Regular Session - February 3, 2003

                                                            335







                           NEW YORK STATE SENATE











                          THE STENOGRAPHIC RECORD



















                             ALBANY, NEW YORK



                             February 3, 2003



                                 3:13 p.m.











                              REGULAR SESSION















            SENATOR JOHN J. FLANAGAN, Acting President



            STEVEN M. BOGGESS, Secretary



































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                           P R O C E E D I N G S



                            ACTING PRESIDENT FLANAGAN:    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 FLANAGAN:    In



                 the absence of clergy, may we bow our heads in



                 a moment of silence.



                            (Whereupon, the assemblage



                 respected a moment of silence.)



                            ACTING PRESIDENT FLANAGAN:



                 Reading of the Journal.



                            THE SECRETARY:    In Senate,



                 Saturday, February 1, the Senate met pursuant



                 to adjournment.  The Journal of Friday,



                 January 31, was read and approved.  On motion,



                 Senate adjourned.



                            ACTING PRESIDENT FLANAGAN:



                 Without objection, the Journal stands approved



                 as read.



                            Presentation of petitions.



                            Messages from the Assembly.











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                            Messages from the Governor.



                            Reports of standing committees.



                            Reports of select committees.



                            Communications and reports from



                 state officers.



                            Motions and resolutions.



                            Senator Fuschillo.



                            SENATOR FUSCHILLO:    Thank you,



                 Mr. President.



                            On behalf of Senator Maziarz, I



                 move that the following bill be discharged



                 from its respective committee and be



                 recommitted with instructions to strike the



                 enacting clause:  Senate Print Number 728.



                            ACTING PRESIDENT FLANAGAN:    So



                 ordered.



                            Senator Bruno.



                            SENATOR BRUNO:    Mr. President, I



                 have a privileged resolution at the desk,



                 Number 299.  I would ask that it be read in



                 its entirety and move for its immediate



                 adoption.



                            ACTING PRESIDENT FLANAGAN:    The



                 Secretary will read.



                            THE SECRETARY:    By Senator Bruno,











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                 Legislative Resolution Number 299, paying



                 tribute to the heroic lives of the seven



                 astronauts who made the ultimate sacrifice



                 aboard the space shuttle Columbia on



                 February 1, 2003.



                            "WHEREAS, Throughout the history of



                 our world, brave men and women who have the



                 innate curiosity to gain knowledge about our



                 planet and its surroundings have entered the



                 unknown as pioneers for the benefit of all



                 humankind; and



                            "WHEREAS, The United States of



                 America grieves the loss of our seven



                 astronauts who gave the ultimate sacrifice



                 when the space shuttle Columbia was destroyed



                 on Saturday, February 1, 2003; and



                            "WHEREAS, This Legislative Body is



                 moved, with reverent esteem, to mourn the loss



                 of Rick Husband, 45; Michael P. Anderson, 43;



                 Ilan Ramon, 48; David Brown, 46; Laurel Clark,



                 41; Kalpana Chawla, 41; and William McCool,



                 41; and



                            "WHEREAS, Shuttle Commander Rick



                 Husband, who also served as a crew member



                 aboard space shuttle Discovery in 1999, was











                                                        339







                 married and the father of two beautiful



                 children, and resided in Amarillo, Texas; and



                            "WHEREAS, Payload Commander Michael



                 P. Anderson, who also served as a crew member



                 flying aboard space shuttle Endeavor, was



                 married and resided in Plattsburgh, New York;



                 and



                            "WHEREAS, Payload Specialist from



                 Tel Aviv, Israel, Ilan Ramon, was married and



                 the father of four beautiful children; he was



                 Israel's first astronaut; and



                            "WHEREAS, Mission Specialist David



                 Brown, from Arlington, Virginia, achieved his



                 dream of space exploration and was on his



                 first space flight; and



                            "WHEREAS, Mission Specialist Laurel



                 Clark, from Racine, Wisconsin, was married,



                 the proud mother of one child, and was also on



                 her first space flight; and



                            "WHEREAS, Mission Specialist



                 Kalpana Chawla, from Karnal, India, was



                 married and was on her second shuttle mission;



                 and



                            "WHEREAS, Shuttle Pilot William



                 McCool, from San Diego, California, was











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                 married with three loving sons, and was on his



                 first space voyage; and



                            "WHEREAS, The frontiers of science



                 have been expanded exponentially by each of



                 these astronauts, whose dedication and



                 devotion to explore outer space led them to



                 the challenge of exploration with the highest



                 courage and determination; and



                            "WHEREAS, The inspiration of outer



                 space exploration remains in the dreams of



                 everyone who gazes at the stars with the



                 wonderment of the earth and beyond, and the



                 beauty and mystery of the cosmos endures in



                 the minds of all; and



                            "WHEREAS, The memory of each of



                 these seven astronauts who were lost will



                 forever remain with their families, and their



                 bravery will live on in the heart of every



                 New Yorker and every American citizen; now,



                 therefore, be it



                            "RESOLVED, That this Legislative



                 Body pause in its deliberations to pay tribute



                 to the heroic lives of the seven astronauts



                 who made the ultimate sacrifice aboard the



                 space shuttle Columbia on February 1, 2003,











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                 and be it further



                            "RESOLVED, that copies of this



                 resolution, suitably engrossed, be transmitted



                 to the families of Rick Husband, Michael P.



                 Anderson, Ilan Ramon, David Brown, Laurel



                 Clark, Kalpana Chawla, and William McCool."



                            ACTING PRESIDENT FLANAGAN:



                 Senator Bruno.



                            SENATOR BRUNO:    Thank you, Mr.



                 President, and colleagues.



                            We've heard a resolution today



                 honoring the crew of the Columbia space



                 shuttle.  And we do that really with heavy



                 hearts, as we in this state, in the country,



                 people throughout the world really mourn the



                 loss of these seven very, very brave achievers



                 doing things that are beyond most people's



                 power to comprehend.



                            When you listen to their lives,



                 their backgrounds, they had dreams, they had



                 aspirations -- and all of them had dreams that



                 someday they'd be an astronaut.  And they



                 elected to do just that; one of probably the



                 most dangerous, difficult, and challenging



                 things that anyone could do.











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                            And they died.  They died Saturday



                 morning, almost instantly, orbiting the earth,



                 an hour from their families, to be reunited



                 with their loved ones, with their children, to



                 be acclaimed as heroes.  And they died.



                            But their memory, through this



                 resolution, through things like this, through



                 their families, through the ongoing research,



                 development that will take place, their memory



                 will live for all of us.  Because every time



                 you look up, you will think about that space



                 shuttle, that crew, all those that will



                 follow, those that are up there now, doing



                 things that, again, are beyond our powers to



                 comprehend.  And they've done it bravely,



                 willingly, wanting to.



                            So you have to respect and admire



                 what they've done with their lives, how they



                 gave their lives for all of us, so that our



                 lives get better and better.



                            So we'll remember them, their



                 families, in our prayers, in our thoughts, and



                 every time we look to the heavens.  And they



                 were up above, just looking down on Earth as



                 they were approaching it.  And we all know, I











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                 think, in our hearts, in our minds, that



                 they're up above now, still looking down and



                 doing with their lives in the hereafter what



                 they always dreamed they would do.  They gave



                 their lives living their dream and improving



                 the quality of life for all of us.



                            Thank you, Mr. President.



                            ACTING PRESIDENT FLANAGAN:



                 Senator Schneiderman.



                            SENATOR SCHNEIDERMAN:    Thank you,



                 Mr. President.



                            I want to join Senator Bruno and



                 I'm sure everyone in this room.  This is a



                 resolution that is unfortunate, it's sad, it



                 is timely.  But I also think it's important



                 that those of us who participate in the



                 collective endeavor that is the government



                 here in the United States recognize that there



                 are a lot of other people making greater



                 sacrifices, taking greater risks as a part of



                 this great collective enterprise of being the



                 United States.



                            And when many of us were growing



                 up, the top of the list for kids of what you



                 wanted to grow up to be was an astronaut.  I











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                 think that's probably faded somewhat.  But



                 this is a reminder of decades of heroism,



                 decades of foresight, and really of something



                 that we should all be proud of as Americans,



                 we should be proud of as New Yorkers, and we



                 certainly should be proud of as people who



                 participate in the government.



                            A lot of these people who



                 participate in the space program could make a



                 lot more money doing something else.  But



                 they're among the thousands and thousands of



                 people in our government, working in



                 government programs, working to make America



                 live up to its legacy of greatness.  And it is



                 certainly worthwhile to pause in reflection of



                 that.



                            The sacrifices that we make to



                 participate in the State Legislature, which



                 sometimes we grouse about a little too much,



                 are nothing compared to the sacrifices that



                 are made by others in their efforts to support



                 our collective dream.



                            So I join with Senator Bruno in



                 this resolution.  I thank you for bringing it



                 to us today.











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                            ACTING PRESIDENT FLANAGAN:    The



                 question is on the resolution.  All in favor



                 signify by saying aye.



                            (Response of "Aye.")



                            ACTING PRESIDENT FLANAGAN:



                 Opposed, nay.



                            (No response.)



                            ACTING PRESIDENT FLANAGAN:    The



                 resolution is adopted.



                            Senator Bruno.



                            SENATOR BRUNO:    Mr. President,



                 can I ask that we put all of our colleagues in



                 the Senate on that resolution.  Unless anyone



                 here would prefer not to be on it, and then



                 you could let the president know.



                            Thank you, Mr. President.



                            ACTING PRESIDENT FLANAGAN:    The



                 resolution is open for cosponsorship.  If you



                 do not wish to be a cosponsor, please notify



                 the desk.



                            Senator Bruno.



                            SENATOR BRUNO:    Mr. President, I



                 have another privileged resolution, numbered



                 270, at the desk.  I would ask that the title



                 be read and move for its immediate adoption.











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                            ACTING PRESIDENT FLANAGAN:    The



                 Secretary will read.



                            THE SECRETARY:    By Senator Bruno,



                 Concurrent Resolution Number 270 of the Senate



                 and Assembly, authorizing the Senate and



                 Assembly of New York State to purchase copies



                 of the New York Red Book for 2003-2004.



                            ACTING PRESIDENT FLANAGAN:    On



                 the resolution, the Secretary will call the



                 roll.



                            (The Secretary called the roll.)



                            THE SECRETARY:    Ayes, 58.



                            ACTING PRESIDENT FLANAGAN:    The



                 resolution is adopted.



                            Senator Bruno.



                            SENATOR BRUNO:    Mr. President,



                 can we at this time take up the



                 noncontroversial reading of the calendar.



                            ACTING PRESIDENT FLANAGAN:    The



                 Secretary will read.



                            THE SECRETARY:    Calendar Number



                 14, by Senator Volker, Senate Print 241 --



                            SENATOR SCHNEIDERMAN:    Lay it



                 aside.



                            ACTING PRESIDENT FLANAGAN:    The











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                 bill is laid aside.



                            THE SECRETARY:    Calendar Number



                 35, by Senator DeFrancisco, Senate Print 323,



                 an act to amend the Criminal Procedure Law, in



                 relation to applications for recognizance or



                 bail.



                            ACTING PRESIDENT FLANAGAN:    Read



                 the last section.



                            THE SECRETARY:    Section 3.  This



                 act shall take effect on the 30th day.



                            ACTING PRESIDENT FLANAGAN:    Call



                 the roll.



                            (The Secretary called the roll.)



                            ACTING PRESIDENT FLANAGAN:



                 Senator Breslin, to explain his vote.



                            SENATOR BRESLIN:    Thank you, Mr.



                 President.



                            Briefly, this is a vote that



                 directionally I totally agree with and agree



                 with the sponsor.  It was brought up last



                 year, and I voted for it.



                            However, in this time of financial



                 difficulties, to set an example, this bill has



                 no provisions that the state pay for it.  It's



                 being passed down as an unfunded mandate to











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                 the localities.



                            And for that reason and that reason



                 alone, I will vote in the negative.



                            Thank you, Mr. President.



                            ACTING PRESIDENT FLANAGAN:



                 Senator Skelos.



                            SENATOR SKELOS:    Mr. President,



                 there will be an immediate meeting of the



                 Insurance Committee in the Majority Conference



                 Room.



                            ACTING PRESIDENT FLANAGAN:



                 Immediate meeting of the Insurance Committee



                 in the Majority Conference Room.



                            The Secretary will announce the



                 results.



                            THE SECRETARY:    In relation to



                 Calendar Number 35, ayes, 59; nays, 1.



                 Senator Breslin recorded in the negative.



                            ACTING PRESIDENT FLANAGAN:    The



                 bill is passed.



                            The Secretary will read.



                            THE SECRETARY:    Calendar Number



                 42, by Senator Marcellino, Senate Print 526,



                 an act to amend the Penal Law, in relation to



                 surreptitious video surveillance without











                                                        349







                 consent.



                            ACTING PRESIDENT FLANAGAN:    Read



                 the last section.



                            THE SECRETARY:    Section 3.  This



                 act shall take effect on the first day of



                 November.



                            ACTING PRESIDENT FLANAGAN:    Call



                 the roll.



                            (The Secretary called the roll.)



                            THE SECRETARY:    Ayes, 60.



                            ACTING PRESIDENT FLANAGAN:    The



                 bill is passed.



                            THE SECRETARY:    Calendar Number



                 43, by Senator Skelos, Senate Print 550, an



                 act to amend the Penal Law, in relation to



                 sexual assault against a child.



                            ACTING PRESIDENT FLANAGAN:    Read



                 the last section.



                            THE SECRETARY:    Section 5.  This



                 act shall take effect on the first day of



                 November.



                            ACTING PRESIDENT FLANAGAN:    Call



                 the roll.



                            (The Secretary called the roll.)



                            THE SECRETARY:    Ayes, 60.











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                            ACTING PRESIDENT FLANAGAN:    The



                 bill is passed.



                            THE SECRETARY:    Calendar Number



                 46, by Senator Maziarz, Senate Print 561, an



                 act to amend the Penal Law, in relation to



                 killing or injuring a police animal.



                            ACTING PRESIDENT FLANAGAN:    Read



                 the last section.



                            THE SECRETARY:    Section 2.  This



                 act shall take effect on the first day of



                 November.



                            ACTING PRESIDENT FLANAGAN:    Call



                 the roll.



                            (The Secretary called the roll.)



                            THE SECRETARY:    Ayes, 60.



                            ACTING PRESIDENT FLANAGAN:    The



                 bill is passed.



                             Senator Skelos, that completes the



                 noncontroversial reading of the calendar.



                            SENATOR SKELOS:    Mr. President,



                 if we could go to the controversial reading of



                 the calendar.



                            ACTING PRESIDENT FLANAGAN:    The



                 Secretary will read.



                            THE SECRETARY:    Calendar Number











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                 14, by Senator Volker, Senate Print 241, an



                 act to amend the Penal Law and the Criminal



                 Procedure Law, in relation to term of



                 imprisonment.



                            SENATOR SCHNEIDERMAN:



                 Explanation.



                            SENATOR VOLKER:    Mr. President,



                 this is a bill that's passed this -- I believe



                 it passed this house last year by something



                 like 53 to 6.



                            It is -- this bill was developed



                 when there was so much attention being given



                 to two times and you're out.  Basically, this



                 is a "three times and you're out" bill.



                            A person in the future -- and by



                 the way, I think everybody should understand,



                 of course, that this is only for future



                 crimes.  If this bill should become law after



                 November 1st of this year, this bill would



                 allow the persistent violent felony



                 offenders -- that is, felons who have been



                 arrested and convicted twice of violent felony



                 offenses -- upon the third conviction, the



                 sentence would be increased from what is now a



                 minimum of 10 to 25 years and a maximum period











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                 of life to a minimum sentence of 25 years and



                 the maximum of life.



                            So basically, what this does is --



                 and remember, these people are pretty



                 professional people, as the saying goes.



                 Because violent felony offenses, to go through



                 two and then have a subsequent violent felony



                 offense, these are pretty tough people.



                            And what it would do is say that it



                 would be -- 25 years would be the minimum, and



                 then the maximum would be life.  That's really



                 the only change, because you're just moving up



                 the minimum sentence.



                            And we're talking, by the way,



                 about a very small number of people, because



                 very few people get to three violent felony



                 offenses.  They usually end up with two at the



                 most, because they spend a lot of time in jail



                 in any case.



                            ACTING PRESIDENT FLANAGAN:



                 Senator Schneiderman.



                            SENATOR SCHNEIDERMAN:    Thank you,



                 Mr. President.  On the bill.



                            I know Senator Volker is a very



                 thoughtful student of the criminal justice











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                 system.  I do think, though, that we've



                 reached a point where this ritual of us



                 passing a series of sentencing bills here that



                 we know aren't going to pass the Assembly and



                 the Assembly passing sentencing reform bills



                 that aren't going to pass here is getting a



                 little bit tedious.



                            This bill has been around an



                 awfully long time.  In fact, I note that the



                 bill memo still says "unmistakably, crimes of



                 violence in the state are on the rise," which



                 I guess hasn't been true for a few years since



                 the bill memo was drafted.



                            I think that it is time, this year,



                 to deal comprehensively with the questions of



                 disparate sentencing in New York State, the



                 need for sentencing reform.  We failed to



                 address the issue of the Rockefeller Drug Laws



                 last year.



                            I would look forward to putting the



                 issues addressed by this legislation together



                 with some of the other one-house bills that go



                 through this house and go through the



                 Assembly, and I would actually urge that we



                 try to convene some sort of a task force or











                                                        354







                 conference committee to deal with the issues



                 of sentencing comprehensively.



                            It is appropriate for us to have



                 sentencing reform.  This year is a good time



                 to do it.  I don't think this particular piece



                 of legislation is up-to-date anymore, but I



                 think that the issues that it seeks to address



                 are still with us.



                            I will be voting no, but I do think



                 that the issue of sentencing is something that



                 we really have to get to sooner or later.  And



                 as I suspect we're going to be here for a



                 while this year, why not spend some time



                 working on this while we're here.



                            Thank you, Mr. President.



                            SENATOR VOLKER:    Mr. President.



                            ACTING PRESIDENT FLANAGAN:



                 Senator Volker.



                            SENATOR VOLKER:    I agree with



                 you, Senator.  In fact -- of course, the issue



                 of the Rockefeller Drug Laws, in fact, we may



                 be dealing with that much sooner than you



                 think.  That is, this house.  Because we are



                 moving fairly quickly to do something here



                 before this month is out.











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                            The Assembly, as you well know, is



                 not in a position to do much of anything right



                 now.  Since we don't know for sure who is the



                 chairman and all the rest of the stuff, it's a



                 little difficult to do any negotiating.  I



                 mean, I'm being very -- but I agree with you,



                 I think this is the year, with all the fiscal



                 problems and so forth, that we deal with



                 issues of sentencing -- and you can call it



                 reform in certain cases -- and to deal with



                 drug laws.



                            I think the Assembly needs



                 something this year, I really do.  I believe



                 that this -- the situation is different now.



                 And with the City of New York in such a plight



                 that it's in, I think that the people in the



                 Assembly will need some sort of legislation



                 dealing with some of the major issues of



                 sentencing.



                            And I think what will happen is



                 you're going to see some drug legislation --



                 the Rockefeller Drug Laws is easy.  There's



                 only a handful of people in jail under the



                 Rockefeller Drug Laws really.  But I think



                 that you're going to see some sort of











                                                        356







                 sentencing reform this year that's going to



                 show some sentences go up and some, in effect,



                 at least be reviewed and come down.



                            ACTING PRESIDENT FLANAGAN:    Any



                 other Senator wishing to be heard on the bill?



                            Debate is closed.



                            Read the last section.



                            THE SECRETARY:    Section 5.  This



                 act shall take effect immediately.



                            ACTING PRESIDENT FLANAGAN:    Call



                 the roll.



                            (The Secretary called the roll.)



                            THE SECRETARY:    Those recorded in



                 the negative on Calendar Number 14 are



                 Senators Connor, Diaz, Duane,



                 Hassell-Thompson, Montgomery, Parker,



                 Paterson, and Schneiderman.



                            Ayes, 52.  Nays, 8.



                            ACTING PRESIDENT FLANAGAN:    The



                 bill is passed.



                            Senator Skelos, that completes the



                 controversial reading of the calendar.



                            SENATOR SKELOS:    Mr. President,



                 if we could stand at ease.  We're waiting for



                 the Insurance Committee to issue its report,











                                                        357







                 and then we'll adjourn.



                            ACTING PRESIDENT FLANAGAN:    The



                 Senate will stand at ease.



                            (Whereupon, the Senate stood at



                 ease at 3:34 p.m.)



                            (Whereupon, the Senate reconvened



                 at 3:40 p.m.)



                            ACTING PRESIDENT FLANAGAN:



                 Senator Skelos.



                            SENATOR SKELOS:    Mr. President,



                 if we could return to reports of standing



                 committees, I believe there's a report of the



                 Insurance Committee at the desk.  I ask that



                 it be read at this time.



                            ACTING PRESIDENT FLANAGAN:



                 Reports of standing committees.



                            The Secretary will read.



                            THE SECRETARY:    Senator Seward,



                 from the Committee on Insurance, reports the



                 following bills:



                            Senate Print 574, by Senator



                 Seward, an act to amend the Insurance Law;



                            And Senate Print 912, by Senator



                 Seward, an act to amend the Insurance Law.



                            Both bills ordered direct to third











                                                        358







                 reading.



                            ACTING PRESIDENT FLANAGAN:    All



                 bills reported direct to third reading.



                            Senator Skelos.



                            SENATOR SKELOS:    Is there any



                 housekeeping at the desk?



                            ACTING PRESIDENT FLANAGAN:    No.



                            SENATOR SKELOS:    There being no



                 further business to come before the Senate, I



                 move we adjourn until Tuesday, February 4th,



                 at 11:00 a.m.



                            ACTING PRESIDENT FLANAGAN:    On



                 motion, the Senate stands adjourned until



                 Tuesday, February 4th, at 11:00 a.m.



                            (Whereupon, at 3:41 p.m., the



                 Senate adjourned.)