received by the board would be the
properly filled out, authenticated, with a
statement that it was mailed prior to Election
Day, and that would be, in all -- except for
the fact that it wasn't the actual ballot and
application from the board, it in all other
respects would be exactly the same as the
filled-out ballot and application.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will continue
to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MALTESE: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR DOLLINGER: Just so I
understand the process, Senator Maltese, how
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does the board of elections know that the
person who is applying by telephone, how do
they know that they're in the military or they
have a reasonable belief that they will be
subject to military service at the time of the
election?
How do they verify that
information? Is it simply upon signing a
verified statement by the voter themselves?
SENATOR MALTESE: Madam
President, that's the fact. It would be a
perusal by the receiving board that the ballot
and application is in proper order.
The statement from the military
person would have the affidavit that the
person is either in military service or is in
a position where they would be able to use and
utilize the absentee ballot as a person in
military service.
SENATOR DOLLINGER: Through you,
Madam President, if Senator Maltese will yield
to one more question.
THE PRESIDENT: Senator, do you
yield?
SENATOR MALTESE: Yes, Madam
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President.
THE PRESIDENT: He does. You may
proceed, Senator Dollinger.
SENATOR DOLLINGER: Senator, why
not make this proposal, which seems to have
passed the Senate previously, why not make it
permanent?
Why is it just that we're creating,
in essence, an unconsolidated law that gives
the board of elections this direction and then
what in essence we're doing is we're
suspending the provisions of several portions
of the Election Law just for this election?
Why not make this a permanent
change in New York law if it has what appears
to be the wisdom of some experience and also
the wisdom of the Senate that this is the
right way to handle it?
SENATOR MALTESE: Madam
President, as a matter of fact, together with
my Assembly counterpart, David Sidikman, we
are indeed considering that very matter, based
on the experience of the November election
just past and probably taking into
consideration any problems that develop.
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Also, I am advised that the federal
government is also contemplating federal
legislation.
But I believe our legislation will
be pretty much along the same lines as this
bill, because as a practical matter the
November election didn't produce any of the
problems that had been foreseen and, by and
large, despite a horrific state of emergency
and circumstances where many people were in
doubt or in transit, at the same time the
system worked very well.
So we will, in fact, be considering
a permanent change to the Election Law to do
this very thing.
SENATOR DOLLINGER: Through you,
Madam President, just one other question to
Senator Maltese, if he will.
THE PRESIDENT: Senator, do you
yield for another question?
SENATOR MALTESE: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: This bill
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talks about the board of elections making a
good-faith effort to make these ballots
available. Why is that language necessary?
It would seem to me that the board of
elections is in the business of getting people
to vote.
What's the possible consequence of
including a "good faith" provision in here?
Which I think, Senator Maltese, will be
unenforceable as a practical matter and
doesn't seem to make a lot of sense when, it
seems to me, the whole mission of the board of
elections is to make a good-faith effort so
that everybody votes.
SENATOR MALTESE: Madam
President, the purpose of that was simply to
not mandate it on the part of the board of
elections. We were hopeful that any close
election would not be then put in jeopardy or
have to go to the courts based on a mandate
for the board that, in some cases, a board
might not be able to comply with.
SENATOR DOLLINGER: Through you,
Madam President, if Senator Maltese will
continue to yield.
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THE PRESIDENT: Senator Maltese,
do you yield?
SENATOR MALTESE: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: I'm not sure
that I fully understood the answer to the
question, Senator Maltese.
We're placing a good-faith
requirement that they get these ballots and
these applications and they process them. I
think certainly that doesn't create any
liability on them if they fail to do it.
We're not saying that somehow somebody gets an
extended voting right.
I'm just not sure that I understand
what you're trying to get at when you say
"good-faith efforts to make these ballots and
applications available." What are you
referring to?
SENATOR MALTESE: Madam
President, I'm simply pointing out the
difference between mandating it absolutely in
law and saying that the board of elections
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shall comply immediately or the board of
elections shall, within a certain time period,
get a ballot or an absentee ballot or an
application to the voter.
In this case, all that's required
is a good-faith effort. And it's -- as
Senator Dollinger has correctly pointed out,
it's a matter of interpretation. And I'm sure
that all the boards involved will in fact
comply and as a practical matter have
good-faith efforts to comply.
SENATOR DOLLINGER: Through you,
Madam President, just briefly on the bill.
THE PRESIDENT: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I appreciate
Senator Maltese bringing this bill to
accommodate additional voters before the
February 12th special election. I think it
should be made permanent.
But, Senator Maltese, I would just
tell you that your reluctance to require the
boards of elections to do this -- and when you
use the language, as you properly point out,
"shall be authorized to transmit," if we think
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it's a good idea, why not just tell them to do
that anyway? Why not just authorize -- not
only just authorize them, but mandate that
they can use this procedure?
It seems to me, Senator Maltese,
that the danger you may run into -- which I
think the United States Supreme Court, in the
famous case involving a couple of gentlemen
running for president, once said that there's
a statewide standard for due process.
And I would suggest, Senator
Maltese, that if this is done in New York City
at some point, or done in one of the counties
in New York but not all of them, that the
access to the ballot may be different and we
may run into a due process problem of
inconsistent approaches to elections inside
the city of New York or, frankly, inside the
state of New York if some boards of elections
are transmitting this by facsimile and
therefore meeting that goal of getting lots of
people to vote by military ballot but other
boards of elections are not.
You may run into an inconsistency
in the way the boards of elections deal with
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military ballots that could, frankly, create a
due process problem in the state's governance
of its elections.
I would suggest, Senator Maltese,
that if we think it's a good idea, both with
respect to military ballots and others, we
ought to tell them what to do and require them
to do it, and not simply authorize them to do
it but force them to do it.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
SENATOR CONNOR: In general, the
concept of this is something that I support.
I think the drafting of this is abominable.
For example, in two jurisdictions
that I know about, Monroe County and Rockland
County, absentee ballots -- and there may be
others; I know Westchester perhaps, I think
absentee ballots are -- and not by a
technology I would endorse. In fact, one that
I was quite against when we had the Voting
Machine Commission back in 1985, I suppose it
was, and we reported against it, thankfully.
266
That's the punch-card system.
Now, I don't understand how any
jurisdiction that opted for the punch-card
system could possibly fax the punch-card
ballot to the military person and have them
properly mark it. Remember those chads? You
have to punch them out and then send it in.
It wouldn't fit in the system. You
need -- the card has to be sized, it has to be
read by the machine. The little chads have to
be lined up to the reader.
Secondly, more importantly and more
relevant, more relevant to February 12th, is I
don't know how -- and New York City now has
been using a mark-sense absentee ballot,
machine-read. It's a paper ballot fed into a
machine, and it reads the results.
How can you fax that? That ballot
must be absolutely specified. The absolute
specifications of the size of that ballot and
each candidate or question on it must be
calibrated very carefully so when you put it
through the mark-sense reader, it reads it.
If you fax it, and the fax will
shrink it, of course, and then it comes back
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shrunk -- it could read a vote for Gore is a
vote for Bush, or a vote for whomever is the
opposite. Or, Madam President, most likely it
will just reject the ballot.
So why are we setting up a system
where on February 12th our military, who are
off defending this country, are going to think
they're sending in ballots to New York City
that the machine will void because it won't be
the mark-sense ballot?
No one can send a perfectly
calibrated mark-sense ballot by fax. You
can't do it. My colleagues, how many times do
you get faxes and you think, Why is it so
small? And your office personnel say: Well,
you know, the fax machine shrinks it. It
makes it come out the size of the fax that's
receiving it.
This can't be done. This is
this is a wonderful concept. This bill
doesn't do it. These ballots won't count.
And, you know, do we need to fax
the application? That's a good idea. That's
a good idea because you can use any form of an
application that complies with the statute.
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You don't need the board's form.
Indeed, both the State Board of
Elections and the New York City Board of
Elections allow you to download off the
Internet the application. Anybody can go in
their computer, get on the Internet, download
the application, fill it out and send it in.
I would even be in favor of letting
a military person do that and fax in the
completed application to get the return
ballot.
I think we ought to mandate the
boards of elections use overnight express mail
to get the ballots out.
But I think when you're saying
they're going to fax them, you're just setting
up a situation that can't work. You're going
to deprive these people of their franchise.
You're going to deprive them of their
franchise. You're going to create the
opposite, opposite situation.
The other problem I have, Madam
President, is this bill does not apply -- this
bill does not apply to spouses or family
members accompanying military personnel, who
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under our law are entitled to a ballot. It
says the military voter, the person in
military service or who in good faith expects
to be in military service.
Madam President, I think the family
members accompanying a military person who's
been assigned elsewhere ought to be covered
under this. Why do we want to deny them from
this opportunity to vote in these elections?
I don't understand what the drafters could
have been thinking.
Finally, Madam President, there's a
section in this bill that appears to apply to
all voters. The final section just says "a
voter."
In fact, I'd like to read the final
section: "For the February 12, 2002, special
election, a voter may comply with the optional
requirement that a witness date and sign the
envelope," as provided in the amendments we
did earlier -- and, by the way, those
amendments were limited to military voters.
This doesn't appear to be -- "by enclosing in
the outer envelope accompanying the ballot a
statement that is signed and dated by the
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witness that the ballot was mailed not later
than the day before the election."
Madam President, if the intention
of this is to let any voter, any absentee
voter have their ballot count, notwithstanding
a postmark that indicates it was mailed
late -- it could have been mailed late in New
York City, in New York State -- based on a
statement inside signed by their friend that
says, oh, this was mailed on time.
I have no objection to this
applying to military voters. But the language
of this bill seems to be an attempt to
allow -- and there could be, Madam President,
some very close special elections. We've seen
them before. We've certainly seen them before
in one of the Senate districts that's at
stake.
I shudder to think that we're
allowing people the opportunity to slip in
late absentee ballots after they see what the
preliminary results are when the polls close.
Military voter, that's a different
case. Somebody mailing an absentee ballot
from Albany to New York City that has a
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postmark of February 13th, but to suggest, as
this does -- because it just says "a voter,"
it doesn't say "a military voter" -- to
suggest that vote be counted, that vote cast
in Albany, mailed in Albany on the 13th be
counted in New York City in a February 12th
election because inside is a statement from a
witness that, oh, this was mailed on the
11th -- Madam President, I don't think we want
to go that far. I really hope we don't want
to go that far.
If we go that far, let's have a
week of mailed balloting for everybody.
Oregon does it. I don't recommend it; there's
a lot of problems with it. But I don't think
we want to go that far. And I suggest the
drafters clarify this.
The other problem is, my colleagues
from upstate, I urge you to consider what your
absentee ballots look like. This bill assumes
the two-envelope system that many and most of
our jurisdictions use, that New York City
uses. But a lot of upstate counties don't use
a two-envelope system.
It assumes it when it says the
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statement can be mailed in the outer mailing
envelope. It assumes it when it says the
application can be returned in an outer
mailing envelope.
There are some counties in upstate
New York that only use a single-envelope
absentee ballot system. How this bill -- will
it void the ballots there?
I mean -- Madam President, I
suggest the Majority find a drafter that
understands how the Election Law is actually
applied in all the counties of New York
State -- upstate, not just New York City
and write a bill that meets the needs of
military voters and their accompanying family
members that I could proudly support because I
know it won't disenfranchise people, the
people it's designed to help.
THE PRESIDENT: Senator Morahan.
SENATOR MORAHAN: Thank you,
Madam President.
Just to clarify a small point,
Rockland County was mentioned. But Rockland
County has informed me that they have
converted from the punch to optical scan. And
273
I just wanted to mention that, inasmuch as my
daughter is the commissioner of elections.
Thank you.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Madam President,
I thank the Senator for that.
And I applaud Rockland County,
because I think we've all seen punch-card
ballots aren't good.
But, Madam President, my remarks
apply to optiscan ballots. You can't fax an
optiscan ballot. The fax process will reduce
it, and you will get back a ballot that is not
calibrated. When fed into the machine, it
will either read an erroneous result or it
will reject the ballot.
So it's good that Rockland got rid
of those, but Rockland is not home free if
this bill passes.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
(No response.)
THE PRESIDENT: Then the debate
is closed.
Read the last section.
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THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 51 are
Senators Brown, Connor, Dollinger, Duane,
Hassell-Thompson, Hevesi, Montgomery, Onorato,
Oppenheimer, Paterson, Schneiderman,
Stachowski, Stavisky.
Ayes, 42. Nays, 13.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could return to reports of standing
committees, I believe there are some committee
reports at the desk.
THE PRESIDENT: Reports of
standing committees.
The Secretary will read.
THE SECRETARY: Senator Alesi,
from the Committee on Commerce, Economic
275
Development and Small Business, reports:
Senate Print 2190A, by Senator
Alesi, an act to amend the State
Administrative Procedure Act.
Senator Marchi, from the Committee
on Corporations, Authorities and Commissions,
reports:
Senate Print 4004, by Senator
Marchi, an act to amend the Public Authorities
Law;
4067, by Senator Marchi, an act to
amend the Public Authorities Law and the
Environmental Conservation Law;
4146, by Senator Marchi, an act to
amend the Public Authorities Law; and
5260, by Senator Johnson, an act to
amend Chapter 672 of the Laws of 1993.
Senator Nozzolio, from the
Committee on Crime Victims, Crime and
Correction, reports:
Senate Print 5851, by Senator
Skelos, an act to amend the Correction Law.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
276
objection, all bills ordered direct to third
reading.
Senator Brown.
SENATOR BROWN: Thank you, Madam
President.
Madam President, colleagues, I want
to thank you for affording me the opportunity
to speak to Calendar Number 31, Bill Number
S6040, by Senator Volker.
This, as you know, is a bill that
has already passed this house to extend the
additional 1 percent of the sales tax for Erie
County, which I also support.
I just want to mention, though,
that when this additional 1 percent of the
sales tax was initially imposed in 1985, it
was to assist the County of Erie with a
$75 million deficit at that time. That
deficit has long been paid off, and this
additional percentage of sales tax is now an
important part of Erie County's budget. It
accounts for about 9 percent of Erie County's
budget.
And as a former Erie County
government department head, I understand the
277
importance of this additional 1 percent to the
County of Erie. But I want to bring to your
attention that right now the City of Buffalo
is facing some difficult financial
circumstances.
This year, again, the City of
Buffalo is looking at a potential $40 million
deficit. And one of the things that I have
discussed with the Erie County executive is
the potential of sharing just the growth in
the additional 1 percent of the sales tax for
a regional asset fund.
Many of the regional cultural
assets in Erie County are located in the city
of Buffalo -- the Philharmonic Orchestra, the
Buffalo Zoo, the Buffalo Museum of Science,
the baseball stadium, the hockey stadium, and
other facilities that I believe, with the
regional asset fund, could benefit all county
residents.
The county executive of Erie has
committed to looking at this proposal and
other proposals to assist the City of Buffalo
in the difficult fiscal times that Buffalo is
facing right now, and I certainly appreciate
278
that.
Let me also, just in closing, thank
Senator Volker for his tremendous advocacy on
the part of Erie County, including the City of
Buffalo, in the State Legislature. Certainly
all of his efforts are very greatly
appreciated by all of our citizens.
You will be hearing more about the
city's fiscal issues in the coming weeks and
months. And I'm hopeful that when some of
these fiscal concerns of the City of Buffalo
come to your attention, you will understand
the importance of being supportive and trying
to help Buffalo help itself through these
difficult fiscal times.
Thank you, Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Is there any
housekeeping at the desk?
THE PRESIDENT: No, there isn't,
Senator.
SENATOR SKELOS: If you would
recognize Senator Montgomery.
THE PRESIDENT: Senator
Montgomery.
279
SENATOR MONTGOMERY: Yes, Madam
President. I would respectfully request
unanimous consent to be recorded in the
negative on Calendar 14.
THE PRESIDENT: Without
objection, you will be so recorded as voting
in the negative on Calendar 14, Senator.
SENATOR SKELOS: I believe that
bill was laid aside for the day.
THE PRESIDENT: Senator, that
bill was laid aside for the day. So we will
withdraw your vote, for the record.
SENATOR MONTGOMERY: Thank you.
THE PRESIDENT: Senator
Fuschillo.
SENATOR FUSCHILLO: May I have
unanimous consent to be recorded in the
negative on Calendar Number 31.
THE PRESIDENT: Yes, Senator, you
will be so recorded as voting in the negative.
Senator Skelos.
SENATOR SKELOS: Madam President,
there being no further business, I move we
adjourn until Monday, January 28th, at
3:00 p.m., intervening days being legislative
280
days.
THE PRESIDENT: The Senate hereby
stands adjourned until Monday, January 28th,
at 3:00 p.m., intervening days being
legislative days.
(Whereupon, at 12:03 p.m., the
Senate adjourned.)