Regular Session - May 21, 2002
3636
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
May 21, 2002
11:10 a.m.
REGULAR SESSION
SENATOR PATRICIA K. McGEE, Acting President
STEVEN M. BOGGESS, Secretary
3637
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: In the
absence of clergy, may we bow our heads in a
moment of silence, please.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT McGEE: Reading
of the Journal.
THE SECRETARY: In Senate,
Monday, May 20, the Senate met pursuant to
adjournment. The Journal of Sunday, May 19,
was read and approved. On motion, Senate
adjourned.
ACTING PRESIDENT McGEE: Without
objection, the Journal stands approved as
read.
Senator Skelos.
SENATOR SKELOS: Madam President,
3638
there will be an immediate meeting of the
Energy Committee in the Majority Conference
Room.
ACTING PRESIDENT McGEE: There
will be an immediate meeting of the Energy
Committee in the Majority Conference Room.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could just continue, please.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Senator Lack,
from the Committee on Judiciary, reports the
following nominations.
As a judge of the Court of Claims,
John J. Brunetti, of Baldwinsville.
ACTING PRESIDENT McGEE: Senator
Lack.
SENATOR LACK: Thank you, Madam
President.
I rise to move the nomination of
3639
John J. Brunetti, of Baldwinsville, as a judge
of the Court of Claims, to succeed himself.
We've received the paperwork on the
nomination from the Governor. We found his
credentials excellent and all in order. He
appeared before the committee earlier this
morning and was unanimously moved to the floor
for consideration at this time.
And I most respectfully yield to
Senator DeFrancisco for purposes of a second.
ACTING PRESIDENT McGEE: Senator
DeFrancisco.
SENATOR DeFRANCISCO: I'm very
proud to stand and second the nomination of
John J. Brunetti. John is a close friend, as
is his wife, who's with him today.
He's an individual that practiced
law for a short period of time with me, but a
most enjoyable period. And he also was my
legislative counsel. Now, that's the minor
stuff.
The important things that he did
and what show how well-qualified he is is that
he's doing criminal cases in the Court of
Claims. And the criminal cases require a
3640
background in criminal law. That background
includes as an Assistant U.S. Attorney, the
first assistant attorney for the District
Attorney's office. He teaches law school at
Syracuse University, as he's done in evidence
and various other subjects.
He's published various articles,
but most recently has published a book. As
his resume shows, it's the -- in my mind, it's
the definitive work on confessions for the
state of New York, and it's published by Gould
Publishing.
John is a wonderful human being, an
individual who has great legal ability. But
most of all, he's a man of integrity,
character, and evenhandedness. Anyone who has
to appear before him, under circumstances that
they don't like to appear before him in a
criminal case, has to feel that no matter what
their circumstances are, they're going to be
treated fairly. And they are treated fairly.
So I'm very, very proud and pleased
to second the nomination for Court of Claims
Judge, my friend John J. Brunetti.
ACTING PRESIDENT McGEE: The
3641
question is on the nomination of John J.
Brunetti as a judge of the Court of Claims.
All in favor will signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: John J.
Brunetti is hereby confirmed as a judge of the
Court of Claims.
Joining us today is Judge Brunetti
in the chamber, along with his wife, Rockette,
and friends.
Thank you. Welcome aboard, Your
Honor.
(Applause.)
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: As a judge of the
Court of Claims, William C. Donnino, of
Syosset.
ACTING PRESIDENT McGEE: Senator
Lack.
SENATOR LACK: Thank you again,
Madam President.
3642
I move the nomination of William C.
Donnino, of Syosset, to succeed himself as a
judge of the Court of Claims.
Again, we examined the credentials
of the candidate. They were all in order. He
appeared before the committee earlier this
morning, was unanimously approved to go to the
floor for consideration at this time.
And I most happily yield to Senator
Marcellino for purposes of a second.
ACTING PRESIDENT McGEE: Senator
Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President. Thank you, Senator Lack.
I appreciate the opportunity to
rise today to second the nomination of William
C. Donnino, a Syosset resident, as judge of
the Court of Claims. Syosset is my home
district, my hometown. The judge lives a
short distance away, and I don't think we've
ever met.
But it is my pleasure to -- after
reviewing his extensive resume, which goes
back over 40 years of experience in the law
and practicing law in New York, and a Court of
3643
Claims judge since 1989, this resume and his
experience speaks for itself.
However, I did venture out to make
a few phone calls and find out about the
judge. And I asked a couple of attorneys that
I know who practice regularly before the bar.
And they tell me this judge's credentials are
superior, that he is a pleasure to appear
before, and that it is a credit to the court
that he is on that.
And I thank Governor Pataki for
making his renomination and keeping such a
fine jurist on the Court of Claims. I am
confident he will continue to serve admirably
for many years to come, and I am proud to
count Mr. Donnino as a constituent and wish
him well.
ACTING PRESIDENT McGEE: Senator
Volker.
SENATOR VOLKER: Madam President,
I just want to say very quickly that all four
of the nominees today are all excellent
nominees. And all of them have worked with
the Legislature one way or another, have a
connection with the Legislature.
3644
Bill Donnino and I were friends for
many, many years. He's an excellent lawyer,
he's been a great judge.
And I think it's a tribute to
Governor Pataki and to the Court of Claims
that we have such excellent people going to
the Court of Claims.
And I especially want to commend
Bill, who we miss him here in the Legislature,
but I know he's doing a great job in the Court
of Claims.
ACTING PRESIDENT McGEE: The
question is on the nomination of William C.
Donnino as a judge of the Court of Claims.
All in favor will signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: Judge
William C. Donnino is hereby confirmed as a
judge of the Court of Claims.
And joining us in the chambers this
morning is the Honorable William C. Donnino,
with his wife, Catherine.
3645
May I take this opportunity to say,
on behalf of the New York State Senate,
welcome aboard and congratulations to you.
(Applause.)
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: As a judge of the
Court of Claims, Guy J. Mangano, Jr., of Long
Beach.
ACTING PRESIDENT McGEE: Senator
Lack.
SENATOR LACK: Thank you, Madam
President.
I rise to move the nomination of
Guy J. Mangano, of Long Beach, to succeed
himself as a judge of the Court of Claims.
We received the nomination from the
Governor. We examined the credentials of the
candidate. They were found to be excellent.
He appeared before the committee earlier this
morning, was unanimously moved to the floor
for consideration at this time.
And I most respectfully yield for
purposes of a second to Senator Skelos.
ACTING PRESIDENT McGEE: Senator
3646
Skelos.
SENATOR SKELOS: Thank you,
Senator Lack.
And thank you for the consideration
of the committee in moving the nomination of
Guy James Mangano, Jr. -- a great record as a
practitioner, as a principal law clerk in the
courts, and now for two years as a judge of
the Court of Claims.
What's special today also, and I
know that Judge Mangano, Jr., would appreciate
this, is the fact that his father is here, the
distinguished former presiding judge of the
Appellate Division, Second Department, now
officially a resident of Long Beach, in my
district, and somebody who you have to be
very, very careful when you play golf with
because he knows how to work his handicap very
successfully.
So I know -- Judge Mangano, I know
how proud you are of your son. Judge Guy
James Mangano, Jr., I know how proud your
father is of you. So it's my pleasure to rise
and second your nomination, and
congratulations.
3647
ACTING PRESIDENT McGEE: Senator
Connor.
SENATOR CONNOR: Thank you, Madam
President.
I'll tell Senator Skelos you can
take the Manganos out of Brooklyn, but you
can't take the Brooklyn out of the Manganos.
The fact is I know retired Justice
Mangano is proud of Judge Mangano. We are all
proud of him. I'm delighted to second it.
And I know up there in the heavens the
sheriff, Judge Mangano's grandfather, the last
sheriff of Kings County, and someone who I
knew quite well, who we always referred to as
Mr. Democrat from Brooklyn, is indeed proud as
well.
Madam President, I am delighted to
second this nomination.
ACTING PRESIDENT McGEE: The
question is on the nomination of Guy J.
Mangano, Jr., as a judge of the Court of
Claims. All in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
3648
(No response.)
ACTING PRESIDENT McGEE: Judge
Guy J. Mangano, Jr., is hereby confirmed as a
judge of the Court of Claims.
Judge Mangano is joining us in the
chambers today, along with his parents, Guy
and Anne Mangano, and friends Maria and Pat.
May I say, on behalf of the
New York State Senate, welcome and
congratulations.
(Applause.)
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: As a judge of the
Court of Claims, Ronald A. Zweibel, of New
York.
ACTING PRESIDENT McGEE: Senator
Lack.
SENATOR LACK: Thank you, Madam
President.
I move the nomination of Ronald A.
Zweibel, of New York, to succeed himself as a
judge of the Court of Claims.
We've examined the credentials of
the candidate. They were found to be
3649
perfectly in order. He appeared before the
committee earlier this morning, was
unanimously moved to the floor for
consideration at this time.
And I am most happy to yield to
Senator Paterson for purposes of a second.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, please permit me to second the
nomination of Judge Ronald Zweibel to succeed
himself on the Court of Claims, where he has
served since 1987 with great distinction and
has engendered the esteem of his colleagues
because of his great work.
Prior to that, from 1978 to 1987,
he was the head of New York State's Crime
Victims Compensation Board. We knew him -
"we" in the editorial legislative "we" -- as
the assistant counsel to the Speaker, Stanley
Fink, during his 18-year term. Judge Zweibel
served from 1976 to 1978 as his assistant
counsel, and from 1974 to 1976 he was the
counsel to the Codes Committee.
Formerly of the New York City
3650
Department of Corrections, Judge Zweibel has a
long and rich history and will continue to
serve quite admirably on the Court of Claims.
He is a resident of Senator
Schneiderman's district. Senator Schneiderman
is out of the chamber and asked me to get up
and extend his heartfelt appreciation to the
work that Judge Zweibel does as well.
So I second the nomination of Judge
Zweibel to succeed himself on the Court of
Claims.
ACTING PRESIDENT McGEE: The
question is on the nomination of Ronald A.
Zweibel as a judge of the Court of Claims.
All in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: Ronald
A. Zweibel is hereby confirmed as a judge of
the Court of Claims.
Joining us in the chamber today is
Ronald A. Zweibel, His Honor Ronald A.
Zweibel, and his wife, Eleanor, and his son,
3651
Robert.
And on behalf of the New York State
Senate, may I say congratulations and welcome
aboard.
(Applause.)
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Corporations Committee in the Majority
Conference Room.
ACTING PRESIDENT McGEE: There
will be an immediate meeting of the
Corporations Committee in the Majority
Conference Room.
Communications and reports from
state officers.
Motions and resolutions.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Madam President.
On behalf of Senator Larkin, on
page 37 I offer the following amendments to
Calendar Number 799, Senate Print Number
6401A, and ask that said bill retain its place
3652
on 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 FUSCHILLO: Thank you.
ACTING PRESIDENT McGEE: Senator
Espada.
SENATOR ESPADA: Thank you, Madam
President.
On behalf of Senator Kuhl, on page
number 27 I offer the following amendments to
Calendar 617, Senate Print Number 3104, and
ask that said bill retain its place on Third
Reading Calendar.
ACTING PRESIDENT McGEE: The
amendments are received and adopted, and the
bill will retain its place on Third Reading
Calendar.
Senator Skelos.
SENATOR SKELOS: Madam President,
are there any substitutions at the desk?
ACTING PRESIDENT McGEE: Yes.
SENATOR SKELOS: If you could
make the substitution, please.
3653
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: On page 58,
Senator McGee moves to discharge, from the
Committee on Rules, Assembly Bill Number 1888B
and substitute it for the identical Senate
Bill Number 3112A, Third Reading Calendar
1101.
ACTING PRESIDENT McGEE:
Substitution ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution at the desk
that I've sponsored. If we could have the
title read and move for its immediate
adoption.
ACTING PRESIDENT McGEE: Thank
you. Just one moment.
The Secretary will read.
THE SECRETARY: By Senator
Skelos, Legislative Resolution Number 5649,
memorializing Governor George E. Pataki to
proclaim May 25, 2002, as Missing Children's
Day in New York State.
ACTING PRESIDENT McGEE: The
3654
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 Skelos.
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial
calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
260, by Senator Kuhl, Senate Print 3947A, an
act to amend the Education Law, in relation to
the total salary.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect July 1.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
3655
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
379, by Senator Marchi, Senate Print 4322B, an
act to amend the Public Authorities Law and
the New York State Medical Care Facilities
Finance Agency Act.
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, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
970, by Member of the Assembly Schimminger,
Assembly Print Number 9980 -
SENATOR SKELOS: Lay it aside for
the day.
ACTING PRESIDENT McGEE: The bill
is laid aside.
3656
THE SECRETARY: Calendar Number
1022, by Senator Skelos, Senate Print 6829A,
an act to ratify, legalize, validate and
confirm.
ACTING PRESIDENT McGEE: There is
a home-rule message at the desk.
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, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1211, by Senator Alesi, Senate Print 289, an
act to amend the Penal Law, in relation to the
crime of false personation.
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
3657
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1213, by Senator Morahan, Senate Print 832, an
act to amend the Family Court Act, in relation
to authorizing.
ACTING PRESIDENT McGEE: Read the
last section.
SENATOR PATERSON: Lay it aside,
please, Madam President.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
1214, by Senator Kuhl, Senate Print 1362, an
act to amend the Penal Law, in relation to the
imposition of driver's license suspensions.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
1215, by Senator Farley, Senate Print 1601, an
act to amend the Tax Law, in relation to the
3658
requirement.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first -
SENATOR PATERSON: Lay that bill
aside, aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
1218, by Senator Leibell, Senate Print 2363,
an act to amend the Civil Service Law, in
relation to special rights.
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, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1219, by Senator Volker, Senate Print 2784, an
3659
act to amend the Civil Practice Law and Rules,
in relation to the fiduciary exemption.
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, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1221, by Senator Trunzo, Senate Print 4601A,
an act to amend the Vehicle and Traffic Law,
in relation to the definition.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect on the 180th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55. Nays,
1. Senator Kuhl recorded in the negative.
3660
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1222, by Senator Saland, Senate Print 5046, an
act to amend the Penal Law, in relation to
establishing.
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, 57.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1223, by Senator Velella, Senate Print 5333,
an act to amend the Vehicle and Traffic Law,
in relation to adjudication.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
3661
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1224, by Senator Alesi, Senate Print 6032, an
act to amend the Alcoholic Beverage Control
Law, in relation to the authorization.
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, 56. Nays,
1. Senator Kuhl recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1225, by Senator DeFrancisco, Senate Print
6247, an act to amend the General Business
Law, in relation to the penalties.
3662
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, 57.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1226, by Senator Saland, Senate Print 6431, an
act to amend the Penal Law, in relation to
permits.
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, 57.
ACTING PRESIDENT McGEE: The bill
is passed.
3663
THE SECRETARY: Calendar Number
1227, by Senator Wright, Senate Print 6528, an
act in relation to the retirement plan for
employees.
ACTING PRESIDENT McGEE: There is
a home-rule message at the desk.
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, 57.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1228, by Senator Maziarz, Senate Print 6582,
an act to amend the Criminal Procedure Law, in
relation to permitting.
ACTING PRESIDENT McGEE: Read the
last section.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
3664
THE SECRETARY: Calendar Number
1229, by Senator Velella, Senate Print 6761,
an act to amend the Real Property Tax Law, in
relation to the payment of taxes.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1230, by Senator Farley, Senate Print 6965A,
an act to amend the Public Officers Law, in
relation to waiving.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
3665
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Farley.
SENATOR FARLEY: Madam President,
is it all right if you call up 1215? I think
the objection to it has been released.
ACTING PRESIDENT McGEE: Senator
Morahan, may we call up Calendar Number 1215?
SENATOR MORAHAN: Yes, Madam
President.
ACTING PRESIDENT McGEE: Thank
you.
The Secretary will read.
THE SECRETARY: Calendar Number
1215, by Senator Farley, Senate Print 1601, an
act to amend the Tax Law, in relation to the
requirement.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
ACTING PRESIDENT McGEE: Call the
3666
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1231, by Senator Stafford, Senate Print 7001,
an act making certain findings and
determinations with respect.
ACTING PRESIDENT McGEE: There is
a home-rule message at the desk.
The Secretary will read.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1232, by Senator Hoffmann, Senate Print 7084,
an act to amend the Agriculture and Markets
Law, in relation to the exemption.
3667
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
The Secretary will read.
THE SECRETARY: Calendar Number
1233, by Senator Stafford, Senate Print 7164A,
an act to amend the Alcoholic Beverage Control
Law, in relation to the exemption.
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, 57. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1234, by Senator Balboni, Senate Print 7202,
an act to amend the General Municipal Law, in
relation to the computation.
ACTING PRESIDENT McGEE: Read the
3668
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, 58.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1235, by Senator Espada, Senate Print 7340, an
act to amend the Executive Law, in relation to
an application.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
1236, by Senator Meier, Senate Print 7388, an
act to amend the Social Services Law, in
relation to increasing the standards.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect December 31.
3669
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Morahan, that completes the
noncontroversial reading of the calendar.
SENATOR MORAHAN: Yes, Madam
President. Will you please call up Calendar
Number 1228, by Senator Maziarz.
ACTING PRESIDENT McGEE: The
Secretary will read Calendar Number 1228.
THE SECRETARY: On page 69,
Calendar Number 1228, by Senator Maziarz,
Senate Print 6582, an act to amend the
Criminal Procedure Law, in relation to
permitting.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Maziarz, an explanation has been requested.
SENATOR MAZIARZ: Thank you,
Madam President.
This bill would permit a vulnerable
elderly person to be accompanied by a social
3670
worker, rape crisis counselor, psychologist,
or other professional providing emotional
support whenever such elderly person is called
before a grand jury to give evidence, provided
that the district attorney's office would
consent to that appearance.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, if the sponsor will yield just to
one question.
ACTING PRESIDENT McGEE: Senator
Maziarz, will you yield for a question?
SENATOR MAZIARZ: I would always
yield to my good friend from Rochester.
ACTING PRESIDENT McGEE: The
Senator yields to his good friend.
SENATOR DOLLINGER: Thank you.
Senator Maziarz, you're not going to be able
to say that next year, because we'll both be
from Rochester.
Through you, Madam President. This
bill is a great idea in the sense of it allows
someone who is determined to be vulnerable to
be accompanied to the grand jury by a social
3671
work or someone who can help them.
My only question was, shouldn't
this apply to anyone who is determined to be
vulnerable, regardless of their age?
SENATOR MAZIARZ: I'm sorry, I
didn't quite hear that question.
SENATOR DOLLINGER: Through you,
Madam President. Shouldn't the bill apply to
anyone who is determined to be vulnerable
regardless of their age?
For example, I think in the memo
you refer to the fact that we allow this to
occur for young children. We've now allowed
it for elderly people.
SENATOR MAZIARZ: Right.
SENATOR DOLLINGER: But shouldn't
it be anybody who's determined to be
vulnerable?
It could be a 40-year-old woman or
a 25-year-old man or a 50-year-old who might
not necessarily be elderly but nonetheless,
because of a whole bunch of reasons, including
the trauma induced by the crime or other
factors, could be determined to be vulnerable.
I'm just concerned that, rather
3672
than do this just for the elderly or just for
children, we ought to do it for anybody the
court determines to be vulnerable.
SENATOR MAZIARZ: I would tend to
agree with you, Senator Dollinger, but the
New York State District Attorneys Association
has expressed some concern -- not necessarily
opposition, but some concern of opening it up
that wide. And that's why I think the
original bill was done for children and this
one for elderly. They have not expressed any
objections to this bill for the elderly.
But I tend to agree with you. I
think it could be wider participation, if you
will.
SENATOR DOLLINGER: Okay.
Through you, Madam President, just briefly on
the bill.
ACTING PRESIDENT McGEE: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I appreciate
Senator Maziarz's acknowledgement that what we
have done in this state is we have created
special protections for children who appear
before grand juries.
3673
Having counseled clients who have
appeared before grand juries who are
businesspeople, I can tell you it's one of the
most daunting things that you do, to send
someone, even if they have no criminal
culpability, to send them into a grand jury
with the district attorney, a stenographer, a
raft of documents, and a roomful of strangers.
It's a very, very intimidating process.
And I would just hope that if this
bill passes and becomes law, we would look
instead to a broader bill that would say
anyone who is determined to be vulnerable, for
whatever circumstance. There could be a
preclearance through the courts of that
vulnerability determination.
Once we decide that people are
vulnerable, that they need someone to help
them through this process, that we would
permit someone to come in, within the cloak of
secrecy that accompanies our grand juries.
I look forward to the day I can
vote for that bill. But I'm going to vote for
this one today. Thank you.
ACTING PRESIDENT McGEE: Any
3674
other Senator wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Senator
Duane.
SENATOR DUANE: Thank you, Madam
President. To explain my vote.
ACTING PRESIDENT McGEE: Senator
Duane, to explain his vote.
SENATOR DUANE: I'm going to vote
against this bill, in large part because I
think it's not appropriate to single out
senior citizens.
I think that senior citizens are as
able to function in a grand jury room as well
as any other citizen. I agree with Senator
Dollinger, if we're going to make a sweeping
infirm or vulnerable, then that should go for
everybody.
But for everyone going into a grand
3675
jury, it's a very trying and difficult thing
for anyone to do. So again, I don't think
that a senior citizen is any better or any
less able to handle themselves in a grand jury
proceeding.
I do want to say, though, that
fortunately, senior citizens in our state are
provided with their civil rights. They are
protected against discrimination in
employment, in housing, in public
accommodation.
That's -- it's a good thing that's
that in the law. What's missing in the law is
protection based on sexual orientation and
gender identity.
So I hope when we're working to
protect people in this body that we will
remember to include those who are not
protected in our state now. And that's people
who can be discriminated against, fired,
evicted from their homes based on their sexual
orientation and gender identity.
I'll be voting no on this, Madam
President.
ACTING PRESIDENT McGEE: Senator
3676
Duane will be recorded in the negative.
Announce the results.
THE SECRETARY: Ayes, 59. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Morahan.
SENATOR MORAHAN: Yes, Madam
President. Will you please call up Calendar
1214, by Senator Kuhl.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
1214, by Senator Kuhl, Senate Print 1362, an
act to amend the Penal Law, in relation to the
imposition.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Kuhl, an explanation has been requested.
SENATOR KUHL: Thank you, Madam
President.
This bill is simply a measure of
enforcement. Currently, when an individual is
sentenced to pay a fine for a violation of,
say, a marijuana possession, there is no -- if
3677
they do not pay the fine, there is no
recompense from the court.
So this provision puts into place
that the court in fact can enforce that
payment by suspending the license of an
individual. And that's what the purpose of
the bill is.
It's an issue that actually was
brought to me by several justices of the town
justice courts. And so this is a direct
response to their inability to actually
enforce the provisions of the law.
ACTING PRESIDENT McGEE: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, I'm going to vote in favor of this
bill, Senator Kuhl. And the only reason why I
rise is I think this is actually a great idea.
It ought to be applied not just to infractions
for marijuana, but, quite frankly, all of
those little fines that are imposed in our
criminal courts, in our town and village
criminal courts, which obviously serve as an
alternative to more severe sentences.
We have lots of teenagers who come
3678
to our courtrooms who are fined for disorderly
conduct and trespass and minor violations.
And I think you properly point out that this
bill, which only applies to marijuana -- but
if the local criminal courts had a way to tie
the nonpayment of all of those little fines
for, frankly, kids being kids, or adults, or
whatever, when they misbehave, I think this
would be a great way to send a message to them
that if you don't pay that fine that's imposed
by a magistrate in the criminal court, you're
eventually going to lose your right to drive.
And I just think -- it only applies
to marijuana. I would urge that you take a
look at expanding it to say that anytime a
fine remains unpaid for more than 30 days in
the local criminal courts, the perpetrator,
the offender will lose and the court has the
ability to suspend their license as part of
that penalty.
I think it's a reasonable measure,
and I think it would get greater compliance
among the miscellaneous fines that are handed
out in droves by magistrates that aren't
responded to.
3679
Madam President, I'm going to vote
in favor and urge my colleagues to do the
same.
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 first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Ayes, 59. Nays,
2. Senators Duane and Montgomery recorded in
the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
SENATOR MORAHAN: Madam
President, can we return to the regular
reading of the controversial calendar.
ACTING PRESIDENT McGEE: The
Secretary will read in the regular order.
THE SECRETARY: Calendar Number
3680
970, by Member of the Assembly Schimminger,
Assembly Print Number 9980, an act to amend
the General Business Law, in relation to
exempting.
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, 60. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1213, by Senator Morahan, Senate Print 832, an
act to amend the Family Court Act, in relation
to authorizing restitution.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT McGEE: Senator
Morahan, an explanation has been requested.
SENATOR MORAHAN: Yes, Madam
President.
This bill would permit the Family
3681
Court to authorize restitution for medical and
dental expenses up to $1,500 as a condition of
probation or conditional discharge in cases
involving respondents over 10 years of age.
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.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 1213 are
Senators Duane, Hassell-Thompson, Montgomery,
and Paterson. Ayes, 57. Nays, 4.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Morahan.
SENATOR MORAHAN: Madam
President, can we reconsider the vote on
Calendar 970.
ACTING PRESIDENT McGEE: The
3682
Secretary will call the roll on Calendar
Number 970.
THE SECRETARY: Calendar Number
970, by Member of the Assembly Schimminger,
Assembly Print Number 9980, an act to amend
the General Business Law.
ACTING PRESIDENT McGEE: Call the
roll on reconsideration.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: The roll
call is withdrawn, and the bill is laid aside.
SENATOR MORAHAN: I'd like the
bill laid aside for the day.
ACTING PRESIDENT McGEE: The bill
is laid aside for the day.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
1232, by Senator Hoffmann, Senate Print 7084,
an act to amend the Agriculture and Markets
Law, in relation to the exemption.
SENATOR DUANE: Explanation,
please.
ACTING PRESIDENT McGEE: Senator
Hoffmann, an explanation has been requested.
3683
SENATOR HOFFMANN: Thank you,
Madam President.
Last year we passed a piece of
legislation that was designed to end the
process of duplicative licensing for people
who sell milk. Those who are selling milk in
small containers exclusively through vending
machines requested and obtained legislation
that would allow them to not have to have the
duplicative license for a milk dealer.
Unfortunately, the bill contained
within it enough vague language that it could
have been interpreted as allowing somebody to
sell, on a larger-scale basis, milk in large
containers. Therefore, we have amended the
bill.
It was vetoed last year. In the
veto message, the Governor stated: "Although
the bill may have been intended to exempt only
those persons who distribute milk exclusively
through vending machines, its actual effect
would be to broadly exempt vending machine
operators from licensure, regardless of
whether such operators engage in the customary
functions of a milk dealer." All very good
3684
points from our esteemed Governor.
Therefore, we have addressed
Governor Pataki's concerns, and there is new
language in the bill before us today which
includes the phrase "sells no milk in bulk or
in containers that are greater than one pint
in size."
There are memoranda in support from
the Department of Ag and Markets and from Farm
Bureau.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, on the bill.
ACTING PRESIDENT McGEE: Senator
Paterson, on the bill.
SENATOR PATERSON: This is an
issue that we appreciate that Senator Hoffmann
is trying to address.
We did feel last year, 16 of the -
we did feel last year that the bill was
basically too broad, that the exemptions
are -- or at least that the legislation as it
stands now applies to grocery stores and other
types of vendors and perhaps if the
3685
regulations are changed, that might be a
solution.
But we do not feel that the
concerns that the Governor raised in his veto
are cured through this piece of legislation.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Senator Hoffmann.
SENATOR HOFFMANN: Would Senator
Paterson yield for a question?
ACTING PRESIDENT McGEE: Senator
Paterson, do you yield for a question?
SENATOR PATERSON: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR HOFFMANN: Senator
Paterson, could you be a little more explicit?
I'd appreciate your suggestions on how the
bill could be changed.
I feel that counsel has done an
adequate job, the Department of Ag and Markets
has done an adequate job. Where do you see a
deficiency? I think it's quite explicit in
here as to the size of the cartons.
ACTING PRESIDENT McGEE: Senator
3686
Paterson.
SENATOR PATERSON: Thank you,
Madam President.
Senator Hoffmann, there's just a
feeling that there are other types of vendors
in addition to milk dealers who are affected
by this. They also fall under these
regulations. And it was really a health and
sanitary issue that we think we're trying to
address.
We certainly understand what you're
trying to accomplish. Perhaps just the
stringency of the regulations themselves might
be diminished to a certain degree.
But since in the end it's consumers
who are affected by what could be the sanitary
conditions, we did not feel that this piece of
legislation, while it does make an adjustment,
significantly cures the concerns that the
Governor raised. And we'll be looking forward
to see how the Governor takes a look at this
piece of legislation.
SENATOR HOFFMANN: Madam
President.
ACTING PRESIDENT McGEE: Senator
3687
Hoffmann.
SENATOR HOFFMANN: Yes, on the
bill.
I would just like to point out for
the record in the years since this measure
passed in this chamber and in the other house,
and in the months subsequent to the Governor's
veto message, I've heard no concerns from the
other side of this chamber regarding health
and safety requirements or sanitary
requirements, as just voiced by Senator
Paterson. This indeed comes as a tremendous
shock to me. Had those been brought before
this committee, we would have reviewed them.
My concerns were addressed -- my
concerns were the same as the Governor's and
Ag and Markets'. We addressed them within the
bill.
I think I believe that there is a
tremendous responsibility in this state for us
to accomplish two things in this area. One is
to make milk as convenient as possible and as
accessible as possible for the many people who
will purchase other beverages through vending
machines. In this instance, because milk has
3688
now been made available in vending machines,
particularly in schools, it is improving the
nutrition of a large number of New York State
citizens, especially children and it also
creates a very important new market for our
dairy industry, which is the largest facet of
New York State agriculture, agriculture being
New York's number-one industry.
I think this is a matter of some
great significant. I think that this is an
important measure for us to pass. And I look
forward to the Governor's approval this year.
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.)
SENATOR PATERSON: Party vote in
the negative, Madam President.
ACTING PRESIDENT McGEE: Party
vote in the negative.
Senator Morahan.
3689
SENATOR MORAHAN: Party vote in
the affirmative.
ACTING PRESIDENT McGEE: Party
vote in the affirmative.
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46. Nays,
25. Party vote.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
1235, by Senator Espada, Senate Print 7340, an
act to amend the Executive Law, in relation to
an application.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Espada, an explanation has been requested.
SENATOR ESPADA: Surely.
Senator Paterson and Madam
President, this bill creates a mechanism and
establishes criteria which must be considered
by the Supreme Court in determining an
application for expungement for a person who
is not prosecuted or, if prosecuted, the
individual was acquitted, the conviction was
3690
reversed or vacated, or the individual was
granted a pardon, or the individual was not
convicted of an offense which is a designated
offense.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
SENATOR HEVESI: Madam President.
ACTING PRESIDENT McGEE: Senator
Hevesi.
SENATOR HEVESI: Thank you. Will
the sponsor please yield?
ACTING PRESIDENT McGEE: Senator
Espada, will you yield?
SENATOR ESPADA: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR HEVESI: Thank you, Madam
President.
Just one quick question. It's my
understanding -- and correct me if I'm
wrong -- that fingerprints, for example, are
not returned if an individual has been
arrested, incarcerated, and his conviction was
overturned.
3691
What's the distinction between DNA,
where, if it's been collected, there are
adequate protections that if somebody tampers
with it or uses it inappropriately that there
are felony-level penalties to protect against
that? So why would we need to expunge
somebody's DNA upon the overturning of a
conviction and we don't give back
fingerprints, for example?
SENATOR ESPADA: Well, this
particular bill would require that, unlike
existing law -- and may I add that this is
mirroring existing law with respect to what
you mentioned and also with respect to other
property that is seized through an
investigation.
But the DNA records that an
individual -- that are taken from an
individual in connection with an
investigational prosecution differ in that
currently existing law does not purge DNA
records for convictions that are vacated or
reversed or that are -- where individual has
obtained a pardon.
Also, individuals that are
3692
acquitted are not granted that ability by way
of law. So those conditions are the ones that
this particular bill addresses.
Still, the individual would have to
make application to the court. The mechanism
that establishes this procedure would call for
the judge to have input from the district
attorney's office. So we see it as an
important mechanism that involves the full
scope of weighing whether an individual is to
be retried, whether an individual's DNA sample
could affect another investigation, and
obviously allows for DA input before a
conclusion is reach by the court.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield?
ACTING PRESIDENT McGEE: Senator
Espada, will you continue to yield?
SENATOR ESPADA: Yes.
ACTING PRESIDENT McGEE: The
Senator continues to yield.
SENATOR HEVESI: I'm just trying
to understand the scope of this legislation.
And I may wind up supporting this, but I need
to understand it first.
3693
Is it possible that if your bill
were to become law that an individual who has
a long criminal history, has been incarcerated
many, many times but had never been compelled,
for whatever reason, to provide a DNA sample,
gets arrested on that particular latest
arrest, is required to submit a DNA sample,
happens to be acquitted or is convicted and
has that offense, that conviction overturned,
and then has to, under your bill -- and then
files an application to have the DNA expunged,
isn't it possible, then, that we would have a
situation where you'd have somebody with a
long criminal history who you might want to be
included in the state's DNA data bank who you
may not have intended to be excluded based on
that one application, based on that one
arrest?
SENATOR ESPADA: The answer is
no.
SENATOR HEVESI: Madam President,
will the sponsor continue to yield?
ACTING PRESIDENT McGEE: Senator
Espada, will you yield?
SENATOR ESPADA: Yes.
3694
SENATOR HEVESI: Thank you.
Why is that? Why is the answer no
to that question?
SENATOR ESPADA: The DNA
identification index will continue and
throughout our votes continues to be and
should be a database for those who have
criminal convictions, those criminal
convictions that stand.
Those criminal convictions that
have not been reversed or met with a pardon
will continue to be a part of the DNA
identification index if my bill became law.
ACTING PRESIDENT McGEE: Senator
Hevesi.
SENATOR HEVESI: Madam President,
will the sponsor continue to yield?
ACTING PRESIDENT McGEE: Senator
Espada, do you continue to yield?
SENATOR ESPADA: Yes.
SENATOR HEVESI: Thank you, Madam
President.
I don't understand. My specific
question here is -- here's my concern. My
concern is, again, somebody with a long
3695
criminal history who has never provided
information, DNA, his DNA, and therefore has
not been included in the DNA data bank, but we
know that this individual is likely to be a
recidivist offender -- if your legislation is
passed and that individual on one particular
arrest has the conviction overturned or he is
acquitted, wouldn't it be in the state's
interest that that individual who was,
pursuant to that arrest, compelled to provide
a DNA sample, wouldn't it be in the state's
interest to have that individual's DNA as part
of the state's data bank despite the fact that
his conviction was overturned on one
particular arrest?
SENATOR ESPADA: It may very well
be in the state's interest, but it certainly
is not a concern of this bill, nor likely
outcome of this bill.
SENATOR HEVESI: Madam President,
will the sponsor continue to yield?
SENATOR ESPADA: Yes.
SENATOR HEVESI: Thank you.
If I am arrested and I submit
fingerprints, as I'm required to when I'm
3696
arrested, and then my conviction is thrown out
or I'm acquitted at trial, is there any
obligation on the part of the state or local
law enforcement to destroy my fingerprints?
SENATOR ESPADA: Fingerprints are
allowed to be returned. I'm not aware of any
law that would allow for their destruction
without some petition to the court.
And I should hasten to add that
counsel informs me that they can be destroyed
upon application to the court.
SENATOR HEVESI: Okay. Thank
you. Madam President, on the bill.
ACTING PRESIDENT McGEE: Senator
Hevesi, on the bill.
SENATOR HEVESI: I'm going to
support this bill. There is an important
distinction there that I was trying to make
here.
But my broader concerns are more
that I'd like the state's DNA data bank to be
as inclusive as possible for a whole slew of
reasons, criminal justice reasons, which have
demonstrated quite clearly that the more
expansive your DNA data bank is, the more
3697
likely you are to convict individuals who
are -- who have committed crimes, some
unspeakable crimes, most notably sexual
offenses. And in addition, you will wind up
in a situation where the inclusion of DNA
samples will result in individuals who are not
guilty being exonerated and saving resources
of local law enforcement.
I'm going to support this bill
because, notwithstanding the fact that we have
yet been unable -- and I know that the
Governor is interested in expanding the DNA
data bank, as are some members of this
chamber, as am I. Until we have a situation
where, upon arrest, anybody is arrested, that
DNA information is mandatorily put into the
state's DNA data bank, I can see why Senator
Espada would move this bill.
So I'm going to support it. But I
would like to again call for the most
expansive type of DNA data bank in New York
State. There are so many cases that could be
solved with the inclusion of DNA evidence, and
there are innocent people languishing in jail.
And I would submit, Madam President, that it
3698
is probably a good expenditure of state
resources for those individuals convicted of
capital offenses and a number of violent
felony offenses that in the interests of
justice that the DNA testing be provided for
for those individuals in order to ensure,
certainly for people who may be facing the
death penalty, and for others also who are
languishing in jail for years and years and
years who didn't do it.
Because year after year, month
after month, we hear of cases where somebody
has been sitting in jail on a rape conviction
for 12 or 15 years and it turns out that they
didn't do it. Somebody winds up coming along
and saying, well, yeah, I was really the
culprit, or new evidence comes forward and or
what have you. And now with the inclusion of
DNA technology, that's something we want to
get involved with.
So I'm going to support Senator
Espada's bill. But once again, I really do
believe that we should be much more inclusive
in who is required to give samples of DNA.
And I know some of my colleagues on this side
3699
of the aisle will not agree with this. But
I'd like to see anybody who is arrested be
required to submit a DNA sample.
That's going to wind up serving a
greater public good. We are going to get
people off the streets who have committed
crimes and we were not able to catch them.
And when they began expansive use of DNA for
criminal justice purposes in Great Britain,
they immediately had a slew of hits on
individuals who were sexual offenders and got
them off the streets really quickly.
So having said that, I'm going to
support Senator Espada's bill. I appreciate
his work on this. But I hope in the future we
can see an expansion of the state's DNA data
bank.
ACTING PRESIDENT McGEE: Senator
Volker.
SENATOR VOLKER: Madam President,
these kind of debates are always interesting.
Senator, I would only point out one thing to
you. Read the bill very carefully. It says
"permits an individual to apply to the court
of original jurisdiction for an order."
3700
It doesn't say that the court has
to release the DNA records. If there is some
reason, and if this guy is a multiple
offender -- or woman, for that matter -- then
I would assume that he probably will not be
able to get the record expunged just on the
basis of the fact that he was pardoned on one
crime or that the individual case was vacated
and so forth. That's number one.
Number two, there is an impression
that there was a huge percentage of inmates in
this country who are found to have not
committed the crime because DNA has found that
the evidence under their conviction, by which
their conviction was found, was not proper.
I would caution everybody to
understand something, because the media has
made this sound as if none of the people who
are found innocent by reason of DNA didn't
commit the crime. Unfortunately, that is not
true.
How many times I have talked to
prosecutors and I say, "This person was found
innocent" and they said, "Yeah, we just didn't
have the evidence." "Are you looking for the
3701
perpetrator?" They said: "Oh, no, he did it,
there's no question about it."
You must understand something about
DNA. Let me give you an example in several
murder cases where there were two people -- or
three people, even -- who committed the crime,
and there's DNA evidence, and the DNA evidence
was used against one or two of the
individuals. Because they didn't have, maybe,
other evidence.
What happens is the DNA evidence
turns out to be the wrong person. It's one of
the other people. So the other two people,
they get their convictions reversed, because
there's really no evidence to convict them.
It reminds me of the famous
incident that happened in Senator Stachowski's
district many years ago. It's way before he
was born. There was a big shooting at a
crossroads in Cheektowaga, and three people
were convicted of murder and eventually
executed. And as the guy is about to -- or
the second guy is about to be executed, he
said: "Charlie didn't do it, he didn't kill
anybody. He didn't kill anybody." And the
3702
warden said, "You know, I don't think he did
it."
What they meant was that Charlie
was a bad shot. He admitted firing, but Fred
said "I actually hit the guy." So it was the
bad shot defense. In other words -- and the
people that looked at this case said, "Well,
obviously Charlie didn't do it. I mean,
everybody said he was innocent."
Somehow innocence is an interesting
question. If you're shooting at somebody and
you happen to be a bad shot and two people get
killed -- and that's what did happen -- are
you not going to find somebody guilty because
they happen to be a bad shot and the other
guys were better shots?
The point I'm just trying to make,
and I'm not trying to draw this out, is you do
have to be a little careful with some of these
cases. There really are not that many cases
where DNA finds people innocent. It's good
that they do; don't get me wrong. And some of
them are genuinely innocent cases. That is,
these people were genuinely innocent.
But innocent is a -- by law doesn't
3703
necessarily mean that they actually didn't
commit the act. It means we can't prove it.
Because under our system, if we can't prove
it, they're innocent, period.
But there's no question -- and
especially in these death penalty cases -
that some of these people actually committed
the crime. But because of the fact that the
evidence may have been scanty, and if DNA was
used or if fingerprints were used or something
was used, they were found innocent, and
rightfully so. If you don't have the
evidence, they should be found not guilty.
But you really have to be a little
careful with claiming that they never did any
of these things. They've had a number -
several of these people have said, Well, I
didn't really kill her, I killed him, or
something like that.
But my point, I think, is with this
bill, I don't think this bill creates any
necessary danger. I happen to be with you
that we should use a lot more DNA. I think a
lot of your colleagues, particularly in the
Assembly, do not take that position, as you
3704
well know. But I think as the years go on, we
are going to take more and more DNA samples.
And ultimately I suspect that we will do it on
felony arrests. And I think that will be
fairly soon. Because when you think about it,
it really does make sense.
SENATOR HEVESI: Madam President.
ACTING PRESIDENT McGEE: Senator
Hevesi.
SENATOR HEVESI: Thank you. Just
briefly. And I very much appreciate Senator
Volker's comments.
But it also brings out the one real
failure that we've had here in this house.
And I don't blame it so much on this house, I
really blame this on the Assembly. Something
we need to do and we need to do immediately is
stretch out that statute of limitations on
violent felony offenses.
Because -- and the reason the DNA
debate is so important in this particular case
is with a five-year statute of limitations on
sexual-related offenses, you have and we have
had a situation that's -- it's brought it home
for me because in Queens there's a police
3705
department warehouse with rape kits that have
aged past five years. We then do DNA testing
on them subsequent to five years and are
unable to prosecute.
So I agree with Senator Volker. If
you have a DNA kit and it shows that you have
semen from a perpetrator pursuant to a rape,
that's very strong evidence.
I agree with Senator Volker that if
you have somebody who has been convicted of an
offense and somehow use DNA to not exonerate
the individual but maybe to throw out evidence
upon which they were convicted, that probably
serves the interests of justice, but it is not
as definitive as it is when you finally
convict somebody.
But this issue of the statute of
limitations, we must address this and we must
address it soon. If I had my druthers, I
would completely eliminate the statute of
limitations on all violent felony offenses,
flat out eliminate it.
And particularly when we are in the
throes of the scandal in the Catholic Church,
which continues day after day after day, where
3706
victims can only seek a civil recourse and not
criminal recourse amongst child rapists, is
just flat-out wrong. And I will again just
state for the record, and I've spoken on this
the floor about this in the past, that the
notion that you can't serve justice because 15
or 20 years later witnesses are not as
reliable and what have you, that fact, Madam
President, makes the burden of proof much more
difficult on the prosecution, which must prove
beyond a reasonable doubt in a criminal case
that an individual is guilty, that memories
have faded.
If somebody has raped somebody and
the evidence only becomes available after that
five-year period, so what? What's the
distinction between homicide, where there is
no statute of limitations, and some other
unbelievably violent offense where the victim,
though they are still alive, are damaged so
badly for the rest of their lives as to defy
belief? Why shouldn't there be recourse for
that victim?
So on behalf of all the victims of
sexual assaults, the victims of the pedophile
3707
priests, the victims of anybody who has been
assaulted or victimized in any way in a
violent capacity in this state, we should
eliminate this statute of limitations for
violent felony offenses. We can do it in a
responsible way. And I would be willing not
to have it completely eliminated, we can
extend it outwards. But five years is just
completely and grossly inappropriate.
I think Senator Volker would agree
with me, as would many others in this chamber,
because we've brought these bills before. I
call on the Assembly to take action on this,
take action immediately. Because this is
flat-out wrong.
And for all the victims of this
church scandal right now, which is much worse
than we know it to be in the press right
now -- it's much worse. Logic dictates that
the numbers of individuals who have been
raped, been molested by priests is
exponentially higher than the number of cases
that we've heard about.
And that these individuals, after
five years, or I believe it's their 18th
3708
birthday, they can no longer -- the
perpetrators can no longer be brought to
justice in a criminal sense is just wrong. I
mean, this is just wrong. We need to change
this policy, and we need to do it as soon as
humanly possible. For the victims of sexual
abuses of priests, for women who have been
raped, for anybody else who is the victim of a
violent assault.
I mean, if I am brutally assaulted
by somebody with a weapon or what have you,
and I can only prove it or the state can only
prove it after a certain amount of time has
elapsed, why am I then precluded from having
justice? Why? I don't understand it. It's
wrong.
So, Madam President, I thank
Senator Volker and Senator Espada for their
work in this area. I agree with Senator
Volker. I hope the day comes when, upon the
arrest for violent felony offenses, DNA
samples are provided. I understand my
colleagues, many of whom on my own side of the
aisle, don't like the civil liberty
implications of this. But in the interests of
3709
justice, I think that needs to be done and a
serious look and reexamination of the statute
of limitations in New York State must be
explored.
Thank you.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Senator Espada.
SENATOR ESPADA: Madam President,
thank you very much.
I thank Senator Hevesi for
imparting the wisdom and the questions. And I
think most of it is absolutely necessary, in
that this is an emerging and developing field.
However, I just want to return to a
very simple fact here, and that is that we
should weigh very carefully people who are
innocent, weigh very carefully those precious
freedoms that we protect. You know, we get
very upset if we find out that certain
financial data of ours or credit data is being
shared without our permission, or that our
telephone numbers are provided to potential
vendors that seek our business.
Yes, it's an emerging field. Yes,
3710
it could yield very beneficial results that
could point toward guilt or innocence. But a
real basic tenet that this legislation speaks
to is to purge the DNA database of people who
are innocent, who have been found innocent
through a court, who have been found innocent
through a part in another procedure, and it
does prevent abuse.
That issue aside, I think we do
need to revisit the issue of individuals that
have multiple felonies, and I think that point
is well taken.
Thank you very much.
ACTING PRESIDENT McGEE: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. On the bill.
I guess the discussion has made it,
for me, a little bit more confusing as opposed
to clearer. I think I heard Senator Volker
talk about the fact that in many of the
instances, while the person may not
necessarily be guilty of this particular
offense, there is a sense or knowledge that
there is guilt. My concern becomes that when
3711
we become more concerned about guilt than
justice, I become afraid.
Primarily because, as I understand
the intent of the bill, is if in fact in the
individual cases where the sentence has been
reversed or overturned for whatever reason,
that such evidence like fingerprints are
allowed to be destroyed.
And my colleague was alluding to
the way in which Great Britain handles similar
kinds of cases, that if they're looking for a
perpetrator, for instance, between the ages of
16 and 25, every young person, young man,
white male between 16 and 25 must come in,
spit in a cup, and that DNA is tested and the
base is kept.
Well, we don't live in Great
Britain, and we are trying to ensure that the
civil liberties that are protected by our
Constitution are the responsibility of every
member of this house. And when we -- and it
does not mean that we can't look at what other
countries do, but we also have to weigh what
they choose to do and balance that with that
which is in the civil liberties and rights of
3712
citizens of this country.
And so it concerns me a great deal
when even though we may strongly believe
and -- but without evidence we cannot prove
that a person is guilty -- it does not
necessarily mean that they are in fact
innocent. And I think that that was the point
that Senator Volker was making.
But justice doesn't ask us to do
that. Justice says predicated on the findings
and a judicial process, if the person is not
found guilty, the information therefore is not
valid. If the information is not valid, the
information should then be destroyed.
And if I'm understanding the bill
incorrectly -- I would hope that I'm not,
because that's what I am voting for and
supporting.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Senator Montgomery.
SENATOR MONTGOMERY: Yes, would
Senator Espada yield?
ACTING PRESIDENT McGEE: Senator
Espada, will you yield for a question?
3713
SENATOR ESPADA: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR MONTGOMERY: Yes, Senator
Espada, could you explain what is the process
now for retrieving your fingerprints in the
event -- under the same circumstances as your
bill requires return of DNA? What is the
process now of retrieving your fingerprints?
SENATOR ESPADA: An application
has to be made to the court.
SENATOR MONTGOMERY: For
retrieving your fingerprints?
SENATOR ESPADA: For the return
of fingerprints.
SENATOR MONTGOMERY: If you are
found not -
SENATOR ESPADA: An application
is in order. But I'm also told -- and not
being a defense attorney, I'm also told that
the court can do it as well, or it can be done
automatically without a petition.
SENATOR MONTGOMERY: Without
petitioning the court?
SENATOR ESPADA: Yes.
3714
SENATOR MONTGOMERY: So my
question is, why then are we setting up this
additional requirement for retrieving your DNA
when in fact there is no indication that you
have been associated with any charge?
SENATOR ESPADA: Well, it's
really either/or, in the sense that the
information can be sealed or the petitioner
can obviously ask that it be returned.
SENATOR MONTGOMERY: If Senator
Espada would continue to yield.
ACTING PRESIDENT McGEE: Senator
Espada, do you continue to yield?
SENATOR ESPADA: Yes. Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR MONTGOMERY: Senator
Espada, your legislation seems to require that
a petition, an application shall be served on
the district attorney, and it also -- an
application must go to the courts.
And both the attorney, the district
attorney and the court must agree that this
DNA eventually could be retrieved by the
person based on the fact that they have been
3715
found not to be associated with the charge
that has been made against them, or the
investigation -- or they have been found to be
not guilty, no conviction, the case was thrown
out, they have been pardoned and what have
you.
So it seems to me that you are
leaving the decision essentially up to the
court and the district attorney. And my
experience with district attorneys is that
you, in their eyes, you are guilty until you
can prove innocence. And everyone that they
touch seems to be guilty. I mean, they can
convict a banana, it seems to me, based on the
way that I've known some district attorneys to
operate.
So I can never imagine that they
would agree to return DNA. Why would we leave
it up to them to make that decision?
SENATOR ESPADA: I'm trying to -
could you, Senator Montgomery, reask your
question? Quite frankly, your analysis of the
bill is correct. I'm just not clear on your
question.
SENATOR MONTGOMERY: My question,
3716
through you, Madam President, again, to you,
Senator Espada, is we seem to be setting up an
additional requirement on the part of the
person who is attempting to retrieve the DNA
sample.
And the people who are making the
decision, one of them being the district
attorney, must concur. That person is very
unlikely to concur that a DNA sample should be
returned. So if in fact the final decision
rests to some extent with the district
attorney, are we not setting up a situation
where people are not likely to be able to
retrieve them? Because district attorneys do
not view people as being finally and
conclusively innocent.
SENATOR ESPADA: This is not a -
this mechanism does not put in force a
retrial. This does not add an additional
requirement.
Viewed correctly, this would
correct the abuses and the criticisms that -
I'm not saying I agree totally with your
analysis. But to the extent that some or any
of it is true, this procedure would allow for
3717
that -- the information, the DNA samples and
other documents and analysis, to be returned.
Yes, the onus is on the individual,
in part. If the individual voluntarily
provided the samples, then, yes, they would
have to also petition the court. This does
not force the conclusion though, that your
analysis implies. The DA's consent is not
required, and it truly is in the hands of a
judge.
SENATOR MONTGOMERY: Madam
President, if I may.
ACTING PRESIDENT McGEE: Senator
Montgomery.
SENATOR MONTGOMERY: Senator
Espada, in your bill, on the second page,
starting on line 30, after the court has
apparently rendered a decision that the DNA
can be returned, the bill says "such record
and any samples, analysis, or other documents
shall, at the discretion of the prosecutor
thereof, be destroyed or returned."
So I think perhaps unwittingly we
have left the final decision to the discretion
of the prosecutor. And in every instance
3718
where the prosecutor has discretion to deny
access to documents, retrial, leniency in any
way, that is denied. That is a very difficult
and unworkable situation, where we give the
prosecutor the last word on a person's -
SENATOR ESPADA: Madam President,
if I may beg an indulgence, I think there may
be a confusion around "possessor." The
"possessor," the word found in line 31, is not
the prosecutor. It is the state DNA lab. The
possessor is not the prosecutor.
SENATOR MONTGOMERY: Oh, okay.
All right, I stand corrected. Thank you.
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, 61.
ACTING PRESIDENT McGEE: Senator
Fuschillo.
Senator Morahan.
3719
SENATOR MORAHAN: Yes, Madam
President. Can we return to motions and
resolutions, please.
I believe there's a privileged
resolution at the desk by Senator Saland. Can
we have the title read and move for its
adoption.
ACTING PRESIDENT McGEE: Motions
and resolutions.
The Secretary will read.
THE SECRETARY: By Senator
Saland, legislative resolution honoring Ronald
T. Mullahey upon the occasion of receiving the
Service Above Self Award from the Poughkeepsie
Rotary Club on May 30, 2002.
ACTING PRESIDENT McGEE: The
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
Senator -- Senator Morahan.
3720
SENATOR MORAHAN: That's me.
ACTING PRESIDENT McGEE: Senator
Morahan.
SENATOR MORAHAN: Yes, Madam
President. Could we now move the Resolution
Calendar, please, with the exception of
Resolution 5647.
ACTING PRESIDENT McGEE: The
motion is to accept the Resolution Calendar.
The exception is noted. All in favor signify
by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
Resolution Calendar is adopted.
Senator Andrews.
SENATOR ANDREWS: Never mind.
ACTING PRESIDENT McGEE: Senator
Morahan.
SENATOR MORAHAN: One minute.
Can we call up Resolution 5647,
have the title read, and move for its
immediate adoption.
3721
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
Schneiderman, Legislative Resolution Number
5647, commending Parents of Murdered Children
of New York State, Incorporated, upon the
occasion of its 20th Anniversary.
ACTING PRESIDENT McGEE: The
question is on the resolution. All in favor
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: Yes. Senator
Schneiderman informed me that that resolution
should be opened to all Senators.
Those who do not want to be on the
resolution as a sponsor can make that known to
the desk.
ACTING PRESIDENT McGEE: The
resolution is open for cosponsorship. We will
3722
put everyone on as a cosponsor. If you do not
wish to be a cosponsor, please notify the
desk.
Senator Morahan.
SENATOR MORAHAN: Is there any
housekeeping at the desk, Madam President?
ACTING PRESIDENT McGEE: Yes,
there is.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, on behalf of Senator Farley, on
page number 48 I offer the following
amendments to Calendar Number 969, Senate
Print 5378B, and ask that said bill retain its
place on 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 Fuschillo.
SENATOR FUSCHILLO: Thank you,
Madam President.
ACTING PRESIDENT McGEE: Thank
you, Senator Fuschillo.
Senator Morahan.
3723
SENATOR MORAHAN: Thank you,
Madam President.
I'd like now to adjourn -- with no
other further housekeeping being in front of
the desk, adjourn until Thursday, May 30th,
3:00 p.m., intervening days being legislative
days.
ACTING PRESIDENT McGEE: On
motion, the Senate stands adjourned until
Thursday, May 30th, at 3:00 p.m., intervening
days to be legislative days.
(Whereupon, at 12:30 p.m., the
Senate adjourned.)