Regular Session - January 21, 2003
175
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
January 21, 2003
3:13 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may all we bow our heads in a moment
of silence, please.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
Unfortunately in the absence of
clergy, because clergy is doing this in the
Assembly, we had a Senate colleague, Virginia
Rosenbloom, who was involved in a tragic
accident. She currently works for the
Assembly. She's in a coma, in critical
condition; her baby son was killed.
And I've been asked if I could ask
my colleagues to just offer a moment of
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silence, a prayer, for her well-being.
(Whereupon, the assemblage
respected a moment of silence.)
SENATOR FARLEY: Thank you, Madam
President.
THE PRESIDENT: Thank you,
Senator Farley.
Reading of the Journal.
THE SECRETARY: In Senate,
Sunday, January 19, the Senate met pursuant to
adjournment. The Journal of Friday,
January 17, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Seward,
from the Committee on Insurance, reports the
following bill:
Senate Print 632, by Senator
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Seward, an act to amend the Insurance Law.
Senator Saland, from the Committee
on Education, reports:
Senate Print 208, by Senator
Morahan, an act to amend the Education Law;
216, by Senator Saland, an act to
authorize the City School District of the City
of Poughkeepsie;
And Senate Print 492, by Senator
Padavan, an act to amend the Education Law.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
objection, all bills reported direct to third
reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Investigations and Government Operations
Committee in Room 124. And following that,
there will be a meeting of the Higher
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Education Committee in Room 124.
THE PRESIDENT: There will be an
immediate meeting of the Investigations and
Government Operations Committee in Room 124.
And at the completion of that meeting, the
Higher Education Committee will also meet in
that room.
Thank you, Senator.
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial
calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
5, by Senator Alesi, Senate Print 59, an act
to amend the Penal Law, in relation to the
crime of false personation.
SENATOR MONTGOMERY: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
7, by Senator Velella, Senate Print 99, an act
to amend the Penal Law, in relation to
multiple convictions for the criminal sale of
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marijuana.
SENATOR MONTGOMERY: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
9, by Senator Hoffmann, Senate Print 181, an
act to amend the Penal Law, in relation to
inciting to riot.
SENATOR MONTGOMERY: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
10, by Senator Saland, Senate Print 215, an
act to amend the Penal Law, in relation to
including school buses within the definition
of "school grounds."
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
September.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
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THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
12, by Senator Volker, Senate Print 237, an
act to amend the Criminal Procedure Law, in
relation to fingerprinting persons arrested.
SENATOR MONTGOMERY: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
17, by Senator Skelos, Senate Print 246, an
act to amend the Correction Law, in relation
to requiring a Level 3 sex offender.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 8. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
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22, by Senator Kuhl, Senate Print 203, an act
to authorize His Tabernacle Family Church,
Incorporated.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Madam President,
thank you. If we could go to the
controversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
5, by Senator Alesi, Senate Print 59, an act
to amend the Penal Law, in relation to the
crime of false personation.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Alesi, an
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explanation has been requested.
SENATOR ALESI: Madam President,
if we could lay that bill aside temporarily,
please.
THE PRESIDENT: The bill is laid
aside temporarily.
THE SECRETARY: Calendar Number
7, by Senator Velella, Senate Print 99, an act
to amend the Penal Law, in relation to
multiple convictions.
SENATOR MONTGOMERY: Explanation.
THE PRESIDENT: Senator Velella,
an explanation has been requested.
SENATOR VELELLA: Yes, Madam
President. This bill is one that we passed in
the house last year.
And under present law, an
individual who sells marijuana may only be
charged with a misdemeanor unless the amount
in question is 25 grams or more. This bill
would say that if you have been convicted --
it elevates the charge for marijuana sales in
the amount of 25 grams or less when the
individual charged has previously been
convicted of three controlled-substance or
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marijuana offenses within a five-year period.
This would except the unlawful
possession of marijuana which a person may
have for their own personal use.
Unfortunately, we have cases -- and
specifically, this was as a result of an
incident in Washington Square Park where many
of the people selling marijuana were selling
it at weights under 25 grams, which is just
about an ounce, maybe a sandwich bag of
marijuana. And they, when apprehended, had 30
and 35 and 40 arrests for sale of marijuana
under this specific weight, knowing that it
was only misdemeanor offenses.
If you continuously sell these
after three warnings, you ought to be elevated
to the possibility of a felony charge or a
sentence of incarceration. And I think this
bill will go a long way to giving the message
that we don't support drug use.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
Chair. Would the sponsor, Senator Velella,
yield for a question.
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THE PRESIDENT: Senator, will you
yield for a question?
SENATOR VELELLA: Certainly,
Senator.
THE PRESIDENT: You may proceed,
Senator Montgomery.
SENATOR MONTGOMERY: Senator
Velella, through you, Madam President, I think
that we debated this bill last year, was it?
It was on our calendar, it passed our house
last --
SENATOR VELELLA: Yes, Senator, I
have the transcript here if you want to take a
look at it.
SENATOR MONTGOMERY: Okay, I'm
sure that would be helpful, because I could
say my exact words, whatever I said last year.
(Laughter.)
SENATOR VELELLA: Senator, I'd be
willing to agree with you that we could
incorporate last year's debate by reference
into the transcript.
SENATOR MONTGOMERY: Okay, that's
helpful. I thank you.
Let me just ask, for the current
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discussion, this represents, in fact, a charge
for possession --
SENATOR VELELLA: No, sale.
SENATOR MONTGOMERY: In other
words, after sale of so many --
SENATOR VELELLA: Not for
possession, no.
SENATOR MONTGOMERY: So this does
not institute a charge now for being arrested
for a certain number of times for possessing
less marijuana than it would require in order
for you to be convicted of the sale of
marijuana?
SENATOR VELELLA: That's correct,
Senator. The possession charges are
specifically excluded in laying a requisite
for the felony charge.
SENATOR MONTGOMERY: All right.
Senator Velella -- through you,
Madam President, if I can ask another
question.
THE PRESIDENT: Senator Velella,
will you yield for a question?
SENATOR VELELLA: Yes.
THE PRESIDENT: You may proceed,
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Senator Montgomery.
SENATOR MONTGOMERY: Senator
Velella, what is the purpose, then, of now
instituting legislation which would require
incarceration or would result in possibly
incarceration of a person for a marijuana
charge that up to now does not?
Since we are talking about
reforming the Rockefeller Drug Law, and in
relation to that, the whole issue of using the
amount that a person possesses, the quantity,
as the measure, rather than other aspects --
why do we now want to use a quantity of
marijuana on a number of arrests, which seems
to reverse what we intend to do with the
Rockefeller Drug Law vis-a-vis the Governor's
intent to address the Rockefeller Drug Law
this year? This seems to go in the opposite
direction.
So I'm just wondering why do you
want to do this now, as opposed to waiting
until we can reform the Rockefeller Drug Laws
to see how all of this fits together.
SENATOR VELELLA: Well, Senator,
one, the proposed Rockefeller Drug Law
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revisions span the gamut of many, many things.
There are people who want to slap you on the
wrist, there are people who want to do various
things, there are even proposals to make them
stiffer. So I don't know where we're going to
wind up. I hope we're going to address them
and hopefully do something that will be
constructive.
I think this is a positive step,
because we're not saying that if you get
caught selling -- not possessing, selling
marijuana to someone else, that we're going to
put you in jail. We're saying the first time
you may have sold it, you may not have sold
it, you may have been guilty with a
technicality. You got a chance. And you know
what? If you make a second mistake, we give
you another chance. You sold it a second
time. And within a period of five years, the
third time.
But when you're doing it four
times, I think you got to get the message that
you can't keep ignoring the law and breaking
the law.
I am sure that in your community in
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Brooklyn you have had numerous people call you
and say "They're selling drugs in the park,
right under the nose of the police, and they
don't do anything about it." The cops come,
they take them out, and the next morning or
the next night they're back in that park again
selling their drugs again.
This will stop it, Senator. This
will be the answer. I think you should
support it.
SENATOR MONTGOMERY: Thank you,
Senator Velella.
Madam President, briefly on the
bill.
THE PRESIDENT: You may proceed,
Senator Montgomery, on the bill.
SENATOR MONTGOMERY: As I look at
Senator Velella's proposal, the fact of the
matter is that this -- the whole issue around
marijuana sale and possession we have tried to
deal with to some extent in prior years.
I think that we've made some
progress, although the fact is that we still
have far too many people who are already
serving these exorbitant sentences, very long
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sentences for having small amounts of
substances. And in many instances the
so-called sale of these drugs is expressly for
the purpose of getting money so that they can
feed their own addiction.
So we do not -- this bill does not
address that problem, and it only will lead to
a further expansion of our criminal justice
system. We will be way -- you know, the
system will be overburdened with all of these
cases, and we will still not be addressing the
main issue. And that is the use of drugs and
the need for drug treatment.
So I'm going to vote against this
legislation. I do not view it as really
addressing the problem of the sale of drugs,
and so I'm going to vote against this bill.
THE PRESIDENT: Does any other
Senator wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
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(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 7 are Senators
Andrews and Montgomery. Ayes, 53. Nays, 2.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
if I could just interrupt and remind everybody
that's on the Higher Education Committee, the
meeting is beginning now.
THE PRESIDENT: The Higher
Education Committee is meeting now.
Thank you, Senator Skelos.
The Secretary will read.
THE SECRETARY: Calendar Number
9, by Senator Hoffmann, Senate Print 181, an
act to amend the Penal Law, in relation to
inciting to riot in the first degree.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect --
SENATOR MONTGOMERY: Explanation.
THE PRESIDENT: Senator
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Montgomery, are you asking for an explanation?
SENATOR MONTGOMERY: Yes, please.
THE PRESIDENT: Senator Hoffmann,
an explanation has been requested.
SENATOR HOFFMANN: Thank you,
Madam President. I'd be delighted to explain
this bill once again.
This is the third time the bill has
been before this house. I'm happy to say that
it has passed -- actually, the fourth time
this bill has been before this house. It has
passed the previous three times.
There is a similar bill, although
not identical, before the Assembly. I'm
confident that the Assembly will look
favorably upon this measure if we can pass it
again this year.
This bill originated after a riot
occurred at the Mohawk Correctional Facility
on July 18th of 1997, in which ten correction
officers were injured, two of them very, very
seriously.
I happened to visit the facility
shortly after the riot. I had an opportunity
to talk with the officers and the
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administrators who were on duty at that time,
as well as nursing staff and other employees.
And I want to establish on the record that the
men and women at Mohawk Correctional Facility
in all capacities that day were exemplary
public employees. They showed remarkable
patience and courage in the face of imminent
personal danger.
The fact that several of the
officers had already been overcome might have
easily excused a retaliatory force by the
correction officers remaining on the job, or
could have compelled them to call in the State
Police, who were surrounding the facility at
that point. But they chose not to do that.
And in the end, they very calmly and patiently
and wisely waited out the inmates, who
eventually gave up their insurrection.
Sadly, following this riot it
became apparent that the inmates who had
caused the riot were not going to be punished
by anything more than transfers, in a few
cases, to other facilities. And that is
because there is a significant omission in our
laws right now and a riot within a prison is
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not actually considered a riot at all.
The law ironically states that a
riot is defined as a grave risk -- conduct
creating a grave risk of public alarm. And
therefore, a prison, which is not a public
facility or open to the public, does not
comply with the definition in New York State
of a riot.
This bill would create a category
of a riot, and it would create two new
felonies: riot in the first degree and riot
in the second degree. A riot in the first
degree may not be plea-bargained below a
Class E felony under this piece of
legislation.
I'm happy to report, Mr. President,
that this bill has the strong support of the
Correction Officers Association of this state,
NYSCOBA. Many individuals who are employed
within our correctional facilities have asked
repeatedly when this bill would become law.
It would give them a tremendous measure of
comfort in what is an exceedingly difficult
and increasingly dangerous job.
The men and women who work within
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our prison facilities are entitled to the
maximum level of protection, as are the other
inmates in those facilities, who are also
often the victims of riotous actions. So I
would ask all of my colleagues to join me in
sending an overwhelming message of support for
the new riot law in New York State.
ACTING PRESIDENT MEIER: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President, I'd like to ask a question of the
sponsor, Senator Hoffmann.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you yield for a question?
SENATOR HOFFMANN: Yes,
certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Senator
Hoffmann, I note that your legislation has
added "tumultuous and violent," "tumultuous"
to the issue of violent conduct.
And I'm just wondering, what is the
meaning of this in your mind? How is that to
be interpreted in relationship to what we
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already have in law, which is "violent
conduct"?
SENATOR HOFFMANN: Mr. President,
through you, I'd be happy to respond.
The change on the word "tumultuous"
simply corrects a typo in the existing
statute.
SENATOR MONTGOMERY: Excuse me?
SENATOR HOFFMANN: It corrects a
typo in the existing statute. "Tumultuous"
was misspelled.
SENATOR MONTGOMERY: Oh, I see.
Okay.
SENATOR HOFFMANN: That is the
only change that you would have noticed.
SENATOR MONTGOMERY: All right.
One further question.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you continue to yield?
SENATOR HOFFMANN: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Senator
Hoffmann, I note that you have now reduced the
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number to five or more persons. So the issue
is that you have reduced from ten to five.
And who determines the extent of
danger that is involved when five inmates talk
to each other? Is that -- is there any -- you
know, I know you have -- it's "tumultuous and
violent conduct." I'm just wondering what
triggers a charge of inciting a riot.
What is the conduct that we're
talking about? Is it that five people talk to
each other? What -- what -- and who
determines that? I guess really the question
of what it is, what determines. Because I'm
sure I know who determines it, but . . .
SENATOR HOFFMANN: Mr. President,
if I understand Senator Montgomery's question
correctly, she's asking who would determine
whether the number of five inmates were guilty
of acting in a riotous fashion, consistent
with this legislation.
The response to that would be that
the jury would make the determination.
Charges would be brought by the district
attorney, and a jury would then, based on the
evidence, decide whether in fact there was a
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riot or not.
In the case of the Mohawk
Correctional Facility situation, there would
have been no question. The evidence would
have clearly shown that the injuries, the
significant injuries to the ten correction
officers who suffered physical attacks more
than justified the charge of riot.
For them to have gone unpunished
for their act is an egregious mistake on our
part. We owe it to our public employees in
the correctional facilities of this state --
whether they are correction officers,
teachers, nurses, doctors, clerical staff, or
custodians, we owe it to all of them to
establish that their safety is a concern for
us. And we also owe it to the other inmates
who could be injured to indicate that the
crime of riot does in fact exist within
correction walls.
SENATOR MONTGOMERY: Mr.
President, if I just may pursue one further
point with Senator Hoffmann.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you continue to yield?
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SENATOR HOFFMANN: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Senator
Hoffmann, I'm reading the change that you are
seeking in this legislation, and it says
"while in custody, if a person urges five or
more persons to engage in tumultuous and
violent conduct of a kind likely to create
alarm."
So my question is, what do you
actually define as riotous behavior? Is it a
conversation between five or six people? And
what is "tumultuous"? What exactly are you
talking about?
Because if that is as loose as it
sounds to me, there could be any level of
discussion among people which would result in
them being charged with inciting a riot
because they alarmed someone and being charged
with a Class E felony, which extends for X
number of years their incarceration just
because they spoke to each other.
SENATOR HOFFMANN: Just because
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what?
I'm having trouble hearing, Mr.
President. Could we have a little quiet in
the chamber?
ACTING PRESIDENT MEIER: Can we
have some order in the chambers, please.
SENATOR HOFFMANN: I'm sorry, I
did not hear the last few words from Senator
Montgomery, Mr. President.
ACTING PRESIDENT MEIER: Senator,
could you repeat the last part of your
question?
SENATOR MONTGOMERY: Yes, Mr.
President. My point is that we are now
seeking to create a first-degree riot based on
five or six people, if I understand correctly,
having some level of discussion among
themselves. And the wording here says that if
they engage in "tumultuous and violent." I
understand "violent." I'm not clear what
"tumultuous" means.
And it says that if they create
alarm, that they can then be charged with
inciting a riot. I would like to know what do
you exactly mean by "tumultuous." And if six
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people are having some discussion, does that
mean that a correction officer can, based on
this law, charge them with inciting a riot
because they became -- he or she became
alarmed, and in fact these six people are
eligible to be charged with a Class E felony?
SENATOR HOFFMANN: Is that the --
SENATOR MONTGOMERY: That's the
question, yes. What exactly are we talking
about? What is the level that it requires in
order to be charged with this?
And what is this "tumultuous"?
What type of behavior are we talking about?
"Tumultuous," it seems to me, is the issue
here.
Obviously, if someone is acting in
a violent manner, we understand that. But if
they are having a discussion about some issue,
as inmates are prone to do, as far as my
experience in dealing with them -- they talk
to each other, they, you know, have all kinds
of activities inside -- what will be the
trigger? What is the least thing that can
happen that would trigger this legislation?
That's what I'm trying to find out.
202
SENATOR HOFFMANN: Mr. President,
as best as I can understand the question from
Senator Montgomery, she appears to be
concerned that discussion among inmates
numbered five or more could be misconstrued
under this law. And I would ask Senator
Montgomery to please read the existing statute
carefully, as I have, because it is very clear
that "riot," as already described within the
statute in New York state law, is really quite
specific: "Tumultuous and violent conduct,
thereby intentionally or recklessly causing
grave risk of public alarm in the course of,
and as a result of such conduct a person other
than one of the participants suffers physical
injury or substantial property damage."
Now, this is the actual description
within existing law. In nowhere does that law
refer to "discussion." It's quite obvious
that there could never be any misconstrued
situation where five or six inmates could be
accused of a riot merely by discussion. That
really demeans the correction officers and the
other employees of the New York State criminal
justice system.
203
The men and women who work in our
prisons understand the difference between
discussion among inmates. And indeed, they're
subjected to many stressful situations.
Discussion is hardly a concern of theirs.
But physical acts of violence
directed against them are a concern of theirs
and should be a concern of ours. There is
really no question why we need this law.
And I am somewhat disappointed that
a senator with the seniority of Senator
Montgomery on the other side would inject the
silly notion of discussion, to substitute that
for violent and tumultuous action within the
statute. We need this law changed to protect
the employees of our correctional system now.
SENATOR MONTGOMERY: Just
briefly, Mr. President, on the legislation.
ACTING PRESIDENT MEIER: Senator
Montgomery, on the bill.
SENATOR MONTGOMERY: Yes. I
certainly appreciate my colleague, who happens
to be in my same class, but not in my same
group at the moment, referring to my issues as
being silly and ridiculous.
204
However, I just want to -- I want
to remind my colleague, who is -- certainly I
agree with the fact that we want to protect
corrections employees and anyone who is in the
facilities, either as visitors or as staff at
any level.
The fact of the matter is that the
wording in this legislation, one, it reduces
from ten to five. So five people who are
communicating at whatever level. And it says,
very specifically, acts, conduct of a kind
likely to create alarm.
And I wanted to be -- I want you to
be very clear about what I am trying to say
regarding this kind of legislation. We have
many, many opportunities that we have provided
for extending the time of incarceration of
people. And my concern is that since we have
removed most of the support that we once had
in the correctional system for inmates --
there are younger and younger inmates coming
into the system, they have longer and longer
sentences, and my fear is that this is one
more opportunity to say even if you have a
small group of people who are talking to each
205
other -- and if you can imagine these
institutions with acres and acres and acres of
space and people moving around, thousands of
people moving around on a daily basis, and
people who are communicating with each other,
there are many opportunities for corrections
people --
ACTING PRESIDENT MEIER: Senator
Montgomery, would you excuse me a moment.
Can we have a little order in the
chamber, please. There's a member who has the
floor and who's speaking.
Senator Montgomery.
SENATOR MONTGOMERY: There are
many opportunities in any given institution
for activities that go on to be judged as
likely to create alarm.
And so I would just caution that we
should take extreme care in setting up a
situation where inmates can be charged just
because they want to raise an issue, they talk
among themselves. Maybe they just want to
talk out something that they feel important
that it needs to be dealt with. But certainly
not instantly to be able to charge them with
206
rioting and to receive an extended felony
charge, an E felony. So my caution to you.
And I will vote no on this
legislation.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. Briefly on the bill.
I support this legislation, but
really more because I support what I think
it's trying to accomplish than that I support
the particular draftsmanship.
I think Senator Montgomery was
calling attention to something that is
disturbing. The courts do look to the
Legislature for clarification of the language
that we put into the law that the court is
obliged to follow.
And I am not sure that after
listening to this debate I understand what
conduct of a kind likely to create alarm is.
I know -- you know, and I spent two years as
an officer in a correctional facility, and if
you just announced the wrong menu was on for
dinner that night, that was likely to create
207
alarm.
So I think in a situation like this
where we're talking about substantial terms of
additional punishment, that additional clarity
is required.
I support this bill because of
the -- what I believe is the underlying
intent, but I would urge that this may in fact
be the kind of issue that could hold things up
in our efforts to come to agreement with the
Assembly and actually pass a law. So I will
vote yes, but I do think the issues raised by
Senator Montgomery should be addressed should
this not become law this year, as I have a
feeling it may not.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Liz Krueger.
SENATOR LIZ KRUEGER: Thank you,
Mr. President. If the sponsor will yield for
a question.
ACTING PRESIDENT MEIER: Senator
Hoffmann, will you yield?
SENATOR HOFFMANN: Yes, Mr.
President.
208
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR LIZ KRUEGER: Thank you.
I don't have the seniority of you
or Senator Montgomery, so perhaps these are
questions that other people already know the
answer to. But it's certainly piqued my
interest.
How many riots do we have in New
York State correctional facilities per year?
SENATOR HOFFMANN: Mr. President,
I'm not at liberty to reveal statistics that I
don't have. I certainly don't know how many
we have, but I know that we have far too many.
We recently had one at Auburn
Correctional Facility, which is in Senator
Nozzolio's district, right on the border of my
district. And I know that we had this one in
1997 that was tremendous in its damage,
psychologically as well as physically to the
correction officers and their families, I
might add, many of whom were engaged in
counseling for months and sometimes years
afterwards.
Practically every year there is a
209
riot in some facility or something that
requires what is called a lockdown.
I think it's an excellent question.
I don't know the information to that, but I'm
sure that Senator Nozzolio would be happy to
provide it through the Crime and Corrections
Committee.
SENATOR LIZ KRUEGER: Thank you.
Mr. President, if the sponsor would
continue to yield to another question.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you continue to yield?
SENATOR HOFFMANN: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR LIZ KRUEGER: Thank you,
Mr. President.
One of the reasons for my first
question of Senator Hoffmann was to try to get
a number sense of inciting to riot versus a
riot, and how large a problem this is.
Because as I understand this bill, it
increases criminal penalties but it doesn't
actually create a new class, per se, of things
that happen now that aren't already penalized.
210
Is there a -- it's not a fair
question, I know, given your answer to the
first one, which was reasonable that you
wouldn't know exactly the number of riots per
year in New York State correctional
facilities. But I'm wondering, is there a
separate number for the number of inciting to
riot without riot activities, as opposed to
just rioting?
Because I think that Senator
Montgomery's questions were reasonable about
the concept of what is the definition of
tumultuous, what is the definition of inciting
as opposed to the actual activity of a riot.
And I would think that it would be
relevant to this house when passing this bill,
although I too believe I will end up voting
for it today, to have a good understanding of,
in real life in our correctional facilities --
and I don't imagine there's anyone here who
supports riots -- how large a universe are we
talking about and are there two universes now,
actions that are charges of inciting to riot
versus actions that are actual riots.
And I think that would help to
211
explain to Senator Montgomery the question of
what is the definition of "tumultuous" in this
bill, because I think that's what she was
going after. And I also think it's a little
confusing to myself as a junior senator.
So I don't know whether you have an
answer to how many inciting-to-riot charges we
bring in this state as opposed to rioting.
SENATOR HOFFMANN: Mr. President,
every riot would obviously have somebody who
was responsible for inciting it. Again, there
might be statistics in the Department of
Corrections, which I'm sure Senator Nozzolio
would be able to find.
I think it's kind of unfortunate
that so much of this discussion has broken
down around semantics. The use of the word
"tumultuous" is not my personal choice. That
appeared in statute. It is a somewhat archaic
word. I'm sure we could dissect it at some
great length. But the other words that follow
"tumultuous" are much more readily understood.
And I would just ask all of my
colleagues, senior and junior, to bear in mind
that what we are looking at here is a law
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which deals with the conduct of violent
behavior. Terms like "reckless endangerment"
and "physical injury" appear within this
statute already. This change in the law
merely extends that definition to actions
within prison walls, because they are now, by
omission only, exempt from the definition of
"riot."
And indeed, the last time we had
this debate, Senator Paterson made a very
important observation in his discussion,
stating that he supported this change in the
law because of the fact that it appeared to be
largely an omission in the original language
of the law.
But this omission, while it might
seem like a relatively small one or one that
could be discussed at great lengths by
philosophers, in reality, for the people who
are employed in the prison system, is a very
egregious omission. And we owe it to those
men and women to correct that omission today.
SENATOR LIZ KRUEGER: Thank you,
Mr. President.
ACTING PRESIDENT MEIER: Read the
213
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56. Nays,
1. Senator Montgomery recorded in the
negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time return to motions and
resolutions.
And I believe that there is a
privileged resolution at the desk sponsored by
Senator Bruno and others. I would ask that it
at this time be read in its entirety and move
for its immediate passage.
ACTING PRESIDENT MEIER: Motions
and resolutions.
The Secretary will read the
privileged resolution at the desk.
214
THE SECRETARY: By Senator Bruno,
Legislative Resolution Number 71,
congratulating the 2002 South Troy Trojan
Warriors Football Team and Head Coach Joe
McNall upon the occasion of capturing the
National Pop Warner Midget Division II
Championship.
"WHEREAS, It is the sense of this
Legislative Body to acknowledge the prominent
athletes and teams of this great Empire State
who distinguish themselves through outstanding
performances and exemplary athletic
achievements; and
"WHEREAS, Attendant to such concern
and in full accord with its long-standing
traditions, this Legislative Body is justly
proud to congratulate the 2002 South Troy
Trojan Warriors Football Team and Head Coach
Joe McNall upon the occasion of capturing the
National Pop Warner Midget Division II
Championship; and
"WHEREAS, the South Troy Trojan
Warriors finished its regular season with an
8-0 record, outscoring their opponents 192-50;
and
215
"WHEREAS, The first two rounds of
the regional playoffs were played in Syracuse,
New York. On November 16, the South Troy
Trojan Warriors defeated Poughkeepsie by the
score of 20-12. On November 24, they were
victorious over West Valley-Geddes by the
score of 24-21; and
"WHEREAS, On November 30, the South
Troy Trojan Warriors traveled to Lock Haven
University in Pennsylvania, and defeated a
team from Rosedale, Maryland, by the score of
20-13. This victory earned them a trip to
Disneyworld in Orlando, Florida, to compete in
the National Pop Warner Division II
Championships; and
"WHEREAS, the South Troy Trojan
Warriors played their first game in the
championships on December 10, against the Dale
City Cowboys from Virginia, and defeated them
by the score of 14-6; and
"WHEREAS, in the championship game,
the Trojan Warriors, now 12-0, faced the 13-0
Mexicali Halcones from California, on
December 12. The South Troy Trojan Warriors
emerged victorious by the score of 19-7,
216
overcoming a string of setbacks, including
inclement weather and an injured quarterback;
and
"WHEREAS, The South Troy Trojan
Warriors became the first team from the State
of New York to win a National Pop Warner
Championship, bringing national recognition to
the Capital District; and
"WHEREAS, The athletic talent
displayed by this team is due in great part to
the efforts of Head Coach Joe McNall, a
skilled and inspirational tutor, respected for
his ability to develop potential into
excellence; and
"WHEREAS, Coach Joe McNall, 25,
became the youngest coach to ever lead a team
to the National Pop Warner Championship. In
addition, he was the first coach ever to
accomplish this feat in his first year of
coaching; and
"WHEREAS, Coach Joe McNall,
Assistant Coaches Joe Angrisano, Donn
Liebener, Pat Shufelt and Nick McNall, and
Commissioner Charlie Arnold, have done a
superb job in guiding, molding, and inspiring
217
the team members toward their goals; and
"WHEREAS, The hallmarks of the
South Troy Trojan Warriors Pop Warner Football
Team, from the opening game of the 2002 season
to its participation in the championship game
in Orlando, Florida, were a brotherhood of
athletic ability, of good sportsmanship, and
of honor, demonstrating that these team
players are second to none; and
"WHEREAS, The South Troy Trojan
Warriors were loyally and enthusiastically
supported by their families, fans, and
friends, as well as the entire South Troy
community at large; and
"WHEREAS, The team was also
supported by their staunch and faithful
cheerleaders, coached by Judi Byrnes and
assisted by Tori Martuscello and Tina
Liebener. The 2002 cheerleaders include:
Tessa Bertrand, Carly Fontana, Aliza Reilly,
Cassie Cardnuto, Tonia Jalet, Morisa Ryder,
Alyssa Casale, Liz Konopasek, Patty Schiotis,
Bianca Cooper, Devan Liebener, Theresa
Schiotis, Alexandra Dayton, Colleen Maloney,
Alyssa Spiak, Deanna Deeb, Melody McGrath,
218
Andrea Trong, Kaylin Erbe, Allison Raymond,
and Kadriss Waters; and
"WHEREAS, Sports competition
instills the values of teamwork, pride and
accomplishments, and clearly made a
contribution to the spirit of excellence which
is a tradition of the South Troy community;
now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to
congratulate the 2002 South Troy Trojan
Warriors Pop Warner Football Team, its
members -- Jared Bell, Jeffrey Hough, Joshua
Shoemaker, Jahod Crumble, Stephen
Liesenfelder, Michael Seebald, Eugene Kennedy,
Michael Krogh, Trevel Smith, Andrew King,
Michael Fitzgerald, Michael Arnold, James
LaWare, Michael Cioffi, A.J. Pasinella,
Anthony Valenti, Vito Angrisano, Derek
Schneider, and J.R. Serrano -- and Coach Joe
McNall, as well as Assistant Coaches Joe
Angrisano, Donn Liebener, Pat Shufelt and Nick
McNall, and Commissioner Charlie Arnold, upon
the occasion of their undefeated season as
well as capturing the National Pop Warner
219
Midget Division II Super Bowl; and be it
further
"RESOLVED, that copies of this
resolution, suitably engrossed, be transmitted
to all the aforementioned team members,
coaches, cheerleaders, and commissioner of the
2002 South Troy Trojan Warriors Pop Warner
Football Team."
ACTING PRESIDENT MEIER: Senator
Bruno.
SENATOR BRUNO: Thank you, Mr.
President.
I'm as proud as I can be that I
represent the Senate district that hosts these
national champions that are joining us here
today. I have had a lot of good things happen
in my district in my life; nothing is as
important or more important than this.
So we're glad that you're here.
And I rise really to welcome you on behalf of
my colleagues. And I can tell you now, if any
of these people were speaking, they would echo
my words and how proud we are of you and all
the good things that you have done, you that
are on the team, Coach Joe -- with a great
220
name like that, he's got to be great --
(Laughter.)
SENATOR BRUNO: -- in his first
year.
But think about young people who go
on and win eight straight and then go into
quarterfinals, semifinals, go to Orlando. And
each time they're challenged, a defeat
eliminates them -- and they go 13 straight
undefeated. Now, that is to be applauded.
The resolution that you heard
passes in the Senate just like any law that
passes in this state. So when your children
and your grandchildren want to look up, when
you as a grandparent are bragging about the
great things that you did, they will be able
to come in, go into the records of this state
and check this resolution and find that, yes,
your name is there and on December 12th you
did win the national championship.
You know it's something to be proud
of, and I know you're proud. Your parents are
proud, your neighbors are proud, your teachers
are proud. Coach Joe and all of the staff is
proud. The cheerleaders are proud. Not just
221
because you're champions and that you win
nationally against a lot of the teams that
these Senators represent.
(Laughter.)
SENATOR BRUNO: But you know
what? They're good sports. They're good
sports. They're going to applaud you even
though you drubbed their teams.
(Laughter.)
SENATOR BRUNO: But it's a credit
to you that -- and I can tell you don't let it
go to your head. You understand that you win
not by being individuals and stars -- although
there are stars, each and every one of you --
but by being team players.
Life is a team effort. Nobody gets
on in life without your teachers, without your
parents, without your neighbors, without your
teammates, without people that support you
generally as you move on with your life.
I am standing here now because I
have a team, here. And I am elected as their
leader. But I'm only their leader because
they elect me. And without them, I'd be
sitting here listening instead of bragging
222
about how great you are. And you are great.
You are great. And we're here to applaud you.
And for those of you that may not
be aware, we're going to host a reception for
these young Trojan Warriors, who are
victorious and who really bring great acclaim
to Troy, especially the South end of Troy.
And when I moved into Troy, it was always the
South end against the world. And they just
proved it.
So we're happy you're here, we're
happy that we could recognize and honor you.
And we join with everyone in just really
applauding you for not just the great
championship that you won, but for being the
team players that you are.
And as you go on in life, you will
continue to excel in every way, just as you
excelled with the coaching of Coach Joe McNall
and all of your teachers and all of your
supporters that have rallied around you to
help you achieve this great, great victory.
So congratulations to you on behalf
of all my colleagues here. You keep up your
good work. You make us very, very proud.
223
Thank you, Mr. President.
(Applause.)
SENATOR BRUNO: Would you stand
up, those of you that are on the team? Just
stand up, guys, okay.
(Applause.)
ACTING PRESIDENT MEIER: The
question is on the resolution. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: Senator
Bruno, what a surprise, it passed unanimously.
(Laughter.)
SENATOR BRUNO: Thank you, Mr.
President.
ACTING PRESIDENT MEIER: The
resolution is adopted.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time return to the
controversial reading of the calendar.
ACTING PRESIDENT MEIER: The
224
Secretary will resume the controversial
calendar.
THE SECRETARY: Calendar Number
12, by Senator Volker, Senate Print 237, an
act to amend the Criminal Procedure Law, in
relation to fingerprinting.
SENATOR MONTGOMERY: Explanation.
ACTING PRESIDENT MEIER: Senator
Volker, Senator Montgomery has requested an
explanation.
SENATOR VOLKER: It's hard to
believe, I guess it was eight or nine years
ago, 1995, there was a crisis in New York City
of -- at the time it was considered of
somewhat epic proportions, when they found out
that there were literally a hundred thousand
people driving around New York City
unlicensed.
I remember Assemblyman Joe Lentol
and I, we did joint legislative hearings in
New York City, and we were told by a police
officer how disgusted he became when he
investigated an accident and found out both
drivers had no licenses, the ambulance driver
that came to the scene had no license, nor did
225
the tow truck driver who came to pick up the
cars. Both tow truck drivers, neither had
licenses.
And he was a little bit infuriated.
They found one guy had been arrested one
hundred times for driving without a license.
But the problem was and still
remains, although it's not as bad as it once
was, is that tracking these people down in a
city such as New York -- and the merge between
the New York City Police Department and Motor
Vehicles is extremely difficult to do. So we
passed a bunch of legislation.
The one piece of legislation that
we have never passed since '95 -- it has
passed this house many times; last year it
passed this house by a vote of 53 to 3, I
believe, yes -- is this bill.
And the reason it hasn't passed the
Assembly is because there's such a nervousness
about fingerprinting, as if there's something
magic about fingerprinting.
But this bill says if you lose your
license and you're arrested for driving
without a license and then you're arrested a
226
third time for what becomes aggravated
unlicensed operation, you then are subject --
even though it's not a crime or a misdemeanor,
you are subject then to fingerprinting. And
the reason for that is that's the way you can
track a person who has multiple unlicensed
operations.
They've arrested people in this
situation, by the way, in the city on other
crimes, got them fingerprinted, and found out
that they were 40-or-50-violation people for
unlicensed operation.
It just seems to me -- and I
understand the reluctance on the part of some
individuals to support this, but unlicensed
operation in New York City and in parts of
upstate New York -- I'm not just saying it's
New York City. But I can see it in a lot of
other places.
Admittedly, we have a little
different situation in upstate New York. When
I was a police officer, if we found somebody
we knew was a persistent unlicensed operator,
we just picked his car up on a hook, drove it
in, checked it all out, put him in jail for
227
the time being -- because you could actually
arrest him on a violation -- and made sure
that he didn't have any other violations.
That if he did, then we'd book him for --
actually for a misdemeanor, then. Because if
you have a number of violations, you certainly
have an intention that the person is not going
to be stopped to drive.
So all we're doing, I think, in
this bill is providing a vehicle so that if a
person is a persistent unlicensed operator,
that you'll have a way of tracking him through
the fingerprinting. That's all this bill
really does.
ACTING PRESIDENT MEIER: Any
other Senator wish to be heard on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57. Nays,
1. Senator Montgomery recorded in the
228
negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
5, by Senator Alesi, Senate Print 59, an act
to amend the Penal Law, in relation to the
crime of false personation.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT MEIER: Senator
Alesi, an explanation has been requested of
Calendar Number 5.
SENATOR ALESI: Thank you, Mr.
President.
This bill recognizes the danger of
false personation, not only to police officers
but to innocent victims as well whose identity
might be stolen during the time of an arrest.
And it increases the penalty for false
personation from a Class B misdemeanor to a
Class A misdemeanor.
Thank you very much.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
229
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Montgomery, why do you rise?
SENATOR MONTGOMERY: Mr.
President, I just wanted to ask Senator Alesi
a question.
ACTING PRESIDENT MEIER: We're on
a roll call. Would you like us to withdraw
the roll call?
Roll call is withdrawn.
SENATOR MONTGOMERY: Okay. Thank
you.
ACTING PRESIDENT MEIER: Senator
Alesi, do you yield for a question from
Senator Montgomery?
SENATOR ALESI: Yes, Mr.
President.
SENATOR MONTGOMERY: Senator
Alesi, I just did not understand why -- I see
that your legislation passed unanimously last
year.
230
SENATOR ALESI: Yes, it did.
Through you, Mr. President, yes, it did.
And, Senator Montgomery, I
appreciate your support on that vote last
year.
SENATOR MONTGOMERY: Right. Now,
the question that I have for you is then why
do you want to remove the requirement that a
person be informed?
Is there a problem with that, that
when someone says -- you know, goes to make an
arrest or a police officer goes to talk to
someone or whatever, that that officer be
required to say "If you do not give me your
correct information, X, Y, and Z can happen"?
Why is that a problem? I don't understand why
you want to remove that requirement from the
law.
SENATOR ALESI: Thank you. In
response, Mr. President, to Senator
Montgomery, everybody, from the time we're
very, very young, understands what a lie is,
and everybody understands that there are
consequences for not telling the truth.
But in this case, by removing that
231
requirement, it removes a loophole that
someone could say that they weren't informed
that by telling a lie that there would be a
consequence.
And it simply enhances the
arresting officer's ability to -- and for
society in general to punish somebody who
impersonates someone else.
And it should be noted that the
main thrust of this bill is to increase the
penalties for that, especially at a time when
we know that impersonating someone else or
stealing someone else's identity is far more
serious than most people would have thought
prior to all of the terrorist activity that is
going on in today's world.
SENATOR MONTGOMERY: Mr.
President, I want to just -- I feel very
unhappy that Senator Alesi has brought us a
proposal to actually remove what I think is
a -- at least some level of a safety valve,
especially as it relates to teenagers who,
yes, they know the difference in telling a lie
and telling the truth, but they may not,
legitimately may not know that if they lie to
232
a police officer, there are certain
consequences, and in fact they can be charged
with a Class A misdemeanor. Is that what it
is, a misdemeanor?
So I don't buy this argument that
people will get away with doing it because the
police officer forgets to tell them. I don't
know why it's not just an automatic assumption
by any police officer or any law enforcement
officer that when you stop someone, they know
up front from that officer that if you falsely
impersonate yourself, you can be charged with
an additional charge just based on that.
So I have to oppose this
legislation, even though I supported it in its
form the last time. I just think removing
that language places a certain group of people
in particular, young people who may not
know -- and it's a simple thing that the
officer could just say to them: "If you lie
to me, you can be charged." I don't see why
that can't happen.
So I'm going to oppose it now, even
though I certainly agree with the concept. I
understand what you -- the intent of the
233
legislation. But I think the original
language has merit.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57. Nays,
1. Senator Montgomery recorded in the
negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos, that completes the
controversial calendar.
SENATOR SKELOS: Mr. President,
if we could return to reports of standing
committees, I believe there are a number of
committee reports to be read at this time.
ACTING PRESIDENT MEIER: Reports
of standing committees.
The Secretary will read.
234
THE SECRETARY: Senator Spano,
from the Committee on Investigations and
Government Operations, reports:
Senate Print 235, by Senator
Volker, an act to amend the Tax Law;
396, by Senator Saland, an act to
amend the Tax Law;
614, by the Senate Committee on
Rules, an act to amend the Tax Law;
And Senate Print 688, by Senator
Wright, an act to amend the Tax Law.
All bills ordered direct to third
reading.
ACTING PRESIDENT MEIER: Without
objection, all bills are ordered directly to
third reading.
Senator Skelos.
SENATOR SKELOS: Mr. President,
without objection, may we please take up
Senate Bill 492, by Senator Padavan, that was
just reported from the Education Committee.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar Number 30, Senate
Print 492.
THE SECRETARY: Calendar Number
235
30, by Senator Padavan, Senate Print 492, an
act to amend the Education Law, in relation to
extending.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
is there any housekeeping at the desk?
ACTING PRESIDENT MEIER: There is
none.
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Senator Bruno,
in consultation with Senator Paterson, hands
up the following Minority committee changes
and asks that they be filed in the Journal.
236
ACTING PRESIDENT MEIER: They
will be filed in the Journal.
SENATOR SKELOS: Mr. President,
there being no further business to come before
the Senate, I move we stand adjourned until
Wednesday, January 22nd, at 11:30 a.m.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Wednesday, January 22nd, at 11:30 a.m.
(Whereupon, at 4:17 p.m., the
Senate adjourned.)