Regular Session - April 16, 2002
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NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 16, 2002
3:10 p.m.
REGULAR SESSION
SENATOR RAYMOND A. MEIER, Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT MEIER: The
Senate will come to order.
May I ask everyone present to
please rise and join me in the Pledge of
Allegiance to the Flag.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT MEIER: The
invocation will be given by the Reverend Peter
G. Young.
Father Young.
REVEREND YOUNG: Thank you. Let
us pray.
Let us remember that all of our
Senators might be guided in their role of
government for a just and caring society. May
they strengthen them in our prayer and lead
them and give them wisdom and understanding as
they work for the good of our country and our
citizens.
But let us today remember the
important people that are the class of
confirmande that are about to take on the
administration of major state agencies that
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will be confirmed here at this Senate session.
May we ask that they understand it's not
always easy to be gentle. That in the
political world we're taught to be tough,
competitive, and assertive. But there are
times when we like to be soothed, as our
citizens are asking, and treated gently.
As we treat packages with
gentleness when they are labeled "Fragile:
Handle With Care," so we ask you, our new
leaders in state government, that our
compassionate God give you the sensitivity and
the courage to be gentle with other people.
Help us to hear the anguish and the hurt in
others, and treat them with kindly care.
Amen.
ACTING PRESIDENT MEIER: Reading
of the Journal.
THE SECRETARY: In Senate,
Monday, April 15, the Senate met pursuant to
adjournment. The Journal of Friday, April 12,
was read and approved. On motion, Senate
adjourned.
ACTING PRESIDENT MEIER: 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 Stafford,
from the Committee on Finance, reports the
following bills:
Senate Print 6577, by Senator
Stafford, an act to amend the Public Officers
Law;
And Senate Print 7047, by the
Senate Committee on Rules, an act making
appropriations for the support of government.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Mr. President,
if we could take up the nominations that have
been reported from the Finance Committee at
this time.
ACTING PRESIDENT MEIER: The
Secretary will read the report of nominations
from the Finance Committee.
THE SECRETARY: Senator Stafford,
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from the Committee on Finance, reports the
following nominations.
As a member of the State Commission
on Quality of Care for the Mentally Disabled,
Gary O'Brien, of Latham.
SENATOR STAFFORD: Mr. President.
ACTING PRESIDENT MEIER: Senator
Stafford.
SENATOR STAFFORD: We had some
fine nominees before the Senate Finance
Committee today. And it's a pleasure to yield
to Senator Farley for the first consideration.
ACTING PRESIDENT MEIER: Senator
Farley.
SENATOR FARLEY: Thank you very
much, Mr. President. Thank you, Senator
Stafford.
It is with enthusiasm that I move
the nomination of Gary O'Brien, of Latham,
New York, who serves in Schenectady with the
Commission on Quality of Care. And let me
just say what an outstanding job he has done
in this area.
I thought it was kind of
interesting, one of his first accomplishments
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was that he has developed and always worked
within his budget. We have a little trouble
with budgets sometimes here, but we're going
to be within it too, I think, shortly.
But Gary O'Brien has done a
terrific job in an area that is so very, very
important to the State of New York. He has a
resume that is truly remarkable. He has been
very active within the community. He's
organized athletic programs, conducted
parenting classes for young parents. He's
been very, very active in the Catholic Church.
And Gary has been truly an asset to public
employment.
Let me just say that as far as the
Commission on Quality of Care is concerned, no
agency has been more warmly received in the
city of Schenectady than the Commission on
Quality of Care. And everybody that is there
enjoys working there, and they particularly
enjoy working for Gary O'Brien.
It is with enthusiasm that I
nominate this remarkable young man for
reappointment to the Commission on Quality of
Care.
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ACTING PRESIDENT MEIER: Any
other Senator wish to be heard on the
nomination?
The question is on the nomination
of Gary O'Brien as chair of the Commission on
Quality of Care. All those in favor signify
by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: Gary
O'Brien is unanimously confirmed as chair of
the Commission on Quality of Care.
Mr. O'Brien is present with us
today in the gallery.
(Applause.)
ACTING PRESIDENT MEIER: And
Mr. O'Brien is accompanied by his sisters,
Marilyn Davis and Patricia Dulka; his niece,
Maureen Dulka; and a cousin, Jane Millard.
Mr. O'Brien, we wish you well with
your very important duties.
The Secretary will continue to
read.
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THE SECRETARY: As a member of
the Industrial Board of Appeals, Gregory A.
Monteleone, Esquire, of Goldens Bridge.
ACTING PRESIDENT MEIER: Senator
Stafford.
SENATOR STAFFORD: Mr. President,
it's a pleasure to yield to Senator Leibell.
ACTING PRESIDENT MEIER: Senator
Leibell.
SENATOR LEIBELL: Thank you, Mr.
President.
I would like to take a moment, if I
could, to speak to this nomination. And we
are once again very appreciative to the
Governor for sending us the name of someone
who is so well qualified.
I'm very pleased to speak here on
behalf of Greg Monteleone. He is a resident
of my district, a member of our community,
someone who's been very active in our
community, and a well-known name and family
name in our area, in our region.
He's a successful practitioner of
law, a graduate of my own law school, St.
John's University School of Law. I know he
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will make a great contribution to the Board of
Appeals.
And once again, in conclusion, I
thank the Governor for sending us this name.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Any
other Senator wish to be heard on the
nomination?
The question is on the confirmation
of Gregory A. Monteleone as a member of the
Industrial Board of Appeals. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
nominee is confirmed.
Mr. Monteleone is with us today in
the gallery. Mr. Monteleone, congratulations
and good luck with your duties.
(Applause.)
ACTING PRESIDENT MEIER: The
Secretary will continue to read.
THE SECRETARY: As a member of
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the Industrial Board of Appeals, Mark S.
Perla, Esquire, of Clarence.
ACTING PRESIDENT MEIER: Senator
Stafford.
SENATOR STAFFORD: Mr. President,
it's a pleasure to yield to Senator Rath.
ACTING PRESIDENT MEIER: Senator
Rath.
SENATOR RATH: Thank you, Senator
Stafford, Mr. President.
It is with a great deal of pride
that I stand to nominate Mark S. Perla of
Clarence, New York, one of the heartland areas
in Western New York, to reappointment as a
member of the Industrial Board of Appeals.
Mark Perla has served with
distinction in so many posts in Western
New York that it would be difficult to list
them all. But just by way of example, let me
point out that he served as the chief of the
civil division of the U.S. Attorney's office
and a number of other positions before he
reached that particular distinction, and as a
younger man, as an executive assistant to the
district attorney, the chief of the City Court
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Bureau, and on down the line of the kinds of
things that you might expect of someone who
has a particularly busy practice now in civil
and criminal litigation -- a graduate of SUNY
Buffalo Law School, one of the Perla family
who is certainly well known throughout Western
New York and distinguishing themselves in so
many ways that it is wonderful that the
Governor has sent him for reappointment.
And I am proudly here to make that
nomination. Thank you.
ACTING PRESIDENT MEIER: Any
other Senator wish to be heard on the
nomination?
The question is on the nomination
of Mark S. Perla as a member of the Industrial
Board of Appeals. All those in favor signify
by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
nominee is confirmed.
Mr. Perla is with us today in the
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gallery. And congratulations, sir, and good
luck with your duties.
(Applause.)
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Mr. President,
there will be an immediate meeting of the
Civil Service and Pensions Committee in the
Majority Conference Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Civil Service and
Pensions Committee in the Majority Conference
Room.
The Secretary will continue to
read.
THE SECRETARY: As a member of
the Board of Trustees of the City University
of New York, Reverend John S. Bonnici, of
New York City.
ACTING PRESIDENT MEIER: Senator
Stafford.
SENATOR STAFFORD: Mr. President,
I yield to Senator LaValle.
ACTING PRESIDENT MEIER: Senator
LaValle.
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SENATOR LAVALLE: Thank you, Mr.
President.
I rise to move the nomination of
Father John Bonnici to the CUNY Board of
Trustees. Father Bonnici is replacing Father
Crimmins, who has served on the CUNY board,
and that this position has been somewhat
codified as being a clergy position on the
CUNY board.
Before I talk about Father Bonnici
and his qualifications, I just want to rise as
chairman to compliment, as I have on many
occasions, the members that serve on the
Senate Committee of Higher Education for the
way that they have, over a protracted period
of time, conducted and comported themselves in
asking questions and dealing with nominees.
As we all know, it can be a very unnerving
process -- one that we, as legislators, take
for granted.
Before Father Bonnici arrived at
the committee, there were a number of
questions that the members had. And I must
tell you that Father Bonnici, in his
background, probably second to none: holds a
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doctorate, has written extensively -- has
written extensively on a number of theological
subjects, studied in Rome for a period of a
year.
In my discussions with John Bonnici
about CUNY and his responsibilities on the
CUNY board, I was quite impressed and quite
taken by the fact that he was probably one of
the few nominees that came before the Higher
Education Committee and the Legislature, the
Finance Committee, that was well versed on the
master plan and what CUNY hopes to achieve
over its next number of years.
And so to understand what the
blueprint is is very important in
understanding what your duties and
responsibilities are all about. Father
Bonnici talked about a focus on students, and
that's what higher education is all about.
It's all about the education of students.
His certainly pastoral
responsibilities makes him fully understand
that you must communicate with the group that
you must lead and, if you are to make policy
decisions in higher education, you must know
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what the needs of the consumer are.
Father Bonnici talked about his own
life experiences in the formative years of his
life and how that shaped the way he viewed
education and higher education, and the
importance, that it was the ladder to students
achieving their aspirations and their dreams.
And the importance of having some financial
wherewithal or support from the state in
achieving those goals.
Father Bonnici made it very clear,
both to me and to the committee, that there
was a separation in his thought process
between theological beliefs and secular
beliefs in establishing policy for higher
education. His duties, his responsibilities
were all about the City University of
New York, establishing policy for the students
of the City University.
And so I think over a period now of
two weeks, both last week before the Senate
Committee on Higher Education and this week
before the Finance Committee, I think Father
Bonnici has demonstrated, you know, a
knowledge of the position that hopefully, if
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this body casts sufficient votes, he will be
placed with responsibility, and understands
the job of a board member. And that's very
important, because we can understand policy
but also the give-and-take between board
members and what it's all about.
So, Mr. President, I move the
nomination of John S. Bonnici for the position
of trustee to the City University of New York.
ACTING PRESIDENT MEIER: Senator
Stavisky.
SENATOR STAVISKY: Mr. President,
this is a very difficult vote for me,
particularly listening to Father Young's
invocation. I listened very carefully.
And I know many members on this
side of the aisle have some grave reservations
about Father Bonnici's service or potential
service on the CUNY board.
No one questions the academic
qualifications and the scholarly writings, no
one. And it seems to me that there is no
litmus test in terms of certain issues -- the
issues of choice, the issues of sexual
orientation, and so forth.
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It seems to me that we have to ask
nominees difficult questions because that's
our role, that's our job, to think of the most
difficult questions we can, we can ask -- and
we do ask them, but we ask them of every
nominee. Every nominee. We did it in the
past with a previous individual who wished to
serve on the CUNY board, and we will do it in
the future. He was not singled out. And all
of us, I want to emphasize, have great respect
for the clergy.
Now, having said that, I think
there are three problems with this nomination.
In the first place, back in November -- and
others will speak in more detail, but back in
November of 1999 he sent a letter to the
various parishes in the archdiocese dealing
with the creation of a Westchester Council on
Human Rights. And the argument given was that
it might include gay people.
This relates to the CUNY nomination
in terms of the nondiscriminatory aspect of
the admissions policy and the overall policy
of CUNY. Sexual orientation is one of the
protected categories within the
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antidiscriminatory policy. So this is one
area.
The other area that troubles me is
the article on the website of the archdiocese,
particularly for Father Bonnici's particular
area of responsibility, and that deals with
the article called "Why Contraception is
Wrong."
CUNY has the various health centers
in each campus, and at those health centers
they offer information on birth control and on
abortion counseling. This was an area of
concern to me.
Secondly, CUNY has a medical
school, the Sophie Davis Medical School, which
is four years undergraduate and two years of
actual medical school before they go on to
finish their degrees. In the fourth year,
they take a course called family practice.
And the question arose as to how Father
Bonnici would feel about including women's
health needs as part of the curriculum.
And bear in mind that the CUNY
trustees determine the courses of instruction
offered at all of the CUNY institutions.
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Now, my objections are not in these
areas, because I don't think these are part of
the so-called litmus test. To me, the litmus
test is whether the individual understands the
rich heritage that is CUNY, the heritage that
goes back to the 1840s and the creation of
City College.
It goes back to CUNY where we have
more Nobel Prize winners from CUNY than any
other institution in the country, where
Harvard has granted more Ph.D.s to CUNY
graduates than to any other institution. CUNY
has always been the poor man's Harvard, or the
poor woman's Harvard. And this is of concern
to me.
I asked questions about the fiscal
needs of CUNY, which I find very, very
important, particularly in times of budget
difficulties. I was not satisfied with these
responses.
And my objections are not
theological. My objections are lack of
familiarity with the tradition of CUNY, with
the history of CUNY, and most particularly the
mission and the goals of CUNY.
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Today in the Finance Committee I
heard Father Bonnici say that resources should
be dedicated to the classroom, that these
services -- and he meant birth control and
abortion -- should be available elsewhere. I
sat in on the Finance Committee meeting this
morning, and that's what I heard.
It seems to me that Father Bonnici
handled himself extremely well under very,
very difficult circumstances. However, it
gives me no pleasure to indicate that I plan
to oppose this nomination. Obviously, I
suspect my vision will not prevail. And I
certainly hope that Father Bonnici lives up to
everything that Senator LaValle, whose
judgment I do trust, everything that Senator
LaValle has set for him.
And I urge a no vote on this
nomination. Thank you.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you.
I also rise to speak in opposition
to the nomination of the Reverend John Bonnici
as a trustee of the board of the City
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University of New York, and I want to indicate
my agreement with the ranking member of the
Higher Education Committee on this nomination.
The role of the trustee of the
board of any educational institution is to
oversee and help to facilitate the activities
and programs which exist at the institution in
which that individual serves. A trustee
therefore should represent the needs and
demands of the students at any such
institution.
Unfortunately, this is not the case
with the situation at hand. While Father
Bonnici is, I am sure, a productive member of
the Archdiocese of New York, and I'm sure that
he serves well as a priest, I do not think
that he would be a productive or beneficial
member of the CUNY Board of Trustees.
Father Bonnici has spent the prior
seven years, and possibly longer, as both the
assistant director and later director of the
Family Life Respect Life office of the
Archdiocese of New York. Now, that office has
a very important mission -- in fact, it is the
primary mission -- and that is, and I'm
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quoting this directly from the Archdiocese of
New York's website, "to implement the United
States bishops' plan for pro-life activities."
While I would expect a Catholic
priest to be nothing but antichoice -
although some in their hearts may not be, but
I do know that they put forward that official
doctrine -- and as that does seem to be his
position, since it is his life's work -- and I
respect his belief and his right to subscribe
to those tenets.
But I don't feel that it is
appropriate for someone whose job it was and
is now to oppose a woman's right to choose,
including basic methods of birth control, to
serve as a trustee on the board of an
institution which, through campus health
centers, provides such treatment, reproductive
information and information regarding
procedures, including abortion and
alternatives, to women who are students at
CUNY or for faculty or for staff.
Let me talk about students in
particular. Students often rely solely on
their campus health center for their health
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care needs while they are attending college.
And this is particularly true at the CUNY
institutions, where so many students lack any
kind of health care insurance or access to
health care. And so we should be fighting to
ensure that the broadest possible array of
treatments and programs are offered to serve
the populations which need them the most.
I absolutely fear that if Father
Bonnici is confirmed here today, his role on
the Board of Trustees will be geared towards
the compromise and possibly elimination of
certain women's health programs which
currently exist at CUNY. And that is
something that I cannot support and the reason
why I cannot support Father Bonnici.
We heard from a former member of
the Board of Trustees on Sunday at a press
event that in fact members of the Board of
Trustees have enormous influence over their
colleagues, and that they are given enormous
leeway in trying to influence university
policy and they have a role in formulating
what courses can and cannot be offered, in
critiquing descriptions of courses.
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And so to say, which I believe
Father Bonnici has said, that he's just one
vote on the Board of Trustees does not really
show the full extent that a trustee's
influence can have as a trustee at the City
University of New York. Remember, we have
seen similar situations with other board
members where they've wielded enormous impacts
on that institution.
There was a mayoral appointment not
so many years ago that did all he could to get
rid of remedial education for students who
were just entering the CUNY system, and he was
successful in many ways. So to say that just
one member of the Board of Trustees doesn't
have much influence is absolutely not correct.
Additionally, I am very, very
concerned about the already underserved
population of lesbian, gay, bisexual, and
transgender students who attend CUNY and the
potential effect Father Bonnici's presence on
the board of CUNY would have on these
individuals.
Remember, trustees have oversight
over courses, they set policy, and they set
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the direction of the academic priorities of
the institution. And he has made it no secret
that he opposes basic equal rights for the
lesbian, gay, bisexual, and transgender
population. And we saw that through his
efforts to have the Westchester County
Legislature exclude these protected categories
from their equal rights legislation.
Now, New York City has very, very
strong antidiscrimination laws, and
New Yorkers of every sexual orientation are
guaranteed civil rights. In addition,
New York City has a very strong pro-choice
history. And in fact, one of the most
far-reaching clinic access laws -- before this
body passed a clinic access law -- the
strongest, one of the strongest in the nation
was passed in New York City.
So we have a long and rich history
of reproductive rights for women, which most
of us consider to be a basic part of health
care for women. And so to appoint someone,
again, whose job is to try to eliminate that,
is completely and totally inappropriate.
And again, it's wrong to say that
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just one member of the board doesn't have much
of an influence, that is not true. In fact,
the reason that these appointments are put
forward by the Governor and then come before
this body is because they are so very
important to what happens at the City
University of New York.
Now, Father Bonnici has published
various articles, one of which is entitled
"Ignorance is Not Bliss: The Homosexually
Oriented Catholic," which was published in
Priest magazine in February of 1994. In this
article Father Bonnici describes homosexual
relationships as intrinsically disordered.
Intrinsically disordered.
I wonder if that's what you all
consider my relationship with my partner,
Louis Weber. Is it intrinsically disordered?
Or is my relationship equal to the
relationships you have with your partners and
your spouses?
I believe that my relationship is
loving and caring, and we are a family. And
to say that it is disordered by virtue of the
fact that it exists between two of us of the
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same gender is completely and totally anathema
to me and I hope to other members of this
body.
You know, I respect Reverend
Bonnici's right to his personal views
regarding homosexuality. I know that other
people share that view. I do not, however,
respect the fact that he has made it his
life's work to oppose equal rights for my
community and to try to eliminate a woman's
right to choose. That is his life's work.
Does anyone here think that that would not be
the biggest part of his agenda as a trustee at
CUNY? It is his job.
I'm not alone in my opposition to
Father Bonnici's nomination. NARAL has spoken
out against his appointment, many teachers and
administrators, the PSC union, which
represents the professors at CUNY. Countless
rank-and-file women and men from all over
New York City have been calling my office
incessantly, and I've told them that I'm doing
everything I can to stop this totally
inappropriate appointment.
I'm sure that Father Bonnici would
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be a wonderful trustee of a Catholic
university. But he absolutely is the wrong
choice for CUNY.
In addition, Father Bonnici
actually has no experience with public higher
education at all. He has, of course, attended
institutions of higher education; they are not
public. And to my knowledge, aside from a
public school education, which I know he went
to elementary school in a public school -- I'm
not sure whether he went to junior high and
high school in a public school, because it's
not on his resume -- but he has no experience
with public higher education.
I can't in good conscience vote for
Father Bonnici. I cannot disregard the rights
that people have in New York City, including
their civil rights and the rights to
reproductive and family planning services.
I'm just reminded I'm running to my
time limit.
But please, do not vote for someone
that thinks that my relationship is
intrinsically wrong and that a woman attending
the City University of New York should not
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have access to reproductive services. Please,
let's stop this nomination and put forward a
trustee for CUNY who will really meet the
academic needs and the other needs that CUNY
needs to meet during these difficult times.
Thank you.
ACTING PRESIDENT MEIER: Senator
DeFrancisco.
SENATOR DeFRANCISCO: I have a
slightly different view of this nominee. And
I've never met him, don't even know who he is
up there. Could care less.
I've looked at his resume, and I've
heard at least one speaker talk about there's
no question about his qualifications. To me,
what higher education is all about is a group
of different people gathering together to
learn different viewpoints and make your own
judgment on the various issues.
So long as a person has the
qualifications to be a trustee, which I
believe this individual does, the fact that he
may disagree with any one of us on one, two,
three or four issues should not be the
standard in which the nominee is judged.
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I happen to disagree with him on
the gay rights issue. I've voted for the bill
out of committee every time Roy Goodman put it
on. But other people have different points of
view. And I'm sure other people on the CUNY
board presently have different views than he
does on this particular issue.
Whether you realize it or not -- I
think you probably should -- one of the most
divisive issues in this country has been for
the last several years the issue of abortion.
Whether you call it choice or whether you call
it right to life, or whatever your buzzword is
to make it look better in your particular
argument, the fact of the matter is all people
don't believe that abortions are proper.
Do you mean that anytime someone
has a different belief they can't serve on a
board? Or you say of the Catholic priests
because they're Catholic priests and they have
certain point of views and certain theologies,
certain standards that they adhere to, they
are presumptively disqualified to be a member
of an educational board? I don't think so.
So I will support this nominee,
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despite the fact that his personal beliefs on
some issues are contrary to mine. And I
believe we should have different points of
view in a matter of a board of trustees, so
that decisions can be made based upon all
points of view so that they'll be better
decisions.
I will support this nominee.
ACTING PRESIDENT MEIER: Senator
Libous.
SENATOR LIBOUS: Thank you, Mr.
President.
I too stand, as my colleague,
Senator DeFrancisco, to support this nominee.
And we had a rather spirited discussion this
morning in the Finance Committee. And
certainly, as I said then, I will say again
today, as I respect the opinions of my
colleagues on the other side of the aisle, as
I respect what Senator Duane has just put
before us, I, like Senator DeFrancisco too,
disagree.
If you look at Father Bonnici's
resume, he is extremely qualified for this
position. And I, like Senator DeFrancisco,
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before this morning had never laid eyes on
this gentleman. And as I said in that
meeting, in watching him conduct himself
through some very intense questioning, it even
convinced me even more that he is qualified to
serve as a CUNY Board of Trustees member and
that he will add diversity to this board.
And, Mr. President, again, as I
said earlier at the Finance Committee meeting,
one of the things that disturbs me immensely
is that if people believe in issues of life,
for some reason those of us who believe in
those issues become unqualified. We become
not able to serve. I find that very
disrespectful. And I think my constituents
who are pro-choice and pro-life find that very
disrespectful.
Certainly we are all entitled to
our opinions, and we are all entitled to
beliefs and thoughts and philosophy. But I
also believe in the law, as I am sure Father
Bonnici does. And the law of the land says
that clinics can serve needs of women and that
those clinics are available and that abortion
is legal.
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And because of that, I see at no
time, as he serves in this capacity, that he
is going to break those laws. Therefore,
because of his belief on this issue or the
issue of gay rights or other issues, I would
say that he would add spirited debate and he
would also be a good addition and serve very
well as far as the educational values of the
people of the university.
ACTING PRESIDENT MEIER: Senator
LaValle to close for the Majority.
Senator Stafford.
SENATOR STAFFORD: Since this
nomination came from the Finance Committee, I
feel I should say something. Also, since we
have such a fine nominee, I think I should say
something.
Almost everything has been said
here that can be said. I disagree with some
things; I agree with others. It's that
philosophy, I hope, is the reason that I
support the nominee.
And I would just like to point out
one point that was made here that I think
maybe it was just somebody misspeaking. But
2134
they said they didn't think the nominee
understood the history or the goals of the
City University.
Well, I've been here 37 years, and
I've seen people come before the various
committees for various responsibilities. And
I would share with you that it's my opinion
that this person understands the history and
the goals of the City University as well as
any that have come before the committees where
I have either attended or chaired.
And, Mr. President, as I mentioned
earlier, we had fine nominees this morning.
Father Bonnici is one of them. And I
certainly stand here to support his
nomination.
ACTING PRESIDENT MEIER: Both
sides have exhausted their time.
The question is on the nomination.
All those in favor signify by saying aye.
(Response of "Aye.")
SENATOR LACHMAN: Mr. President,
I would like to have two or three minutes to
explain my vote. I'm told it's in order.
ACTING PRESIDENT MEIER: Just a
2135
moment, Senator. I'll hold that matter.
Under the rules, there is no
explanation on a voice vote, Senator.
SENATOR MONTGOMERY: I would like
to explain my vote, Mr. President.
ACTING PRESIDENT MEIER: The
chair has already ruled on that point, Senator
Montgomery. With all due respect, Senator,
there is no explanation of one's vote on a
voice vote.
SENATOR MONTGOMERY: Then I
respectfully request some additional time so
that I will have a chance to speak on this
issue.
ACTING PRESIDENT MEIER: Senator
Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
may I have unanimous consent to allow for each
member to explain their vote, as this is a -
for one minute, perhaps.
ACTING PRESIDENT MEIER: Is there
any objection to Senator Paterson's request?
Without objection, members will
have one minute to explain their vote. Please
indicate your desire to do so by raising your
2136
hand.
I believe Senator Lachman requested
first. And we'll start a list.
Senator Lachman.
SENATOR LACHMAN: Yes, thank you,
Mr. President for allowing me that two, three
minutes of a minute to explain my vote.
I unfortunately wasn't present at
the Finance Committee meeting, but I was
present at the Higher Education Committee
meeting. And I was concerned about some of
the issues that were raised in terms of the
social arena and Reverend Bonnici.
However, I was pleasantly surprised
about his depth of knowledge of public higher
education and the need to even make CUNY a
greater institution than it is today for all
students attending CUNY.
I was also informed by him that he
will work with Chancellor Goldstein towards
the master plan of CUNY, especially areas in
terms of the honors college and also the
equalization of faculty lines.
Finally, I want to say that any
member of the CUNY Board of Trustees can
2137
recuse themselves in matters of conscience.
And this has been done before; it can be done
again. But we cannot make this an issue,
whether it's pro-life or pro-choice or issues
in terms of gay rights that some of us might
differ with.
Here is a man, Father Bonnici, who
is succeeding a man, Father Crimmins, who
holds his same views -- perhaps has not
written as widely as he has.
So therefore, to explain my vote, I
would say under difficult circumstances to
allow the Chancellor to go ahead to rebuild
CUNY with the input of all students and
faculty, we need a strong Board of Trustees.
And I am hopeful that this new
member will take into consideration not only
his conscience but the consciences of others.
And if in any way this disagrees with the
bylaws of the Board of Trustees of CUNY, he
will, as his predecessors have done, recuse
themselves in order for the greater good of
the university.
Thank you.
SENATOR VELELLA: Mr. President,
2138
I believe -- and I would ask the members to
have the courtesy. We've had the courtesy to
extend the one-minute unanimous consent
statement. I would ask those members
explaining their vote to not abuse the
courtesy, please.
ACTING PRESIDENT MEIER: Your
point of order is well taken. The chair will
be watching for one minute.
I have a list, and I'm going to
recognize people in the order in which they
requested recognition.
Senator LaValle.
SENATOR LAVALLE: Thank you, Mr.
President. In my one minute I'm going to make
five points.
The first is, as was brought up
during the committee debate by Senator Mendez,
the committee had never taken a litmus-test
position on any nominee. And as a matter of
fact, philosophically we've had members of all
political stripes, to the left, to the right,
to the center.
Number two, regarding the letter
dealing with gay and lesbian issues, Father
2139
Bonnici was clear and he talked about church
doctrine respecting every individual.
Number three, Father Bonnici was
clear that in his position he would serve all
students.
Number four, Father Bonnici is an
adjunct professor and we should not hold
against him that he did not attend a public
school, as Senator Stachowski and Senator
Dollinger have not attended public schools.
And lastly, the CUNY board is
diverse. It has gubernatorial appointments,
it has mayoral appointments, appointments by
borough, by alumni, et cetera.
I vote yes on the nominee.
ACTING PRESIDENT MEIER: For the
information of other members, that was a
minute, as a standard to use.
Senator Montgomery and then Senator
Mendez.
SENATOR MONTGOMERY: Yes, Mr.
President, in one minute I -- I would like it
to be on record that I certainly do not
consider Father Bonnici because of his
religious affiliation.
2140
I do, however, understand that
there is no instance that I am aware of where
any member of the Catholic clergy can override
their tenets as it relates to their belief in
totally in abstinence. Certainly I share that
belief. But also they do not believe in any
way that the health services that women need
as it relates to reproductive services can be
supported by them.
CUNY is a very large system where
there are -
ACTING PRESIDENT MEIER: Senator,
could I ask you to conclude, please.
SENATOR MONTGOMERY: Yes. In
conclusion, because of the fact that there's
large numbers of women who are students,
faculty, women who depend on that system for
their health care, and it will not be possible
for -
ACTING PRESIDENT MEIER: Senator,
how do you vote?
SENATOR MONTGOMERY: I vote no.
ACTING PRESIDENT MEIER: Senator
Mendez.
SENATOR MENDEZ: Mr. President, I
2141
stand up with great pleasure to endorse the
nomination of Father Bonnici in the Higher
Education Committee meeting.
He was very explicit, he showed
complete cognitive clarity in terms of the
mission of the City University. I have no
doubt in my mind that Father Bonnici will be
able to discharge the functions of his job in
a very efficient manner.
And to tell you the truth, Mr.
President, I really believe that all these
questions are irrelevant to the duties that he
has to engage in.
So, very proudly, I vote yes.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. I'll just make three quick
points.
First of all, I'm not so much
interested in higher education in the City of
New York as I am in higher opportunity. I had
a colloquy with Father Bonnici about it. And
I think he takes a very narrow view of the
mission statement of the university if he
2142
suggests that somehow women's health could not
be a factor or shouldn't be a major factor in
higher opportunity for women throughout the
city of New York.
Secondly, I am concerned about the
Westchester County letter, which I have not
received a copy. I'm not so much troubled by
the theology in it as I am by the conclusion,
the logic, which doesn't find its home in
either Thomist or Aristotelian logic that I'm
familiar with, that says we're better off not
having a human rights commission because one
of the things they may do is protect the
rights of gays. I think that's an error of
judgment and an error of logic. It raises a
question.
Lastly, to address the public
policy issue, I believe in the diversity of
viewpoints. I believe in a robust public
policy debate. But at the same time, I'm
concerned about the future of CUNY and whether
it will fit in the overall public policy of
this state.
I believe that a debate in CUNY
about women's health would be not to the
2143
advantage of the women of the city of
New York.
Reluctantly, Mr. President, I'm
voting no.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
Very briefly, I also will be voting
no. I think that for me the critical issue is
not really someone's personal point of view.
There are many people who are antichoice for
whom I have a great deal of respect.
However, I think that it's
important to look at the background of this
individual. This is an extremely important
trust, a public trust that we're seeking to
confer. We have an obligation to look at it.
And as far as I can tell, his background is
not in higher education, is not in any of the
areas that will benefit CUNY, but is really as
an activist in opposition to abortion rights
and in opposition to gay rights.
And I respectfully submit that that
does not qualify him for this position and, if
2144
we are really looking for the best people, I
would respectfully submit that there are even
other members of the clergy who could
responsibly fulfill this position and that we
shouldn't just say okay, you know, we're going
to just go with him because he happens to be a
priest.
There are a lot of priests who
serve with distinction in positions of trust.
I think it's a mistake to support this
particular nominee for this particular
position, and I vote no.
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: I'll be
voting no also.
The one point, I was happy, in my
dialog in the Finance Committee, to find that
the reverend said that he would support the
human rights of all peoples. Well, I was
concerned because I knew when we had a
proposal for a human rights commission in
Westchester County a couple of years back, one
of things it was to do was to protect the
rights of gay people from discrimination.
2145
And there was a letter submitted by
Reverend Bonnici which was saying that the
commission should not come into being. And I
felt that was very inappropriate, because you
don't deny this kind of a commission which can
help so many people because one avenue, one
particular area is not supported by you.
But I still am very concerned that
the health centers, which offer contraception,
and not only birth control but abortion
services, that they are something that this
gentleman will not be able to support because
of his fundamental teachings and because that
is the center of his vocational life. I
agree -
ACTING PRESIDENT MEIER: Senator,
we're over a minute. How do you vote?
SENATOR OPPENHEIMER: Okay, I
vote no.
ACTING PRESIDENT MEIER: Senator
Krueger.
SENATOR KRUEGER: I rise to
explain my vote.
Clearly Father Bonnici has the
right to be antigay and anti a woman's right
2146
to choose. However, given his position
professionally on his day job, in his
writings, I do not believe that it is
appropriate for him to shape the legitimate
scholarly teaching and serve his functions at
CUNY.
Following up on a point that
Senator Lachman made earlier, about the
responsibility to recuse oneself from issues
where you have a moral position that is
different than the law, I would urge that
Father Bonnici, if he is affirmed today,
recuse himself from any decisions about
student health and counseling services,
because they must be open to students who
request information on contraception and safe
sex; that he recuse himself from voting on
tenure issues for scholars who are working in
the fields of reproductive rights and civil
rights for gay and lesbian and bisexual and
transgendered people; that he recuse himself
from decisions about courses and programs that
deal with complex issues of sexuality and
gender.
And frankly, given my desire that
2147
he do recuse himself, I don't believe that he
will actually be able to serve as a CUNY
trustee effectively, given the differences
between his day job and his responsibilities
as a trustee. So I do vote no on his
confirmation.
ACTING PRESIDENT MEIER: Senator
Maltese.
SENATOR MALTESE: Mr. President,
I rise -- quite frankly, I'm disappointed. I
thought that we judge candidates and nominees
appointed by the Governor on their merits. I
don't see that happening here. I see them
judged on their beliefs, on their principles.
And that's extremely disappointing.
I don't think that Father Bonnici
should be recused or excused or disqualified
from voting on issues of sexuality any more
than my good colleague Senator Duane should be
excused or recused from voting on those
issues. Yet his position is very, very firm
and clear, and I respect the fact that he
espouses his position in a very forceful
manner.
I certainly welcome Father Bonnici
2148
to the CUNY board. His qualifications are
extremely impressive. I think he will be
fair-minded. I think adhering to principle is
not a disqualification for a CUNY board member
in this day and age.
I vote aye, Mr. President.
ACTING PRESIDENT MEIER: Senator
Hevesi.
SENATOR HEVESI: Thank you, Mr.
President.
I rise to oppose this nominee. I
have opposed other nominees to the CUNY Board
of Trustees for character problems. I
certainly find no problem with an individual
espousing their personal beliefs.
But there is absolutely nothing
wrong with members of this body, who are
charged with the responsibility of overseeing
who gets on this board, we're saying that we
don't believe that this individual, in the
discharge of their duties on the board, will
suit CUNY well and its mission well and its
purpose well.
And those who say, well, he's
entitled to his opinion or he's only one of a
2149
number, I would just point out, if there are
15 voting members on the board, at what
point -- at Number 6, at Number 7, at
Number 8 -- do we then oppose the person
because they will implement policies that will
be damaging to women and homosexuals? No, you
do it when the first one does that.
And I believe this nominee, though
he may be of fine character, and I assume he
is, would vote the wrong way on a series of
issues and influence policy in a way that I
don't want influenced. And I am opposing this
nominee for that reason, Mr. President.
ACTING PRESIDENT MEIER: Senator
Ada Smith.
SENATOR ADA SMITH: Thank you,
Mr. President.
I too rise to oppose this
nomination, as I did in the Finance Committee.
And I am not opposing him because of his day
job, I am opposing him because of the answers
that he gave to me in the Finance Committee.
I do not believe that he has a
clear understanding of the mission of CUNY or
the student that attends City University. And
2150
as a product of City University, I believe
that I have a responsibility to look closely
at those who will be making a decision for
those young people who may come from my
community.
ACTING PRESIDENT MEIER: Senator
Marcellino.
SENATOR MARCELLINO: There's been
a lot of talk, Mr. President, about the
mission of CUNY. It's always been my
understanding that the mission of any
institution of higher education is to foster
thought and debate in a forum which is open
and free.
When we start ruling on what people
think and say that you think one way and you
are no longer qualified to be representative
or your kind of thought is no longer qualified
to be representative, then we take the
university system and we say one way and one
way only and everybody else that disagrees
need not apply. This debate is going in a
very, very dangerous direction.
I vote aye and urge a very strong
aye vote.
2151
ACTING PRESIDENT MEIER: Senator
Johnson.
SENATOR JOHNSON: Mr. President,
I don't know what's happened to the concept of
academic freedom where every idea was welcome
in the academy. Seems like they're closing
the door now because some people think the
wrong way.
I think just the thought that
Father Bonnici could sway with his powers -
and I know he's well educated, perhaps maybe
more qualified in his doctorate than some of
the trustees that are there. Maybe so well
educated that they're afraid that he could
sway the other 16 members of this board to do
his bidding.
I doubt it very much, but I think
he's entitled to try, although I don't believe
he will. Because when he spoke to us, he said
"I'm here to help advance the education of the
youngsters of New York City who need an
opportunity for an education and CUNY is the
way to go."
And I think he's going to do what
he said and try to promote education. He's
2152
not going to push these issues to the
detriment of his pledge, really, which is to
advance the education of the people in CUNY.
So I think it's really a lot of -
a lot of, shall I say, bias in some people's
minds against the institution or the views
which he holds. And, you know, you're not as
old as John Marchi and I, and if he was -
ACTING PRESIDENT MEIER: Senator
Johnson, could I ask you to state your vote,
please.
SENATOR JOHNSON: I'd like to
vote in favor of Father Bonnici's nomination.
Thank you.
ACTING PRESIDENT MEIER: Senator
Stavisky.
SENATOR STAVISKY: To explain my
vote.
I made it clear when I opened with
my opening comments that my objections were
not based on theology, they were not based on
his positions on choice or on gay rights. And
in fact I daresay many members of the current
CUNY board probably agree with him.
My objections are based on lack of
2153
familiarity with CUNY. Reading the
Chancellor's mission statement twice does not
qualify you to be a member of the CUNY board.
My objections are based on his lack
of fiscal understanding, the problems facing
CUNY today, its goals, its aspirations. This
is not what we mean by diversity. Diversity
of opinion, yes.
But I believe that this nomination
is not a good one. And as I said, it is not
based on the fact that he is a priest but
based upon his lack of experience. There are
plenty of priests whom I could support.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: The
question, then, is on the nomination. All
those in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(Response of "Nay.")
ACTING PRESIDENT MEIER: The ayes
have it. The nominee is confirmed.
Father Bonnici is with us today in
the gallery. And, Father, congratulations.
2154
(Applause.)
ACTING PRESIDENT MEIER: The
Secretary will continue to read.
THE SECRETARY: As a member of
the Empire State Plaza Art Commission, Judith
A. Barnes, Ph.D., of Troy.
As a member of the Medical Advisory
Committee, Kathleen Benson Smith, of Oswego.
As members of the Advisory Council
to the Commission on Quality of Care for the
Mentally Disabled, Shirley B. Flowers, of
Brooklyn, and Joan E. Klink, of Fishkill.
As members of the Council on Human
Blood and Transfusion Services, Robert A.
Dracker, M.D., of Syracuse; Alicia Elena G.
Garcia, M.D., of Staten Island; and Lazaro
Generoso Rosales, M.D., of Fayetteville.
As members of the State Hospital
Review and Planning Council, Eric R. Allyn, of
Skaneateles; David O. Simon, of Chappaqua; and
Frederick Yanni, Jr., of Baldwinsville.
As members of the Board of Visitors
of the Binghamton Psychiatric Center, Joyce
Gioia, of Binghamton, and Nancy Ann Thomas, of
Binghamton.
2155
As a member of the Board of
Visitors of the Bronx Psychiatric Center,
Richard Somer, of the Bronx.
As a member of the Board of
Visitors of the Broome Developmental
Disabilities Services Office, Mildred Hendry
Bengel, of Binghamton.
As members of the Board of Visitors
of the Buffalo Psychiatric Center, Margaret V.
Lombardi, of Buffalo, and Carolyn A. Siegel,
Esquire, of West Falls.
As members of the Board of Visitors
of the Capital District Developmental
Disabilities Services Office, Thomas W.
O'Connor, of Delmar; Francis J. Sheridan, of
Voorheesville; and Cheryl A. Walther, of
Hudson Falls.
As a member of the Board of
Visitors of the Capital District Psychiatric
Center, Carrie S. Taylor, of Delmar.
As members of the Board of Visitors
of the Central New York Developmental
Disabilities Services Office, Jane G. Allen,
of Brantingham; Marian Budnar, of Cazenovia;
Sally Johnston, of Syracuse; and Thomas
2156
Yousey, Sr., of Lowville.
As members of the Board of Visitors
of the Elmira Psychiatric Center, Patricia
Lucas, of Elmira; James J. Norton, M.D., of
Montour Falls; and Judith H. Phillips, of
Watkins Glen.
As a member of the Board of
Visitors of the Bernard M. Fineson
Developmental Disabilities Services Office,
Helene Schaumberger, of Douglaston.
As members of the Board of Visitors
of the Finger Lakes Developmental Disabilities
Services Office, Mark A. Wickham, of Penn Yan,
and Bernice Ziehm, of Webster.
As members of the Board of Visitors
of the Richard H. Hutchings Psychiatric
Center, Richard Ellison, of Syracuse, and
Carol F. Puschaver, of Liverpool.
As a member of the Board of
Visitors of the Kingsboro Psychiatric Center,
Shirley B. Flowers, of Brooklyn.
As members of the Board of Visitors
of the Middletown Psychiatric Center, Ann
Marie Maglione, of Middletown, and Helen R.
Swanwick, of Middletown.
2157
As members of the Board of Visitors
of the Queens Children's Psychiatric Center,
Jeanne S. Riger, of Whitestone, and Ralph M.
Somerfield, of Floral Park.
As a member of the Board of
Visitors of the Rochester Psychiatric Center,
Edward J. Sardisco, of Rochester.
As a member of the Board of
Visitors of the Staten Island Developmental
Disabilities Services Office, Christine
Dickhut, of Staten Island.
As a member of the Board of
Visitors of the Sunmount Developmental
Disabilities Services Office, Jane Dumoulin,
of Tupper Lake.
As a member of the Board of
Visitors of the Taconic Developmental
Disabilities Services Office, Ronald S.
Lehrer, of Poughkeepsie.
And as a member of the Board of
Visitors of the Western New York Developmental
Disabilities Services Office, Pamela D.
Burgoon, of Fredonia.
ACTING PRESIDENT MEIER: Senator
Stafford.
2158
SENATOR STAFFORD: Move
confirmation.
ACTING PRESIDENT MEIER: The
question is on the confirmation of the
nominees. All those in favor signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
nominees are confirmed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
would you please call up Calendar Number 547.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar 547.
THE SECRETARY: In relation to
Calendar Number 547, Senator Stafford moves to
discharge, from the Committee on Finance,
Assembly Bill Number 11076 and substitute it
for the identical Senate Bill Number 7047,
Third Reading Calendar 547.
ACTING PRESIDENT MEIER:
Substitution ordered.
2159
The Secretary will read.
THE SECRETARY: Calendar Number
547, by the Assembly Committee on Rules,
Assembly Print Number 11076, an act making
appropriations for the support of government.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Is there a
message of necessity and appropriation at the
desk?
ACTING PRESIDENT MEIER: There is
a message at the desk.
SENATOR SKELOS: Move to accept.
ACTING PRESIDENT MEIER: All
those in favor of accepting the message of
necessity and appropriation signify by saying
aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
message is accepted.
The bill is before the house.
SENATOR DOLLINGER: Explanation,
2160
Mr. President.
ACTING PRESIDENT MEIER: Senator
Stafford, an explanation has been requested by
Senator Dollinger.
SENATOR STAFFORD: Mr. President,
I was of course a bit taken aback, because we
have had a number of these in the past few
weeks. And we had a number of them the past
few years, as a matter of fact.
I would point out, Mr. President,
that we do live in a very, very complex state.
And of course the budget is hammered out on
the anvil of discussion, reason, and
sensitivity. That's presently being done.
But of course until we do have the
completion of the budget process, we have to
have government proceed. And it would be, of
course, very serious if that did not take
place.
I could go and spend hours on this
explanation, but as most of you know, I'm not
into spending hours in explanations. But I
certainly see my colleague rising, and I trust
that this is possibly the reason that I was
asked for an explanation.
2161
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Mr.
President, will Senator Stafford yield to a
question?
ACTING PRESIDENT MEIER: Senator
Stafford, do you yield?
SENATOR STAFFORD: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR DOLLINGER: How long,
Senator, is the extension required by this
bill?
SENATOR STAFFORD: One week.
Seven days.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Stafford will yield
to another question.
ACTING PRESIDENT MEIER: Senator
Stafford, do you continue to yield?
SENATOR STAFFORD: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR DOLLINGER: Is there a
2162
reasonable prospect that in the next seven
days we'll actually conclude the budget
negotiations and have a budget document
prepared for deliberation and debate in this
house?
SENATOR STAFFORD: Mr. President,
I've been here 37 years. And if Senator
Dollinger thinks I'm going to answer that with
great -- with any, shall I say -- well, just
let me leave it at that.
I would suggest that I've learned
there are certain things you're never sure of.
We have 211 legislators and a governor, and we
have a great deal of work that is being done.
I would say, Mr. President, that
I'm hopeful.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Explanation
satisfactory.
Just briefly on the bill, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I will give
2163
Senator Stafford one thing. The consistency,
Senator Stafford -- with one minor exception.
I think I asked you that question ten years
ago when I first got here, and the answer was
exactly the same except you prefaced it by
saying "in the 27 years that I've been here"
instead of "the 37."
But the answer remains consistent.
We don't know whether we're going to get a
budget on time, we have no reasonable prospect
for getting a budget on time in a week.
So not only, in my judgment, do we
strain the credibility that we have, that
little tiny bit of remaining credibility we
have with the people of our state -- strained,
in my opinion, to the absolute limit because
we never get the budget done on time -- but
now we're straining credulity further because
we're passing a one-week budget extension with
no reasonable prospect we will get the budget
done on time.
If we're going to continue to do
this interim budget adoption, these rolling
resolutions, if we're going to get away from
the notion of an April 1st budget, then let's
2164
just go to the congressional pass. Let's just
keep passing budget resolutions, keep spending
money without even putting the budget in
place. That would be a policy choice that I
might even be willing to consider.
But it seems to me missing the
April 1st date, rolling this over every week,
having messages of necessity from the Governor
for one week when we don't have a reasonable
prospect for passing a budget, is foolishness.
Let's be honest with the people of
this state. Let's tell them we need two
months to get this deal done, let's pass an
extender until the first of June so we can at
least say that we've done something that's
reasonable and bears some relationship to
reality.
This bill -- and I've voted against
these extensions since the day I got here -
is just an absolute ruse on the people of this
state. Let's at least be honest with them,
tell them we can't get the thing done on time.
We're tied up in reapportionment, we're
dealing with all kinds of other issues, we
don't seem to want to be able to get the
2165
budget done on time, so let's take two months,
let's set another deadline, one that would be
credible, one that we could tell them we will
get the budget done in that credible period of
time. Let's do something that has some
credibility.
As long as we continue this
slapdash manner of doing things, lurching from
week to week with budget appropriations, I'm
going to continue to vote no for such
silliness, Mr. President.
ACTING PRESIDENT MEIER: Any
other member wish to be heard on the bill?
The debate is closed.
Read the last section.
THE SECRETARY: Section 30. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58. Nays,
3. Senators Dollinger, Duane, and L. Krueger
recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
2166
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to motions and resolutions
and adopt the Resolution Calendar in its
entirety.
ACTING PRESIDENT MEIER: Order of
motions and resolutions.
The question is on the adoption of
the Resolution Calendar in its entirety. All
those in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
Resolution Calendar is adopted.
SENATOR SKELOS: Mr. President,
there's a privileged resolution at the desk,
4949, by Senator LaValle. I'd like to have it
read in its entirety and move for its
adoption.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: By Senator
LaValle, Legislative Resolution Number 4949,
2167
welcoming Gaetano Silvestri, President of the
University of Messina, Italy, upon the
occasion of his visit to New York State.
"WHEREAS, It is the sense of this
Legislative Body to pay tribute to those
distinguished educators from throughout the
world whose endeavors have so significantly
promoted the exchange of knowledge between
students from the great Empire State and those
from foreign countries; and
"WHEREAS, Cultural exchange
programs between students from New York State
and those from abroad have an educational
value which is immeasurable, and provide the
opportunity for experiences which last a
lifetime; and
"WHEREAS, This Legislative Body is
justly proud to welcome Gaetano Silvestri,
President of the University of Messina, Italy,
upon the occasion of his visit to New York
State; and
"WHEREAS, Gaetano Silvestri will
visit, with a delegation from the University
of Messina, to promote the program of cultural
exchange established between the State
2168
University of New York at Stony Brook and the
University of Messina to study Italian
emigration and the Italian-American community;
and
"WHEREAS, Born in Patti, Messina,
Italy, in 1944, Gaetano Silvestri graduated
with a degree in law in 1966, with honors; and
"WHEREAS, In 1967 Gaetano Silvestri
won a special prize for the best degree thesis
in constitutional law from the President of
the Republic, at the 20th anniversary of the
Constituent Assembly. In 1968, he was granted
a scholarship by the National Research
Council. In 1969, he attended the Seminar on
Studies and Parliamentary Research at the
University of Firenze; and
"WHEREAS, Gaetano Silvestri became
an assistant professor at the Chair of
Constitutional Law at the Faculty of Law of
the University of Messina in 1970. He taught
local authorities law and parliamentary law,
and in 1980 he became a professor of
constitutional law, obtaining the Chair of
Parliamentary Law at the Faculty of Political
Sciences; and
2169
"WHEREAS, Two years later, Gaetano
Silvestri was elected as director of the
Institute of Juridical Sciences of the Faculty
of Political Sciences; and
"WHEREAS, During the late 1980s,
Gaetano Silvestri was appointed to the Chair
of State Doctrine at the Faculty of Law of the
University of Messina, and to the Chair of
Constitutional Law at the same Faculty of Law;
and
"WHEREAS, From 1990 to 1994,
Gaetano Silvestri served as an elected member
of the Higher Council of the Magistracy of the
Parliament of Italy; and
"WHEREAS, In 1998, Gaetano
Silvestri was appointed as a member of the
Scientific Committee at the Institute of
Studies on the Regions of the National
Research Council; and
"WHEREAS, Since July 31, 1998,
Gaetano Silvestri has served as Rector of the
University of Messina, Italy; and
"WHEREAS, Gaetano Silvestri's
dedicated work has clearly had an enduring
impact on countless students in New York State
2170
and Italy, and accordingly, he merits the
recognition and the applause of this
Legislative Body for his impressive dedication
to others; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to welcome
Gaetano Silvestri, President of the University
of Messina, Italy, upon the occasion of his
visit to New York State; and be it further
"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to Gaetano Silvestri, president of the
University of Messina."
ACTING PRESIDENT MEIER: Senator
LaValle.
SENATOR LAVALLE: Mr. President,
very briefly, I had the opportunity a number
of years ago to go to the University of
Messina, Sicily, with my dear professor,
Professor Mignone from State University at
Stony Brook. And we were able to forge
agreements that were later signed by President
Shirley Strum Kenny, president of the
university, that has allowed, and hopefully
into the future, relationships between Stony
2171
Brook and the University of Messina.
So, Rectore, we welcome you,
Silvestri -- Gaetano Silvestri, who is the
president or the rector of the University of
Messina is here. He is joined by
Mrs. Silvestri, also Professor Marcello Saija,
and Professor Letterio Bonina.
Professor Bonina's mom is a
LaValle. I just have to make that note for
the record.
And, of course, Professor Mignone
from Stony Brook University, we welcome you
here once again in our chamber.
Mr. President, I think our dear
colleague Senator Marchi would like to make
some remarks in Italian so that our visitors
feel at home.
ACTING PRESIDENT MEIER: Senator
Marchi.
SENATOR MARCHI: Mr. President,
we're delighted to have this presence. And if
I may, without objection, just say that I'm
very pleased in Italian.
[Remarks in Italian]
ACTING PRESIDENT MEIER: Senator
2172
Paterson.
SENATOR PATERSON: Mr. President,
I didn't understand everything Senator Marchi
said. Could the Secretary read that back,
please.
(Laughter.)
ACTING PRESIDENT MEIER: Senator
Marcellino.
SENATOR MARCELLINO: For purposes
of the translation, I think Senator Marchi
basically said "how you doin'."
(Laughter.)
ACTING PRESIDENT MEIER: Any
other member wish to be heard?
President Silvestri, to you and
your party we wish you welcome to the Senate
chambers.
And I am especially happy to extend
a welcome to you as the State Senator who
represents the village of Messina, New York.
Welcome to our chambers today.
(Applause.)
ACTING PRESIDENT MEIER: We have
to formally adopt the resolution. We were so
carried away by Senator Marchi's eloquence
2173
that the chair neglected that formality.
The question is on the resolution.
All those in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
resolution is unanimously adopted.
Senator Rath.
SENATOR RATH: Mr. President,
there's a privileged resolution at the desk by
Senator Marcellino. May we please have it
read in its entirety and move for its
immediate adoption.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: By Senator
Marcellino, Legislative Resolution Number
4948, commemorating the 32nd Anniversary of
Earth Day, April 22, 2002.
"WHEREAS, It is the sense of this
Legislative Body to recognize and pay tribute
to those organizations dedicating their
purposeful work to increasing public awareness
2174
of, and appreciation for, the natural
resources of New York, recognizing the role
all citizens have in protecting the
environment and the quality of life in this
Empire State; and
"WHEREAS, On April 22, 1970,
approximately 25 million Americans
participated in the first Earth Day
demonstration to express their concerns over
the environment and the fate of the planet;
and
"WHEREAS, In the 32 years that have
passed since the original Earth Day, the
planet has been subjected to the continuing
burdens of world population growth, increasing
commercial and residential development, ocean
pollution, increasing stores of toxic and
nuclear waste, and other similar assaults
which have exacerbated the growing dangers of
global climate change, ozone depletion, toxic
poisoning, deforestation, and mass species
extinctions; and
"WHEREAS, Following the first Earth
Day, and the demonstrations of concern of over
20 million Americans, a collective national
2175
action has resulted in the passage of sweeping
new laws to protect the invaluable resources
of air, land, and water; and
"WHEREAS, April 22, 2002, marks the
32nd anniversary of Earth Day, a day set aside
to celebrate the beauty and bounty of our
environment and to revitalize the efforts
required to protect and maintain respect for
the environment and its resources; and
"WHEREAS, Earth Day 2002 activities
and events will also educate all citizens on
the importance of acting in an environmentally
sensitive fashion by recycling, conserving
energy and water, using efficient
transportation, and adopting more ecologically
sound lifestyles; and
"WHEREAS, Earth Day 2002 Activities
and events will also educate all citizens on
the importance of supporting the passage of
legislation that will help protect the
environment, and will highlight the importance
of a heightened awareness of environmental
concerns amongst our state's leaders; and
"WHEREAS, The goal of Earth Day
2002 is not to plan only one day of events and
2176
activities but to continue worldwide efforts
to protect all aspects of the environment;
now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to commemorate
the 32nd anniversary of Earth Day on April 22,
2002."
ACTING PRESIDENT MEIER: Senator
Marcellino.
SENATOR MARCELLINO: Mr.
President, I would just like to rise briefly
and speak to this resolution.
We've done this each and every year
as a tradition, and I just want to point out
that while there are many laws and people's
awareness of the problems our environment
faces, we are basically fighting a battle of
holding action. We're neither winning nor
losing the fight, and that's not a good thing.
We've got to do a lot more to protect this
planet that we live on. It's the only one
we've got.
And we can never and should never
take it for granted, and we must leave it in a
better condition than we found it when we took
2177
over, so that our children and our
grandchildren have a better place to live than
we have today.
So with that, I urge everyone to go
off into their communities and speak to the
issue of the environment and its protection
and its defense, and to work towards making
this a better place to live and raise a
family.
Mr. President, I would like to open
this resolution up in the usual manner to all
members of the house.
ACTING PRESIDENT MEIER: Senator
Rath, shall we then open the resolution to all
members and ask any member not wishing to be
on this resolution to notify the desk.
SENATOR RATH: Thank you, Mr.
President.
ACTING PRESIDENT MEIER: The
question is on the resolution. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
2178
ACTING PRESIDENT MEIER: The
resolution is adopted.
Senator Rath.
SENATOR RATH: Mr. President, may
we please have the noncontroversial reading of
the calendar.
ACTING PRESIDENT MEIER: The
Secretary will read the noncontroversial
calendar.
THE SECRETARY: Calendar Number
318, by Senator Saland, Senate Print 5042A, an
act to amend the Real Property Tax Law, in
relation to providing a tax exemption.
SENATOR HEVESI: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
SENATOR RATH: Lay it aside for
the day, please.
ACTING PRESIDENT MEIER: Lay the
bill aside for the day.
THE SECRETARY: Calendar Number
374, by Senator Marcellino, Senate Print
4436A, an act to amend the Vehicle and Traffic
Law, in relation to the number of prior
2179
suspensions.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
416, by Senator Volker, Senate Print 368, an
act to amend the Civil Practice Law and Rules,
in relation to confidential communications.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
424, by Senator Volker, Senate Print 3583, an
act to amend the Penal Law, in relation to
loitering.
ACTING PRESIDENT MEIER: Read the
2180
last section.
THE SECRETARY: Section 2. This
act shall take effect on the 90th day.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 424 are
Senators Duane, Hassell-Thompson, L. Krueger,
and Montgomery. Ayes, 57. Nays, 4.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Hassell-Thompson, are you
asking to be recognized?
SENATOR HASSELL-THOMPSON: Yes, I
voted in error. I wanted to be counted as
voting in favor.
ACTING PRESIDENT MEIER: Without
objection, the record will reflect that
Senator Hassell-Thompson voted in the
affirmative on Calendar Number 424.
SENATOR HASSELL-THOMPSON: 424,
right. Thank you.
ACTING PRESIDENT MEIER: The
Secretary will continue to read.
2181
THE SECRETARY: Calendar Number
432, by Senator Volker, Senate Print 5426A, an
act to enact the Criminal Procedure Law Reform
Act of 2002.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
465, by Senator Balboni, Senate Print 5249, an
act to amend the Environmental Conservation
Law, the Public Authorities Law, and others,
in relation to the establishment of a water
pollution control.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 16. This
act shall take effect on the 180th day.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
2182
483, by Senator Morahan, Senate Print 1110, an
act to amend the Executive Law and the Penal
Law, in relation to payment.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59. Nays,
2. Senators Duane and Montgomery recorded in
the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
484, by Senator Alesi, Senate Print 1134, an
act to amend the Correction Law, in relation
to making it a Class A misdemeanor to
simulate.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
2183
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
485, by Senator Alesi, Senate Print 1141, an
act to amend the Correction Law, in relation
to barring sex offenders.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
486, by Senator Skelos, Senate Print 1264, an
act to amend the Correction Law, in relation
2184
to requiring.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
492, by Senator Meier, Senate Print 6406, an
act to amend Chapter 906 of the Laws of 1984.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
2185
500, by Senator Libous, Senate Print 3577, an
act to amend the Mental Hygiene Law, in
relation to directing the State Commission on
Quality of Care.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60. Nays,
1. Senator DeFrancisco recorded in the
negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
506, by Senator LaValle, Senate Print 6615, an
act to amend Chapter 453 of the Laws of 2001
amending the Education Law.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
2186
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
530, by Senator Marchi, Senate Print 6409, an
act to amend Chapter 759 of the Laws of 1973
relating to the transfer of lands.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Rath, that concludes the
noncontroversial reading of the calendar.
SENATOR RATH: Mr. President, may
we please have the controversial reading of
the calendar.
ACTING PRESIDENT MEIER: The
2187
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
416, by Senator Volker, Senate Print 368, an
act to amend the Civil Practice Law and Rules,
in relation to confidential communications.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MEIER: Senator
Volker, an explanation has been requested of
Calendar 416 by Senator Paterson.
SENATOR VOLKER: Mr. President,
this is a bill that initially was a
broader-based bill some years ago. In fact,
at one time Harvey Weisenberg and I, who is
the sponsor in the Assembly, had got an
agreement with the Governor's office -- at
least we thought we had an agreement -- and
the bill was vetoed some years ago, about
three or four years ago.
There is a common law principle
that in cases of law enforcement officers that
certain privileges were always provided, which
has been overruled, essentially, by courts.
And because of the nature of what has been
happening in law enforcement areas -- some
2188
would say in part because DAs have become so
aggressive in pursuing law enforcement
officers -- some of the former privileges that
were provided were revoked some years ago.
This bill only provides an
extremely limited exemption for confidential
communications between a law enforcement
officer and an elected union official. And
the reason for this has to do with the law
enforcement officer speaking with somebody who
is in authority about his case.
It does not apply, by the way, as
one time was thought, to people who are
superior officers or any of that sort of
thing. And that, by the way, has been the
assumption that some people have made.
Frankly, in a whole series of
areas, these kinds of exemptions are provided
by statute or by understanding. Personally,
you know, I realize that because these are
police officers, there has been more concern
than there was years ago.
The city opposes it -- I assume
they're still opposed to it -- simply because
they say that anything like this should be
2189
negotiated, primarily, and because they're
worried that somehow something might occur
that might deter them in negotiations and in
prosecutions.
My personal feeling is that this
bill is an extremely limited bill which makes
sense and is frankly all, under today's
conditions, that should be done. I don't
think it should be extended. But I really
think this is something that should be done.
I guess partly because of my
background in law enforcement, I know how the
whole system works. It does not protect any
police officers. What it does do is to allow
something that occurs now, generally speaking,
where counsel, for instance, obviously don't
have to -- can't be called before grand
juries, who talk to their clients.
In effect, what's happening with a
union official is that those union officials
are supplanting, in a number of cases, the
counsel. So I think this makes sense, and I
think that it's something that should be done.
ACTING PRESIDENT MEIER: Senator
Paterson.
2190
SENATOR PATERSON: Mr. President,
if Senator Volker would yield for a question.
ACTING PRESIDENT MEIER: Senator
Volker, do you yield?
SENATOR VOLKER: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: And I'll try
to make this brief.
Senator Volker, if a person speaks
to an elected union representative and it then
becomes a privileged conversation, if the
elected union representative in any way had
anything to do with the case, does this
legislation cure the fact that the privileged
communication could impede an investigation?
SENATOR VOLKER: Yes. The reason
this is so limited -- now, that issue came up
as to whether if the elected -- for instance,
if the elected union representative should be
a commanding officer. Obviously, if they're
directly involved in the case, they can't be a
privileged communication.
This assumes that the person who is
the elected union official is not at all
2191
involved in the case. If that person is, then
that person certainly could be called before a
grand jury or in fact, I suppose, could be
called before a criminal jury, for that
matter, and not just a grand jury, but could
become a witness in the case.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: One last
question.
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: Senator
Volker yields.
SENATOR PATERSON: Mr. President,
Senator Volker yields, and thank you.
SENATOR VOLKER: Sure. Yes.
SENATOR PATERSON: My concern is
that where attorneys are available, how does
the elected union representative help where
the attorney doesn't?
In other words, don't we already
have, as we have time-tested a provision for a
way in which an individual can have a
privileged communication without necessarily
using those who regularly don't enjoy that
2192
privilege?
SENATOR VOLKER: I think the
difference between -- now I understand that
probably in many areas a counsel is
immediately available to a law enforcement
officer.
That's not necessarily true, by the
way, in the city of New York, nor is it true,
for instance, in the city of Buffalo or in
other cases.
The attempt here is to deal with an
issue where people do not have counsel readily
available so that they can ask questions. In
fact, one of the questions they very often
will ask is "Who is a good counsel?" and, you
know, that sort of thing.
And if they make any communication
with the case -- apparently there have been
cases where law enforcement people have asked
elected union officials, for instance, to
recommend an attorney to them and may have
even discussed a little bit of the case with
them, and the union official, for instance
will say: "Well, how bad is it? Did you do
it?" In other words, ask them some questions.
2193
And they were called before a grand
jury and refused to testify because they said
that they were being -- this was being
discussed with them in confidence.
The problem, by the way, is that
there was a case where a captain who could
have been -- I guess could have been
considered to have some influence on the case,
was called before a grand jury. Didn't
testify, but then was forced to testify
because he could have been involved in the
case.
And one of the reasons this was
drafted the way it is is to avoid the
possibility that somebody might use somebody
involved in the case, a union official,
communicate with them in an attempt to keep
them from being able to testify in the case
itself.
And, you know, I would say -- I'm
saying on the floor and I'm saying the way the
bill is drafted, that just wouldn't happen
under this legislation.
ACTING PRESIDENT MEIER: Does any
other Senator wish to be heard on this bill?
2194
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 416 are
Senators DeFrancisco, Duane, Hassell-Thompson,
Hevesi, Krueger, Paterson, Santiago, A. Smith,
M. Smith, and Stavisky. Ayes, 51. Nays, 10.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
432, by Senator Volker, Senate Print 5426A, an
act to enact the Criminal Procedure Act Reform
Act of 2002.
SENATOR DOLLINGER: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
Volker, an explanation has been requested by
Senator Dollinger.
SENATOR VOLKER: Sure. Mr.
President, in the interests of brevity, let me
answer a few questions to start with about
2195
this bill.
Essentially, this is the same bill
that -- it was the same as the Criminal
Procedure Law Reform Bill of 2001 and the
Criminal Procedure Law Reform Bill of 2000.
There was a change in '99, if I'm not
mistaken, or after '99, because we enacted
several of the provisions that were in the
bill from the year before or the year before
that.
In other words, the Criminal
Procedure Law reforms were suggested when
Governor Pataki became governor in '94. In
'95, we began looking at this issue.
The bill is the same identical
bill, if I'm not mistaken. The only changes
would be matters of references to law since
2000. Because we did, as I say, make several
changes before that.
It makes a series of changes -- by
the way, the bill passed last year 50 to 11.
I just want you to know. In fact, I'll tell
you exactly who voted yes and no if you'd
like.
At any rate, it relates to changes
2196
in identification testimony. It relates to
granting prosecutors the right to pretrial -
to appeal pretrial orders, just as defense
can. And it also allows better access to
evidence, really for both sides, under the
15-day rule after arraignment and before
trial.
Although what's happened is that
courts have made rulings that have essentially
decided on very technical grounds that
identification evidence has to come only at
certain times.
Maybe the biggest issue is the
issue of identification of a person who is an
accused before the trial and identification of
the person at trial after the person has
changed his appearance dramatically. That's
happening more and more, where defense
attorneys very wisely, I think -- I mean, you
know, the guy who has a beard, for instance,
cuts his beard off, loses a lot of weight and
tries to look different and gets to the trial.
What this legislation would say, by
the way, one of the changes would be is if a
person is identified and properly identified
2197
prior to the trial, that it does not
necessarily mean that the identification has
to be thrown out if the person at the trial
cannot absolutely identify that person at the
trial because of the change in the person's
appearance and all the rest of the stuff.
If the identification was proper -
that is, if it was a proper lineup or
whatever -- then a case cannot be thrown out
simply because the person can't identify that
person at trial.
There's a series of other things
which I can get into: the right to be present
at jury selection. This legislation says -
and the only reason it says it is because a
court decided, after a whole case had been
decided and it was at the Court of Appeals,
that because the accused was not present at
the jury selection, even though he didn't
object, that the case could be thrown out.
What this says is that he's got to
object, either before the trial or at the
trial, to the jury selection or he will be
considered to have waived his right to be
present at the jury selection.
2198
So those are the basic principles
involved here. It is a comprehensive bill.
It is essentially the same bill as last year.
And that's the bill.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Mr.
President, I'll be very brief.
I appreciate Senator Volker's, as
always, detailed explanation of the bill. I
think he's right on the nose as to what this
bill does.
I objected, I believe, last year on
the basis of the identification testimony,
suggesting that to allow someone other than
the witness who made the initial
identification to make the subsequent
in-courtroom identification, to allow a third
party to in essence say, Well, there was a
time on such-and-such a date that a lineup was
performed and Dale Volker was the victim of
the crime, looked at the crowd, and he
identified Defendant Number 3, who it turns
out is the man in the dock who's being charged
with the crime. It seems to me that that goes
2199
against at least my fundamental sense of
fairness.
That if there is an identification,
a prior identification during the course of
the criminal investigation, especially, quite
frankly, with modern videotape and all the
other procedures that they use, there's
probably tons of evidence that they can
preserve that shows that the victim made the
identification.
And so I'm reluctant to allow the
third party to make that testimony, to give
that evidence, when there are clearly ways
presently that you could preserve the
recollection of the victim or the person who
makes the identification.
The second thing -- and I sort of
come to a new awareness of this -- is the
importance of the right to be present at
trial. And I agree with Senator Volker that
the Court of Appeals has gone a long way to
taking that statutory right and giving it a
very expansive reading.
But, Senator Volker, I've come to
the conclusion that that right is a good idea
2200
and one that should be respected in the
extreme because of the danger that the
defendant will be convinced that his lawyer
has sold him out during the criminal process
if he's not present.
As, Senator Volker, you well know,
there are sidebar conferences, there are
conferences with other lawyers, there are
conferences in the room. The one thing the
defendant needs to know is that when his
lawyer leaves his side and goes into a
conference with the other lawyers or with the
judge, that he isn't in there saying: Oh, by
the way, I know my guy is guilty and I know
you've got him and I'm going to give away the
case.
Even though he comes back out and
puts on his mantle of a defense lawyer, I
think the defendant needs to absolutely be
assured that his lawyer is following his
instructions and providing him with the best
possible defense and not in any way
compromising that defense.
Under those circumstances, there
is, at least to the best of my knowledge, only
2201
one way to ensure it, and that is to
rigorously require that the defendant be
present at every stage of the proceeding,
whether they be critical or even maybe not so
critical.
Because otherwise, the defendant
will be convinced, as quite frankly I have no
doubt many people in our institutions are now
completely convinced, that the only reason why
they're there is because their lawyer sold
them out at the time of the trial, not because
of their guilt or innocence.
And I would suggest that if we do
away with that rigorous application of the
right to be present throughout every part of
the trial, we will do harm to the confidence
in our criminal justice system, even on the
part of those who are accused, who in many
cases may be charged with minor offenses,
maybe major offenses, but they need to know
that their lawyer is constantly being their
advocate.
If we breach or break with the
tradition of allowing them to be present, I
think we will lead to a substantial suspicion
2202
that the lawyer was not doing his job.
So I talked about the
identification last year. I believe that to
make a modification, along the lines that this
bill suggests, to the right to be present at
trial would be ill-advised as well. So I will
continue to vote no, Mr. President.
Thank you.
ACTING PRESIDENT MEIER: Does any
other member wish to be heard on this bill?
Then the debate is closed.
Senator Volker.
SENATOR VOLKER: The -
ACTING PRESIDENT MEIER: Senator
Rath.
SENATOR RATH: Mr. President,
could we have the roll call opened up for the
purposes of Senator Smith needs to vote,
please.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 10. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
2203
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Malcolm Smith.
SENATOR MALCOLM SMITH: Thank you
very much, Mr. President. I'd like to request
unanimous consent to be recorded in the
negative on this particular calendar item.
ACTING PRESIDENT MEIER: Senator
Malcolm Smith will be recorded in the
negative.
The roll call is withdrawn.
Senator Volker.
SENATOR VOLKER: Let me quickly
respond.
And I happen to agree with what you
said. But I think that the difference is, I
think, in the results.
I'm not so sure that the confidence
in the criminal justice system isn't more
warped away, as I call it, by the fact that
people -- in a case, for instance, where a
person pays no attention to the fact that he
wasn't at the entire jury selection process,
makes no objection -- because remember, all
this bill says is that the person certainly
2204
can make an objection and he can make an
objection even at the trial, could conceivably
make an objection.
But if the trial is over with, he
makes no objection, it's pretty clear that
what happened is that the lawyer, after losing
all the way through, then said "By the way,
were you at the entire jury process?" And the
guy probably said, "No, I don't think so. I
missed part of it."
Then he goes -- because that's his
only issue, so he goes in and says "He wasn't
there at the whole process, and therefore the
case should be dismissed."
I think maybe you could argue that
it's more destructive to the criminal justice
system to do that than to do the limited kind
of situation we're doing here that they must
at least raise some sort of an objection
before the entire end of the case.
I agree with you on the fact that
the person should be allowed to be at all
stages of the process.
The second thing, as far as
identification, we're not saying that the
2205
person should not be there to make the
identification. The issue is that in certain
limited cases the person may be entirely
different. The person who made the
identification in fact may be dead. I mean -
or missing or whatever.
And one of the things that the
prosecution points out, sometimes the -
certain of the boys, as we call them, the mob,
has been plucking witnesses sometimes for
trials so that they can't identify you. I
mean, that's an unusual situation, I must
admit, although I had a situation where the
attempt was made to do that in a case that I
was involved in years ago.
And if they couldn't actually
identify that person at the trial, technically
speaking, even though that person has been
thoroughly identified and there's all sorts of
evidence, you can't bring that in. That
doesn't mean you're going to lose the case.
But it could be a critical piece of evidence.
All we're saying here is that if
there's plenty of evidence to show that the
person was properly identified, and if for
2206
some reason the person who did the
identification can't be there or is unable -
if he's unable to identify, as you and I know,
Richard, at the trial, you've got a problem.
Whether it's the final word or not.
Because what we're just saying here
is that you can't go until the trial is
already over and then say, "Well, you know,
we're going to throw this case out because the
guy didn't properly identify him." That's all
I think it says.
But I agree with you that you have
to be very careful in this area, because
clearly you've got to be concerned about the
person's rights.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Just one
point in response, Mr. President, if I can, to
Senator Volker. And I agree with much of what
he says.
I think, Senator Volker, you make a
very good point when you talk about, you know,
the sort of catch-you kind of -- gotcha kind
of thing when the defendant shows up at the
2207
end of trial and says: "Oh, by the way, I was
never told that I could object if my lawyer
walked into the conference room without me."
And I would think, Senator Volker,
that -- and the difficulty with this is that
the defendant may not know of his right to
object and may, because of his relationship
with his lawyer, for whom he puts in his
faith, that he will advise him when to object
or not -- I know this for a fact, that at
least in one case that I was partially
involved in a long time ago -- I wasn't even a
prosecutor or a defendant, I represented a
witness.
And the lawyer for the defendant
made it a practice that every time he went to
the bench, every time he'd turn around, he
said "I want on the record the fact that I'm
advising the defendant he has a right to
object to my going up here. Do you object or
don't you?"
And I'm afraid that the defendant
may rely on his lawyer for guidance as to when
he should object. And so you have that
dilemma again of our -- I agree with you, you
2208
don't want him to come back at the end of the
trial and say: "Gee, I wasn't told." But at
the same time, because he puts his faith in
his lawyer, he may not know that he does have
the right to object.
So I think, Senator Volker, these
are very tough issues, they're very
ground-level, in-the-courtroom kind of gut
issues. And I think the better rule -- and I
frankly think the Court of Appeals has decided
this, it's come up with basically a blanket
rule: You have to be there all the time, and
we're going to continue to toss out these
cases where the defendant is deprived of the
right to participate in every phase of the
trial.
Senator Volker, I think you and I
might be able to agree on how we would deal
with this with notice and other things. I
don't think this bill gets there, and I would
still recommend a no vote.
ACTING PRESIDENT: Read the last
section.
THE SECRETARY: Section 10. This
act shall take effect immediately.
2209
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: The
Secretary will announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 432 are
Senators Andrews, Connor, Dollinger, Duane,
Hassell-Thompson, L. Krueger, Montgomery,
Paterson, Santiago, A. Smith, M. Smith, and
Stavisky. Ayes, 49. Nays, 12.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Rath.
SENATOR RATH: Mr. President, may
we please return to reports of standing
committees. There are reports at the desk.
ACTING PRESIDENT MEIER: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator Leibell,
from the Committee on Civil Service and
Pensions, reports:
Senate Print 1537A, by Senator
Maltese, an act to amend the Retirement and
2210
Social Security Law;
3966A, by Senator Saland, an act
authorizing;
5599A, by Senator Velella, an act
to amend the Administrative Code of the City
of New York;
6446, by Senator Bonacic, an act to
authorize;
And Senate Print 6784, by Senator
Marchi, an act to amend the Retirement and
Social Security Law.
Senator Fuschillo, from the
Committee on Consumer Protection, reports:
Senate Print 481, by Senator Alesi,
an act to amend the General Business Law;
491, by Senator Marcellino, an act
to amend the General Business Law;
1073A, by Senator Fuschillo, an act
to amend the General Business Law;
3141A, by Senator Morahan, an act
to amend the General Business Law;
4995A, by Senator Fuschillo, an act
to amend the General Business Law;
5618A, by Senator LaValle, an act
to amend the General Business Law;
2211
And 6692, by Senator LaValle, an
act to amend the General Business Law.
Senator Velella, from the Committee
on Labor, reports:
Senate Print 198, by Senator
Morahan, an act to amend the Labor Law;
4298, by Senator Spano, an act to
amend the Labor Law;
5706, by Senator Velella, an act to
amend the Labor Law;
And 6476, by Senator Velella, an
act to amend the Labor Law.
Senator Rath, from the Committee on
Local Government, reports:
Senate Print 1879, by Senator
LaValle, an act to amend the General Municipal
Law;
1880, by Senator LaValle, an act to
amend the General Municipal Law;
2275, by Senator Bonacic, an act to
amend the County Law;
3157, by Senator Leibell, an act in
relation to allowing;
3403, by Senator Larkin, an act to
amend the General Municipal Law;
2212
3559, by Senator Trunzo, an act to
amend the Real Property Tax Law;
3636, by Senator LaValle, an act to
amend the Real Property Tax Law;
3698, by Senator Maziarz, an act to
amend the County Law;
4175, by Senator Meier, an act to
amend the General Municipal Law;
4212, by Senator Kuhl, an act to
amend the Town Law;
4481, by Senator Seward, an act to
amend the County Law;
4517B, by Senator McGee, an act
authorizing;
5372, by Senator Rath, an act to
amend the General Municipal Law;
5540A, by Senator Maziarz, an act
to amend the Real Property Tax Law;
5699, by Senator Bonacic, an act to
amend the Real Property Tax Law;
6136, by Senator Wright, an act in
relation;
6144, by Senator DeFrancisco, an
act to amend Chapter 492 of the Laws of 2000;
6159, by Senator Volker, an act to
2213
amend the Local Finance Law;
6215, by Senator Volker, an act to
amend the Local Finance Law;
6237, by Senator Kuhl, an act to
amend the Local Finance Law;
6238, by Senator McGee, an act to
amend the County Law;
6297, by Senator McGee, an act to
amend the General Municipal Law;
6396A, by Senator Meier, an act to
authorize;
6435, by Senator Hoffmann, an act
to amend the Real Property Tax Law;
6467, by Senator Libous, an act to
amend the Town Law;
6578, by Senator Larkin, an act in
regulation;
6580, by Senator Larkin, an act to
amend;
6650, by Senator LaValle, an act in
relation;
6669, by Senator Rath, an act to
amend the Real Property Tax Law;
6728, by Senator Rath, an act to
amend the General Municipal Law;
2214
6729, by Senator Rath, an act to
amend the Real Property Tax Law;
6748, by Senator Saland, an act
creating;
And 6774, by Senator Nozzolio, an
act to amend the Real Property Tax Law.
Senator Volker, from the Committee
on Codes, reports:
Senate Print 103, by Senator
Marcellino, an act to amend the Criminal
Procedure Law;
135, by Senator Volker, an act to
amend the Civil Practice Law and Rules;
200A, by Senator Volker, an act to
amend the Penal Law;
208, by Senator Volker, an act to
amend the Penal Law;
436, by Senator DeFrancisco, an act
to amend the Criminal Procedure Law;
851, by Senator Balboni, an act to
amend the Penal Law;
862, by Senator Balboni, an act to
amend the Civil Practice Law and Rules;
1342, by Senator Saland, an act to
amend the Criminal Procedure Law;
2215
2305, by Senator Volker, an act to
amend the Penal Law;
2772B, by Senator Bonacic, an act
to amend the Penal Law;
3009, by Senator McGee, an act to
amend the Criminal Procedure Law;
5478, by Senator Padavan, an act to
amend the Criminal Procedure Law;
5850, by Senator Balboni, an act to
amend the Penal Law;
6131, by Senator Volker, an act to
amend the Criminal Procedure Law;
6437, by Senator Balboni, an act to
amend the Penal Law;
6454, by Senator Fuschillo, an act
to amend the Penal Law;
6455, by Senator Fuschillo, an act
to amend the Penal Law;
And 6465, by Senator Maziarz, an
act to amend the Criminal Procedure Law.
Senator Trunzo, from the Committee
on Transportation, reports:
Senate Print 487, by Senator
Marcellino, an act to amend the Vehicle and
Traffic Law;
2216
1636, by Senator Padavan, an act to
amend the Vehicle and Traffic Law;
2723, by Senator Meier, an act to
amend the Vehicle and Traffic Law;
3796A, by Senator Johnson, an act
to amend the Vehicle and Traffic Law;
4518, by Senator McGee, an act to
amend the Vehicle and Traffic Law;
4597, by Senator Trunzo, an act to
amend the Vehicle and Traffic Law;
And 4602, by Senator Trunzo, an act
to amend the Vehicle and Traffic Law.
Senator Alesi, from the Committee
on Commerce, Economic Development and Small
Business, reports:
Senate Print 536, by Senator
Hoffmann, an act to amend the Economic
Development Law;
1503, by Senator Alesi, an act to
amend the Economic Development Law;
1963B, by Senator Kuhl, an act to
amend the Alcoholic Beverage Control Law;
3404, by Senator Larkin, an act to
amend the Alcoholic Beverage Control Law;
4682B, by Senator Larkin, an act to
2217
amend the Economic Development Law;
5108, by Senator Kuhl, an act to
amend the Alcoholic Beverage Control Law;
6017, by Senator Alesi, an act to
amend the Economic Development Law;
6018, by Senator Alesi, an act to
amend the Economic Development Law;
6146B, by Senator Larkin, an act to
amend the Economic Development Law;
And 6413, by Senator Alesi, an act
to amend the Economic Development Law.
Senator Marchi, from the Committee
on Corporations, Authorities and Commissions,
reports:
Senate Print 5297, by Senator
Volker, an act to amend the Public Authorities
Law;
3104, by Senator Kuhl, an act to
amend the Public Authorities Law;
5715A, by Senator Johnson, an act
to amend Chapter 672 of the Laws of 1993;
And 6091, by Senator Stafford, an
act to amend the Public Authorities Law.
Senator Kuhl, from the Committee on
Education, reports:
2218
Senate Print 6354, by Senator Kuhl,
an act to amend the Education Law;
6478, by Senator Espada, an act to
amend the Education Law;
6851, by Senator Kuhl, an act to
amend the Education Law;
And Senate Print 6906, by Senator
Kuhl, an act to amend the Education Law.
Senator Saland, from the Committee
on Children and Families, reports:
Senate Print 390, by Senator
Skelos, an act to amend the Social Services
Law;
404, by Senator Skelos, an act to
amend the Social Services Law;
3977, by Senator Saland, an act to
amend the Family Court Act;
4595, by Senator Saland, an act to
amend the Family Court Act;
4902, by Senator Saland, an act to
amend the Domestic Relations Law;
5199, by Senator Saland, an act to
amend the Family Court Act;
5484, by Senator Saland, an act to
amend the Family Court Act;
2219
And Senate Print 6483, by Senator
Spano, an act to amend Chapter 555 of the Laws
of 2000.
All bills ordered direct to third
reading.
ACTING PRESIDENT MEIER: Without
objection, all bills directly to third
reading.
Senator Rath.
SENATOR RATH: Is there any
housekeeping, Mr. President?
ACTING PRESIDENT MEIER: We have
a motion and we have some vote changes,
Senator.
Senator McGee.
SENATOR McGEE: Thank you, Mr.
President.
On page number 27 I now offer the
following amendments to Calendar Number 495,
Senate Print Number 6640, and ask that said
bill retain its place on Third Reading
Calendar, on behalf of Senator LaValle.
ACTING PRESIDENT MEIER: The
amendments are received, and the bill will
retain its place on the Third Reading
2220
Calendar.
SENATOR McGEE: Thank you, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Rath.
SENATOR RATH: Are there any
substitutions, Mr. President?
ACTING PRESIDENT MEIER: Yes, we
have some substitutions.
The Secretary will read the
substitutions.
THE SECRETARY: On page 15,
Senator Alesi moves to discharge, from the
Committee on Local Government, Assembly Bill
Number 7464 and substitute it for the
identical Senate Bill Number 477, Third
Reading Calendar 306.
On page 16, Senator Morahan moves
to discharge, from the Committee on Veterans
and Military Affairs, Assembly Bill Number
618B and substitute it for the identical
Senate Bill Number 197B, Third Reading
Calendar 332.
On page 20, Senator Rath moves to
discharge, from the Committee on
2221
Transportation, Assembly Bill Number 9490 and
substitute it for the identical Senate Bill
Number 5837, Third Reading Calendar 377.
On page 24, Senator Skelos moves to
discharge, from the Committee on
Investigations, Taxation and Government
Operations, Assembly Bill Number 1539 and
substitute it for the identical Senate Bill
Number 1246, Third Reading Calendar 445.
On page 30, Senator Morahan moves
to discharge, from the Committee on Finance,
Assembly Bill Number 10092A and substitute it
for the identical Senate Bill Number 6375A,
Third Reading Calendar 529.
And on page 31, Senator Hoffmann
moves to discharge, from the Committee on
Agriculture, Assembly Bill Number 3518 and
substitute it for the identical Senate Bill
Number 3555, Third Reading Calendar 539.
ACTING PRESIDENT MEIER:
Substitutions ordered.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. I would request unanimous
consent to be recorded in the negative on
2222
Calendar 416, Senate 368, and Calendar 432,
Senate 5426A.
ACTING PRESIDENT MEIER: Without
objection, Senator Schneiderman will be
recorded in the negative with regard to
Calendars 416 and 432.
Senator Andrews.
SENATOR ANDREWS: Yes, Mr.
President. I request unanimous consent to be
recorded in the negative on Calendar Number
416, Bill 368; Calendar 424, Bill 3583;
Calendar 483, Bill 1110.
ACTING PRESIDENT MEIER: Without
objection, Senator Andrews will be recorded in
the negative with regard to Calendars 416,
424, and 483.
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President, I would like unanimous consent to
be recorded in the negative on Calendar 416.
ACTING PRESIDENT MEIER: Without
objection, Senator Montgomery will be recorded
in the negative on Calendar Number 416.
Just to finish the order of
business:
2223
Reports of select committees.
Communications and reports from
state officers.
Senator Rath.
SENATOR RATH: Mr. President, I
hand up the following notice of my intent to
amend the Senate Rules and ask that it be
filed in the Journal.
ACTING PRESIDENT MEIER: Notice
is received, and it will be filed in the
Senate Journal.
Senator Rath.
SENATOR RATH: There being no
further business, I move that we adjourn until
Wednesday, April 17th, at 11:00 a.m.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Wednesday, April 17th, at 11:00 a.m.
(Whereupon, at 5:20 p.m., the
Senate adjourned.)