Regular Session - April 8, 2002
1791
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 8, 2002
3:11 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: With us this
afternoon to give the invocation is the
Reverend Charles Harris, from Bethel Community
Church on Staten Island in New York.
Reverend Harris.
REVEREND HARRIS: Let us pray.
Father and all-wise God, once again we come
humbly before Thy throne of grace.
O, Father God, we come this evening
asking that You smile on this Senate chamber
today, Lord. Father God, we pray that You
open everybody's understanding, Lord, that
they will be of one accord as they go about
the affairs of this state.
O, Father God, we pray, Lord, that
You give them the wisdom, the knowledge, and
the understanding to guide this great state in
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the way that You would have it go. But we ask
that You bless them individually, one and all,
for having the gumption and the something in
them, Lord, that will let them care about the
mankind and care about the people of New York
State. Lord, bless them and their families.
We pray that You watch over and keep them.
And, Lord, we ask that this group
of legislators stand firmly with the federal
legislators, that we stand behind Israel and
keep them from falling, because that is the
will of God.
We ask these things in Jesus's
name. Amen. Amen. Amen.
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Sunday, April 7, the Senate met pursuant to
adjournment. The Journal of Saturday,
April 6, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
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Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Nozzolio,
from the Committee on Crime Victims, Crime and
Correction, reports:
Senate Print 442A, by Senator
Maltese, an act to amend the Correction Law;
1110, by Senator Morahan, an act to
amend the Executive Law;
1134, by Senator Alesi, an act to
amend the Correction Law;
1141, by Senator Alesi, an act to
amend the Correction Law;
1264, by Senator Skelos, an act to
amend the Correction Law;
And 3776, by Senator Nozzolio, an
act to amend the Correction Law.
Senator Meier, from the Committee
on Social Services, reports:
Senate Print 1325, by Senator Lack,
an act to amend the Social Services Law;
1857, by Senator Maltese, an act to
amend the Social Services Law;
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6287, by Senator Morahan, an act to
amend Chapter 631 of the Laws of 1997;
6391, by Senator Meier, an act to
amend Chapter 534 of the Laws of 2000;
And Senate Print 6406, by Senator
Meier, an act to amend Chapter 906 of the Laws
of 1984.
Senator Bonacic, from the Committee
on Housing, Construction and Community
Development, reports:
Senate Print 3838, by Senator
Nozzolio, an act to amend the Executive Law;
6556, by Senator Bonacic, an act to
amend the Private Housing Finance Law;
6640, by Senator LaValle, an act to
amend the Public Housing Law;
And Senate Print 6671, by Senator
DeFrancisco, an act to amend the Public
Housing Law.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
objection, all bills are reported direct to
third reading.
Reports of select committees.
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Communications and reports from
state officers.
Motions and resolutions.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Madam President. Amendments are offered to
the following Third Reading Calendar bills:
Sponsored by Senator Rath, page
number 6, Calendar Number 78, Senate Print
Number 3644.
By Senator Alesi, page number 7,
Calendar Number 99, Senate Print Number 2218B.
By Senator Skelos, page number 21,
Calendar Number 380, Senate Print Number 6133.
And by Senator Maltese, page
number 9, Calendar Number 160, Senate Print
Number 2591A.
I now move that these bills retain
their place on the order of third reading.
THE PRESIDENT: The amendments
are received, and they will retain their place
on third reading, Senator.
SENATOR FUSCHILLO: Thank you.
THE PRESIDENT: Senator Skelos,
we have a substitution.
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SENATOR SKELOS: Please make the
substitution, Madam President.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 29,
Senator Velella moves to discharge, from the
Committee on Labor, Assembly Bill Number 9311
and substitute it for the identical Senate
Bill Number 6398, Third Reading Calendar 472.
THE PRESIDENT: The substitution
is ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Finance Committee in the Majority Conference
Room.
THE PRESIDENT: There will be an
immediate meeting of the Finance Committee in
the Majority Conference Room.
SENATOR SKELOS: Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: There's a
privileged resolution at the desk by Senator
DeFrancisco. May we please have the title
read and move for its immediate adoption.
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THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
DeFrancisco, Legislative Resolution
Number 4763, recognizing the White Ribbon
Campaign, sponsored by Vera House of Syracuse,
New York, to take place April 5 through April
14, 2002.
THE PRESIDENT: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Yes, this
is the eighth annual White Ribbon Campaign put
on by the Vera House, a domestic violence
organization that provides shelters, provides
education, and provides support for those who
have been victims of domestic violence in my
Senate district.
I've distributed the white ribbons
to all the senators, and I would hope that
everyone could find time at least over these
next few days to wear them, at least a short
time, to point out that this is a serious
problem and also that we are all in support of
efforts like those of Vera House.
Thank you.
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THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
would you please recognize Senator Marcellino.
THE PRESIDENT: Senator
Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President.
It is with great pleasure that I
introduce to this chamber some guests of ours
from across the Atlantic. I'd like us to
welcome David McLetchie, Roseanna Cunningham,
and Sylvia Jackson, all of whom are members of
the Scottish Parliament.
They are joined by two members of
the British Consul General's office, Dr. Ray
Raymond and Duncan Taylor, who are also with
them.
Madam President, for the past week
this group has been attending a series of
political and cultural events throughout this
country. And they are here in a very
interesting way, because they're the first of
their generation of legislators -- the
Scottish parliament was only formed in 1999 -
and everything they do is both setting
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tradition and making history at the same time.
So I kind of envy them their
position as being the first in a long series,
I'm sure, of Scottish legislators.
But they are welcomed to our
chamber and welcomed to our country. And we
know we can learn from you, and certainly we
hope you'll learn something and take it back
with you to our friends across the sea.
So welcome and God bless you and
safe home.
(Applause.)
THE PRESIDENT: On the privileged
resolution by Senator DeFrancisco, all in
favor please signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator McGee.
SENATOR McGEE: Madam President,
may we please have the noncontroversial
reading of the calendar.
THE PRESIDENT: The Secretary
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will read.
SENATOR McGEE: Thank you.
THE SECRETARY: Calendar Number
38, by Senator LaValle, Senate Print 6042A, an
act to amend the Education Law, in relation to
the disclosure of gifts.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
August.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
192, by Senator Velella, Senate Print 3408, an
act to amend the Penal Law, in relation to
multiple convictions.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
295, by Senator Seward, Senate Print 6132, an
1802
act to amend the Insurance Law, in relation to
nonforfeiture.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
314, by Senator Volker, Senate Print 3093A, an
act to amend the Real Property Tax Law, in
relation to providing a tax exemption.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
322, by Senator Rath, Senate Print 6048, an
act to amend the General Municipal Law and the
Insurance Law, in relation to the delegation.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
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act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
372, by Member of the Assembly Gantt, Assembly
Print Number 6571C, an act to amend the
Vehicle and Traffic Law, in relation to the
maximum speed limit.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
375, by Senator Trunzo, Senate Print 5025A, an
act to amend the Public Authorities Law, in
relation to claims.
THE PRESIDENT: Read the last
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section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
390, by Senator Saland, Senate Print 2976, an
act to authorize the Town of Poughkeepsie in
the County of Dutchess.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
419, by Senator Balboni, Senate Print 861, an
act to amend the Penal Law, in relation to
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establishing a new crime.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
420, by Senator Saland, Senate Print 1341, an
act to amend the Criminal Procedure Law, in
relation to expanding.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of the
calendar month next succeeding.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
422, by Senator Padavan, Senate Print 2574, an
act to amend the Penal Law, in relation to the
piercing and branding.
1806
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52. Nays,
2. Senators Duane and Schneiderman recorded
in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
423, by Senator Trunzo, Senate Print 3558, an
act to amend the Penal Law, in relation to the
unlawful sale of tobacco products to a child.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
1807
THE SECRETARY: Calendar Number
426, by Senator Nozzolio, Senate Print 3936,
an act to amend the Penal Law, the Vehicle and
Traffic Law, and the Insurance Law, in
relation to criminal aggressive driving.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 9. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
433, by Senator Morahan, Senate Print 5595, an
act to amend the Penal Law, in relation to
authorized dispositions.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
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(The Secretary called the roll.)
THE SECRETARY: Ayes, 54. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
440, by Senator Bonacic, Senate Print 6458, an
act to amend Chapter -
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
477, by Senator Larkin, Senate Print 1665, an
act to amend the Real Property Tax Law, in
relation to refiling an application.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
THE PRESIDENT: The bill is
passed.
1809
THE SECRETARY: Calendar Number
478, by Senator Kuhl, Senate Print 2122, an
act to amend the Vehicle and Traffic Law, in
relation to authorizing.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
479, by Senator Seward, Senate Print 2133, an
act to amend the Executive Law, in relation to
requiring.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
April.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
1810
THE SECRETARY: Ayes, 55.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
480, by Senator Wright, Senate Print 1087A, an
act to direct the Department of Public
Service.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
THE PRESIDENT: The bill is
passed.
Senator McGee, that completes the
reading of the noncontroversial calendar.
SENATOR McGEE: Thank you, Madam
President. May we now have the controversial
reading of the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
192, by Senator Velella, Senate Print 3408, an
1811
act to amend the Penal Law, in relation to
multiple convictions for the criminal sale of
marijuana.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54. Nays,
2. Senators Duane and Hassell-Thompson
recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
314, by Senator Volker, Senate Print 3093A, an
act to amend the Real Property Tax Law, in
relation to providing a tax exemption.
SENATOR HEVESI: Explanation,
please.
THE PRESIDENT: Senator Volker,
an explanation has been requested.
SENATOR VOLKER: Yes, Madam
President. I was just being informed here
1812
about the amendment. I didn't realize.
The bill in question is a bill that
passed last year, I think unanimously, which
provides for a tax exemption on real property
that is owned by members of volunteer fire
companies in the County of Erie.
I have sponsored legislation in the
past, if I'm not mistaken, which is similar to
what I think is going to be an amendment here.
The problem is that some of us are
sponsoring legislation in local areas because,
in all honesty, the difficulty is that we know
there would be opposition to statewide bills
of this nature, even though it's optional,
because some of the counties look at it as if
this is an indirect mandate; that is, if we
pass this, that the county would then or the
local municipalities would be forced to
provide this. And some of them say that they
can't afford the taxes that are involved in
it.
So this legislation is legislation
that involves simply Erie County.
SENATOR HEVESI: Madam President.
THE PRESIDENT: Senator Hevesi.
1813
SENATOR HEVESI: Thank you, Madam
President. I believe there's an amendment at
the desk.
THE PRESIDENT: Yes, there is.
SENATOR HEVESI: I'd like to
waive its reading and be heard on the
amendment.
THE PRESIDENT: The reading is
waived. You may proceed, Senator.
SENATOR HEVESI: Thank you, Madam
President.
In bringing this amendment to
Senator Volker's bill, what this amendment
would do is it simply would take the
provisions of this bill and similar bills that
we've seen pass in this house and grant, at
local option, the ability of a locality to
offer to volunteer emergency service workers
the 10 percent property tax reduction that has
been offered in several different pieces of
legislation.
And I guess I will commend Senator
Volker: it's the first time that a sponsor of
one of these bills has offered an explanation
as to why these are being done piecemeal.
1814
Though I would suggest that while
there may be a locality that has a hard time
resisting, if they're in financial straits,
the political pull towards granting this
option, that those independently elected
individuals be able to say to their
constituencies: "We'd like to afford this, we
can't afford it right now. The state has
allowed us to do it. When we're back on our
feet, we will go ahead and do it."
So while I understand that
argument, I dismiss it in this case and would
like to simply reiterate the arguments for
this amendment, which are that it's so good,
it's so fair and just that it is good, fair,
and just for everybody in the state, including
the folks in New York City that I'm most
concerned about.
And just, Madam President, I'd like
to take this one opportunity. I misspoke a
week ago, when I spoke on a similar bill, when
I suggested that no member of a New York City
volunteer ambulance corps had died in the
September 11th tragedy. I was wrong about
that. And I'm embarrassed to be wrong about
1815
it, because it was an individual who came from
my constituency.
And the reason I didn't know about
it is because he didn't die while responding
with his unit. They got the call, they
responded, the Forest Hills Volunteer
Ambulance Corps, right after the North Tower
was hit, went down there, and the rig was
crushed at 10:05 when one of the towers fell.
The two volunteer ambulance corps workers from
that ambulance corps escaped.
But there was a young man named
Richard Pearlman, 18 years old, from Forest
Hills. And this young man was running an
errand down at 1 Police Plaza, and he called
his family after the first plane hit the
building, saying, "I'm going to give
assistance to those who are injured." And
when he went to give assistance, the tower
fell and he was killed.
And this just highlights for
everybody the heroic sacrifice that
professionals and volunteers who are engaged
in emergency services undertake. They're
terrific.
1816
They're terrific in Senator
Volker's district, and I applaud him for
bringing this bill that he's brought; they're
terrific in Senator Saland's district, and
he's got a bill in. Senator Rath has a bill
in. Senator Kuhl has a bill in. And now I've
got a bill in which would simply do this for
everybody in New York State.
And I think localities can resist
the temptation, if they are in financial
straits, to at that time provide this benefit.
But it should be offered to everybody in the
state, and let the localities make the
sometimes tough decisions that they need to
make if it's inappropriate.
But this is fair and just to do for
everybody. It's the right thing to do. And,
Madam President, I request that all my
colleagues support this amendment.
Thank you.
THE PRESIDENT: Does any other
member wish to be heard?
Will the senators in agreement with
the amendment please raise your hands.
The Secretary will announce the
1817
results.
THE SECRETARY: Those recorded in
agreement are Senators Breslin, Brown, Connor,
Dollinger, Duane, Gonzalez, Hassell-Thompson,
Hevesi, L. Krueger, Montgomery, Onorato,
Sampson, Schneiderman, A. Smith, Stachowski,
and Stavisky. Also Senator Lachman. Also
Senator Gentile.
THE PRESIDENT: The amendment
fails.
On the bill, read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57. Nays,
1. Senator Hevesi recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
419, by Senator Balboni, Senate Print 861, an
act to amend the Penal Law, in relation to
establishing a new crime.
THE PRESIDENT: Read the last
1818
section.
THE SECRETARY: Section 4 -
SENATOR MONTGOMERY: Explanation.
THE PRESIDENT: Senator Balboni,
an explanation has been requested.
SENATOR BALBONI: Thank you,
Madam President.
This bill would create an E felony
for any individual that would sell a
controlled substance in a home where a child
resides.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: I was just
trying to get the full essence of Senator
Balboni's law. Would Senator Balboni yield
for a question?
THE PRESIDENT: Senator Balboni,
will you yield for a question?
SENATOR BALBONI: Yes, Madam
President, I do.
THE PRESIDENT: You may proceed,
Senator Montgomery.
SENATOR MONTGOMERY: Senator, I'm
just trying to figure out what do you intend
1819
to -- how does this benefit, in any situation,
any child, Senator?
SENATOR BALBONI: Madam
President, through you. Senator, the idea for
this bill came from various law enforcement
groups who, upon investigating or attempting
to effect a search warrant or make an arrest
in a premises where controlled substances are
believed to be sold, would encounter
outrageous situations.
They detailed for me several
instances where they would come into the
domicile of an individual where there were
drug dealers, armed with drug paraphernalia
all over the residence, in plain sight, and
there were children in the next room either
asleep or running through the house.
And as everybody knows, any time
that there is an attempt to make an arrest, it
is one of the most dangerous law enforcement
situations that can be incurred. It is one of
the issues that will rile a patrol officer, a
detective the most when they walk into this
type of situation and there are firearms and
drugs and children present.
1820
So what this bill says is if you
are going to take that outrageous disregard
for the health and safety of children in the
place where you are conducting your business,
then you should suffer an enhanced penalty, an
E felony, for that situation, for the creation
or the permissible -- for creating or
permitting that situation to exist.
SENATOR MONTGOMERY: Madam
President, would Senator Balboni continue to
yield?
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR MONTGOMERY: Thank you.
Senator, does the bill also include
instances where alcohol is found in the home?
Or do you not consider alcohol a drug under
your legislation?
SENATOR BALBONI: Madam
President, through you. The bill
specifically, on line 6, states "criminal sale
1821
or criminal possession of a controlled
substance."
So as defined within the Penal Law,
that is the substance which would predicate
the felony.
SENATOR MONTGOMERY: Through you,
Madam Chair, I'd like to ask Senator Balboni
for one more clarification.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR MONTGOMERY: Yes,
Senator. My assumption is that in the event
that a home is raided under the circumstances
as described in your legislation, in your
memo, there would already be charges levied
against the people in that situation.
So am I correct in understanding
this legislation to give an additional charge
on top of any others that would naturally be
levied based on the presence of controlled
substances and the selling of that going on in
1822
the home?
SENATOR BALBONI: Madam
President, through you. This bill would in
fact create a new and separate crime that an
individual could be charged with if they
created the circumstances.
SENATOR MONTGOMERY: Okay. Thank
you. The explanation is satisfactory.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Will Senator
Balboni yield to a question?
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR DOLLINGER: Senator, you
just mentioned, I think, in your response to
Senator Montgomery that one of the dangers of
the police entering a home was of course that
they would have drugs or firearms.
Isn't that correct? Did I quote
you correctly?
1823
SENATOR BALBONI: I believe you
did. We could ask for a readback from the
reporter.
SENATOR DOLLINGER: Well, I think
I'm close.
My question is, Madam President, is
there anything currently in statute -- through
you, Madam President -- Senator Balboni, that
says if they enter a home with a firearm in
it, whether it's displayed or not, that it
increases the penalty upon the person who owns
the firearm? Is there anything in our law
that currently does that?
SENATOR BALBONI: Madam
President, other than the Sullivan Law as it
relates to the possession of a firearm,
concealed or otherwise, I don't know of any
other law.
SENATOR DOLLINGER: Okay.
Through you, Madam President, if Senator
Balboni will continue to yield.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Madam
President, I continue to yield.
1824
THE PRESIDENT: You may proceed,
Senator.
SENATOR DOLLINGER: Senator, I
note that this bill says that the custodial
child resides in the house. That bill doesn't
require that they actually be physically
present in the house at the time that the use
of a controlled substance or the sale of a
controlled substance occurs; is that correct?
SENATOR BALBONI: Madam
President, through you, that is absolutely
correct.
And the reason why we did this,
again, was based on the recommendation of law
enforcement personnel. As we've said so many
times on the floor, Senator Dollinger, neither
you nor I have to go into a building and try
to make an arrest in these kind of violent
circumstances. And therefore, the men and
women who put on the badge and the gun and do
this on a day-to-day basis, their
recommendations I take with great seriousness.
And it is their feeling that to
limit it only to when children are present is
something that can neither be foreseen by them
1825
or is an artificial requirement, in that if
the children actually reside there, they can
be coming home at any time. And that should
be not the predicate for the application of
this particular felony.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will continue
to yield.
SENATOR BALBONI: Yes, Madam
President, I continue to yield.
THE PRESIDENT: You may proceed,
Senator.
SENATOR DOLLINGER: Does criminal
possession of a controlled substance include
marijuana?
SENATOR BALBONI: Madam
President, I don't know. I believe it does,
but I do not know.
I'll tell you what, though. If you
want, after the debate and the passage of the
bill, I'll go to the library with you and we
can look it up.
SENATOR DOLLINGER: Ah,
presumption, Madam President: the passage of
the bill. That dangerous thing called
1826
presumption.
(Laughter.)
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will continue
to yield just to one other question.
THE PRESIDENT: Senator Balboni?
SENATOR BALBONI: Madam
President, I continue to yield.
THE PRESIDENT: He yields.
SENATOR DOLLINGER: Would you
define the term "custodial child"? Is that a
term of art in our Penal Law?
SENATOR BALBONI: That is a term
of art only -- also in the Family Law.
SENATOR DOLLINGER: Is it a term
of art -- through you, Madam President -- in
our Penal Law?
SENATOR BALBONI: Once again,
we're going to have to go right to that
library and find out exactly what the statute
says.
SENATOR DOLLINGER: Okay.
Through you, Madam President, just briefly on
the bill.
THE PRESIDENT: You may proceed,
1827
Senator Dollinger, on the bill.
SENATOR DOLLINGER: This is the
danger of drafting a bill that we -- I'm not
quite sure -- I understand the point that
Senator Balboni tries to make, but I'm not
sure I understand the legal context.
I don't believe the phrase
"custodial child" is used in the Penal Law
anywhere. It is used in the Family Law. I
would suggest that the drafter, to get
accuracy, incorporate the definition of
"custodial child" in the Family Law into this
portion of the criminal law.
Secondly, everybody ought to
realize I'm going to vote in favor of this
bill because I'm going to presume, as Senator
Balboni did, that this bill may pass. But I
would suggest to him that the criminal
possession of marijuana, which I don't think
is necessarily -- it may only be a violation.
If it happens in the house that an adult
happens to be possessing marijuana, he's going
to be charged with a Class E felony, which is
one-to-four, instead of what I think is now
purely a violation that would result in the
1828
issuance of an appearance ticket.
And the last point, Madam
President, is I think Senator Balboni has got
a great idea here. I just don't think this
statute will go close to solving the problem
that he describes. I would suggest that if we
want to set a standard that says if you've got
a gun or drugs in the home with the child -
let's say it's guns and drugs and other
contraband materials -- let's establish a
rule, let's get it well-defined and make it
work.
I'm all in favor of this concept.
Lord knows, I'll vote for the concept. But
this bill doesn't do what Senator Balboni
wants it to.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. If the sponsor would yield
for a question.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, Madam
1829
President, I do.
THE PRESIDENT: You may proceed,
Senator.
SENATOR SCHNEIDERMAN: Through
you, Madam President, the sponsor and I had a
debate over this bill last year. My concern
is quite different than Senator Dollinger's
concern.
My concern is that by defining this
provision as being limited to the presence of
custodial children, the residence of custodial
children, it excludes from the enhancement of
the penalty anyone who is not a parent.
And so it really is not determining
the enhancement of the penalty imposed by this
statute based on the presence of a child, but
rather on the relationship of the drug dealer
to the child.
There are many, many situations in
which there's someone dealing drugs in a home,
they know that there are children residing
there, but that person is not a custodial
parent. The way this is drafted, that person
would not get the enhanced penalty. So it's
really more of a penalty for being a parent
1830
than it is for dealing drugs in a home where a
child resides.
Would the sponsor consider
modifying this bill to deal with that
situation and perhaps broaden it so that any
time you're dealing drugs where a child
resides, you'd be subject to the enhancement?
SENATOR BALBONI: Madam
President, through you. Senator Schneiderman,
I believe that you have an advantage over
Senator Dollinger. You've actually done this
for a living. You've actually tried to go
in -
SENATOR SCHNEIDERMAN: Why don't
you make it clear what I've done for a living
that you're referring to.
(Laughter.)
SENATOR BALBONI: No, no, I'm
sorry, you have not sold drugs. Okay, for the
record, he has not.
You've actually tried to evict
people from housing who have been selling
drugs, and so you have some experience in
this. And therefore, your insight into this
bill is very constructive.
1831
And I agree with you that the
language you're talking about is a good thing
to add into this bill. And what I'm going to
try and do is get the Assembly sponsor, Tom
DiNapoli, to include that language.
As you know -- this might come as a
shock to some people here, but the Assembly is
a little bit more liberal when it comes to
these types of bills in this nature. And
therefore, it's -- Tom Duane is not -- you're
not surprised by that at all? They are.
SENATOR DUANE: I'm more liberal
than they are.
SENATOR BALBONI: You're more
liberal, okay.
Well, this bill itself has a good
chance of getting through this house, I
believe, with the language you have. But your
language would broaden it. And therefore I
don't think the Assembly would even consider
it.
The original intent from the law
enforcement community was to go with this
language. And we narrowed it, actually, from
the original discussion in an attempt to try
1832
and get the Assembly to take a look at it.
And unfortunately, Assemblyman DiNapoli has
not had any success with that thus far. But
hope springs eternal, and hopefully we can get
that done this year.
But I think your point is very well
taken.
SENATOR SCHNEIDERMAN: Madam
President, on the bill.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
I understand the point of this. I
think the problem is very real. We have -
certainly in New York City, drug dealing,
unlike most parts of the United States, takes
place primarily out of residential housing.
It is a very serious problem.
But the problems that I've
encountered have largely not been those of
people living in their own homes with their
own children there dealing drugs, it's been
the fact that drug dealers actually move
around from place to place and take advantage
of drug addicts or whatever and locate in
1833
their homes.
So I'm concerned that the primary
targets of this legislation are going to evade
the enhancement unless we broaden the
language. I will -- based on Senator
Balboni's commitment to try and reason with
the Assembly sponsor and move along, I will
vote for the bill this year. I just think it
is tremendously important to recognize that
that is the heart of the problem we're talking
about and to try and address it.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator
Montgomery, to explain your vote.
SENATOR MONTGOMERY: Yes, briefly
to explain my vote.
I'm going to continue to oppose
1834
this legislation. I certainly understand and
I respect Senator Balboni's attempt to offer a
special protection to children in situations
where drugs are sold.
But what I have experienced,
certainly in my own district and in New York
City in general, is that very often what
happens is that because this kind of
legislation sort of sweeps in everybody in the
environment, we often end up with people
spending very long prison terms who have
minimum if any relationship to the actual
problem, the sale of narcotics, but they just
happen to be in some way connected with
someone who is.
And so I will oppose this because I
think that we do have substantial enough
authority by local police enforcement to move
and to address these kinds of situations where
drugs are being sold in a home. We really
don't -- this will not hinder them being able
to carry out their work.
But I do think that we need to
think much more carefully about how we sweep
people into this whole drug arrest program who
1835
are not in fact actually connected with it
directly.
So I'm going to oppose this
legislation, Mr. President.
ACTING PRESIDENT KUHL: Senator
Montgomery will be recorded in the negative.
Announce the results.
THE SECRETARY: Ayes, 56. Nay,
2. Senators Hassell-Thompson and Montgomery
recorded in the negative.
ACTING PRESIDENT KUHL: The bill
is passed.
The Secretary will continue to read
the calendar.
THE SECRETARY: Calendar Number
440, by Senator Bonacic, Senate Print 6458, an
act to amend Chapter 447 of the Laws of 2001.
SENATOR DOLLINGER: Explanation,
Mr. President.
SENATOR McGEE: Lay that bill
aside for the day.
ACTING PRESIDENT KUHL: Lay the
bill aside for the day.
Senator McGee, that completes the
controversial reading of the calendar.
1836
SENATOR McGEE: Mr. President,
may we return to the reports of standing
committees. I believe there's one from the
Finance Committee at the desk.
ACTING PRESIDENT KUHL: We will
return to the order of reports of standing
committees. There is a report from the
Finance Committee at the desk.
The Secretary will read.
THE SECRETARY: Senator Stafford,
from the Committee on Finance, reports the
following bill direct to third reading:
Senate Print 6797, by the Senate
Committee on Rules, an act making
appropriations for the support of government.
ACTING PRESIDENT KUHL: Without
objection, the bill is reported directly to
third reading.
Senator McGee.
SENATOR McGEE: Mr. President,
may we please take up Senate 6797, Calendar
Number 497.
ACTING PRESIDENT KUHL: The
Secretary will read.
THE SECRETARY: Calendar Number
1837
497, by the Senate Committee on Rules, Senate
Print 6797, an act making appropriations for
the support of government.
ACTING PRESIDENT KUHL: Senator
McGee.
SENATOR McGEE: Is there a
message of necessity and appropriation at the
desk?
ACTING PRESIDENT KUHL: There is.
SENATOR McGEE: I move to accept
the message of necessity and appropriation.
ACTING PRESIDENT KUHL: The
motion is to accept the message of necessity
and appropriation on Calendar Number 497. All
those in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT KUHL: Opposed,
nay.
(No response.)
ACTING PRESIDENT KUHL: The
message is accepted.
The bill is before the house.
The Secretary will read the last
section.
THE SECRETARY: Section 29. This
1838
act shall take effect immediately.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negatives and announce the results.
THE SECRETARY: Ayes, 56. Nays,
2. Senators Dollinger and Duane recorded in
the negative.
ACTING PRESIDENT KUHL: The bill
is passed.
Senator McGee.
SENATOR McGEE: Mr. President, is
there any housekeeping at the desk?
ACTING PRESIDENT KUHL: There is.
We will return to the order of
motions and resolutions.
Senator Marcellino, for a motion.
SENATOR MARCELLINO: Thank you,
Mr. President. On behalf of Senator Balboni,
on page number 29 I offer the following
amendments to Calendar Number 467, Senate
Print Number 6594, and ask that said bill
retain its place on the Third Reading
Calendar.
1839
ACTING PRESIDENT KUHL: The
amendments to Calendar Number 467 are received
and accepted. The bill will retain its place
on the Third Reading Calendar.
That completes the housekeeping at
the desk, Senator.
SENATOR McGEE: Mr. President,
will you recognize Senator Hevesi for the
purpose of a motion, please.
ACTING PRESIDENT KUHL: Senator
Hevesi, why do you rise?
SENATOR HEVESI: Thank you, Mr.
President. I believe there's a motion at the
desk.
ACTING PRESIDENT KUHL: There is.
SENATOR HEVESI: I'd like to
request to waive the reading and be heard on
the motion.
ACTING PRESIDENT KUHL: The
request for waiving of the reading is granted,
it is waived, and you are afforded the
opportunity, for within five minutes, to
explain the motion.
SENATOR HEVESI: Thank you, Mr.
President.
1840
This is a motion to discharge a
bill from committee, Senate 5210, which would
remedy a problem that I believe is one of
the -- and I don't want to be excessively
dramatic, but one of the most egregious
inequities in public policy today.
There exists a situation right now
where a landlord who wants to rehab,
rehabilitate, improve the quality of his
property can get a major capital improvement
in order to do that and passes along, with the
acquiescence of DHCR, a rent increase which is
perfectly just and fair.
The problem is -- and I don't
believe the law was designed to do this, but
there was a court case, Ansonia v. DHCR, in
1989 where the Court of Appeals ruled that the
landlord could collect -- under the Rent
Regulations Law, the landlord could collect
the rent increase from an MCI forever, in
perpetuity, having no relationship to when the
MCI is paid off. For the remainder of time,
that landlord would get the increase.
This is grossly unfair. This
disenfranchises tenants, thousands and
1841
thousands of tenants who are already
struggling to make ends meet, and has
absolutely no place in a society where we
premise our public policy on equity. It's
just wrong.
So what we have here is a Senate
bill that I sponsored that was formerly
sponsored by Senator Goodman -- Mr. President,
could we get some order in the chamber,
please. I'm having trouble hearing.
ACTING PRESIDENT KUHL: As soon
as the Majority Leader takes his chair, we
will continue the debate, Senator.
I think you have the order now, so
continue.
SENATOR HEVESI: Thank you, Mr.
President.
As I was saying, Senator Goodman,
Republican colleague formerly of this house,
for many years sponsored a piece of
legislation which struck a balance, because
there is a need to provide an incentive for
landlords to go ahead and do major capital
improvements so that their properties don't
fall into disrepair. That's a negative impact
1842
for everybody involved.
And his bill is essentially the
bill that I am now carrying in this house,
which does the following. It will allow major
capital improvements to be recouped in their
charges for seven years and then for the final
five years after the seven years, with a
declining scale, the landlords can recover a
tax charge placed onto the rents of
individuals in that development. And after
that five years, it's gone, it ends.
And in doing that, to be perfectly
candid with you, it is overcompensating the
landlord. But we are willing to
overcompensate the landlord (A) to get the
bill passed, and (B) in consideration of the
fact that there is some legitimate claim to
having to provide the incentive to the
landlord.
But understand what we're talking
about here. Even by this bill we are saying
we're going to pay landlords more money than
they are deserving for a particular service
that they're providing.
This is essentially the same,
1843
folks, as me going to buy a car, making all
the payments on my car year after year after
year, finally, I have paid off the car, and
for some reason I have to keep paying payments
on the car, after I paid off my car.
This is exactly analogous to it,
with the one caveat that in this particular
case there is an incentive that we need to
build into this system.
So, Mr. President, I would urge all
my colleagues to support this bill. The fact
that landlords currently get stuck paying
forever for major capital improvements, the
lifespan of which have their payments
naturally end after seven years, they now have
to pay it forever, is a hardship. It is
grossly unfair. It was never the intention.
The Court of Appeals, in their '89
decision, didn't justify that, they simply
said that under current law, we are not able
to adjudicate otherwise, and that if we're to
change this circumstance, it has to be done by
statute.
Well, ladies and gentlemen, here's
the statute. Here's our opportunity to
1844
correct this injustice. And I urge all of my
colleagues to support this bill.
ACTING PRESIDENT KUHL: Those in
agreement with the petition please raise your
hands.
Announce the results.
THE SECRETARY: Those recorded in
agreement are Senators Andrews, Brown, Connor,
Dollinger, Duane, Gentile, Hassell-Thompson,
Hevesi, L. Krueger, C. Kruger, Lachman,
Montgomery, Onorato, Paterson, Schneiderman,
A. Smith, M. Smith, Stachowski, and Stavisky.
ACTING PRESIDENT KUHL: The
petition fails.
Senator Andrews, why do you rise?
SENATOR ANDREWS: Mr. President,
I'd like to request unanimous consent to be
recorded in the negative on Calendar Number
192, Bill 3408, and Calendar Number 194 -
491 -- 419, I'm sorry, Bill 861.
ACTING PRESIDENT KUHL: Senator,
that was Calendar Number 192 and Calendar
Number 194 you wish unanimous consent -
SENATOR ANDREWS: 419.
ACTING PRESIDENT KUHL: 419. On
1845
Calendar Number 192 and Calendar Number 419,
you request unanimous consent to be recorded
in the negative.
Without objection, hearing no
objection, the Senator will be recorded in the
negative on those two votes.
Senator Montgomery, why do you
rise?
SENATOR MONTGOMERY: Yes, Mr.
President, I would like unanimous consent to
be recorded in the negative on Calendar 192.
Thank you.
ACTING PRESIDENT KUHL: Without
objection, hearing no objection, Senator
Montgomery will be recorded in the negative on
Calendar Number 192.
Senator Bruno.
SENATOR BRUNO: Thank you, Mr.
President.
There being no further business to
come before the Senate, I would move that in
memory of the late Senator Marino, the former
majority leader, that we adjourn this session
and that we cancel tomorrow's session and
adjourn until Wednesday at 10:30 a.m., with
1846
the intervening day to be a legislative day.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Without
objection, the Senate stands adjourned until
Wednesday at 10:30 a.m., in memory of the late
majority leader, Senator Ralph J. Marino.
The Senate stands adjourned.
(Whereupon, at 4:03 p.m., the
Senate adjourned.)