Regular Session - April 15, 2002
2049
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 15, 2002
3:12 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 Dr. Claude A. Knight, from Vanderbilt
Avenue Moravian Church in Staten Island.
REVEREND KNIGHT: The word of the
Lord concerning Judah and Jerusalem:
In the days to come, the mountain
of the Lord's house shall be established as
the highest of the mountains, and shall be
raised above the hills. All the nations shall
stream to it, and many peoples shall come and
say: "Come, let us go to the mountain of the
Lord, the house of the God of Jacob, that he
may teach us his ways and that we may walk in
his paths."
For out of Zion shall go forth
instruction, and the word of the Lord from
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Jerusalem. He shall judge between the
nations, and arbitrate for many peoples. They
shall beat their swords into plowshares, and
their spears into pruning hooks; nation shall
not lift up sword against nation, neither
shall they learn war anymore.
O God, in whom we live and move and
have our being, as we gather in these sacred
chambers, we will express our thanks for the
United States of America, a place that we call
home, a land where we can enjoy the freedom of
movement, the freedom of free speech, and the
freedom to practice our religion.
We thank You for the men and women
who wrote our Constitution that ensures a
democracy that gives every citizen a right to
be heard, for the judicial system by which we
are governed and the political system that
allows us to change leaders and government by
ballots rather than bullets and revolution.
Help us, gracious God, always to
appreciate the rich heritage that is ours.
We especially pray at this time for
our president and all those persons who have
the awesome responsibility to make national
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decisions. We pray for our governor and our
senators and all government officials.
We would ask Your divine presence
now on this Senate as it is about to go into
another session of its deliberation. Give to
our senators clarity of thought, openness of
mind, and a resolve to do what is right for
their constituents.
Finally, O Lord, we ask for Your
peace, Your own shalom, in the Middle East and
other places of political strife and unrest,
and hasten the day when nation shall no longer
lift up sword against nation, nor shall they
study war anymore.
Lord, hear our prayer and grant our
request. Amen.
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Friday, April 12, the Senate met pursuant to
adjournment. The Journal of Thursday,
April 11, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
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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 bills:
Senate Print 2452A, by Senator
Hannon, an act to amend the Public Health Law;
3389, by Senator LaValle, an act to
amend the Public Health Law;
3762A, by Senator Hannon, an act to
amend the Public Health Law;
4317A, by Senator Hannon, an act to
amend the Public Health Law;
5029, by Senator Hannon, an act to
establish;
And Senate Print 6763, by Senator
Hannon, an act to amend Chapter 884 of the
Laws of 1990.
Senator Seward, from the Committee
on Insurance, reports:
Senate Print 6025, by Senator
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Seward, an act to amend the Insurance Law;
6370, by Senator Seward, an act to
amend the Insurance Law;
6558A, by Senator Seward, an act to
amend the Insurance Law;
And Senate Print 6722, by Senator
Seward, an act to amend the Insurance Law.
Senator Hoffmann, from the
Committee on Agriculture, reports:
Senate Print 1116, by Senator
Morahan, an act to amend the Agriculture and
Markets Law;
1330B, by Senator Hoffmann, an act
to amend the Agriculture and Markets Law;
3555, by Senator Hoffmann, an act
to amend the Agriculture and Markets Law;
6628, by Senator Hoffmann, an act
to amend the Agriculture and Markets Law;
And Senate Print 6629, by Senator
Hoffmann, an act to amend the Agriculture and
Markets Law.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
objection, all bills reported direct to third
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reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President.
On page number 30, I offer the
following amendments to Calendar Number 513,
Senate Print Number 6209A, and ask that said
bill retain its place on the Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, Senator, and the bill will
retain its place on the Third Reading
Calendar.
SENATOR MARCELLINO: Madam
President, on page number 30 I offer the
following amendments to Calendar Number 511,
Senate Print 4786C, and I ask that said bill
retain its place on the Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, Senator, and the bill will
2056
retain its place on the Third Reading
Calendar.
SENATOR MARCELLINO: Finally,
Madam President, on page number 18 I offer the
following amendments to Calendar Number 343,
Senate Print Number 4893, and ask that said
bill retain its place on the Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
SENATOR MARCELLINO: Thank you,
Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
I believe there are substitutions at the desk.
If we could make them at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 29,
Senator Libous moves to discharge, from the
Committee on Mental Health and Developmental
Disabilities, Assembly Print Number 1914A and
substitute it for the identical Senate Bill
Number 5511, Third Reading Calendar 502.
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On page 30, Senator Maziarz moves
to discharge, from the Committee on
Environmental Conservation, Assembly Bill
Number 7202 and substitute it for the
identical Senate Bill Number 3772A, Third
Reading Calendar 509.
And on page 31, Senator Bonacic
moves to discharge, from the Committee on
Finance, Assembly Bill Number 2975 and
substitute it for the identical Senate Bill
Number 2280, Third Reading Calendar 519.
THE PRESIDENT: The substitutions
are ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution, Number 4905A,
by Senator Ada Smith. Could we have the title
read and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator A.
Smith, Legislative Resolution Number 4905,
memorializing Governor George E. Pataki to
proclaim April 15 through 21, 2002, as "Truth,
Compassion and Tolerance Week" in New York
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State.
THE PRESIDENT: On the
resolution, all in favor signify by saying
aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial reading
of the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
112, by the Assembly Committee on Rules,
Assembly Print Number 9264C, an act to amend
the Public Authorities Law, in relation to
providing.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
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(The Secretary called the roll.)
THE SECRETARY: Ayes, 48.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
313, by Senator Libous, Senate Print 2533B, an
act to amend the Real Property Tax Law, in
relation to the real property tax exemption.
SENATOR HEVESI: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
345, by Senator Maltese, Senate Print 6275A,
an act to authorize the Mount Sinai Hospital
to file 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, 48.
THE PRESIDENT: The bill is
passed.
2060
THE SECRETARY: Calendar Number
353, by Senator Farley, Senate Print 2006, an
act to amend the Election Law and the State
Finance Law, in relation to requiring
proposition authorizing.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator
Dollinger, to explain your vote.
SENATOR DOLLINGER: Madam
President, just briefly.
This is a bill that I think I've
voted against on every other occasion. And
the reason is, as I've articulated before, we
continue to do these bond issues and we don't
take advantage of Senator Farley's wisdom by
letting people see the real value of what we'd
have to repay.
It strikes me, if we're going to do
this, the best way to do it is just to attach
this to all the bond issues that go through
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this house.
Since I debated this with Senator
Farley, I believe in 1994, we have never once
done what Senator Farley has advocated. I
look forward to that day, Madam President,
when we do a bond issue, we send it out to the
voters, and we actually put Senator Farley's
wise bill into effect when it means something.
Until it really means something,
Madam President, I refuse to vote for it.
I'll vote no.
THE PRESIDENT: Senator
Dollinger, you will be so recorded as voting
in the negative.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 49. Nays,
1. Senator Dollinger recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
383, by Senator LaValle, Senate Print 2082A,
an act -
SENATOR BRUNO: Lay it aside for
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the day, please.
THE PRESIDENT: The bill is laid
aside for the day, Senator Bruno.
THE SECRETARY: Calendar Number
401, by Senator Marcellino, Senate Print 105,
an act in relation to granting a retroactive
senior citizen tax exemption.
THE PRESIDENT: There is a
home-rule message at the desk.
Read the last section.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
411, by Member of the Assembly Canestrari,
Assembly Print Number 3638A, an act to amend
the Public Health Law, in relation to the
establishment.
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.)
2063
THE SECRETARY: Ayes, 50.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
415, by Senator Volker, Senate Print 207, an
act to amend the Criminal Procedure Law, the
Public Health Law, and the Family Court Act,
in relation to the authorized destruction.
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.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
429, by Senator Volker, Senate Print 4283, an
act to amend the Criminal Procedure Law, in
relation to proof of the commission of a
previous sexual assault.
THE PRESIDENT: Read the last
section.
2064
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
431, by Senator -
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
439, by Senator Bruno, Senate Print 6359, an
act to adjust certain state aid payments to
the Brunswick Central School District.
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, 51.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
470, by Senator Padavan, Senate Print 6411, an
act to amend Chapter 890 of the Laws of 1982.
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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, 51.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
490, by Senator Morahan, Senate Print 6287, an
act to amend Chapter 631 of the Laws of 1987.
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, 51.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
491, by Senator Meier, Senate Print 6391, an
act to amend Chapter 534 of the Laws of 2000.
THE PRESIDENT: Read the last
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section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
THE PRESIDENT: The bill is
passed.
Senator Bruno, that completes the
noncontroversial reading of the calendar.
SENATOR HEVESI: Madam President.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President. I rise to request unanimous
consent to be recorded in the negative on
Calendar 439, Senate Print 6359.
THE PRESIDENT: You will be so
recorded as voting in the negative, Senator
Hevesi.
SENATOR HEVESI: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time return to motions and
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resolutions.
And I believe that there is a
privileged resolution at the desk by myself
and Senator Carl Kruger. I would ask that the
resolution be read in its entirety and move
for its immediate adoption.
THE PRESIDENT: Motions and
resolutions.
The Secretary will read.
THE SECRETARY: By Senators Bruno
and C. Kruger, Legislative Resolution Number
4906, condemning the ruthless, heinous acts of
terrorism occurring today throughout the world
with greater frequency and violence.
"WHEREAS, Freedom and the future
security and peace of our state, nation, and
the entire world is dependent upon the
immediate halting of the cruel acts of
terrorism currently being perpetrated without
warning; and
"WHEREAS, Since the atrocities that
befell our state and nation on September 11,
2001, all Americans have witnessed and been
affected by the cruelties of terrorism and now
deeply identify with any people who also
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suffer under the threat and violence of
terrorist attacks; and
"WHEREAS, Attendant to such
concern, and in full accord with its
long-standing traditions, it is the intent of
this legislative body to condemn the ruthless,
heinous acts of terrorism occurring throughout
the world today; and
"WHEREAS, The residents of the
State of New York have firsthand knowledge of
the effects of terrorism, including the
shocking loss of life due to a myriad of
suicide bombings; and
"WHEREAS, Many New Yorkers have
friends and relatives living in Israel today,
and identify with the pain of loss which all
Israelis are currently suffering due to
increasing acts of violence in their nation;
and
"WHEREAS, The people of New York
State and the people of Israel share a united
purpose -- the cessation of acts of terrorism;
and
"WHEREAS, A national rally in
solidarity with Israel and in support of the
2069
war against terrorism will be held Monday,
April 15, 2002, at the U.S. Capitol,
Washington, D.C.; and
"WHEREAS, Tens of thousands of
people from Jewish groups across the country
will rally in support of Israel and to
denounce Palestinian suicide bombings; and
"WHEREAS, Guest speakers will
include former Israeli prime minister Binyamin
Netanyahu, Nobel laureate Eli Wiesel, AFL-CIO
President John Sweeney, and the relatives of
two victims of Palestinian attacks -- one a
14-year-old Israeli boy who once lived in
Silver Spring; and
"WHEREAS, Only through the united
efforts of all nations will the senseless
violence of terrorism end; now, therefore, be
it
"RESOLVED, That this legislative
body pause in its deliberations to condemn the
ruthless, heinous acts of terrorism occurring
today throughout the world with greater
frequency and violence."
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Thank you, Madam
2070
President.
My colleagues, we've heard the
resolution on the floor. And I stand to just
make an observation that today people all over
this country, and by the tens of thousands,
are in Washington, at the Capitol, supporting
the president in his war against terrorism and
his support for Israel and all that they are
contending with from acts of terrorism.
Since 9/11 we can relate to the
horror and the pain and the suffering that
takes place needlessly when innocent people
are literally slaughtered. And what is going
on in Israel almost daily is something that is
very, very difficult for we in a civilized
society to even comprehend.
So it's terribly appropriate that
we in this chamber just recognize, through the
support in this resolution -- and we ask every
member that's in this chamber that would want
to be on this resolution to join us in this
declaration of support for President Bush and
the policies against terrorism, but especially
for the support that we have for the people of
Israel and the state of Israel.
2071
And to just remember what they are
going through, which is a daily and weekly
manifestation of the insane horror of people
who are just without scruples in inflicting
pain on innocent people and are willing to
take their own lives, as worthless as they
are, to prove whatever point they think
they're proving.
So, Madam President, I appreciate
the support of our colleagues in this chamber
in joining us in this resolution as we unify
in support of Israel.
THE PRESIDENT: Thank you,
Senator Bruno. Any member who does not wish
to be included as a sponsor on this resolution
please notify the desk.
Senator Kruger.
SENATOR CARL KRUGER: Thank you,
Madam President.
THE PRESIDENT: You're welcome.
SENATOR CARL KRUGER: I join
today with my colleague Senator Bruno, and my
partner in government, in supporting this
resolution.
Today tens of thousands of people
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are joining hands in a partnership in
Washington to support President Bush's actions
but, most importantly, to speak out on
terrorism.
As we stand in the shadows of 9/11,
here as New Yorkers and as Americans we have
to pause and recognize the blood that is being
lost by our brothers and sisters in Israel,
and pledge our undying support to their cause
because their fight for democracy is a fight
for democracy all over this world.
Thank you.
THE PRESIDENT: On the
resolution, all in favor signify by saying
aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time have the controversial
reading of the calendar.
THE PRESIDENT: The Secretary
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will continue to read.
THE SECRETARY: Calendar Number
313, by Senator Libous, Senate Print 2533B, an
act to amend the Real Property Tax Law, in
relation to the real property tax exemption
for voluntary firefighters.
SENATOR HEVESI: Explanation.
THE PRESIDENT: Senator Libous,
an explanation has been requested.
SENATOR LIBOUS: Thank you, Madam
President.
This legislation before us would
require the County of Broome to grant a
partial, 10 percent property tax exemption to
members of the volunteer fire companies and
emergency ambulance squads.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: If Senator
Libous would yield just for one question.
THE PRESIDENT: Senator, will you
yield for a question?
SENATOR LIBOUS: Yes, Madam
President, I'd be happy to yield.
THE PRESIDENT: You may proceed,
2074
Senator.
SENATOR OPPENHEIMER: This was
raised by my colleagues on this side of the
aisle a couple of weeks ago.
And of course I'm very supportive
of this bill and think it might help very much
in my communities which have volunteer
firefighters. My own village is totally
volunteer.
And the question that was raised on
this side of the aisle was why could we not
put in a bill that would make this available
to everybody, every entity in the state of
New York. Could you answer that?
SENATOR LIBOUS: Senator -- and
through you, Madam President -- that certainly
can be done. And I believe there are several
bills in committee that are similar to that
right now.
I know that this is something that
has been requested by the county legislature
in the County of Broome by home-rule message.
It passed this house last year. And it's
something that they've been pushing for.
So in this case, I'd like to move
2075
this bill through. And then certainly I would
be supportive, Senator Oppenheimer, of any
such legislation that would look at it, as
long as it wasn't considered a mandate.
Obviously the counties would want
to request it, because we wouldn't want to be
passing any undue mandates. Because it does
have a fiscal note attached to it for the
county.
SENATOR OPPENHEIMER: Absolutely.
Thank you, Senator Libous.
On the bill.
THE PRESIDENT: You may proceed,
Senator Oppenheimer.
SENATOR OPPENHEIMER: This is a
very good bill.
And I think I will draft
something -- maybe with your help, Senator
Libous -- that would apply to the entire State
of New York. Because what is good for your
county is good for my county, is good for
other counties in the state. And we should
make this available, a nonmandated item, at
local option, and let the counties deal with
it as they wish.
2076
So I will be putting that in.
Thank you.
SENATOR HEVESI: Madam President.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President. I believe there's an amendment at
the desk.
THE PRESIDENT: Yes, there is,
Senator.
SENATOR HEVESI: Thank you. I'd
ask that its reading be waived, and I'd like
to be heard on the amendment.
THE PRESIDENT: The reading is
hereby waived, and you may proceed on the
amendment, Senator.
SENATOR HEVESI: Thank you, Madam
President.
Colleagues, this is the second time
that I am putting forth this amendment. We
did this last week, the exact same amendment,
to a bill that Senator Volker sponsored.
This amendment would substitute
wording which essentially would provide the
entire state of New York with the local option
to go ahead and, if a municipality chose to do
2077
so, provide a 10 percent property tax
reduction to anyone who is a volunteer
emergency service worker.
And while I understand Senator
Oppenheimer's comments and Senator Libous's
comments, Madam President, my confidence in
everybody's comments is waning. Because
everybody seems to think, yes, we should go
ahead and support a statewide bill. And
Senator Morahan sponsors such a bill, and I
sponsor such a bill. And everybody says it's
a good idea, we should do it for the entire
state, we should do it for the entire state,
we should do it for the entire state.
But, Madam President, this is the
fourth bill this year, today's bill, that
doesn't do it for the entire state, it does it
only for certain counties. And it's
particularly distressing since there are ten
different bills that have been introduced that
all provide this for certain counties and not
for everybody else.
And everybody thinks it's a great
idea to do it for the whole state, but this is
the fourth time this session that we have seen
2078
it only now for certain counties.
And while, again with great respect
and great deference to the wonderful emergency
service workers of Broome County and Erie
County, for Senator Volker, and Steuben
County, for Senator Kuhl, and everybody else,
this is a good idea to do for everybody.
And if a municipality is unable to
financially afford doing it, they should have
the political courage to say "Though we have
the option and have been granted this option
by the State of New York, it's not a good time
to do it, we'll do it when we have the money."
But for the counties that need more
than anybody else to encourage individuals to
become volunteers, under that legislation and
the Morahan bill, they would be able to go
ahead and do it right now.
The bottom line is this is good for
everybody, and I don't believe that this
should be done piecemeal. It's wrong to do it
piecemeal. Everybody in the state who
volunteers as an emergency service worker
risks their lives. More than the certain
municipalities that have been listed in the
2079
individual bills have pressing needs in this
area.
Please let's remedy this. This
amendment that I bring today would allow the
entire State of New York to have the option to
do this locally. It needs to be done, Madam
President, and I urge all of my colleagues to
support it.
Short of that, I'm going to be
voting no on Senator Libous's bill, though I
think it's a perfectly good idea for his
constituents to have this benefit afforded to
them.
Thank you, Madam President.
THE PRESIDENT: Those Senators in
agreement with the amendment please raise your
hands.
The Secretary will announce the
results.
THE SECRETARY: Those recorded in
agreement are Senators Brown, Connor,
Dollinger, Gentile, Hassell-Thompson, Hevesi,
L. Krueger, Montgomery, Onorato, Oppenheimer,
Paterson, Schneiderman, A. Smith, M. Smith,
Stachowski, Stavisky, and Senator Andrews.
2080
THE PRESIDENT: The motion to
amend is defeated.
Does any other member wish to be
heard on this bill?
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, 56. Nays,
1. Senator Hevesi recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
401, by Senator Marcellino, Senate Print 105,
an act in relation to granting a retroactive
senior citizen tax exemption.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator
Marcellino, an explanation has been requested.
SENATOR PATERSON: Madam
President, the explanation is satisfactory.
(Laughter.)
THE PRESIDENT: Does any other
member wish to be heard on this bill?
2081
Senator Dollinger.
SENATOR DOLLINGER: Madam
President, just call the roll and I'll explain
my vote.
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 PRESIDENT: Senator
Dollinger, to explain your vote, I presume.
SENATOR DOLLINGER: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR DOLLINGER: I apologize
to Senator Marcellino. The bill was laid
aside and my intention was simply, as I did
last year, to vote against this bill.
And unfortunately, I think the
trend of the State Legislature becoming the
grand vizier, the czar of property tax
exemption states, in this state is coming
true. Here's a woman who appears to be
clearly entitled to a senior property tax
2082
exemption who should have one and who should
have gotten it from her county assessor. We
should give them the authority to rectify this
problem.
And with respect to the Mount Sinai
bill, which in a matter of moments I'm going
to ask for unanimous consent to vote against,
in that case their lawyer ought to be sued for
closing the deal five days into the property
tax year. Just a foolish, foolish, foolish
move by his lawyer.
Once again, we're absolving lawyers
of malpractice claims and we're acting like
the grand czar of assessments throughout this
state. We ought to take both of these
matters, pass statewide legislation, cure the
problem, change this rigid, inflexible tax
status date. I know the assessors don't like
it, but fairness would require that we do so.
Until we do, I'm going to vote no
on this bill and in a matter of minutes ask
for consent to vote no on the other one as
well.
ACTING PRESIDENT McGEE: Senator
Marcellino.
2083
SENATOR MARCELLINO: To explain
my vote, Madam President.
I just have to correct my
colleague, who voted for this bill last year
when it was before us. There is no county
assessor that does this. In Suffolk County,
where this person resides, the assessment is
done by the town assessors. And she has a
home-rule message from the Town of Huntington
which would allow her to get the money that
she is duly owed.
So this was a mistake made by the
town assessor. So the legislation that we're
talking about here would not necessarily help
her.
ACTING PRESIDENT McGEE: A
home-rule message is at the desk.
Announce the results.
THE SECRETARY: Ayes, 56. Nays,
1. Senator Dollinger recorded in the
negative.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Dollinger.
SENATOR DOLLINGER: Madam
2084
President, consistent with my comment
earlier -- and I appreciate Senator
Marcellino's clarification. But I'd ask for
unanimous consent to be recorded in the
negative on Calendar Number 345, S6275A, for
the same reasons I mentioned earlier.
ACTING PRESIDENT McGEE: Without
objection, so noted.
SENATOR DOLLINGER: Thank you.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
429, by Senator Volker, Senate Print 4283, an
act to amend the Criminal Procedure Law, in
relation to proof of the commission of a
previous sexual assault.
SENATOR DOLLINGER: Explanation.
SENATOR VOLKER: I think I'd like
to make the same argument that Senator
Marcellino made before, it was so effective.
(Laughter.)
SENATOR MARCELLINO: I used the
Balboni method.
(Laughter.)
SENATOR VOLKER: Madam President,
2085
this is a bill that when we did sexual assault
reform in 2000, which is now the law of this
state, it was after a long negotiation and
both houses agreed. And I think the vote was
something -- I think it was 59 to 2, if I'm
not mistaken.
This bill was put in immediately
afterwards, by myself, and was the remnants of
the Governor's program bill which did not
become part of the sexual assault reform bill
that passed both houses and was signed by the
Governor.
Essentially, there's three parts to
this bill. The main part, in my opinion,
deals with the issue of the Molineaux Rule,
which is called the recognition of bad acts by
a person who has committed sexual assaults.
In other words, if there are previous sexual
assault convictions or, in this case, because
of the way the Governor's bill was drafted, in
this case sexual offenses that were alleged,
and where there is certain proof involved -
in other words, evidence of previous bad acts.
One of the reasons for that in
sexual assault has to do with the fact that
2086
very often the argument is between the accused
and the accuser -- in other words, the victim.
And it's a one-on-one crime that's difficult
to prove, because it is the word of a victim
against the word of the perpetrator.
So what the Molineaux Rule said is
you can't use previous bad acts. Now, this
bill is also limited by the fact, by the way,
that a judge could rule that it could cause an
undue hardship to the defendant.
The other two pieces of this bill
relate to bail and to lenient sentences. And
what this would do is allow the prosecutor the
same authority as the defendant to appeal
unduly lenient sentences and at the same time
also to appeal unduly lenient bail.
In the memo, there's a case cited
where a person had been involved in a number
of crimes. The person that was attacked had
gotten an order of protection that was broken,
the person in ended up in jail, there was a
bail appeal and the judge allowed the person
out on bail. And within a few months, the
victim was dead because the person who was
bailed killed the victim.
2087
So what this bill -- there are
three ways that this bill would change the
law. It would say that a person who commits
an act of sexual assault and who had previous
actions of sexual assault, those could be used
in the case in general. It would allow for an
appeal of an unduly lenient sentence and also
allow for the appeal where the bail is
considered to be unduly lenient.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Will the
sponsor yield to a question?
SENATOR VOLKER: Certainly.
ACTING PRESIDENT McGEE: Senator
Volker, will you yield?
SENATOR VOLKER: Sure.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DOLLINGER: Senator, I
believe we've been through this bill a couple
of times.
SENATOR VOLKER: Yes, we have.
SENATOR DOLLINGER: I just want
to be sure I understand it again. This would
2088
include all offenses, indicted or otherwise.
SENATOR VOLKER: Yes, but subject
to the restriction that a judge could rule
that the evidence would be inappropriate. The
general consensus is that obviously if a
person is found not guilty, then it would be
assumed that that couldn't be used.
But the judge could rule that in
the case of somebody who was charged with an
offense, that that person could -- that
offense could be put into evidence even though
they weren't convicted of it.
SENATOR DOLLINGER: Thank you,
Madam President. Just briefly on the bill.
ACTING PRESIDENT McGEE: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I believe
I've spoken to Senator Volker a number of
times about this bill, as have other members
of the Democratic conference.
I continue to be concerned -- and
I'm not opposed to, frankly, the whole other
scope of the bill except the Molineaux
provision, because it doesn't include what I
think the safeguards are that Senator Volker
2089
would perhaps even concede ought to be in the
bill.
Which is if there's an offense
which is potentially under indictment which
was investigated by criminal authorities but
they concluded that an indictment was not
warranted, that would seem to suggest that
they didn't believe they could meet the test
of proving beyond a reasonable doubt that such
a crime had been committed.
It's not the equivalent, Senator
Volker, of a finding of innocence or lack of
guilt. But nonetheless, it's a conclusion by
a grand jury or maybe even prior to the
offering of the grand jury that the prosecutor
doesn't believe that he's got sufficient
grounds to justify an indictment.
Yet despite all that, unindicted or
even if considered by the grand jury and no
bill -- in other words, there's either a
prosecutorial decision prior to the
presentation to the grand jury or there's a
presentation to the grand jury and no bill
returned -- nonetheless, that information,
that evidence of a prior offense, could be
2090
used or could be offered by the police and the
prosecutors in a subsequent trial for the
sexual offense, a similar sexual offense.
Which I assume is also part of the
bill, that the Molineaux standard of relative
comparative circumstances, modus operandi of
the crime, would have to be similar in order
to justify it.
But my point is, Madam President,
that these are enormously prejudicial items to
be considered in the context of a criminal
trial. They radically change the way that
these trials are presented.
They radically change -- just the
possibility of presenting that evidence can
radically change the defense strategy and
radically alter the balance, the fine-tuning
that Molineaux, when it came down from the
Court of Appeals, tried to establish.
And that was putting reasonable
restrictions on similar bad acts and instances
in which they can be offered to prove a
separate violation, to show propensity, to
show motive and intent.
And I would suggest -- I understand
2091
Senator Volker's point, and there's no
question in my mind that Molineaux, in a very
strict application, may result in some
instances in prior bad acts that are very
close together not being presented to the
jury.
But in my view, this bill, this
wide-ranging repeal of Molineaux, is not
justified and could, especially in the area of
sexual offense, work a terrible injustice.
And for those reasons, Madam President, as
I've reiterated in prior years, I will vote
negative.
ACTING PRESIDENT McGEE: Senator
Volker.
SENATOR VOLKER: Yeah, I just
wanted -- if I might just answer that.
I know, Richard, you are aware that
we are, in this bill, following the
evidentiary rule that is patterned after
federal Rule of Evidence Number 413 adopted in
1994, which allows evidence of this nature,
and particularly in cases of the critical
protection of the public from rapists and
child molesters.
2092
So I would point out that there is
precedent for this rule. It's not as if we're
just pulling this out of the air. The federal
rules do provide for a so-called
Molineaux-type situation.
So I just wanted to point that out.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 11. 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: Those recorded in
the negative on Calendar Number 429 are
Senators Andrews, Brown, Dollinger,
Hassell-Thompson, L. Krueger, Montgomery,
Paterson, Santiago, Schneiderman, A. Smith,
and M. Smith. Ayes, 48. Nays, 11.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
431, by Senator Velella, Senate Print 5425, an
2093
act to amend the Criminal Procedure Law and
the Penal Law, in relation to aggravated
criminal conduct.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Velella, an explanation has been requested.
SENATOR VELELLA: Yes, Madam
President.
This bill is a bill that is a
Governor's program bill that creates the crime
of aggravated criminal conduct. It makes a
Class E felony of aggravated criminal conduct,
which is an enhanced charge for misdemeanor
offenses committed by habitual misdemeanor or
felony offenders.
Under the present law in New York,
a defendant may be convicted of an unlimited
number of misdemeanors and incur little to no
penalty. Under this legislation a defendant
who within ten years prior to the date of the
offense charged has been convicted of three
Class A misdemeanors, three felonies, or a
combination thereof, may be charged with the
crime of aggravated criminal conduct and
sentenced as an E felony offender.
2094
ACTING PRESIDENT McGEE: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. Will Senator Velella yield for a
question?
ACTING PRESIDENT McGEE: Senator
Velella, will you yield?
SENATOR VELELLA: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR MONTGOMERY: Senator
Velella, I'm trying to understand this
legislation clearly. Is it your intention
that if a person commits the fourth
misdemeanor within ten years, based on your
legislation -- oh, their third, okay.
So if they commit their third
misdemeanor within ten years, according to
your legislation, they will be punished as a
Class E felon and will face up to four years
in state prison?
SENATOR VELELLA: Yeah, when they
are convicted the fourth time.
SENATOR MONTGOMERY: On the
fourth time.
2095
SENATOR VELELLA: After they've
had three bites on the apple, the fourth time
they would be convicted under a Class E
felony. If they're found guilty. If they did
it. If they didn't do it, they go home free.
SENATOR MONTGOMERY: Okay. All
right. Thank you, Senator Velella.
SENATOR VELELLA: You're welcome.
SENATOR MONTGOMERY: Madam
President, just on the legislation.
ACTING PRESIDENT McGEE: Senator
Montgomery, on the bill.
SENATOR MONTGOMERY: Right.
My comment, in response to Senator
Velella's bill, is to some extent related to
an answer that comes to me right from his own
memo, which states on the second page that
there have been historic decreases in crime
across New York State since 1995, according to
the FBI. The crime rate in New York was
22 percent lower than the national average in
1998 -- that's the statistics in New York
State -- with a 32.4 reduction in overall
crime and a 35 percent decrease in violent
crime since 1995.
2096
So it says to me that we have a
reduction in crime across the board, including
in violent crime. Since 1995, it's been a
consistent decrease in crime.
So now that we have begun to reduce
the need for people to go into state prison
because of X numbers of felony arrests and
convictions and what have you, we are -- based
on this legislation, we're now moving to
convict people who have committed misdemeanors
and use them, use those convictions of
misdemeanors after a certain number -- Senator
Velella says after three convictions of a
misdemeanor, that person will be automatically
punished as an E felon and will face up to
four years in state prison.
So, Madam President, since our
prisons are made up primarily of men and women
of color, because the difference between the
committing of an offense, including
misdemeanors, which is pretty much even in
terms of citizens of color and white
citizens -- but the difference in people who
end up being incarcerated for the exact same
kinds of offenses is, by the time we reach
2097
incarceration phases, it's 85 percent people
of color.
So in my estimation, this
legislation will feed into the unbalanced
system of criminal justice that we have in our
state, that's number one, and continue the
mistake of punishing people with long prison
sentences who have done very, very minor
infractions. And those people, I will
reiterate, those people will primarily be
people of color.
So I'm voting against this
legislation, against this trend, and I hope
that I will have my colleagues who understand
this issue and care very much about it who
will join me in voting no.
Thank you.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
2098
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Ayes, 58. Nays,
1. Senator Montgomery recorded in the
negative.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Skelos, that completes the
reading of the controversial calendar.
SENATOR SKELOS: Madam President,
is there any housekeeping at the desk?
ACTING PRESIDENT McGEE: There is
no housekeeping at the desk.
SENATOR SKELOS: Please recognize
Senator Montgomery.
ACTING PRESIDENT McGEE: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I would like to be recorded in the
negative on Calendar 343.
ACTING PRESIDENT McGEE: So
noted.
Senator Skelos.
SENATOR SKELOS: Is there any
housekeeping at the desk?
2099
ACTING PRESIDENT McGEE: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Yes,
I'm sorry. Madam President, I would also like
to be recorded in the negative on Calendar
Number 343. I didn't remember that it came
back. I thought it was laid aside.
SENATOR PATERSON: Madam
President, that bill is laid aside for the
day.
SENATOR HASSELL-THOMPSON: For
the day? Okay.
ACTING PRESIDENT McGEE: To keep
the record straight, Calendar Number 343 was
amended, was not passed today.
SENATOR HASSELL-THOMPSON: Thank
you very much.
ACTING PRESIDENT McGEE: Thank
you.
Senator Skelos.
SENATOR SKELOS: Is there any
housekeeping at the desk?
ACTING PRESIDENT McGEE: I don't
believe there's any housekeeping at the desk,
Senator Skelos.
2100
SENATOR SKELOS: There being no
further business, I move we adjourn until
Tuesday, April 16th, at 3:00 p.m.
ACTING PRESIDENT McGEE: On
motion, the Senate stands adjourned until
Tuesday, April 16th, at 3:00 p.m.
(Whereupon, at 4:03 p.m., the
Senate adjourned.)