Regular Session - May 15, 2002
3214
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
May 15, 2002
11:14 a.m.
REGULAR SESSION
SENATOR PATRICIA K. McGEE, Acting President
STEVEN M. BOGGESS, Secretary
3215
P R O C E E D I N G S
ACTING PRESIDENT McGEE: The
Senate will come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT McGEE: The
invocation today will be given by ourselves.
In the absence of clergy, may we bow our heads
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, May 14, the Senate met pursuant to
adjournment. The Journal of Monday, May 13,
was read and approved. On motion, Senate
adjourned.
ACTING PRESIDENT McGEE: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
3216
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
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 Wright,
please place a sponsor's star on Calendar
Numbers 77, 105, and 368.
ACTING PRESIDENT McGEE: So
ordered.
Senator Espada.
SENATOR ESPADA: Thank you, Madam
President.
On behalf of Senator Nozzolio, on
page 10, I offer the following amendments to
Calendar Number 214, Print Number 2672B, and I
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 the Third
3217
Reading Calendar.
SENATOR ESPADA: Also, Madam
President, if I might continue, on behalf of
Senator Nozzolio, on page 44, I offer the
following amendments to Calendar 852, Print
Number 7195A, 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 the Third
Reading Calendar.
SENATOR ESPADA: And lastly,
Madam President, if I might, on behalf of
Senator Johnson, on page 60, I offer the
following amendments to Calendar Number 1044,
Print Number 6150, and I 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 the Third
Reading Calendar.
Senator Morahan.
SENATOR MORAHAN: There is a
privileged resolution at the desk by Senator
3218
Nozzolio. May we please have that title read
and move for its immediate adoption.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
Nozzolio, Legislative Resolution Number 5550,
honoring New York State Police Senior
Investigator David Gould upon the occasion of
his designation by SAVAR as recipient of the
Gold Award.
ACTING PRESIDENT McGEE: The
question is on the resolution. All in favor
will signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
Senator Morahan.
SENATOR MORAHAN: Madam
President, may we please have the
noncontroversial reading of the calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
3219
THE SECRETARY: Calendar Number
59, by Senator Alesi, Senate Print 2190A, an
act to amend the State Administrative
Procedure Act, in relation to adjudicatory
proceedings.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 6. This
act shall take effect on the 180th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 37.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
339, by Senator Balboni, Senate Print 850A, an
act to amend the Family Court Act and the
Domestic Relations Law, in relation to the
issuance of orders of protection.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 8. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
3220
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 37.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
343, by Senator Saland, Senate Print 4893A, an
act to amend the Domestic Relations Law and
the Family Court Act, in relation to changing
the denotation of "visitation."
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
457, by Senator Nozzolio, Senate Print 6444,
an act to amend the Tax Law, in relation to
hotel or motel taxes.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
513, by Senator Marcellino, Senate Print
6209B, an act to amend the -
3221
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
551, by Member of the Assembly Kaufman,
Assembly Print Number 366A, an act to amend
the General Business Law, in relation to
warranty disclosure.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the 90th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 37.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
629, by Senator Larkin, Senate Print 6146B, an
act to amend the Economic Development Law, in
relation to promoting small businesses.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 11. This
3222
act shall take effect on the 180th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 37.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
818, by Senator Balboni, Senate Print 6171, an
act to authorize the Great Neck Center for the
Visual and Performing Arts, Incorporated.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2 -
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
844, by Senator Trunzo, Senate Print 6814, an
act to amend the Vehicle and Traffic Law, in
relation to pedestrian right of way in
crosswalks.
ACTING PRESIDENT McGEE: Read the
last section.
3223
THE SECRETARY: Section 2. This
act shall take effect on the 180th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 38.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
850, by Senator Trunzo, Senate Print 7029, an
act to amend the Vehicle and Traffic Law, in
relation to requiring Social Security numbers.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the 60th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
872, by Senator Fuschillo, Senate Print 6456,
an act to amend the Penal Law, in relation to
3224
identification.
ACTING PRESIDENT McGEE: 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.)
THE SECRETARY: Ayes, 40.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
885, by Senator Saland, Senate Print 7126, an
act to amend -
SENATOR MORAHAN: Lay it aside
for the day, please.
ACTING PRESIDENT McGEE: The bill
is laid aside for the day.
THE SECRETARY: Calendar Number
892, by Senator Skelos, Senate Print 6189, an
act to amend the Correction Law, in relation
to failure to register or verify.
ACTING PRESIDENT McGEE: Read the
last section.
3225
THE SECRETARY: Section 2. This
act shall take effect on the 30th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
893, by Senator Nozzolio, Senate Print 6770,
an act to amend the Correction Law, in
relation to community notification.
ACTING PRESIDENT McGEE: 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.)
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
3226
948, by Senator Hoffmann, Senate Print 6511,
an act to amend the Agriculture and Markets
Law, in relation to the appropriation and
apportionment of monies.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
970, by Member of the Assembly Schimminger,
Assembly Print Number 9980, an act to amend
the General Business Law, in relation to
exempting.
SENATOR MORAHAN: Lay it aside
for the day.
ACTING PRESIDENT McGEE: The bill
is laid aside for the day.
THE SECRETARY: Calendar Number
990, by Member of the Assembly Magee, Assembly
3227
Print Number 10454, an act to amend the
Uniform City Court Act, in relation to
residency requirements.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 42.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1007, by Senator Velella, Senate Print 7329,
an act to amend the Labor Law, in relation to
the maintenance of payroll records.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
3228
THE SECRETARY: Ayes, 42.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1011, by Senator Stachowski, Senate Print
2558A, an act to amend the General Municipal
Law, in relation to notification of the
presence of wild animals.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the 120th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1045, by Senator Volker, Senate Print 6663A,
an act to amend the Highway Law, in relation
to designating a portion of the state highway
system.
ACTING PRESIDENT McGEE: Read the
last section.
3229
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1095, by Senator Volker, Senate Print 6679, an
act to amend Chapter 672 of the Laws of 1993.
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, 44.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1116, by Senator Alesi, Senate Print 1131, an
act to amend the Correction Law, in relation
to work release programs.
3230
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, 46.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1187, by Senator Stafford, Senate Print 6602,
an act to amend the Education Law, in relation
to state aid for certain institutions of
higher learning.
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, 46.
ACTING PRESIDENT McGEE: The bill
is passed.
3231
Senator Morahan, that completes the
noncontroversial reading of the calendar.
SENATOR MORAHAN: Thank you,
Madam President. Now may we have the reading
of the controversial calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
Senator Duane.
SENATOR DUANE: Thank you, Madam
President. If I could have unanimous consent
to be recorded in the negative on Calendar
Number 892, S6189.
ACTING PRESIDENT McGEE: So
ordered. Thank you, Senator Duane.
SENATOR DUANE: Thank you.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
343, by Senator Saland, Senate Print 4893A, an
act to amend the Domestic Relations Law and
the Family Court Act, in relation to changing
the denotation of "visitation" to "parenting
time."
SENATOR DOLLINGER: Explanation,
please.
3232
SENATOR MORAHAN: Lay it aside
temporarily, please.
ACTING PRESIDENT McGEE: The bill
is laid aside temporarily.
THE SECRETARY: Calendar Number
457, by Senator Nozzolio, Senate Print 6444,
an act to amend the Tax Law, in relation to
hotel or motel taxes in the County of Ontario.
ACTING PRESIDENT McGEE: The bill
is laid aside temporarily.
THE SECRETARY: Calendar Number
513, by Senator Marcellino, Senate Print
6209B, an act to amend the Environmental
Conservation Law, in relation to idling
prohibition for heavy-duty vehicles.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Marcellino, an explanation has been requested.
SENATOR MARCELLINO: Thank you,
Madam President.
This bill simply puts into law that
which is the regulation in force now in the
state of New York. We're simply trying to
expand enforcement coverage.
ACTING PRESIDENT McGEE: Senator
3233
Kuhl.
SENATOR KUHL: Yes, Madam
President. Will the sponsor yield for a
question?
ACTING PRESIDENT McGEE: Senator
Marcellino, will you yield for a question?
SENATOR MARCELLINO: I'll be
delighted to.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR KUHL: Senator
Marcellino, in the very quick reading of the
bill that I had, I read it to expand this
idling provision to heavy-duty trucks. Is
that correct?
SENATOR MARCELLINO: It's current
law now. It's current regulation now,
Senator.
SENATOR KUHL: Well, then, can
you tell me how trucks are able to -- well,
let me back that up.
It's my understanding, Senator,
that the operation of diesel engines needs
some sort of an electrical outlet to keep them
warm if they're not running in order for them
3234
to start.
Now, I can view your bill as
requiring a truck driver who has been on the
road, say, for eight hours and is required to
take some sort of a nap or rest, because there
are limitations that way, pulling into a truck
stop where there are no electrical outlets
where they can plug into, and under your bill
then being required to shut the engine down
and having no way now, hours later, to start
that back up.
Now, is my understanding correct of
what your bill does? Because I understand
that this is normal operation. And I only
understand that because several years ago I
had a diesel car and I had to have some sort
of electrical device overnight if it was going
to be started in the cold weather.
And as you know, in this particular
state we do have the occasion to have weather
that takes temperatures below freezing.
So I'm curious about how this bill
reflects upon the motor trucking industry in
the state and if it is a positive reaction to
it or if it is in fact a negative one and
3235
imposes certain kinds of obstacles that may be
very, very difficult for them to respond to.
SENATOR MARCELLINO: Senator,
what you say is now current reg in the state
of New York at the present time. The motor
truck industry is one of the memos of support.
The industry supports this bill because we are
simply increasing enforcement capabilities.
We are not changing current reg.
At the present time, the situation
you describe would be current law, the
requirement of our state right now. So they
would have to do what you said right now. We
do have an exclusion for cold weather in this
bill, under 25 degrees. There is an exclusion
which is in the bill. And that is current reg
as well.
SENATOR KUHL: So what you're
telling me is that this bill will not have a
negative effect on the motor trucking
industry.
SENATOR MARCELLINO: Absolutely
not, Senator.
SENATOR KUHL: Thank you,
Senator.
3236
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Will the
sponsor yield to a question, Madam President?
ACTING PRESIDENT McGEE: Senator
Marcellino, will you yield?
SENATOR MARCELLINO: Surely.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DOLLINGER: Senator, I'm
going to vote in favor of this bill, I think.
But my only question deals with the
enforcement of this by peace officers, which
is on page 3 of the bill.
The bill says that "peace officers,
acting pursuant to their special duties."
Could you tell me what special duties would be
created for peace officers to enforce this
bill?
SENATOR MARCELLINO: That would
seem to be language that has been used simply
by the lawyers who wrote the legislation up.
I don't think there's anything extra added on
here or meant to be added on to this.
SENATOR DOLLINGER: Through you,
3237
Madam President, that's actually the reason
why I asked. Because I think in other bills
where we've put enforcement in the hands of
peace officers, we haven't used the language
"acting pursuant to their special duties."
Is there some special duty that
they are given by either regulation that would
allow them to enforce this particular
violation?
SENATOR MARCELLINO: No. The
only people who are currently enforcing the
law right now are the EnCon police, and only
the EnCon police. We're trying to allow all
other peace officers to enforce this
particular kind of regulation so we can get
better enforcement and restrict idling,
unnecessary idling.
So no, it doesn't add anything or
give any police department any extra powers.
SENATOR DOLLINGER: Okay. Just
briefly on the bill, Madam President.
ACTING PRESIDENT McGEE: Senator
Dollinger on the bill.
SENATOR DOLLINGER: I'm going to
vote in favor of this bill.
3238
But I just am intrigued by the use
of the language "acting pursuant to their
special duties," which suggests that somehow
peace officers in and of themselves don't have
the ability to enforce it, that they need a
designation of special duties in order to be
able to do it.
And I just don't know what that
means. Maybe Senator Volker, who has lots of
experience with peace officers, might know
what that means. But it suggests that there's
some special deputization or some special
grant of power, either by regulation or some
other thing.
And I know the sponsor -- if this
bill gets to the Assembly or eventually gets
to a conference committee or is negotiated, it
would just be interesting to clarify what
those special duties are.
I'll be voting in favor, Madam
President.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Senator Paterson.
SENATOR PATERSON: Thank you,
3239
Madam President. I'm going to be voting in
favor of this bill as well. But if Senator
Marcellino would just yield for a quick
question.
ACTING PRESIDENT McGEE: Senator
Marcellino, will you yield for a quick
question?
SENATOR MARCELLINO: I'd be happy
to. But I can barely hear the gentleman.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Thank
you.
SENATOR PATERSON: Madam
President, I'm wondering, in terms of the
delineation of the temperature, 25 degrees,
that Senator Marcellino referred to in his
discussion with Senator Kuhl, does that relate
to the time that the vehicle is shut down, or
does that relate to the time that the summons
theoretically could be given?
Because in a particular situation,
there might be an anticipation of a lowered
temperature, but at the time that the owner of
the truck stopped the truck, they might
actually be in violation of the ordinance.
3240
SENATOR MARCELLINO: Madam
President, we cannot have a case of premature
anticipation with respect to this bill.
The temperature has to be
25 degrees.
SENATOR PATERSON: Oh, okay.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the 90th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
Oh, Senator Duane, I'm sorry.
SENATOR DUANE: Thank you, Madam
President.
I want to commend Senator
Marcellino on this legislation. When I first
came to the Senate, this was one of my top
priorities, to get a bill similar to this one
passed in the Legislature. It's been a big
problem in my district. So I'm pleased that
3241
this bill is passing the Senate.
I also notice that there isn't an
Assembly sponsor. I don't believe there's an
Assembly sponsor. So if I could be of help to
that, finding someone, I'd be very happy to do
so.
And again, I commend Senator
Marcellino on this bill.
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 513 are
Senators Kuhl, Mendez, Paterson, Rath, and
Volker.
Ayes, 49. Nays, 5.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
818, by Senator Balboni, Senate Print 6171, an
act to authorize the Great Neck Center for the
Visual and Performing Arts, Incorporated.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
3242
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53. Nays,
1. Senator Dollinger recorded in the
negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
893, by Senator Nozzolio, Senate Print 6770,
an act to amend the Correction Law, in
relation to community notification procedures.
ACTING PRESIDENT McGEE: 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.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT McGEE: The bill
is passed.
I'm sorry. Senator Duane.
SENATOR DUANE: Thank you, Madam
3243
President.
I'm voting no on this bill, both
because of my opposition to Megan's Law and
also because if Megan's Law needs to be
revisited, we should do so. But we shouldn't
be doing things in a piecemeal fashion to
reform Megan's Law.
So I'd like to see all the Megan's
Law revisions seen in one bill, and then we
can decide whether or not Megan's Law in
general needs to be revisited. So I'll be
voting in the negative on this one, Madam
President.
ACTING PRESIDENT McGEE: The
Secretary will announce the results on 893.
THE SECRETARY: Ayes, 53. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Morahan.
SENATOR MORAHAN: Yes, Madam
President. Could we go back to Calendar
Number 457, by Senator Nozzolio.
ACTING PRESIDENT McGEE: The
Secretary will read.
3244
THE SECRETARY: Calendar Number
457, by Senator Nozzolio, Senate Print 6444,
an act to amend the Tax Law, in relation to
hotel or motel taxes in the County of Ontario.
ACTING PRESIDENT McGEE: Can we
please have some quiet so that the Secretary
can understand and hear what's going on.
Senator Dollinger.
SENATOR DOLLINGER: Will the
sponsor yield to just one question, Madam
President?
ACTING PRESIDENT McGEE: Senator
Nozzolio, will you yield?
SENATOR NOZZOLIO: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DOLLINGER: Is there a
home-rule message on this bill, Senator
Nozzolio?
SENATOR NOZZOLIO: Madam
President, there is a home-rule message. It
was filed the 28th day of March, 2002.
SENATOR DOLLINGER: Good enough
for me. Thank you, Madam President.
3245
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.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Morahan.
SENATOR MORAHAN: Yes, Madam
President. If we could return to motions and
resolutions. Thank you.
ACTING PRESIDENT McGEE: Can we
please have some quiet here. Thank you.
Senator Morahan.
SENATOR MORAHAN: If we could
please return to motions and resolutions, I
believe there's a privileged resolution by
Senator Bruno at the desk. I'd like to have
the title read and move for its adoption.
ACTING PRESIDENT McGEE: The
Secretary will read.
3246
THE SECRETARY: By Senator Bruno,
Legislative Resolution Number 5551,
commemorating the 75th Anniversary as a
Mission and 50th Anniversary as a Parish of
St. Mary's Roman Catholic Church of Clinton
Heights, Rensselaer, New York.
ACTING PRESIDENT McGEE: The
question is on the resolution. All in favor
will signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
Senator Morahan.
SENATOR MORAHAN: Can we stand at
ease momentarily, Madam President.
ACTING PRESIDENT McGEE: The
Senate will stand at ease momentarily.
(Whereupon, the Senate stood at
ease at 11:40 a.m.)
(Whereupon, the Senate reconvened
at 11:45 a.m.)
ACTING PRESIDENT McGEE: Senator
3247
Morahan.
SENATOR MORAHAN: Madam
President, there will be an immediate meeting
of the Majority conference in the Majority
Conference Room.
ACTING PRESIDENT McGEE:
Immediate meeting of the Majority in the
Majority Conference Room.
SENATOR MORAHAN: And the Senate
will stand at ease.
ACTING PRESIDENT McGEE: The
Senate will stand at ease.
Senator Paterson.
SENATOR PATERSON: Madam
President, there will be an immediate meeting
of the Minority in the Minority Conference
Room.
ACTING PRESIDENT McGEE:
Immediate meeting of the Minority in the
Minority Conference Room.
The Senate will stand at ease.
(Whereupon, the Senate stood at
ease at 11:46 a.m.)
(Whereupon, the Senate reconvened
at 1:05 p.m.)
3248
ACTING PRESIDENT SEWARD: Senator
Skelos.
SENATOR SKELOS: Mr. President,
there will be a meeting of the Rules Committee
in five minutes, at ten minutes after 1:00,
based upon the clock in the chamber.
ACTING PRESIDENT SEWARD: There
will be a meeting of the Rules Committee at
ten after 1:00, in Room 332.
SENATOR SKELOS: Yes, Mr.
President. Thank you.
ACTING PRESIDENT SEWARD: While
the Rules Committee is meeting, we will
continue to stand at ease.
(Whereupon, the Senate stood at
ease at 1:06 p.m.)
(Whereupon, the Senate reconvened
at 1:27 p.m.)
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: Madam President,
if we could return to reports of standing
committees, I believe there's a report of the
Rules Committee at the desk. I ask that it be
read at this time.
3249
ACTING PRESIDENT McGEE: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bills:
Senate Print 57B, by Senator
Maltese, an act to amend the Penal Law;
6357, by Senator Wright, an act to
amend the General Business Law and the
Executive Law;
And Senate Print 6358, by Senator
Wright, an act to amend the General Business
Law.
All bills ordered direct to third
reading.
SENATOR SKELOS: Move to accept
the report of the Rules Committee.
ACTING PRESIDENT McGEE: The
motion is to accept the report of the Rules
Committee. All in favor signify by saying
aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
3250
(No response.)
ACTING PRESIDENT McGEE: The
motion is carried.
SENATOR SKELOS: If you would
please recognize Senator Dollinger.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, there will be an immediate
conference of the Minority in the Minority
Conference Room.
ACTING PRESIDENT McGEE:
Immediate conference of the Minority in the
Minority Conference Room.
SENATOR SKELOS: Madam President.
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: I have indicated
to the chair that the conference would be
approximately 20 minutes, so the Senate will
reconvene at ten minutes to 2:00.
ACTING PRESIDENT McGEE: The
Senate will reconvene at ten minutes to 2:00.
Be prompt.
(Whereupon, the Senate stood at
3251
ease at 1:31 p.m.)
(Whereupon, the Senate reconvened
at 1:57 p.m.)
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: Madam President,
is there any housekeeping at the desk?
ACTING PRESIDENT McGEE: Is there
any housekeeping at the desk? Yes, there is.
SENATOR SKELOS: Please recognize
Senator Marcellino.
ACTING PRESIDENT McGEE: Senator
Marcellino.
SENATOR MARCELLINO: Madam
President, on behalf of myself, on page number
23 I offer the following amendments to
Calendar Number 510, Senate Print Number
4467A, 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 the Third
Reading Calendar.
Senator Marcellino.
SENATOR MARCELLINO: Thank you,
3252
Madam President.
On behalf of Senator Kuhl, on page
number 29 I offer the following amendments to
Calendar Number 626, Senate Print Number 5108,
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 the Third
Reading Calendar.
SENATOR MARCELLINO: Thank you.
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: Madam President,
would you please call up Calendar Number 1196,
by Senator Maltese.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
1196, by Senator Maltese, Senate Print 57B, an
act to amend the Penal Law, in relation to
unborn victims of violence.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Explanation,
3253
please, Madam President.
ACTING PRESIDENT McGEE: Senator
Maltese, an explanation has been requested.
SENATOR MALTESE: Madam
President, this bill is a bill to amend the
Penal Law in relation to unborn victims of
violence. This bill provides that either a
person or an unborn child in any stage of
gestation may be the victim of an assault or a
homicide.
The bill adds certain sections to
the Penal Law to provide that either a person
or an unborn child in any stage of gestation
may be the victim of various degrees of
assault.
In addition, the bill specifically
provides that nothing in this article shall be
construed to permit the prosecution of any
person for conduct relating to a justifiable
abortional act for which the consent of the
pregnant woman has been obtained.
In addition, nothing in the article
can be construed to permit the prosecution of
any person for any medical treatment of the
pregnant woman or her unborn child. In
3254
addition, it would specifically prohibit
prosecution of any woman with respect to her
unborn child.
The measure makes parallel changes
to various portions of the Penal Law,
including 125.05 of the Penal Law, which would
add "unborn child in any stage of gestation"
to the definition of "person."
Madam President, I'd like to
mention the fact that this wording is wording
that has been arrived at over -- taking into
consideration past objections, past legal
opinions, and to answer objections to provide
for the protection of the woman who in these
cases very much wants her child. This would
not be construed in any shape, form, or manner
as to prohibit a woman who wishes to have an
abortion from being prosecuted for a criminal
act.
We in the Penal Law, and in all our
laws, provide for the protection of the
person, protection of the woman. And when we
talk about passing legislation to prevent
mothers from harming their children by using
drugs, to prevent an unborn fetus from being
3255
harmed by secondhand smoke or various drugs,
we seek to protect unborn children and
children from those adults, including parents,
who would harm children at any stage of
development.
Yet there is a significant loophole
in the law. And what this bill hopes to do is
to close that loophole in the law. And that
loophole is that if an unborn child being
carried by a pregnant woman is killed or
injured, the offender may not be criminally
responsible, according to our law, which is
based on the common law, unless that child is
born alive.
I'd like to point to a couple of
cases in parts of New York State where,
because of the tortured interpretation of the
law, perpetrators who should have been
punished for causing harm or death to the
unborn child were able to emerge from the
legal system unscathed.
One such case occurred in Suffolk
County. A driver traveling well in excess of
the posted speed passed a school bus in the
oncoming traffic lane and therefore crashed
3256
head-on into an oncoming car driven by a woman
who was six to seven months' pregnant. The
mother's unborn child died while in her body.
Almost two years after the crash, the mother
has pins in her legs and must use leg braces
in order to walk.
The defendant could not be charged
with any form of homicide because the woman's
fetus had not been born alive. As a result,
the defendant was charged with no more than
assault in the second degree.
In a case in Queens County, a man
armed with a handgun demanded money from three
teenage girls as they walked on the street.
The victim, who was 15 years of age and seven
months' pregnant, handed over her gold chain.
She was fumbling for the $2 in change in her
purse when the gunman shot her at close range
in the abdomen. The gunman fled. The victim
was taken to the hospital where she identified
her attacker to the police.
Her unborn child was killed without
ever having been born alive. As a result,
when the gunman was arrested, he could not be
charged with the death of the fetus. The
3257
highest charge for which the gunman could be
indicted was the attempted murder of his
15-year-old pregnant victim. He ultimately
pleaded guilty to that charge.
This measure seeks to close that
gap in our law. It will do this by providing
that those who kill or injure an unborn child
in any stage of gestation, by the commission
of any number of enumerated homicide or
assault offenses, may be held criminally
responsible for their actions.
The bill in no way alters a woman's
right to an abortion or to medical treatment.
The measure specifically provides that nothing
shall be construed to permit the prosecution,
as I had indicated, for conduct relating to a
justifiable abortional act for which the
consent of the woman has been obtained.
The Congress of our nation has a
bill that this bill was patterned after. That
bill was voted on in April of 2001, just
about -- a little bit more than a year ago.
That bill mirrors this bill, in that it
provides for the injury or death of a child at
any stage of gestation. That bill was passed
3258
252 to 198, including one independent and 53
members of the Democratic Party.
I'd like to point also, Madam
President, to a Gallup Poll taken in April of
2001. And the Gallup Poll was taken in
conjunction with CNN and USA Today. The
question asked "Suppose for a moment that a
violent crime is committed against a pregnant
woman and the unborn child is harmed or
killed. Do you think the criminal should or
should not face additional charges for harming
the unborn child as well as the woman?"
"Should face additional charges."
An astounding 93 percent agreed that the
perpetrator should face those additional
charges.
Again: "Suppose for a moment that
a violent crime is committed against a
pregnant woman and the fetus is harmed or
killed. Do you think the criminal should or
should not face additional charges for harming
the fetus as well as the woman?"
"Should," again. An astounding
86 percent responded yes; should not,
9 percent; and no opinion, 5 percent.
3259
The states that prohibit crimes
against the unborn child. Twenty-six states
have passed legislation almost identical or
similar to the legislation that we consider
today.
Madam President, the original -
the law that we seek to amend and correct is
based upon common law, and it was based upon
the common law, the born-alive rule. Now, I
submit and others have submitted that that
born-alive rule came at a time when medical
science was not at the stage that it is today
and there was no way to prove that the child
was killed as a result of the intent of the
act or the stage of development of the child.
This bill expressly excludes
abortion and any conduct of the pregnant woman
herself. I cannot say that enough times.
In addition, as far as legally, no
fetal homicide statute has ever been
successfully challenged. Such statutes have
been upheld in California, Georgia, Illinois,
Minnesota, Missouri, Iowa -- I'm sorry, Ohio
and Wisconsin.
Perhaps the most striking case was
3260
the one from Minnesota State versus Merrill, a
case from 1990. In Merrill, the defendant
shot and killed his girlfriend and her unborn
child, who was only 28 days old. It was
unclear whether either the defendant or the
woman knew that she was pregnant at the time.
Nevertheless, the defendant was charged with
first- and second-degree murder for the death
of the unborn child under reform legislation
that had been enacted.
The defendant's challenge to the
constitutionality of the statute was rejected
by the Minnesota Supreme Court, and the United
States Supreme Court refused to review that
decision.
In rejecting his challenge, the
state supreme court from Minnesota said "The
defendant who assaults a pregnant woman,
causing the death of the fetus she is
carrying, destroys the fetus without the
consent of the woman. This is not the same as
the woman who elects to have her pregnancy
terminated by one legally authorized to
perform the act. In the case of abortion, the
woman's choice and the doctor's actions are
3261
based on the woman's constitutionally
protected right to privacy. Roe versus Wade
protects the woman's right of choice. It does
not protect, much less confer on an assailant,
a third-party right to destroy the fetus."
Madam President, the research, the
memos all have indicated that this is not an
abortion bill. Those that would say this is
an abortion -- to those that would say this is
an abortion bill, we look -- we say look at
the very plain, express language of the
statute itself. The bill -- the bill -- the
proposed bill itself has all the protections
that a pregnant woman who seeks to terminate
her pregnancy would have.
Madam President, I submit that for
the objectors to this bill to stand on the
fact that it is a matter of a lawful
abortional act by a woman or to say that we
should confer immunity from prosecution for a
serious assault or indeed a homicide on some
third-party interloper, some stranger to the
woman, in most cases, to come in and terminate
that pregnancy, to kill that unborn child,
where the mother in most cases very much wants
3262
that unborn child, desires that unborn child
and has done everything in her power to
protect that unborn child, is a travesty, is
not something that should be permitted in the
law of New York State.
And this law I believe corrects
that inequity and protects the woman. This is
a victim's rights bill. This is a woman's
rights bill. It is not an abortion bill.
ACTING PRESIDENT McGEE: Senator
Mendez, why do you rise?
SENATOR MENDEZ: Would the
Senator answer a couple of questions, please?
ACTING PRESIDENT McGEE: Senator,
will you yield for some questions?
SENATOR MALTESE: Yes. Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR MENDEZ: Senator Maltese,
I agree that choice is as valid, the choice to
have an abortion, as the choice to give birth
to a child. They are equally valid in my
mind.
I am troubled, on this bill, on
your definition of a person. Because it says
3263
here "Person, when referring to the victim of
a homicide, means a human being who has been
born and is alive or an unborn child at any
stage of gestation."
I, for one, respect the law of the
land, as all of we do here, of 24 weeks for a
woman -- of no later than 24 weeks for the
woman to have an abortion. But this business
of at any stage of gestation, really, it could
be 24 hours, if one wants to be -- to
exaggerate things.
So I think that -- even though I
think that if a woman who is pregnant and has
decided to keep her child, if she is beaten up
by her lover or her husband or whatever and
she loses the child, I would go along with you
on this bill.
But that lack of clarity here, an
unborn child at any stage of gestation, gives
me -- worries me because could it be used as a
way to go back at the existing law in terms of
not allowing abortions?
SENATOR MALTESE: Madam
President, if I might attempt to reply.
ACTING PRESIDENT McGEE: Senator
3264
Marcellino.
I'm sorry, Maltese. Excuse me.
SENATOR MALTESE: He has more
hair than I do.
(Laughter.)
SENATOR MALTESE: At any rate, as
to that section, that is the section that we
sought to change. That's 125.05 of the Penal
Law, which defines a person. And it was that
section, for the purpose of this legislation
alone, the fetal homicide bill, the fetal
assault bill, that we made that change.
That change was made as a result of
discussion concerning one of the original
bills. The change was made to protect the
unborn at any stage, absolutely. But the
definition itself expanded the definition only
for this particular legislation.
As far as going back, I know as a
former prosecutor myself how difficult it is
at times to prove intent. In this case you
would still require an intent, an intent to
assault, an intent to kill in the case of a
homicide.
A prosecutor who would attempt to
3265
indict or convict in a case similar to this
would have a very rough row to hoe. And I
believe that in those cases where the unborn
child is either unknown, that the person
doesn't know that they're pregnant, or is very
young, would not be a case that would be
sought to be prosecuted by a district
attorney.
SENATOR MENDEZ: Thank you.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President. Would Senator Maltese yield
to a question, please?
ACTING PRESIDENT McGEE: Senator
Maltese, will you yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DOLLINGER: Senator, I
want to go back to your example that you
referred to about the woman from Queens who
was seven months' pregnant when she was
assaulted and lost her child.
Isn't it fact, Senator Maltese,
3266
that under the current homicide statute in the
State of New York that that would be a
homicide?
SENATOR MALTESE: Excuse me,
Madam President. May I ask, the homicide of
the child or the -
SENATOR DOLLINGER: Through you,
Madam President, homicide of the child.
SENATOR MALTESE: No, Madam
President. It would only be a crime if the
child was born alive.
SENATOR DOLLINGER: Through you,
Madam President. Are you familiar with the
current wording of Section 125 of the Penal
Law that defines homicide, Senator Maltese?
ACTING PRESIDENT McGEE: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes, Madam
President.
SENATOR DOLLINGER: And through
you, Madam President, if Senator Maltese will
continue to yield.
SENATOR MALTESE: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
3267
SENATOR DOLLINGER: Doesn't that
term include the person, an unborn child -
the definition of "person" in the homicide
statute include an unborn child who has been
in a period of 24 weeks' gestation? Which at
least by my calculation, Senator Maltese, is
less than seven months.
So wouldn't a 7-month-old child
that is -- whose life is not -- doesn't reach
birth, that person is a person under our
homicide statute and they should have been
charged with a homicide; isn't that correct?
SENATOR MALTESE: Madam
President, I have the section in front of me.
Senator Dollinger is correct in that it
includes the offenses after 24 weeks of
gestation.
I am advised by counsel, Madam
President, that that particular wording
applies only in cases of abortion itself
rather than a perpetrator's criminal act.
SENATOR DOLLINGER: Well, through
you, Madam President, isn't it a fact that
says that homicide means conduct which causes
the death of a person or an unborn child with
3268
which a female has been pregnant for more than
24 weeks, under circumstances constituting
murder?
Doesn't the current language -
through you, Madam President -- provide that
if a child in the womb that's more than 24
weeks old and is unable to be brought to
gestation because of the act of a third party,
that it constitutes a homicide?
ACTING PRESIDENT McGEE: Senator
Maltese.
SENATOR MALTESE: Madam
President, the quote I have is that a double
definition of the victim of homicides was
necessary, since the homicide article included
the offenses prohibiting medically
unjustifiable abortion after 24 weeks of
gestation.
In every case other than a legal
abortion, the Legislature has ordained that
people are required to prove that the victim
is a person within the meaning stated in Penal
Law 125.05, a human being who has been born
and is alive. That is 125.05 that I
previously referred to and which is the
3269
section that we specifically changed by adding
the wording in reference to "at any stage of
gestation."
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Through you,
Madam President, if Senator Maltese will
continue to yield.
ACTING PRESIDENT McGEE: Senator,
will you continue to yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DOLLINGER: You would
concede, would you not, under current law,
Senator Maltese, that any fetus that is more
than 24 weeks old in the womb, if it is
somehow -- it's -- it is terminated by the
conduct of a third party without the consent
of the mother, that that constitutes homicide
under our current law? That's exactly what it
says.
SENATOR MALTESE: Madam
President, in reading the definition of
"person," it does not seem to provide the
3270
exclusion that Senator Dollinger is referring
to.
SENATOR DOLLINGER: But through
you, Madam President, that's why I called your
attention, Senator Maltese, not to the
definition of "person" -- because we don't
need to define "person" under 125.05.
What I'm calling your attention to,
Senator Maltese, is the definition of
"homicide," which says that "the death of a
person or of an unborn child with which a
female has been pregnant for more than 24
weeks."
That suggests to me that "homicide"
means that if you end the -- if you terminate
a pregnancy of an unborn child after 24 weeks,
you commit homicide under current law.
Is that correct, Senator Maltese,
that's what the definition of homicide is. We
don't need to define "person," because this is
not -- we're not talking about the death of a
person, we're talking about the death of an
unborn child. Isn't that correct?
SENATOR MALTESE: Madam
President, again, maybe it's clear to Senator
3271
Dollinger and maybe it's clear to me. That's
why a good part of our time and effort here in
the Legislature is taken with either
correcting or amending the judicial acts.
You would think that the Latin
expression "expressio unius est exclusio
alterius" would apply: When you express
something clearly, it excludes all others.
In this case, we have a statute
that's been interpreted by various courts and
it's been interpreted various ways. We have
interpretations, I have one pointed out by -
in People versus Joseph, as they feel that the
homicide statute is qualified by the
definition of "person."
And there are additional courts
that have held that it only applies to -- as a
matter of fact, I'm given another one here,
People versus Abasco, which was a 1974 case.
The commentators note that Section 125.05,
definition of "person," was included to ensure
that the death of a person would not include
abortional killing of an unborn child.
And in dicta, with the case -- or
not dicta, McKinney's: "It is equally clear
3272
to this court that the Legislature did not
intend to make the nonabortional killing of an
unborn child a homicide."
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Through you,
Madam President. Let me go back and just see
if I can make this point.
ACTING PRESIDENT McGEE: Are you
again asking Senator Maltese to yield?
SENATOR DOLLINGER: Yes, if he
would yield.
ACTING PRESIDENT McGEE: Senator,
will you yield?
SENATOR MALTESE: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DOLLINGER: The section
you're referring to, 125.05, defines the term
"person"; is that correct?
SENATOR MALTESE: Yes, Madam
President.
SENATOR DOLLINGER: The section
I'm referring to is 125.00, which defines the
3273
phrase "homicide." Is that also correct,
Senator Maltese?
SENATOR MALTESE: Madam
President, yes.
SENATOR DOLLINGER: And through
you, Madam President, the term "person" is
used in the definition of "homicide" in
Section 125.00. Isn't that correct, Senator
Maltese?
SENATOR MALTESE: Yes, Madam
President.
SENATOR DOLLINGER: And isn't it
also true -- again through you, Madam
President -- that we don't need to define
whether a fetus is a person in Section 125,
the homicide definition, because in that
section we've said that causing the death of
an unborn child which is 24 weeks in gestation
is murder. Isn't that correct, Senator
Maltese?
SENATOR MALTESE: Not exactly,
Madam President. Because the problem we have
here is that -- is one of interpretation.
This is why it is so important for the
Legislature to pass legislation that is very
3274
clear and very concise.
And I have two opinions before me.
One: The law of the State of New York
requires that in every case other than illegal
abortion, the victim of a homicide be a person
and provides the statutory definition of a
person set forth above. But courts indicate
that only a clear legislative pronouncement
will support a different interpretation."
In another decision, I believe
it's -- well, I'll get the case cite. "It is
certainly within the exclusive province of the
Legislature to provide a criminal sanction for
the nonabortional killing of an unborn child.
And it is the opinion of this court that the
Legislature has not so provided. The
Legislature had the opportunity to do so in
its lengthy deliberations concerning the
proposed Penal Law," et cetera, et cetera.
"However, neither the law enacted in '65 nor
the twenty years of subsequent legislative and
judicial action demonstrate a desire to
abrogate a 500-year-old principle of common
law" -- which was the born-alive common-law
principle that I referred to earlier.
3275
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Will Senator
Maltese continue to yield?
ACTING PRESIDENT McGEE: Senator,
will you continue to yield?
SENATOR MALTESE: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator continues to yield.
SENATOR DOLLINGER: We have a
disagreement about this. I'll talk about that
in a second.
The other question I have deals
with -- you have said that what happens if the
interference with a woman who is carrying a
child who wants that child is something that
we should protect, something that this
Legislature should protect.
Well, my question is, Senator
Maltese, what difference does it make whether
the mother wants or doesn't want the child?
Should we have a different rule if the mother
for some reason does not want to have that
child, that it should not be considered
3276
homicide?
And therefore should it be a part
of the prima facie evidence in a case to prove
homicide or assault, as you've described it,
at any time in gestation, that the mother
would testify that she either wanted or didn't
want the child?
SENATOR MALTESE: Madam
President, I'm not saying that.
I'm saying that in many of these
cases, especially the deliberate acts of the
fathers of some of these babies, these fetuses
that the father does not wish, in many cases
the reason that he is resorting to violence
against the woman carrying the child, as well
as the fetus, is because the woman has not
been willing to go through an abortional
act -- or the act, the violent act of the
father in those cases would not be necessary.
But it would not be an element of
proof, as Senator Dollinger knows, to have
testimony as to whether or not the woman wants
or does not want the child. It would not
matter.
I'm merely pointing out, in
3277
discussion referring to this legislation, that
in the vast majority of cases where violence
is inflicted on the mother and the unborn
child, the mother very much wants the child or
she would not be carrying it.
SENATOR DOLLINGER: Through you,
Madam President.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Senator
Maltese, do you have any evidence or any case
law that proves that? It's one of the wildest
allegations I've heard in my career in the
Senate, that suggests that this most often
occurs in instances where women want to have
the child, their boyfriend or husband says "I
don't want to have the child. You either go
through an abortion or I'm going to
perpetrate -- I'm going to shoot you or molest
you or assault you."
Do you have any evidence that
that's the case? Do you have any statistics
that demonstrate it? Do you have any case law
that suggests that happens right here in the
state of New York?
3278
ACTING PRESIDENT McGEE: Senator
Maltese.
SENATOR MALTESE: Madam
President, the discussion that we're having is
predicated on a number of cases that have been
brought to our attention over the now, I
believe, seven or eight years that we've
discussed this legislation.
In all that time, literally scores
of cases have been brought to my attention and
brought to the attention of supporters of this
type of legislation where the woman was
carrying a child that was unwanted.
For Senator Dollinger to term such
a statement indicating that the vast majority
of cases refer to women that want the child is
quite a reach, and it sounds to me like one of
the wildest allegations that I've heard in my
14 years in the Senate.
Therefore, Madam President, I
believe that the majority of cases, in the
vast majority of cases the child is a wanted
child, and that's the reason that the
perpetrator is seeking to inflict pain or
death on both the mother and the child.
3279
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Through you,
Madam President, I guess I would just point
out for the record that the only two
examples -
ACTING PRESIDENT McGEE: Are you
on the bill now?
SENATOR DOLLINGER: I'll be on
the bill for a second. Then I'll ask Senator
Maltese another couple of questions.
ACTING PRESIDENT McGEE: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I'll tell you
what, Madam President. I'll save my remarks.
If Senator Maltese would yield just to two
other questions.
ACTING PRESIDENT McGEE: Senator
Maltese, will you yield?
SENATOR MALTESE: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DOLLINGER: Through you,
Madam President. Senator Maltese, the
3280
requirement of intent in both homicide and
assault requires that the perpetrator intend
harm to his victim; is that correct?
SENATOR MALTESE: Yes. Yes,
Madam President.
SENATOR DOLLINGER: What if
the -- through you, Madam President, if
Senator Maltese will continue to -
SENATOR MALTESE: Excuse me,
Madam President, intends harm. Intends harm.
Not necessarily to the victim.
SENATOR DOLLINGER: Well, let me
go back.
The question that I asked, don't
you have to intend to harm a person? Is that
an element of the mens rea of the crime of
assault or homicide?
SENATOR MALTESE: Madam
President, yes.
SENATOR DOLLINGER: And through
you, Madam President, where is the requirement
in this bill that in order to be charged for a
homicide or assault on a fetus that the
perpetrator know and intend to harm the fetus?
SENATOR MALTESE: Madam
3281
President, obviously it is not in there. But
it would fall under the other provisions of
the homicide statutes and the assault statutes
and would be interpreted in a similar way to
all other assaults and all other homicides.
It's not within the four corners of the
legislation.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Through you,
Madam President, just one final question.
ACTING PRESIDENT McGEE: Senator
Maltese, will you yield for one more question?
SENATOR MALTESE: Yes, Madam
President.
SENATOR DOLLINGER: Senator, is
it a safe conclusion that, since you're
amending the definition of "person" rather
than the definition of "homicide," that what
you're really seeking to do here is to
establish personhood at any stage of gestation
for a fetus? That's really what this bill is
all about, isn't it, Senator Maltese?
ACTING PRESIDENT McGEE: Senator
Maltese.
3282
SENATOR MALTESE: Madam
President, that is not what we're seeking to
do. What we're seeing to do, in a lawyerlike
way, based on precedent and statutes and case
law, is to provide for the protection of the
mother and the unborn child.
This is a victim's rights bill,
which I said previously, which seeks to
protect the unborn fetus at any stage of
gestation. Which is why we're seeking to
change the definition of "person" within the
four corners of this legislation, this act
that seeks to protect the unborn as well as
the mother.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Through you,
Madam President. Senator Maltese has -
ACTING PRESIDENT McGEE: Are you
on the bill now, Senator?
SENATOR DOLLINGER: On the bill,
Madam President.
ACTING PRESIDENT McGEE: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: Senator
3283
Maltese has cued me to my amendment, Madam
President, which I believe has been served at
the desk. I would waive its reading and ask
to be heard on the amendment.
ACTING PRESIDENT McGEE: The
amendment is received, and the reading is
waived. You may be heard on the amendment.
SENATOR DOLLINGER: Thank you,
Madam President.
Senator Maltese says that what he
wants to do is protect victims. Here's the
perfect protection for victims of assault that
results in the termination of a pregnancy.
This is a bill, this is an amendment that's
called the "Motherhood Protection Act of
2002."
This bill will provide protection
for mothers. And it will do it in the
following manner. Number one, it increases
the penalties for assaults against pregnant
women. It increases the penalties. It will
say to those who are perpetrators, who under
Senator Maltese's description -- which I'll
talk about in a second -- of all of those
apparently voluminous cases which involve
3284
women who want to have a child, boyfriends or
husbands who don't and therefore perpetrate
violence against them to destroy the child,
which he claims are voluminous in number that
we've heard about for eight years -- we'll
deal with that in a second. But this bill
will provide them with a protection. It will
increase the penalties for assault on pregnant
women.
But it doesn't do just that, Madam
President. It shows that we're even more
serious than simply holding the perpetrator
criminally liable. Because it creates a civil
cause of action for gender-related violence.
It says that in those instances in which
gender-related violence occurs against women
that we're going to allow them to civilly
bring an action against the perpetrator where
they can recover in damages because of that
violence.
And the last thing it does is it
provides treble damages as a deterrent to the
conduct for any assault occurring against a
pregnant woman that results in a miscarriage
at any stage of gestation. So that we would
3285
substantially increase the penalties for
anyone who participates in this kind of
insidious domestic violence.
I think that this bill goes a long
way to doing what Senator Maltese's bill can't
do. Which is it not only increases the
criminal penalties, but it creates a civil
sanction as well, and creates a treble damage
penalty which will provide a further
disincentive for anyone engage engaging in
that horrible circumstance that Senator
Maltese talked about.
If you really want to protect
motherhood, if you want to send a message, I
would suggest that everybody in this chamber
vote for the "Protection of Motherhood Act of
2002" right now. I'm going to give you a
chance to do it in a second.
And I'll show you the wisdom of
this, Senator Maltese. This is a bill, this
is an amendment that is patterned after a bill
that became law in the United States Congress.
It was passed by the Congress, it was signed
into law. It was called the Violence Against
Women Act. It was passed under the last
3286
administration. It passed a Republican
Congress. It passed a Republican Senate. It
became law.
And then, somewhere, some
Republican judge said "We can't have the
federal government doing this. Only the
states should be able to do it." So they
struck it down, Madam President, and claimed
that Congress didn't have the power to put it
into law.
I would suggest, Senator Maltese
and my colleagues from the other side of the
aisle, the court in that case, the United
States Supreme Court, said that the states
ought to do this. Here's our chance. Here's
our chance to take up the invitation delivered
to us by the United States Supreme Court to
protect motherhood in a way that will work, to
provide treble damages for domestic violence
that results in a miscarriage, to create a
civil action for gender-related violence, and
to increase the penalties for assaults against
pregnant women.
This is the way to do it, Madam
President. I'm very proud to stand here and
3287
ask that the house adopt this worthwhile
amendment, the "Motherhood Protection Act of
2002." Madam President, I submit the
amendment for a vote.
ACTING PRESIDENT McGEE: Those
Senators in agreement with the amendment
please raise your hands.
THE SECRETARY: Those recorded in
agreement are Senators Andrews, Breslin,
Brown, Connor, Dollinger, Duane,
Hassell-Thompson, Hevesi, L. Krueger, Lachman,
Mendez, Montgomery, Onorato, Oppenheimer,
Paterson, Sampson, and A. Smith.
ACTING PRESIDENT McGEE: The
amendment is defeated.
SENATOR DOLLINGER: Thank you,
Madam President. Just briefly on the bill.
ACTING PRESIDENT McGEE: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: Thank you.
Madam President, I want to make it very clear
to everybody in this house that we already
protect pregnant women from, frankly, the
destruction of their fetus prior to reaching
term. It's contained in the homicide law.
3288
Despite Senator Maltese's attempt
to define personhood, we don't need to
redefine personhood to protect women in this
state. They are already protected. Pregnant
women and their unborn child, which Senator
Maltese refers to, are protected.
The phrase "homicide" includes -
it's "the death of any person or any unborn
child that's more than 24 weeks in gestation."
We already protect unborn children that are
more than 24 weeks of age.
The reason why we do that, Madam
President -- and Senator Maltese is correct
when he talks about abortion. That's largely
in there as a result, as a pattern of Roe
versus Wade, in which the court said -- the
United States Supreme Court said that the
protection of the state can extend to the
third trimester. At that point, the state has
an interest and can protect the life of the
unborn child.
And in fact, the Supreme Court has
said it can protect the life of an unborn
child except -- and we've been through this
before, Senator Maltese, when we debated other
3289
amendments involving abortion -- and that is
it cannot protect that child, the state cannot
protect the child's interest over that of the
mother when the life and health of the mother
are at stake. That's the law in this nation,
Senator Maltese.
I believe that the current law
provides an adequate balance and an adequate
protection for unborn children that are of -
that have reached the third trimester.
In my judgment, what this is really
all about, Senator Maltese, is because you're
attempting to define personhood as any time in
the gestational period, you're going to create
a whole host of different legal questions -
of intent, of understanding, of whether the
child is a wanted child, of whether the mother
knew she was pregnant. Countless issues that
in my opinion will only obfuscate, rather than
clarify, what this statute is all about.
But through you, Madam President, I
believe this is all about a redefinition of
personhood, to try, quite frankly, to begin to
chip away at Roe against Wade. I think it's a
mistake, Madam President.
3290
Let's be absolutely clear. We do
protect unborn children that are more than
24 weeks of age. We do have protections, it
is a homicide. That's the way to go. That
compromise was struck years ago. It is still
valid. It still reflects the federal and
state policy. And from my point of view,
Madam President, it should not be changed.
I'll be voting in the negative.
ACTING PRESIDENT McGEE: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Thank you,
Madam President. I guess I have one question,
if the good Senator would yield.
ACTING PRESIDENT McGEE: Senator
Maltese, will you yield for a question from
Senator Oppenheimer?
SENATOR MALTESE: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR OPPENHEIMER: Senator
Dollinger has covered a lot of the legal
points. There was one thing that you said
that he questioned and that I'd like to
3291
question too.
And that was you said that the -
in the case where the parents really wanted
the baby very, very much. And that harkens
back to something you were talking about in
the last session when the third-trimester
abortion bill was before us. And I was
talking about these parents that had found out
their child had a tragic malformation, that
there was something that had gone extremely
wrong, and that the fetus could really not
survive, it was not viable outside of the
womb.
And I also mentioned at that time
that in our nation, to take a fetus, an unborn
child's life in the third trimester, if it is
sustainable outside of the womb, is murder in
our country.
If you feel strongly about the
parents who desperately wanted these
children -- because they wouldn't be carrying
them till the third trimester -- then you
should be supportive of the issue of
third-trimester abortion, because these people
are tragically sad that they have to lose a
3292
child.
So you were talking about the way
parents felt, and then I wanted to hear your
explanation for why you're against third
trimester.
SENATOR MALTESE: Well, Madam
President -
ACTING PRESIDENT McGEE: Senator
Maltese.
SENATOR MALTESE: -- this
legislation is -- stands here before us today.
And in this legislation one of the specific
protections, if you will, of the parents who
would seek to perform an abortional act is
right in here.
It definitely, it specifically
states that under no circumstances will the
woman be criminally prosecuted under the terms
of this legislation, and specifically provides
that no medical examination or treatment could
be found to be criminally prosecuted under
this section.
So what we've done is protected the
right of that mother, who even prior -- even
subsequent to the 24-week exclusion -- which I
3293
believe Senator Dollinger is correct, provides
for the protection of the unborn past 24
weeks, and is also, I believe, specifically
included in the majority decision in Roe
versus Wade, that the court at that point has
an interest in protecting the unborn child
because it feels that by protecting the unborn
child it protects society.
And so -- but as far as your
question, I believe that there is no way under
this legislation that a mother or a medical
practitioner would be prosecuted under this
act. No way.
ACTING PRESIDENT McGEE: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Thank you
very much.
I actually was questioning
something that had occurred in the last
session. And what I was suggesting is that
consistency would have you still support women
who had to have a third-trimester abortion.
But thank you, Senator.
Now on the bill, if I may.
ACTING PRESIDENT McGEE: Senator
3294
Oppenheimer, on the -
SENATOR MALTESE: If I might just
respond.
ACTING PRESIDENT McGEE: Senator
Maltese.
SENATOR MALTESE: I don't
remember who said it, but it probably was a
woman who said consistency is the hobgoblin of
small minds. And they probably were referring
to men.
ACTING PRESIDENT McGEE: Senator
Oppenheimer, on the bill.
SENATOR OPPENHEIMER: I want to
thank Senator Maltese.
I think we all know why pro-choice
supporters are so against this bill. Because
we would not subscribe to the belief that a
fetus unborn is a child. An unborn fetus
isn't a child. A fetus is not a person. And
a fetus shouldn't have legal rights, because
it is not a person.
And I think that is why it is
stalled in Congress, passing one house,
probably will not pass the other house. And
also it is only a one-house bill here in the
3295
New York State Legislature.
Because at the very heart of this
issue is the question of -- is the abortion
issue. And so we question why is it before us
now. And I think it's because this is a lull
period, a period in between important things
that are happening here.
And while many people such as -
Senator Maltese, I know, brings this up as a
point of conscience. But for many others it
is a point of politics and only politics.
And I think that it is well
understood why all the pro-choice supporters
will be against this.
ACTING PRESIDENT McGEE: Senator
Connor.
SENATOR CONNOR: Thank you, Madam
President.
You know, I must say I've read all
the memos on this by the different advocacy
groups. And I think on both sides they
exemplify extremism run amok.
The so-called pro-choice advocates
I think go way overboard in speculating where
this would could or would lead, this
3296
legislation. I think the advocates for it,
this bill, go overboard in the other
direction.
I think the purpose that Senator
Maltese is trying to accomplish by this bill,
at least the stated purpose, could easily be
accomplished by legislation drafted in a way
that it would receive unanimous support in
this house and maybe have a chance of passing
in the other house.
You know, Senator Dollinger pointed
out, Madam President, that under existing
homicide law, a fetus after 24 weeks of
gestation can in fact, under our current law,
be deemed the victim of a homicide.
Madam President, a trial concluded
not a week ago involving an incident in my own
district, in my own county. The now-convicted
police officer, who was drunk after an all-day
binge, then mowed down a family in my
district -- mother, a couple of children. A
pregnant mother.
The DA initially -- the grand jury
initially indicted -- I'm losing track here -
I guess for three homicides, and then amended
3297
the indictment to include, at the insistence
of the victims' family, to include the unborn
child. And that indictment stood.
That indictment stood in that case,
and there was a conviction. So under existing
law, there is certainly protection, at least
at that stage of gestation.
I have no problem with -- you know,
this whole debate is over "person" and how you
define it. If what we're really trying to do
is protect the unborn child of a mother who
wants to have that -- to me, that's the
essence of pro-choice, by the way.
Pro-choice. People choose to carry their
pregnancy because they want to go to term and
have a child. And other women choose not to
do so. And the Supreme Court has said that's
their right.
I'm going to vote against this
because I think it's drafted poorly. I think
it's drafted to be controversial when it
needn't be controversial. With all due
respect, Madam President, to Senator Maltese,
I would urge him to sit down and talk to some
people. This can be redrafted so that it
3298
would accomplish the same purpose and receive
unanimous support.
Because I don't think there's a
member in this house -- I know I wouldn't -
who wouldn't vote for a bill to absolutely
have severe punishment for anyone who
intentionally assaults a pregnant woman, or a
woman who happens to be pregnant, and causes
damage to the fetus, causes her to terminate a
pregnancy that she really wanted to -- that
she in fact wanted to carry to term.
I think that ought to be a special
crime. I think we're now just caught in this
wedge between people who have been shouting at
each other instead of talking to each other.
If we talk to each other, we can get a bill
that could actually become law and perhaps
fill in what may -- I'm not convinced, but
what may be a gap in the law with respect to
pregnancy in the first two trimesters.
But I really think this is clearly
trying to be used as a wedge issue to
please -- by its sponsors, to please people of
one ideology, and by the opponents who are
fearful and are expressing their own ideology.
3299
And it needn't be that, Madam President. It
really needn't be that.
We can do this. We can protect
pregnant women from assaults. We can punish
those who would assault a pregnant woman or
those who do assault a pregnant woman and
cause damage to a fetus at any stage of its
development. That's easily accomplished
without getting into this kind of dispute,
that the wording, the wording of this bill
is -- not the object of the bill, not the end
goal of the bill, not the result of the bill,
but the wording of the bill has caused.
I think it just causes needless
controversy and finger-pointing, fear,
conflict among pro-choice and antichoice
advocates. And it just shouldn't be there.
And I'm kind of disappointed that
we fall into this. We don't need to carry
this as an ideologically driven bill. This
can be done as a bill that is just designed to
protect women and the unborn children they're
carrying.
So that said, Madam President, the
way this is worded I'm not voting for it, I'm
3300
not going to fall into that game. But I would
urge the sponsor to redraft it. And frankly,
Madam President, if he won't, I think I'll
draft my own bill and file it.
Thank you.
ACTING PRESIDENT McGEE: Senator
Hoffmann.
SENATOR HOFFMANN: Thank you,
Madam President.
There are few issues that polarize
the members of this chamber the way this one
does. And there are few issues that have
brought women into the governmental arenas
with greater sense of urgency than this one
has.
I can remember very well being a
young woman coming to this Capitol in 1968 to
help lobby for changes in the law at that time
that prevented women from obtaining a legal
abortion in New York State. And I vowed at
that young age that I would do everything in
my power, in or out of government service, to
protect the right of all women at all times to
make that decision as they would determine
with the advice and support of their families
3301
and their doctors.
I also vowed that I would try to be
cognizant of any efforts that would erode
their right once it was dutifully granted by
the State of New York and at the federal level
by Roe versus Wade.
The measure that we have before us
today regrettably is another attempt to erode
a woman's right to choose.
There are several memoranda that
have been circulating, and I believe that the
language in them speaks more poignantly than
many of us can on such short notice today,
since this bill has just arrived before us.
So if you would indulge me, Madam
President, I would just like to read a few
excerpts of some memos that I hope in the
record will perhaps help signify the
significance of this issue as it appears
today.
The esteemed League of Women Voters
in the State of New York writes: "The League
of Women Voters has always urged the New York
State Legislature to protect women and
children from violence. This bill, however,
3302
uses the tragedy of women being assaulted for
another purpose. While pretending to be a
pro-woman measure, it is a proposal advanced
by antichoice forces and sponsored by
antichoice legislators which diverts the folks
focus from the victim of the assault to the
fetus she is carrying. It even brazenly
redefines "fetus" in a way which contradicts
the medical definition of the term."
From Family Planning Advocates, I
read: "Violence against women is a
significant problem in New York, and Family
Planning Advocates supports legislation that
effectively addresses the issues of battered
women and children. Therefore, it is
distressing to see legislators using violence
against women as an excuse to advance their
antichoice, antiwoman agenda. This
legislation is part of a concerted effort to
undermine the constitutional protection of Roe
versus Wade by endowing a potential life with
personhood rights.
"We deeply sympathize with the
tragic situation of a prospective parent whose
plans to continue a pregnancy are thwarted by
3303
the criminal action of another. Sadly, that
is not the focus of this legislation. The
bill is not designed to protect women, but to
strip women of their right to choose by
attaching rights of personhood on an unborn
fetus or embryo."
I think the point has been made
very clearly today that by redefining the law
in such a way that we have violated medical
terminology, ascribed personhood to a fetus
that is not yet viable, we are once again
saying that women are no more than mere
vessels carrying a child.
That takes us back to an age when
women did not have the right to vote, did not
have the right to own property in this state
or any other state. It renders women unequal
by elevating the fetus or the unborn child, if
indeed viable, ahead of the woman. Whether it
is intentional or unintentional, that is the
effect of this legislation before us today.
It pains me that we would be
debating this bill today when we should so
obviously be debating the budget instead.
Hopefully that will come to us later today. I
3304
am used to being a member of the Minority, for
many years on the other side of the aisle.
Today I find myself a minority in the Majority
in a very partisan system of government. But
I am comfortable with the position I have
taken. And I believe firmly that in the end
this measure will not become law in this
state.
I urge my colleagues, including the
esteemed Senator Maltese, my good friend and
neighbor to the -- to my right. Clearly to my
right.
(Laughter.)
SENATOR HOFFMANN: -- to take
with goodwill the wishes of all of us that
this measure should go back to the drawing
board, should be redefined so that it does not
pit the rights of women against the rights of
the unborn at any age. Do not make us feel
that our hard-fought rights in Roe versus Wade
are as fragile as they appear today.
I pledge my support to work on a
more meaningful piece of legislation.
Regrettably, the amendment that came before us
a few moments ago I had never seen before. On
3305
a cursory reading, I see some technical
errors. While I sympathize with the intent, I
want anyone listening to understand that the
procedures in this house do not allow us time
to give the kind of deliberation to the
canvass of agreement or motions to discharge
that we would all like to be able to
deliberate as legislation.
That too is an issue that requires
change and cooperation within this legislative
body. And I hope someday to see people less
frustrated in their attempt to make their
voices heard on matters as important as this
one.
But today, Madam President, I'll
vote no on the piece of legislation before us.
ACTING PRESIDENT McGEE: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President.
After Senator Hoffmann, the only
thing that I can say is thank her,
congratulations. And I appreciate the fact
that she has articulated quite clearly my
sentiments on this issue.
3306
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. On the bill, please.
I'd also like to thank Senator
Hoffmann for raising so many of the excellent
issues that I feel so many of us here in this
chamber felt in response to this bill. And
the fact that this is an attempt to challenge
a woman's right to choose.
And Senator Maltese, in his earlier
statement, said that this was a woman's bill.
And I have to disagree. In fact, I think that
you talked about public opinion polls before.
Public opinion polls show that the vast
majority of Americans want to ensure a woman's
right to choose.
And I think the fact that there
were no women legislators who were cosponsors
on this bill also reflects the views of women
in our Legislature.
But I'd like to address the
underlying issue that I also believe you were
raising today, the issue of protecting
pregnant women from crime. And I would argue,
3307
and I believe that Senator Dollinger's
amendment to your bill attempted to do so,
that the best way for this Legislature to
ensure that we protect pregnant women from
being victims of crime is to protect all women
from being victims of crime.
And you raised three examples in
your arguments earlier on about the need for
this bill. One was an issue of negligent
driving. And it was a horrendous situation.
But I very much doubt that the perpetrator of
that accident intended to harm a pregnant
woman, but rather was guilty of very negligent
driving.
And that we need to address and
ensure that people who do not have control of
their cars or people who might be under the
influence of alcohol or drugs -- although that
wasn't referenced in your specific example -
are not driving dangerous vehicles where they
can harm anyone, man or woman, pregnant or
not.
And then you used a second example
of someone shot and killed by their boyfriend
when they were pregnant, although again you
3308
weren't sure whether in fact there was
knowledge of the pregnancy. Again, the issue
there is domestic violence with guns. Why do
people with guns -- why do people have access
to guns? Why are people killing other people
they know with guns?
And then your third example was of
a robbery and shooting, again of a pregnant
woman. But there the underlying issue is why
do thieves on our streets have such easy
access to guns.
And I would argue we have things we
can do in this Legislature to address the
broader concern of ensuring that pregnant
women are not victims of crime by ensuring
that fewer women -- and indeed, fewer men -
are victims of violent crime.
We can pass stronger domestic
violence protections. Several bills are out
there in both the Senate and the Assembly.
One would address the fact that if you're a
woman who is not married to a man but rather
living with a man, but without child, that you
don't have the same protections in our
domestic violence laws. That's a law we can
3309
all agree to pass.
We should be passing a bill
supported by Senator Velella, S6601, which
would make it more difficult for people who
have been charged with -- excuse me, I'll just
get the wording right -- people who have an
order of protection -- or a current willful
violating an existing order of protection
should not be allowed to have access to a gun.
The fact is that so many women who
are victims of crime are victims of crime from
people they know. We have to strengthen our
protections to ensure that people who are
intending to do harm through domestic violence
or people who are criminals do not have access
to guns.
So I would urge that this house
support Senator Velella's bill, which would
make it far more difficult for people who are
likely to be the criminals in these cases to
have access to guns so that they can harm
women, whether they were pregnant or not.
And in fact, Senator Dollinger
raised before a question about how many people
were victims of crime, not just because they
3310
were pregnant but because of their pregnancy.
And you mentioned that you knew of any number
of cases. Well, I have not been in the Senate
for 14 years as you have been. I've only been
here for 10 weeks. So I tend to come with a
bit more of the Missouri rule: Show me.
Because I haven't seen data that
shows that there are large numbers of victims
of crime who are in fact targeted specifically
because of their pregnancy by people they know
or don't know.
But there are reams of data about
the number of people who are harmed in our
state because they are the victims of being
shot by people who have guns who have no
business having guns. And there's an enormous
amount of data out there on the fact that
women are disproportionately the victims of
crimes in domestic disputes where guns are
used.
So I would urge this house to
explore what we can do to truly protect women,
pregnant women, and men from being the victims
of crime. We have many laws that have been
sponsored that we could pass in both houses.
3311
The bill proposed today will not get us any
closer to the solution. Thank you.
I will vote no on the bill.
ACTING PRESIDENT McGEE: Senator
Meier.
SENATOR MEIER: Evidently I sit
not only to the right of Senator Maltese but I
certainly sit to the right of Senator
Hoffmann, were she here.
Senator Dollinger earlier was
trying to lean on Section 125 of the Penal
Law, which -
ACTING PRESIDENT McGEE: Senator
Meier, will you suffer an interruption?
SENATOR MEIER: Certainly.
ACTING PRESIDENT McGEE: Senator
Alesi.
SENATOR ALESI: Thank you, Madam
President. Thank you, Senator Meier.
Would you please call the last
section for the purposes of Senator Seward to
cast a vote.
ACTING PRESIDENT McGEE: For the
purposes of Senator Seward to cast his vote,
please read the last section.
3312
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
SENATOR SEWARD: I vote aye.
ACTING PRESIDENT McGEE: Senator
Seward, in the affirmative.
SENATOR ALESI: Thank you, Madam
President. Will you withdraw the roll at this
point.
ACTING PRESIDENT McGEE: Roll
call is withdrawn.
Senator Meier, thank you so much
for the interruption.
SENATOR MEIER: Thank you, Madam
President.
Senator Dollinger read Section 125
of the Penal Law, which defines "homicide."
To quote one of my beloved professors in law
school, Professor Freed, who when he got an
incomplete answer would frequently say:
"That's a very interesting answer, Mr. Meier.
Now let's read the next section and the
3313
section after that."
Because the Penal Law, as it deals
with homicide and assault offenses, clearly
deals with those offenses in terms of the
victim being a person. It uses the term
"person." Only in the area of the few
remaining areas where abortion is a crime in
New York does the section that Senator
Dollinger read, the particular part that he
read involving a fetus or an unborn child of
greater than 24 weeks, does that have
application.
So what Senator Maltese has tried
to do is to address this issue without
dissecting the entire criminal law as it
applies to homicide and assault.
Now, lawyers will tell you that
when you start doing that, you start messing
with certain terms of art in a statutory
structure that will create mass confusion in
the entire area of homicide and assault.
Senator Connor, I think, although I
disagree with much of what he said, took a
rather measured approach to this. But I think
there's also something interesting in Senator
3314
Connor's comments. There was an
acknowledgment that this ought to be
addressed -- albeit he doesn't like the bill
before the Senate presently -- but that
somehow this ought to be addressed in our
criminal law.
And there is an implicit
acknowledgment there, then, that a homicide or
an assault which brings about an injury or
death to a fetus -- and even Roe v. Wade
acknowledges that a fetus is a living thing -
that this is somehow an act which is
different -- it is different qualitatively, it
is different quantitatively -- than an assault
which harms the woman alone, because it harms
something else.
And let's face it. What we have
here is maybe a certain squeamishness about
vocabulary. Because people choose terms to
dance around what we're dealing with here.
And Senator Connor's remarks, quite frankly,
are an acknowledgment that we're dealing with
something that's more important than a blob of
tissue. And that's what troubles people,
isn't it. That's what troubles people.
3315
And that is precisely what makes
this an act that has greater ethical and moral
and personal dimensions to the pregnant mother
than if she were not pregnant at all and if
she were simply harmed by herself, the fact
that something -- and we don't want -- this is
not about abortion. It's not about when life
begins, necessarily.
It is about that fact that we're
all so squeamish about and everybody wants to
dance around, that this is something more than
a blob of tissue. And she has a right to make
that decision, under the present law of this
land, whether she chooses to carry it to term.
And I'm not going to debate about Roe v. Wade
or what I think about it or you think about it
or anybody else does. It is about more than
that.
And another thing Senator Connor
said that, believe it or not, I'll agree with,
is that there's some extremism maybe on both
sides of this issue. And part of the
extremism seems to be, I think, on the
pro-choice side, I must say, which seems to
feel that choice is only worthy of respect,
3316
it's only worthy of protection in law when
it's exercised on the side of abortion.
And by the way, the trial that just
took place in the city of New York, the tragic
incident where the police officer was
intoxicated and decimated that family, one of
the elements of proof the district attorney in
that case had to put in, although it was
disputed, was that the unborn child was born
alive and lived for a period of some seconds.
And it was one of the disputed elements in
that trial.
I will sit down now. But I must
tell my colleagues that one of the things that
disturbs me is last year or the year before we
passed a statute in this chamber, the other
body passed it, the Governor signed it, it's
called Buster's Law. And we made a felony out
of torturing or killing domestic animals, cats
and dogs. And a lot of people in this chamber
and in the other body issued press releases
and we patted ourselves on the back.
And we afford more protection in
this country to people who lose a domestic
animal than we do to a pregnant woman who has
3317
a criminal deprive her of her choice to give
birth to that child.
I'm going to very proudly vote for
Senator Maltese's bill.
ACTING PRESIDENT McGEE: Senator
Lachman.
SENATOR LACHMAN: Forgive me,
Madam President. I'm still writing my remarks
out. I hope they do make some sense, though.
I am supporting this bill because I
believe that acts of violence against pregnant
women should be punished more severely than
similar acts against other people.
Frankly, I would have preferred had
the bill achieved this objective without
defining a fetus at any stage of gestation as
a person. Frankly, the definition proposed in
this bill seems unnecessary to me and treads
upon very sensitive religious territory that
would probably best be left to theologians
rather than legislators.
Nonetheless, we all have to make
choices in life, and I am satisfied that the
bill is carefully drawn to limit that
definition to the specific context of this
3318
legislation. Because of the importance of
providing extra protection for pregnant women,
I will cast my vote in favor of this bill.
ACTING PRESIDENT McGEE: Senator
Farley.
SENATOR FARLEY: Thank you.
Senator Meier, I was very moved by
what you had to say. You know, I think I have
as many women in my district as anyone else
here. We all represent the same-sized
district. I haven't run into any women that
don't support this concept.
The United States Congress passed
this overwhelmingly, on a bipartisan basis,
overwhelmingly. It's an issue that needs to
be addressed.
You know, I don't see this as a
pro-choice/pro-life type of situation at all.
Gee, if we've ever had a pro-woman piece of
legislation come before this house, I think
this is it. Unless I'm looking at something
strangely, I think that this is very much a
crime against a woman that wants to bear a
child. It's a criminal act.
Senator Maltese, nobody has the
3319
perfect bill. No one. I've never seen one
yet. But this does address a problem that
needs to be addressed. And I think anybody -
you speak to any woman. Unless they've got an
agenda, they want this issue addressed. And I
think if this bill -- your bill hit the floor
of the Assembly, it would pass in a New York
minute.
I'm going to vote aye.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, first, I have had a number of
conversations with Senator Maltese over the
years about crimes against children, crimes
against unborn children. We at different
times worked in the same law enforcement
office in Queens. And I've never doubted that
he is taking this issue of crimes against
fetuses, crimes against pregnant women very
much to heart.
However, I think that there is an
awareness of time impinging upon the concept
of justice. The fact is that it has been
stated rather clearly by those who do not
3320
agree with the current law as it stands with
respect to choice that there will be -- just
about any measure taken that would even create
confusion or diminish that right would be
supported by them.
And we've seen legislation such as
that in the past: late term abortion, partial
birth abortion, Medicaid funding of abortion.
And in spite of what the sponsor
and many people who support this bill may
believe, there will be an attempt to
manipulate the spirit of this legislation to
perhaps create a new definition in the law of
what is a person and perhaps translate that
new definition into some kind of action which
would diminish the right of choice for women
in this state.
It's my opinion that we can write a
bill, as Senator Connor suggested previously.
That can address these concerns, maybe even as
much as creating a new law to cover the fetus
prior to the time when it's before 24 weeks of
gestation, that we have a law that would
correspond to what everyone here would want to
see.
3321
Which is what Senator Meier really
was speaking to, is the issue that there not
be a -- that there be a difference drawn
between an individual who's the victim of a
crime and a pregnant woman who's the victim of
a crime.
I think that can be accomplished.
It would in many respects take a concerted
effort on both sides of this chamber to craft
the language so as to be in compliance with
the law, as Senator Meier admonished us as he
was speaking.
But I do not see this piece of
legislation accomplishing that without
significant risk to laws and to rights that
individuals have in this state.
ACTING PRESIDENT McGEE: Senator
Alesi.
SENATOR ALESI: Thank you, Madam
President. Would you please call the roll at
this point so that Senators Stavisky and
Marcellino can cast a vote, as well as Senator
Leibell.
ACTING PRESIDENT McGEE: The
Secretary will read.
3322
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Senator
Alesi, it's come to my attention that there is
no one else that wishes to speak on the bill.
SENATOR ALESI: Thank you, Madam
President.
ACTING PRESIDENT McGEE: The
Secretary will read the last section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 1196 are
Senators Andrews, Breslin, Brown, Connor,
Dollinger, Duane, Hassell-Thompson, Hevesi,
Hoffmann, L. Krueger, Lack, Mendez,
Montgomery, Oppenheimer, Paterson, Sampson,
3323
A. Smith, Spano, and Stavisky. Ayes, 39.
Nays, 19.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Alesi.
SENATOR ALESI: Thank you, Madam
President. May we at this time take up
Calendars 1197 and then 1198.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
1197, by Senator Wright, Senate Print 6357, an
act to amend the General Business Law and the
Executive Law, in relation to requiring
cellular service providers.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT McGEE: The bill
is passed.
3324
THE SECRETARY: Calendar Number
1198, by Senator Wright, Senate Print 6358, an
act to amend the General Business Law, in
relation to the provision of cellular service.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the 30th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Alesi.
SENATOR ALESI: Thank you, Madam
President. May we stand at ease for a moment.
ACTING PRESIDENT McGEE: The
Senate will stand at ease for a moment.
(Whereupon, the Senate stood at
ease at 3:20 p.m.)
(Whereupon, the Senate reconvened
at 3:25 p.m.)
ACTING PRESIDENT McGEE: Senator
Alesi.
3325
SENATOR ALESI: Thank you, Madam
President.
May I ask that we lay aside
Calendar Number 343 for the day, and
anticipate that there will be a supplemental
calendar and that we continue to stand at ease
momentarily.
ACTING PRESIDENT McGEE: The bill
is laid aside.
And we will stand at ease for a few
moments in anticipation of a calendar.
(Whereupon, the Senate stood at
ease at 3:26 p.m.)
(Whereupon, the Senate reconvened
at 4:06 p.m.)
ACTING PRESIDENT McGEE: Senator
Fuschillo.
SENATOR FUSCHILLO: Madam
President, there will be an immediate meeting
of the Majority conference in the Majority
Conference Room.
ACTING PRESIDENT McGEE: Thank
you, Senator Fuschillo.
There will be an immediate meeting
of the Majority party in the Majority
3326
Conference Room. Immediately.
SENATOR FUSCHILLO: Thank you.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: On behalf of
Senator Krueger, I'd like to call -- and
that's Senator L. Krueger -- an immediate
conference of the Minority in the Minority
Conference Room.
ACTING PRESIDENT McGEE: There
will be an immediate conference of the
Minority in the Minority Conference Room.
SENATOR PATERSON: Madam
President, I've never understood, if we're
going to have these meetings, why don't we all
just come in here and close the doors and have
a meeting, and we can get out of here.
ACTING PRESIDENT McGEE: Thank
you, Senator Paterson.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, during the conferences the Senate
will stand at ease.
ACTING PRESIDENT McGEE: The
Senate will stand at ease during the
3327
conference.
Thank you, Senator Fuschillo.
SENATOR FUSCHILLO: Thank you.
(Whereupon, the Senate stood at
ease at 4:07 p.m.)
(Whereupon, the Senate reconvened
at 5:10 p.m.)
SENATOR SKELOS: Madam President.
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: Is there any
housekeeping at the desk?
ACTING PRESIDENT McGEE: Yes,
there is. We have two motions.
Senator Morahan.
SENATOR MORAHAN: Thank you,
Madam President.
On page 10 I offer the following
amendments to Calendar Number 224, Print
Number 2656A, and I ask that the 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 the Third
Reading Calendar.
3328
SENATOR MORAHAN: That was on
behalf of Senator Larkin.
Again on behalf of Senator Larkin,
Madam President, on page 25 I offer the
following amendments to Calendar Number 559,
Senate Bill 3403, and I 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 the Third
Reading Calendar.
Senator Skelos.
SENATOR SKELOS: Madam President,
there being no further business, I move we
adjourn until May 16th at 10:00 a.m.
ACTING PRESIDENT McGEE: There
being no further business, the Senate stands
adjourned until tomorrow, May 16th, at
10:00 a.m.
(Whereupon, at 5:11 p.m., the
Senate adjourned.)