Regular Session - March 20, 2002
1448
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 20, 2002
11:20 a.m.
REGULAR SESSION
SENATOR PATRICIA K. McGEE, Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT McGEE: The
Senate will come to order.
I ask everyone present to rise and
repeat with me the Pledge of Allegiance. And
the Pledge will be done by Cadet Andrew T.
Blickhahn.
CADET BLICKHAHN: Please join me
in the Pledge.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT McGEE: The
invocation will be given today by Father Edson
J. Wood, O.S.A., United States Corps of Cadets
Chaplain, Most Holy Trinity Chapel, from West
Point, New York.
Father.
CHAPLAIN WOOD: Thank you.
Would you bow with me in a moment
of prayer as we enter into the silence of the
heart.
Almighty God, we pray You guide
this great state and those who lead it, defend
always our liberties, preserve our unity, save
us from violence and discord, from pride and
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from arrogance. In the time of our
prosperity, temper our self-confidence with
thankfulness. And in the day of trouble, let
our trust in You never fail.
Look, too, with Your generous
bounty on West Point, which is to be honored
here today. Let her remember that her mission
of duty, honor, country is not a way of
looking only at certain things, it is a
certain way of looking at everything.
We pray You make all who are
associated with her into men and women for
whom duty, honor, and country becomes and
remains a way of life.
Let this West Point Day be for all
of us a happy reminder and a serious
challenge, a reminder of past glories and a
challenge to keep our motives pure, our goals
high, and our vision clear.
Our prayer this day comes from
hearts that are always open to You, Eternal
God. And we ask these things in Your name,
which is mighty.
May we all say amen.
ACTING PRESIDENT McGEE: Reading
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of the Journal.
THE SECRETARY: In Senate,
Tuesday, March 19, the Senate met pursuant to
adjournment. The Journal of Monday, March 18,
was read and approved. On motion, Senate
adjourned.
ACTING PRESIDENT McGEE: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Hannon,
from the Committee on Health, reports the
following bill:
Senate Print 4359A, by Senator
Hannon, an act to amend the Public Health Law.
Senator LaValle, from the Committee
on Higher Education, reports:
Senate Print 1564A, by Senator
Trunzo, an act to amend the Education Law;
And Senate Print 3292A, by Senator
LaValle, an act to amend the Education Law.
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And Senator Volker, from the
Committee on Codes, reports:
Senate Print 137, by Senator
Volker, an act to amend the Penal Law;
207, by Senator Volker, an act to
amend the Criminal Procedure Law;
368, by Senator Volker, an act to
amend the Civil Practice Law and Rules;
386, by Senator Skelos, an act to
amend the Penal Law;
392B, by Senator Marcellino, an act
to amend the Penal Law;
861, by Senator Balboni, an act to
amend the Penal Law;
1341, by Senator Saland, an act to
amend the Criminal Procedure Law;
2271, by Senator Bonacic, an act to
amend the Criminal Procedure Law;
2574, by Senator Padavan, an act to
amend the Penal Law;
3558, by Senator Trunzo, an act to
amend the Penal Law;
3583, by Senator Volker, an act to
amend the Penal Law;
3794, by Senator Volker, an act to
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amend the Banking Law and others;
3936, by Senator Nozzolio, an act
to amend the Penal Law;
4234, by Senator Saland, an act to
amend the Penal Law;
4235, by Senator Saland, an act to
amend the Penal Law;
4283, by Senator Volker, an act to
amend the Criminal Procedure Law;
5388, by Senator Balboni, an act to
amend the Penal Law;
5425, by Senator Velella, an act to
amend the Criminal Procedure Law;
5426, by Senator Volker, an act to
enact the Criminal Procedure Law Reform Act of
2001;
5595, by Senator Morahan, an act to
amend the Penal Law;
5596, by Senator Morahan, an act to
amend the Penal Law;
And Senate Print 5656, by Senator
Skelos, an act to amend Chapter 549 of the
Laws of 2000.
All bills ordered direct to third
reading.
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ACTING PRESIDENT McGEE: Without
objection, all bills are ordered directly to
third reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President. On behalf of Senator
Maziarz, please place a sponsor's star on
Calendar Number 394.
ACTING PRESIDENT McGEE: So
ordered.
Senator Marcellino.
SENATOR MARCELLINO: Madam
President, I move that the following bill be
discharged from its respective committee and
be recommitted with instructions to strike the
enacting clause. And it's Senate Number
1629A.
ACTING PRESIDENT McGEE: So
ordered.
Senator Marcellino.
SENATOR MARCELLINO: And, Madam
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President, I offer the following amendments to
Calendar Number 417, Senate Print Number 386,
and ask that said bill retain its place on the
Third Reading Calendar.
ACTING PRESIDENT McGEE: The
amendments are received, and the bill will
retain its place on the Third Reading
Calendar.
Senator Skelos.
SENATOR SKELOS: Yes, Madam
President, there's a privileged resolution at
the desk by Senator Fuschillo. Could we have
the title read and move for its immediate
adoption.
ACTING PRESIDENT McGEE: The
Secretary will read Resolution 4436.
THE SECRETARY: By Senator
Fuschillo, Legislative Resolution Number 4436,
commending Frank A. Nocerino upon the occasion
of his installation as president of the
Association of Fire Districts of the State of
New York.
ACTING PRESIDENT McGEE: On the
resolution, all in favor will signify by
saying aye.
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(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is carried.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution at the desk by
Senator Hoffmann. Could we have the title
read and move for its immediate adoption.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
Hoffmann, Legislative Resolution Number 4501,
memorializing Governor George E. Pataki to
proclaim Wednesday, March 20, 2002, as
Agriculture Day in New York State, in
conjunction with National Agriculture Day.
ACTING PRESIDENT McGEE: The
question is on the resolution. All in favor
will signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
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(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
SENATOR SKELOS: Madam President.
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: Senator Bruno
will be here momentarily.
So we just ask if we could start
the noncontroversial calendar, and then we
will move on to welcoming all of our cadets
today.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
140, by Senator Skelos, Senate Print 385, an
act to amend the General Business Law, in
relation to the sale of laser pointing
devices.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
September.
ACTING PRESIDENT McGEE: Call the
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roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
178, by Senator Morahan, Senate Print 6036B,
an act authorizing the increase in the number
of town justices.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
198, by Senator Volker, Senate Print 6214, an
act to amend the Penal Law, in relation to
making murder in the first degree
provisions -
SENATOR PATERSON: Lay it aside.
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ACTING PRESIDENT McGEE: The bill
is laid aside.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we temporarily lay aside the calendar.
And I believe that there is a
privileged resolution at the desk by Senator
Larkin. I would ask that it be read in its
entirety and move for its immediate adoption.
ACTING PRESIDENT McGEE: The
Secretary will read the resolution by Senator
Larkin, 4502, in its entirety.
THE SECRETARY: By Senator
Larkin, Legislative Resolution Number 4502,
memorializing Governor George E. Pataki to
proclaim March 20, 2002, as "West Point Day"
in New York State.
"WHEREAS, This Legislative Body is
justly proud to celebrate the 200th
Anniversary of the establishment of the United
States Military Academy at West Point and to
call upon Governor George E. Pataki to
proclaim March 20, 2002, as 'West Point Day'
in the State of New York; and
"WHEREAS, By an act of Congress, on
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March 16, 1802, the United States Military
Academy was established within the borders of
New York State, on the banks of the Hudson
River; and
"WHEREAS, The Academy and its
graduates are an integral part of the proud
history of this state and nation; and
"WHEREAS, The leadership and
sacrifices of the members of the Long Gray
Line have helped this country withstand
countless threats to our cherished democratic
way of life; and
"WHEREAS, the alumni have excelled
not only on the battlefield but in many fields
of endeavors; and
"WHEREAS, The Academy continues to
provide our country with able and dedicated
future leaders; and
"WHEREAS, Its scenic campus is a
mecca each year for thousands of visitors from
across our state, continent, and other
countries; and
"WHEREAS, The United States
Military Academy is in the forefront of our
state's outstanding institutions of higher
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learning; and
"WHEREAS, Forty-seven years ago,
the late James T. McNamara, then a member of
the New York State Assembly, and a member of
the Academy's class of 1939, was the author of
the State Legislature's first 'West Point Day'
resolution; and
"WHEREAS, For decades our nation
has enjoyed the legacy of freedom and the
United States Military Academy at West Point
has played a vitally significant role in the
maintenance of peace and freedom; and
"WHEREAS, The members of this
Legislative Body are equally proud to
commemorate this event, marking March 20,
2002, as 'West Point Day' in New York State;
now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to celebrate
the 200th anniversary of the establishment of
the United States Military Academy at West
Point, and to memorialize Governor George E.
Pataki to proclaim March 20, 2002, as 'West
Point Day' in New York State; and be it
further
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"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to Governor George E. Pataki."
ACTING PRESIDENT McGEE: Senator
Bruno.
SENATOR BRUNO: Thank you, Madam
President.
It certainly is an honor and a
privilege to welcome General Lennox, his wife,
Anne, and the cadets, led by First Captain
Andrew Blickhahn, from Colorado, and all of
you from all over the country to our chamber.
You've heard through the resolution
today is West Point Day. You are very, very
fortunate that you have one of our most senior
and distinguished senators, Bill Larkin,
representing West Point, and you are in his
district. And he is fortunate, as a colonel,
former colonel in the military, to be able to
represent all of you.
You know, your being here in this
time, I think it is so important for all of us
to just pause and just to reflect on 200 years
ago, with a vision that people had at that
time, on March 16, 1802, two hundred years
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ago, that we should have a facility where the
best of young people would be brought and
prepared to meet whatever challenges there
might be in the world out there for America.
And here we are two hundred years
later, recognizing that these cadets and all
of your peers someday, and some of you not too
soon, will be in various parts of the world.
Doing what? Protecting your fellow Americans,
looking after their health, their welfare,
jeopardizing your lives. How many cadets in
the last few years who graduated have already
lost their lives? Several?
So it's great that we pause, that
we recognize, and that you fully appreciate
that you are the best that America has in its
young people, with the staff, with the
officers, with the general, who joins as the
superintendent in June, who himself has
distinguished himself in so many ways -
academically, with a Ph.D. from Princeton in
literature, and having attended Harvard in the
military fellowship courses, and having
distinguished himself among his peers in the
military to reach one of the pinnacles of what
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anyone would consider to be success in your
life.
And I am a little bit in awe, when
I'm looking at so many officers and potential
officers, as a first sergeant in an infantry
company in Korea. And Bill keeps reminding me
that he was a colonel, and there are some
other colonels, and that we have to be as
respectful as of course we want to be.
But I am going to defer to Colonel
and Senator Larkin, but really want to just
wish you the warmest welcome, on behalf of all
of our colleagues, that we can wish you, and
wish you all the best in all the things that
you represent, because you are the best, and
thank you for all the good things that you do
now and that you will do with your lives as
you go forward just carrying the banner of
America throughout the world and protecting us
and our freedoms.
God bless you all.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Larkin.
SENATOR LARKIN: Thank you, Madam
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President.
It is a real honor and a privilege
to stand here before you today and introduce
to you in a few minutes the corps of cadets
that are visiting us.
This past weekend we celebrated the
200th anniversary of the United States
Military Academy. This academy was authorized
by President Thomas Jefferson, March the 16th
of 1802. There were many who thought this
academy should never be started because they
were afraid of what the military would be.
Two hundred years later, we look back and say
thank God that Thomas Jefferson was not swayed
by those who thought the military was the
wrong place for our young people.
You know, 52 years ago a young
member of the Assembly, Mr. McNamara, class of
'39, started this annual visit by the academy
to the State Capitol. It's continued on every
year. And as we look back and see, what do we
really see? We see a group of young men and
women -- and some of you should take note in
the brochures that you have, and you can find
the quality and the caliber of the men and
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women that we have accepted at the United
States Military Academy, their status and
their classes, what they stood for, what they
belonged to before they came to West Point.
Fifty-eight thousand men and women
have attended West Point and have graduated.
We talk about the big heroes of West Point.
This past weekend, some of us that are called
"Mustangs" were fortunate enough to saddle up
with the grads and talk about old times. And
the old times, one thing came through: duty,
honor and country, the cornerstone for every
cadet, the bible by which he and she lives by,
the bible by which they learn to lead the men
and women that they will lead.
Some of these men and women here
today will graduate in about -- how many days,
gentlemen, ladies? Seventy what?
You notice how they all know;
right? Senator Bruno, they know when the day
is ending better than we do.
They will join tactical units -
the 101st, the Big Red One, the 82nd Airborne,
10th Mountain, from Fort Drum -- and they will
be placed in harm's way. And they will have
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the tremendous responsibility to watch over
those entrusted to them to ensure that they
guide them out of harm's way.
This is a task that nobody really
wants, but this is a task that many would like
to have but few are chosen.
This graduating class of about 900,
if you go back to when the screening by the
435 Congressmen, the 100 Senators, and other
special allocations, there were approximately
14,000 men and women that made an application
to go to West Point. This summer, in 72 days,
as you heard, approximately 900-plus will
graduate.
We have the best, we have the
brightest. And the best and brightest at
West Point are led by a distinguished New
Yorker, really. General Lennox was born in
Westchester County, was appointed to the
Academy by Dick Ottinger. And Mrs. Lennox is
a product of Manhattan. She calls West Point
home.
As you heard Senator Bruno say,
General Lennox has one distinguished career.
He has served in every position from a platoon
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leader in a battery -- some of you don't know,
if you check his bio, you'll find out -- that
like a lot of us, he also got to Fort Benning
for the infantry school. He has served in
every responsible position any member of the
United States military would like to.
I know Senator Velella would be
very appreciative to know that he had a job
that you have. He was the Congressional
liaison officer. We understand that you still
are the liaison to the Second Floor. You know
what I'm talking about.
(Laughter.)
SENATOR LARKIN: General Lennox,
I was talking to some of your colleagues in
the class of '65 and '67 on Saturday. And
they said, "You know, when you talk about
West Point and you look at General Lennox, you
always see duty, honor, and country."
But there were two other words that
they used that I think carry you to a great
degree: "integrity" and "responsive." And in
the past year at West Point, you have shown
these to be true.
We have a number of cadets here
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today. I'd appreciate it if when your name is
called if you would stand up, please, because
there are men and women in this chamber who
respect you and they'd like to pay you homage.
And if I mispronounce your name,
blame Charlotte.
We've already met the First
Captain, Andrew Blickhahn, from the state of
Colorado.
Cadet Stephen Bishop, from
Freeport.
John Marchi, you're next. Cadet
Cassandra Facciponti, who also joined us
Friday night in New York City. Thank you.
Cadet Soren Gutierrez, Pound Ridge.
Cadet Karl Hoempler, from Suffern.
Cadet Paul Hwang, from Belle
Harbor.
Cadet Benjamin Levine, from
Glenmont.
Cadet Harry Park, from Jackson
Heights.
Cadet Stephen Pikner, Jackson
Heights.
Cadet Frank Pingelski, from
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Corinth.
Cadet Kara Pond, from Richmond,
Virginia.
(Laughter.)
SENATOR LARKIN: Cadet Kevin
Powell, from Delmar.
Cadet Greg Santorsola, from
Mamaroneck.
Cadet Adam Sasso, from Commack.
Cadet Dominic Trippodo, from the
great Hudson Valley and Lake Katrine.
Cadet Andrew Walton, from my
district, Pine Bush. Good to see you again.
Cadet Raymond Yu, from Little Neck.
And from the home of the United
States Military Academy, it's my honor and
privilege to introduce Olivia Zimmerman.
Thank you.
Ladies and gentlemen, the strength
of this corps is something we should all
recognize. The strength of our nation is
built upon the young people that we see here
today.
When 9/11 happened, there were a
number of young men and women that were
1471
legislated for special assignment, and the
superintendent received mail, as the
commandant of cadets did, and I guess General
Kaufman did. And these men and women said:
"We don't want the cushy assignment. Our
fellow members are in harm's way, and we
request that we be given an assignment that
starts now, not later on." That's the quality
of men and women we have here at West Point.
You know, when you talk about
West Point, a lot of people talk about the
Long Gray Line, and they talk about the people
that went to West Point. Who can ever forget
General MacArthur, whether you've been in the
military or not. Senator Bruno said to me,
"You know, the speech that he gave in November
of 1962 still rings in the ears of every
member of the armed forces that I was ever
associated with, when he said on the Plains on
November the 12th, 1962: 'The Corps, the
Corps, the Corps.'"
When we also think about West
Point, we think about others. We think about
two men that became president. We think about
the heroes, of Patton, Eisenhower,
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Schwartzkopf. But we ought to take a step
further, because people don't think about
them. I asked General Buzz Aldrin -- I have
to call him Buzz, sir -- and he was talking
about how great it was at West Point.
He said, "I went to the Air
Force" -- because 30 men out of the classes
went then to the Air Force. And he said, "You
know, somebody asked me, what did it feel like
walking on the moon, the second man to walk on
the moon." And he said, "I thought back to my
days marching on the Plains, and said: 'I was
blessed because I had the training at West
Point. It gave me the cornerstone.'"
And also, for those who weren't at
Friday night's function, Mrs. Aldrin was -
one young man said to her, "Could I shake his
hand? He walked on the moon." And she said,
"He takes the garbage out every Thursday
morning also."
(Laughter.)
SENATOR LARKIN: But just think
about it. George Goethals, a West Pointer,
construction of the Panama Canal. General
Wesley Groves, the Manhattan Project, the
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A-bomb. Edward White, the class of '52, was
the first to walk in space; later blew up on a
tarmac at Canaveral. Buzz Aldrin we've
mentioned.
And there's one person that's near
and dear to everybody's heart this month,
"March madness." As my roommate for 22 years,
Randy Kuhl, said: "Didn't we have a cadet
from West Point be a great basketball player?"
And I said, "Yes, Randy, and he beat
Syracuse." And his name is Mike Krzyzewski,
the great coach of Duke, an honor graduate of
West Point, a great All-American.
This is the type of people who have
made West Point.
One other thing that has been said,
at West Point they teach -- they teach
information that was made by former graduates.
Ladies and gentlemen, General
Lennox, Mrs. Lennox, the corps of West Point.
(Standing ovation.)
ACTING PRESIDENT McGEE: Senator
Bruno.
SENATOR BRUNO: Madam President,
I would ask my colleagues to join me in
1474
granting unanimous consent for General Lennox
to share some thoughts with us here in the
chamber.
GENERAL LENNOX: Senator Bruno,
Senator Connor, Senator Larkin, and members of
this distinguished Senate, first of all, I'd
like to say that I am still in awe of first
sergeants.
(Laughter, applause.)
GENERAL LENNOX: As a boy who
grew up in Yonkers and attended Cardinal Hayes
in the Bronx -
(Applause, laughter.)
GENERAL LENNOX: -- and received
my nomination from Dick Ottinger, it's an
honor to come here and it's an honor to be
able to speak to this distinguished body.
Thank you on behalf of the corps of
cadets and West Point for this tremendous day
here. As you know, we're celebrating the
bicentennial -- duty, honor, country -- West
Point at 200 years. Timeless leadership,
that's our motto.
Two hundred years ago, Thomas
Jefferson signed into law the Academy, and it
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was initially established to produce
artillerists and engineers. And over the
years, we've produced presidents, great
generals, corporate innovators, and community
leaders.
We have a saying, much of the
history we teach was made by the people we
taught. We lead in leadership.
West Point is a national treasure,
but it is all New York. Washington called us
the strategic center of the continent, and
right there on the Hudson River, we agree.
An alumnus asked me if we were
going to continue the bicentennial celebration
after 9/11, and I said, "We have to, because
West Point has been with this country through
its ups and downs, through peace and war."
And what better sign to the American people
than celebrating this bicentennial during the
period that we're going through right now.
We're going to be around through this period
and for the next 200 years. We continue with
the celebration.
We're New Yorkers. The West Point
civilian work force comes almost entirely from
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New York. Something you might not know, that
we're the third largest tourist attraction in
New York, behind Niagara Falls and New York
City itself.
We seek to be good neighbors and
stewards of the great resources we have there
at the Academy. And we're working hard to
galvanize the relationships we have with our
great communities around us.
When 9/11 occurred, that tragedy,
it hit West Point twice -- New York City,
fifty miles to our south, but also the
Pentagon. And West Point extended its hand,
offered everything we had to help. We did do
some small things -- provided tents, raised
some money, provided blood. The corps raised
some money for the Red Cross, they gave blood,
gathered up some items to help the people who
were working down there at ground zero.
We instituted security and closed
the post, I think for the first time ever for
West Point. And it had an effect on the local
communities.
We fought hard, we're open now for
the local communities. We're opening up for
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our tourists once again. And I think that is
only right. To help us in doing that, we have
two great infantry companies, from the 1st and
the 69th Rainbow Division out of New York
City. And they are now a part of West Point
there with us.
I would like to ask all of you to
come and visit your Academy. We would love to
have you. I think that you would see that
these great young men and women are ready to
do the jobs we've talked about right here,
just as the 2 to 3 million tourists see every
single year. Please come and visit.
And finally, I'd like to say thank
you for your support. Thank you for your
support today and always. We are New Yorkers.
Thank you very much.
(Standing ovation.)
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, on behalf of Senator Connor and all
of us here in the Minority in the Senate, we
wanted to congratulate General Lennox and all
the graduates from West Point, in recognition
1478
of their 200th anniversary, and this brilliant
recording of it that they presented us all
today.
We look forward to March every year
when at some point in the month we have a
West Point Day and we get to meet the new
cadets that will graduate on May 31st. It's
our distinct honor to be among them at this
particular time in history.
When we reflect back to 1802, when
West Point was first founded, there was a fear
about the delicate balance between the
military and the elected government of America
at that time. And yet in the last 200 years,
as has been exemplified by no other country,
the military has supported the elected
government in this country and at the same
time defended it.
And we saw that certainly after the
events of September 11th, the attack on
America through New York, and the way that
even the Academy was all over the state,
particularly in New York City, at ground zero,
right in the middle of danger, trying to
protect its citizens.
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We also have Major Mike Breslin
here with us today, who is the county
executive of Albany. And his brother serves
in the Senate and sits to my left, Neil
Breslin.
And I just wanted to inform Senator
Larkin that actually, after the first moon
landing on July 20, 1969, in the original
plan, out of respect for that military
service, Major Edward Aldrin was supposed to
be the first American, the first human being
to ever walk on the moon, but the commander
decided that he would supersede and actually
was the first on the moon. But that it was
partly a recognition of the West Point Academy
that went into the original decision.
So we congratulate all of you for
being here. We wish you well in your careers
and wish you safety in your lives.
Thank you.
ACTING PRESIDENT McGEE: Senator
Bruno.
SENATOR BRUNO: Madam President,
can we at this time adopt the resolution that
is on the floor before us.
1480
ACTING PRESIDENT McGEE: The
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
Senator Bruno.
SENATOR BRUNO: Madam President,
I believe there is another privileged
resolution by Senator Morahan at the desk. I
would ask that the title be read and move for
its immediate adoption.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
Morahan, Legislative Resolution Number 4496,
honoring Cadet Seth P. Model upon the occasion
of his designation as the recipient of the
AFSA Award to Outstanding CAP Cadet NCO of the
Year 2001, and the General Billy Mitchell
Award, to be presented on March 26, 2002.
ACTING PRESIDENT McGEE: The
1481
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
Senator Bruno.
SENATOR BRUNO: Madam President
and my colleagues, we understand that there
are many in the chamber that would like to at
this time speak. But the general and the
cadets were supposed to be with the Governor
some minutes ago, and in the Assembly by
12:00, and back in our chambers at the
conference room having a lunch.
And everyone here, of course, will
be invited to the lunch and have a chance to
visit on a personal basis with the general and
his wife and the cadets.
So out of deference to their time
and to their schedule -- and in the military,
schedules are critically important. As they
are here in the Senate, General.
1482
So we would again thank you and
look forward to spending some time with you in
a more informal and leisurely way this
afternoon.
Thank you, Madam President.
(Applause.)
SENATOR VELELLA: Madam
President.
ACTING PRESIDENT McGEE: Senator
Velella.
SENATOR VELELLA: Are there any
substitutions at the desk?
ACTING PRESIDENT McGEE: There
are substitutions at the desk.
SENATOR VELELLA: Can we take
them up now.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: On page 23,
Senator Maziarz moves to discharge, from the
Committee on Transportation, Assembly Bill
Number 6571C and substitute it for the
identical Senate Bill Number 844B, Third
Reading Calendar 372.
On page 26, Senator DeFrancisco
1483
moves to discharge, from the Committee on
Local Government, Assembly Bill Number 9546
and substitute it for the identical Senate
Bill Number 6125, Third Reading Calendar 398.
And on page 26, Senator Rath moves
to discharge, from the Committee on Local
Government, Assembly Bill Number 9446 and
substitute it for the identical Senate Bill
Number 6423, Third Reading Calendar 400.
ACTING PRESIDENT McGEE: The
substitutions are ordered.
Senator Velella.
SENATOR VELELLA: May we please
have the continuation of the noncontroversial
calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
253, by Senator Kuhl, Senate Print 3071A, an
act to -
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
1484
263, by Senator Velella, Senate Print 6231, an
act to amend the Education Law, in relation to
the education of persons in youth shelters.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
270, by Senator Balboni, Senate Print 849, an
act to amend the Banking Law, in relation to
the maintenance of assets.
ACTING PRESIDENT McGEE: Read the
last section.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
273, by Senator Farley, Senate Print 6294, an
1485
act to amend Chapter 591 of the Laws of 2001.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
298, by Senator Seward, Senate Print 3517, an
act to amend the State Finance Law, in
relation to matching funds.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT McGEE: The bill
is passed.
1486
THE SECRETARY: Calendar Number
302, by Senator Volker, Senate Print 6026, an
act to amend the Executive Law, in relation to
extending provisions.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
326, by Senator Leibell, Senate Print 6300, an
act to amend the Town Law, in relation to the
residency requirements.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
1487
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
337, by Senator Saland, Senate Print 395, an
act to amend the Family Court Act, in relation
to evidence.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
SENATOR VELELLA: Lay it aside
for the day, please.
ACTING PRESIDENT McGEE: The bill
is laid aside for the day.
Senator Velella, that concludes the
noncontroversial reading of the calendar.
SENATOR VELELLA: Madam
President, may we now have the reading of the
controversial calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
198, by Senator Volker, Senate Print 6214, an
act to amend the Penal Law, in relation to
making murder in the first degree provisions.
1488
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Volker, an explanation has been requested.
SENATOR VOLKER: Madam President,
in 1995 this chamber -- and I was looking at
the names on the bill, because I have a copy
of the bill that passed in '95. In my humble
opinion, the most important bill I've ever
passed in my life, and it took me almost 25
years to do it, was the passage of the death
penalty bill in 1995.
Which, by the way, we were very
careful of -- and, contrary to what some of
the media people have said, has been virtually
untouched except for one provision in it, the
People versus Jackson issue, that the Court of
Appeals just recently -- although the Court of
Appeals affirmed their objection to it, and I
won't get into all the details.
But what they did is by what they
did most recently they basically said, in the
opinion of many of us, the statute is whole;
we're not going to withhold judgment simply
because there was a piece of the death penalty
statute that was ruled unconstitutional.
1489
The reason I say that is it's
important, because I don't see any way that
the Court of Appeals is not going to affirm
the statute we've already passed. I mean,
every indication is that -- and the
anti-death-penalty people have been
desperately trying to find some issue. And
the latest tactic, of course, was just delay.
They've delayed for almost a year. But the
decision is expected to come this summer.
This bill, by the way, will have
nothing to do -- and that's why I have not
even tried to move some other changes to the
death penalty bill until the final decision
that should be made this summer.
I know that many people object.
But the 1995 bill saved more people, saved
more innocent people in this state, in my
humble opinion -- particularly in New York
City -- than any bill we've ever done here.
The murder rate is at an absolute all-time
low.
I just see that some professor from
John Jay College, of course is opposed to the
death penalty, couldn't figure out why the
1490
murder rate is so low. He wants to do a
commission to figure it out. Well, those
people in criminal justice all know why. And
people say: Well, nobody's been executed.
You don't really need to execute anybody.
But I'll tell you, we have saved
millions of dollars in this state by the
amount of credible pleas that we've had by
people who would have gone to trial without
question if there was not a death penalty
included in the procedure. Tons of people
have pled to life without parole. A lot of
people have pled to 40, 30 years to life, and
so forth.
So you can say all you want -- you
know, you're opposed to the death penalty,
it's not a nice thing. But New York stands as
a state, more than any other, where the
numbers are absolutely clear. We repealed the
death penalty, the murder rate shot up,
particularly in New York City and in Buffalo,
which set records.
The numbers are clear. Almost as
many people were killed a few years after the
death penalty was -- murdered, rather, as at
1491
the World Trade Center -- nearly as many
people were murdered in one year in New York
State.
I mention that because that
conclusion -- and you can say there's lots of
other reasons. And I know everybody has been
taking credit for low -- not only murder
rates, because what happens is when murder
rates are low, violent crime rates are low.
And that's exactly what it is. There's been
an enormous reduction; New York leads the
whole country.
It's not just the death penalty
statute. But you can say all you want, but
the people who were involved in this -- and by
the way, most of the people in this room that
are here voted for the bill. I'm not saying
that, you know, everybody here, but most of
the people here that are still in this chamber
were people who voted for it.
What this bill does, and it
involves a -- what I consider -- I'll have to
be honest with you, a ridiculous decision, a
couple of ridiculous -- it points up, I think,
the problem here. The bill was designed
1492
particularly to deal with multiple killers, if
you really look at all the provisions and the
aggravating circumstances.
People said to me: Why aren't
family killings included in this? And the
answer is family killings are not deterrable.
They're very, very tough to deter.
It's not vengeance we're seeking,
it frankly is deterrence. And we see it here.
There's no question in my mind. And I know
other people disagree.
But what this bill deals with is
the serial killer provision. Which
essentially said that you have to have two or
more additional killings within 24 months.
And it had a provision here that related to
people according to a common scheme or plan,
because that's what serial killers are
normally considered to be part of.
So we had two cases here involving
people who murdered four people. I have to
tell you, it's a little difficult for me to
deal with some of the reasoning. But it was
pretty clear to my mind that the judges just
simply did not want to sentence these people
1493
to the death penalty. So they sentenced them
to life.
Now, the DAs feel that they could
have used another -- stressed another section
of the law, for one thing. But the feeling of
the DAs was that the serial killer provision,
particularly the serial killer provision in
the law, is exactly what the death penalty
should be about.
And that's why they have asked for
this bill, which basically simplifies the
serial killer provision and goes from two or
more to one or more additional killings,
eliminates the language on separate
transactions, and says it -- gives it 48
months.
Now, as I've said to some people,
this doesn't necessarily mean that a person
who commits multiple killings, that you have
to be covered under this statute. There's
other places to do it. But particularly
serial killings, which normally may be as many
as 10 or 12, and you only are able to deal
with three or four of them, it just seems as
if there ought to be a viable provision in the
1494
law -- if you're going to have a death penalty
statute.
Never expected, by the way, that a
lot of people would be executed. Never. It's
not surprising to me. I think this summer the
most likely is that the death penalty statute
will be upheld, and then we'll have some
federal appeals. There are presently six
people on death row -- three whites, two
blacks, and one Hispanic. Just so if anybody
really cares.
The problem has been for the
anti-death-penalty lawyers. They've had a
great deal of difficulty because that's been
their big contention, they've been trying to
work out numbers.
But anyways, I just -- so that
everybody understands, this does not deal -
this is one of the aggravating circumstances.
That is, in order to prosecute somebody, you
go to the jury with certain aggravating and
mitigating circumstances.
And in New York, by the way, we
have very clearly to deal with the issue of
mental problems and so forth. And in some of
1495
the other states, the way that their statutes
are set up -- under our statute, it's
essentially virtually impossible to execute
somebody who has true mental problems, if you
look at the mitigating circumstances, the way
it's set up. So that -- you know, I just want
to point that out, because some of the debate
about how it's set up I think does not pay
attention to that.
But the real reason that we set
this process up was to give juries -- not
prosecutors, and not judges -- but to give
juries the option and to have the information,
the two-tier jury system. It's been upheld
all over the country, statutes similar to
this. In fact, we've been asked for our
statute to be -- it's generally considered to
be the most fair statute in the country.
I'll finish up by saying that the
one thing I think that people do not realize,
and there's been so much talk about DNA and
innocence and all that. There's truth to
that, that there have been some cases. But I
point out to you the fact that a person, under
the law, if DNA finds you're not guilty, it
1496
means under the law you're not guilty. It
doesn't necessarily mean, however, that they
didn't commit the crime.
And the reason it is is because
what the DNA evidence did was to exclude you
based on the evidence. For instance, some of
those cases were multiple killings. That
is -- or not -- multiple defendants, I'm
sorry. And then if the DNA knocked out the
evidence, even though that person could well
have been involved in the killing, it means
that under the law they're innocent.
I don't know how many times I've
talked to prosecutors who have said to me -- I
said that, you know, "You lost the case, he's
been found innocent." And they'd say to me:
"Yeah." I'd say, "Well, are you really
looking for the killer?" "Oh, no, no, no, he
was the killer. It's just that we can't prove
it."
I only mention that because it's
something that is not understood. Under the
law, they're innocent. But many of these
people actually committed the crimes, and you
just can't prove them, and that's the way the
1497
law is.
So what this does, basically, is to
uphold a serial killing provision. It does
not add anything or really subtract anything.
All it's designed to do is to clarify what was
intended when we passed the death penalty bill
in 1995.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: I'll yield to
Senator Paterson.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: I'll be very
brief, Madam President.
So therefore, Senator Volker, you
believe that the court would be somewhat
constrained to come to the point of view that
it did in the cases of the two individuals who
had committed four or more murders and would
have been persuaded to have ruled differently
based on the corrections that you're making in
this legislation?
SENATOR VOLKER: You're asking me
a question?
1498
SENATOR PATERSON: Yes.
SENATOR VOLKER: Yes, the answer
is yes, that it appears as if at least there
are intentions. And the opinions appear to
indicate that that is so. And we're trying to
clarify what was intended initially.
I mean, the people were, I think,
sentenced to life, if I'm not mistaken. But I
think the clear -- what we're trying to do is
clarify for serial killers, obviously -- and
these are people that have killed multiple
people -- so that we don't have this problem
again.
And that's what the DAs asked us to
do, by the way. It came from the District
Attorneys Association this last year.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President. Will the sponsor yield to a
question?
SENATOR VOLKER: Sure.
SENATOR DOLLINGER: Senator, on
the memo explaining this bill it highlights
the Mateo case. Isn't it a fact that Mateo
1499
was charged with first-degree murder, found
guilty, and actually sentenced to death?
SENATOR VOLKER: Yes.
SENATOR DOLLINGER: He's one of
the people on death row.
SENATOR VOLKER: Yes.
SENATOR DOLLINGER: So despite
the fact that -- again, through you, Madam
President, if the sponsor will continue to
yield.
ACTING PRESIDENT McGEE: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DOLLINGER: So despite
the fact that the serial killer portion of the
indictment was dismissed, nonetheless, Mateo
was prosecuted under the death penalty and, as
you properly point out, sentenced to die.
Through you, Madam Chairman, if the
sponsor will continue to yield for one other
question.
SENATOR VOLKER: Sure.
ACTING PRESIDENT McGEE: The
1500
Senator yields.
SENATOR DOLLINGER: I'm
concerned, Senator Volker -- we've talked, as
we did back in 1995, and have revisited this
issue a couple of times tangentially since
then. And I'll address sort of my view of
what's happened and what the death penalty
statute has done.
But my question is this. If what
we're seeking to do by this bill is to get at
serial killers, why do you remove the language
that would establish the serial portion of
their conduct? That is, generally in
New York's criminal jurisprudence, in order to
aggregate offenses, in order to increase the
penalties, we require that the conduct of the
defendant be -- occur pursuant to a common
scheme or plan.
For example, the one that I'm most
familiar with, because I tried a case like
this a decade ago, involved someone who was
accused of Medicaid fraud. He had engaged in
a conduct where he had used small amounts of
money, stolen it on a number of occasions over
a period of time. They were able to aggregate
1501
the petty larcenies into a grand larceny
because they followed the same consistent
scheme or plan.
My question is, you're eliminating
the common scheme or plan language here; so
this is a bill that affects multiple killers,
but not serial killers, because they're
defined by the fact that they're engaged in a
common scheme or that their killing stems from
the same modus operandi or criminal defect or
whatever we want to call it.
SENATOR VOLKER: I think the
problem is, in response to that, is that the
problem with the definition of a common scheme
or plan means -- for instance, at least it
seems to mean to certain judges that you kill
somebody in exactly the same way, use the same
weapon, you're involved in exactly the same
series of conduct. That's not necessarily
true with serial killers.
And I can only -- you know, I
guess -- I dealt with some serial killings,
for various reasons -- I won't get into it -
and some of the serial killers kill people in
different ways and for different reasons.
1502
They usually have a same kind of deep-in
reason. And keep in mind that part of the
problem here is that you're almost reaching
into the mind of the killer.
SENATOR DOLLINGER: Right. That
mental defect issue that we've discussed a
lot.
SENATOR VOLKER: Right. And one
of the things about -- it's difficult for a
court to make those kinds of determinations.
And the DAs argue that essentially,
if you have somebody that kills a bunch of
people within a fairly short period of time,
just by the normal -- because of the acts
themselves, it's generally some sort of common
scheme. But the difficulty in proving it is
that you're kind of reaching into the mind of
the killer.
So the more simple way to do it -
and it is true that other provisions of the
death penalty statute could cover those. But
the feeling is that a person who could be
considered, and certainly could be considered
a serial killer, there should be a provision
which is enforceable in the death penalty
1503
statute by itself.
And you are right about Mateo.
Mateo was found guilty of the killings and
actually is on death row. So it isn't that he
got off entirely, and I didn't mean to say
that.
But he did -- this provision was
thrown out. And the feeling is that you may
well have somebody who that's the only
provision you can use, for one reason or
another.
So what they're concerned about is
that if you're going to have a death penalty
statute, you know, you should at least have -
you should certainly have the serial killer
provision in it.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will yield for
one more question.
ACTING PRESIDENT McGEE: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Sure.
SENATOR DOLLINGER: Senator, you
highlight, I think, my point. Which is I
think we both acknowledge that the serial
1504
killer is usually driven by a mental
predisposition, whatever that may be. A
defect; I would call it defect.
But it's evidenced in his conduct.
He or she does things in a somewhat similar -
has a similar victim, similar modus operandi,
similar location of the crime, similar weapon,
similar form of killing.
But isn't it critical that in a
crime which we define by intention, if we're
going to aggregate the offenses, that we ought
to look for the same intention as the key to
the aggregation?
In other words, if we're going to
increase the penalties for someone who's
accused of being a serial killer, shouldn't we
require that that common scheme or plan be a
part of it or that common defect or that
common whatever we want to call it, mental
deficiency that causes them -- shouldn't we
require, in order for the aggregation to
occur, for that common scheme or plan to
exist?
SENATOR VOLKER: In all honesty,
it's a defense lawyer's dream. Because when
1505
you think about it, you got somebody who you
know, for instance, may have killed 15 or 20
people. And I can cite you some of the cases
nationwide involving people that they believe
killed, you know, 30, 40 people. One
particular killer who was dragged all over the
country looking for bodies.
The difficulty, though, is if the
killings come in a fairly short period of
time, then, you know, it's virtually assumed
that there was some sort of common scheme.
But because -- the problem is how will you
possibly prove a common scheme when you're
dealing with somebody who has committed
individual killings on a fairly repetitive
basis, probably in fairly the same way.
But a serial killer does not
necessarily mean that that person killed
everybody exactly the same or that -- you
know, that in his mind it's not a common
scheme or whatever, but in reality we know it
probably is. Or presumably is.
But what we're trying to do here is
do an enforceable piece of a death penalty
statute, very honestly that maybe some judges
1506
have difficulty, very honestly, in courts
maybe in dealing with.
SENATOR DOLLINGER: I would like
to thank Senator Volker for his, as always,
candid and thoughtful responses.
Just briefly on the bill, Madam
President.
ACTING PRESIDENT McGEE: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: Senator
Volker and I seven years ago had a lengthy
discussion, I think several, about the death
penalty and what impact it would have on the
crime rate in this state, on the murder rate
in this state.
To the best of my knowledge, none
of the six inmates who are currently sentenced
to death in New York would ever acknowledge,
have ever suggested that had they known there
was a death penalty they would not have
committed their crime.
And I know Senator Volker has
talked -- we've debated that issue before,
about when people have that impulse or that
predisposition to commit a horrific crime, as
1507
did Mr. Mateo in Rochester, does the fact of
an impending penalty influence their conduct.
I don't believe there's a shred of evidence
that it does.
I do acknowledge with Senator
Volker that the existence of a death penalty
may have some impact on others out there in
the marketplace who might be predisposed to
commit a crime. But crimes of this violence
and of this nature just do not attend rational
thought. These are not a process by which
people sit down and say "had I known there was
a serial killer statute in place, I wouldn't
have committed a couple of crimes."
But the biggest concern I have with
this bill is that I think this bill radically
alters the aggregation rule in New York with
respect to any crime. The aggregation rule,
where we allow our criminal justice system to
take a series of crimes and aggregate them and
make a more substantial penalty, has I believe
at every single level required that there be
evidence of a similar fashion or that it occur
pursuant to a common scheme or plan.
It is my personal opinion that this
1508
bill is a marked departure from that because
it eliminates that provision.
In addition, I think Senator Volker
is correct about one other thing. One of the
factors that's used in the criminal justice
system to make a determination about a serial
killer or a series of different isolated
crimes that are then aggregated together is
the coincidence of those events; that is, that
they happened at a relatively frequent
interval, that they happened over a course of
months, they happened over the course of a
year.
What this bill does is this bill
suggests that the period of time from which
those events can be combined is actually going
to be increased from two years to four years.
In other words, that we're going to take that
factor that shows common scheme or plan -
which is coincidence in time -- and we're
going to expand that over a much longer period
of time.
Madam President, I voted against
the death penalty bill in 1995. I'm going to
vote against this bill. I don't think that
1509
the elimination of the aggregation language,
which has long been a part of our criminal
justice jurisprudence, is warranted. I think
that expanding it from 24 to 48 months may
have the impact of creating even more pressure
on already very pressured defendants to plead
guilty to life imprisonment.
I will agree with Senator Volker on
one thing. There is no question that the
death penalty as an impending penalty in
capital cases has substantially increased the
number of those who have pled guilty and taken
the penalty of life imprisonment.
But at the same time, I think that
expanding the time period gets us further away
from "common scheme or plan," makes it not
appear as though this is a serial killer bill,
but this is just a multiple killer. Two
killings that occur, whether they have any
connection at all, would qualify under this
bill for the death penalty, even though -- and
I would almost find it difficult to believe
that a prosecutor would not charge the death
penalty for both of those individual events.
So for that reason, Madam
1510
President, I think this statute is a
fundamental change in long-held criminal
jurisprudence about the aggregation rule. I
think it goes too far in disturbing the finely
struck balance.
And I'll commend Senator Volker
again. Although we disagreed, when all was
said and done, I will agree with him on one
other thing: I think we have the best and
fairest death penalty statute in this nation.
And I think that under these circumstances we
don't need to tinker with that fine balance
that we struck seven years ago in imposing
this penalty. I think this is to slightly
unweight that fine balance.
And under those circumstances,
since I voted against it seven years ago, I'm
going to vote against this as well.
ACTING PRESIDENT McGEE: Senator
Duane.
SENATOR DUANE: Thank you, Madam
President. On the bill.
ACTING PRESIDENT McGEE: Senator
Duane, on the bill.
SENATOR DUANE: This bill is
1511
intended to widen the net of people who could
be captured under capital punishment. Under
this legislation, more people are liable to be
labeled as serial killers.
Now, under current law, the people
who would be included in this category would
certainly go to prison under first-degree
murder. But this bill would make it possible
for them to be eligible to receive the death
penalty. So this bill will make it so that
more people will be eligible to be put to
death under state law.
As I understand this bill, if I
were to kill someone today because I needed
money and then, a couple of days later, if I
realized that that worked so well that I
decided to go home and kill my partner, under
current law I would not be eligible to receive
the death penalty. But under this law I would
be eligible to receive the death penalty. And
so, as I say, more people would be eligible to
be put to death in our state.
Now, I'm against the death penalty,
so no matter when the death penalty comes up,
I vote against it. And I think it's a shame,
1512
I think it's the shame of New York State that
after many years of being humane in our
criminal justice system as it applies to
capital punishment, we changed.
That said, the criteria for putting
people to death in our state has apparently
worked. There are six people now on death
row. As I understand it, the criteria for
putting people to death in our state was
supposed to be very limited. The legislation
was very, very carefully crafted so as to make
sure that only those people who had committed
the most heinous crimes would be eligible to
receive the death penalty. And there are six
people on death row.
The criteria was enumerated that
that legislation very clearly. Very, very
clearly. And it was crafted after a
tremendous amount of negotiation among those
who supported the death penalty for a larger
group of people and those who wanted extremely
limited circumstances under which the death
penalty could be done. And both parties in
both chambers as well as the Governor were
involved in those negotiations.
1513
What this bill would do is to
change that statute. And so for us to debate
changing that statute with this legislation
and making it possible for more people to be
put to death is unfair, because if we're going
to change that statute, then those of us who
oppose the death penalty should be able to
debate that as well and give us a chance to
repeal the death penalty.
I have to caution my colleagues,
those who supported the death penalty under
the very limited statute that was passed in
this state and those who oppose the death
penalty in general, that this is an expansion
of the death penalty. This means that more
people could potentially be put to death in
our state.
And so I urge everybody who is
opposed to capital punishment to oppose this
legislation, and those people who had a
difficult time voting for the original statute
to vote against this. Because this expands
the categories or the circumstances under
which people can be put to death.
And the time to do that is
1514
certainly not now. The time to do that is
when we in New York State are ready to debate
the entire issue of capital punishment.
Thank you.
ACTING PRESIDENT McGEE: Senator
Volker.
SENATOR VOLKER: Very quickly,
Madam President, I'd like to say to Dick -
and who, by the way, is always very
articulate, and I appreciate the debate on the
issue of how the serial killer area comes
about. And you are right, I think it is an
interesting question.
I only want to say to you, and
you'll know exactly what I'm saying, res ipsa
loquitur as far as the death penalty is
concerned. I mean, the numbers speak entirety
for themselves.
Senator Duane, I really don't see
this as an expansion of the death penalty at
all. We're still listing the serial killer -
this was already in the law. What happened
is, as so often happens in this state, some
judges have put sort of like a hold on it. I
don't think really any more people are going
1515
to be prosecuted because of this, because this
is one of the -- will be one of the
aggravating circumstances.
In most multiple killings, the
person who killed several people will probably
be charged, is likely to be charged anyways.
I mean, I'm not saying that the jury will
decide to do it. You may be right that it may
cause a few -- not very many, it may cause a
few more people to be eligible for the death
penalty. But not very many. We don't have a
lot of serial killers. Thank God, we don't.
I mean, it is pretty rare.
But I really don't think -- and I
agree with you on one thing. I wouldn't do
bills -- and we have several to change
provisions -- if it really, actually changed
the structure of the death penalty. I don't
really think this does. And I don't think we
want to the change the structure until after
the Court of Appeals decision.
I just think this is a
clarification of the serial killer provision
that we had in the bill when we passed it in
'95. We debated it quite strenuously. And it
1516
just seems to me that this is just a logical
progression, given what the courts have said.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Senator
Marchi, to explain his vote.
SENATOR MARCHI: For the purpose
of explaining my vote.
I have historically been against
capital punishment, going back to my college
days, I guess, when I raised the questions
that had been advanced by Thucydides and
Beccaria in the Middle Ages or the late Middle
Ages.
But -- and I have great admiration
for the sponsorship of this bill and the very
earnest consideration which he evidenced by
his presentation in making a very close case.
1517
I do want to invite your attention
to the experience in Manhattan, where the
number of homicides had descended to eight.
When Morgenthau took over, it was much higher
than that, 30 years ago. Bob Morgenthau has
been able to accomplish that, notwithstanding
the fact that there are problems that arise
out of the persuasion that I share with him.
So I just thought that I would pass
that on to you, because Bob Morgenthau is an
example that you can be constructive on -- in
both aspects.
I vote no.
ACTING PRESIDENT McGEE: Senator
Dollinger, to explain his vote.
SENATOR DOLLINGER: Just to
explain my vote, Madam President.
Again, I appreciate Senator
Volker's tremendous candor. And when we
debated this seven years ago, he again
exemplified -- although we had strongly
different point of views, I think we tried to
reason together even though we reached
different conclusions.
My concern with this bill, Madam
1518
President -- and I'll state it again -- is
that under the current death penalty statute
you need to show aggravating circumstances in
order to be able to charge them with a capital
offense. What this bill does is that this
says if there are two murders and you can't
prove aggravating circumstances in either of
them, you can then tie them together
subsequently by time over four years, and you
don't have to prove aggravating circumstances
in order to charge them with a capital
offense.
I still think that if -- when we
voted for the death penalty, we said in
certain cases you must show aggravating
circumstances in order to raise the specter
that the state will take a life at the end of
the criminal process. And before we eliminate
that aggravating-circumstances test as a
prerequisite, we should, if we're going to
take several killings, none of which has
aggravating circumstances, and combine them
together to eliminate the aggravating
circumstances test, the only way to do it is
to say it's through a common scheme or plan
1519
that occurs relatively close together, which
would be a coincidental factor which would
lead someone to the conclusion that the same
mental defect or the same impulse was driving
the crimes.
And under those circumstances,
Madam President, we fought long and hard, and
I know Senator Volker was right at the heart
of it, for the aggravating-circumstances
language before the death penalty could be
imposed.
I'm reluctant and unwilling to
relieve the government of its obligation to
prove those aggravating circumstances when
what we're doing is narrowing the common
scheme or plan requirement that we originally
agreed would be a substitute for aggravating
circumstances in some cases.
Again, I think before we eliminate
that, we should require that they be done,
pursuant to a common scheme or plan,
relatively close together. I'll vote no.
ACTING PRESIDENT McGEE: Thank
you, Senator Dollinger.
Will those voting in the negative
1520
please raise their hands high so the Secretary
can record them.
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 198 are
Senators Andrews, Breslin, Dollinger, Duane,
Hassell-Thompson, L. Krueger, Marchi,
Montgomery, and Senator Schneiderman. Also
Senator A. Smith.
Ayes, 47. Nays, 10.
ACTING PRESIDENT McGEE: The bill
is passed.
The Secretary will read.
THE SECRETARY: Calendar Number
253, by Senator Kuhl, Senate Print 3071A, an
act to amend the Vehicle and Traffic Law, in
relation to authorizing.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Kuhl, an explanation has been requested.
SENATOR KUHL: Yes, Madam
President.
This is a bill that simply would
permit the operation of a registered farm
vehicle on public highways to and from a
1521
repair shop or a garage for purposes of making
necessary repairs.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Ayes, 56. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
270, by Senator Balboni, Senate Print 849, an
act to amend the Banking Law.
SENATOR KUHL: Lay it aside for
the day, please.
ACTING PRESIDENT McGEE: The bill
is laid aside for the day.
Senator Kuhl.
SENATOR KUHL: Is there any
1522
housekeeping at the desk?
ACTING PRESIDENT McGEE: There is
one motion, from Senator Seward.
SENATOR KUHL: Can we return to
the order of motions and resolutions, then.
ACTING PRESIDENT McGEE: Motions
and resolutions.
Senator Seward.
SENATOR SEWARD: Yes, Madam
President, I move that the following bill be
discharged from its respective committee and
be recommitted with instructions to strike the
enacting clause. And that's Senate Number
1856, by Senator Maltese.
ACTING PRESIDENT McGEE: So
ordered.
Senator Kuhl.
SENATOR KUHL: Would you
recognize Senator Paterson, please.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, there will be a meeting of the
Minority, the Senate Minority will meet in
Room 314, particularly today, at 1330 hours.
1523
ACTING PRESIDENT McGEE: Thank
you. There will be a meeting of the Minority,
there will be a Minority conference in Room
314 at 1330 hours today.
Senator Kuhl.
SENATOR KUHL: There being no
further business, Madam President, I move we
adjourn until Monday, March 25th, at
3:00 p.m., intervening days to be legislative
days.
ACTING PRESIDENT McGEE: On
motion, the Senate stands adjourned until
Monday, March 25th, at 3:00 p.m., intervening
days being legislative days.
(Whereupon, at 12:41 p.m., the
Senate adjourned.)