Regular Session - March 12, 2002
1131
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 12, 2002
3:05 p.m.
REGULAR SESSION
SENATOR SERPHIN R. MALTESE, Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT MALTESE: The
Senate will come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance to our Flag.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT MALTESE: The
invocation today will be given by His
Eminence, Edward Cardinal Egan, the Archbishop
of the Roman Catholic Archdiocese of New York.
On behalf of the Senate, the
Lieutenant Governor, and all of us here, we
wish to bid you welcome to our chamber and to
our Capitol, Your Eminence.
ARCHBISHOP EGAN: Thank you very
much for this opportunity and this honor.
Especially, I want to thank Senator Farley.
All of you have been so very kind.
I'm going to say it again, I want
to thank you most sincerely for this honor.
I'm delighted to be here.
Almighty and Eternal Father, we
place ourselves in Your presence. We seek
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Your benediction. This is a time of concern,
of unrest, of insecurity here in our state and
in our nation. We sense a great need of You
and of Your care.
We need You to make the men and
women of the great State of New York trust
ever more in Your providence, be ever more
courageous and ever more willing to sacrifice
self for the community.
We are a nation on a mountaintop,
and we are giving an example to the whole
world. To be this, we must be women and men
of goodwill, women and men led by political
leaders whose commitment is justice and
compassion.
In this time we commend to Your
loving care, to Your loving embrace, the
police officers, the firefighters, the
emergency workers, the health care
professionals who lost their lives in the
crime of September 11th, and as well the
citizens -- young, enthusiastic, full of
hope -- who lost their lives as well.
We commend to Your care those whom
they left behind and the injured as well. Let
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there be no vengeance in our hearts, Lord.
Let us desire justice, let us yearn for
understanding and peace.
And, Lord, guide our legislators,
our leaders, those who have positions of
authority here in the Empire State. Give them
the grace and wisdom to lead us well.
All of this we beg as we ask a very
special blessing upon each of the Senators,
upon their families, upon all whom they love
and all who love them.
Amen.
ACTING PRESIDENT MALTESE: In
view of the unique situation today, the chair
recognizes Senator Hugh Farley.
SENATOR FARLEY: Thank you, Mr.
President.
We're very honored to have with us
not only the cardinal, but a number of
distinguished bishops and clergy, who I'd like
to just acknowledge quickly, in the gallery.
The bishop from the largest diocese
in the United States, Bishop Daily of
Brooklyn. Bishop Daily, welcome.
Bishop Barbarito, the bishop of
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Ogdensburg. Welcome, Bishop.
And our beloved bishop from Albany,
Howard Hubbard, who is with us.
Bishop Sullivan, the auxiliary
bishop of Brooklyn. And Bishop Lagonegro,
auxiliary bishop of New York.
We're delighted to have you here
with us today. Thank you.
(Applause.)
ACTING PRESIDENT MALTESE:
Reading of the Journal.
THE SECRETARY: In Senate,
Monday, March 11, the Senate met pursuant to
adjournment. The Journal of Sunday, March 10,
was read and approved. On motion, Senate
adjourned.
ACTING PRESIDENT MALTESE:
Without objection, the Journal stands approved
as read.
Senator Skelos.
SENATOR SKELOS: There will be an
immediate meeting of the Civil Service and
Pensions Committee in the Majority Conference
Room.
ACTING PRESIDENT MALTESE:
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There's an immediate meeting of the Civil
Service 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 Padavan,
from the Committee on Cities, reports:
Senate Print 3227, by Senator
Maziarz, an act to amend the Real Property Tax
Law;
And Senate Print 6275, by Senator
Maltese, an act to authorize.
Senator Rath, from the Committee on
Local Government, reports:
Senate Print 477, by Senator Alesi,
an act to amend the Real Property Tax Law;
807, by Senator Wright, an act to
amend the Real Property Tax Law;
1226, by Senator Maziarz, an act to
amend the General Municipal Law;
1455A, by Senator Rath, an act to
amend the Real Property Tax Law;
1137
1457A, by Senator Rath, an act to
amend the General Municipal Law;
2083, by Senator LaValle, an act
authorizing;
2457, by Senator Morahan, an act to
amend the Real Property Tax Law;
2533B, by Senator Libous, an act to
amend the Real Property Tax Law;
3093A, by Senator Volker, an act to
amend the Real Property Tax Law;
3210A, by Senator Volker, an act to
amend the Real Property Tax Law;
3325B, by Senator Kuhl, an act to
amend the Real Property Tax Law;
3951, by Senator Morahan, an act to
amend Chapter 415 of the Laws of 1998;
5042A, by Senator Saland, an act to
amend the Real Property Tax Law;
5326, by Senator Rath, an act to
amend the General Municipal Law;
5444, by Senator Rath, an act to
amend the County Law;
5840, by Senator Marcellino, an act
to amend the Real Property Tax Law;
6048, by Senator Rath, an act to
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amend the General Municipal Law;
6162, by Senator Rath, an act to
amend the Local Finance Law;
6212, by Senator Meier, an act to
amend the Real Property Tax Law;
6281, by Senator Johnson, an act to
amend the Local Finance Law;
And 6300, by Senator Leibell, an
act to amend the Town Law.
Senator Trunzo, from the Committee
on Transportation, reports:
Senate Print 1039, by Senator
Larkin, an act to amend the Vehicle and
Traffic Law;
2147A, by Senator Trunzo, an act to
amend the Vehicle and Traffic Law;
2721, with amendments, by Senator
Padavan, an act to amend the Vehicle and
Traffic Law;
5027, by Senator Trunzo, an act to
amend the Public Authorities Law;
6319, by Senator Bonacic, an act to
amend the Highway Law.
Senator Morahan, from the Committee
on Veterans and Military Affairs, reports:
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Senate Print 197A, with amendments,
by Senator Morahan, an act to amend the Tax
Law;
370A, by Senator Morahan, an act to
amend the Military Law;
499, by Senator Morahan, an act to
amend the Real Property Tax Law;
4023B, by Senator Morahan, an act
to amend the Public Health Law;
And 4736A, by Senator Morahan, an
act to amend the Public Officers Law.
Senator Saland, from the Committee
on Children and Families, reports:
Senate Print 395, by Senator
Saland, an act to amend the Family Court Act;
399, by Senator Skelos, an act to
amend the Family Court Act;
850A, by Senator Balboni, an act to
amend the Family Court Act;
3433, by Senator Saland, an act to
amend the Family Court Act;
3778, by Senator Saland, an act to
amend the Family Court Act;
4874, by Senator McGee, an act to
amend the Executive Law;
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And 4893, by Senator Saland, an act
to amend the Domestic Relations Law.
All bills ordered direct to third
reading.
ACTING PRESIDENT MALTESE:
Without objection, all bills reported direct
to third reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Farley.
SENATOR FARLEY: Thank you, Mr.
President.
On behalf of Senator Wright, on
page 9 I offer the following amendments to
Calendar 105, Senate Print 4030, and I ask
that that bill retain its place on the Third
Reading Calendar.
ACTING PRESIDENT MALTESE: The
amendments are received, and the bill will
retain its place on the Third Reading
Calendar.
Senator Padavan, we have
substitutions.
1141
SENATOR PADAVAN: Please make
them.
ACTING PRESIDENT MALTESE: The
Secretary will read.
THE SECRETARY: On page 6,
Senator Larkin moves to discharge, from the
Committee on Aging, Assembly Bill Number 6527
and substitute it for the identical Senate
Bill Number 3405, Third Reading Calendar 50.
On page 16, Senator Stafford moves
to discharge, from the Committee on Finance,
Assembly Bill Number 871F and substitute it
for the identical Senate Bill Number 5611D,
Third Reading Calendar 230.
On page 18, Senator Seward moves to
discharge, from the Committee on
Transportation, Assembly Bill Number 9181 and
substitute it for the identical Senate Bill
Number 5583, Third Reading Calendar 254.
And on page 22, Senator LaValle
moves to discharge, from the Committee on
Finance, Assembly Bill Number 6603 and
substitute it for the identical Senate Bill
Number 3291, Third Reading Calendar 297.
ACTING PRESIDENT MALTESE:
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Substitutions ordered.
Senator Padavan.
SENATOR PADAVAN: Yes. May we
please adopt the Resolution Calendar, with the
exception of Resolutions 4317 and 4357.
ACTING PRESIDENT MALTESE: All in
favor of adopting the Resolution Calendar,
with the exception of Resolutions 4317 and
4357, signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MALTESE:
Opposed, nay.
(No response.)
ACTING PRESIDENT MALTESE: The
Resolution Calendar is adopted.
Senator Padavan.
SENATOR PADAVAN: Yes, may we
please have the title read on Resolution 4317
and move for its immediate adoption.
ACTING PRESIDENT MALTESE: The
Secretary will read.
THE SECRETARY: By Senator
Leibell, Legislative Resolution Number 4317,
memorializing Governor George E. Pataki to
proclaim Wednesday, May 16, 2002, as
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Amyotrophic Lateral Sclerosis Awareness Day in
New York State.
ACTING PRESIDENT MALTESE: The
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MALTESE:
Opposed, nay.
(No response.)
ACTING PRESIDENT MALTESE: The
resolution is adopted.
Senator Padavan.
SENATOR PADAVAN: Senator Leibell
would like this resolution opened up for
sponsorship by the body. Those who are not
interested, please indicate so by notifying
the desk.
ACTING PRESIDENT MALTESE: The
resolution is open for cosponsorship. If you
do not wish to be a cosponsor, please notify
the desk.
Senator Padavan.
SENATOR PADAVAN: May we please
have the title read on Resolution 4357 and
move for its immediate adoption.
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ACTING PRESIDENT MALTESE: The
Secretary will read.
THE SECRETARY: By Senator
Maziarz, Legislative Resolution Number 4357,
commemorating the 30th anniversary of the
Elderly Nutrition Program.
ACTING PRESIDENT MALTESE: The
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MALTESE:
Opposed, nay.
(No response.)
ACTING PRESIDENT MALTESE: The
resolution is adopted.
Senator Padavan.
SENATOR PADAVAN: Senator Maziarz
would offer this resolution to be cosponsored
by all those in attendance. And if you do not
wish to do so, please notify the desk.
ACTING PRESIDENT MALTESE: The
resolution is open for cosponsorship. As
Senator Padavan has said, if you do not wish
to be a cosponsor, please notify the desk.
Senator Padavan.
1145
SENATOR PADAVAN: May we please
have the noncontroversial reading of the
calendar.
ACTING PRESIDENT MALTESE: The
Secretary will read.
THE SECRETARY: Calendar Number
9, by Senator Wright, Senate Print 2198, an
act to amend the Penal Law, in relation to
assault with a noxious material.
ACTING PRESIDENT MALTESE: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
153, by Senator Saland -
SENATOR CONNOR: Lay it aside.
ACTING PRESIDENT MALTESE: The
bill is laid aside.
1146
THE SECRETARY: Calendar Number
158, by Senator Skelos, Senate Print 425, an
act to amend the Agriculture and Markets Law,
in relation to detection dogs.
ACTING PRESIDENT MALTESE: Read
the last section.
THE SECRETARY: Section 6. This
act shall take effect immediately.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
166, by Senator Velella, Senate Print 4280, an
act to amend the Vehicle and Traffic Law, in
relation to the reporting of accidents.
SENATOR CONNOR: Lay it aside.
ACTING PRESIDENT MALTESE: The
bill is laid aside.
THE SECRETARY: Calendar Number
189, by Senator Libous, Senate Print 1989A, an
act to amend the Penal Law -
SENATOR CONNOR: Lay it aside.
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ACTING PRESIDENT MALTESE: The
bill is laid aside.
THE SECRETARY: Calendar Number
191, by Senator Kuhl, Senate Print 2215, an
act to amend the Penal Law, in relation to
criminal possession.
ACTING PRESIDENT MALTESE: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
193, by Senator McGee, Senate Print 3520A -
SENATOR CONNOR: Lay it aside.
ACTING PRESIDENT MALTESE: The
bill is laid aside.
THE SECRETARY: Calendar Number
230, substituted earlier today by Member of
the Assembly Morelle, Assembly Print Number
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871F, an act to amend the Executive Law and
the Estates, Powers and Trusts Law.
ACTING PRESIDENT MALTESE: Read
the last section.
THE SECRETARY: Section 18. This
act shall take effect on the first day of the
first month next succeeding the 90th day.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
242, by Senator DeFrancisco, Senate Print 438,
an act to amend the Surrogate's Court
Procedure Act, in relation to computation.
ACTING PRESIDENT MALTESE: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
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THE SECRETARY: Ayes, 52.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
250, by Senator Nozzolio, Senate Print 6180,
an act to amend Chapter -
SENATOR CONNOR: Lay it aside.
ACTING PRESIDENT MALTESE: The
bill is laid aside.
THE SECRETARY: Calendar Number
252, by Senator Padavan, Senate Print 1219A,
an act to amend the Vehicle and Traffic Law
and the Administrative Code of the City of
New York, in relation to the conversion.
ACTING PRESIDENT MALTESE: Read
the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
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254, substituted earlier today by the Assembly
Committee on Rules, Assembly Print Number
9181, an act to amend the Vehicle and Traffic
Law, in relation to indemnity.
ACTING PRESIDENT MALTESE: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
255, by Senator Trunzo, Senate Print 6239, an
act to amend the Vehicle and Traffic Law, in
relation to the issuance.
ACTING PRESIDENT MALTESE: Read
the last section.
THE SECRETARY: Section 4. This
act shall take effect on the 180th day.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
1151
ACTING PRESIDENT MALTESE:
Recognize Senator Trunzo.
SENATOR TRUNZO: Mr. President,
I'd like to open up this particular bill to
all members of the Senate if they wish to join
in on it.
ACTING PRESIDENT MALTESE: As was
the case previously, if you don't want to be
on the bill, please indicate it to the desk.
Everyone will be added.
Thank you, Senator Trunzo.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
259, by Senator Kuhl, Senate Print 2651, an
act to amend the Education Law, in relation to
the terms of members.
ACTING PRESIDENT MALTESE: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MALTESE: Call
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the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
279, by Senator Leibell, Senate Print 6243, an
act authorizing extended retirement benefits.
ACTING PRESIDENT MALTESE: There
is a home-rule message at the desk.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MALTESE: The
bill is passed.
Senator Skelos, that completes the
reading of the noncontroversial section.
SENATOR SKELOS: Thank you, Mr.
President. If we could go to the
controversial calendar.
ACTING PRESIDENT MALTESE: The
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Secretary will read.
THE SECRETARY: Calendar Number
153, by Senator Saland, Senate Print 2200, an
act to amend the Insurance Law and the General
Obligations Law.
SENATOR PATERSON: Explanation,
please.
ACTING PRESIDENT MALTESE:
Senator Saland.
SENATOR SALAND: Thank you, Mr.
President.
Mr. President, this bill is a bill
which we've had prior occasion to debate in
this house. And what the bill does, it amends
the Insurance Law and the General Obligations
Law.
And that portion that amends the
Insurance Law provides that the Superintendent
of Insurance is to study ways to control the
cost of property and liability insurance for
landowners who permit the use of their lands
for recreational purposes.
And the other provision is the more
extensive provision, and that provision is the
one that amends the current 9-103 of the
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General Obligations Law which, as it stands
today, enumerates about 15 different types of
recreational activities from which, if you
permit somebody upon your premises, your
liability is limited except as otherwise
enumerated in that section.
And what we do is to provide that
in addition to those enumerated sections, we
changed the language to provide that any
recreational use including but not limited to
those enumerated sections would have that
similar protection.
The bill also provides that the
permission of someone to come upon your
property as created in this bill, or the
recognition of the right of someone to come
upon your property, does not in fact create
public access to any and all upon your
property.
This in large part is a response to
the realization that there are people who wish
to avail themselves of recreational
opportunities in any number of venues, that
the state does not have the ability to provide
by way of set-asides for all of the
1155
recreational and land uses that people would
hope to have. The intent section, which is
the new section that's added to this bill,
reads as follows:
"The Legislature reaffirms the
purpose of this section, which is to encourage
property owners to make land and water areas
available to the public for recreational or
conservation purposes by limiting their
potential liability exposure toward persons
entering thereon for such purposes. That
provision should be construed to accomplish
those objectives."
And that certainly shortly and
succinctly explains what the intent of this
legislation is.
ACTING PRESIDENT MALTESE:
Senator Paterson.
SENATOR PATERSON: Mr. President,
if Senator Saland would yield for a question.
ACTING PRESIDENT MALTESE: Will
you yield for a question, Senator Saland?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MALTESE: The
1156
Senator yields.
SENATOR PATERSON: I'm a little
unclear, Mr. President. Aren't there a number
of recreational activities that are actually
restricted now? In other words, aren't we
adding to protections that already exist?
In other words, the legislation
says "all recreational activities." And my
question is, don't we protect some
recreational activities right now for the
landowner?
SENATOR SALAND: I believe what I
mentioned in my opening remarks, Senator, was
that there are approximately 15 categories of
uses. And if you look at page 2 of the bill,
they're enumerated: Canoeing, boating,
trapping, hiking, cross-country skiing, et
cetera.
But what we're doing here is to
say, by prefacing those enumerated items, by
saying "any recreational use, including but
not limited to," we are permitting other
recreational uses for which a landowner could
open his or her property without being
concerned -- assuming they gave permission,
1157
didn't provide for a fee, were not willful or
malicious in any way -- that they would be
liability-free for opening their premises in
that fashion.
SENATOR PATERSON: Mr. President,
if Senator Saland would yield for another
question.
ACTING PRESIDENT MALTESE:
Senator Saland, will you yield for another
question?
SENATOR SALAND: Yes, Mr.
President.
SENATOR PATERSON: Senator, thank
you. You've covered that first question quite
extensively.
What I was really getting at was
the possibility that the legislation is a
little overbroad, in the sense that, for
instance, right now we have a requirement
about swimming pools, for instance, that we
have to have a fence there.
But could the landlord assert that
by putting "all recreational activities," and
then a sign, that the landlord could actually
have a reduced standard of care, in that the
1158
landlord wouldn't have to build a fence around
the swimming pool now? Because we have made
it very clear, very concise, all recreational
activities, and the landlord did give notice
to any trespasser or anyone that would be
crossing through the premises that this was
not allowed.
SENATOR SALAND: Well, number
one, I do believe that by way of building
codes -- and I'm unaware of any situation to
the contrary -- that if you build a swimming
pool, it has to be fenced.
That fence basically is a
statement, I would assume, that without
permission you're not to enter. So if
somebody gives you permission to enter and you
enter, whatever the current law is would not
be in any way, shape, or form, I believe,
influenced by this.
And if for some reason or other you
choose to scale that fence in the absence of
permission, whatever the law is today is what
the law would be under those circumstances as
well.
ACTING PRESIDENT MALTESE:
1159
Senator Paterson.
SENATOR PATERSON: Thank you, Mr.
President. If Senator Saland would continue
to yield.
ACTING PRESIDENT MALTESE:
Senator Saland?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MALTESE: The
Senator yields.
SENATOR PATERSON: Mr. President,
my understanding is the same as Senator
Saland's. And I guess I gave an example that
was somewhat exaggerated. Because Senator
Saland is right, we already have a code for
swimming pools.
But I guess I gave it as an example
for something that I don't quite fathom, but
something that might actually exist where
there is an obviously dangerous -
SENATOR SALAND: Excuse me. Mr.
President, can we have some quiet? I'm having
a difficult time hearing Senator Paterson, and
there's quite a bit of noise in the chamber.
ACTING PRESIDENT MALTESE: While
1160
I appreciate the opportunity to bang the
gavel, I would advise you to keep the noise
down.
SENATOR PATERSON: I don't know,
Mr. President. I don't get listened to in
conference, in my office. I don't know why
this place should be any exception.
But what I was saying is that there
is a standard of care that I thought in many
respects we want, as a matter of public
policy, to influence on the owners of
property. And if you have a dangerous,
obviously -- a slippery slope or something, a
ravine or something on someone's property that
is somewhat hazardous, that in many respects
some of the standards that we have now are
there really to compel the owner to act on
them.
And aren't we taking a risk by
passing this legislation of putting -- of
reducing that general standard of care for
property owners? And even if there is
trespassing or some sort of violation, we
would not want for an obvious hazard to go
unattended to by a property owner. And I'm
1161
wondering how this legislation might not
facilitate that.
SENATOR SALAND: Well, in the
first instance, what's one of the triggers
here is that there is a requirement of
permission. So again, whatever the law might
be vis-a-vis trespass, there would be no
change in that law, Senator Paterson.
And I won't pretend to expound upon
what that might be. But whatever the law
would be today with regard to a trespasser
would remain the law under this as well.
If your concern is that by
expanding the categories through this general
"any recreational use" that there will be more
opportunities and more opportunities creates
the possibility that there will be perhaps
more incidents, potential for more incidents
in which somebody may slip or trip or in some
fashion run the risk of injury, I would say
that probably statistically you are correct.
But the purpose of using this
general language is to say that there are a
variety of sporting endeavors that people
engage in. All of them are not mentioned in
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these 15 or so enumerated items. And as time
passes, there are always new sporting
activities that people wish to participate in.
And we would like to encourage recreational
use of property. I believe this is a means by
which to do it.
Yes, there is a certain degree of
assumption of risk that is involved when you
go upon somebody else's property. But again,
there is an element of permission required.
Assumedly that there would be some degree of
thought process that gets someone to that
point where they want to do whatever it is
they want to do on somebody else's property.
There are some provisions under
which that liability protection is waived. If
you accept money to let somebody come on your
property, it's waived. If you do something
wilfully or maliciously or some act that could
be construed as such, which is obviously a
higher standard than mere negligence, you
similarly run the risking of having liability
imposed upon you.
So there is an effort to try and
recognize that people should not use the
1163
access to their property in a fashion as to
place people at risk by doing something that
is so clearly and wantonly inappropriate that
they should be subject to liability, and the
balance of the desire to permit people to come
on property and give them the opportunity to
recreate -- be it in my region, along the
Greenway Trails, be it anywhere in this state
where people might like to get out and enjoy
the vast outdoors.
ACTING PRESIDENT MALTESE:
Senator Paterson.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
ACTING PRESIDENT MALTESE: Will
you continue to yield, Senator Saland?
SENATOR SALAND: Yes, Mr.
President.
SENATOR PATERSON: There's been
some very informative answers, Senator. I
appreciate them.
On the subject of trying to
encourage recreational activity, let's talk
about the landowner that does, the landowner
that welcomes others onto their property and
1164
tries to keep the property in condition such
that it accommodates visitors.
The question is, have we increased
the standard of care for those who would
invite their neighbors onto the property
because they don't have a sign up, and
therefore would assume all of the
responsibilities that exist for all landowners
at the present?
SENATOR SALAND: I don't think
we've increased nor decreased the standard of
care.
I think what we have done is to say
that under the existing 9-103, which
encourages people to avail themselves of -- or
permit others to use their property, and those
others to avail themselves of those
opportunities, we're saying that we would like
to broaden that.
Under the existing template, as
it's set forth in 9-103, we're doing nothing
to increase or decrease whatever the liability
standards may currently be in 9-103. What we
are saying is we just want more people to have
the opportunity to take advantage of that.
1165
And as I mentioned to you in my
earlier remarks, if that does increase the
numbers, that does increase possibilities.
But assumedly, people who would avail
themselves of that would be conscious of that
and that would be part of the decision-making
process that they would go through.
ACTING PRESIDENT MALTESE:
Senator Paterson.
SENATOR PATERSON: Mr. President,
on the bill.
ACTING PRESIDENT MALTESE: On the
bill.
SENATOR PATERSON: I'm going to
eschew the opportunity to be convinced by
Senator Saland today, but to comment that I
thought he was quite informative and really in
many respects quite persuasive and would know
a lot more about the situations that are
experienced by landowners than I would.
I just have a problem with a person
that owns property being able to make a sign,
which takes a few minutes, and protect
themselves against liability seemingly
forever.
1166
And that the standard of what might
have been deliberate or reckless in terms of
hazardous conditions on a property, and what
might be accidental, caused by a trespasser or
someone that just happens to be on the
property, I think is one better determined
through a judicial process, as was suggested
in some of the memorandums that we received
from the Trial Lawyers Association, than for
us to have a uniform standard that we would
try to place and to in a sense broaden the
meanings of Section 9-103, more so than we
have at the actual present.
I really think that these are the
types of situation that compel us to look at
the details and the specific facts toward
every case. Certainly these types of cases
all would be similar, but they are all, at the
same time, distinguishable.
I really would urge my colleagues
that this is not exactly the way to go. I
think what we could do is something that
Senator Saland has been instrumental in
already, which is to specify some of the
recreational activities that can be forbid and
1167
be very specific about what people can and
cannot do with respect to other people's
property.
ACTING PRESIDENT MALTESE:
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. Just briefly on the bill.
I've debated this bill previously,
and I just had one other thought. I think the
colloquy between Senator Saland and Senator
Paterson was illuminative of the issues that
this bill raises: the fundamental problems of
trying to open land and the question of
whether you can limit liability when people
come on the land.
The only caution I have -- and I
think there are -- those who have weighed in
against this bill talk about the limitation of
liability, which I don't generally favor. But
there's one other difficulty. And that is
that if someone gets hurt on the land that's
posted for recreational use, the question
becomes who pays the cost of their injuries
and who picks up the cost of any disability
that they sustain.
1168
And I would suggest in the absence
of liability insurance on the part of the
landowner, or the ability to claim against the
landowner and claim against the land, it seems
to me that those costs get passed on to our
health insurance system. And in essence what
we do is we add another dimension of risk to
the health insurance system that we're not
willing to accord to our civil justice system.
So we in essence socialize the cost
of those health insurance payments. Or, quite
frankly, if there's a long-term disability, we
shift the cost of long-term disability to the
government, which means we're socializing the
risk of someone going onto a piece of property
that's posted for recreational use.
It seems to me, if you believe in
personal accountability, what you should do,
instead of socializing the risk and passing it
on to taxpayers and to ratepayers in the
health insurance system, is you should demand
personal accountability, which is that the
landowner whose property the person enters
into should be held to a standard that says if
there's a defect or a risk, they should buy
1169
liability insurance, pay for liability
insurance themselves in order to cover that
risk.
We can talk about the limitation on
liability from the point of view of its impact
on civil litigation. But it seems to me that
the consequence of this bill is that if we
take the responsibility off of the individual
landowner and don't hold him personally
accountable, what we end up with is all being
accountable through higher health insurance
premiums, higher long-term disability payments
through the Social Security system, and the
potential risk, if there were a very severe
injury, of long-term costs to our Medicaid
system because someone who experienced a
difficult injury may have the need for
long-term care and not have the funds to
support this.
This bill socializes that risk. I
like the personal accountability that
landowners have under current law. I'd rather
keep it that way, Mr. President. I'll be
voting in the negative.
ACTING PRESIDENT MALTESE: Any
1170
other Senator wishing to be heard?
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect 180 days.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MALTESE:
Senator DeFrancisco, to explain his vote.
SENATOR DeFRANCISCO: Yes, I'm
going to vote in the negative, and to explain
my vote.
You know, there seems to be a
movement nowadays to try to limit liability in
many, many different sections, chipping away
at the tort law concept of negligence.
And, you know, it sounds good when
we are eliminating responsibility in various
cases and we're supposedly cutting back on the
cost of doing business or the cost of
insurance. But the fact of the matter is, we
are changing a system, chipping away at a
system that has worked for over centuries.
And the concept is that if you're negligent,
you should be responsible.
1171
And if it's recreational land or
whatever kind of land, if a child goes on the
land and slips and falls, hurts him or
herself, and the landowner was at fault, they
were negligent, it makes no sense that the
negligent party not pay.
And like Senator Dollinger just
mentioned, by doing this it doesn't mean
someone is not going to pay, it's going to be
someone else paying -- whether it be the
injured party, who did nothing wrong, or
whether it be society in general.
So it may sound good to chip away
at the negligence system, but all the factors
as to what happened would be decided by a jury
in determining who should pay. And that's the
system that's worked, and that's the system
that should continue. And I'm against all of
these bills that chip away at the very core of
our tort system.
ACTING PRESIDENT MALTESE:
Senator DeFrancisco will be recorded in the
negative.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
1172
Mr. President.
I just want to echo the sentiments
echoed by Senator DeFrancisco. I think we
hear this attack that, oh, the tort system is
a drain on our economy, it's causing us all
these problems. Well, in the last decade I
think the United States economy has
outperformed any economy in the history of the
world. We're doing very well, we're just
zipping through our latest recession. And the
tort system is a part of our system of
regulating our economy.
Corporate conduct -- and I say this
as -- I was a defense lawyer. But I
understand that, you know, corporate conduct
is dictated in no small part by the awareness
of potential liability. Individuals perform
the way they perform, and our country is
functioning pretty well.
So I really don't understand the
attack on the tort system that we keep hearing
about. I think the system is working pretty
well in this area of law. And I vote no. And
I urge everyone to take seriously these
remarks as we proceed forward, because we will
1173
see more so-called tort reform bills as the
session progresses.
Thank you.
ACTING PRESIDENT MALTESE:
Senator Schneiderman will be recorded in the
negative.
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 153 are
Senators Andrews, Brown, Connor, DeFrancisco,
Dollinger, Duane, Hassell-Thompson,
Ms. Krueger, Lachman, Morahan, Onorato,
Paterson, Sampson, Schneiderman, M. Smith, and
Senator Stavisky. Also Senator Santiago.
Ayes, 41. Nays, 17.
ACTING PRESIDENT MALTESE: The
bill is passed.
The Secretary will read.
THE SECRETARY: Calendar Number
166, by Senator Velella, Senate Print 4280, an
act to amend the Vehicle and Traffic Law, in
relation to the reporting of accidents.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT MALTESE:
Senator Velella, an explanation has been
1174
requested.
SENATOR VELELLA: Thank you, Mr.
President.
This bill provides police officers
with the same level of protection as
firefighters regarding their personal driving
abstracts when responding to emergency calls.
ACTING PRESIDENT MALTESE:
Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, just briefly on the bill.
I voted against this bill last
year, I think at the end of a debate with
Senator Velella about why the police were -
frankly, why firemen were singled out for this
treatment under the Vehicle and Traffic Law.
Which I understand, if it occurs during the
operation of a vehicle or, in the case of the
police, where such accident occurred during
the emergency operation as defined by Section
114.
My concern is with the definition
of emergency and the conduct of police who are
driving motor vehicles in response to, quote,
emergencies. I think that the -- frankly, the
1175
police, irrespective unless there's a danger
of personal harm, should be subjected to the
same rules as everyone else, which is that
they must exercise reasonable conduct under
the circumstances.
And if they fail to exercise
reasonable conduct under the circumstances,
whether they're going to an emergency or
not -- and an emergency, I would concede,
changes the reasonableness of the conduct, in
the sense that the greater the emergency, the
more or less reasonable they have to be
because of the importance of the police
arriving on time.
But quite frankly, I think that
decision ought to be left to a case-by-case
basis rather than making a categorical
exclusion, such as this bill does.
So for that reason, Mr. President,
I believe I voted against the bill last year.
I'm going to vote against this bill again this
year, even though I may be the only member of
the Senate that does.
ACTING PRESIDENT MALTESE: Any
other Senator wishing to speak on the bill?
1176
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57. Nays,
1. Senator Dollinger recorded in the
negative.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
189, by Senator Libous, Senate Print 1989A, an
act to amend the Penal Law, in relation to the
provision.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT MALTESE:
Senator Libous, an explanation has been
requested.
SENATOR LIBOUS: Thank you.
Mr. President, this bill, which I
believe Senator Dollinger and I discussed a
year ago -- and, Senator Dollinger, if you
would indulge me just to get my paperwork
1177
together here -- is what we refer to as the
keg bill. And what it does is it creates the
crime of unlawfully providing a child with a
large quantity of alcohol, to a Class E
felony.
The bill has been one that has come
before this house on a number of occasions in
the past. It has been in response to a number
of alcohol-related situations over the years,
both in upstate New York, New York City, and
on Long Island, where adults who were not
responsible, over the age of 21, were
purchasing large quantities of alcohol at
parties for minors. And in a couple of cases
that were highlighted by the New York Times,
both on Long Island and in the city and
upstate, unfortunately, young people were
killed after those parties.
It seems to be somewhat of an
epidemic that occurs particularly around prom
time, in the summertime. It is an issue that
has caused us a lot of concern and problem.
This house has passed the bill on a number of
occasions.
And I know that, Senator Dollinger,
1178
last year you were very concerned about a
particular point, about the immunity
provision. And I shared with you that we
eliminated that last year on a couple of key
factors.
The good news this year, I believe,
that after this house passes it -- I have a
letter of support from the New York State
Trial Lawyers, which I am thrilled about,
because that opposition in the past has caused
some concern in the other house. And I
believe now, with the support of the New York
State Trial Lawyers, that this bill will
actually see the light of day and be put into
law.
SENATOR DOLLINGER: Mr.
President, I'll withdraw my objection and vote
for the bill.
ACTING PRESIDENT MALTESE: Thank
you, Senator Dollinger.
Any other Senator wishing to be
heard on the bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
1179
act shall take effect on the first day of
November.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT MALTESE: The
bill is passed.
THE SECRETARY: Calendar Number
193, by Senator McGee, Senate Print 3520A, an
act to amend the Penal Law, in relation to the
minimum sentence.
SENATOR DUANE: Explanation,
please.
ACTING PRESIDENT MALTESE:
Senator McGee.
SENATOR McGEE: Yes, sir. This
bill amends the Penal Law to eliminate
sentencing distinctions between juveniles and
adults convicted of murder in the second
degree.
The Penal Law increases the minimal
sentence that must be served by a juvenile
offender convicted of murder in the second
degree from 5 to 9 years to 15 to 25 years.
1180
ACTING PRESIDENT MALTESE:
Senator Duane, why do you rise?
SENATOR DUANE: I'm wondering if
the sponsor would yield.
ACTING PRESIDENT MALTESE:
Senator McGee, will you yield for a question?
SENATOR McGEE: Yes, I will.
ACTING PRESIDENT MALTESE:
Senator McGee will yield.
SENATOR DUANE: Thank you.
Where would the juveniles go when
sentenced under this bill? To a DOCS facility
or a juvenile facility?
SENATOR McGEE: I assume that
place would be determined by the judge.
SENATOR DUANE: I'm sorry, Mr.
President, I couldn't hear the answer.
ACTING PRESIDENT MALTESE: It
would be determined by a judge.
Would you speak -
SENATOR McGEE: I said I assume
that determination would be made by the judge.
I assume it would be a DOCS, Department of
Corrections, facility.
ACTING PRESIDENT MALTESE:
1181
Senator Duane, were you able to hear that?
SENATOR DUANE: Yes. And through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MALTESE: Will
you continue to yield, Senator McGee?
SENATOR McGEE: Certainly.
Absolutely.
ACTING PRESIDENT MALTESE:
Senator Duane, Senator McGee will continue to
yield.
SENATOR DUANE: I'm wondering
whether DOCS has taken a position on this
bill.
SENATOR McGEE: I'm truly not
aware of whether DOCS has been asked to take a
position on the bill.
May I give you a background on the
bill, Senator Duane? I'd just like to give
you a background.
On Mother's Day of 1999, Penny
Brown, who was a wife, a mother, and a nurse,
went for a jog with her two dogs along a
recreational trail near her home in Salamanca.
She never came home. It was on Mother's Day;
1182
she never came home. The police found her
body the next day, buried under leaves and
debris. Penny had been raped and strangled
with a dog leash.
Police questioned a 15-year-old
with a cut hand who had been lingering around
the crime scene. He made a statement that he
had committed the crime, and later DNA and
fiber evidence confirmed that he was the
killer.
The juvenile offender, who showed
no remorse during the entire process, was
tried as an adult. During the sentencing the
judge called the perpetrator a sexual predator
and lamented that even though the murderer was
tried as an adult, he could not be sentenced
as an adult under current law.
The judge gave the perpetrator the
maximum sentence, nine years to life. And
with time served, it's possible the killer
could be released in as early, as few years as
eight years.
This bill changes it so a juvenile
who commits an adult, vicious crime will serve
the adult time.
1183
ACTING PRESIDENT MALTESE:
Senator Duane.
SENATOR DUANE: If the sponsor
would continue to yield, please.
ACTING PRESIDENT MALTESE:
Senator McGee, will you continue to yield?
SENATOR McGEE: Yes, I will.
ACTING PRESIDENT MALTESE:
Senator McGee will continue to yield.
SENATOR DUANE: Has the
Governor's criminal justice people -- is this
a Governor's program bill?
SENATOR McGEE: No, this is not a
Governor's program bill. This is a people's
bill, Senator Duane.
SENATOR DUANE: And through you,
Mr. President, if the sponsor will continue to
yield.
ACTING PRESIDENT MALTESE:
Senator McGee, will you continue to yield?
SENATOR McGEE: I certainly will.
ACTING PRESIDENT MALTESE:
Senator McGee will continue to yield.
SENATOR DUANE: I certainly
appreciate the one case that the sponsor
1184
cited. But I'm wondering how many juveniles a
year, on average, this legislation would
impact.
SENATOR McGEE: Through you, Mr.
President. Unfortunately, Senator Duane,
there is no registry for juvenile sex
predators.
SENATOR DUANE: I'm sorry, Mr.
President, I didn't hear it.
ACTING PRESIDENT MALTESE: The
reply, Senator Duane, was that unfortunately
there is no registry for juvenile sex
predators.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MALTESE: Will
you continue to yield, Senator McGee?
SENATOR McGEE: Certainly.
ACTING PRESIDENT MALTESE:
Senator McGee will continue to yield.
SENATOR DUANE: This bill is not
specifically about the sex registry. It's
about sentencing for juveniles; is that
correct?
1185
SENATOR McGEE: That's totally
correct, Senator. I think that I've indicated
to you what this bill does. It amends the
Penal Law to extend -- to, in fact, allow the
juvenile who is tried as an adult to receive
the adult time sentence.
SENATOR DUANE: And through you,
Mr. President, will the sponsor continue to
yield?
ACTING PRESIDENT MALTESE: Will
you continue to yield, Senator McGee?
SENATOR McGEE: Absolutely.
ACTING PRESIDENT MALTESE: Yes,
Senator McGee will continue to yield.
SENATOR DUANE: I'm wondering if
the sponsor believes that there's a difference
between a 13-year-old who commits a crime and
a 25-year-old who commits a crime.
SENATOR McGEE: If you're talking
about the crime of murder, Senator Duane, the
victim is dead.
SENATOR DUANE: I didn't hear the
last sentence.
SENATOR McGEE: Pardon me? You
can't hear that?
1186
ACTING PRESIDENT MALTESE:
Senator McGee, Senator Duane did not hear the
last sentence.
SENATOR McGEE: I'm sorry. If
you are talking about the crime of murder,
Senator Duane, the victim is still dead no
matter what the age of the perpetrator.
SENATOR DUANE: Yes, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MALTESE: Will
you continue to yield, Senator?
SENATOR McGEE: Yes, I will.
ACTING PRESIDENT MALTESE:
Senator McGee will continue to yield.
SENATOR DUANE: I just want to
repeat my question, maybe in a slightly
different way. I know that a person who's
dead is dead no matter how old the person is
who murdered them.
But I'm wondering whether the
sponsor believes that there's a cognitive and
emotional and developmental difference between
a 13-year-old who commits a heinous crime and
a 25-year-old person who commits a heinous
1187
crime.
SENATOR McGEE: I would say the
crime is still a grievous crime no matter what
the age.
SENATOR DUANE: And -- so it's
the same?
SENATOR McGEE: I'm not sure
what -
ACTING PRESIDENT MALTESE:
Senator McGee, will you continue to yield?
SENATOR McGEE: Yes, I will
continue to yield.
Senator Duane, I'm not sure if
you're asking me to make a psychiatric
judgment or not. I am not going to do that.
I am going to tell you that there
was a grievous crime that was committed, it
was committed by a juvenile who was tried as
an adult and sentenced as a juvenile.
Therefore, I feel that that
individual who was tried as an adult should be
sentenced as an adult because he committed a
grievous crime.
Now, I'm not sure if you want a
psychiatric evaluation on that or not.
1188
SENATOR DUANE: Through you, Mr.
President, because a 13-year-old is the same
as a 25-year-old?
ACTING PRESIDENT MALTESE: Will
you continue to yield, Senator McGee?
SENATOR McGEE: I certainly will.
Thank you.
ACTING PRESIDENT MALTESE: Yes,
Senator McGee will continue to yield.
SENATOR DUANE: Because a
13-year-old is the same as a 25-year-old?
SENATOR McGEE: Pardon me?
SENATOR DUANE: Because a
13-year-old is the same as a 25-year old?
SENATOR McGEE: I don't think so
calendar-wise. You were just telling me
there's a difference between them.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MALTESE:
Senator McGee, will you continue to yield?
SENATOR McGEE: Yes, I will.
Thank you.
ACTING PRESIDENT MALTESE:
1189
Senator McGee will continue to yield, Senator
Duane.
SENATOR DUANE: Have the district
attorneys weighed in on this bill?
SENATOR McGEE: I don't think
that I have anything on the district
attorneys. I don't think we have anything
from that.
The judge has, of course, expressed
his outrage at the fact that he could only
sentence this individual to a juvenile's time.
ACTING PRESIDENT MALTESE:
Senator Duane.
SENATOR DUANE: I think I'll just
speak on the bill, Mr. President.
ACTING PRESIDENT MALTESE: On the
bill, Senator Duane.
Thank you, Senator McGee.
SENATOR DUANE: I -- I think it's
a disgrace that we would be talking about
sending 13-year-olds to adult prisons, to
sentence them to adult prisons to serve adult
time. I mean, I realize that most likely the
first three years of their sentence would be
in a juvenile facility.
1190
But then to sentence a 13-year-old
to life imprisonment in an adult facility for
something they did when they were 13 years
old? I -- just in good conscience, I could
not possibly support that.
There is a huge difference, and I
can't imagine how anybody could deny the
difference between the emotional level, the
psychological level, the maturity level of a
13-year-old and someone who is an adult. A
13-year-old is not an adult.
Yes, a 13-year-old is capable of
doing something terrible. But a 13-year-old
is not capable of understanding the full
consequences of their action. And for us to
think that in any way that a piece of
legislation like this would be a deterrent is
completely and totally and utterly absurd.
Would we now have classes in
seventh grade saying that, you know, if you
murder someone you'll be sentenced to life in
Sing Sing? It's just completely ridiculous
that we would treat 13-, 14-, 15-year-olds the
same way that we would treat 25-year-olds.
I don't care how frustrated a judge
1191
is. I don't care, you know, under what
misguided emotions people of the state of
New York would support such a mean-spirited,
regressive piece of legislation. I mean,
apparently the Governor doesn't support this.
I can't even imagine the DAs would support
this legislation.
You know, the only people that
support these ridiculous tough-on-youth crime
bills are politicians. Nobody else who works
in the field of criminal justice with young
people supports sending 13-year-olds to Sing
Sing. It's completely ridiculous.
And I don't even think if we had a
public hearing on this, which I'm sure we
didn't, that there would be many people coming
to testify in favor of it. I think there
would be plenty more testimony in opposition
to it.
So, you know, those of you who have
children, do you really think that a
13-year-old child is emotionally and
psychologically and intellectually the same as
a 25-year-old? I don't think so.
So I really think we should send a
1192
message and stop this pathetic pandering and
don't vote for this bill.
Thank you.
ACTING PRESIDENT MALTESE:
Senator Volker.
SENATOR VOLKER: Mr. President -
let me say to you, Senator Duane -- and I
understand what you're talking about is the
average 13- or 14-year-old. And I don't think
you've met some of these young 13- and
14-year-olds.
If you look at this statute, the
amendment of this statute, it goes back to
1978. And I guess it doesn't surprise -
there's a couple of us here who were there
then -- the esteemed chairman of Finance; of
course Senator Marchi, who's been here for a
few years -- a number of us. And it resulted
from some of the most heinous crimes that any
of us had ever seen, committed by 13- and
14-year-olds.
One 14-year-old -- who I met, by
the way, I met from a distance because you
can't get too close to them -- he killed, he
admitted the murder of 14 people in New York
1193
City. It brought on some enormous changes in
the law. But the same people that you're
talking about couldn't imagine the possibility
that this person would have the cognitive
ability to understand as a 25-year-old.
I can tell you, I've met many
25-year-olds who didn't have the cognitive
ability of some of the 13- and 14-year-olds.
And they were very bright kids, but they were
vicious killers.
Now, the killing that Senator McGee
is talking about was a vicious killing by
somebody who had a background of a great many
problems. You can have all the public
hearings you want. And yes, there will be
people who will come in that will say, "Oh, my
God, we can't do this," in a vacuum.
This is not a vacuum. These are
real people in a real world, and we have to
deal with real values and real problems.
There are young people today who
have become adults at about 12, unfortunately,
because of the circumstances that they're in.
They're many times more vicious in some cases,
maybe, than some of the serial killers that we
1194
deal with. I think the answer is certainly
the average 13-year-old, 14-year-old,
15-year-old will not be tried in adult courts.
That's just not going to happen.
And by the way, we don't put 13-,
14-, 15-year-olds in Sing Sing with the normal
adult prisoners, I can assure you. Although
the one fellow that's involved here that I
told you killed 14 people, they had to keep
him in isolation anyways for lots of other
reasons, because there were a lot of people
who wanted a piece of him, if you know what I
mean, in prison.
I think, you know, when we look at
viciousness and crime, it's very hard for us,
and for all of us -- and for me too, because
I'm a little away from it, from the time that
I was out on the streets. But I can tell you
this, that I had to deal with people who you
wouldn't dare turn your back on. They weren't
the normal people, but unfortunately they were
people who you knew, maybe personally, but you
also know that if you gave them the
opportunity, they would kill you.
And it isn't necessarily the
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deterrent, but there are some people that are
just bad enough, maybe, that there's nothing
more you can do with them than put them in
prison, away from the general population.
It's a shame that it has to be that way, but
maybe that's the only answer.
And maybe at some point if they're
in prison and they get some help, maybe -
maybe they can get out and be productive
citizens. Because we are churning out now, by
the way -- when I say "churning out," our
system is putting more people out into the
community than at any time in our history,
through our shock incarceration and all the
rest of those things.
But there's some people who are
nasty enough and vicious enough that there
really isn't much you can do. And those are
the people that we are so concerned about.
And I know that's what Senator McGee's bill is
looking at.
The vast majority of people who are
looked at, 13-, 14-, and 15-year-olds, to see
whether they should be in the adult system are
just put in the juvenile system, the vast
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majority. Because we don't want all these
people in the adult system.
But there are some people who the
determination is made that they need to be in
the adult system because, frankly, they're too
dangerous for the juvenile system. Remember,
you get into the regular juvenile system,
you're going to be with other young people who
they could maybe harm. So in some cases the
best place for them is in the adult system.
ACTING PRESIDENT MALTESE: Any
other Senator wishing to speak on the bill?
Then the debate is closed.
I'm sorry, Senator Schneiderman.
SENATOR SCHNEIDERMAN: That's
okay. Thank you, Mr. President. Just very
briefly.
I have strong but very mixed
feelings about this particular bill. I think
that the length of the sentence it requires is
pretty stiff. On the other side, the sentence
in the current law that it's amending I think
may be a little bit on the light side.
I do think that of all of the
theories of why we put people away, I think
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incapacitation, which is what Senator Volker
was referring to, as opposed to rehabilitation
or punishment, is in some respects the most
troubling, the notion that we're just -- you
know, we're saying that there's nothing we can
do with these people, we're just going to lock
them up for as much of their lives as we can.
But I do recognize this is
something that has to be dealt with. And I
also must say that I echo his sentiments about
some young criminals. And I do remember my
own brief time working for a couple of years
in a prison, there were -- some of the most
terrifying people in the place were the
youngest prisoners.
So I am going to vote yes, although
I do think I would prefer a system with more
judicial discretion and something in between
the current law and the law as written in this
bill.
ACTING PRESIDENT MALTESE: Any
other Senator wishing to speak?
The debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
1198
act shall take effect on the first day of
November.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MALTESE:
Senator Duane, to explain his vote.
SENATOR DUANE: Thank you.
I am aware that a young person is
first sent to a youth facility and then sent
on to an adult prison. It's still a harsh
sentence for a 13-, 14- or 15-year-old.
And to mandate -- because one judge
didn't have the power to do what he wanted to
do, to mandate that all judges have to do what
that judge would want to do in a case like
that is just not a good way to legislate.
And someone who's criminally insane
to the point that they're murdering people is
then, you know, criminally insane and needs
services of OMH. And the answer to that is
not just to put them away for 25 years.
So I'm going to vote no on this
bill and hope that at the point that we do
some kind of juvenile justice reform we can
1199
have a further and thoughtful dialogue on how
it is that we should be treating youthful
offenders in our state.
ACTING PRESIDENT MALTESE:
Senator Duane will be recorded in the
negative.
Announce the results.
THE SECRETARY: Ayes, 57. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MALTESE: The
bill is passed.
Senator Smith, why do you rise?
SENATOR ADA SMITH: Thank you,
Mr. President. I rise to ask for unanimous
consent to be recorded in the negative on
Calendar Number 153.
ACTING PRESIDENT MALTESE:
Without objection, Senator Ada Smith will be
recorded in the negative on Calendar 153.
SENATOR ADA SMITH: Thank you.
ACTING PRESIDENT MALTESE: The
Secretary will read.
THE SECRETARY: Calendar Number
250, by Senator Nozzolio, Senate Print 6180,
an act to amend Chapter 533 of the Laws of
1200
2001.
ACTING PRESIDENT MALTESE:
Senator Paterson.
SENATOR PATERSON: Mr. President,
this bill makes a technical correction in the
law. If Senator Nozzolio would please give us
a brief explanation of what it actually cures,
we'd be interested.
ACTING PRESIDENT MALTESE:
Senator Nozzolio, for an explanation.
SENATOR NOZZOLIO: Thank you, Mr.
President.
This measure clears up a technical
glitch that is merely just a language issue of
grammatical significance, but not much more.
That was enacted, a measure that passed last
year in this house, unanimously approved,
enacted as Chapter 533 of the Laws of 2001.
This law was -- technical
correction changes wording which -- this
measure deletes two words, "other than," which
language appeared in the original bill.
Instead of reading that these lands are no
longer used for other than public park
purposes, it will read "if such lands are no
1201
longer used for public park purposes."
ACTING PRESIDENT MALTESE:
Senator Paterson.
SENATOR PATERSON: Mr. President,
if Senator Nozzolio would yield for a
question.
ACTING PRESIDENT MALTESE:
Senator Nozzolio, will you yield for a
question from Senator Paterson?
SENATOR NOZZOLIO: Yes, Mr.
President.
SENATOR PATERSON: Considering
that that's the technical change, Senator, I
just want to know what effect it has on the
law through the legislation, based on the
change that we're making today.
SENATOR NOZZOLIO: Mr. President,
this measure has no legal alteration in the -
in the -- has no legal change in the measure.
It is -- transfers parkland. That parkland is
in the process of being transferred. It
simply deletes two words, "other than," which
shouldn't have been in the language of the
bill in the first place.
ACTING PRESIDENT MALTESE: Thank
1202
you, Senator Nozzolio.
Any other Senator wishing to be
heard?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MALTESE: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT MALTESE:
Senator Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
just to explain my vote.
I vote in favor, and I understand
Senator Nozzolio's explanation. I was just
trying to make sure, and I'm voting with the
understanding that if the land is not used for
parkland, that it reverts to the state.
That's what I thought was the
purpose of it; I just wanted to make sure.
ACTING PRESIDENT MALTESE: The
bill is passed.
Senator Kuhl.
1203
SENATOR KUHL: Yes, may we return
to the order of reports of standing
committees.
I understand that there's a report
from the Crime Victims, Crime and Corrections
Committee at the desk. I ask that it be read.
ACTING PRESIDENT MALTESE:
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Leibell,
from the Committee on Civil Service and
Pensions, reports:
Senate Print 407A, by Senator
Volker, an act to amend the Civil Service Law;
2307, by Senator Farley, an act to
amend Chapter 729 of the Laws of 1994;
2362, by Senator Leibell, an act to
amend the Retirement and Social Security Law;
And Senate Print 6392, by Senator
Farley, an act to amend Chapter 729 of the
Laws of 1994.
All bills ordered direct to third
reading.
ACTING PRESIDENT MALTESE:
Without objection, all bills reported to third
1204
reading.
Senator Kuhl.
SENATOR KUHL: Is there any
housekeeping at the desk?
ACTING PRESIDENT MALTESE: No,
there is not, Senator Kuhl.
SENATOR KUHL: There being no
further business, Mr. President, I move we
adjourn until Wednesday -- that's tomorrow -
March 13th, at 11:00 a.m.
ACTING PRESIDENT MALTESE: On
motion, the Senate stands adjourned until
Wednesday, March 13th, at 11:00 a.m.
(Whereupon, at 4:10 p.m., the
Senate adjourned.)