Regular Session - March 6, 2002
1018
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 6, 2002
11:26 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
1019
P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we bow our heads in a moment of
silence, please.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Tuesday, March 5, the Senate met pursuant to
adjournment. The Journal of Monday, March 4,
was read and approved. On motion, Senate
adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
1020
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Maltese,
from the Committee on Elections, reports:
Senate Print 2682, by Senator
Maltese, an act to amend the Election Law;
2904A, by Senator Maltese, an act
to amend the Election Law;
3065A, by Senator McGee, an act to
amend the Election Law;
3670, by Senator Maltese, an act to
amend the Election Law;
And 3684, by Senator Larkin, an act
to amend the Election Law.
Senator LaValle, from the Committee
on Higher Education, reports:
Senate Print 1103A, by Senator
LaValle, an act to amend the Education Law;
2340A, by Senator LaValle, an act
to amend the Education Law;
3073, by Senator Lack, an act to
authorize;
4145, by Senator LaValle, an act to
amend the Education Law;
1021
4156, by Senator LaValle, an act to
amend the Education Law;
And 4748, by Senator Padavan, an
act to amend the Education Law.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
objection, all bills reported direct to third
reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Wright.
SENATOR WRIGHT: Thank you, Madam
President.
On behalf of Senator Stafford, I
wish to call up Calendar Number 230, Assembly
Print Number 871E.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
230, by Member of the Assembly Morelle,
Assembly Print Number 871E, an act to amend
the Executive Law.
1022
SENATOR WRIGHT: I now move to
reconsider the vote by which this Assembly
bill was substituted for Senator Stafford's
bill, Senate Print Number 5611C, on March 4th.
THE PRESIDENT: The Secretary
will call the roll upon reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
SENATOR WRIGHT: I now move the
Assembly Bill Number 871E be recommitted to
the Committee on Finance, and the Senate bill
be restored to the order of third reading on
the calendar.
THE PRESIDENT: So ordered,
Senator.
SENATOR WRIGHT: Madam President,
I now offer the following amendments.
THE PRESIDENT: The amendments
are received, Senator.
SENATOR WRIGHT: Madam President,
on page 21 I offer the following amendments to
Calendar Number 269, Senate Print Number
5574A, and ask that said bill retain its place
on the Third Reading Calendar.
THE PRESIDENT: The amendments
1023
are received, Senator Wright, and the bill
will retain its place on the Third Reading
Calendar.
SENATOR WRIGHT: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
Senator Velella.
SENATOR VELELLA: Madam
President, are there any substitutions at the
desk?
THE PRESIDENT: Yes, there are,
Senator.
SENATOR VELELLA: Can we take
them up now.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 19,
Senator Lack moves to discharge, from the
Committee on Judiciary, Assembly Bill Number
7298 and substitute it for the identical
Senate Bill Number 2934, Third Reading
Calendar 243.
On page 19, Senator Nozzolio moves
to discharge, from the Committee on
Investigations, Taxation and Government
1024
Operations, Assembly Bill Number 2916 and
substitute it for the identical Senate Bill
Number 3839, Third Reading Calendar 247.
On page 20, Senator Kuhl moves to
discharge, from the Committee on
Transportation, Assembly Bill Number 906A and
substitute it for the identical Senate Bill
Number 706A, Third Reading Calendar 251.
And on page 22, Senator Spano moves
to discharge, from the Committee on Civil
Service and Pensions, Assembly Bill Number
5657 and substitute it for the identical
Senate Bill Number 2137, Third Reading
Calendar 276.
THE PRESIDENT: The substitutions
are ordered.
Senator Velella.
SENATOR VELELLA: May we please
have the reading of the noncontroversial
calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
118, by Senator Wright, Senate Print 4029, an
act to amend the Public Service Law, in
1025
relation to unauthorized charges.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect 120 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
143, by Senator Morahan, Senate Print 1158, an
act to amend the Military Law, in relation to
extending certain benefits.
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, 53.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
146, by Senator Marcellino, Senate Print 106,
1026
an act to amend the Vehicle and Traffic Law,
in relation to the enforcement of the offense
of operating a motor vehicle with a suspended
license.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
148, by Senator Trunzo, Senate Print 4673, an
act to amend the Highway Law and the Public
Authorities Law, in relation to transportation
facility emergency work.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 6. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1027
157, by the Assembly Committee on Rules,
Assembly Print Number 9289, an act to amend
the Insurance Law, in relation to including
references.
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, 53.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
165, by Member of the Assembly Galef, Assembly
Print Number 3509, an act to amend the Vehicle
and Traffic Law, in relation to the displaying
of blue lights.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the 30th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
1028
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
168, by Senator Leibell, Senate Print 5083, an
act to amend the Highway Law, in relation to
the designation of the "AMVETS Memorial
Bridge."
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
184, by Senator Volker, Senate Print 216, an
act to amend the Criminal Procedure Law, in
relation to sealing.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
1029
216, by Senator LaValle, Senate Print 3266, an
act to amend the Town Law, in relation to
exemptions from the speed limits of fire
districts.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
220, by Senator Rath, Senate Print 6051, an
act to amend the Town Law, in relation to the
establishment.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 6. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
1030
THE PRESIDENT: The bill is
passed.
Senator Velella, that completes the
reading of the noncontroversial calendar.
SENATOR VELELLA: Thank you,
Madam President. May we now proceed to the
reading of the controversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
146, by Senator Marcellino, Senate Print 106,
an act to amend the Vehicle and Traffic Law,
in relation to the enforcement.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1031
184, by Senator Volker, Senate Print 216, an
act to amend the Criminal Procedure Law, in
relation to sealing and other dispositions of
records.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Volker,
an explanation has been requested.
SENATOR VOLKER: Thank you.
Madam President, this is a bill
that actually came from the City of New York.
And we had held it off until we could get
communication from the city, the new
administration. And the new administration
apparently still thinks this is a good idea.
Actually, it came from the New York
City Police Department, that has a real
problem in regards to sealing of records.
There's a huge volume of sealing of records.
What this bill basically says is
that the sealing of records continues just as
it has in the past, except that if a person
has been convicted of a violent felony
offense. They found that, for instance, that
one person apparently that was getting his
records sealed had been arrested 87 times, and
1032
actually had several violent felony offenses.
And because, of course, he was arrested for a
minor offense, his records were sealed.
And as they pointed out, the
problem with all that is when someone is
involved in such a serious offense as a
violent felony offense, it really doesn't seem
appropriate that that person should be treated
in the same way as a person, for instance, who
has had a driving while intoxicated or some
comparatively -- I don't want to use
"comparatively" -- minor offense.
So that's really about all this
bill does. There is a process, even despite
this, for getting the records sealed. But it
would not be automatic, as it is now. The
records wouldn't be sealed where somebody has
a previous violent felony offense.
And, by the way, it's convicted.
Not charged, convicted.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Volker would yield for a
few questions.
SENATOR VOLKER: Sure.
1033
THE PRESIDENT: Senator Volker
does yield.
You may proceed, Senator.
SENATOR PATERSON: Senator, I
agree with your description of the situation
where a person who had 87 previous offenses
actually was going to have their records
sealed.
It's not only, in my view,
inappropriate, it's just that whenever someone
has such a long history of criminality, any
information that would be available to give
law enforcement authorities or judicial
authorities an opportunity to further
determine what this individual's sentence
should be or what their protocol should be
after being sentenced is quite valuable.
My problem with the sealing of
records issue in the first place is that it's
institutionalized where it didn't really start
out that way.
SENATOR VOLKER: That's right.
SENATOR PATERSON: And what I
think is happening now is that we're almost
putting two additional processes into the law
1034
where we need none, if you understand what I'm
saying.
First we're sealing the documents,
and then we're unsealing them. Don't you
think it would be better if we found a better
procedure to determine, you know, those
situations where a person has no criminal
record and they get involved in something
rather minor and we don't want to blemish
their record through life or cause them any
kind of problem. This could be an issue if it
was ever known at someone's place of business
or something like that.
So obviously there is a good reason
to seal records. But to me, it's spiralled
out of control. And I don't know that passing
this law is the best remedy.
SENATOR VOLKER: I don't think it
is either, Senator. I happen to agree with
you.
I think the problem is that this is
one of those issues like definite sentencing.
And I hate to say it, but I remember we did
hearings on definite sentencing. Both the
liberal people and the more conservative
1035
people were all in favor of definite
sentencing, but the problem was you had to
find a middle ground as to what they meant by
definite sentencing.
And I'll never forget those
hearings. I mean, they went all across the
state, and people were saying we ought to have
definite sentencing. But in the end, the
problem was we could never agree as to exactly
what definite sentencing meant. And of course
some more liberal people said, "Yeah, we'll
have a definite sentence of one year instead
of ten." And I mean, it -- I think that's the
problem.
I agree with you. I think the
sealing situation has sort of spiralled out of
control. The New York City Police Department
here I think is almost doing a stopgap measure
here, sort of. They have so many sealing
orders that what they want to do is take sort
of the worst of the problems, which is
obviously people that have violent felony
offenses -- remember, these are pretty serious
crimes, as you know -- and exclude them.
But it is an area I think that
1036
should be looked at and should be revised.
The difficulty, I think, is there again we
will be faced with some people who want to
seal just about everything, and the other
people who say, "Well, there's a rational
process for sealing that should be done, but
in the case of where just minor offenses or
comparatively minor offenses are involved."
So I happen to agree with you. I
don't think this is the way necessarily to do
it. But I think this is almost a stopgap
measure, because there aren't -- admittedly,
the number of sealing records for violent
felony offenders probably is not a great many.
Because if you're a violent felony
offender, you're probably going to go to jail
for a long time. And it's not -- I mean,
since you're in jail so long, the likelihood
that you're going to get a record sealed later
on is much less likely unless you're about
85 years old.
But, I mean -- and I think that's
the strange part of it, in a way. The police
department, if some guy or woman is in for
about 30 years, for instance, and comes out,
1037
they probably wouldn't -- if he gets a minor
offense, they probably would agree to let his
record be sealed.
But I think what they're talking
about here is some of the really serious
cases. They just don't want to be challenged
on these things, because it's really a waste
of time, when you come down to it.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield.
SENATOR VOLKER: Sure.
THE PRESIDENT: You may proceed,
Senator.
SENATOR PATERSON: Madam
President, Senator Volker has been very
helpful in this regard. And I wondered if
perhaps he would share with the other members
what his understanding is relating to the
discretion that judges or prosecutors have
with respect to the sealing of documents as it
is right now.
SENATOR VOLKER: Well, as it is
right now, in some of these -- most of the
1038
minor cases, many of them are automatically
sealed. The judge actually -- the attorney
can go in and just ask the judge for sealing.
In some cases, it's right in the law, if I'm
not mistaken, that -- obviously, you're
talking about young people and things of that
nature. It depends on really what it is.
And we have an interesting
situation, when you think about it, where we
have some people who are under 18 years old
who have been convicted of violent felony
offenses, so that they were eligible for
sealing of all records at the time that this
happened. Now they get in trouble, maybe go
to jail for a long period of time, and now
they come back and, if they get arrested after
that, they can have their records sealed.
So it's -- the process generally is
if there's any question, obviously, you can go
in and get an order and have it virtually
automatically sealed.
SENATOR PATERSON: Madam
President, on the bill.
THE PRESIDENT: You may proceed,
Senator Paterson.
1039
SENATOR PATERSON: I want to
thank Senator Volker for illuminating this
chamber, as he always does, with his
understanding on knowledge on these particular
issues.
And I respectfully would like to
vote against this bill, even though I'm firmly
in concurrence with the things that Senator
Volker is saying. I want my no vote just to
reflect an admonition about the process that I
think needs to be changed.
Now, we had a sealing vote in here
last week. That's going to be our thing for
the next few weeks, sealings, I guess. And we
go through these -- we did this last year with
licensures for drivers and when they should be
suspended, when I think there's an overall
process that needs to be changed.
What we're going to do, by passing
this law today, is we're going to unseal the
documents we shouldn't have sealed in the
first place. So we're going to add two points
to the turn in justice that tries to determine
whether or not we should give what really is a
privilege to many citizens who are involved in
1040
some type of altercation or circumstance
whereby they technically broke the law, but it
was such a violation that was so minimal that
we're saying it's all the same to us, if the
person does not violate the law again or
there's no further action in a prescribed
period of time, that we'd just as soon forget
the whole thing.
And that's what sealing really is.
We do it in the case of young people sometimes
who we don't want these records to trail
individuals and harm them through their lives.
But because it became
institutionalized -- and I think it's
Section 381.3 of the Criminal Procedure Law
that defines the way in which a person or
their lawyer can go to court and get the
documents sealed -- we're now sealing cases
where we need this information.
Last week we had a case about
doctors and lawyers and other professionals
where we'd like to know this information. My
point simply is, in voting no, not that I
disagree with the process, but that why don't
we just do it the right way.
1041
Which is if we feel there's
information that needs to be known, let's give
the judges the discretion to not allow the
documents to be sealed and give the
prosecutors the right to oppose it, rather
than adding steps in a criminal justice system
that is already wrought with complications.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. On the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR DUANE: Thank you.
This bill says that all violent
felony offenses, the records can be unsealed,
even for juveniles who have been tried as
adults. Which is problematic anyway; I don't
think that that's appropriate. But it does
mean that young people who have been tried as
adults will have their records unsealed.
The other problem with this bill --
well, there's a few problems with it. This
would make it so that not just law enforcement
can get a look at these records but also, you
know, Jane or John Smith could go and get
1042
these -- could get information on this. Or
Malcolm Smith. Or Ada Smith. Or any of the
Smith family.
And I believe that this possibly
could be -- the unsealing could be done on a
case-by-case basis. But I think that's where
the burden should be, that you have to do
something special to get it unsealed, as
opposed to it being unsealed across the board.
You know, someone that commits a
violent crime is likely to spend a long time
in prison. And someone that's committed more
than one can be treated as a predicate felon
and stay in prison for a very, very long time.
Now, I don't think that this --
this bill can't really be defined as a
crime-fighting bill, because what it really is
is an employment prevention bill. I mean, I
understand if there was -- in the bill that
there was a way to make it so that -- and
someone that's been in prison, actually,
already for any length of time can't drive a
bus, can't work with children in childcare,
can't work with older people, can't carry a
gun. So there's a lot of things that they're
1043
already prohibited from having.
But if a guy wants to be -- or a
woman wants to be -- you know, work in an
office, in a real estate firm, or is going to
work in a factory, well, the employer can now
look and see all this stuff, and chances are
they won't get the job.
So I do think there's a bill here,
and a good bill and a helpful bill in terms of
making sure that bad people are put away and
punished appropriately. But this is just too
broad. So I'm going to vote no on it.
Thank you, Madam President.
SENATOR VOLKER: Madam President.
THE PRESIDENT: Senator Volker.
SENATOR VOLKER: Very quickly, I
hate it when David is right.
Seriously, he's right that we
should make some much more substantial
changes.
I don't agree with you on one
thing, though, Tom, that, first of all, I
think if the police gave the information to
Malcolm Smith, it would be all right. But
you've got to be careful, because it's not
1044
legal for a police department to release
information without some reason for doing it;
that is, some authorization. Just because the
police department has the information doesn't
mean, you know, that they can release it.
But I think, you know, responsible
people that have some reason could fight it
out, that's true.
But what Senator Paterson says is
true, that we should really -- this area has
been patchworked. We know that. I mean, the
problem is, though, it will probably take us a
couple of years to unpatchwork it.
But what the idea of this is, and I
guess where I would disagree with you, if a
young person, a youth is convicted of a
violent felony offense, whether they're young
or not, I still think that is a reason not to
automatically -- what it amounts to is
automatically seal their records later on.
If for some reason -- as I say,
there is a process in here by which you could
actually get the records sealed anyways in
certain cases. But I happen to agree that
there's changes needed in this area, and we're
1045
going to try to look into that and try to come
up with some overall changes in the whole
sealing process.
But I think this bill, to me, is a
reasonable bill at this point.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 184 are
Senators Andrews, Duane, Hassell-Thompson, and
Paterson. Ayes, 50. Nays, 4.
THE PRESIDENT: The bill is
passed.
Senator Velella, that completes the
controversial calendar reading.
SENATOR VELELLA: Madam
President, is there any housekeeping at the
desk?
1046
THE PRESIDENT: No, there isn't,
Senator.
SENATOR VELELLA: Madam
President, there being no further business, I
move we adjourn until Monday, March 11th, at
3:00 p.m., intervening days to be legislative
days.
THE PRESIDENT: On motion,
Senator Velella, the Senate stands adjourned
until Monday, March 11th, 3:00 p.m.,
intervening days being legislative days.
(Whereupon, at 11:52 a.m., the
Senate adjourned.)