Regular Session - February 4, 2002
434
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
February 4, 2002
3:50 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: We are privileged
once again to have with us the Reverend Peter
G. Young, from Blessed Sacrament Church in
Bolton Landing, New York.
REVEREND YOUNG: Let us pray.
It's not always easy to be gentle.
And in the political world, we're taught to be
tough, competitive, and assertive. But there
are times when we need and like to be soothed
and treated gently. We treat packages with
gentleness when they are labeled "Fragile;
Handle with Care."
So we ask You, our compassionate
God, to give us the sensitivity and courage to
be gentle with other people, to help us to
hear the anguish and the hurt in other people
that attempt to approach our offices, and
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treat them with kindly care.
We ask You this now and forever.
Amen.
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Sunday, February 3, the Senate met pursuant to
adjournment. The Journal of Saturday,
February 2, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Governor.
Messages from the Assembly.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Wright,
from the Committee on Energy and
Telecommunications, reports:
Senate Print 482, by Senator Alesi,
an act to amend the General Obligations Law;
3931, by Senator Wright, an act to
amend the Executive Law and others;
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4029, by Senator Wright, an act to
amend the Public Service Law; and
4069, by Senator Wright, an act to
amend the State Technology Law.
Senator Volker, from the Committee
on Codes, reports:
Senate Print 100, by Senator
Marcellino, an act to amend the Penal Law;
123, by Senator Skelos, an act to
amend the Penal Law;
126, by Senator Skelos, an act to
amend the Civil Practice Law and Rules;
209, by Senator Volker, an act to
amend the Penal Law;
388, by Senator Skelos, an act to
amend the Penal Law;
430, by Senator DeFrancisco, an act
to amend the Criminal Procedure Law;
435, by Senator DeFrancisco, an act
to amend the Criminal Procedure Law;
854, by Senator Balboni, an act to
amend the Penal Law;
2015, by Senator Lack, an act to
amend the Penal Law;
2592, by Senator Trunzo, an act to
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amend the Criminal Procedure Law;
3094, by Senator Bruno, an act to
amend the Penal Law and the Highway Law;
3781, by Senator Volker, an act to
amend the Civil Rights Law; and
5640, by Senator Skelos, an act to
amend the Criminal Procedure Law.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
objection, all bills reported direct to third
reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: If you could
recognize Senator Fuschillo.
THE PRESIDENT: Senator
Fuschillo.
SENATOR FUSCHILLO: Thank you,
Madam President.
On behalf of Senator Velella, on
page number 12, I offer the following
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amendments to Calendar Number 108, Senate
Print Number 67, and ask that said bill retain
its place on Third Reading Calendar.
THE PRESIDENT: Amendments
received, Senator, and the bill will retain
its place on the Third Reading Calendar.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, on behalf of Senator Alesi, on
page number 11 I offer the following
amendments to Calendar Number 99, Senate Print
Number 2218A, and ask that said bill retain
its place on Third Reading Calendar.
THE PRESIDENT: Amendments
received, and the bill will retain its place
on the Third Reading Calendar.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, on behalf of Senator Volker, on
page number 5 I offer the following amendments
to Calendar Number 21, Senate Print Number
1094, and ask that said bill retain its place
on Third Reading Calendar.
THE PRESIDENT: Amendments
received. The bill will retain its place on
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the Third Reading Calendar.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, on behalf of Senator Volker, on
page number 4 I offer the following amendments
to Calendar Number 13, Senate Print Number
5793, and ask that said bill retain its place
on Third Reading Calendar.
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
Senator Nozzolio.
SENATOR NOZZOLIO: Yes, Madam
President. I have a privileged resolution at
the desk. I ask that it be read in its
entirety.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Nozzolio, Legislative Resolution Number 3940,
congratulating the Webster High School
Football Team and Coach Anthony Bianchi upon
the occasion of capturing the New York State
Class AA Championship.
"WHEREAS, Excellence and success in
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competitive sports can be achieved only
through strenuous practice, team play and team
spirit, nurtured by dedicated coaching and
strategic planning; and
"WHEREAS, Athletic competition
enhances the moral and physical development of
the young people of this state, preparing them
for the future by instilling in them the value
of teamwork, encouraging a standard of healthy
living, imparting a desire for success, and
developing a sense of fair play and
competition; and
"WHEREAS, The Webster High School
Football Team are the New York State Class AA
champions.
"The Webster Warriors captured the
championship by defeating North Rockland by a
score of 32 to 14 on December 2, 2001, at the
Carrier Dome, Syracuse, New York.
"This is the second time in three
years the Warriors won the Class AA state
title. They also won in 1999. And
"WHEREAS, The New York State Public
High School Athletic Association 2001
Championship Game Awards for Class AA include:
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Jeff Krieger, Most Valuable Player; Corey
Hamel, Most Valuable Defensive Lineman; Chris
Beh, Most Valuable Defensive Back; and Carl
Garritano, Most Valuable Offensive Back; and
"WHEREAS, The athletic talent
displayed by this team is due in part to the
great efforts of Coach Anthony Bianchi, a
skilled and inspirational tutor respected for
his ability to develop potential into
excellence.
"The team's overall record is
outstanding, and the team members were loyally
and enthusiastically supported by family,
fans, friends, and the community at large; and
"WHEREAS, the hallmarks of the
Webster High School Football Team, from the
opening game of the season to participation in
the championship, were a brotherhood of
athletic ability, of good sportsmanship, of
honor and of scholarship, demonstrating that
these team players are second to none; and
"WHEREAS, Athletically and
academically, the team members have proven
themselves to be an unbeatable combination of
talents reflecting favorably on their school.
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"Coach Anthony Bianchi has done a
superb job in guiding, molding, and inspiring
the team members toward their goals; and
"WHEREAS, Sports competition
instills the values of teamwork, pride and
accomplishment, and Coach Anthony Bianchi and
46 outstanding athletes have clearly made a
contribution to the spirit of excellence which
is a tradition of their school; now,
therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to
congratulate the Webster High School Football
Team; its members -- David Greenfield, Will
Dalton, Justin Costanza, Matt Schlegel, Andy
Coffaro, Dave Serinis, Jeff Krieger, Ryan
Chase, Mike Kaplun, Mike Mahoney, Thomas
Moore, Dave Dodge, Lee Williams, Mike
Stenclik, Carl Garritano, Mitch Pawluk, Rob
Meyers, Steve Caezza, Mike MacMahon, Joe
Nacca, Jim Mikolajko, Travis Anderson, Corey
Hamel, Chris Beh, Craig Avalone, Jimmy
Johnson, Rich Franco, Rob Herman, Melood
Abugasea, Mike Yokopovich, Chris Massaro,
Gerald Weissinger, Dave Burgess, Mark Steele,
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Eben Blanchard, Jeff Bowen, Justin Schifano,
Russ Carona, Dave Horning, Jeff Bucciarelli,
Evan McConnell, Chris McClurg, Brandon Mack,
Chris Chavoustie, Tony Pagen, Shea
D'Ambrosio -- and Coach Anthony Bianchi on
their outstanding season and overall team
record; and be it further
"RESOLVED, That copies of this
Resolution, suitably engrossed, be transmitted
to the Webster High School Football Team and
to Coach Anthony Bianchi."
THE PRESIDENT: Senator Nozzolio.
SENATOR NOZZOLIO: Madam
President, on the resolution.
It is with great pride that I stand
before this body endorsing this resolution
recognizing the accomplishments of not only
great athletes but great citizens of this
state.
Seated with us in the gallery today
are members of the faculty, administration,
coaching staff, and the team of the Webster
Warriors that put together such a remarkable
record, as distinguished and chronicled by
this resolution.
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Madam President and my colleagues,
I'd also like to recognize the principal of
Webster High School, Joe Pustulka; Head Coach
Anthony Bianchi and all the coaching staff; as
well as the number-one fan of the Webster
Warriors, and their chaperone, Donna Rickard,
who's here today.
This group of individuals is a
culmination -- as we debate in this chamber,
time and time again, education policy and what
we need to do to make our schools better,
frankly, the young men of Webster have taken
the lessons that we are trying to instill in
young people all across this state to heart.
They are genuine champions. I
cannot say enough about their poise, their
grace under pressure. They know what it's
like to pull together, to come from behind.
They are true winners in every sense of the
word. Their coaches are truly inspirational
and influential teachers of character. And
there's no better coach of character and
molder of young men than Coach Bianchi.
These fine gentlemen are, in the
true sense, gentlemen. They're being
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recognized here because of their athletic
successes. But they are going to be successes
in every endeavor that they choose to
participate in.
It's a great honor to represent the
Webster community, which is very proud of
these fine young men. And congratulations for
now the second state championship in three
years.
They are true champions, Madam
President, and I thank you for acknowledgment
of this resolution.
THE PRESIDENT: Senator Morahan.
SENATOR MORAHAN: Yes, thank you,
Madam President.
These young champions, to become
champions, they beat another very great team,
and that's a team from North Rockland, in my
senatorial district.
And as matter of record, Senator
Nozzolio and myself had a little side bet on
you guys. And I think I owe him a bushel of
apples about now.
But I want to tell you a little bit
about the caliber of these young champions.
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Because the team they beat has had a
tremendous record under a tremendous coach for
year after year after year of taking
championships. It really is a first-class
team that they defeated. And I believe both
teams are champions, in my book.
But I congratulate the winners on
their great accomplishment in beating North
Rockland High School.
Thank you.
THE PRESIDENT: Senator Alesi.
SENATOR ALESI: Thank you, Madam
President.
I rise not only to support this
resolution with my vote and to welcome the
team, the coach, the faculty, but also to say
that if Senator Morahan had had the foresight
to bet me a bushel of apples, he'd now be
paying two bushels of apples.
This team is an outstanding
representation of people living in Monroe
County, and especially the east side,
including the Penfield area as well, where
some of our residents actually go to Webster
schools.
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We all know that in order to be
great athletes and be here today that academic
achievement is one of the prerequisites for
being on the team. And that combined
excellence factor is what we're looking at
here today.
So in congratulating this team,
welcoming them here to the Senate, I would
also like to say, as we look up to you today,
that we know as we go into the future that you
will be the young adults we will be looking up
to as time goes on. I have no doubt that you
will take your champion attributes into life
as you go forward.
I wish you the best of luck. Thank
you for joining us.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President.
I don't represent the Webster
community. I know Senator Nozzolio does. And
I don't even represent much of the east side
of this county. But I do have to remark that
the Webster High School football team has
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raised a bar for Section 5. You have set a
new standard for every school in our county.
I represent most of the city of
Rochester, two of its suburbs, Brighton and
Greece. But you certainly have created the
new measuring stick by which we will judge not
only scholastic achievement but athletic
achievement in our county and throughout
Section 5.
Those who follow you, the other
schools that will compete with you, will be
looking to your record of achievement when
they think about getting to the very top. So
I congratulate you for raising that bar.
You've done a service to all of us in
Section 5 by making your achievement the new
standard for all those schools to follow.
Thank you.
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
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adopted.
And on behalf of the Senate, I
would like to congratulate you on this
outstanding achievement. Many of the
qualities that went into your winning this
recognition are qualities that will serve you
well in all your endeavors in life.
We're very proud to have you with
us here this afternoon. Best wishes for
continued success.
(Applause.)
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up the noncontroversial
calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
8, by Senator Johnson, Senate Print 1534, an
act to amend the Penal Law, in relation to
criminal use of public records.
SENATOR DUANE: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
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THE SECRETARY: Calendar Number
60, by Senator Marchi, Senate Print 4004, an
act to amend the Public Authorities Law, in
relation to increasing the procurement
contract threshold.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
73, by Senator Volker, Senate Print 205, an
act to amend the Criminal Procedure Law, in
relation to appeals.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
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(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
87, by Senator Trunzo, Senate Print 763, an
act to amend the Vehicle and Traffic Law and
the Public Authorities Law, in relation to
authorizing.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect in 30 days.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
88, by Senator Balboni, Senate Print 860, an
act to amend the Vehicle and Traffic Law, in
relation to aggravated unlicensed operation.
SENATOR PATERSON: Lay it aside,
please.
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ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
91, by Senator Kuhl, Senate Print 4388, an act
to amend the Vehicle and Traffic Law, in
relation to exempting.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
115, by the Senate Committee on Rules, Senate
Print 5630A, an act to amend the Retirement
and Social Security Law, in relation to death
benefits.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT MEIER: The bill
is passed.
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Senator Maziarz, that concludes the
noncontroversial reading of the calendar.
SENATOR MAZIARZ: Thank you,
Mr. President. Could we now have the
controversial reading of the calendar, please.
ACTING PRESIDENT MEIER: The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
8, by Senator Johnson, Senate Print 1534, an
act to amend the Penal Law, in relation to
criminal use of public records.
SENATOR MONTGOMERY: Explanation.
ACTING PRESIDENT MEIER: Senator
Johnson, an explanation has been requested of
Calendar Number 8 by Senator Montgomery.
SENATOR JOHNSON: Mr. President,
someone requested an explanation?
ACTING PRESIDENT MEIER: Yes,
Senator Montgomery requested an explanation,
Senator Johnson.
SENATOR JOHNSON: Oh, yes.
Senator, this bill we've had on the
floor two years running. And this essentially
says if you use the FOIL system to get
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information on the person for the purpose of
committing a crime, use that information to
commit a crime, that is an additional crime.
That's essentially what this bill
says.
ACTING PRESIDENT MEIER: Senator
Montgomery.
SENATOR MONTGOMERY: Mr.
President, I had a question, but I wanted
to -- if I may yield to Senator Duane, who
also has a question, I want to yield to him.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you. If
the sponsor would yield, please.
ACTING PRESIDENT MEIER: Senator
Johnson, do you yield if a question from
Senator Duane?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you.
Is it already a crime to, for
instance, use documents for forgery or fraud?
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SENATOR JOHNSON: The question
is, is it a crime to use a document you
receive from FOIL in committing a crime? Is
that what you asked me, Senator?
No, it isn't. That's why we have
this bill before us. The crime that might be
committed as a result of getting the
information is already punishable under some
part of the statute. But using FOIL to get
information to commit this crime would be an
additional crime for the penalty involved.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Do you
continue to yield, Senator?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: So would the
penalty be concurrent, or would it be
consecutive?
SENATOR JOHNSON: Isn't that a
question for the judge to decide, if indeed a
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crime was committed as a result of this
information?
SENATOR DUANE: Well, through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MEIER: Senator
Johnson, do you continue to yield?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: It's my
understanding that generally that's spelled
out in the statute. And it's not here.
So does that mean it would be
consecutive or concurrent?
SENATOR JOHNSON: Senator Duane,
it's not spelled out in the bill.
SENATOR DUANE: So through you,
Mr. President, does that mean it's neither?
I'm afraid I don't understand the answer.
SENATOR JOHNSON: Actually, it's
very fascinating, Senator Duane, to realize
that -- and I mentioned when we debated this
last time about a lady who was raped and the
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fellow who was getting out of jail wanted to
get her address so he could find out where she
was, perhaps visit her again or something like
that. And that is outside of this picture.
There was no law at that time.
But what I'm saying is if he wants
to get out and go stalk this person, stalking
is a misdemeanor. And this would be a felony,
if you get this information and use it for the
purpose of stalking.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Johnson, do you continue to yield?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I was under the
impression that we passed stalking
legislation. Is this a gaping loophole in
that legislation?
SENATOR JOHNSON: This does not
affect the stalking bill, Senator. This is a
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separate bill giving law enforcement an
additional tool to apprehend somebody if
they're intent on committing a crime.
And if they do indeed commit a
crime, this is an additional penalty for
getting information through the FOIL system.
SENATOR DUANE: So through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Johnson, do you continue to yield?
SENATOR JOHNSON: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Then is the
sponsor now saying that this has nothing to do
with the stalking law?
SENATOR JOHNSON: There's nothing
in this bill about stalking, Senator. There's
no reference to stalking in this bill.
SENATOR DUANE: Well, through
you, Mr. President, just to clarify, I wasn't
the one --
ACTING PRESIDENT MEIER: Senator
Johnson, do you continue to yield?
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SENATOR JOHNSON: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: With all due
respect, I wasn't the one that raised
stalking.
So then I guess I'm trying to find
out when this law would be applicable still.
SENATOR JOHNSON: Senator, I'd
like to just read the law. It's very brief.
"A person is guilty of criminal use
of public records when he or she uses any
record or information derived from any record
in the course of or in the furtherance of the
commission of a crime."
And criminal use of public records
is a Class E felony.
SENATOR DUANE: So, Mr.
President, is the sponsor reading the bill?
Or the --
ACTING PRESIDENT MEIER: Are you
asking the sponsor to yield for a question?
SENATOR DUANE: Yes. Would the
sponsor yield for a question?
ACTING PRESIDENT MEIER: Senator
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Johnson, do you yield for a question?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Was the sponsor
reading that from the bill?
SENATOR JOHNSON: Senator, did
you ask me if I was reading the bill? Because
I was.
SENATOR DUANE: Mr. President,
I'm not sure what he just read.
SENATOR JOHNSON: The bill on the
floor is the one which I just read that part
of for you, yes.
SENATOR DUANE: Great. Then
through you, Mr. President, if the sponsor
would continue to yield.
ACTING PRESIDENT MEIER: Senator
Johnson, do you continue to yield?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I am still -- I
462
am unable to think of a scenario by which
there's not already a law in place for what
this bill seems to be seeking to address. And
therefore I'm trying to find out under what
circumstances this bill -- this law would be
of any use.
SENATOR JOHNSON: Senator, we
passed this bill two years running. There's a
sponsor in the other house. And there's a
feeling that the FOIL system was set up for
legitimate people getting legitimate
information, and not for the purpose of
looking up people's records.
It could be other things besides
their addresses. It could be -- take place in
identity theft, for example. They could use
the FOIL records to get some information on a
person's Social Security, et cetera, and
commit that crime.
We're telling them, don't go to the
FOIL and get that information or you'll be
committing another crime.
And I think people are entitled to
their privacy, such as it is. And they
certainly shouldn't use the FOIL system in
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order to create problems for other people or
commit a crime of their own volition.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Johnson, do you continue to yield?
SENATOR JOHNSON: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I thought that we
had already passed a law dealing with identity
theft. Is there a glaring omission in that
law that needs to be addressed with this law?
SENATOR JOHNSON: Senator, this
bill is what it is. I read what it says.
It's only dealing with getting public records
and using that information to commit a crime.
You can postulate any crime which
you desire where public records could be used,
and it applies to that.
SENATOR DUANE: Well, okay. On
the bill, Mr. President.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
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SENATOR DUANE: Actually, I can't
think of anything that this bill would cover
that's not already covered in law. And that's
why I was trying to find out why this bill is
necessary at all.
I really -- you know, I've been
thinking about this bill. I voted against it
two years ago, and my mind has not changed. I
don't think that there is anything -- and
clearly the sponsor has been unable to give me
a scenario by which this law would actually be
used.
So we're making a law for something
that is not a problem and, beyond that, for
which there's plenty of laws already in place
to deal with any possible scenario that anyone
has been able to come up with.
So I just don't believe that we
should be here passing laws just for the heck
of it. I think that the people's work is far
too expensive to spend time on bills for which
there doesn't seem to be a purpose.
I'm open to finding out if there is
a reason why we need this bill. But, save
that, I just don't see the point of it. So
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I'll be voting no.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Would Senator
Johnson yield to a question, Mr. President?
ACTING PRESIDENT MEIER: Senator
Johnson, do you yield for a question from
Senator Dollinger?
SENATOR DOLLINGER: Senator
Johnson, what happens if the person who's
using the public record is using it for their
own benefit? That is, manipulating the record
for their own benefit; like, for example, a
19-year-old who creates a false ID for
purposes of getting into a bar.
I wouldn't suggest that anybody in
this room has ever done that before. But what
if they did? Would they be guilty of a Class
E felony?
SENATOR JOHNSON: I believe it
would apply. But whether prosecution takes
place is up to the district attorney.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Johnson will
466
continue to yield.
ACTING PRESIDENT MEIER: Senator
Johnson, do you continue to yield?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Clearly,
Senator Johnson, this says that if you happen
to be 19 years old or 20 years old and you
changed the date on your license and had it
photocopied in a color copier and then you had
had it laminated so you could go to a bar at
age 20, you would no longer be guilty of just
illegally attempting to drink underage, but
you'd now be guilty of a Class E felony
subject to go to jail for one to four years.
Isn't that correct, Senator?
SENATOR JOHNSON: I don't know --
you know, we're all reaching pretty far to
make an example which may seem outlandish.
And I guess that is, because I don't think
altering your birth certificate or your
driver's license has anything to do with
FOILing public records.
467
So I think it's really irrelevant,
your question, to this bill at hand.
SENATOR DOLLINGER: Through you,
Mr. President, I would suggest to Senator
Johnson that when he makes a statute as broad
as to say any public record -- which clearly a
birth certificate or a driver's license or a
draft card qualifies as a public record -- and
he further includes language that says if you
use any information derived from any record in
the course of the furtherance of the
commission of a crime, that is so broad,
Senator Johnson, as to sweep all kinds of
activity, including the manufacture or
creation of a fake ID, as they're called by
some people -- I have children who are in that
age group. They don't have fake IDs, or so
they tell me.
But I would assume that there's
some people, maybe between the age of 18 and
21, who might be doing this occasionally to
somehow sneak their way into a bar and maybe
have something to drink, which is a violation
of law, commission of a crime. It's a
violation or a misdemeanor in this state.
468
We're going to make them all felons
in this broad, new, wide-open statute? Is
that correct, Senator Johnson?
SENATOR JOHNSON: My counsel
reminds me that this refers only to, as you
may have read, Section 240.77 of the Public
Officers Law, and not to every record in the
world. Only FOILable records.
SENATOR DOLLINGER: Well, through
you, Mr. President, so we can get to the
bottom of this, would Senator Johnson yield?
ACTING PRESIDENT MEIER: Senator
Johnson, do you yield?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Could you
tell me what the definition of "record" is in
that Section 240.77 of the Penal Law of the
State of New York, so we could figure out
whether it applies?
SENATOR JOHNSON: I don't know if
you want me to read the McKinney's to you,
Senator, but --
469
SENATOR DOLLINGER: Through you,
Mr. President, I'm not sure. Maybe Senator
Johnson could just tell me whether a driver's
license or a birth certificate or other
governmental proof of age would be considered
a record within the statute, if I could amend
my question, Mr. President.
SENATOR JOHNSON: Senator, I
could read you the book. It tells you all the
different kind of papers, records,
memorandums, forms, designs, drawings,
microfilms, computer tapes. Everything is in
here.
But it's got nothing to do with
ways somebody might alter their license and
try to get a drink. It's nothing to do with
that at all. So, really, you have to find
another example. Maybe we could get a
reasonable example which might covered by this
law. But that certainly wouldn't be.
SENATOR DOLLINGER: But through
you, Mr. President, if Senator Johnson will
continue to yield.
ACTING PRESIDENT MEIER: Senator
Johnson --
470
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: But a
driver's license or a birth certificate or a
draft card is clearly a public record under
that very broad definition in 240.77, is it
not?
SENATOR JOHNSON: Well, I
wouldn't say a false identification was a
public record, would you, Senator?
SENATOR DOLLINGER: No. I think,
through you, Mr. President, I was simply
asking whether the original -- because this
says if you alter the original document or use
any information off that document to produce a
false document, then you're guilty of criminal
use of a public record.
And if you're using it in
furtherance of a commission of a crime, which
we broadly defined to include just about
anything -- and attempting to buy alcohol
underage, I think under Section 65 of the
Alcohol and Beverage Control Law, is still a
471
crime, is it not?
SENATOR JOHNSON: Well, I don't
see anything in this bill which says what you
say about altering records. It has nothing to
do with altering records at all. It's simply
acquiring the records and using them in the
commission of a crime. And I don't think it's
a crime to have an altered driver's license.
SENATOR DOLLINGER: Just on the
bill, Mr. President, briefly.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: Senator
Johnson, I'm only reading your bill and trying
to figure out how broad the application would
be.
And there's no question in my mind
that every 18-, 19-, 20-year-old that
currently now uses their birth certificate or
their driver's license or some other public
record -- and I would suggest, Senator
Johnson, that 240.77 is probably the broadest
written, public-record-inclusive definition in
probably any state in the union. Clearly, a
driver's license, a birth certificate qualify.
472
Almost any other record that could be issued.
A transcript by a public college, I'm sure
that's a public record. I'm sure that an ID
issued by a public college is a public record.
And the manipulation of any one of
those documents in any way, using that
information to manipulate them for the
purposes of creating a crime, is going to
constitute a felony. We've now made people,
every 17-, 18-, 19-, 20-year-old who goes out
and changes in any way a public document so
that they can qualify is now guilty of a
felony.
With all due respect, Senator
Johnson, I can see a very aggressive
prosecutor at some point walking in and
saying, Oh, this child was -- this 17-, 18-,
19-, 20-year-old was interested in drinking
underage. You know something? We'll teach
him a lesson. Let's make him into a felon.
Let's charge him with a felony.
Senator Johnson, I'm not sure
that's what you want to do. But I think
that's what this statute does. And the danger
that we have when we create a penal statute
473
with that broad a reach is that we're going to
sweep in all kinds of activity that we don't
think is a felony.
I agree with you, Senator Johnson,
that there's a very good chance that in those
instances it would not be charged. But it
could be. And I think it's broad enough to do
that.
I favor the concept that you've
proposed, which is the alteration of public
records in the commission of a felony should
also be a felony. But I think to include just
a crime, to include that broad a definition,
and to include the broad phrase "any
information in the public record," is far too
broad.
I'm going to change my vote on
this. I'm going to vote no.
SENATOR HEVESI: Mr. President.
ACTING PRESIDENT MEIER: Senator
Hevesi.
SENATOR HEVESI: On the bill, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Hevesi, on the bill.
474
SENATOR HEVESI: Mr. President, I
voted for this legislation in the past. But
listening to the debate now, it seems to me
that Senator Dollinger's arguments here are
quite valid.
And whereas in its practical
application it is unlikely that in the current
form that some prosecutor is going to
prosecute an individual who is underage and
doctored an ID or a driver's license or
passport, it's possible.
And if it's possible, it's bad
public policy, knowing that, to go ahead and
support a bill like this, when it seems to me
that redrafting the legislation to do
possibly -- as Senator Dollinger suggested,
that you would only have an E felony in the
case of using a doctored public record in the
commission of another felony offense, that may
be one way out of this.
But as it stands right now, this is
not a good bill in terms of its drafting. And
I'm going to switch my vote from a "yes" vote
last time to a "no" vote this time.
Thank you, Mr. President.
475
ACTING PRESIDENT MEIER: Any
other Senator wish to be heard?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Duane, to explain his vote.
SENATOR DUANE: Thank you, Mr.
President.
You know, I remain convinced that
there is no justification for this
legislation. Although I do have to say that I
think it's unlikely that anybody would ever
FOIL their own driver's license, and this bill
is about FOILing.
However, be that as it may -- I
also don't think that reading the bill
particularly sheds any light on anything in
answer to a question.
But the thing that disturbs me the
most is that I debated this bill with Senator
476
Johnson last year, and I remember it. It was
a very important moment in my life. And I am
shocked that Senator Johnson doesn't remember
the questions that I raised last year. But my
hurt feelings notwithstanding, I'm just going
to have to continue with my "no" vote, in the
hope that this memory will glimmer as brightly
to Senator Johnson as it has for me.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the negative.
Senator Paterson, to explain his
vote.
SENATOR PATERSON: Mr. President,
I'm of the same mind as Senator Hevesi.
I voted for the bill last year.
But clearly, under subdivision 4 of Section 86
of the Public Officers Law -- and there's
nothing in here that says anything about
FOILing documents -- the use of those public
records as Senator Dollinger described could
be used just as timidly as in some kind of a
situation where some young people who
shouldn't but would commit a fraud to try to
get into a public establishment or something
477
like that; but something far less offensive,
in my opinion, than a felony as it's described
in this bill.
I vote no, Mr. President.
ACTING PRESIDENT MEIER: Senator
Paterson will be recorded in the negative.
The Secretary will announce the
results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 8 are Senators
Connor, Dollinger, Duane, Hassell-Thompson,
Hevesi, Montgomery, Onorato, Paterson,
Schneiderman, A. Smith, and Senator Stavisky.
Ayes, 47. Nays, 11.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Maziarz.
SENATOR MAZIARZ: Thank you very
much, Mr. President.
Mr. President, could we lay aside
for the day Calendar Number 88 and 91.
ACTING PRESIDENT MEIER:
Calendars 88 and 91 will be laid aside for the
day.
SENATOR MAZIARZ: Is there any
478
housekeeping at the desk, Mr. President?
ACTING PRESIDENT MEIER: No, the
desk is clean, Senator.
SENATOR MAZIARZ: Okay, Mr.
President, then there would be a motion to
adjourn the Senate until February the 5th at
11:00 a.m.
But I'd also like to note that
there will be a Majority conference
immediately in Room 332. A Majority
conference immediately in Room 332.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
February 5th at 11:00 a.m.
Majority conference in the Majority
Conference Room.
(Whereupon, at 4:32 p.m., the
Senate adjourned.)