Regular Session - February 5, 2002
479
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
February 5, 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: With us once
again this morning to give the invocation is
the Reverend Peter G. Young, from Blessed
Sacrament Church in Bolton Landing, New York.
REVEREND YOUNG: Let us pray.
On this cold and chilly day, may we
communicate with all our constituents in a
plain and clear manner, realizing that they
want to understand the legislative process.
Let us guide our efforts to be honest and open
with all of our New York State citizens, with
patience and persistence, in our attempts to
understand one another.
May we pray that we will enjoy the
opportunity of this service now and forever.
Amen.
THE PRESIDENT: Reading of the
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Journal.
THE SECRETARY: In Senate,
Monday, February 4, the Senate met pursuant to
adjournment. The Journal of Sunday,
February 3, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
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.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator
Fuschillo, from the Committee on Consumer
Protection, reports:
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Senate Print 92A, by Senator
Maltese, an act to amend the General Business
Law;
385, by Senator Skelos, an act to
amend the General Business Law;
And Senate Print 2505A, by Senator
Hannon, an act to amend the General Business
Law.
Senator Marcellino, from the
Committee on Environmental Conservation,
reports:
Senate Print 781, by Senator
Marcellino, an act to repeal Title 17;
Senate Print 3917, by Senator
Saland, an act to amend Chapter 748 of the
Laws of 1991;
4434, by Senator Marcellino, an act
to repeal Article 16;
4730, by Senator Marcellino, an act
to amend the Environmental Conservation Law;
And Senate Print 5551, by Senator
Marcellino, an act to amend the Environmental
Conservation Law.
All bills ordered direct to third
reading.
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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 Kuhl, we have one
substitution.
SENATOR KUHL: Make the
substitution, please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 12,
Senator Marchi moves to discharge, from the
Committee on Corporations, Authorities and
Commissions, Assembly Bill Number 9264B and
substitute it for the identical Senate Bill
Number 5160C, Third Reading Calendar 112.
THE PRESIDENT: Substitution is
ordered.
Senator Kuhl.
SENATOR KUHL: Yes, Madam
President. I move to adopt the Resolution
Calendar, which is on the desks of the
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members, with the exception of Resolution
Number 3943.
THE PRESIDENT: All in favor of
adopting the Resolution Calendar, with the
exception of Resolution Number 3943, signify
by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is so adopted.
Senator Kuhl.
SENATOR KUHL: Yes, Madam
President. May we now have the
noncontroversial reading of the calendar,
please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
63, by Senator Johnson, Senate Print 5260A, an
act to amend Chapter 672 of the Laws of 1993.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
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THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 37.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
70, by Senator Velella, Senate Print 66, an
act to amend the Criminal Procedure Law, in
relation to the commission of crimes against
children.
THE PRESIDENT: 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, 37.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
72, by Senator Maltese, Senate Print 95, an
act to amend the Penal Law, in relation to
clarifying.
THE PRESIDENT: Read the last
section.
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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, 37.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
88, by Senator Balboni, Senate Print 860 --
SENATOR HASSELL-THOMPSON: Lay it
aside, please.
THE PRESIDENT: The bill is laid
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.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
92, by Senator Trunzo, Senate Print 4669, an
act to amend the Vehicle and Traffic Law, in
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relation to conforming.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 37.
THE PRESIDENT: The bill is
passed.
Senator Kuhl, that completes the
noncontroversial reading of the calendar.
SENATOR KUHL: Yes, Madam
President. Could we return to the order of
motions and resolutions.
I understand there's a privileged
resolution at the desk by Senator Dollinger.
If that's the case, could we have the title
read, and I move for adoption at this time.
THE PRESIDENT: Motions and
resolutions.
The Secretary will read.
THE SECRETARY: By Senator
Dollinger, Legislative Resolution Number 3927,
celebrating the 30th anniversary of Title IX
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of the Federal Educational Amendments of 1972.
THE PRESIDENT: All in favor
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Kuhl.
SENATOR KUHL: Yes, Madam
President. May we now have the controversial
reading of the calendar, please.
THE PRESIDENT: The Secretary
will read.
SENATOR KUHL: Thank you.
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: Explanation.
THE PRESIDENT: Senator Balboni,
an explanation has been requested.
SENATOR BALBONI: Thank you,
Madam President.
This bill would amend Section 511
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of the Vehicle and Traffic Law --
THE PRESIDENT: Senator Kuhl.
SENATOR KUHL: Madam President,
may I interrupt the debate, please.
THE PRESIDENT: Excuse me,
Senator Balboni.
SENATOR KUHL: We'd like to call
an immediate meeting of the Finance Committee
in the Majority Conference Room, Room 332.
THE PRESIDENT: There will be an
immediate meeting of the Finance Committee in
the Majority Conference Room.
You may proceed, Senator Balboni.
Senator Paterson.
SENATOR PATERSON: Madam
President --
THE PRESIDENT: Excuse us again,
Senator Balboni.
SENATOR PATERSON: Madam
President, I thought the explanation was
satisfactory.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed --
SENATOR PATERSON: No, no --
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THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR PATERSON: If Senator
Balboni would yield for a question.
THE PRESIDENT: Senator, do you
yield for a question?
You may proceed, Senator.
SENATOR BALBONI: Madam
President, I will yield to a question if I am
permitted to tell what the bill does first.
SENATOR PATERSON: All right,
Madam President.
SENATOR BALBONI: For those folks
watching at home, this is an important
concept.
This bill allows prosecutors to use
a presumption of knowledge of suspension or
revocation on behalf of motorists who have had
their license suspended or revoked --
suspended more than three times and they have
received notices of that.
The reason for this is that if you
talk to any traffic prosecutor, they will tell
you of the difficulties associated with
attempting to prove as an element of this
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crime that the individual is driving with a
suspended license. Because the way that you
do that is you have to show that the
individual received through the mail the
suspension notice.
And there have been cases -- and
these cases I've chatted about last year. But
People versus Parsons is the one that I
normally cite, out of the City of Rochester,
541 New York, subsection 321, 1989, which best
describes the frustrations attendant to trying
to prove this.
And they are, in this case, in
order to prove the sufficiency of mailing, the
courts are left with no other choice but to
dismiss the case if the proof is not received.
The People introduced into evidence
as exhibits an order of revocation addressed
to the defendant and an affidavit of
regularity to show the proof of the mailing of
the order of revocation to the defendant. The
court reversed the defendant's conviction on
the basis of the fact that the proof of
mailing of the affidavit was insufficient.
In other words, it's not enough to
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say the court and the DMV mailed the order of
suspension.
So what we're trying to do here is
after three times -- that is the threshold --
you should know, you knew or should have known
that your license was suspended or revoked.
And obviously, the backdrop against
this is the incredible carnage that has been
happening on our roadways. With the eerie
parallel, or the eerie, I should say,
circumstance that the people who commit these
crimes most often, of hit-and-runs and bad
accidents, happen to have their license either
suspended or revoked.
Senator Paterson, I yield to your
question.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, understanding that Senator Balboni
has yielded, Senator, the same way it is
difficult to prove that someone mailed the
revocations, it's also hard to prove that you
didn't receive them.
And I would suggest that the
likelihood of not receiving it three times is
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probably not -- doesn't happen often. But if
someone didn't receive it once, the likelihood
of them not receiving it two other times is --
certainly the odds would increase, because
maybe it's going to the wrong address or
something like that.
But, Senator, from the defendant's
point of view, it's proving a negative. How
does the defendant prove that they didn't
receive the notice of revocation? How does
the defendant establish to the court that they
are unaware that they're driving with a
suspended license?
SENATOR BALBONI: There are
circumstances which would take the burden of
proof and place it back on the prosecutor.
This is the shifting burden of proof in regard
to the evidentiary question of whether or not
they had in fact received notification of the
suspension or revocation.
And the way you would do this is by
saying -- by showing that you were not
present. In other words, you committed the
offenses and you moved to Hawaii, there was no
forwarding address available. That -- and
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that you would be able to show, through
affidavit or other witness testimony, that an
individual had been stealing your mail.
You would be able to show through,
again, witness testimony that at the time of
the stop that the arresting officer informed
you that the offense was not one that you
would have your license suspended for. Or
that you missed a court date or the court
thought you missed a court date, resulting in
the issuance of a bench warrant and the order
of suspension, but you in fact didn't miss the
court date, you were in the court but the
court failed to note that you were.
There are a whole myriad of
evidentiary circumstances that could be proved
at court through the testimony or affidavit
evidence -- affidavit of witness testimony.
SENATOR PATERSON: Thank you,
Madam President. If the Senator would
continue to yield.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, I do,
Madam President.
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THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, I am
just being honest with you. I don't know how
you prove that a neighbor was stealing your
mail.
In addition to that, the fact that
you might have moved to Hawaii does not
necessarily mean that you didn't get the mail.
In other words, you could show that you moved
to Hawaii. That doesn't mean that you didn't
receive the notice of revocation. So I don't
know that necessarily, as long as the
prosecutor raises that, that the burden of
proof shifts.
All I'm saying to you is if it's a
strict liability type of situation where we're
just saying, "Look, if it was sent three
times, you should have known, and you are
therefore responsible," that's one thing.
But I think what I'm trying to
establish to you -- and I guess my question
is, if you would just comment on this -- is
how can we honestly tell the public through
the passing of this law that this is a
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shifting burden of proof when in fact it's not
really possible for the defendant to establish
any criteria on this point? You just can't
prove that you didn't get something.
And every time you raise the
discussion, the prosecutor -- and both of us
have been there, we've seen this done -- can
very adroitly suggest that you did receive
something.
SENATOR BALBONI: Madam
President, through you. Senator Paterson, I
would turn your attention to lines 13 and 14
of the bill, which talks about presumption of
knowledge, not a presumption of guilt.
Your reference to a strict
liability characterization of this bill is,
with all due respect, misapplied. There is no
strict liability. In fact, I had an extensive
discussion with Senator Hassell-Thompson about
this.
Strict liability language would
read something like "upon three or more
suspensions, the defendant is guilty of
aggravated unlicensed operation." As opposed
to "upon three or more suspensions, the
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defendant is presumed to have knowledge of the
suspension." It's a much different set of
circumstances.
Strict liability, as we know in our
criminal jurisprudence, refers to crimes like
driving while intoxicated where intent is not
an issue. What's your blood alcohol level?
If it exceeds the threshold, you are guilty,
period. That is a strict liability crime.
This is not. This refers to the
evidentiary aspect or, I should say,
evidentiary element of the crime. That means
you have to prove the intent, or the mens rea.
And I would point to Richardson On
Evidence, page 58, Section 3-105: "In
criminal cases in New York, presumptions are
permissive, which means that the jury may but
not need to accept the inference supported by
the presumption." So juries in this state are
permitted to accept or reject the particular
presumption.
And when I say shifting of the
burdens, all that this does is it places upon
the defendant the burden of proving that they
did not receive the mail. Once that has been
498
established, the burden then shifts back to
the prosecutor to prove by beyond a reasonable
doubt that the individual in fact had the
intent, knew that his license was either
suspended or revoked, but nonetheless operated
the vehicle.
THE PRESIDENT: Senator Kuhl.
SENATOR KUHL: Yes, Madam
President. May I interrupt the debate on the
floor?
THE PRESIDENT: Absolutely.
SENATOR KUHL: I would like to
call an immediate meeting of the Veterans
Committee in the Majority Conference Room,
Room 332.
THE PRESIDENT: There will be an
immediate meeting of the Veterans Committee in
the Majority Conference Room, Room 332.
SENATOR KUHL: Thank you.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, I'm going to speak on the bill, and
thank Senator Balboni for his information.
I still do not agree with Senator
Balboni's interpretation of what actually
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happened in practicality as a result of the
passing of this law. His language in -- I
guess it's Section 13 here, is not strict
liability language. I'm not objecting to the
language, I'm objecting to the application.
In other words, I see it as a strict liability
situation.
I don't want to be misunderstood on
this point. If Senator Balboni actually had
introduced a bill and said, "Listen, we
suspend your license three times and you lose
your license," these days I don't know if I
could vote against it. Because the vehicular
tragedies and the irresponsibility of people
when using alcohol or other substances before
operating an automobile, after countless
incidents, many of them heralded for the
tragedy and the loss of life and the pain it
caused so many innocent people, in this day
and age I don't know if I would vote against
it.
I'm just suggesting to Senator
Balboni that he is right about his
classification in evidence. He cites
Richardson On Evidence to support that. But I
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just don't think that this law applies in that
particular way.
I will vote for the bill, because I
think that it is very necessary to strengthen
protections against damage or pain to innocent
people who operate motor vehicles in this
state. And I certainly appreciate Senator
Balboni's research on this particular subject.
And I think that there probably is
a point -- maybe not three, but further
down -- where we would automatically revoke a
license because of countless numbers of
suspensions. Three I don't think would be the
right number, because a person could have
their license suspended three times in a
couple of days. It can happen very quickly.
But there is a point that I think a
strict liability enforcement would apply. I'm
just saying that I would find it difficult to
defend an individual with this inference that
the jury is invited to draw based on the fact
that an individual had not received notice of
revocation and has a problem proving it.
THE PRESIDENT: Senator
Hassell-Thompson.
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SENATOR HASSELL-THOMPSON: Thank
you, Madam President. Just to comment on the
bill.
THE PRESIDENT: You may proceed.
SENATOR HASSELL-THOMPSON: I have
to say that I certainly appreciate the
opportunity that Senator Balboni afforded me
yesterday in pulling the bill back and
researching it and taking the time to help to
explain to me what the intent of the bill is.
I don't have, certainly, the legal
eloquence of my colleague Senator Paterson,
but I certainly have the same concerns that I
had that the presumption, while it is the
presumption of knowledge that you're
attempting to achieve, I still think that the
jury would consider this based upon the
assumption of guilt. And so I'm still having
a dilemma.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President. Would the sponsor please yield?
THE PRESIDENT: Senator Balboni,
do you yield for a question?
SENATOR BALBONI: Yes, I do,
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Madam President.
THE PRESIDENT: You may proceed,
Senator Hevesi, with a question.
SENATOR HEVESI: Thank you, Madam
President.
I voted for this bill last year.
I'm going to vote for it again. I think its
intent is noble. And I don't, despite some of
the arguments of my colleagues, have a problem
with their interpretation of it.
My concern, and I related it last
year -- and my question to the sponsor is
whether I'm correct still in this
assessment -- my concern is that upon my count
last year, an individual could have had their
license suspended and been caught for it up to
ten times before that individual was eligible
for felony-level penalties.
And since, by definition, the
sponsor of this legislation is concerned about
this issue, I was wondering whether he could
address that or whether we are moving to
remedy that situation as this bill tries to
take a step in that direction.
SENATOR BALBONI: Madam
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President, through you.
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: As a result of
your comments last year, Senator -- and I
thought I had gotten a chance to speak to you
about this; I apologize -- I talked with some
prosecutors. And it is their belief, this is
down in Nassau County, that if you were to
take this step and amend 511 to do this, that
this would allow the police and the
prosecutors to bring people in sooner in their
process, their life of crime, as it were, from
this particular standpoint.
In other words, the most egregious
cases could be brought into the court system
ahead of time. The licenses could be pulled.
The felony counts that you speak of would, in
fact, still be pretty much far off in terms of
the suspension.
You were accurate in your
description. But the -- once you are
convicted of Section 511, you know, your
license, in terms of the revocation and also
the misdemeanor-level penalty associated with
it, in the prosecutor's views, would deter a
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lot of people from going forward with this.
It would also alert the court and
the probationary law enforcement units to the
fact that you're a problem -- you know, the
driver, that the driver has a problem and is
somebody who's going to have to be watched.
As a result of the disposition, the courts
could require that the individual receive
alcohol or drug counseling and treatment.
And so what their point to me was,
this would be a very necessary first step of
catching the offender early, earlier in the
system. So that you could try to perhaps
provide help and benefit and monitoring for
this individual. Would you be able to put
them to the felony standpoint? No.
But remember this, Senator Hevesi.
Many times there are other crimes that are
committed in connection with this violation,
either DWI or a reckless endangerment, and so
there are other opportunities to provide for a
felony prosecution. You know, it's rare that
an individual is simply pulled over for, like,
say, blowing through a traffic light and then
it is found that the license is suspended 10
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or 13 times.
If you recall, last year I read
some amazing statistics. You know, a Coram
man, 135 times -- this is in January 2000. A
guy was stopped in Coram, his license had been
suspended 135 times. Another man in West
Babylon had 106 suspensions.
You know, so I guess the approach
that I have adopted here is to try to provide
the law enforcement officials with a mechanism
by which they could get somebody into the
system sooner than having to wait. And also
signal to the community as a whole that
driving with a suspended license, driving with
a revoked license is a very serious offense.
SENATOR HEVESI: Madam President,
will the sponsor continue to yield?
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, I do.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: Thank you.
Through you, Madam President, just
by way of clarification, the individual who
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had his license suspended 130 times, that is
not an indication that that individual had
driven with a suspended license, got stopped,
got caught --
SENATOR BALBONI: 135 times, no.
SENATOR HEVESI: -- and continued
to do it.
So can you just elaborate on
exactly how that happens?
SENATOR BALBONI: Yeah. Madam
President, through you, as any practitioner of
this type of law understands, if you have a
court appearance to respond to a moving
violation, you could have an order of
suspension issued from the bench every time
you miss a court appearance, an issuance you
can have, you know, for multiple
jurisdictions.
So if you're somebody who just
rides around and gets speeding tickets all
over the state, you could technically rack up
this kind of record. I mean, it's kind of
inconceivable that the system wouldn't have
caught these guys ahead of time. But again,
we haven't amended this section to do this,
507
so . . .
SENATOR HEVESI: Thank you, Madam
President. Would the sponsor continue to
yield?
THE PRESIDENT: Senator Balboni,
will you yield?
SENATOR BALBONI: Yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: Thank you. A
final question for you. Because the
perception is that when you read in the
newspaper about some tragedy and the newspaper
indicates that the individual had his license
suspended, you know, X number of times, that
there is a perception that he had been caught
driving each one of those times, which is
actually not true.
SENATOR BALBONI: That's correct.
SENATOR HEVESI: My question to
you is this. In the hypothetical where an
individual had a period of suspension that
just continued uninterrupted, how many times
can that individual be pulled over, get a
conviction for the suspension, their license
508
remains suspended, drives again, gets pulled
over, gets another conviction -- how many
times can that happen under current law before
that individual faces felony charges?
SENATOR BALBONI: I don't know,
truly, the answer to that, because it would
depend upon the circumstances. You know, over
what time period? In other words, you could
have a crime spree where the guy just decides
that for the next 48 hours they're going to go
and they're going to commit all sorts of
crimes, all sorts of traffic offenses.
For example, driving from Long
Island to Albany, you could get stopped
multiple times and be given speeding tickets.
Now, you haven't had the opportunity to appear
before a court. The officer can make a
decision, if he's able to access the other
information, that, you know, you have been
driving fast up the Taconic or up the Thruway,
they can make a decision: "You know what?
I'm going to suspend your license. I'm going
to issue it right here. I'm going to just say
you've got to go see the justice of the court
here." They have the ability to do it if they
509
feel that you were driving in a reckless
manner.
But it really depends on the time
period, how many times you get stopped, who
stops you, what are the circumstances of the
stop. There's a lot of factors that could
play into that hypothetical that wouldn't be
appropriate here.
SENATOR HEVESI: Thank you.
Madam President, briefly on the
bill.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: Thank you, Madam
President.
I want to thank the sponsor for
bringing this legislation. I'm going to
support it.
We had a discussion about some of
the hypotheticals that I just raised last
year. And everyone will please forgive me, I
don't have the actual number of times that an
individual can be stopped for driving with a
suspended license, get the conviction,
continue to do that, before the level of
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penalties escalates to felony offense.
But if memory serves, it's 10
times. It was either nine or ten times before
it kicks from the third degree to the second
degree to the first degree. And that I find
is a much more pressing problem than the fact
that somebody can technically come under the
phrase "having had their license suspended 80
times." You know, which is awful and the
person should not do that.
But for missing a court appearance,
for whatever reason, a slew of times, pales in
comparison to an individual who is a true
recidivist, has their license suspended, and
keeps thumbing their nose in the face of the
law and continues to drive. It's those
individuals who I think we really need to
crack down on.
So this is a good bill. And if the
prosecutors in Nassau County and other
counties are empowered by this legislation to
interrupt that malevolent course of behavior
that some individuals feel predisposed to
engage in, that's terrific.
I would simply suggest that we
511
tackle the broader issue, which is if you
reoffend, if you continue driving with a
suspended license and you keep getting
caught -- and remember that if you extrapolate
the number outwards, the number of times that
you get caught to the number of times that you
actually committed the offense, obviously
you've committed the offense many, many times
greater, exponentially greater than the number
of times you got caught for. That kind of
flagrant behavior deserves to be dealt with
very swiftly.
So whether it is three times or
maybe five, but certainly not ten, if somebody
reoffends on driving with a suspended license
time after time after time, that individual
should be facing more stiff penalties,
felony-level penalties.
So I support this bill, but I
suggest that we take up the broader issue.
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.
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THE SECRETARY: Section 2. This
act shall take effect on the 90th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54. Nays,
2. Senators Duane and Hassell-Thompson
recorded in the negative.
THE PRESIDENT: The bill is
passed.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time return to reports of
standing committees. I believe there's a
report of the Rules Committee at the desk. I
ask that it be read at this time.
THE PRESIDENT: 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 6265, by Senator
Bruno, an act to amend the Insurance Law and
the Public Health Law.
SENATOR BRUNO: Move to accept
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the report of the Rules Committee.
THE PRESIDENT: All in favor of
accepting the report of Rules Committee please
say aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The report is
accepted.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time take up Senate 6265.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
138, by Senator Bruno, Senate Print 6265, an
act to amend the Insurance Law and the Public
Health Law, in relation to coverage.
SENATOR PATERSON: Explanation,
please.
THE PRESIDENT: Senator Bruno, an
explanation has been requested.
SENATOR BRUNO: Madam President
and colleagues, the bill before us we refer to
as the Women's Health and Wellness Bill for
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primarily the women in New York State.
This is not a new issue to any of
us. The issue has been before us for a couple
of years. We've had a conference committee on
this issue when the Assembly passed a
different version than we passed. It was the
first conference committee to fail to reach an
agreement on a bill that became law.
So we have been revisiting and we
have been trying to get to a place where the
Assembly could join us. Now, I hope that we
are there. But I have no confirmation of
that, so I don't want to indicate anything
that I don't know for a fact.
But this bill is critically
important that it become law. Critically
important because what we know about disease
is that the earliest you detect that you have
an illness, the more treatable you become. So
to prevent serious disease, early detection is
the answer.
So what this bill does is it drops
the mammogram age from 50 to 40 here in this
state for women; cervical cancer screening;
osteoporosis testing. And osteoporosis,
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50 percent of women over 50 are afflicted.
3,400 people a year die from breast cancer in
New York State, almost 41,000 nationally.
It's tragic.
This also creates access to
gynecologists, obstetricians without going
through your primary care physician, which
delays the process.
So those are the four positive
aspects, plus some other things.
The points of debate have been a
contraceptive clause. Now, what we have
referred to as "a conscience clause," so that
we don't mandate that any religious
institution, against their religious belief,
mandate contraceptives -- that's been the
conscience clause that we have had in our
legislation for two years.
The Assembly has not seen fit to
pass that version of the conscience clause.
We are now narrowing the focus by way of
compromise. And we have tried -- I think this
is our fourth version of where we are -- we
are trying to compromise. Why are we trying
to compromise? To get a result.
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Now, the politics have related to
the contraceptives and the conscience clause,
and I think that's terribly unfortunate.
There is a copay that relates to
some parts of this, and a question of high
deductibles comes up. Well, let me share with
you, and please listen to what I'm saying,
because for those people that want to hide in
terms of a vote on this issue, for whatever
their reasons are, no woman in this state will
be denied access to the coverage they need
that can't afford to pay a copay because of a
deductible. There's money already set aside.
And I'm asking the constituency out
there and I'm asking Senators on both sides of
the aisle to make your offices available and
to put out a communication to women that if
you can't afford a copay -- and it's nominal,
less than $2 a month -- call you. You will
direct them to access to get the coverage. If
they are excluded by their deductible, a high
deductible, call your office. You will create
access for them. And I'm talking to members
on both sides of the aisle.
So I don't want those that would
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like to hide to talk about copays or high
deductibles. That is off the table. That is
not real. That's a smokescreen.
And those that would like to
mandate that a church, a religious
institution, where it's against their religion
to dispense contraceptives, be mandated that
they must, that is unconscionable, in my mind.
That is something that we shouldn't politicize
in this climate where we have been together.
We have done some major things here in this
state together, both sides of the aisle, this
side with this side, with the Assembly.
We did the largest health care bill
that's ever been passed in the history of this
state. We did that in a bipartisan way. Why?
Because it was important to all of the people
of this state. It was important to deliver
health care to all the people of this state,
and the quality that all of us would desire.
This is important that this get
done. We are where we are to get a result.
We want to get a result. We're not looking
for conference committees. We're not looking
for talk. We're not looking for smokescreens.
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We're looking for a result. So we have moved
to where we are to create action.
So the action that we're taking
today -- and believe me, I am as sympathetic
as I can be to those people that feel in their
hearts and in their minds the trauma of
voting. Because in some instances in this
house you feel literally that you're between
the rock and the hard place.
Well, there's no rock, there's no
hard place. What we're doing here today is
moving towards getting a result to help
protect the lives of women here in New York
State, the lives of women in New York State.
Thank you, Madam President.
THE PRESIDENT: Senator Bonacic.
SENATOR BONACIC: Thank you,
Madam President.
I'd like to start off first by
saying what we have in common on this
legislation on both sides of the aisle, in
both houses. We're extremely concerned with
the health of our wives, our sisters, our
children, and our grandchildren when it comes
to diseases of breast cancer, osteoporosis,
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unintended pregnancies, abortions.
And what can we do as a collective
body to guard against those risks to make men
and women more healthy? I think this
legislation gets it done.
We started this struggle together,
both sides of the aisle, in both houses two
years ago. And we had legitimate differences
of opinion as to what was best for the men and
women of this state and their general health.
But our goals were threefold when
they started this legislation. It was, one,
make sure that women 40 to 49 could access a
mammogram as part of their insurance policy.
Because, as we know, that is the leading cause
of death among women, breast cancer, age 40 to
55. That's what this legislation would cover.
And let me just say, not to bore
you, but how great the problem is: 41,000
women die a year in the United States from
breast cancer. Forty-one thousand. In the
state of New York, it's 3500. And if we had
early detection and prevention, I bet that
number would be less. And while we engage in
legitimate and reasonable debate, there's got
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to come a time for closure. Because women are
dying as we debate and don't have a law.
The other thing we wanted to do,
and I call it the silent disease, is the
disease of osteoporosis. Again, women eight
times greater to incur that disease than men.
And in the state of New York, a little --
slightly less than 2 million women have
osteoporosis. Two million women. In the
United States, it's 28 million.
So again, this legislation, as part
of the insurance policy, would allow a man or
a woman to get an osteoporosis screening. All
right?
And last but not least, the most
contentious problem we had, the issue of
contraception. This legislation would now
allow every woman in the state of New York to
access contraception. And if she couldn't
afford it, we have a fund with $12 million in
it which is to help, Healthy Women Partnership
Fund.
Now, we know that contraception,
women take for hormone balance. And I'll give
you another statistic that is shocking. There
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are 6 million unintended pregnancies a year in
the United States, and half of those end in
abortion.
So the reason why this is a good
law is on many -- there's many fronts. One,
it improves the health of the men and women of
the state of New York. On the cost end, with
insurance, it's early detection and
prevention. And with contraception, it avoids
unintended pregnancies, abortions, and
expensive hospital care carrying that
unintended pregnancy to full term in the
hospital.
Now, I want to thank Senator Joe
Bruno, who worked through very tough issues
within our conference, within various
constituencies, and negotiated with Assembly
members, women advocates. And his leadership
in bringing this legislation forward has just
been exemplary.
I want to thank our three women
Senators, Nancy Larraine Hoffmann, Pat McGee,
and Mary Lou Rath, who never let our
conference get away from the focus on this
issue.
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But I especially want to thank the
advocates. Because the advocates today -- and
that's the real test. These advocates
represent over a hundred women's groups in the
state of New York. Thousands and thousands of
women stood with the Senate today and said "We
are in a comfortable place for this
legislation to pass."
The only issue remaining -- and as
I said to my friends in the Assembly on both
sides of the aisle, and on this side of the
aisle, both sides, do not let this become a
political issue for the battle of the sexes.
It will do a disservice to the men and women
and children of the state of New York.
We need closure. We need the help
of every Senator here calling on their friends
and the members and the leadership in the
Assembly to now get it done. Because the
women advocates of the state of New York say
it should be done, and we should not lose any
more lives to breast cancer.
Thank you, Madam President.
THE PRESIDENT: Senator Hoffmann.
SENATOR HOFFMANN: Thank you,
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Madam President.
Thank you, Senator Bonacic, for
your leadership on this. It was a difficult
and sometimes contentious conference
committee, and you never waivered in your
commitment. Thank you for being so gracious
in acknowledging the feelings and the hard
work of many of us in this chamber and those
outside the chamber.
The advocates, the many
organizations around the state who have
repeatedly visited legislators, come to
Albany, tried to make the case publicly, tried
to explain the very important and elemental
facts of why we need a comprehensive women's
wellness bill, are also to be recognized and
thanked today.
I would specifically like to
acknowledge, from NARAL, Kelli Conlin; from
Family Planning Advocates, Joanne Smith; from
A606 [sic], Donna Montallto; from the National
Republican Pro-Choice Coalition, Lynn Griefe;
Marra Ginsberg, from "To Life," the breast
cancer survivor organization; and Gerri
Barish, 1 in 9 Breast Cancer Center also.
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And if I've left anybody out, I
apologize. Because across this state, this
has been a rallying cry for people concerned
about many facets of women's health for
several years.
As Senator Bonacic explained, the
importance of early detection means the
difference between life and death. And for a
woman who is poor or uninsured or whose
insurance coverage does not allow her early
detection for cervical cancer, for breast
cancer, or some of the other cancers for which
there are screenings not readily available,
now these women will be able to live.
It is as simple as survival, when
we get down to the very bottom line of this
issue. Poor women are not able to pay for a
breast cancer screening. Even when they are
considered high risk, in many cases the
insurance coverage does not allow it. There
are studies that show a disproportionate
number of African-American women succumb to
breast cancer because there is a late
diagnosis because they did not have insurance
coverage in the first place.
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And thanks to this measure, and
Senator Bruno's commitment that we will find a
way to pick up the copay in those instances
where there is still an inability to meet that
modest differential, we will save many, many
lives in this state. It is a proud day for
this Senate to be passing this bill today.
Osteoporosis, very rarely talked
about. Up until recent years, it was referred
to as "the dowager's hump." We've all seen
these frail, elderly women who are hunched
over like this. What we also don't even see
or hear about are the hip replacements, the
breaks, the back problems, women who wind up
in nursing homes in their eighties because
their bones are fragile, they can't heal and
they're unable to take care of themselves at
home. It's a horrible way for someone to live
out her senior years.
But osteoporosis can be detected
early, can be taken care of with a relatively
simple and fairly inexpensive regimen of
vitamins and medications that will address
that bone density loss. But again, it's early
screening, it's early detection that is the
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key.
And proudly, we can say that we now
care about those women, we want to prevent any
woman from dying that agonizing death that
comes when bones are brittle and she's
resigned to the life of an invalid.
And the contraceptive insurance
coverage that we have so long needed. There
are few areas where there is as much of a
gender disparity as this one. Contraceptive
coverage should have been made available years
ago. It is not just about contraception, it
is about general physical care. For many
women, especially young women, birth control
pills are prescribed as a means of regulating
hormonal imbalances and addressing other
problems within women's physical makeup.
But never have those birth control
pills been covered under insurance plans, with
very few exceptions. The average cost is
around $30, $35, sometimes $40 a month. And
young women, working, poor women, even
middle-class women have had to bear that full
cost without the benefit of insurance
coverage.
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For an average woman, a year's cost
of birth control pills would have been about
$460. With a modest copay that we anticipate
following this, that cost goes down to $60, or
$5 a month. This, my friends, is a reasonable
and a responsible way for us to address an
inequity and a pressing health concern in this
state.
As to the issue of the conscience
clause, I've had many discussions with my
friends in the Catholic Church. I've spoken
at length with representatives of the diocese
in Syracuse, Bishop Moynihan, for whom I have
great respect as a civic as well as religious
leader. And I understand why they wanted an
absolute prohibition against any
church-related activities in this area.
But I've also studied the
Constitution, and I have watched as our
counsels, Senator Bonacic, and the others
involved in these negotiations have analyzed
this issue. The Constitution of the United
States is very, very clear in the First
Amendment, dictating that there must be
separation of church and state, there must be
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respect for independence in religion, and that
we cannot as a nation or a state dictate to a
religious entity what it must do.
But when a religious entity is
serving a larger public purpose and is not
solely operating as a religious entity, it is
no longer covered under that same, very narrow
definition as "religious." Organizations
which are chartered under a Catholic diocese
banner but serve the general public at large,
whose employees come from the general public
at large, clearly do not fit the narrow
definition of "church." And therefore, the
conscience clause takes this into
consideration, and they are handled
differently than would be a Catholic diocese
or a church-related function solely operating
for the benefit of the members of that church.
Clearly, we must respect the rights
of the church when it is solely a church
function and -oriented activity. But where
the larger public is concerned, those people
are entitled to fair insurance coverage as
well as people who are operating under any
other nonreligious employment activity.
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Today marks a milestone for the
Senate. I hope that our friends in the
Assembly recognize how far this chamber has
come. I hope that there will be no attempt to
politicize this issue any further. I would
urge our members in the other chamber to
quickly address any small, technical
differences of opinion they see here, because
clearly there can be nothing that would impede
them from embracing this measure as it's been
presented today.
It is a proud day for the Senate.
I thank Senator Bruno for his leadership, all
of the members of this chamber who have worked
so hard to bring it about. And I want to
thank the advocates once again for keeping the
issue squarely in front of the people of
New York State during these several years of
arduous deliberations.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. I believe there's an
amendment at the desk.
THE PRESIDENT: Yes, there is,
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Senator.
We have reviewed it, and it is
germane.
SENATOR SCHNEIDERMAN: Thank you.
I would waive its reading and request that I
be heard on the amendment.
THE PRESIDENT: You may proceed
on the amendment, Senator.
SENATOR SCHNEIDERMAN: Thank you
very much.
Senator Bruno, and Senator Bonacic,
who's worked very hard on this legislation, I
know, and the others in the Majority have
indeed come a long way with this bill. I
don't like it as much as Senator Bonacic's old
bill, but, you know, I understand that this is
a tremendous step.
Our amendments are simply to
clarify some things and I think in fact to
make them more consistent with what my
colleagues on the other side of the aisle have
already stated about this bill. And there are
only three pieces of the legislation we're
seeking to amend.
In Section 5, paragraph (B), we
531
just want to make it absolutely clear that all
women will have access to mammograms and will
not be limited by deductibles and copays, as
Senator Bruno indicated he wanted to do. We
don't really need a complicated system to
notify them of alternative programs; let's
just put it in the bill.
Similarly, in paragraph (D) of
Section 5, we want to make the same provision
for cytology screening.
Finally, and I don't think there
really can be any dispute about this -- and I
think this must just be an oversight -- in
Section 12, paragraph (cc) of the legislation,
it talks about the so-called conscience
clause, the religious exemption, but it does
not make clear that women who work for
organizations that invoke this exemption are
not subject to additional charge when they
have to go to an alternative insurer to
receive coverage for contraception or other
services.
And I gather it's the intention of
the sponsors to treat all New Yorkers fairly
under this bill, to treat all women equally
532
under this bill, and not to charge people more
just because they happen to be working for a
religious organization if they don't subscribe
to the tenets of that organization and their
own individual conscience allows them to seek
contraceptives, even if they're working for an
organization that is subject to the more
limited but still substantial religious
exemption herein.
I would urge that with these
changes, this bill becomes a better bill. And
I would urge that with these changes the bill
becomes more consistent with the intentions
that Senator Bruno and Senator Bonacic and
others have stated here today.
This is a major step. There are a
couple of details that could be cleaned up to
make it a better bill. In particular, I do
not think we should pass legislation this
year -- and I know there's time for
negotiation left -- that doesn't make it clear
that women should not be charged extra. And
under this bill, they could still be charged
extra if they are working for an institution
covered by the religious exemption.
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So I'm offering that amendment. I
urge everyone to vote yes. And I think that
particularly given the fact that we've paid
tribute today, and I'm sure there are more
tributes yet to come, to the advocates, the
incredible network of organizations that were
organized to advocate for this bill, I think
if you asked those advocates they would urge a
yes vote on this amendment also.
So I would suggest a vote yes --
SENATOR CONNOR: Madam President.
THE PRESIDENT: Senator Connor.
Excuse me, Senator.
SENATOR CONNOR: Will the Senator
yield for a question?
THE PRESIDENT: Senator
Schneiderman, do you yield?
SENATOR SCHNEIDERMAN: Yes, Madam
President, I yield.
THE PRESIDENT: Go ahead, Senator
Connor.
SENATOR CONNOR: Senator, with
respect to who pays, tell me if I'm correct.
Organizations covered by the religious
exemption, the bill is very specific as to the
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rider that individual employees get, and it's
clear there who pays.
Does not your amendment relate to
the lack of any statement in the bill as to
who -- whether the employer or the employee
pays for the rider with respect to employers
that are not in any way involved with the
conscience clause?
SENATOR SCHNEIDERMAN: Yes, thank
you, Madam President.
The answer is yes, there is -- and
I believe it's just an error in drafting that
leaves a distinction between one group of
riders and another group of riders. It is not
clear in this legislation that no women in the
state should be required to pay extra for a
rider. Whatever their employer is, everyone
should have equal access to health care.
And Senator Connor is correct, that
is a distinction that I believe is an
unintentional distinction in the bill that I
think should be cleaned up and would be
clarified by this amendment.
THE PRESIDENT: Senator Hannon.
SENATOR HANNON: Yes, against the
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amendment.
Madam President, one of the things
that Senator Bruno said, putting this bill
together, was "I'd like to get results. I
want to see that we will be able to make the
representation that people will get mammograms
if they want it."
And so we took an existing program
that we have -- we in the Majority have been
building upon for a number of years, along
with the Executive, to build the Healthy Women
Partnerships, where we added $2 million to
increase the number of mammograms and cervical
tests by over 25 percent throughout this state
several years ago. And that has been there in
the budget each year subsequent.
We took that language for the
Healthy Women's Partnerships and made sure
that if anybody had a difficulty with a
deductible, under their own self-view -- no
one testing, no forms -- that they would be
able to get the mammogram, Healthy Women's
Partnership.
So we could say what we're doing is
delivering more mammograms in this state,
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because that's what we want to do, to prevent
and screen for breast cancer.
Now, this amendment would do
several things that I think deter from the
efficacy of the bill. First of all, it's --
health insurance is a labyrinth. We all know
it from the number of calls that come into our
offices. But in this case the labyrinth is
the fact that probably half of the employers
in this state, the place where one gets the
health insurance, half of the employers of
this state are under federal legislation and,
no matter what we would say about deductible,
copay, and the shape and form of the insurance
contract, we can't touch it. It's preempted
from our jurisdiction.
So that the option was let's not go
into that blind alley in this labyrinth, let's
offer mammograms through the Healthy Women's
Partnership. That's one huge, huge reason.
The second thing is, what are you
going to do if someone doesn't want to go
there but they don't have enough money? We
have worked mightily in the past seven years
to make sure that health insurance in this
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state has increased vastly. The last thing we
just did was the family health insurance,
which during the course of this year will give
health insurance availability, through the
Medicaid system, to those up to 150 percent of
poverty. So that if somebody is a family of
four with $27,000 a year of income, they would
be covered.
And we have gone beyond that, so
that if that is too low an income level, they
still can't get insurance, we have the Healthy
New York plan through the Insurance
Department.
So we have worked. We have made a
commitment. The idea with this bill was get
results, deliver those results.
We can't, with going through an
amendment like this, have false promises,
because that's all that it would be. Oh,
we've taken away the deductible. Well, you
know what? If half of the state doesn't come
under our jurisdiction, we can't take it away.
There's nothing we can do. And that's the
problem.
So if this canvass of agreement
538
procedure would succeed, by the way, we
couldn't even get results. This thing would
have to go back to committee. So I don't
believe this is an amendment that should be
supported. This should be defeated.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Madam
President, would the Senator yield for
question?
THE PRESIDENT: Senator, will you
yield for a question?
SENATOR HANNON: If the question
is in order on an amendment.
THE PRESIDENT: Is that correct,
Senator Schneiderman?
SENATOR SCHNEIDERMAN: Thank you.
I will endeavor to make it so. Through you,
Madam President.
THE PRESIDENT: You may proceed.
SENATOR SCHNEIDERMAN: In this
legislation, or in any other part of the law
that you have referred to or not referred to,
any part of the law in the State of New York,
is there a guarantee -- is there a guarantee
539
that women who walk into a doctor's office and
are told "You can't have a test because you
don't qualify" will receive that test?
Is there any guarantee that that
will not take place after we pass the bill in
this form, with all these alternative programs
and complexities that the Senator has
described?
SENATOR HANNON: Let me get the
point. Your point is under this bill can you
be denied a mammogram? Is that your question?
I mean, you made reference to this
bill --
SENATOR SCHNEIDERMAN: Yes. Yes.
SENATOR HANNON: -- any other
law, any other law of the state. I'm trying
to narrow your question.
SENATOR SCHNEIDERMAN: Yes.
Through you, Madam President, that you cannot
be denied a mammogram for failure to meet a
requirement for deductible or copayment.
Is there any woman in the state who
will be denied those tests for those reasons
after this bill passed?
SENATOR HANNON: Under this, you
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can access through the Healthy Women's
Partnership and get the mammogram and no one
can be denied. That's the way I read it.
SENATOR SCHNEIDERMAN: Through
you, Madam President. If it is to be the case
that there are no women who will be denied
coverage, why not make that clear in the bill
and eliminate the copay?
THE PRESIDENT: Senator Hannon.
SENATOR HANNON: It's sort of
like saying if it's not a problem, why not
take care of it anyway? I don't believe it's
a problem.
SENATOR SCHNEIDERMAN: Thank you.
Thank the Senator for his answers. Thank you,
Madam President.
I would still urge a yes vote on
the amendment. I don't think this guarantees
all the women of the state will receive the
treatment that we're seeking in this
legislation.
THE PRESIDENT: Senator
Dollinger, do you wish to speak on the
amendment?
SENATOR DOLLINGER: Thank you,
541
Madam President. Just briefly on the
amendment.
I think -- I understand the
colloquy between Senator Schneiderman and
Senator Hannon. And I understand Senator
Bruno's comment earlier about early detection
is critically important. And I think we all
agree on that.
The question that this amendment
poses is: Should there be any obstacle, any
at all, to early detection and treatment? And
with all due respect to Senator Bruno, I
appreciate -- and Senator Hannon has also
pointed out the $12 million that we've made
available to cover those deductibles.
But I think if there is a
deductible in place, it ignores what happens
in the families in my community. Because the
very first question that's asked when someone
says, "I feel like I should go to the doctor,"
too often in many communities in this state,
including in Rochester, the very first
question is "Can I afford to pay for it? If
it costs anything, can I afford to pay for
it?"
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And with all due respect to Senator
Bruno, it would never occur to a woman seeking
treatment, for either a mammogram or for
osteoporosis, to say, "Let's call my State
Senator and find if there's $12 million
available in the Healthy Women's Partnership."
That would never occur to them.
I would like to think that I've
worked hard in my district, but the very last
thing I would do, I think, is have a woman
call me and say, "Could Senator Dollinger find
some money for me to help pay for the copay,"
for either an osteoporosis or, for that
matter, for a mammogram service.
It seems to me that if what we want
to do is provide an obstacle-free way to get
women to essential health care that's been
described so eloquently by Senator Hoffmann
and Senator Bonacic, the easiest way to do
this is to say as a policy matter in this
state that the copays and the deductibles will
not be permitted because this service is too
vital to have any woman say "Can I afford the
deductible? Can I afford the copay?" As
minimal as it may be.
543
And I see the chairman of the
Health Committee standing. I know he's worked
very hard to build up a fund to be able to pay
for this. But I think the presence of a
deductible and a copay will provide, in some
cases, an obstacle to a decision in the home
about whether they should seek this service.
I think this is too important to
create any obstacle, and that's why the
amendment makes such good sense and it
warrants a vote.
THE PRESIDENT: Senator Hannon,
do you wish to speak?
SENATOR HANNON: Getting into a
full discussion of health care is something I
wanted to totally avoid.
But when people try to simplify and
oversimplify a complicated process, it
disturbs me. We've worked far too hard and
far too long to make sure that access and
affordability and quality have become the
hallmarks of our health care system.
Much of what I have -- I have some
excerpts as to the use of copays and
deductibles in the process from a major study
544
that was done by the Center for Disease
Control and Prevention under President
Clinton. It's called "Reaching Women for
Mammography Screening." I'm not going to get
into the arguments there, but the study itself
was quite thick because there are a lot of
different considerations that have to go
through it.
I would be dismayed, I would be
saddened if you were to pursue these arguments
that you have and say: It's that simple, we
can make a major wand fly through the air and
things will change.
Yes, we want everybody to access
it. And that's why we went through the
Healthy Women's Partnerships. These are
existing, ongoing programs in each of the
counties and boroughs of this state. We're
trying to expand it. We're trying to expand
so they'll not just be Healthy Women
Partnerships but Healthy Men and Women
Partnerships that will go from mammography and
cervical to include prostate and other
testing. Hopefully we'll even get into
questions of cardiology health, because that's
545
the leading killer in the state.
So I don't think to make these
claims is accurate, nor does it do a good
service to our constituents. I think what
we've tried to do, and the mandate on us, was
get results. And what we've done is do the
results through this bill.
Thank you.
THE PRESIDENT: Senator Onorato.
SENATOR ONORATO: Madam
President, will Senator --
THE PRESIDENT: On the amendment,
Senator?
SENATOR ONORATO: Yeah.
THE PRESIDENT: You may proceed.
SENATOR ONORATO: I would like
Senator Hannon to respond to a question on
some of the remarks he just made, if he would
yield.
Senator, you mentioned a fund of
$12 million to provide for the women who might
feel that they cannot afford to do it. I
don't see it anywhere. I've been looking high
and low for that number in this bill. Is it
part of this bill, or is it a separate bill
546
that's going to provide the $12 million?
SENATOR HANNON: I'm glad you
asked that question, Senator. It's part of
the ongoing health care program of this state.
It's part of the budget of this state.
It's a separate fund in the sense
that it's a program that's a part of the whole
Health Department, and it's part of what they
do in regard to reaching out for each of the
counties and boroughs in this state who
provide these services. It's ongoing.
And when we're referring to
numbers, we're referring to what we did to add
to that program. That support has continued.
And we would be -- we are, through the process
of this legislation, saying we'll go back and,
wherever there are problems with that program,
strengthen it.
But it's not here because what
we've just done is to clarify, because I think
a lot of it's being done already, that if
anybody has problems with a deductible,
whoever it is, wherever they are, they can
access this program.
SENATOR ONORATO: What I'm
547
getting at is have we passed that part of the
budget yet to provide those funds, or is that
going to follow?
SENATOR HANNON: No, it's in
current budget law. It's continued in the
proposed budget for the next fiscal year, just
in the same way it's been there for several
years past.
SENATOR ONORATO: Thank you.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, why do you rise?
SENATOR HASSELL-THOMPSON: Mr.
President, on the amendment.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, on the amendment.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President.
Senator Hannon has expressed his
concern with our efforts to simplify or
oversimplify something that is a very
complicated process. And believe me, all of
us here understand the complexity of that
process.
But the objective should not be to
make it complicated for the women who are
548
going to access services. The objective of
this amendment, in my opinion, is to simplify
it and clarify that all women are entitled to
mammograms, cytology screening, and other
critical services.
And I don't understand -- if the
objectives that were so articulated,
particularly by Senator Bonacic and by Senator
Hoffmann, are to be proven to be true, that it
should be our objective to make it as simple
as possible so that at the point of
examination there is no question.
The complication for this bill
resides with us. But it should not reside
with the women who go to seek services.
Simplicity is the hallmark. We
mystify things because it makes us feel
better. Simplicity is what we should be
seeking. Therefore, I urge that we support
this amendment.
ACTING PRESIDENT KUHL: Those
Senators in agreement with the amendment
please signify by raising your hand.
The Secretary will take the count.
THE SECRETARY: Those recorded in
549
agreement are Senators Breslin, Brown, Connor,
Dollinger, Duane, Gentile, Hassell-Thompson,
Hevesi, Lachman, Onorato, Oppenheimer,
Paterson, Sampson, Schneiderman, A. Smith,
M. Smith, and Senator Stavisky.
ACTING PRESIDENT KUHL: The
amendment is lost.
Senator Morahan, on the bill.
SENATOR MORAHAN: Thank you, Mr.
President.
Last week in this chamber I said
there was no such thing as a perfect bill, and
today I can repeat that statement. However, I
want to congratulate Senator Bruno, Senators
Bonacic and Rath for working so diligently to
move us to the point that we have come to
today.
As pointed out by Senator Bruno and
the sponsors, this matter, this critical issue
concerning women's health in the state of
New York has been debated here for at least
two years, perhaps even longer. And I guess
the question is, today, can we continue to
debate or is it time to move in the interests
of the women of this state.
550
Notwithstanding Senator
Schneiderman's objections or criticisms or
amendments, it seems to me and it's apparent
to me that great concern was given to that
issue when the bill provided for the
$12 million that Senator Bruno spoke about
earlier and Senator Hannon defended so
eloquently.
It is also equally apparent to me
that there is no compelling reason why we
cannot in the future look at these matters and
these bills and work towards making the bill
better, never perfect.
Those Senators who wish to wait for
the perfect bill can wait for that bill. The
question is, can the women of New York wait
until we get that perfect bill? It comes to
my mind, I wonder just how many women who were
here in New York, alive and well, when this
debate had started several years ago who are
not here today. It comes to my mind if we
wait for the perfect bill how many women in
New York who are with us today will not be
with us when we reach the final end toward
that perfect bill.
551
It seems to me that it's time to
take action. The conscience clause is -- not
that we're trying to overcome, has been
modified, has been narrowed. It is not the
same expanded conscience clause that we saw
before. But it shows that Senator Bruno and
this conference and members of this Senate
have moved and are willing to recognize the
concerns of others.
But it is not right to run
roughshod over the religious beliefs of some
organizations -- not a minor belief, but a
very deep-seated tenet of the Catholic
religion, and maybe others that I'm not aware
of.
I say that the women of New York
can no longer wait until this Legislature,
Assembly and Senate, come to that point where
all 61 or 62 or 69 Senators are happy with it.
I don't believe we'll ever reach that stage.
So those who want to procrastinate,
those who want to hold out can do that. But
you have to say, in good conscience, to the
people -- the women, especially -- in the
state of New York that we're going to wait,
552
we're going to work to perfect. In the
meantime, somebody will be crippled by
osteoporosis, someone will face agonizing pain
and death because we are not doing what we
ought to do.
Mr. Chairman, a lot of us sucked it
up on the conscience clause. I think
everybody here has to move in the right
direction. Therefore, I'm going to vote yes
on this bill.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 17 --
ACTING PRESIDENT KUHL: Senator
Dollinger, why do you rise?
SENATOR DOLLINGER: On the bill,
Mr. President.
ACTING PRESIDENT KUHL: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: Thank you,
Mr. President.
I just want to clarify a couple of
things that have been said during the course
of the debate that I think warrant comment.
553
I'm going to vote in favor of this
bill. With all due respect to Senator
Morahan, those who have been waiting for the
Senate to move -- to the best I can tell, I've
just been waiting. Because I haven't moved at
all.
I'm exactly where I was a year ago,
I'm exactly where I was two years ago when
Senator Connor stood up and argued that the
conscience clause should only apply to
religious organizations in their
ecclesiastical duties, eloquently argued it.
A position similar to what California and
other states have done. We put an amendment
almost identical to that on the floor of this
house a year ago, and it didn't happen.
I kept waiting. I didn't move. I
wanted mammograms freely available. I wanted
osteoporosis, like Senator Hoffmann spoke. I
wanted those things, and I didn't move either.
I stood here and waited.
And I would suggest that the people
of this state have been waiting for an awful
long time for this bill, Senator Morahan. But
the movement that occurred was not a movement
554
on behalf of most of the colleagues on this
side of the aisle. They've been waiting for
something else to move.
And it seems to me that the delay,
if there is a delay, is not chargeable to
those of us on this side of this house who
stood here a year ago and argued for
modifications in the conscience clause. That
delay has to be chargeable some other place,
but not with those of us who have not moved.
Some of us are standing firmly exactly where
we stood a year ago and where we have stood,
quite frankly, throughout our political
careers.
Secondly, I always am dismayed to
hear people say that those who haven't moved,
who have been standing still on this issue,
who have stood up for rights for women, who
have stood up for health care for women, that
we have politicized this issue by standing on
the floor of this chamber, by talking about
this bill, by advocating for changes in the
conscience clause a year ago -- that we are
the ones who have politicized this issue.
I would suggest that no one need
555
look any further than the calendar and realize
that the politicization of this bill, this
whole issue, occurs for one reason. One
reason alone. We're seven days away from a
special election in Manhattan in which this
issue is a critically important issue.
I would suggest to those who say we
are the people who have politicized this
issue, I would go back to a simple Sherlock
Holmes and Watson. Watson, put together the
following facts: They do nothing for a year,
they sit on the bill, nothing happens, and
then all of a sudden it becomes a critical
issue in a special election. And the very
last day that you could do this bill to
influence that election, you then do the bill
in basically a take-it-or-leave-it fashion for
the Assembly.
I would say: Dear Watson, what
conclusion do you draw? What would be your
deduction, Mr. Watson?
Elementary, my dear: It's
politics.
Those who accuse those of us who
have never moved on this issue, who are in the
556
same position we've been in for the last four
or five years -- or, in some cases, and I'll
include myself, for our entire political
careers -- we have not moved. I would suggest
the movement and the timing of the movement
would suggest that there is a politicization
of this issue. It does not rest with the
Democrats in this house. It rests some other
place.
I applaud the fact that there's
been movement. I applaud the fact that we're
getting this done. I'm deeply dismayed,
Senator Morahan, that it took two years to do
it, because the women of this state have been
waiting a long, long time for someone to move.
I don't know, Watson, who could that someone
be?
I'm going to stand right where I
always was. I would have voted in favor of
this two years ago, I would have voted in
favor of it a year ago, I would have voted in
favor of it in 1993 when I first came here,
because it's the right thing to do. My
principles haven't changed. Where I stand
hasn't changed. I vote aye.
557
ACTING PRESIDENT KUHL: Senator
Schneiderman, why do you rise?
SENATOR SCHNEIDERMAN: On the
bill.
ACTING PRESIDENT KUHL: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: Mr.
President, I rise to follow my distinguished
colleague and expert in detective fiction,
Senator Dollinger -- not to further debate any
of the issues that have been debated, but I
urge two things.
First of all, I recognize and I
acknowledge -- and many of you know that long
before I was in the Senate, I was a part of
the prochoice movement. I would have been one
of those advocates that would have received
praise from Senator Hoffmann had I not been in
the Senate. And perhaps that would have been
okay with everybody over there.
But -- and I think it is important
to praise the advocates. Although I would
urge also, Senator Hoffmann, I've never heard
of A606. There is the American College of
Obstetricians and Gynecologists, ACOG. And I
558
don't want them to feel disrespected here,
because we all make slips.
But I would like to suggest again
to Senator Bruno that there are some other
slips in this legislation, that this can be
made better. And again, I call attention to
the point about the lack of clarity that the
riders will not cost anyone anything that
Senator Connor and I mentioned earlier.
And that we should not go forward
in this session with the attitude that we
won't go to conference committee, we won't
negotiate any further. I hope we will. And I
know Senator Bruno has a good record of doing
those things as we get closer to the end of
the session. I hope that will be true in this
case.
I would also like to add some other
people who deserve praise to the list of
people who have been mentioned today, because
this has been a collective effort for a long
time. And I realize that we have great pride
in our abilities in this house, but certainly
without the work of Assemblywoman Deborah
Glick organizing the Women's Health and
559
Wellness Coalition, I don't think we would
have come to this point.
And I'd also like to mention
someone -- Senator Dollinger mentioned an
election. I don't want to talk about that
election, because that would be too political.
But I want to mention someone else whose name
hasn't come up, and that's Senator Roy
Goodman, who dealt with this issue extensively
in last year's campaign when he debated it
with an extraordinarily articulate and
brilliant opponent who put it in her
literature and put it on her ads. And Senator
Goodman kept this issue alive. And I think he
does deserve mention as well before we do
this.
I think I'm going to vote yes for
this bill, but I'm voting yes and urging that
we do send this to a conference committee and
that we come back with an even better bill
before the end of the session.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 17. This
act shall take effect on the first day of
560
January.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Senator
DeFrancisco, to explain his vote first.
SENATOR DeFRANCISCO: Yes. You
know, there's been a lot of accusations about
what held this bill up. In my law practice, I
do a lot of cases dealing with women who have
had cancer not diagnosed on a timely basis.
We've had family members that have had many of
these diseases.
This bill could have passed in one
day by both houses if the health issues
dealing with breast cancer, cervical cancer,
and osteoporosis had been the bill. Those are
the things that are killing people. People
have no choice over that. You get the
disease, you need health care. That's what
the health care bill is about.
This could have passed two years
ago, and the people that we've been saying may
have died two years ago or may die two years
from now, that could have been prevented if we
561
separated the one issue that clearly is the
issue dividing everyone, concerning
contraception.
And all I'm saying is that a health
bill like this is extremely important. We
could pass it in both houses. We have not got
the concurrence from the Assembly yet.
I have a problem, very simply, and
people know about this problem. And that is
we make exemptions for religious organizations
all the time. There's a bill right now where
you don't have to wear a helmet on a bike if
you're a kid of a certain religion and you
have to wear a certain headgear. We do it all
the time. There's all kinds of bills; I could
go through many of them.
The fact of the matter is the
conscience-clause bill that we passed that I
supported was a bill that protected 99 percent
of the women. And the only ones that it
didn't protect -- it protected 100 percent of
the women on the diseases. Maybe 1 percent
were not covered under the conscience clause
that we passed before.
And now we're requiring the
562
Catholic Church simply to, against the basic
tenet of the church, to allow for the
dispensation of contraceptives. I just think
it's wrong. Everybody has their own opinion.
And that's the only reason I'm voting no.
Don't anybody ever accuse me of not voting for
this bill because of the cancer protection and
the osteoporosis protection, because that is
not my intent whatsoever.
And hopefully this bill will come
back in a different form that would separate
the two bills at a later date.
ACTING PRESIDENT KUHL: Would the
negatives raise their hands again.
Senator Stachowski, to explain his
vote.
SENATOR STACHOWSKI: Mr.
President, to explain my vote.
Along with Senator DeFrancisco, I
also have that same problem with the religious
part.
And it's even more than that. And
it's that the Buffalo bishop claims that he is
going to have to go to court, spend a lot of
money on legal fees, besides having to offer
563
the coverage, which -- the rider he doesn't
mind, but in this particular conscience clause
that's in this particular bill, he's going to
have to prove that his schools are Catholic,
that his hospitals are Catholic, and his
nursing homes, if he has any, are Catholic.
And that's kind of a problem when you're
adding another expense to go through a bunch
of legal fees.
And as much as I would love to take
Senator Bruno's word, because I trust him all
the time on things he says, but a lot of times
the things that are said on the floor that the
bill will do and that everybody will have
money to cover the copays, and that we'll
advertise it in our ads -- well, heck, the
Governor is on TV all the time in ads for
Family Health Plus, and they don't have enough
people signing up.
So my fear is again we're going to
have too many women that, when faced with the
choice of paying $20 up front or not getting
the test, they are not going to get the test.
So it's a big problem still.
And for those couple of reasons,
564
I'm voting no.
ACTING PRESIDENT KUHL: Senator
Stachowski will be recorded in the negative.
Senator Marchi, to explain his
vote.
SENATOR MARCHI: Yes, thank you,
Mr. President.
The old Latin invocation of carpe
diem, seize the moment. I don't question
anybody's motivation on either side of the
aisle, why we're here and what we are
considering. We know specifically we have
this bill.
I remember 60 years ago I was a
young ensign -- it's difficult for anybody to
believe that anybody 60 years ago was an
ensign. And at that time, the distribution of
contraceptives was promiscuous. And I don't
recall now whether there was a slight charge
or whether they were distributed gratis. But
much was made, and I remember speaking to a
chaplain 60 years ago, because I felt
challenged on my own convictions on the
subject. And they said, "Well, the loss of
life, this is worse than being bombed out
565
during the war."
We have 41,000 casualties that
could be materially reduced. That's over 850
a week. This is a tremendous number of people
who are paying a price for something that we
can address directly. Does this mortgage or
put a lien on us about future legislation?
I'm sure that some of these provisions will be
addressed in the future.
But we have a bill before us that
promises major savings. And I remind you that
we go to pharmacists, and many of them are
Catholic, many of them are not. But they are
available, and the services are available.
So the arguments that have been
made are not futile. They have their appeal,
and they strike a certain resonance even with
myself. But on the other hand, with the heavy
death toll that we have, the fact that we have
a vehicle for supplying substantial
intervention and assistance to the women of
this state in reducing that number, and doing
it in a sane and sensible fashion, does not
foreclose ameliorative amendments in the
future or joinder in the issue.
566
I voted to abolish the death
penalty, and it was abolished. I remember
Eddie Lentol, Senator Lentol made a very
passionate appeal and convinced us. I
remained with that position even after that,
when it was reinstated.
But we have an obligation today on
voting on specific legislation that holds
major promise to be activated and to be
responded to positively. So I congratulate
Senator Bruno and Senator Bonacic or anybody
else on either side of the aisle who feels
that, on balance, we are making progress in an
area where we have not been.
So I vote yes on this bill, not to
waive any of my feelings on other aspects that
I have not joined.
ACTING PRESIDENT KUHL: Senator
Marchi will be recorded in the affirmative.
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 138 are
Senators DeFrancisco, Farley, Maltese,
Maziarz, Meier, Padavan, Stachowski, and
Volker. Ayes, 49. Nays, 8.
567
ACTING PRESIDENT KUHL: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there will be an immediate meeting of the
Transportation Committee in the Majority
Conference Room.
ACTING PRESIDENT KUHL: Immediate
meeting of the Transportation Committee,
immediate meeting of the Transportation
Committee in the Majority Conference Room,
Room 332.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to reports of standing
committees, I believe there's a report of the
Finance Committee at the desk. I ask that be
read.
ACTING PRESIDENT KUHL: We will
return to the order of reports of standing
committees.
There is a report from the Finance
Committee at the desk. I'll ask the Secretary
to read.
THE SECRETARY: Senator Stafford,
568
from the Committee on Finance, reports the
following nominations:
As members of the Adirondack Park
Agency, William H. Kissel, Esquire, of Lake
Placid; Frank L. Mezzano, of Lake Pleasant;
Deanne Rehm, of Bolton Landing; and James T.
Townsend, Esquire, of Rochester.
As a member of the New York State
Bridge Authority, David Teator, of
Mellenville.
As a trustee of the Power Authority
of the State of New York, Louis C. Ciminelli,
of Buffalo.
As a member of the State
Environmental Board, Kevin Bowman, of Rexford.
As a member of the Empire State
Plaza Art Commission, J. Stanley Yake, of
Rexford.
As members of the Medical Advisory
Committee, Russell Nicholas Ake Cecil, of
Amsterdam; Dennis P. Norfleet, M.D., of
Oswego; Elena Padilla, of New York City;
Michael P.M. Pond, M.D., of Saranac Lake; and
Roger W. Triftshauser, D.D.S., of Batavia.
As director of the Municipal
569
Assistance Corporation for the City of New
York, Jonathan A. Ballan, Esquire, of New York
City.
As a member of the Board of
Directors of the Roosevelt Island Operating
Corporation, Joan O. Dawson, of New York City.
As members of the Advisory Council
on Alcoholism and Substance Abuse Services,
Theodore T. Nevills, of Adams; John W.
Russell, Jr., of Staten Island; Charles F.
Schewe, of Saratoga Springs; and Veronica A.
Uss, of Livingston Manor.
As members of the Advisory Council
to the Commission on Quality of Care for the
Mentally Disabled, Anna Marie Lusins, of
Oneonta, and Dimitra Risueno, of Park Slope.
As a member of the New York State
Office of Science, Technology and Academic
Research Advisory Council, Brian Ruder, of
Scarsdale.
As members of the State Camp
Advisory Council, George G. Coleman, of
Bellmore; Judith H. Reilly, of Utica; and
Robert C. Scheinfeld, Esquire, of
New Rochelle.
570
As members of the Board of Visitors
of the Brooklyn Developmental Disabilities
Services Office, Virginia Casey, of Brooklyn,
and Era Fischetti, of Brooklyn.
As members of the Board of Visitors
of the Broome Developmental Disabilities
Services Office, Joseph F. Abissi, of Johnson
City, and Mary C. Weidman, of Oxford.
As members of Board of Visitors of
the Capital District Psychiatric Center, E.
Bernice Danks, of Averill Park, and Marcella
B. Ryan, of Hudson Falls.
As members of the Board of Visitors
of the Central New York Developmental
Disabilities Services Office, Eleanora L.
Collins, of Rome, and Henry F. Miller, of
Barneveld.
As a member of the Board of
Visitors of the Bernard M. Fineson
Developmental Disabilities Services Office,
Charles Naroff, of Flushing.
As a member of the Board of
Visitors of the Hudson River Psychiatric
Center, Marion Ostrander, of Kingston.
As a member of the Board of
571
Visitors of the Kingsboro Psychiatric Center,
Robert Mayo, D.D.S., of Brooklyn.
As a member of the Board of
Visitors of the South Beach Psychiatric
Center, Robert S. Flanzer, D.D.S., of
Brooklyn.
As a member of the Board of
Visitors of the Staten Island Developmental
Disabilities Services Office, Frank L.
Tellefsen, of Staten Island.
As a member of the Board of
Visitors of the Sunmount Developmental
Disabilities Services Office, Gilbert A.
Duken, of Plattsburgh.
And as a member of the Board of
Visitors of the Taconic Developmental
Disabilities Services Office, Theresa
Sgrulletta, of Mount Kisco.
ACTING PRESIDENT KUHL: Senator
Skelos.
SENATOR SKELOS: Move the
nominations.
ACTING PRESIDENT KUHL: All those
in favor signify by saying aye.
(Response of "Aye.")
572
ACTING PRESIDENT KUHL: Opposed,
nay.
(No response.)
ACTING PRESIDENT KUHL: The
nominations are confirmed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to the calendar and please
take up Calendar Number 91.
ACTING PRESIDENT HOFFMANN: The
Secretary will read Calendar 91.
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: Explanation.
SENATOR SKELOS: Madam President.
ACTING PRESIDENT HOFFMANN:
Senator Skelos.
SENATOR SKELOS: If we could have
the last section read at this time for the
purposes of Senator Stachowski voting.
ACTING PRESIDENT HOFFMANN: Read
the last section.
THE SECRETARY: Section 12. This
573
act shall take effect immediately.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
SENATOR STACHOWSKI: No.
SENATOR SKELOS: Senator
Stachowski will be recorded in the negative,
and please withdraw the roll call at this
time.
ACTING PRESIDENT HOFFMANN: The
roll call is withdrawn.
Senator Kuhl, an explanation has
been requested.
SENATOR KUHL: Senator Paterson,
this is a bill that is really very
single-purposely intended. It's a bill that
has been introduced before and has passed this
house with, I think at most at any time, four
negative votes.
Back in 1994, this Legislature saw
fit, with the Governor's approval, to pass a
bill aimed at providing safety to those
children under the age of 14 who were riding
bicycles by requiring them to and mandating
that they wore safety-approved helmets.
574
What has occurred is that we have
become aware that in fact that there are some
circumstances where the wearing of a helmet
interferes with the wearing of certain
religious clothing apparel, and it creates a
conflict in some children under the age of 14.
So this bill essentially allows for
an exemption when it is inappropriate, in
accordance with the maintenance of a religion,
to wear a headpiece that becomes essentially
impossible to wear a helmet with, and allows
for that exemption to occur without creating a
violation for the person if they choose to do
that. A very simple process here.
SENATOR PATERSON: Madam
President, if Senator Kuhl would yield for a
question.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl, will you yield for a question?
SENATOR KUHL: I'd be happy to
yield to Senator Paterson.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl yields to Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President.
575
I know that Senator Kuhl will stand
with me, particularly at home, where I'd like
people to know that I'm more flexible, because
I've voted against this bill for three years,
and Senator Kuhl's persistence and articulate
way of explaining this legislation has
prevailed upon me.
But I would like to ask him to
reflect on the value of protection,
particularly for children at that age, and the
fact that this is the type of law that is
quite often violated by those who, for any
reason that they might think of, might wish to
ignore the law, not understand the public
safety element, and not wear the helmets.
And while trying to accommodate the
specific problem that exists in Senator Kuhl's
district and in some other places as well, how
do we at the same time make sure that what we
accomplished in 1994 by passing the
legislation is really enforced and is
understood to be very serious? Because there
have been serious accidents sustained by young
people, one in my family, years ago, where
there was no helmet being used.
576
SENATOR KUHL: Senator Paterson,
I think you, being the experienced legislator
that you are, have often experienced that this
body is really -- and I don't necessarily
imply this to the Senate by itself, but also
the Assembly, and I think legislatures across
the country, we depend to be reactionary
bodies. And when in fact we see a problem, we
tend to react to that.
And oftentimes a problem is really
manifested in not a hundred percent of the
population. We might find that only 2 percent
of the population really are in need of
direction, whether it's wearing seat belts,
whether it is some sort of a violation of the
civic code, or whatever it happens to be.
And in this particular case, the
safety issues as it relates to bicycles, it is
my position and my belief that not every child
needs to actually wear a safety helmet to be
safe. That in fact you're talking about
instances of maybe 1 or 2 or 3 percent of the
actual population that uses bicycles that
might put themselves at jeopardy.
And I think if you start to look at
577
the reasons why people -- in this particular
case, children -- use bicycles, you'll see
that for the most part it's for their
amusement. It's one of those things that they
get some great benefit out of riding around
here or there.
Now, the population that we're
addressing primarily is a Mennonite community
out in my area who does not use bicycles for
amusement. They use them for actual
transportation. They have one-room
schoolhouses that are located in the general
vicinity of their homes, but this is how they
get back and forth to school, for the most
part, or walk.
And so they have a tendency to be
trained in the use of bicycles. They're not
out there doing frivolous kinds, fun kinds of
things in an amusement way. It's not
recreation for them. It is -- if you know
anything about the Mennonite community, they
are generally very serious people. They go
about the living of life in a very serious
way. And that is not to demean them, it's
just saying they do what their tasks are, what
578
their jobs are. They grow up, they're trained
in that sort of thing. But they use bicycles
to get back and forth. It's a means of
transportation.
I have not, in the course of my
representation in my area, heard of one
Mennonite child having an accident that would
have -- even having an accident, number one,
much less having an accident that a helmet
would have saved any kind of injury.
So what this proposal is meant to
do is to deal with a very small, almost finite
percentage of the population, and deal with
people who really don't need to be forced or
mandated to wear safety helmets, because
they're already safe.
But there is definitely an
interference with the carrying on of their
religious tenets. So that is the reason for
the bill. If I thought that we were balancing
safety as opposed to religious belief, well, I
might not propose the bill. But I don't sense
that's the situation here, Senator.
ACTING PRESIDENT HOFFMANN:
Senator Lachman.
579
SENATOR LACHMAN: Yes, Madam
President, on the bill.
This morning one of my colleagues
approached me and asked me the same question
another colleague asked me yesterday: Why
don't they take off their black caps and use
skullcaps, or yarmulkes? The problem is we're
not talking about the Hasidim, we're talking
about the Mennonites of upstate New York, and
they usually don't wear skullcaps.
This is a very difficult bill to
vote on because it pits two major, positive
issues together on this issue. In my opinion,
it pits the issue of public safety, which is
really very, very important, and it pits the
issue of freedom of religion, which in my eyes
is also very, very important.
America's great contribution to the
world is the First Amendment to the U.S.
Constitution, written by James Madison, that
spells out separation of church and state.
But it spells it out in such a way -- it says
Congress shall make no law respecting an
establishment of religion, part one, or
prohibiting the free exercise thereof, part
580
two of the First Amendment to the U.S.
Constitution.
Now, I believe that Senator Kuhl's
bill falls under part two.
But I think, because of our general
separation of church and state, America has
become a veritable greenhouse for religions.
Just think of it. The Disciples of Christ,
the Mormons, the Christian Scientists all
started here. The Baptists, the Methodists,
who were small groups in Europe, blossomed
here because of this First Amendment. Why?
Because there was no prohibition against the
free exercise thereof.
And why did the Mennonites come to
America? They could have come to my district,
they could have come to Senator Kuhl's
district. They came to Senator Kuhl's
district. But because there were
discriminatory acts that prevailed against
Mennonites and people of the Amish faith.
Now, a similar bill in terms of
freedom of religion, going against the
constitution of a state, reached the Supreme
Court in the year 1972. It was called Yoder
581
versus Wisconsin. Now, the state constitution
of Wisconsin said that every child must attend
a school until a certain age, and every child
must attend a high school. In a
precedent-setting decision, the U.S. Supreme
Court ruled by six to one, with two
abstentions -- I think the new Supreme Court
Justice Rehnquist, today U.S. Chief Justice,
recused himself because he was assistant
attorney general when the case was in the
courts.
But the case brought together the
liberals of the court and the conservatives.
The chief liberal of the court was Justice
Brennan at that time, and the conservative
chief justice was Justice Burger. And they
held that there can be exceptions for state
law that mandate education if the religious
groups feel that that education is against
their religious beliefs and the need for their
religious growth and maturity, as did the
Amish and the Mennonites.
So now in the state of Wisconsin
they don't have to attend public school after
a certain age, and it is given into the hands
582
of the parents to do what they can in terms of
educating these children.
Madam President, I believe that
this bill is a major aspect of what is unique
to America, and that is the aspect of not
denying or prohibiting the free exercise of
thereof. For these young men to take off
their hats, for these teenagers to take off
their hats and put on helmets would be a
diminution of the free exercise of their
religion.
Now, from our perspective we might
disagree. From their perspective, we cannot
disagree. And if we set a precedent against
the religious beliefs of one religion,
regardless of how small and where it exists in
upstate New York, I'm very, very wary and
afraid that there will be other precedents in
the area of religion set by the United States.
So in upholding the decision of
Wisconsin versus Yoder, I support my
distinguished colleague, Senator Kuhl, in this
bill.
ACTING PRESIDENT HOFFMANN:
Senator Stavisky.
583
SENATOR STAVISKY: I wonder if
Senator Kuhl would answer one very brief
question.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl, will you yield for a question?
SENATOR KUHL: I would be happy
to.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl will yield.
SENATOR STAVISKY: Your bill
refers to children under the age of 14, if
their religious tenets, et cetera.
Would this affect or can we assume
that people who wear turbans, such as the Sikh
community, would not be affected by this
legislation?
SENATOR KUHL: It only affects
children under the age of 14.
SENATOR STAVISKY: Children. And
it's my understanding that children under the
age of 14 do not wear the head --
SENATOR KUHL: Then it would not
affect those people.
SENATOR STAVISKY: Then it would
not affect them. Thank you.
584
And I would also -- excuse me, if
the Senator would yield.
ACTING PRESIDENT HOFFMANN: On
the bill, Senator Stavisky?
SENATOR STAVISKY: No, if he
would answer one more question.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl, will you yield for an additional
question?
SENATOR KUHL: Yes.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl yields.
SENATOR STAVISKY: I assume that
this would not affect those people wearing the
skullcap or yarmulke.
SENATOR KUHL: Not at all, unless
it interferes with the actual implementation
of wearing of the helmet. And I don't think
that would.
SENATOR STAVISKY: I don't
either. Thank you, Senator Kuhl.
ACTING PRESIDENT HOFFMANN:
Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President. Would the sponsor please yield?
585
ACTING PRESIDENT HOFFMANN:
Senator Kuhl, will you yield for a question
from Senator Hevesi?
SENATOR KUHL: Yes.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl yields.
SENATOR HEVESI: Thank you, Madam
President.
I know that you didn't advance the
argument that Senator Lachman advanced, but
I'm curious to know whether you agree with
Senator Lachman that the current law is -- the
law we have on the books right now is
unconstitutional.
SENATOR KUHL: I don't know as
the current law in its totality, Senator, is
unconstitutional.
I do think, however, that a court
could seriously consider the provision as it
relates to children under the age of 14 as
being unconstitutional, as we have noted in
this bill.
I did not take the same tack as
Senator Lachman, because he is much more
versed in constitutionality along these lines,
586
and he does a much better job, quite frankly,
in that presentation than I could possibly
ever think of.
So, yes, I support his position and
welcome his support.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
continue to yield?
ACTING PRESIDENT HOFFMANN:
Senator Kuhl, will you yield for another
question?
SENATOR KUHL: Yes.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl yields.
SENATOR HEVESI: Thank you.
The reason I asked that question is
because there seems to be a problem in the
Assembly with passing this legislation. And
my understanding, from looking at the
legislative history, is that this bill has
been brought in this house every year -- with
the exception of last year, I believe -- since
1995.
And so it seems unlikely, unless
something new is about to happen, that this is
587
going to become law, because the Assembly
obviously shares some of the objections that
some of my colleagues here share.
My question to you is, why have the
Mennonite community that you represent not
gone to court to try and have the current law
returned, or at least the exception that they
have noted?
SENATOR KUHL: Senator, I would
welcome you to come visit my district and
visit with the Mennonite community. And I
think that if you had the opportunity to do
that, you would know and very quickly be able
to figure out what the answer to your question
is.
And what you will find -- and I
explain this to you just so that you know and
can anticipate, and that is that this
particular religious community really does not
rely on much in the way of governmental
control, nor do they look to support or
degrade or not support. They just do not
participate in the governmental nor the court
structures.
They tend to do that -- and they're
588
really kind of a self-contained community.
They tend to deal with their problems within
the community and rely solely upon the support
amongst themselves.
So for them to go to court to
challenge this kind of thing would be really
very, very, very out of context with what they
are and who they are. Let me give you a
for-instance.
We have had, as a result of
legislation that was passed back in, I think,
1981, when we created the New York State
Building Code -- there are provisions within
that that require, for instance, running water
in all public restroom facilities. Well, in
the public facilities that they have, known as
a one-room schoolhouse, they don't have
running water in that schoolhouse. They still
operate with outdoor facilities. And to have
outdoor facilities with running hot and cold
water, you have to have heat, which they
don't, and that's a whole additional expense.
And so when they came into that
conflict, they found it very obtrusive to have
to go to any kind of a hearing to look for a
589
variance. So on their behalf, we went to the
state and asked for a variance on a statewide
basis, which they were granted.
But for them to participate in
something so insignificant as that -- not that
they weren't taking care of their own public
health, because they had water, fresh water
inside for the children to take care of
washing their hands, and on and on and on --
was very obtrusive to them, and they would not
participate in it.
They do not vote. So is there
something for me to be gained by bringing this
legislation?
SENATOR HEVESI: No, that
wasn't --
SENATOR KUHL: The answer is no.
And I know that you weren't inferring that,
I'm just simply saying they don't vote, they
don't participate in it, because they're a
separate community who really don't want to
be -- do they file workers' compensation
claims? The answer is no. But do they pay
taxes? Yes, they do. So they participate by
paying what's required of them, but they don't
590
utilize the services that we provide for them.
So I'm kind of -- and this
particular provision, I don't want some
Mennonite child to face the real trauma that
they would face for being cited for a
violation of this section because they choose
to wear their hat rather than a safety helmet
on their way to school. I think that that's
an inordinate burden that we place on them, an
unnecessary burden that we place on them, and
I think it's just unfair and has been from the
very beginning, since 1994.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
continue to yield?
ACTING PRESIDENT HOFFMANN:
Senator Kuhl, will you yield?
SENATOR KUHL: Yes.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl continues to yield, Senator
Hevesi.
SENATOR HEVESI: Thank you.
What have the Mennonite children
been doing since 1994? They're not allowed,
under state law, to ride their bicycles
591
without a helmet. Have they been complying
with that law?
SENATOR KUHL: No. We've made
criminals out of them, essentially. But they
haven't been cited as criminals, because
that's been overlooked.
SENATOR HEVESI: Thank you.
And one final question, if the
sponsor would continue to yield.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl, will you yield for one final
question?
SENATOR KUHL: Yes.
ACTING PRESIDENT HOFFMANN:
Senator Hevesi, Senator Kuhl yields.
SENATOR HEVESI: Thank you.
I'm not terribly familiar with the
Mennonite religion, but I'm curious as to why
the religious leaders in that community would
not have seen fit to make an exception in this
case, where it seems pretty apparent that
wearing a helmet is conducive to the safety of
children. If it's good for the rest of the
children in the state, it's good for their
children too.
592
Understanding that there is a
religious purpose to requiring children to
wear the headgear, it would seem to be fairly
consistent that they would wish to protect the
children in the Mennonite community, even
though under ordinary circumstances they would
require the wearing of the headgear. So why
have they not made that exception?
SENATOR KUHL: I can't answer
that, Senator. I don't know that it's even
been discussed. I would doubt that it's been
discussed, just knowing the basic, overall
approach that they take to carrying on life.
SENATOR HEVESI: Okay. Thank
you.
Madam President, on the bill.
ACTING PRESIDENT HOFFMANN:
Senator Hevesi, on the bill.
SENATOR HEVESI: Thank you.
I thank the sponsor. I know why
he's bringing this legislation. We had a
large debate, a lengthy debate and discussion
about this last year.
I guess I'm somewhat upset to hear
that the children of the Mennonite community
593
are not wearing helmets now, because it is the
law of the land. And I understand that there
is a religious compulsion to wear the
headgear, which seemingly would preclude the
wearing of the helmets.
I disagree with Senator Lachman and
the others who have suggested that we are not
free to regulate the conduct of those who
reside within our state under any
circumstances. And if ever there was a
compelling circumstance, it would seem to me
that in the course of trying to protect a
child who is clearly more at risk to harming
themselves -- that was the purpose of the 1994
law -- if they were to have an accident,
particularly a head trauma, while riding a
bicycle, their chance of escaping with less of
an injury if they're wearing a helmet is
increased tremendously.
And so I don't understand why the
religion wouldn't allow, as other religions
allow -- for example, in the Jewish faith, on
Yom Kippur, though you are supposed to fast,
if you don't feel well you are allowed to
drink and you are allowed to eat.
594
It would seem to me that we are
sending the wrong message. And it does not
violate any constitutional provision. And if
the -- I'm sure if the Mennonite community
felt so strongly about this, I'm sure there's
a nonprofit organization that would, on their
behalf, even if they didn't request it, would
bring a suit to challenge the current law.
But I don't think that the current law is
susceptible to such a challenge, because we
can regulate that conduct.
So I'm going to be voting against
this bill, notwithstanding the fact that I
very much appreciate what Senator Kuhl is
trying to do in representing his constituents.
Thank you.
ACTING PRESIDENT HOFFMANN:
Senator Montgomery, on the bill.
SENATOR MONTGOMERY: Yes, Madam
President. Through you, I would like to ask
Senator Kuhl a question for clarification.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl, will you yield for a question
from Senator Montgomery?
SENATOR KUHL: Yes.
595
ACTING PRESIDENT HOFFMANN:
Senator Kuhl yields.
SENATOR MONTGOMERY: All right.
Thank you.
Senator Kuhl, I'm just trying to
understand the extent of the coverage in this
legislation. It says that it's applicable --
it exempts any child under the age of 14 if
the religious tenets of such child's
established form of religion necessitates the
wearing of religious headwear.
Now, there -- and then I have a
note from staff where it seems that -- well,
maybe this is from you. I don't know. It
seems that you were trying to specifically
address a particular group in your district.
But what I want to ask you is,
there are other religious groups that wear
this kind of headgear. Now, does this bill
also exempt -- does this -- every child in the
state and every religious tenet and every
group that wears these kind of hats, because
there are other groups that wear headgear of
various sorts, different religions, are all of
those children exempt from wearing helmets?
596
SENATOR KUHL: Under this bill,
yes, Senator. It's all-inclusive.
SENATOR MONTGOMERY: It covers
everyone?
SENATOR KUHL: Yeah. Quite
frankly, I don't know how it would exclude one
religious group from another.
SENATOR MONTGOMERY: I wouldn't
think so.
SENATOR KUHL: In terms of
fairness, I don't see how you can treat one
differently than another.
SENATOR MONTGOMERY: Absolutely.
Okay, that's clear.
One last question.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl, will you continue to yield?
SENATOR KUHL: Yes.
ACTING PRESIDENT HOFFMANN:
Senator Kuhl yields, Senator Montgomery.
SENATOR MONTGOMERY: Thank you,
Madam President.
Senator Kuhl, you know, I think
that we have tried to do legislation to
require helmets for children who ride
597
bicycles, do scooters, do those kinds of
things where they are moving fast and they
could sustain a head injury if they should
fall as they are moving.
So those other aspects, whatever
children are using, are also exempt under this
bill? In other words, the children whose --
who are required to wear headgear of some sort
are exempt from having to wear helmets no
matter what they're doing, in terms of whether
they're using a bicycle or a scooter or a
motor scooter or any of those kinds of things?
SENATOR KUHL: This only applies
to bicycles.
SENATOR MONTGOMERY: Only
bicycles. Okay. Thank you. Thank you.
Madam President, just briefly on
the bill.
ACTING PRESIDENT HOFFMANN:
Senator Montgomery, on the bill.
SENATOR MONTGOMERY: Yes. I have
voted no in prior years to this legislation.
And I just want to be very clear that, one,
there are a number of groups that wear
headgear. You know, some Muslims use headgear
598
quite extensively. I know of some religious
Jewish groups that wear headgear, and so forth
and so on.
So what we're doing, essentially,
is exempting a very large -- potentially large
segment of our children from using headgear to
protect them from the possibility of serious
brain injury if they should fall while using a
bicycle or any other form of equipment similar
to that, simply because they are born into a
family that practices certain religion,
they're required to wear certain gear in a
certain way, and they're really not able to
make those decisions.
So I am voting against this,
because I think it goes against the obligation
of the state to protect children no matter
what their religion and no matter what their
parents require them to wear. Our role is to
protect them.
So I'm going to be voting no on
this.
ACTING PRESIDENT HOFFMANN:
Senator Padavan.
SENATOR PADAVAN: Yes, Madam
599
President. I'm going to vote for this bill.
And I might, just as a matter of
information, advise Senator Kuhl and others
that there is a large Sikh community in the
city of New York, over 350,000 of them. They
have large families. And young Sikh boys are
required to wear headgear that would preclude
helmets. So we're talking about more than
Mennonites.
However, I do believe, as Senator
Kuhl apparently does in this instance, that
when we have a significant religious
conviction that would be undermined as a
result of a state law, that the law must give
way. And that's what that bill does. With
all the pitfalls that you talked about,
Senator.
Regrettably, in a prior piece of
legislation we passed in this house today, we
didn't take that stand into consideration.
Somewhat of a dichotomy.
Nevertheless, I think this bill
makes sense and I will vote for it.
ACTING PRESIDENT HOFFMANN: Read
the last section.
600
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT HOFFMANN:
Results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 91 are
Senators Hevesi, Libous, Montgomery, and
Stachowski. Ayes, 54. Nays, 4.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, may we return to the reports of
standing committees. I believe there are
reports at the desk.
ACTING PRESIDENT HOFFMANN:
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Trunzo,
from the Committee on Transportation, reports:
Senate Print 106, by Senator
Marcellino, an act to amend the Vehicle and
601
Traffic Law;
419A, by Senator Skelos, an act to
amend the Vehicle and Traffic Law;
4673, by Senator Trunzo, an act to
amend the Highway Law;
5082, by Senator Leibell, an act to
amend the Highway Law;
5271, by Senator Trunzo, an act to
amend the Vehicle and Traffic Law;
5364, by Senator McGee, an act to
amend the Highway Law;
And 5670, by Senator Libous, an act
to amend the Highway Law.
Senator Morahan, from the Committee
on Veterans and Military Affairs, reports:
Senate Print 89, by Senator
Maltese, an act to amend the Real Property Tax
Law;
1158, by Senator Morahan, an act to
amend the Military Law;
1733, by Senator Morahan, an act to
amend the Education Law;
And Senate Print 3720B, by Senator
Morahan, an act to amend the Civil Service Law
and others.
602
All bills ordered direct to third
reading.
ACTING PRESIDENT HOFFMANN:
Without objection, all bills will be reported
direct to third reading.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, is there any housekeeping at the
desk?
ACTING PRESIDENT HOFFMANN: Yes,
Senator McGee has a motion.
SENATOR McGEE: Madam President,
on behalf of Senator Balboni, I move that the
following bills be discharged from their
respective committees and be recommitted with
instructions to strike the enacting clause:
6262A.
ACTING PRESIDENT HOFFMANN: So
ordered, Senator.
SENATOR McGEE: Thank you, Madam
President.
SENATOR FUSCHILLO: If you would
please recognize Senator Montgomery.
ACTING PRESIDENT HOFFMANN: The
chair recognizes Senator Montgomery.
603
SENATOR MONTGOMERY: Yes, thank
you, Madam President. I would like unanimous
consent to be recorded in the negative on
Calendar 72.
ACTING PRESIDENT HOFFMANN:
Without objection, Senator Montgomery will be
recorded in the negative on Calendar Number
72.
SENATOR MONTGOMERY: Thank you.
ACTING PRESIDENT HOFFMANN:
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, there being no further business to
come before the Senate, I move we adjourn
until Monday, February 11th, at 3:00 p.m.,
intervening days being legislative days.
ACTING PRESIDENT HOFFMANN: On
motion, the Senate stands adjourned until
February 11th at 3:00 p.m., intervening days
being legislative days.
(Whereupon, at 1:26 p.m., the
Senate adjourned.)