Regular Session - April 24, 2002
2442
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 24, 2002
11:07 a.m.
REGULAR SESSION
SENATOR PATRICIA K. McGEE, Acting President
STEVEN M. BOGGESS, Secretary
2443
P R O C E E D I N G S
ACTING PRESIDENT McGEE: The
Senate will come to order.
Please all stand and join me in the
Pledge of Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT McGEE: In the
absence of clergy, will you all join me in a
moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT McGEE: Reading
of the Journal.
THE SECRETARY: In Senate,
Tuesday, April 23, the Senate met pursuant to
adjournment. The Journal of Monday, April 22,
was read and approved. On motion, Senate
adjourned.
ACTING PRESIDENT McGEE: Hearing
no objection, the Journal stands approved as
read.
Order of business. Presentation of
petitions.
Messages from the Assembly.
2444
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator LaValle,
from the Committee on Higher Education,
reports the following bill direct to third
reading:
Senate Print 1563, by Senator
Trunzo, an act to amend the Education Law.
ACTING PRESIDENT McGEE: Without
objection, the bill is ordered directly to
third reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President.
On behalf of Senator Stafford, on
page number 37 I offer the following
amendments to Calendar Number 667, Print
Number 7163, and ask that said bill retain its
place on the Third Reading Calendar.
ACTING PRESIDENT McGEE: The
2445
amendments are received and adopted, and the
bill will retain its place on Third Reading
Calendar.
Senator Marcellino.
SENATOR MARCELLINO: Madam
President, on behalf of Senator Morahan, on
page number 46 I offer the following
amendments to Calendar Number 744, Senate
Print Number 4737A, and ask that said bill
retain its place on the Third Reading
Calendar.
ACTING PRESIDENT McGEE: The
amendments are received and adopted, and the
bill will retain its place on Third Reading
Calendar.
Senator Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President.
On behalf of Senator Johnson, on
page number 47 I offer the following
amendments to Calendar Number 757, Senate
Print Number 3346A, and ask that said bill
retain its place on the Third Reading
Calendar.
ACTING PRESIDENT McGEE: The
2446
amendments are received and adopted, and the
bill will retain its place on Third Reading
Calendar.
SENATOR MARCELLINO: Thank you.
ACTING PRESIDENT McGEE: Senator
Kuhl.
SENATOR KUHL: Yes, Madam
President. I move to recommit Senate Print
Number 5634, Calendar 709 on the order of
Third Reading, to the Committee on Local
Government, with instructions to said
committee to strike the enacting clause.
ACTING PRESIDENT McGEE: So
ordered.
SENATOR KUHL: Thank you.
ACTING PRESIDENT McGEE: Thank
you, Senator Kuhl.
Senator Skelos.
SENATOR SKELOS: Madam President,
are there any substitutions at the desk?
ACTING PRESIDENT McGEE: Yes,
there are.
SENATOR SKELOS: I ask that they
be made at this time.
ACTING PRESIDENT McGEE: The
2447
Secretary will read.
THE SECRETARY: On page 37,
Senator Johnson moves to discharge, from the
Committee on Health, Assembly Bill Number 9749
and substitute it for the identical Senate
Bill Number 6327, Third Reading Calendar 663.
On page 37, Senator Skelos moves to
discharge, from the Committee on Consumer
Protection, Assembly Bill Number 9428 and
substitute it for the identical Senate Bill
Number 5783, Third Reading Calendar 669.
On page 38, Senator Sampson moves
to discharge, from the Committee on Cities,
Assembly Bill Number 3672B and substitute it
for the identical Senate Bill Number 1720A,
Third Reading Calendar 674.
On page 39, Senator Nozzolio moves
to discharge, from the Committee on Cities,
Assembly Bill Number 6038 and substitute it
for the identical Senate Bill Number 6772,
Third Reading Calendar 677.
On page 40, Senator Lack moves to
discharge, from the Committee on Judiciary,
Assembly Bill Number 7944A and substitute it
for the identical Senate Bill Number 1389B,
2448
Third Reading Calendar 687.
On page 41, Senator Lack moves to
discharge, from the Committee on Judiciary,
Assembly Bill Number 8794A and substitute it
for the identical Senate Bill Number 5513A,
Third Reading Calendar 692.
On page 41, Senator Velella moves
to discharge, from the Committee on Judiciary,
Assembly Bill Number 7297 and substitute it
for the identical Senate Bill Number 6395,
Third Reading Calendar 693.
On page 41, Senator Velella moves
to discharge, from the Committee on Local
Government, Assembly Bill Number 8455 and
substitute it for the identical Senate Bill
Number 1627, Third Reading Calendar 697.
On page 41, Senator Fuschillo moves
to discharge, from the Committee on Local
Government, Assembly Bill Number 4955 and
substitute it for the identical Senate Bill
Number 2586, Third Reading Calendar 699.
On page 41, Senator Rath moves to
discharge, from the Committee on Local
Government, Assembly Bill Number 1768A and
substitute it for the identical Senate Bill
2449
Number 2628A, Third Reading Calendar 700.
On page 42, Senator Hannon moves to
discharge, from the Committee on Local
Government, Assembly Bill Number 9426 and
substitute it for the identical Senate Bill
Number 5817, Third Reading Calendar 711.
On page 44, Senator Farley moves to
discharge, from the Committee on Local
Government, Assembly Bill Number 10383 and
substitute it for the identical Senate Bill
Number 6724, Third Reading Calendar 722.
On page 44, Senator Velella moves
to discharge, from the Committee on Aging,
Assembly Bill Number 6673B and substitute it
for the identical Senate Bill Number 6360,
Third Reading Calendar 724.
On page 44, Senator Larkin moves to
discharge, from the Committee on
Transportation, Assembly Bill Number 5510C and
substitute it for the identical Senate Bill
Number 3830A, Third Reading Calendar 729.
And on page 47, Senator Balboni
moves to discharge, from the Committee on
Social Services, Assembly Bill Number 11041
and substitute it for the identical Senate
2450
Bill Number 7199, Third Reading Calendar 760.
ACTING PRESIDENT McGEE:
Substitutions ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution, 5121, at the
desk, by Senator DeFrancisco. Could we have
it read in its entirety and move for its
immediate adoption.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
DeFrancisco, Legislative Resolution 5121,
congratulating the Boys Basketball Team of
Henninger High School and Coach Joe Mazella on
their outstanding season and capture of the
Boys Class A New York State Basketball
Championship.
"WHEREAS, It is this Legislative
Body's practice to commend and pay tribute to
those who, by achieving outstanding success in
athletic competition, have inspired others and
brought pride to their community; and
"WHEREAS, It is acknowledged that
excellence and success in competitive sports
2451
can be achieved only through strenuous
practice, team play, and team spirit, nurtured
by dedicated coaching; and
"WHEREAS, It is further
acknowledged that athletic competition
enhances the moral and physical development of
the young people of this state, preparing them
for the future by instilling in them the value
of teamwork, encouraging a standard of healthy
living, imparting a desire for success, and
developing a sense of fair play and
competition; and
"WHEREAS, Through its exceptional
teamwork and talents, Henninger High School,
located in Syracuse, New York, captured the
New York State Public High School Athletic
Association Class A Title on March 17, 2002,
in Glens Falls, New York; and
"WHEREAS, The capture of the state
crown, the first for Henninger's Black Knights
and the first for any Class A team from
Section 3, concluded an outstanding 21-1
season; and
"WHEREAS, Henninger senior Chris
Turner, having exhibited superior ability
2452
throughout the state tournament, was named
most valuable player in the tournament,
scoring 38 points and pulling down 19
rebounds, to lead his team to victory over
McQuaid Jesuit High of Rochester by a score of
71 to 56; and
"WHEREAS, The athletic talent and
superb spirit displayed by this team are due
in great part to the efforts of Coach Joe
Mazella, with the able assistance of his
support staff; and
"WHEREAS, This exceptional team
roster, composed of the following gifted young
men -- Jerice Crouch, Chase Frazer, Jason
Nelson, Markese Brown, Sedric Hawkins, Roger
Robinson, Quincy Fulmer, Erris Robinson,
Lenell Graham, Chris Turner, Justin Wright,
Terranace Evans, Andray Blatche, and Dan
Rogers -- have proven themselves to be an
outstanding combination of athletic prowess
and discipline, reflecting favorably upon
their school, their parents, their friends,
and their community; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to
2453
congratulate the Henninger High School Boys
Basketball Team and Coach Joe Mazella on their
successful season, overall team record, and
capture of the New York State Boys Class A
Championship; and be it further
"RESOLVED, That copies of this
resolution, suitably engrossed, be transmitted
to the Henninger High School Boys Basketball
Team and to Coach Joe Mazella."
ACTING PRESIDENT McGEE: Senator
DeFrancisco.
SENATOR DeFRANCISCO: I'm very
proud to introduce this Henninger High School
boys basketball team. They're in the gallery
today.
And, you know, we keep bringing
champions from Central New York to this august
body because it's a great place to live and a
great place to participate in sporting
activities.
This team is very, very special.
It's the first Section 3 team to ever win the
state championship, and that is absolutely
phenomenal for this team to be here today and
to have accomplished so much, a 21 and 1
2454
record.
And the statistics of the final
game: Chris Turner, 38 points and 19
rebounds. I mean, that's not too bad. I
think my best game was about 10 points and one
rebound, and that was when the ball fell in my
hands because it bounced off somebody's head,
I think.
But that's an incredible
accomplishment. And we're very, very proud of
all of you and the coaching staff.
Congratulations. And I'm sure this body will
unanimously congratulate you by passing this
resolution.
ACTING PRESIDENT McGEE: All in
favor of adopting this resolution signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
2455
there's a privileged resolution, 5122, by
Senator DeFrancisco. Could we have the title
read and move for its immediate adoption.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
DeFrancisco, Legislative Resolution Number
5122, honoring Joseph Mazella upon the
occasion of his designation as All-Central
New York Basketball Coach of the Year.
ACTING PRESIDENT McGEE: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Yes, in
order for a team to be great, I think you
definitely have to have a great coach and a
great staff who are helping those students and
athletes through their year and years.
Joe Mazella has been named the
2001-2002 coach of the year by a panel of
New York State Section 3 coaches and
sportswriters. So this is a very prestigious
award when you consider it's sportswriters as
well, who normally are critical of coaches, I
think. Sometimes that happens all too often.
But these are the sportswriters and fellow
2456
coaches who have named him Coach of the Year,
and it's pretty obvious why.
The team that we just honored won
that championship out of a field of 169
Class A teams. Joe Mazella's record over his
15 years of coaching -- listen to this -- 245
wins and 78 losses. That's over 75 percent.
I think that's even better than Boeheim, if
I'm not mistaken, if I got my numbers
correctly.
Nine league champions, five
sectional and regional titles, five trips to
the Final Four, twice state runner-up, and
this year state champions.
Joe Mazella, congratulations. And
we will definitely unanimously pass this
resolution honoring you and, in your name, the
rest of the coaches and assistants that worked
with you to mold these fine teams over the
many years.
ACTING PRESIDENT McGEE: All in
favor of adopting the resolution signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
2457
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
On behalf of the New York State
Senate, may I extend my congratulations to the
Henninger High basketball team, along with
Coach Joe Mazella. And we say thank you very
much for your sportsmanship and your work.
(Applause.)
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution, 5123, at the
desk, by Senator DeFrancisco. Could we have
it read in its entirety and move for its
immediate adoption.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
DeFrancisco, Legislative Resolution Number
5123, congratulating the Boys Basketball Team
of Faith Heritage School and Coach Dan Sorber
on their outstanding season and capture of the
Boys Class D New York State Basketball
2458
Championship.
"WHEREAS, It is this Legislative
Body's practice to commend and pay tribute to
those who, by achieving outstanding success in
athletic competition, have inspired others and
brought pride to their community; and
"WHEREAS, It is acknowledged that
excellence and success in competitive sports
can be achieved only through strenuous
practice, team play, and team spirit, nurtured
by dedicated coaching; and
"WHEREAS, It is further
acknowledged that athletic competition
enhances the moral and physical development of
the young people of this state, preparing them
for the future by instilling in them the value
of teamwork, encouraging a standard of healthy
living, imparting a desire for success, and
developing a sense of fair play and
competition; and
"WHEREAS, Through its exceptional
teamwork and talents, Faith Heritage School,
located in Syracuse, New York, captured the
New York State Public High School Athletic
Association Class D title on March 16, 2002,
2459
in Glens Falls, New York; and
"WHEREAS, The capture of the state
crown was the first for the Faith Heritage
Saints, which have been playing the sport for
25 seasons, and concluding an outstanding 27-0
record, the only state champion to finish the
season unbeaten; and
"WHEREAS, The Saints senior Ryan
Nellenback, having exhibited superior ability
throughout the state tournament, was named
Most Valuable Class D Player in the
tournament, scoring 10 points, pulling down
14 rebounds, and blocking five shots, to lead
his team to victory over Harrisville High
School by a score of 58 to 48; and
"WHEREAS, The athletic talent and
superb spirit displayed by this team is due in
great part to the efforts of first-year
varsity coach Dan Sorber, and the loyal and
active support of the Faith Heritage student
body and community; and
"WHEREAS, This exceptional team
roster is composed of the following gifted
young men: Jason Awad, David Booher, Joel
Canino, Tim Halladay, Ryan Nellenback, Vivek
2460
Thiagarajan, B.J. Dwyer, Paul Finch, Andrew
Honess, Dan Loucy, Jacob Brunner, and Cooper
Stroman. They have proven themselves to be an
outstanding combination of athletic prowess
and discipline, reflecting favorably upon
their school, their parents, their friends,
and their community; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to
congratulate the Faith Heritage School Boys
Basketball Team and Coach Dan Sorber on their
successful season, overall team record, and
capture of the New York State Boys Class D
Championship; and be it further
"RESOLVED, That copies of this
resolution, suitably engrossed, be transmitted
to the Faith Heritage School Boys Basketball
Team and to Coach Dan Sorber."
ACTING PRESIDENT McGEE: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Once again,
as I said before, Central New York is the
region of the state of champions. And having
in one year the Class A and the Class D
champions from the same community is just
2461
unprecedented.
And I'm looking at this number, 27
and 0 record. And I also see that Coach
Sorber is in his first year, so I guess his
win-loss record is 100 percent. I want to see
if he could keep that up for 15 years and have
this team not be defeated over that period of
time.
But seriously, it's an incredible
accomplishment. A perfect record in any
sport, no matter what division of play it is,
is an incredible accomplishment, and I'm sure
that all of you realize that.
And the thing I forgot to mention
when I spoke to Henninger, and it applies to
all of you, is that having played college
baseball at Syracuse University and baseball
since I was a kid, my closest friends and your
closest friends will be those who share these
experiences with you, even to when you're an
old man like I am.
And it's a great accomplishment,
it's something that can never be taken away
from you, and it's something you'll be sharing
with those friends forever.
2462
So congratulations, Faith Heritage,
and best of luck in all your future endeavors.
ACTING PRESIDENT McGEE: Senator
Hoffmann.
SENATOR HOFFMANN: Thank you,
Madam President.
Senator DeFrancisco has done a
wonderful job extolling the virtues of student
athletes, and there's little that I can add.
But all of us who represent the Syracuse area
are thrilled and elated and enormously proud
of your accomplishments. You bring great good
favor to all of us.
And we hope that as you leave here
you'll carry with you the lasting memory that
student athletes like yourselves can one day
sit in the chamber here like Senator
DeFrancisco, who was himself an outstanding
athlete.
And we hope that you'll also
remember the important lesson that you're
learning now, that sometimes it's not whether
you score but whether you make the right pass.
You don't always get to carry the ball;
sometimes someone else does. But in the end,
2463
team spirit will be the key to success
throughout your lives.
Congratulations to everyone who is
here today. We're very, very proud of you.
ACTING PRESIDENT McGEE: All in
favor of adopting the resolution signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
On behalf of the New York State
Senate, may I extend, along with Senator
DeFrancisco and Senator Hoffmann, our
congratulations to the boys basketball team of
Faith Heritage School, and Coach Dan Sorber,
on their outstanding season and capture of the
Boys Class D New York State Basketball
Championship.
Please stand up.
(Applause.)
ACTING PRESIDENT McGEE: Senator
Skelos.
2464
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial
calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
71, by Senator Skelos, Senate Print 85, an act
to amend the Civil Rights Law, in relation to
requiring the destruction of records.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect in 60 days.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
235, by Senator Skelos, Senate Print 401, an
act to amend the General -
SENATOR PATERSON: Lay it aside.
2465
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
377, by the Assembly Committee on Rules,
Assembly Print Number 9490, an act to amend
the Vehicle and Traffic Law, in relation to
metal coil endorsements.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
442, by Senator Skelos, Senate Print 384, an
act to amend the Executive Law, in relation to
permitting.
ACTING PRESIDENT McGEE: Read the
last section.
SENATOR PATERSON: Lay it aside,
please.
2466
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
471, by Senator Meier, Senate Print 6154, an
act to amend the Labor Law, in relation to
participation in shared work programs.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
579, by Senator Libous, Senate Print 6467, an
act to amend the Town Law and the Public
Officers Law, in relation to providing.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 3. This
2467
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
584, by Senator Rath -
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
599, by Senator Marcellino, Senate Print 103,
an act to amend the Criminal Procedure Law, in
relation to anonymous juries.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect on the 30th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
2468
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
602, by Senator Volker, Senate Print -
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
607, by Senator Volker, Senate Print 2305, an
act to amend the Penal Law, in relation to
assaults against transit employees.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take -
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
609, by Senator McGee, Senate Print -
SENATOR PATERSON: Lay it aside,
2469
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
612, by the Assembly Committee on Rules,
Assembly Print Number 9404A, an act to amend
the Criminal Procedure Law, in relation to
electronic court appearance in Erie County.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Skelos, that concludes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Can we go to the
controversial calendar.
ACTING PRESIDENT McGEE: The
2470
Secretary will read.
THE SECRETARY: Calendar Number
235, by Senator Skelos, Senate Print 401, an
act to amend the General Obligations Law, in
relation to exoneration.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Skelos, an explanation has been requested.
SENATOR SKELOS: Thank you, Madam
President.
This bill amends the General
Obligations Law by bringing back the
assumption of risk doctrine in certain civil
lawsuits.
In a personal injury action, if a
defendant shows that the injuries sustained by
the plaintiff arose during the commission or
attempted commission by the plaintiff of
certain crimes -- which include murder,
robbery, burglary, arson, forcible rape,
sodomy, or kidnapping in the first degree -
and that the actions of the defendant were
justified pursuant to the Penal Law, then the
plaintiff is deemed to assume all risks of
injury coming from the encounter with the
2471
victim.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, if Senator Skelos would yield for a
question.
ACTING PRESIDENT McGEE: Senator
Skelos, will you yield for some questions?
SENATOR SKELOS: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR PATERSON: Senator,
wouldn't you agree to the fact that in most of
these violent felony cases that the courts
have -- and I would say in the overwhelming
majority of these cases that the courts have
thrown these cases out and that, additionally,
we do have a pretty strong common-law wrongful
plaintiff statute in the state that really
should cover this?
I agree with everything you've said
in this bill. I guess what I'm really asking
you is don't we already have this available to
us right now.
SENATOR SKELOS: The individual
2472
can still be sued. The question is if there's
a complete defense, if the plaintiff has
assumed the risk by committing certain
enumerated crimes.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, what I'm a little afraid of, if
Senator Skelos would continue to yield -
ACTING PRESIDENT McGEE: Senator
Skelos, do you continue to yield?
SENATOR SKELOS: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR PATERSON: -- is a
blanket exception.
I'm sure that if we look long
enough, and I think we've gone through these
cases, there have been a couple of times when
the result of cases that occur in some of the
civil suits, particularly where the plaintiff
was actually the violent predator in the
situation and the defendant is the one that
defended themselves, and because of our
comparative negligence status for some reason
2473
there was a 10 percent award against the
defendant, who -- and when those types of
things happen, you have to wonder how it could
happen, with the fine judges that we put on
our benches, and assuming the reasonable
citizens that serve as jurors.
So I can understand why Senator
Skelos wants to make sure that it's a hundred
percent. But what I would just ask Senator
Skelos to reflect on here, for all of us who
are listening today, is that type of blanket
exception could also close the door for a few
instances where perhaps the plaintiff was at
fault -- maybe there was some wrongdoing on
the defendant's part, but the reaction of the
plaintiff was excessive.
There are few of those situations
as well, I'll concede. But I just wonder that
in our country right now, celebrating the way
we conduct ourselves in our judicial system,
if it's not better to just let the courts
handle it.
SENATOR SKELOS: If you wish for
me to reflect upon it, I shall reflect upon it
right now and say that I am most supportive of
2474
the bill, although you have certainly stated a
great op-ed piece for the newspapers.
SENATOR PATERSON: Thank you.
Well, Madam President, on the bill.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: I wanted to
thank Senator Skelos for his reflections.
Right after I vote against this bill, I'll get
to work on the article.
ACTING PRESIDENT McGEE: Thank
you.
Any other Senator wishing to speak
on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 235 are
2475
Senators Connor, Dollinger, and Paterson.
Also Senators Sampson and Schneiderman.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Also Senator
Stavisky.
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: In relation to
Calendar Number 235, those recorded in the
negative are Senators Connor, Dollinger,
Paterson, Sampson, Schneiderman, and Stavisky.
Ayes, 48. Nays, 6.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
442, by Senator Skelos, Senate Print 384, an
act to amend the Executive Law, in relation to
permitting parents of minors.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Skelos, an explanation has been requested.
SENATOR SKELOS: This legislation
would require that a parent or guardian of a
minor who is a victim in a sexual harassment
2476
incident should be informed of any proceedings
and be allowed to attend.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, if Senator Skelos would yield for a
question.
ACTING PRESIDENT McGEE: Senator
Skelos, will you yield for a question?
SENATOR SKELOS: Yes.
SENATOR PATERSON: I voted for
this legislation last year, Senator, and I
would assume I'm going to vote for it again.
But I am just a little troubled at
the fact that quite often in many of these
child sexual abuse situations the abuser is
someone very well known to the child. It in
some cases would be the parent.
But we're going to exculp that from
this conversation for a moment, because what I
want to talk about are situations where the
child might be uncomfortable talking in front
of the parent. It could be a relative of the
parent and of the child; it could be a friend
of the parent.
2477
And I just wanted to, since the
Senator is on a roll, I just wanted him to
again -
SENATOR SKELOS: Reflect?
SENATOR PATERSON: -- reflect on
just the possible discomfort to the child of
having the parent sitting there while the
proceeding is taking place.
ACTING PRESIDENT McGEE: Senator
Skelos, will you reflect?
SENATOR SKELOS: The answer is I
believe no, it could be either parent, it
could be one parent, it could be a legal
guardian.
And I just believe when there's a
sexual harassment of a minor basically under
the age of 18 that a parent should be informed
if in fact there's an informal proceeding that
may occur, if the child is asked to sign a
statement saying it occurred, it didn't occur,
I'm not going to pursue it any further.
Whatever it may be, I think it's appropriate
for a parent to be part of that proceeding.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
2478
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect in 30 days.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
584, by Senator Rath, Senate Print 6728, an
act to amend the General Municipal Law, in
relation to the procurement of transit
vehicles.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Rath, an explanation has been requested.
SENATOR RATH: Madam President,
this is a very simple bill to authorize
municipalities to be able to participate in
joint or piggyback procurement arrangements
from other municipalities or regional transit
authorities or the State of New York.
It does not bypass the competitive
bid process. It's merely to help smaller
2479
municipalities to be able to get as good a
price and have as good a research done as to
how to procure the supplies that they need.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, I'm speechless.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
602, by Senator Volker, Senate Print 208, an
act to amend the Penal Law and the Criminal
Procedure Law, in relation to term of
imprisonment.
2480
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT McGEE: Senator
Volker, an explanation has been requested.
SENATOR VOLKER: Madam President,
this is a bill that's been around -- frankly,
I think it first appeared as a program bill
for the present Governor. It dates back to
1995. This is what is termed the "three times
and you're out" bill. We've debated this a
number of times.
In fact, I was reading a memo,
which is the original memo, and it's
fascinating because it talks about the flood
of serious offenders and meaningful change is
needed and the bleak picture in criminal
justice. Of course, that was in 1995.
And here we are in 2002 and we have
a declining prison population, we have a
declining violent crime rate, declining murder
rate. We have the lowest murder rate, by the
way, that we've had since before the death
penalty was abolished back in 1965.
So the truth is we have made
substantial movement, and many of us believe
that that movement is because we have passed
2481
legislation similar to this. We've toughened
up on career criminals, we've done all sorts
of things.
Admittedly, this is not a -- by any
means a -- this is a tough bill. What it says
is, and it's very clear, if you have been
arrested and convicted of two prior violent
felony offenses, and if you are arrested and
convicted of a third one, then the sentence
becomes 25 years to life.
In the street, this is a permanent
sentence for somebody. In reality, what it is
is it says that if you can't handle yourself
properly to the point where you commit three
violent felony offenses, then you are going to
jail until you're a very old man or woman.
And that's basically what this bill
is.
ACTING PRESIDENT McGEE: Senator
Paterson, why do you rise?
SENATOR PATERSON: Madam
President, if Senator Volker would yield for a
question.
ACTING PRESIDENT McGEE: Senator
Volker, will you yield?
2482
SENATOR VOLKER: With pleasure,
Senator.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR PATERSON: Senator, we
already have a standard. And everything you
said I think makes perfect sense. What I'm
wondering about is raising the standard.
Isn't there a time -- in other
words, we could come back every two years and
raise it to 25 years and 30 years, and we
wouldn't be wrong on the merit because you're
talking about some very violent people who
obviously have no respect for other human
beings.
But isn't there a point at which,
just by ratio, these individuals really are -
have kind of aged out of the process, are not
going to be particularly violent and we're
just holding them, in a sense, from the
punitive sense of incarceration, you know,
rather than the public-safety sense of it?
SENATOR VOLKER: I think you
should keep in mind something. And that is
that we're talking here of people -- and I
2483
would think that if you would look and do some
research -- and we did some research years ago
on drug offenses, and it found that most of
the people that went to federal prison for
drug offenses had at least a hundred arrests
in their background.
Imagine how many arrests you'd
probably have for people who had been arrested
three times for violent felony offenses. And
obviously, if they've been arrested and
convicted three times, the two prior times
they must have spent quite a bit of time in
jail because, under our law, clearly they
would.
Now, if they didn't learn from
those other two violent felony offenses and
the sentences that went with them, what
exactly do you do with these people?
I think the theory is, yeah, that's
true, that they probably will be older. On
the other hand, the attitude is this. If they
haven't learned from the first violent felony
offense, if they haven't learned from the
second one -- and probably about 15 other
crimes or more that they haven't been arrested
2484
for -- then I guess the question you have is
what better place for these people than,
frankly, in jail.
I mean, obviously all attempts at
regeneration and rehabilitation have failed.
And I guess I think it's -- maybe it is a
matter of frustration. But I guess the
thought is, yeah, they may be older, but
apparent they weren't old enough that they
couldn't commit another violent felony
offense. And let me make that very clear.
These are not minor crimes, these are heavy
crimes.
So I think the answer is that maybe
that's the only place for them for the time
being, until -- 25 years to life, obviously
they're not going to be young people. But I
think it seems to me in the end it's a matter
of do you want to get thugs off the streets or
you don't, I guess.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, last year I voted against this
bill. And my conviction to do so is not
2485
enhanced at all by Senator Volker's
persuasiveness.
And there are a lot of persuasive
people in here. But I think what sets the
Senator apart is that he really does listen to
the questions and is quite eloquent in his
responses, but also quite substantive.
And I thought it was very
understandable that he would say that a part
of this is out of frustration. And I think
it's the frustration that we all feel that
urges us to vote for this bill.
My argument is that we're replacing
nursing homes with prisons, that we've got
people, as Senator Volker pointed out, that by
the time they can commit this third crime,
they had to have served the convictions of the
other two -- they've got to be somewhere 30,
35, 40 years old.
So we tack on another 12 to 15
years that we already have, so now we're
talking about people into their fifties. And
what we're saying is rather than in their
fifties, we'll keep them until they're about
70.
2486
And what I'm sort of saying is that
tours of the prisons -- one of our staff
members, along with a few of our members,
toured one of the prisons just in the last
month. And they said what shocked them is
that you have these very elderly inmates who
clearly are not in a position to be of any
harm to anyone. They may have some of the
same feelings, but as time goes on, there
isn't really the inclination to act in that
way.
And at a time when we would want to
be using those facilities for perhaps the next
generation of criminals, I wouldn't want to
feel that that was thwarted in any way by this
legislation.
On the merit of the legislation,
what Senator Volker is saying about the types
of individuals it addresses is very true.
That there's no response I can give to that.
And it's not going to upset me when this bill
I think passes. In spite of my attempts to
prevent it, I get this feeling that Senator
Volker is going to win here today.
But at the same point, it's just an
2487
issue I thought I would raise about the
necessity to house elderly people at this
point in our state penitentiaries.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 602 are
Senators Connor and Paterson. Also Senator
Schneiderman. Ayes, 51. Nays, 3.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Yes, thank
you, Madam President. I would request
unanimous consent to be recorded voting in the
negative on Calendar 442, Senate 384.
ACTING PRESIDENT McGEE: Without
2488
objection.
Senator DeFrancisco.
SENATOR DeFRANCISCO: Yes. May I
have unanimous consent to be recorded in the
negative on Calendar 235, Senate Print 401.
ACTING PRESIDENT McGEE: Without
objection.
The Secretary will read.
THE SECRETARY: Calendar Number
607, by Senator Volker, Senate Print 2305, an
act to amend the Penal Law, in relation to
assaults against transit employees.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Volker, an explanation has been requested.
SENATOR VOLKER: Yes, thank you.
Madam President, this is a bill
that -- very simply, this raises the penalty
for assaults on transit employees from an A
misdemeanor to a D felony.
And let me say that in the
committee there have always been discussions
about why the list of people that we have here
is here: cleaners, porters, maintainers and
so forth. And the reason is that you must
2489
include everyone connected with the
transportation system.
The ironic twist is -- and this is
particularly in New York City, and somewhat in
Buffalo. Remember, we have transit systems
now in all the major cities. And in Buffalo
we have a system that goes above ground and
then underground and so forth, and we've had a
number of assaults.
The problem is that these people
are exposed, clearly, to the potential for
some pretty severe assaults. And an
A misdemeanor just doesn't cut it. And that's
particularly true in New York City, where
A misdemeanors are pretty well treated as
handout offenses like that in upstate
New York. If you don't have a felony, you
really don't have much of a charge against
anybody.
And the reason we go to a D felony
is because of the potential seriousness of
these kinds of assaults. And frankly, there
have been some very serious assaults,
particularly, and I would say more so in the
city of New York, maybe, than in the suburbs,
2490
but they're happening everywhere.
And before somebody asks me the
question why don't we just change the assault
statute, we've been trying to do that for
years, to upgrade the whole assault area, but
the Assembly will not do it. But the Assembly
has indicated their interest in this sort of
bill.
If it were my preference, I would
prefer to upgrade the entire assault area
because I think it does need upgrading, and
I've been trying to do that for about 10,
15 years.
But that's what this bill is. It's
passed this house a number of times. I
believe it was once on the calendar in the
Assembly but has not passed the Assembly.
ACTING PRESIDENT MEIER: Senator
Stavisky.
SENATOR STAVISKY: Mr. President,
the bus drivers in Queens County, the ones who
drive the New York City Transit Authority
buses, have spoken to me in great detail about
this legislation. They are very, very
concerned with the increase in assaults on the
2491
bus drivers.
And I urge my colleagues to support
this legislation. Thank you.
ACTING PRESIDENT MEIER: Any
other Senator wish to be heard on the bill?
The debate is closed.
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.)
ACTING PRESIDENT MEIER: Senator
Hevesi.
SENATOR HEVESI: Thank you, Mr.
President, to explain my vote.
ACTING PRESIDENT MEIER: Senator
Hevesi, to explain his vote.
SENATOR HEVESI: Thank you, Mr.
President.
We had a somewhat extensive debate
on this bill last year. And I appreciated at
the time very much Senator Volker's candor in
discussing a better way to achieve the
2492
objectives that this bill ostensibly seeks to
achieve.
I just want to reiterate that, that
the best way to do it is to classify
second-degree assaults as E felonies for
everybody. And you have a much broader scope
of inclusion, and you can really remedy
problems.
Because if I'm the victim of a
second-degree assault, my assailant is only
punishable by what is prescribed under an
A misdemeanor. Whereas if this bill passed,
somebody who is a porter, for example, for the
Transit Authority who is a victim of an
assault and is brutalized in the exact same
way, his assailant can get up to seven years
in jail. It's fundamentally unfair.
What is not unfair is affording the
protections that exist in current law, the
D felony, to the individuals who currently get
it: peace officers, police officers, EMTs,
paramedics, those folks who are, by
definition, putting themselves in the line of
fire on a daily basis.
With no disrespect at all intended
2493
to transit workers, the argument has been put
forth that the reason why they need the
additional penalties is that they are in
contact with the public more than other
people. But if that's true, Mr. President,
lifeguards at public beaches, parks workers,
and many other classifications of municipal
workers also meet that criteria of being in
contact with large numbers of people.
There is nothing, I believe,
inherent about somebody who is a stationmaster
that makes him more vulnerable or a more
inviting target other than that individual is
in contact with a lot of people. And again,
there's a lot of people who are in contact
with a lot of people.
So what I would suggest is that
everybody who is the victim of second-degree
assault get an E felony as the potential
punishment.
And with respect to Mr. President,
who is indicating that I have exceeded my
time, I will be voting negative on this bill,
and I hope to see a more inclusive bill in the
future.
2494
Thank you, Mr. President.
ACTING PRESIDENT MEIER: The
chair was trying to do that discreetly, and
you blew it.
Senator Hevesi will be recorded in
the negative.
Announce the results.
THE SECRETARY: Ayes, 55. Nays,
1. Senator Hevesi recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Yes,
Mr. President, thank you. I rise to request
unanimous consent to be recorded in the
negative on Calendars 235, 584, and 602.
ACTING PRESIDENT MEIER: Without
objection, Senator Hassell-Thompson will be
recorded in the negative on Calendars 235,
584, and 602.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President.
ACTING PRESIDENT MEIER: The
Secretary will continue to read.
THE SECRETARY: Calendar Number
2495
609, by Senator McGee, Senate Print 3009, an
act to amend the Criminal Procedure Law, in
relation to eligibility for youthful offender
status.
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, 55. Nays,
2. Senators Andrews and Montgomery recorded
in the -
ACTING PRESIDENT MEIER: Senator
Andrews, are you rising to explain your vote?
SENATOR ANDREWS: No.
ACTING PRESIDENT MEIER: Okay.
Let's complete the roll call, and then I'll
recognize you, Senator.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 55. Nays,
2. Senators Andrews and Montgomery recorded
2496
in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Andrews, why do you rise?
SENATOR ANDREWS: I rise, Mr.
President, to request unanimous consent to be
recorded in the negative on Calendar 235 and
602.
ACTING PRESIDENT MEIER: Without
objection, Senator Andrews will recorded in
the negative on Calendars 235 and 602.
Senator Skelos.
SENATOR SKELOS: Is there any
housekeeping at the desk?
ACTING PRESIDENT MEIER: No,
there is not -- oh, I'm sorry, Senator
Montgomery is asking to be recognized.
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President. I would like to be recorded -
unanimous consent to be recorded in the
negative on Calendars 235, 442, and 602.
ACTING PRESIDENT MEIER: Without
objection, Senator Montgomery will be recorded
in the negative on Calendars 235, 442, and
2497
602.
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: I
wasn't sure whether he -- I'm sorry, Mr.
President, I wasn't sure if he recognized my
hand on Calendar Number 609. I didn't hear my
name called.
ACTING PRESIDENT MEIER: You're
not noted as voting in the negative. Do you
request unanimous consent to be recorded in
the negative?
SENATOR HASSELL-THOMPSON: Yes, I
do, Mr. President.
ACTING PRESIDENT MEIER: Without
objection, Senator Hassell-Thompson will be
recorded in the negative with regard to
Calendar Number 609.
SENATOR HASSELL-THOMPSON: Thank
you.
ACTING PRESIDENT MEIER: Senator
Brown.
SENATOR BROWN: I request
unanimous consent to be recorded in the
negative on Calendar 609, Senate Print 3009.
ACTING PRESIDENT MEIER: Without
2498
objection, Senator Brown will be recorded in
the negative on Calendar 609.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there being no further business to come before
the Senate, I move we adjourn until Monday,
April 29th, at 3:00 p.m., intervening days
being legislative days.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Monday, April 29th, at 3:00 p.m. Intervening
days will be legislative days.
(Whereupon, at 12:03 p.m., the
Senate adjourned.)