Regular Session - February 11, 2003
446
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
February 11, 2003
11:38 a.m.
REGULAR SESSION
SENATOR PATRICIA K. McGEE, Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT McGEE: The
Senate will please come to order.
I ask everyone present to please
join with me in reciting 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.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT McGEE: Thank
you.
Reading of the Journal.
THE SECRETARY: In Senate,
Monday, February 10, the Senate met pursuant
to adjournment. The Journal of Saturday,
February 8, was read and approved. On motion,
Senate adjourned.
ACTING PRESIDENT McGEE: Hearing
no objection, the Journal stands approved as
read.
Presentation of petitions.
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Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator
DeFrancisco, from the Committee on Judiciary,
reports the following bills:
Senate Print 759, by Senator
Velella, an act to amend the New York City
Civil Court Act;
975, by Senator Farley, an act to
amend the General Construction Law;
1332, by Senator Leibell, an act to
amend the Eminent Domain Procedure Law;
1484, by Senator DeFrancisco, an
act to amend the Judiciary Law;
And Senate Print 1485, by Senator
DeFrancisco, an act to amend the Surrogate's
Court Procedure Act.
All bills ordered direct to third
reading.
ACTING PRESIDENT McGEE: All
bills reported direct to third reading.
Reports of select committees.
Communications and reports from
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state officers.
Motions and resolutions.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Madam President.
On behalf of Senator Seward, on
page number 5 I offer the following amendments
to Calendar Number 55, Senate Print Number
683, and ask that said bill retain its place
on Third Reading Calendar.
ACTING PRESIDENT McGEE: So
ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could adopt the Resolution Calendar,
with the exception of Resolution 316.
ACTING PRESIDENT McGEE: All in
favor of adopting Resolution Calendar, with
the exception of Resolution 316, signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
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Resolution Calendar is adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a resolution, 316, at the desk by
Senator Libous. May we have the title read
and move for its immediate adoption.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
Libous, Legislative Resolution Number 316,
paying tribute to the life and accomplishments
of former Senator Edwyn E. Mason.
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 Skelos.
SENATOR SKELOS: Madam President,
Senator Libous would like to open the
resolution for sponsorship.
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With the consent of the Minority,
if we can put all members on it. And if
somebody wishes not to be on the resolution,
they should notify the desk.
ACTING PRESIDENT McGEE: This
resolution is open for cosponsorship. If you
do not wish to be cosponsor, please notify the
desk.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial reading
of the calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
8, by Senator Hoffmann, Senate Print 180, an
act to amend the Penal Law, in relation to
creating the crime of agri-bioterrorism.
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
85, by Senator Skelos, Senate Print 1021, an
act to amend the Criminal Procedure Law, in
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relation to the period of limitation.
ACTING PRESIDENT McGEE: Read the
last section.
SENATOR DUANE: Lay it aside,
please.
ACTING PRESIDENT McGEE: The bill
is laid aside.
Senator Skelos, that completes the
noncontroversial reading of the calendar.
SENATOR SKELOS: Madam President,
if we could go to the controversial reading of
the calendar and begin with Calendar Number
85.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
85, by Senator Skelos, Senate Print 1021, an
act to amend the Criminal Procedure Law, in
relation to the period of limitation.
ACTING PRESIDENT McGEE: Senator
Duane.
SENATOR DUANE: If the sponsor
would yield, please, Madam President.
ACTING PRESIDENT McGEE: Senator
Skelos, will you yield for a question?
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SENATOR SKELOS: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DUANE: Is this bill an
attempt to deal with the issue of clergy abuse
and the statute of limitations?
SENATOR SKELOS: It has to do
with increasing the statute of limitations for
incest and other sex offenses committed
against minors, increases the statute of
limitations from 15 years from the age of
majority. So it would be 18 to age 33 rather
than age 18 to age 23.
SENATOR DUANE: Thank you, Madam
President. Through you, if the sponsor would
continue to yield.
ACTING PRESIDENT McGEE: Senator
Skelos, do you continue to yield?
SENATOR SKELOS: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DUANE: Thank you.
But more specifically, I know the
Times-Union and the New York Times and I
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believe the Long Island newspapers, in light
of a recent report on what happened in the
Rockville Centre diocese, have been talking
about some of the issues and -- including
payment to victims and other things.
But I'm wondering if this bill is
also intended to capture those who wish to
raise the issue of their abuse on the part of
clergy members.
SENATOR SKELOS: This strictly
extends the statute of limitations for the
crimes enumerated, as I mentioned. If that
crime fell within the enumerated crimes of
this bill, then the statute of limitations
would be extended to the age of 33.
SENATOR DUANE: And through you,
Madam President, if the sponsor would continue
to yield.
SENATOR SKELOS: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DUANE: Are there plans
contemplated to hear in this body other pieces
of legislation which would deal with the issue
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of abuse on the part of members of the clergy?
Or is this it?
SENATOR SKELOS: Madam President,
it's sort of moving away from the context of
this legislation. But I'm sure there are many
criminal justice matters that are being
considered by both the Senate and the Assembly
in many areas, including terrorism, many of
the bills which will be voted upon later.
But right now, this legislation
strictly deals with the statute of
limitations.
SENATOR DUANE: Madam President,
on the bill.
ACTING PRESIDENT McGEE: Senator
Duane, on the bill.
SENATOR DUANE: I have some
concerns, of course, about extending the
statute of limitations for everything.
But I guess what has colored my
point of view on the issue is the revelations
in the press that when -- specifically in the
case of those that have been victimized by
clergy abuse, when the victims tried to report
it to high-ranking members of the clergy, they
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were asked not to report it to anyone else and
oftentimes, as has been reported in the press
and which is in some cases part of the public
record, then provided with money to remain
silent.
And in some cases, that has made it
so that in addition to those who made
agreements to keep silent in other cases,
because the statute -- while they may -- while
a victim may have reported to the clergy what
had happened to them by another clergy member,
the abuse was never reported and now the
statute of limitations has run out.
And so what I'm trying to figure
out is whether or not, in addition to the
other areas that might be covered in this
legislation, abuse in a family or other areas,
whether or not this legislation is also
intended to remedy that issue of buying the
silence of victims, or in other ways a remedy
to try to address this problem which has been
so recently and I think appropriately raised
in the press.
So that was what my line of
questioning is. And now as I've been speaking
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on the bill, you've sort of heard what my
thinking is on it.
So thank you, Madam President.
ACTING PRESIDENT McGEE: Thank
you, Senator Duane.
Is there any other Senator who
wishes to speak on the bill?
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll call.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 48. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
SENATOR SKELOS: Madam President.
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: There will be an
immediate meeting of the Veterans, Homeland
Security and Military Affairs Committee in the
Majority Conference Room.
ACTING PRESIDENT McGEE:
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Immediate meeting of the Homeland Security
Committee in the Majority Conference Room.
SENATOR SKELOS: Madam President.
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: If you could
call up Senator Hoffmann's bill, Calendar
Number 8.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
8, by Senator Hoffmann, Senate Print 180, an
act to amend the Penal Law, in relation to
creating the crime of agri-bioterrorism.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT McGEE: Senator
Hoffmann, an explanation has been requested.
SENATOR HOFFMANN: Thank you,
Madam President. I would be delighted to
explain in some detail the importance of this
bill and some of the specifics contained
within it.
Let me first state for the record
that this is the same bill that we passed last
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year, and this also deals with a subject area
that we've been working on since 1999. It is
not a new issue before this house. And last
year the vote on this piece of legislation was
unanimous in the Senate, and I certainly look
forward to a similar vote again today.
But I think it behooves us to take
a moment to reflect on the very sweeping
changes that have taken place in our world and
indeed our state over the last two years that
now changes our focus on this issue. We
probably would have been passing such a piece
of legislation with or without September 11th,
but the urgency for us to do it has never been
more clear.
And in fact, I think it's somewhat
of an interesting coincidence that as we speak
today in this chamber, in Washington, in the
halls of Congress, there is at this very
moment a hearing going on at which all of
those individuals charged with public safety
and antiterrorism, national security, are
addressing Congress and speaking about the
magnitude of this problem and asking for the
help of the United States Congress in
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addressing this issue, on a somewhat different
level. As I last saw CNN, the director of the
CIA was testifying, following the director of
the FBI, and Tom Ridge was scheduled to be on
deck.
The reality for us in New York
State covers several key areas. Number one,
we are one of the foremost agricultural states
in the nation. And I know that sometimes
shocks people when we say it. Even New York
State residents find it hard to believe that
we are the number three producer of milk, that
we are number two and number one in some
categories of cheese production, including
cream cheese, that we are number two in sweet
corn in the nation. We are number two in
apples. We are a major supply of food
products not only for the United States but
for other countries as well.
And while we should all be very
proud of this, I think it's also important to
remember that we sometimes take for granted
that people in agriculture do their work with
little or no outside interference and that
they need little or no outside assistance.
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The simple fact of the matter is
that they are vulnerable at the farm level and
at the transportation level to interference of
the very worst kind, that there is a not very
difficult opportunity for people who want to
tamper with the food supply to do so.
And we have now learned that
unimaginable crimes can be committed against
large populations by the introduction of
pathogens or genetically modified substances
that can affect the food supply during the
course of production and its movement from the
farm to the consumer.
This bill has several provisions,
but key among them is the establishment of a
Class B felony for anyone who would tamper
with the food supply as a means of creating a
terrorist act. A Class B felony is punishable
by up to 25 years in prison.
Ironically, many of these crimes,
which we had never imagined before, would have
very difficult to prosecute because we're not
simply introducing a new standard of
punishment, a new measure of justice for this
crime, but because the crimes were so
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unimaginable it would have been very, very
difficult to assign a consumer product
tampering category to something on as grand a
scale as affecting the milk supply that
affects the product used in virtually every
Northeastern state.
So we feel the need to do something
that will serve as a deterrent, that will give
us the means, should anybody be convicted of
this crime, to be sent to a prison where he or
she would no longer be a threat for up to 25
years.
A slap on the wrist would not be an
adequate deterrent, nor would it serve to put
somebody who was guilty of such a crime behind
bars for a long enough time. We need teeth in
a law that will keep people safe from any kind
of tampering with our food supply during the
chain of production.
The four key provisions of this
bill include a penalty for deliberately
altering the genetic structure of plant life;
a penalty for introducing an animal pathogen
which would be capable of causing death of
livestock or rendering the by-product of a
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livestock unusable for human consumption; the
crime of intentionally defiling, corrupting,
or altering a food or farm product with the
intent to cause injury or death in human
beings; and, finally, anyone who intentionally
manufactures, designs, or alters genetic
material to cause the production of a
pathogen, virus or bacteria capable of
disrupting or destroying a farm or a food
product.
These very specific categories most
of us a decade ago would have never imagined,
but they are now a very real possibility for
our society and indeed our nation.
I'm proud of the fact that New York
State has taken the lead in this area. There
are some who would ask for all of this to be
done at the federal level and for us to simply
wait. I think that it is unreasonable for us
to assume that the federal government alone
and the federal law enforcement officials
alone should be charged with doing the work of
protecting our population.
And when it comes to something as
critical as the food supply of the
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northeastern part of the United States, we
have an overriding responsibility to do
everything within our power to have New York
state law and New York state law enforcement
vigorous to protect our population and,
obviously, to protect the farmers of this
state.
Any kind of economic loss suffered
by a farmer through an act of terrorism would
have a ripple effect in the economy. Farmers
buy locally. Farmers need product, they need
supplies. Farmers don't go and order from
some distant part of the nation every time
something breaks down on the tractor. They
don't call some international supplier to
replace a high-tech component the way a
manufacturer or somebody in the high-tech
world would do. They need everything for
their farm to be close by.
Therefore, the economy of rural
New York State is integrally linked to the
activity on each and every farm in New York
State.
So we need to protect the people
who are involved in food production. We need
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to protect the people who are involved in the
transport of the product. And we need to
ensure that every step of the way that product
is safe, and that anyone who would deem to
tamper with that product will be punished with
the strongest possible punishment available,
and that would be a Class B felony.
I thank you, Madam President, for
calling this bill today. I'm delighted that
it is part number one of a package which will
very shortly be introduced in its total by
Senator Bruno, with Senator Balboni and
Senator Rath. But as New York State's
number-one industry's champion in this
chamber, I am proud that agriculture
bioterrorism is first on our agenda today.
Thank you.
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Madam
President, on the bill very briefly.
ACTING PRESIDENT McGEE: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I
expressed a concern the last time this bill
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was brought out with its possible effect on
those engaged in research -- scientists,
biotech businesses, of which there are several
major biotech research facilities in my
district.
Because it was not completely clear
to me last time, and it remains unclear
whether or not this could have a deterrent
effect on legitimate research. Because as the
bill states, it seeks to criminalize the
design, development or utilization of a
process to genetically alter plant life,
intentionally introduce an animal virus, but,
more importantly, intentionally manufacture,
design or alter genetic material to result in
a pathogen, virus or bacteria.
That may happen for legitimate
purposes. I don't think this bill is actually
in its final form. I would urge Senator
Hoffmann that, as I did last year, we should
add some language to this legislation making
it clear that researchers involved in
developing genetic materials for research
purposes, which material might potentially
have a harmful usage, should still be sure
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that they should not be prosecuted under this
legislation.
I think that can be remedied in the
drafting, and it is a suggestion I would make
before the bill moves forward to a final vote,
should we get there this year, which I hope we
will.
Thank you.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Senator Hoffmann.
SENATOR HOFFMANN: I think it's
important to clarify for Senator Schneiderman
that the criminal action would take place
should someone be charged with intentionally
developing a pathogen that was designed to be
deleterious and cause the production capable
of disrupting or destroying a food or farm
product. It would not be some accidental
consequence of other research.
And obviously the United States
government is closely involved in discussions
with all of the labs that have any kind of
research activity of this type. And it's
unimaginable that a researcher would be
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involved in something that could have a
potentially dangerous impact without it having
been precleared and closely monitored.
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, 54. Nays,
1. Senator Montgomery recorded in the
negative.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Skelos, that completes the
controversial reading of the calendar.
SENATOR SKELOS: Madam President,
if we could stand at ease pending the next
committee meeting, which will be Rules, called
after the Veterans and Homeland Security
Committee meets.
ACTING PRESIDENT McGEE: The
Senate will stand at ease.
(Whereupon, the Senate stood at
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ease at 12:00 p.m.)
SENATOR SKELOS: Madam President.
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: There will be an
immediate meeting of the Rules Committee in
the Majority Conference Room.
ACTING PRESIDENT McGEE:
Immediate meeting of the Rules Committee in
the Majority Conference Room, please.
(Whereupon, the Senate reconvened
at 12:35 p.m.)
ACTING PRESIDENT McGEE: Senator
Bruno.
SENATOR BRUNO: Madam President,
can we call the Senate to order.
ACTING PRESIDENT McGEE: The
Senate will come to order.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time return to reports of
standing committees.
And I believe there's a report from
the Rules Committee at the desk. I ask that
it be read at this time.
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ACTING PRESIDENT McGEE: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bills:
Senate Number 3, by Senator
Balboni, an act to amend the Criminal
Procedure Law and others;
1627, by Senator Balboni, an act to
amend the Penal Law;
1711, by Senator Rath, an act to
amend the Penal Law;
And Senate Print 1712, by Senator
Rath, an act to amend the Penal Law.
All bills ordered direct to third
reading.
ACTING PRESIDENT McGEE: Senator
Bruno.
SENATOR BRUNO: I move to accept
the report of the Rules Committee.
ACTING PRESIDENT McGEE: All in
favor of accepting the report of Rules
Committee signify by saying aye.
(Response of "Aye.")
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ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
report is accepted.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time take up Senate 3.
ACTING PRESIDENT McGEE: The
Secretary will read.
SENATOR ADA SMITH: Explanation.
THE SECRETARY: Calendar Number
87, by Senator Balboni, Senate Print Number 3,
an act to amend the Criminal Procedure Law and
others, in relation to creating the crimes of
criminal possession.
ACTING PRESIDENT McGEE: Senator
Bruno.
SENATOR BRUNO: Is there a
message of necessity at the desk?
ACTING PRESIDENT McGEE: Yes,
Senator Bruno, there is a message of
necessity.
SENATOR BRUNO: I would move that
we accept the message.
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ACTING PRESIDENT McGEE: All in
favor of accepting the message of necessity
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
message is accepted.
Senator Balboni, an explanation has
been requested.
SENATOR BALBONI: Thank you.
Today we are going to be discussing
a bill that we have seen before. This bill
was passed unanimously in this chamber on
June 17th.
And this bill does several things.
It takes a three-part approach to addressing
the grave threat of terrorism in this state.
The impetus for this bill is the conversations
that I have had, that Senator Bruno has had,
and that the Governor has had with Tom Ridge
and Jim Kallstrom, who have asked us to
provide them with the tools necessary to
conduct the war on terror on the streets in
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the communities of this state.
This bill would do several things.
It would take away the financial assets of the
terrorists. It would create two new crimes,
structuring and facilitating.
Structuring would be a crime for
anyone to try to convince a financial
institution not to report under the
requirements of the federal government and the
state banking laws.
Facilitating a terrorist act would
be providing personal support, harboring a
terrorist. In addition to which we raise, for
the first time, the penalty for money
laundering to an A-I felony.
We are also going to allow for a
greater disclosure of tax information for
those individuals prosecuted for terrorism.
So the first approach is to take away the
terrorist's ability to create a financial
network.
The next aspect of the approach
would be to give law enforcement the ability
to aggressively pursue and detect and prevent
terrorists from perpetrating terrorist acts in
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this state.
The expanded capabilities of roving
wiretaps, the crime of conspiracy will allow
prosecutors greater flexibility to be able to
go out and seek these individuals out and
bring them to justice.
And lastly, something that I
believe is way overdue in this state, an issue
that this chamber has been in the forefront
of -- not only for the state of New York, but
for the nation -- finally putting into law the
harshest penalties we can enact or adopt for
the crime of possessing or using a weapon of
mass destruction; specifically, chemical or
biological weapons.
In 1999, ladies and gentlemen, my
colleagues in this chamber and I, we passed a
bill for the first time to outlaw weapons of
mass destruction. And I can recall standing
on the floor of this chamber and people
looking at me saying: What are you talking
about, weapons of mass destruction? Is that
our issue? Is that our fight? It is indeed
our fight.
So this bill would create the
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penalty of death, of execution, for the use or
possession of a weapon of mass destruction.
Madam President, the concept today,
and why we're moving today, is that I -- and I
believe all of us -- don't want to be here
tomorrow or next week or the week after that
if, God forbid, something happens. We have
done these bills before. The response from
the other side of this Legislature has been
deafening in its silence. It is time to act
now.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR LIZ KRUEGER: Thank you
very much, Madam President. If, through you,
the sponsor would yield to a question.
ACTING PRESIDENT McGEE: Senator
Balboni?
SENATOR BALBONI: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you,
Senator Balboni.
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It's a large bill. It has many
different pieces. And I'll start out with a
question that perhaps is not addressed to you,
but we discussed it in Rules and this can go
out to the floor.
Why are we doing this as a message
of necessity bill today, rather than having
had the opportunity to go through -- in fact,
your own chaired committee, there's an
announcement of hearings that you are having
around the state. We passed a bill -- not the
identical bill, but a variation on this bill
last year. Nothing seems to have gone forth
since then. What is the necessity today to do
this with so little notice to the public or to
your colleagues?
SENATOR BALBONI: Senator
Krueger -- Madam President, through you.
Senator Krueger, the development of this
particular bill has been a work that has been
conducted for over a year and a half. After
we passed the bill on June 17th, the Attorney
General sought to engage the Assembly and over
the fall had discussions. Several provisions
in this bill reflect those discussions.
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Now, I am not saying that the
Assembly majority has embraced any aspect of
this bill. I hope they do. But as of right
now, they have not.
As we came to this session itself,
we had a special session. Senator Bruno made
it very clear in the special session our
priority was to have bills passed that dealt
with biological and chemical terrorism.
Nothing happened with the other side.
We have been trying to engage and
get into a dialogue, make sure that we have
the best bill possible. And again, we have
nothing from the other side.
Frankly, if you take a look at the
number, Senate 3, there's a story behind that.
The story is in the first week of January I
wrote to the Majority Leader and requested
that in fact he consider taking this measure
and putting it with this number. That's why
it was reserved.
But the fact is that my shop didn't
get its act together. I was trying to develop
provisions and get this bill introduced
faster. But because of all the bills that
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were coming in, Bill Drafting was a little
slow, and therefore we weren't able to get it
in print earlier. That is the only reason why
this is a message of necessity.
The provisions itself, should
anybody stand up in this chamber and say that
the bill is too long and you don't have enough
time to consider it, I would respectfully
respond: We've had all year. The provisions
are not markedly changed. I could point out
to you in five minutes the differences between
the June 17th bill that we all voted for and I
know we all read at the time -- because
members of this chamber, we always read what
we pass. If not on the day that we pass it,
perhaps sometimes later. And therefore, the
differences are not that enormous.
So what I believe we have before us
is a timely issue that has been delayed far
too long.
SENATOR LIZ KRUEGER: Madam
President, through you, if the sponsor would
continue to yield.
ACTING PRESIDENT McGEE: Senator
Balboni, do you continue to yield?
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SENATOR BALBONI: Yes, I do,
Madam President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you,
Senator.
I believe I just heard you say in
your explanation that Tom Ridge asked for this
bill in New York State. Can you explain the
differences, if any, between federal
legislation moving forward along this track
and the need for parallel -- if it is
parallel -- legislation at the state level?
SENATOR BALBONI: Madam
President, through you, I did not say that Tom
Ridge asked for this specific provision.
But I did say that in a
conversation at the White House that I had in
December, I spoke with Secretary Ridge, as I
have in October and then last June and then in
the spring before that. And every time that
I've spoken to the secretary, he constantly
reminds us that the place where the war on
terrorism is going to be fought is in the
states.
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On any given day, there are 700
federal law enforcements in the State of
New York. On any given day, there are 70,000
local and state law enforcement officers. We
have the assets. The federal government does
not. The same with our first responders.
The World Trade Center was a
perfect example of how we are going to respond
at the state and local level. The federal
government is a key player in that, a key
partner in communication, in intelligence, in
coordination. But the actual, physical
response and the physical work of detecting
and ferreting out crime is the job of the
state and local police officers. Why not
empower them?
The federal government has statutes
on biological and chemical terrorism. They've
been in effect for several years. But that
does not preclude us -- as a matter of fact,
it should be a motivation to us to adopt this
legislation.
I would refer you back -- and,
Senator, I don't recall if you were in the
chamber at the time. But for many, many years
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there was a huge issue of the assault weapon
issue. And how the Assembly, ironically
enough, stood and said the fact that there is
a federal assault weapons ban should not
prevent the State of New York from enacting
that same ban. Well, that's the same argument
we use today.
Under the powers reserved in the
Constitution to the states -- specifically,
police power -- this is not only our job, it
is our mandate to adopt the provisions of this
bill.
SENATOR LIZ KRUEGER: Madam
President, if, through you, the sponsor would
continue to yield.
ACTING PRESIDENT McGEE: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, I do,
Madam President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you,
Senator.
So I started out with process
questions, and then I moved to whether this
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was a process issue related to homeland
security and Tom Ridge. I'll go back to
process here.
Why did we have no discussion,
either in bipartisan task force or roundtable
discussion, here in the Senate since last year
on this bill? I learned only now in the Rules
Committee that there had been a Majority task
force discussing these issues and that you had
roundtables, I believe. You weren't in the
Rules Committee meeting, but the statement was
roundtable discussion, people brought in to
discuss this.
Even leaving aside our colleagues
in the Assembly and what they have or haven't
done, because they're not here to discuss this
with us, why didn't we take this up as a full
Senate between last year and today?
SENATOR BALBONI: Madam
President, through you, I am reluctant to
speak on behalf of the Majority Leader.
I do know that his efforts have
spoken for him. He has attempted to move this
issue along in many ways, by creating the
Senate Task Force on Emergency Preparedness,
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dealing with that aspect, under Chairman Jim
Seward, and involving many of us. That was a
way to reach out to our communities and to see
what the needs were for the responder
communities. We held those hearings. They
weren't meant to be partisan in any way; they
were meant to be information-gathering.
But what Senator Bruno has done is,
just as recently as January, after discussions
to create joint committees in the Assembly and
the Senate in December that went nowhere,
Senator Bruno reconfigured the existing
Veterans Committee to be Veterans, Homeland
Security and Military Affairs. That is the
vehicle by which this house will be
considering all of these issues itself.
So during the fall, I would have
loved to have seen that committee created by
both houses. But we would have needed to be
in session to do that.
And, secondly, the practical
reality is we were in the middle of an
election. Many of our colleagues were
involved in those activities, and therefore it
was not practical to bring everyone together
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to form this committee.
As soon as he could, Senator Bruno
took it upon himself and this conference to
signal as one of our top priorities the
creation of that committee.
Once again, not to harp on it, but
in the Assembly there's no companion
committee. So not only do we not have a
sponsor of any of the legislation that you see
here in the State Assembly, we don't even have
a committee in the State Assembly to be a
repository of the ideas, to hear the concerns
of the constituencies on this issue.
SENATOR LIZ KRUEGER: Madam
President, if, through you, the sponsor would
continue to yield.
ACTING PRESIDENT McGEE: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, I do,
Madam President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you
very much, Senator Balboni.
Since we don't have an Assembly
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sponsor, we agree on that, I will just
reiterate my misunderstanding of the necessity
of a message of necessity for all this to be
done today in one house. Again, you weren't
in the Rules Committee, but I believe that the
discussion there was that there weren't
hearings held.
So I will ask you the question,
although it really should be addressed to
Senator Seward: Where were these hearings
held? Quite a few of us represent the City of
New York, Manhattan Island, Ground Zero for
September 11th. I was not aware of any
announcements of hearings or in fact any
hearings that took place around these issues.
And I would think that for New York
City that would be a critical issue, because
of course we are extraordinarily sensitive to
issues of terrorism and risk to our city and
our people.
So you had just mentioned hearings.
SENATOR BALBONI: Madam
President, through you. Senator Krueger, I
can only speak for myself and my own efforts
in regard to the issue itself.
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First of all, there were not
hearings on this bill. They were not held.
It was, I guess, assumed that since the
Legislature -- or, I'm sorry, the Senate voted
unanimously for the bill last year, that any
of the questions that would have been raised
would have been in fact raised then, and that
if people wanted to suggest alternatives or
suggest amendments that since June those would
have been forthcoming.
In addition to which, as far as
what has been done by various members, I can
tell you that not only as far as the Task
Force on Emergency Preparedness in the Senate,
but also the National Conference of State
Legislators has a task force that I happen to
be cochair of. We have been around to places
like the CDC and to the Port Authority in
New York, to the Department of Health in
Washington, to the White House. We've had
a -- there's been a whole host of activities
that any legislator in this state is welcome
to participate in.
You know, this is an issue that's
not a Democratic issue, it's not a Republican
487
issue, it's all of us. And what we're frankly
asking is we need the ideas. We need the
participation. We need the suggestions.
SENATOR LIZ KRUEGER: Madam
President, if, through you, the sponsor would
continue to yield.
ACTING PRESIDENT McGEE: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, I do,
Madam President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you.
Senator Balboni, certainly you are
right, this is not a Democratic or a
Republican issue, this is an issue for all the
people of New York State.
You mentioned you're traveling
around the country to all of these events and
the national state legislative -- I always get
the letters wrong, I apologize.
SENATOR BALBONI: NCSL.
SENATOR LIZ KRUEGER: NCSL. I
always do it backwards in my mind.
Does the Senate pay for your trips
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to these events?
SENATOR BALBONI: I have used
both personal and campaign and various things.
Also -- actually, NCSL has also helped with
that.
SENATOR LIZ KRUEGER: But you
would agree that since it isn't a partisan
issue, that the Senate should have the same
rules for both Republican and Democratic
Senators to participate in these national
forums and --
SENATOR BALBONI: Senator
Krueger, I don't know -- I'm sorry, Madam
President, through you.
I apologize, I was prepared to
debate the bill before us and I wasn't
prepared to talk about individual items of
reimbursement. So, you know, I'm not really
sure what the Senate policy is.
I will tell you this, though. The
importance of this issue itself I would hope
would deflect concerns perhaps until a later
time as to how we participate. Because each
one of us in our own Senate districts I
believe value our constituencies as much as
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anyone else. And therefore, it's imperative
we take our own steps to get involved.
And therefore, I think that -- what
I would suggest to you is obviously you have a
deep understanding and a deep emotional
commitment to this, given your representation
of the City of New York. And the fact that
I'm sure that many of your constituencies are
very frightened right now, that in your role
as trying to provide leadership for them,
you're seeking to do something positive and
move the issue forward. That's obviously why
you voted for the bill last year.
And so I would ask you to take that
resolve and that commitment and work with us
today on this bill, realizing that this is
only one part of the dialogue. We don't have
a partner to dance with. I think you could
play a key role in that, Senator Krueger,
particularly yourself, in getting the Speaker
to come out and to embrace this measure or at
least begin discussing it.
SENATOR LIZ KRUEGER: Thank you.
Madam President, if, through you,
the sponsor would continue to yield.
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ACTING PRESIDENT McGEE: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, I do,
Madam President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you,
Senator.
And to be fair, my plan was not to
go down a lot of questioning of distribution
of resources for travel around the country
either. But I was led down that road because
I learned from you that much of the discussion
around this bill and discussion with people
around the country on antiterrorism bills were
actually taking place outside of New York
State, not taking place in discussion between
the Senate or Assembly.
But to go back --
SENATOR BALBONI: Wait, wait,
wait. Let me correct that, please.
SENATOR LIZ KRUEGER: Yes.
SENATOR BALBONI: You asked what
we had done and what hearings we had
participated in, and I was giving you what I
491
had done.
Remember who designed this bill.
Ladies and gentlemen, this bill was designed
by the Attorney General, Eliot Spitzer, and by
Governor George Pataki and by DCJS and by the
State Police. So that's all within the state
of New York.
And that fact was a fact -- is fact
today and was a fact on June 17th. And I
believe we discussed that in the context of
the debate we had in June.
SENATOR LIZ KRUEGER: Thank you.
Madam President, if, through you, I
could continue to ask the sponsor to yield.
ACTING PRESIDENT McGEE: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, I do,
Madam President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you.
To go back to the bill.
SENATOR BALBONI: Good.
SENATOR LIZ KRUEGER: What are
the issues, as you understand them, in
492
discussions with the Assembly about the
specifics in this legislation that stopped
them from being comfortable going forward?
Since you've explained that there's an
Attorney General support for this bill,
there's the Governor's support for this bill.
Clearly, our friends and colleagues in the
Assembly are very aware of concerns about
terrorism through the state.
In discussions, even though there
has not been a conference committee or a
sponsor, what is your understanding of the
differences between the two houses on these --
on the issues in this bill? Because it is a
complex bill, it has very many pieces. And I
have to leap to the assumption that there's
agreement with some of the bill in the
Assembly and disagreement with other parts of
the bill.
SENATOR BALBONI: Madam
President, through you. Senator, I wish I
could respond. I don't know what their
objections are. That is a part of the
problem. They have not responded in any way,
shape or form.
493
SENATOR LIZ KRUEGER: So, Madam
President, through you, if I could ask the
sponsor to continue to yield to one more
question.
ACTING PRESIDENT McGEE: Senator
Balboni, Senator Krueger would like to ask you
one more question.
SENATOR BALBONI: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you.
And thank you, Senator Balboni.
Thank you for your patience.
So there's been no discussion
between the Senate and the Assembly on this
bill since last June?
SENATOR BALBONI: No, I can't
answer -- Madam President, through you, I do
not know that. I have not personally
discussed this matter with the Assembly.
I have in the past, on the weapons
of mass destruction legislation, different
than this. I discussed it with them in 2001,
discussed it in early 2002, in three-way
494
negotiations with the Governor's office and
the State Assembly. It has not moved since
then. That I know of.
SENATOR LIZ KRUEGER: Thank you.
And you have not had discussions.
Thank you very much, Madam
President.
Thank the sponsor.
ACTING PRESIDENT McGEE: Senator
Rath.
SENATOR RATH: Thank you, Madam
President.
My colleagues, on the bill there
are two provisions, as you see, that deal with
the first responders and the local governments
that are those first responders and need to
deal with the issue as it hits the ground, as
it were, in their communities.
The two provisions that we're
talking about, the first of which adds
municipalities and other legal or public
entities engaged in providing emergency
services to seek restitution if indeed there
is a cost to them for the placement of a false
weapon of mass destruction or a false -- well,
495
it started out as a bomb, and now it's
hazardous materials.
Sometimes it could be a prankster;
you don't know. Could be real. The first
responders go out. There's a cost to going
out. There's a cost if there is an accident,
a vehicular accident. There's a cost if
someone is injured in the process of the
response.
And so this simply -- and this bill
has passed any number of times. It's been
around since '97. This bill merely
incorporates this into the larger piece of
legislation and moves forward with that.
The second provision, as I said, in
the last bill it expands on what an item of
false placement is, not just a bomb, but a
hazardous substance. Someone calls in and
says they've placed an envelope of anthrax,
someone calls in and says they have placed a
suitcase of smallpox vaccine, whatever it
might be.
This is expanding on it. It's two
small parts of a very large puzzle, that we
don't think anyone should think it's a nice
496
prank or it's something that would be kind of
fun to do to pull a prank like this, have it
cost local governments.
And then it's almost as if the boy
calling wolf over and over again when there
was no a wolf. And then when there is a wolf,
no one responds. Well, we want first
responders to respond each time knowing that
it is a serious need for a response.
Thank you.
ACTING PRESIDENT McGEE: Senator
Nozzolio.
SENATOR NOZZOLIO: Madam
President, on the bill.
ACTING PRESIDENT McGEE: Senator
Nozzolio, on the bill.
SENATOR NOZZOLIO: Madam
President, can I have some order, please.
Madam President, I rise in support
of this legislation and thank its sponsor for
his leadership.
I couldn't help but notice the
debate in the questioning by Senator Krueger
asking about hearings. Well, I know that
Senator Seward, Senator Rath participated in a
497
number of meetings across the state, heard
from responders, heard from all of those who
are dedicated law enforcement and emergency
medical personnel and how they believed we
should be reacting to the terrorist threat.
The terrorist threat, it is very real.
Well, Senator Krueger, I'd like to
talk to you and my colleagues about a hearing
I held as chairman of the Crime Victims, Crime
and Corrections Committee. I held that
hearing in Manhattan, not too far from Senator
Krueger's district. I believe it was in
Senator Duane's district, in the shadow of the
World Trade Center or where the World Trade
Center once was.
And I spent hours, as chairman of
the Crime Victims, Crime and Corrections
Committee, listening to the victims of the
most horrific crime that ever took place on
American soil. And I heard from the victims
whose -- who lost a husband, who lost a wife,
who lost a child in that horrific attack.
And I couldn't help but cringe,
when I heard of messages of necessity and
process and hearings, about those victims and
498
about how right now we are on a state of alert
second only to a high state of attack. And
that that state of alert puts us in New York
at the most serious of risk. What's happening
across the nation is important, but what is
happening in New York is vital to the
circumstances relating to not a parlor game
but a very, very serious issue.
And the loss of over 3,000
New Yorkers to terrorism to me is message of
necessity enough to pass this legislation, to
pass it not today but yesterday. I frankly am
outraged that we are seeing posturing in this
chamber and not attention to public
protection.
Public protection is too important
an issue to be bargaining with the Assembly
over. We are not in the bargaining mode. We
are not in a mode of discussion, of
negotiation. We should be in a mode of
leadership, the type of leadership that
Governor Pataki has put forth in requesting
this legislation. That is his message of
necessity. Governor Pataki's message of
necessity is that we are at risk.
499
And this Legislature better get its
head out of the sand and put, for once,
partisanship aside and listen to Senator
Balboni, Attorney General Spitzer, and the
legislative leaders here who are pushing this
type of legislation.
It's time that our laws keep pace
with technology. The laws need to also keep
pace with the type of criminality that exists
today. We're not talking about second-story
burglaries, we're talking about serious
threats to life, serious threats to American
lives. And it's time that we act.
This house needs to put
partisanship aside, Madam President, and put
public protection first. That's the message
of necessity that we all have and are all
under. I urge the immediate passage of this
legislation.
ACTING PRESIDENT McGEE: Thank
you, Senator Nozzolio.
Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
I rise in support of this
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legislation. You know, much of what is in
here has been addressed by this house for
years. There's not an awful lot of it that
was new. I just want to speak to one part of
the legislation.
The Banks Committee held hearings
several years ago, long before 9/11, on money
laundering. Money laundering is the fuel that
drives terrorists. And if there was one
common thread during this hearing it was how
because it's only a misdemeanor and it's so
low on the prosecutorial totem pole that they
don't bother with it. And they get away with
it. Money laundering is a terrible, terrible
problem.
So many issues that are addressed
in this legislation are issues that have been
before this house, that were passed last year
unanimously. This particular legislation,
which the Attorney General and the Governor
are anxious to have us work on and pass, was
offered to your conference to cosponsor, which
is an unknown rarity in the other house.
I think it's important that we
address this. The immediacy of this is very,
501
very important. This Legislature is getting
ready to recess for Presidents' Week. I think
it's important that we pass this, we pass this
with bipartisan support. It's a very, very
important piece of legislation, one that
starts the process moving, that gets it going.
Will this be the final piece of
legislation? Probably not. But it will be
very close to it. And we have to address
these issues.
I speak to money laundering; again,
just one facet of this. Very, very
significant. Should have been done years ago,
but hasn't been. So many of these things are
things that are needed to be done if we're to
protect your constituents.
I'm going to vote in favor of this,
and I would hope that every one of my
colleagues would.
ACTING PRESIDENT McGEE: Senator
Larkin.
SENATOR LARKIN: Thank you, Madam
President.
You know, I've listened to this
debate for the last couple of years, and I
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really sometimes wonder if we in this body or
in the body in the other house understand what
Americanism is all about.
Just this past weekend, I visited
with 125 Marines packing up C130s to go to
Kuwait. They'll probably be part of the first
line of defense. And one master sergeant said
to me: "You know, Senator, when are the
legislators like our state legislators, or
Washington, going to sit down and think about
us? Us, the first line of defense. And the
second line of defense, our families."
And then you look at this piece of
legislation. We had it last year. We've made
a few changes to it. The passionate pleas by
Senator Balboni, Senator Nozzolio, were very
clear. But then we find people tearing this
apart.
I look around this room, and I
don't see too many here who have ever been in
combat. That's where the shovel hits the
ground. And when you start to say about what
we're going to do, it makes we wonder do we
really care about those people.
And then I heard some people
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talking about the bill. They said, Well, you
know what, we have a protection problem here,
we have this, we have there. What about that
man that's in the fighting line? He goes
there. We should be doing everything in this
country we can, because they're expecting us
to do something to protect their families and
our own families.
But we seem to be, in this house
and the other house, always looking at how we
can change it. Not for the betterment, but
how we can dilute what the aims and goals are.
You know, you don't have to think
about who's in Korea, who's in Kuwait, whether
you agree with the war or not. You have to
think about America, have to think about our
country.
We talk about bioterrorism.
Senator Farley talked about the money
laundering. The money laundering puts all of
that together so they can carry on these other
activities.
When I hear people say "I can't
vote for this, I can't" -- you know what? Let
me just tell you something. The next time I
504
meet with some of those Marines or someone
coming through Stewart, I'll have a list of
people who can't support this to protect those
Americans that are out there protecting us.
And I'll say: Here's one person, here's
another, and they're in this district or that
district, why don't you write them and ask
them why they don't want to protect their own
families and your families.
So, you know, we're going to be
sitting here again later on. As Senator
Farley said, this may not be the way the bill
will finally look at it. But why don't we try
to find out what makes the bill better? I
just think that we're making a very bad
mistake. We ought to take a good turnaround.
Maybe we ought to read the paper
and see just here, in this area here, 55
members were called to active duty, and they
went up to Jim's area up in Drum, and they
will be going overseas. Wouldn't it be nice
for them to know that there was somebody here
in an elected position in leadership in this
state that cared about them and want to do
everything to protect this great country of
505
ours.
As a combat veteran, I'm ashamed of
us. I'm ashamed because I feel that we're
saying to the troops "forget it." I won't
forget it. And I won't let you forget it
either.
ACTING PRESIDENT McGEE: Senator
Duane.
SENATOR DUANE: Thank you, Madam
President. On the bill.
ACTING PRESIDENT McGEE: Senator
Duane, on the bill.
SENATOR DUANE: I don't
understand how we can do something as
important as this clearly is, the terrorism
package that we're voting on today, without
the benefit of public hearings.
And, you know, there were no Senate
public hearings where we heard from law
enforcement officials or civil libertarians or
academics or, frankly, average citizens. We
don't have on the record, through a public
hearing, how they feel about this package of
bills. Well, it's actually a package of bills
and a bill.
506
And I can't believe that we're
being asked to vote on this piece of
legislation after it was just announced last
night. I think that's completely
irresponsible.
I mean, terrorism is horrific. And
it needs to be addressed in the most
comprehensive and sensible manner that we can.
And we would be neglectful of our duties if we
did not give thoughtful consideration to each
and every part of this piece of legislation.
Now, I guess I'm pleased that there
have been roundtables and that there was a
Majority task force that met on this issue.
Although, sadly, the person that chaired --
and one of our most able Senators, Senator
Seward, who apparently chaired that task
force, is not even in the chamber as we debate
this bill. So that's of concern to me.
And I do -- I also -- I have to
speak in defense of one of my colleagues, who
I think she proved in -- particularly in her
last election, that she really is on the side
of crime victims and in fact probably one of
the best advocates we have for crime victims
507
here. And I resent that her credentials as a
crime victim advocate is being questioned in
this body. Clearly the voters in her district
don't feel that way, and certainly those of us
on this side of the aisle don't feel that way
either. So I hope that is never raised again
as an issue, because it is just not true.
I do want to add that I am happy
that Senator Nozzolio had that hearing. And
he was very solicitous of me as the ranker on
that committee. And it was an excellent
hearing. And I think that that should serve
as an example to all of us.
However, that just dealt with the
crime victims' part of what we're doing here
today on terrorism. And the package is far
bigger than that and needs to be addressed not
just from that point of view, publicly, but in
a broader way.
Now, I'm hopeful that this package
being done today is not just what I call a
press-release package. But I am concerned
that that is really why it's being rushed
through today. Between September 11th and
today there's been an awful lot of time, and
508
yet I think we've not used that time
fruitfully to get as much information as we
can on terrorism.
If we look to what happened in
Washington, there were a tremendous number and
hours and hours of public hearings. And
that's why they're called public hearings,
because they are on the record and the public
can come and testify. Everyone is invited to
testify. Anyone who wants to testify should
be allowed to testify or submit testimony.
And that's why we have public hearings. Well,
we don't have public hearings, but that's why
other legislatures have public hearings.
I have to raise another issue.
Contained in this bill is a section which
deals with the death penalty. On page 14,
line 32: "A sentence of death when the
defendant is also convicted of the crime of
murder in the first degree, as defined in
Section 125.27 of this chapter." Which means
that as a result of this, people can be put to
death.
I'm totally opposed to the death
penalty. I will not vote for legislation
509
which includes the death penalty. So from the
get-go, from my point of view, this bill is
very problematic. Even if there were areas in
this bill -- and in fact I have voted yes on
some of the pieces of legislation which have
now been included in this bill. And I might,
if they were separated out, after public
hearings. But I can't vote on this bill
because it includes the death penalty, and I
will not vote for that.
And again, that's something which
could have come out more forcefully in a
public hearing, and the people who are opposed
to the death penalty could speak out on it.
And I know that there are lots of people in
this body who are going to be conflicted about
this, because they may agree with some
sections of it very strongly but they're
opposed to the death penalty. And you can't
be opposed to the death penalty and vote for
the death penalty. You just can't.
Now, you know, I have to speak
again -- when I'm in my district and I say I'm
a senator, somehow people think it's like
Washington, D.C. It's nothing like
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Washington, D.C. If you watch C-Span, you see
Senate hearings, you see people testify, you
see people being questioned, law enforcement
people, criminal justice people, civil
libertarians, people in academic fields. And
average citizens, people who are members of
organizations that have expertise in areas.
We don't know everything about everything. We
need to hear from people to craft better
legislation.
That doesn't happen here. I have
to say: Come to Albany and watch what happens
or what doesn't happen. We don't have
hearings here. We rarely hearings here. I
shouldn't say we don't have hearings, we
rarely have hearings here. Yes, you know,
Senator Nozzolio did have a hearing, and I
applaud that. But that is a unique situation
around here, and I think that that is a
terrible thing.
You know, the point has been made,
well, you pass the legislation and the
Assembly passes legislation, then you have
conference committees. That's not how it's
supposed to work. That's why we are
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considered -- even though we don't even have
these conference committees. And I hold both
houses responsible for that. But that's not
how it works. That's why we are called one of
the most dysfunctional legislative bodies in
the nation. We are an embarrassment.
First you have hearings. Then you
pass legislation. Then you have conference
committees. But first you have hearings. You
don't have hearings after you pass the
legislation, you have hearings before the
legislation. I just -- you know, I don't
know -- it's like we live in a parallel
legislative universe here. First hearings,
then you pass legislation or you don't, then
it goes to conference committees. That's how
it works. The way we do it is absurd. And
that's why we're a laughingstock.
So let's move out of -- let's do it
the way it's supposed to be done. Let's have
hearings. Right? First, let's have hearings.
Then let's vote on -- then let's debate
legislation in the committee. Then let's
debate it here on the floor. Then let's vote
on it and then let the Assembly do what the
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Assembly is going to do, and then let both
bodies come together and craft legislation.
And then we can come back to it and see if we
like what has been -- that version. That's
the way it should be done in the Legislature.
I mean, I know I sound like I'm
lecturing, and maybe that is what I'm doing.
But I just -- that's the way it should be
done. And it's time for us to start doing it
the way a real legislature passes legislation.
I'm going to vote no on this bill
because of the dreadful process which has
brought it here, the dreadful process from
9/11 till today. And also because, sadly,
though there are pieces of the legislation
which in spirit I do support, but I also -- I
can't vote for something that has the death
penalty shoved into it with other things.
So I encourage my colleagues to
vote no on this. Let's go back to the drawing
board, let's craft pieces of legislation after
real public hearings.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Sabini.
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SENATOR SABINI: Thank you, Madam
President. A question for the sponsor,
through you.
ACTING PRESIDENT McGEE: Senator
Balboni?
SENATOR BALBONI: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
sponsor yields.
SENATOR SABINI: Through you,
Madam President. Senator Balboni, this is a
very comprehensive piece of legislation and
deals with lots of things, including money
laundering, which is a crime that is often
conducted in neighborhoods like the ones I
represent. It deals with different kinds of
weaponry, very severe penalties. And your
interest in passing it is to be complimented.
You mentioned in response to a
question from Senator Krueger about you need
the help of all of us in crafting legislation
and in getting bills passed and in fact
advocating with our colleagues in the Assembly
on behalf of bills like this. And I just
wonder, there are seven new members in this
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body. Three of us, in fact, sat in a
legislative body that was spirited out of its
chamber as a result of September 11th, had to
meet in the New York City Public Library, the
main branch in Manhattan.
In response to the questions from
Senator Krueger, you said that while there was
a Majority task force or a roundtable, this
bill this year in this session, which is
marked for this session, was put together or
introduced last night and passed out of the
Rules Committee, not out of the substantive
committee that you're chair of now.
And I'm wondering in what way would
new members participate or any members
participate in the crafting of such
legislation if we're going to do it in a
manner that even bypasses the appropriate
committee.
SENATOR BALBONI: Madam
President, to respond to the Senator's
question, through you, I'm sorry, Senator,
I -- I'm sorry you weren't at the meeting --
the first meeting of the Veterans, Homeland
Security and Military Affairs Committee, which
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we had immediately before the Rules Committee.
And that is the substantive committee that
considered this bill. So we did get a
chance -- the substantive committee, as you
call it -- and I would argue that the Rules
Committee is also a substantive committee --
did in fact consider that bill.
As far as your call for
participation in the process and the
development of this bill, I couldn't welcome
that more. And that is why I hope that you do
not stand on this floor in future years and
sit and say that because the Majority didn't
hold hearings or didn't introduce enough
legislation or didn't comment enough on these
different provisions without having asked
yourself could I have done it also.
Because this may come as a shock to
some of your colleagues, but they can hold
hearings too. They can offer pieces of
legislation.
Now, I don't want to lecture the
Minority on anything, but I was a member of
the minority also. I suffered for seven years
in the State Assembly minority. And our role
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was to put forward the ideas and put forward
changes. And if you talk about dysfunction,
my definition of dysfunction is being
obstructionist for an obstructionist's sake,
because it sounds good in the press. Never
offering a thing, never discussing what the
provisions are that you object to.
June 17th was a long time ago. I
have not heard from one member of the Minority
on any of these provisions. Now, maybe that's
because everybody voted for it.
And by the way, just to correct the
record, the death penalty was in fact in the
bill that we voted on on June 17th. So there
are members here who have voted for the death
penalty against their own objections.
My suggestion, Senator, is that
this is a very sincere plea to you, and to all
of us. Join us. And if you don't like what
we do, that's fine. That is the process, the
democratic process. Let us know what you
would do instead. This is too important an
issue to stand back and say we haven't done it
right so we can't do it. Don't stand on
hypertechnicalities, stand on principle. Walk
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with us.
You know, Senator Nozzolio's furor
came as a result of his passion for the issue,
because it protects people. But it's also
driven by the passions of the people in his
district who ask "Are we safe?"
You know, we need to move this
forward. I don't want to get into who's done
what, who hasn't done this, where are we doing
with this. That is not productive. So let's
stop, if we can, the usual way of Albany, of
saying "You're wrong" and now fold your arms.
We need a dialogue, guys. We don't have it.
SENATOR SABINI: If the sponsor
would yield for a further question, Madam
President.
ACTING PRESIDENT McGEE: Senator
Nozzolio, do you continue to yield?
SENATOR BALBONI: Actually, I'm
Senator Balboni. He's better-looking.
ACTING PRESIDENT McGEE: Senator
Balboni, I'm sorry.
Senator Balboni continues to yield.
Sorry.
SENATOR SABINI: That's okay.
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All the Italians look alike, I know.
And I'm glad the sponsor, to
paraphrase our great former president, feels
our pain on the Minority.
But I just wondered, to sort of
underline the original question, since the
bill came about in this legislative session
last night, how that participation would have
manifested itself.
SENATOR BALBONI: The
participation is what you're doing today. I
mean, let us know what your objections are,
but also let us know how you're going to help
solve those objections, how you're going to
join with the Assembly. You know, how are you
going to engage them? That's your
participation.
Because we all know that there's no
bill even in the Assembly. So there's going
to be time. I hope we revisit the issue. I
hope we get a chance to do that, because we
didn't last year. It was the only word on the
subject, and it was only from our side of the
legislative process.
SENATOR SABINI: Madam
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President --
ACTING PRESIDENT McGEE: Senator
Sabini.
SENATOR SABINI: -- to the
sponsor, I don't prejudge your bill, nor do I
object to the things that I've had a chance to
read.
My only point in raising the
questions were that this deals with lot of
different levels of law enforcement --
district attorneys, local law enforcement.
Some of these things are covered in the
federal code. And it just would be nice to be
able to -- not nice, really essential to good
lawmaking for us to ask, seek advice -- and
I'm sure you have, I'm sure the sponsor has.
And I'm sure members of the Majority have.
But for others of us who represent parts of
New York City who are affected by this, to
have that opportunity to speak to our
prosecutors and our law enforcement officials
and to make legislation better.
I don't disagree with the sponsor's
assertion that there are dysfunctionalities in
both houses. But I do feel that if we really
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want to use the ideas of all of the people of
the state of New York, that we should be using
input from all the representatives of the
state of New York.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Sampson.
SENATOR SAMPSON: Yes, Madam
President. I just want to talk on the bill.
ACTING PRESIDENT McGEE: Senator
Sampson, on the bill.
SENATOR SAMPSON: I want to say
I'm in support of the chairman with respect to
this bill, and I understand the importance of
this bill. But I take exception to people
when they call me un-American or they talk
about my head is in the sand. My head is not
in the sand. I understand the issues and
concerns. My constituents understand these
issue and concerns.
And I take exception to that,
because it's my constituents who are on the
front line in Iraq and in Kuwait. It's my
constituents who were affected by what
happened at the World Trade Center.
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But the only thing we ask is since
it involves our constituents, we want to be a
part of the process. And that's all. That's
all we're asking, nothing else.
But to call me un-American and talk
about my head is in the sand, I take exception
to that. Because I feel the same pain
everyone else feels here in this body.
But if we want to do it the right
way, as Senator Balboni said, get us involved
and talk about it. But once again, you know,
I don't think just because we ask questions
that means we are un-American or have our head
in the sand.
And as a lawyer, the first thing we
look at is loopholes in legislation and laws,
to take advantage of it. And the only way to
prevent that is to hear all the dialogue and
all the criticism possible to make a sound and
effective law, ladies and gentlemen.
Once again, I want to commend the
sponsor for this legislation. But once again,
just because we ask questions, do not question
our patriotism.
Thank you very much, ladies and
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gentlemen.
ACTING PRESIDENT McGEE: Senator
Volker.
SENATOR VOLKER: Madam President,
you know, I think that in looking at the
history of these types of legislation -- which
we've been passing really since 2001. I think
the first time that we did terrorist
legislation was the fall of 2001, after we
were still reeling from the 9/11 attacks. I
have to say I tend to agree with Senator
Sampson and others who say this Minority --
and I'm talking about you people in the
Minority here, has been very responsible.
I wish that the Senate in
Washington were as responsible. There's a
reason I'm mentioning this. You know, there
are many of us who watch this type of thing,
terrorists, and are very much involved in the
homeland security issue. And I help oversee
it, with Senator Balboni. I have to tell you,
the biggest problem we have right now, one of
the reasons these bills are here, I know that
Senator Bruno agonized whether to do this now.
But what's happened is in
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Washington the belief is the Senate did not
pass a homeland security bill, even though
they had all kinds of hearings and they did
all the stuff on television. They didn't do
it before the election, because they thought
it might help George Bush and some of the
Republicans. And they didn't pass the budget
for homeland security.
And the reason that I mention
this -- and this is not any knock on you
people. You actually have been very
responsible, in my humble opinion. This
house, as usual, gets out in front on criminal
legislation. We debate, we argue. The
question of wiretapping is always important.
I'm one of those few people that did wiretaps
myself as a police officer and was tapped
myself in this very Capitol. Which I won't
get into, but I was.
And so I am very sensitive to it,
extremely sensitive. And this roving wiretap
legislation -- and we could debate it some
more -- is weaker than the wiretapping that
the federal government has in their
legislation. Because we're, I think, more
524
careful. Is there some risk to it? You bet
your life there is.
But the thing I want to tell you is
this. We're now looking at the budget.
Meaning, well, the Senate, our budget
subcommittee is working on it. We're very
confused. We don't know exactly what to do
because the feds haven't passed their budget
yet. We're ready to do better homeland
security. We're ready to send more people out
there into the streets to deal with terrorism.
But we don't have the wherewithal.
Now, I must say that what we're
really attempting to do here today -- and
let's be perfectly blunt -- this isn't an
attempt to one-up the Assembly or anybody.
It's an attempt to get the Assembly to deal
with this. And God forbid that anything
should happen in the next week or so. I can
assure you, things will move a lot faster.
Now, I know that there are people
here who are reluctant because the Governor
obviously is going to -- if this passes, the
Governor will take credit for being the most
advanced state in the union.
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And by the way, contrary -- Senator
Duane, we are called dysfunctional here in New
York and so forth. Across the country, we're
looked at as probably the most democratic, and
by "democrat" I'm talking about democracy --
and the most progressive legislature in the
country.
I had a friend of mine from
Colorado say to me: "Oh, you're part of
New York, yes. You're part of that
legislature where committee chairmen still
talk to each other."
In most of the places in this
country, everything is done by leadership
people. And the funny thing is, the media
thinks that's the way it works, the three men
in a room. Which of course is a lot of
nonsense. We wouldn't have had leaders the
way things have been going lately if that were
all true, I can assure you. It's a different
world here. It's certainly a different world
than when I came here 31 years ago.
But I can only say personally,
having been in law enforcement and watching
some of the security stuff that's going on,
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we've made great strides here, but we need to
move on. We need to allow our people -- and
I'm talking about law enforcement people -- to
have the authority to deal with these
terrorists, who have better equipment than we
do in many cases. They're doing roving
wiretaps. We know that. We know they're
doing that. I mean, shouldn't we have the --
people have the ability to at least cope with
some of these other people?
And what frightens me is if we
don't move, I worry about an overreaction.
I've always worried about overreactions. I
want to tell you, God forbid that Buffalo or
New York City should get hit again. I can
assure you we'll pass legislation awfully
quick, and it may be even more draconian than
what we're doing here.
I hate to say that, but I'm -- it's
probably hard to believe, but I'm somewhat of
a moderate on this stuff. As I say, I've been
through the years, I've seen bad cops, I've
seen bad prosecutors. As I said, my own line
has been tapped. It was tapped a couple of
times, but one in particular I remember very
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vividly.
So I think -- and I think I know
how Senator Bruno feels and I know how Senator
Balboni feels. We agree with you, it's not
the best process in the world. But the
problem is it's time for all of us to move.
It's time to get the Assembly moving. It's
time for all of us to understand this is such
a serious problem.
One way or another, the Iraq thing
I happen to believe is going to be disposed of
in the next two to three weeks. I happen to
feel there isn't going to be a war, but I
think -- I hope to God there's not. And I
think that's the intention of the
administration. They want to get this
resolved without war, I think.
But whatever happens, New York had
better be prepared. And it seems to me that
the best way to be prepared is to do this sort
of legislation, get the Assembly to move on
it. If they want, we can have a committee, we
can do anything they want. The big thing is
to get it done and get it done as right as we
can do it. And you could be very helpful,
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because you asked a lot of good questions.
But we've got to move on,
because -- and I would hope to God that the
Congress moves on, gets rid of their partisan
stuff, and tells us and gives us the
leadership here that so we can move on to take
care of New York the way it should be taken
care of.
ACTING PRESIDENT McGEE: Senator
Parker.
SENATOR PARKER: Madam Chairman,
on the bill.
ACTING PRESIDENT McGEE: Senator
Parker, on the bill.
SENATOR PARKER: I rise to
compliment the sponsor of this legislation,
Senator Balboni, on taking a very necessary,
courageous, and important part of what needs
to happen in this country.
There is no community more affected
than those of the Senate districts located in
New York City by what has happened with
terrorism, both in the context of direct
attacks as well as fear around, you know,
biological attacks in particular. This is a
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scary subject.
And I'm complimenting Senator
Balboni because I know that he's spent a lot
of time learning about this and gathering
information so we can have an informed
process. And I'm glad that we're involved in
this dialogue and this dialectic to sort out
how we should kind of move forward on this.
But it's important that we all look
at this with cool heads. It's important that
we, before we kind of rush into action in the
heat of battle and before we, you know, chase
them down and smoke them out, that we look at
the situations that have led us here and
really understand that what we're trying to do
here is protect American citizens.
We're trying to protect those in
the North Country, those in Buffalo, those in
the Southern Tier, those in the Hudson Valley.
We're trying to protect those in Rockland
County and New York City and out on the
Island. We're trying to protect all of the
New Yorkers who we all represent here. And
all of us take that responsibility very
seriously.
530
None of us see this as, you know,
some kind of thing where, you know, we're just
here to kind of play this out, but to kind of
be involved in making sure that our
communities are safe.
This is very real for me because I
lost people in the World Trade Center, as many
of us have. I had people who that day were
supposed to show up to work who were out
campaigning -- because it was Election Day, as
many of you remember -- who, you know, stood
and cried because they would have been in that
building that day.
That day -- many of you don't know
me very well. I'm a new member in a new
district. And I ran for the City Council that
day. And that day I remember vividly standing
at a train stop, you know, meeting voters on
their way to work, when I got a call from a
frantic, teary-eyed young volunteer telling me
that there was a fire. And I didn't really
understand what she was saying, because she
was just kind of hysterical. And I was like,
you know, "What's going on?" She was like:
"There's a fire at the World Trade Center."
531
And no one knew at the time that it
would wind up being the most devastating thing
to ever happen to this nation. That day
changed this entire world and the lives of
everyone here and in this great state and in
this nation. Forever.
But it wasn't over, because after
that we then began with the attacks of
anthrax. And at the time I was working for
Carl McCall, sitting in the offices of the
State Comptroller, and I remember right after
the first anthrax attack at the U.S. Capitol
and us sitting there with a pile of mail and
everybody terrified to open up the mail. To
open up mail.
Here we are in the greatest state
in the greatest nation in the world, and the
people in the government are scared to open up
the mail. A thing that we've done a million
times without even thinking, and here we are
afraid to open up the mail.
This is important, ladies and
gentlemen. This idea of bioterrorism and the
possibilities and the horrors of this are
absolutely terrifying. And more so for people
532
in my district and Senator Sampson's district
and Senator Balboni's district who ride the
Long Island Railroad and people in my district
who ride the Number 2 train as they sit there,
crowded, wondering who, you know, on there is,
you know, just a citizen going to work or a
neighbor and who could be possibly a
terrorist. Terrified. Again, of something
that we've done every day.
This is what -- this is what
terrorism is about. The reaction isn't so
much the bombing. It is they have you at the
moment of fear. And I'm afraid now that we've
fallen into the trap of terrorism, that we've
gotten so afraid that we've kind of lost
rationality. And I say that in the context of
both the speed in which this legislation is
being pushed through as well as some of the
provisions.
And I am absolutely happy that both
Senator Balboni and Senator Larkin have asked
us how we can make the bill better, because
that's what I like to do, is make some
suggestions. I'm a member of the Veteran
Affairs and Homeland Security Committee, and
533
I'm going to make an offer I made there, which
is a friendly amendment to simply do two
things.
One, there's some significant
concerns around the death penalty. Like my
colleague Senator Duane, I am ardently and
philosophically against the death penalty.
Part of why is just simply that we have not
shown as a nation or a state that we know how
to administer this life-and-death policy with
an even hand.
So let's -- we can have a joint
committee on that, and I would certainly like
to serve on a task force on looking at the
death penalty and the characters in which it's
being applied around the state and around the
country. And so an amendment that would
strike the death penalty would be a way to
make this, Senator Larkin, a better bill.
Second, I have some concerns around
the Constitution. And any time that we start
fiddling around, you know, and striking out
parts of the Constitution, I get a tickle in
my stomach. We start creating what I call and
what is called in public policy terms a
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slippery slope. We start -- you know, today
is the Fourth Amendment, tomorrow it will be
the Fifth Amendment, then the Sixth Amendment,
then the Thirteenth, Fourteenth, and Fifteenth
Amendments, which particularly disturb me.
And it all begins with the terror
and the fear that we've had out of this
irrational, inhumane act that no one is
responsible for.
And so as we're all concerned about
this, as we all think that this is of dire
importance, nobody wants to hold up the bill.
Nobody wants to hold up the dialogue on this.
No, just the opposite. We want to protect our
communities. In fact, our communities are
going to be affected more than anyone's. You
know, the districts found in New York City are
going to be the epicenter of any attack.
And so we want to work with you,
Senator Balboni, to get a better piece of
legislation. I am looking forward to some
minor changes being made in this bill such
that I'm able to vote yes. Until then, I have
to vote no on this bill.
Thank you.
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ACTING PRESIDENT McGEE: Senator
Little.
SENATOR LITTLE: I'd like to
comment about the discussion that took place
earlier.
Much discussion has centered on the
words "message of necessity" that accompany
this bill or this package of bills. And in
all honesty, I can think of no three words
that are more appropriate for this bill than
"message of necessity."
My eldest son, who is 34 years old,
is a lieutenant commander in the Navy and is a
navy pilot. He's been in the Persian Gulf
since mid-July. He's serving aboard the
carrier the Abraham Lincoln. Before Christmas
he had flown 67 missions off the carrier into
the no-fly zone over Iraq. And while headed
home, with a return date of January 15th, into
California, the carrier was turned around and
sent back to the Persian Gulf for who knows
how long.
I speak of this because it's a very
personal issue for me, and I'm becoming much
more acquainted with what it means for our
536
military to be separated from their family and
from young children for long periods of time.
But we've had men and women doing that for
decades. That's part of military life.
But there are serious, serious
events going on in this world that involve our
young men and women, and they're working very
hard to protect our lives and to do what they
can for us. This is not a time for us to sit
back and say we haven't discussed this enough,
we need to have more hearings. This has been
discussed since the horrific events of
September 11th in every single corner of this
state, in just about every room. I know of no
one who isn't interested in trying to make our
lives safer and trying to make our state
safer.
No one could have imagined the
events of September 11th. And that doesn't
mean that there aren't more unimaginable
events that could take place.
I'm very proud to join the
Governor, the Attorney General, and my
colleagues in the Senate for this call to
action, because I believe that that's exactly
537
what this is. This is a call to action. This
is putting these bills on the table. There
may be parts you don't like; there may be
things in it we need to change. But what we
need is the Assembly to come to the table and
to make a bill that can then go to the
Governor and can then change the laws in
New York State.
So we at home are doing our part,
as well as our people in the military are
doing their part. I intend to vote yes for
this bill, and I'm very pleased and proud to
be able to do so. And I certainly hope that
everyone else in this chamber will do so as
well.
Thank you.
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR LIZ KRUEGER: Thank you.
On the bill.
ACTING PRESIDENT McGEE: Senator
Krueger, on the bill.
SENATOR LIZ KRUEGER: Thank you.
It's amazing to me how this
discussion has shifted off what we should have
538
been talking about today in relationship to
this bill. It seems that this discussion is a
test of patriotism. But of course that is not
the issue before us.
My district cares very much about
antiterrorism measures. My district actually
lost more lives than any other district in the
September 11th disaster. My own father's
office was destroyed when a section of the
World Trade Center broke off and landed on his
desk. Thank God he was not there.
But it is not, to reference what
Senator Sampson said before, un-American to
question legislation or the legislative
process. And it is certainly not un-American
to question the process when we haven't moved
forward since last June, we haven't even held
any discussions with members of the Assembly
since last June.
In fact, I would argue that it is
the highest level of Americanism, democracy,
to question any serious, significant piece of
legislation that would be going through this
house or the Assembly. Senator Larkin, it is
why we send men and women to war, to protect
539
democracy. And it is our obligation to argue
those issues here on the floor and to move
forward rationally and fairly, but to also
figure out what is stopping our process from
moving forward.
Senator Little just talked about
the importance of this issue in every corner
of the state. People have been discussing
terrorism and their own fears of terrorism
since September 11th, and that will not be
going away. That makes it inherent on this
house and the other house and the Governor and
the Attorney General to figure out what are we
failing to do in the process to move ourselves
forward, rather than to reiterate the same
debate of June today when we didn't debate the
issues in the bill.
And while I voted last June for
this bill, and I always intended to vote for
it today despite my opposition to the death
penalty, there are very serious ramifications
of this legislation, as Kevin Parker --
Senator Kevin Parker said, about the slippery
slope of opening up our amendments for
interpretation, of questioning whether or not
540
we need to have roving wiretaps.
I don't know the answer to that. I
voted for the bill and will vote for it again,
but we haven't had the dialogue in this house,
in our communities, or with the Assembly about
the ramifications of roving wiretaps. And I
appreciate Senator Volker's comments and
concerns on that.
We haven't had the discussion with
the other house or in our communities about
what it means to change the definition of
protections under the law of the Fourth
Amendment for the police to have greater
authorities to take control of situations, to
make judgment calls in advance of evidence.
And the truth is in the history of
this country it has been in times of threat
and in times of war that we have taken the
leap to jump over some fundamental
constitutional protections for our citizens,
and we have revisited those afterwards and
wondered whether we made mistakes going down
that road.
And so process is important, not
just the legislation. And both issues I think
541
are before us today. So again, this was not a
debate on patriotism or who cared more about
the people in our community. And it certainly
is no parlor game, as Senator Nozzolio defined
it. It is really a fundamental issue of how
do we move government forward in the State of
New York between the two houses and the
Governor, how do we make the tough decisions.
And I think that what we've failed
to do so far on this piece of legislation is a
very good example of what we need to do to
make things better. Because in fact we
haven't moved forward today, despite a message
of necessity, because it does not appear that
the Assembly has any plan to move forward now.
We have just spent several hours
perhaps attacking each other on the wrong
issue, when I think what we do agree on is the
importance of addressing the concerns of our
constituents about protecting their rights and
addressing their fears and also figuring out
how we work together to move forward. And so
far today we did not accomplish that goal.
But I will be voting yes on this
bill. Thank you, Madam President.
542
ACTING PRESIDENT McGEE: Senator
Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President.
Senator Krueger is absolutely
correct. The response from the other house to
the legislation that was passed in June,
sponsored by my colleague, has been deafening.
An absolute silence. You can't negotiate, you
can't talk when people don't want to talk
back.
So to say that we shouldn't move
this bill now because we haven't had
discussions with the other house or enough
discussions with the other house, it takes two
to have a conversation that's meaningful. If
the other house refuses to respond, who do you
talk to? What do you do?
This chamber passed a budget reform
act to try to change a dysfunctional process.
We've heard that statement many times. What
was the response from the other house? Is
there a bill on the table in the other house
to deal with the budget process? No. Their
response was absolute silence.
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This chamber passed legislation to
reform insurance policies that lead to, you
know, fraud and disruption in our insurance
and rising costs to our constituents. What
was the response from the other house?
Silence.
We passed this legislation in June.
What was the response from the other house?
Silence. That's the response. Nothing is
going on there.
So to say that we can't pass bills
here because we're not having discussions with
the other house, I think you've got to look at
the other house. That's what Senator Balboni
was asking, help us get the other house to the
table.
I appreciate the fact that this
bill will pass in this chamber. I appreciate
the fact that most people will vote for it.
And I can accept some people who will not vote
for it as a matter of conscience on those
particular issues they feel constrained to say
no to. That's fair. That's part of the
process. That is the process. That's what
we're here for.
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We're trying to move this
legislation. It is timely. We don't have a
lot of time here. We could have an attack
tomorrow. We need responses. We need more
eyes and ears.
Senator Balboni gave you a number
that's scary. There are 700 federal law
enforcement agents working on this issue here,
while we have 70,000 law enforcement agents
throughout the state that have their hands
tied behind their backs and could be part and
parcel to the game and could be helping and
assisting looking for these terrorists,
preventing terrorist attacks, saving and
protecting our families and the families of
those people who are over there protecting
this nation and this world. But they can't be
released until we have a legislation that
unties their hands.
You mentioned roving wiretaps.
There are concerns out there. There are
legitimate concerns out there that should be
debated and discussed. But it takes a two-way
debate. We can't do it alone. The bad guys
go out and know full well that wiretap laws
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say you've got to be specific to the phone.
So what do they do? They take a cellphone and
they chuck it, they use it for a week and they
throw it away. They get another one, use it
for a week, and throw it away. Buy two or
three, get four or five. And as they use
them, they throw them away.
Law enforcement has to go back each
and every time when they get the new number,
and then get another court order and get it
all in place. And by the time they get it in
place, that phone is out of commission
already, they're no longer using it.
We need tools. We need tools,
ladies and gentlemen, to help our law
enforcement people fight the fight. We've got
to be as good as they are. We've got to be
better than they are. Which means we've got
to get ahead of them.
The protection of our liberties?
Paramount. We shouldn't sacrifice any of
that. Nobody here is suggesting we should.
But that doesn't mean we don't move.
Ladies and gentlemen, I suggest to
you we are not moving in haste on this
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legislation, we're not moving at all. And the
prime reason for that is we don't have a
partner. And in this house and in this
Legislature, in any legislature, you need a
partner. It doesn't take two to tango here,
it takes three. Well, we've got two. We're
trying to get the third leg. If we can get
that third leg of the stool, we can make
legislation that will move us ahead and put
this state in the forefront where it has to
be. Not should be, has to be. It's an
imperative here.
I urge a yes vote on this bill. I
congratulate the Governor, I congratulate the
Attorney General for coming to the floor. I
congratulate the leadership in this house, led
by Senator Bruno and ably assisted by my
colleagues who have sponsored this legislation
that we're going to pass today. This is major
stuff, this is important stuff, but we've got
to bring the other house to the table to get
them engaged.
I'm going to vote aye on this, and
proudly so.
ACTING PRESIDENT McGEE: Senator
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Schneiderman, to close for the Minority.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. Through you, Madam
President, if the sponsor will yield for a few
questions.
ACTING PRESIDENT McGEE: Senator
Balboni, will you yield for some questions?
SENATOR BALBONI: Yes, Madam
President, I yield.
ACTING PRESIDENT McGEE: Senator
Balboni yields.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President, if
the sponsor could tell us, when was the bill
in its current form, Senate Bill 3, printed?
SENATOR BALBONI: Madam
President, I'm not aware.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President, we
received this bill for the first time late
yesterday afternoon. Is the sponsor aware of
any effort to distribute it or provide it to
members of the Senate prior to the end of the
day yesterday?
SENATOR BALBONI: Madam
548
President, through you, no.
But I would just comment, Senator
Schneiderman, that it is ironic that we have
spent almost two hours discussing this measure
and the most common theme of the objection to
this process has been the inability of the
Minority to get questions on specific
provisions of the bill, and yet we have spent
almost the entirety of the two hours spent on
process. It seems to be a lost opportunity.
If you have questions about the
substance of the bill, let's get to the
substance of the bill.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President,
referring to page 11, Section 20, paragraph 4,
which relates to the Fourth Amendment to the
Constitution of the United States.
SENATOR BALBONI: Yes, I got it.
SENATOR SCHNEIDERMAN: I will be
glad to give the sponsor time to actually read
it before I ask him to address it.
SENATOR BALBONI: Madam
President, I assume that the Senator is
referring to the good-faith exception to the
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search and seizure evidentiary rules.
SENATOR SCHNEIDERMAN: Yes, thank
you.
Madam President, through you, if I
may continue.
SENATOR BALBONI: Yes, Madam
President, I continue to yield.
SENATOR SCHNEIDERMAN: The Fourth
Amendment to the Constitution of the United
States provides for certain critical
protections for our citizens. It states "the
right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures shall not
be violated and no warrants shall issue but
upon probable cause, supported by oath or
affirmation, and particularly describing the
place to be searched and the persons or things
to be seized."
This section that we're referring
to on page 11 attempts to create an exception
to the Fourth Amendment if a court finds after
a hearing, even if there was a violation, that
the law enforcement officers acted in good
faith.
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I would request that the sponsor
please provide a definition of good faith and
how a court would assess it in such a hearing.
SENATOR BALBONI: Madam
President, through you. Again, this bill has
been developed from law enforcement personnel,
including the Attorney General's office. And
I don't know specifically what they intended
when they decided to put in the clause
good-faith exception or good faith of the
police officer.
But I will tell you what the
Supreme Court has talked about in cases such
as the United States versus Pelletier, 422
U.S. at 539. The court in that case discusses
the concept behind the Fourth Amendment
protections.
As you know, in this nation we
sought to protect citizens against
unreasonable search and seizure. The way we
did that was to provide a deterrent through a
doctrine that is commonly referred to, the
fruit of the poisonous tree.
And I know I'm right about this, by
the way, because Senator Sampson is shaking
551
his head, and he practices this.
The fruit of the poisonous tree
basically means that if you obtain evidence
against a criminal defendant unlawfully,
illegally, then you are not able to use that
evidence in court. Now, that is done as a
deterrent.
In speaking about the good-faith
exception -- that is, when a police officer
goes into a premises and conducts a search and
makes either a mistake or has a mistaken
belief about the validity of the initial
search -- the court says the following: "The
deterrent purpose of the exclusionary rule
necessarily assumes that the police have
engaged in willful or at the very least
negligent conduct which has deprived the
defendant of some right. By refusing to admit
evidence gained as a result of such conduct,
the courts hope to instill in those particular
investigation officers or in their future
counterparts a greater degree of care towards
the rights of an accused. Where the official
action was pursued in complete good faith,
however, the deterrent rationale loses much of
552
its force."
That, Senator Schneiderman, is the
underlying motivation that I see in this.
Remember, for those in the public who are
considering the rhetoric that may be talked
about or spelled out in this particular
chamber that this somehow eviscerates the
Fourth Amendment protections, I remind people,
number one, it's only for cases of terrorism.
Number two, a court must have a hearing to
consider the good-faith exception. And,
number three, the admission of evidence is not
tantamount to conviction.
Juries in this state are able to
consider all of the evidence, and defense
attorneys are able to cross-examine based upon
what they view as in the best interests of
their clients. So justice still prevails.
What this does is it allows law
enforcement officers to go in and, if they
find evidence of a terrorist trying to plant
anthrax in a government building, a private
home, that they can seize it, that they don't
have to have a search warrant, that it is
there and it's in a drawer, they find it,
553
they're able to get the terrorist and take
them out and prosecute them.
That's what we're talking about.
That's why this is in here. And a lot of
people, if they ask why this is in here, at
the same time they ask what everybody else is
asking: Why don't we do this? Why isn't this
a part of our law enforcement? Why haven't we
taken the steps necessary to make sure that in
the war on terrorism we will do everything
possible to make sure that we protect our
people?
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President. The
case law, the federal case law the sponsor is
referring to --
ACTING PRESIDENT McGEE: Are you
asking the Senator to yield?
SENATOR SCHNEIDERMAN: Oh, yes.
If the sponsor would continue to yield.
ACTING PRESIDENT McGEE: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, I do.
554
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President.
The federal case law just cited,
U.S. v. Pelletier and other cases subsequent
to the Illinois v. Gates decision, is it not
true that those all involve situations where
there were in fact warrants on which police
officers relied in good faith and not
situations that would be authorized under this
legislation, where there was no warrant at
all?
SENATOR BALBONI: Madam
President, through you. Actually, the
legislation doesn't comprehend warrant or
nonwarrant. It doesn't refer to that at all.
You are correct that the case that
I cited, its fact pattern was involving a
warrant. But that doesn't necessarily --
that's not necessarily involved in the
legislation before us.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President, if
the sponsor would yield for another question.
555
ACTING PRESIDENT McGEE: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, Madam
President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR SCHNEIDERMAN: Well,
given the fact that this legislation goes
beyond any U.S. Supreme Court decision as far
as authorizing a good-faith exception to the
exclusionary rule to the application of the
Fourth Amendment through the exclusionary rule
for situations that don't even involve a
good-faith effort to enforce a warrant that is
later found to be defective, how can we pass a
piece of state legislation if it does in fact
go beyond any decision of the United States
Supreme Court, that supersedes the Fourth
Amendment to the Constitution of the United
States? Would this be a valid act of this
Legislature?
SENATOR BALBONI: Madam
President, through you. This is going to come
as a shock to you, Senator, but I disagree
with the premise for your question.
556
This particular case that I
referred to I believe brings the good-faith
exception into the ambit of permissible
restrictions on the Fourth Amendment by
states, because it goes back to the
common-sense rationale underlying the Fourth
Amendment protections. That is, that if
you're a crooked cop and you go in and you do
an illegal search, you should be deterred from
doing that again.
Well, if you're a good cop and you
believe in your heart that the information you
have is correct, we shouldn't stand on that
technicality when it comes to terrorism.
If we could have done anything in
our power to stop the events of September 11,
2001, wouldn't we have done it? Sure we would
have. So our citizens are asking us about
this, what steps can we take. This is one of
them.
SENATOR SCHNEIDERMAN: Thank you.
I'd like to thank the sponsor for his
responses.
Madam President, on the bill.
ACTING PRESIDENT McGEE: Senator
557
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: There are
two issues that have been discussed here
today. Unfortunately, we spent a great deal
of time talking about the process by which
this bill came to the floor for a vote. I
think it is important that we discuss it.
I'm sorry that the process by which
this bill was rushed forward since it first
was printed yesterday afternoon has caused us
to take time away from the discussion of a lot
of very important substantive issues. But I
think the process in this case is tremendously
important if we are in fact engaged in a
good-faith effort to change the law of this
state with regard to defending our citizens
against terrorism.
On the issues of substance, I think
it is important to be clear that this is a new
bill. This has provisions in it that have
been taken from several other bills that have
been passed, some other provisions that have
been added that weren't in any bill before we
saw this yesterday afternoon at 4:00 or
5:00 p.m.
558
Substantively, I would urge my
colleague Senator Balboni, who I know is
completely sincere in his efforts to move
these issues forward, that this exception to
the Fourth Amendment which we've just been
discussing, this so-called good-faith
exception after a hearing, does go beyond
anything that has been done under federal law.
It's one thing for a police officer
to obtain a warrant, go to execute that
warrant, and then later learn that the warrant
wasn't issued in good -- to act properly, the
officer acted in good faith, there was an
effort to go through the judicial process,
however, obtain a warrant as required by the
Fourth Amendment.
This draft -- and perhaps this
could be corrected in a later draft -- goes
beyond that. This says that there could be a
hearing finding that the law enforcement
officer acted in good faith even if they
didn't have a warrant, if they're walking down
the street and they see someone and they throw
them on the ground and frisk them.
This is an open invitation for
559
police misconduct, I respectfully submit.
This is an open invitation for widespread
circumvention of the exclusionary rule and the
procedure that we have worked out in this
country for providing protections for our
citizens through the process for obtaining a
warrant.
I do think that that's something
that can be corrected in the drafting, and I
would urge the sponsor to take that under
advisement as we move forward on this point.
The Fourth Amendment is not just
some procedural nicety. And I respectfully
would join with my colleagues in urging anyone
who makes this a test of patriotism, whether
you're voting for this particular bill or not,
or whether you object to the process by which
this bill came to the floor. This is not a
test of patriotism. This is not a test of
patriotism.
In fact, many of us believe that
it's the U.S. Constitution, including the
Fourth Amendment, that is the reason we are
fighting a war against the forces that would
have no due process, that would have no
560
government of laws but rather a government of
men. And I think that that is an important
thing to bear in mind as we go forward with
the national and the state debate on the
possibility of war and certainly on homeland
security.
Finally, let me come to the issue
of process, because that has been a critical
element here today. I respectfully,
respectfully suggest to our sponsor, who said,
"Let's get out of the usual way of Albany in
considering this legislation," that the
process by which this bill came to the floor
today is the worst possible example of the
usual way of Albany.
We know this is not going to become
a law. We know this is not going to become
law. There's not an Assembly bill, there's
not an Assembly sponsor. The Assembly has
been contacted and said they are not going to
pass this bill.
So what's the rush if it's not
going to become a law? Well, why do we have
to circumvent the rule in the New York State
Constitution requiring that a bill age for
561
three days before it be voted on? Why do we
have to circumvent that rule?
Article 3, Section 14 of our
constitution states: "No bill shall be passed
or become a law unless it shall have been
printed and upon the desks of the members in
its final form at least three calendar
legislative days prior to its final passage."
Unless there is a message of necessity, which
is apparently what we've obtained here.
"The purpose of this section is to
prevent hasty and careless legislation, to
prohibit amendments at the last moment, and to
secure more publicity than had been required
before." That's in the case of Hatch v.
Reardon.
Why did we circumvent that rule
with a message of necessity? Well, I guess
the Governor felt that we had to consider this
right away. And I would urge everyone who
suggested that the fact that the Attorney
General participated in the drafting of this
bill gives cover for the process, the Attorney
General did not participate in the request for
a message of necessity.
562
Why did we circumvent the rule that
requires bills to go to a first, second, and
third reading? That's another three days that
could have been provided for consideration.
Not because we're in such a hurry to change
the laws of the State of New York to make it a
safer place, because we know the Assembly is
not going to pass the bill.
If the goal is to get the Assembly
to the table, which is a laudable goal, why
couldn't that be accomplished by introducing
the bill, holding hearings, building public
support, taking the three days necessary to
let a bill age, taking the three days after
that necessary for a bill to come to third
reading? What would have been the difference?
Well, perhaps the difference would
have been the fact that the Governor wouldn't
have been able to talk about this bill in his
speech to the Conservative Party dinner last
night. Which seems to be the only reason of
which I am aware that the bill has come to the
floor in its current form through this
process.
It is not questioning the motive of
563
the sponsor, it is not questioning the
necessity of dealing with these issues to say
that the process by which this bill came to
the floor indicates that it is not today a
sincere effort to address the issue of
terrorism.
I'm not saying the bill is not a
sincere effort. I'm saying the process which
brought it the floor today indicates that this
is a publicity stunt. This is what Senator
Duane referred to as a press release. This is
not a sincere attempt to address the critical
issues here. And if anything, it's more
shameful than ever to suggest that we're
really concerned about terrorism and that's
why we're going to engage in this futile
effort to pretend that we're trying to get
this bill on the table for the Assembly, when
this is the least inclusive,
least-open-possible way to bring a bill to the
floor.
If we want to get this bill before
the Assembly, the members of our conference
will be happy to work with you on this. But
not if we're given the bill at 5 o'clock in
564
the afternoon on a Monday and told we have to
vote on it, debate it, ask questions, put our
heads together and think of how to get to the
Assembly or get to the Governor for changes
less than 24 hours later.
So, Madam President, I think on the
substance I have problems with this
legislation. Many of my colleagues will vote
yes; some will vote no. But I do think that
it is not an act of un-Americanism to question
the process. I think it's essential, if we're
to fulfill the mandate of the United States
Constitution, the constitution of the State of
New York to our constituents, that we do
engage in a process that is serious about
opening up to ideas, about changing the law,
not just passing a one-house bill.
I respectfully submit that this
process is fatally flawed. This is the worst
example of what Senator Balboni called the
usual way of Albany. It's not going to become
a law. Next time around, let's take a little
time, let's hold some hearings, as Senator
Duane has suggested, let's try and get some
consensus behind the bill instead of just
565
throwing it out like throwing the gauntlet on
the table to the Assembly, saying: Fine, this
is it, what do you want to do?
I'm going to vote no. Many of my
colleagues will vote yes. But, Madam
President, I cannot object strongly enough to
the process by which this bill has come to the
floor today. And I request an explanation
other than the Governor's speech last night as
to why, knowing this is not going to become
law, knowing it's a one-house bill, this has
been rushed to the floor today after the first
time we saw it was at 5 o'clock last night.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Balboni.
SENATOR BALBONI: My colleagues,
Winston Churchill addressed the Parliament in
the face of World War II, when they were
essentially isolated, they'd lost their last
allies, and they were alone. They faced the
greatest challenge the nation ever had, and so
he spoke to the nation. And he said: "We
have to win. We have to win the world for our
children. We have to win it by our
566
sacrifices. But we have not won it yet. This
crisis is upon us. In this strange and
terrible world, there is a place for everyone,
man and woman, old and young. Service in a
thousand forms is open. From the highest to
the humblest tasks, all are equal to honor,
all have a part to play."
We have a role to play. Reject the
cynics. Reject those who say that this is a
federal issue. Reject those who say this is
partisan politics. Reject that. Realize we
have a role. But our role is not to stand
here and say this is not good. Offer
something else. It is not to stand here and
say that this is necessary, this is only
politics. Give us a solution.
And this is certainly not the role
to play to stand here and say that because the
Assembly will not act, then the cause is
hopeless. Because I assure you that that was
not in the minds of the men and women who went
to the site of the World Trade Center and dug
with their bare hands into soil to try and
find people who were missing or trapped. That
wasn't in their head. They didn't stop and
567
say what's the process. They went and they
did it. And we rebuilt the World Trade
Center -- we cleared the World Trade Center
site so far ahead of schedule. And people
said it could never be done, but it was done
because we cared, our hearts were there, we
continued.
Are we going to let the fact that
the other house is not engaged in this stop
us? Are we going to let them drive this issue
and therefore just make it politics because we
don't have anybody else listening to us? Is
that what we were elected to do? I hope not.
And I believe not. Let's pass this bill, and
let's continue the work to try to make us
safer.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Paterson, to close for the Minority.
SENATOR PATERSON: Madam
President, five of these bills have been
brought before us today. I'm going to vote
for four of them.
I have a philosophical disagreement
with Senator Balboni, who eloquently portrayed
568
why this is such a serious issue just a moment
ago and distinguishes himself every time he
does that.
But the issue, I think, does go
beyond the substantive, debatable discussion
that we're having today. I would just put it
this way. How much more foresighted would it
have been to have brought these bills to the
floor using all of the correct processes?
Unless there was an emergency at hand, which
is the threshold for why we use an
extraordinary process of message of necessity.
I would think at this time, when
we're defending our country against terrorism,
that we have to remember exactly why we're
being attacked in the first place. We're
being attacked because of the anger, the
hostility, the jealousy, and the abject greed
of other countries who want to deprive their
own lands of a democracy and really hate the
fact that we have one.
What better time to demonstrate the
use of such a process than in this particular
case. I don't know that we would presume what
the Assembly is or is not going to do, but
569
certainly the process in the Senate is one
that provides for an ample opportunity of all
of the legislators in this chamber to look at
the bills and come to a proper decision.
I don't think it was in that
interest that we first heard about these bills
at 5 o'clock yesterday. I notified the
members of this conference after 5 o'clock
that we would have a discussion about it this
morning and would try to get up to speed on
these bills before we came out here today.
I heard some discussion about the
problems that went on in Washington and the
problems that those who espouse the same
philosophy as the members sitting on this side
of the aisle felt that they were treated. If
that is true, this was certainly retaliatory
rather than example-setting. Because the
truest way of demonstrating what would really
be the democracy that we're all seeking is to
actually engage in that process.
And I think it's extremely
important at this time, in a rising climate of
fear, in an existing anxious and tense time in
our country where the codes of conduct become
570
more intense every day, where the fear and the
realization that terrorism is at our door,
that we were attacked on our own soil 17
months ago -- it is incumbent upon us as
public servants not to in any way provoke the
atmosphere, but to try to temper it, so that
we let those constituents that we serve fully
understand that not only are we serving the
public, but that we are doing it with all
deliberate cause.
I don't think that we're doing
that, Madam President. I don't think that we
are exercising our talents in the best way in
this chamber. There is a process we could
have followed regardless of what the reason
was. There was ample time to put this
legislation out in time for anyone to speak
wherever they wanted or to discuss their
feelings in public in any form that they might
choose.
I certainly hope that, if nothing
else, this discussion today will provide
perhaps maybe some syntax to the process and
maybe even give us some enlightening thoughts
for the next time in which this may be
571
accomplished.
It's in that regard that I appeal
to the members of this body that of all issues
we will discuss in this chamber this year,
that the one where we would have to be most
scrupulously fair and the one where we must be
most sensitive to each other's opinions is the
one such as this, that transcends really our
differences on the state level and really
cites our emblem of our country and our
commitment to each other as Americans. We
have to listen to each other, we have to
disagree without being disagreeable, and we
can be unified without being uniform.
And I hope that that will take us
into our next debate in a more uplifted
manner, because I was a little appalled to
hear some of the citing of hardworking
colleagues in this chamber in a manner such as
to call them un-American. To be un-American
would be antagonistic to exactly what it is
they were doing. They were expressing the
individualism for which this country was
founded, and they were speaking out on issues
for where they thought their voice could be
572
heard.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Bruno, to close for the Majority.
SENATOR BRUNO: Thank you, Madam
President, and colleagues.
I wasn't in the chamber for all of
the debate, but I'm very, very sensitive to
the discussion. And I don't believe anyone in
their intent was pointing to anyone in this
chamber as being un-American in their
observations and in their comments.
And I know that this gets
passionate in discussion, and we welcome the
debate. It's valid. It's warranted. And the
Minority is representing a position in that
they want full disclosure, open debate, plenty
of time. And we agree to that.
Messages of necessity have been
used over and over; fortunately, not in
extreme emergencies. But this is totally
valid and totally warranted. We should be
applauding the Governor, congratulating the
Governor, commending the Governor for stepping
out, standing up, standing at all.
573
Why? We are in a higher standard
of alert, a high standard of alert throughout
this state, throughout this country. New York
City was the major target in the world for the
terrorists. New York City, New York State.
So for the Governor to provide the leadership
and give us this message and this expansive
piece of legislation is very warranted.
And it is necessary. There are
people out there who still are intimidated.
They won't go into New York. They won't go
into your district, Senator Krueger. They
won't go into the Lower East End. They won't
get on an airplane.
And we here want to debate and
deliberate when we can create some additional
comfort, we can create some additional
protection. But these laws that we are
passing -- these bills that hopefully will
become law will allow 70,000 law enforcement
officers here in New York State to do
something more to protect the people of this
state.
We have 700 federal law enforcement
people here in this state, 700, enforcing the
574
federal laws. What is wrong with empowering,
to the fullest extent possible, those 70,000
people to protect your constituency, my
constituency, our constituency?
The Governor is providing the
leadership that he is elected as the chief
executive of this state. General Spitzer has
joined and partnered with him, as you have,
our colleagues here in this chamber, partnered
with General Spitzer, with the Governor, and
with us to pass this legislation. And I
applaud that.
And I don't in any way debate or
argue your contentiousness as relates to the
process, your full right to talk, debate it,
resist it. That's the process that governs
this state. And you're an integral part of
governing this state. And this is what it's
all about.
And, yes, for those people that
initiated that attack, they were attacking a
system of freedom, Americanism, represented
here in New York and at the Pentagon and in
the fields of Pennsylvania. That doesn't mean
because we are a free country and they were
575
free to board planes, they were free to do
what they did here in this country, that
doesn't mean that we shouldn't be responsive,
that we shouldn't do everything we can to
detect, to prevent, to capture and to punish
those people that would inflict pain on our
citizens in New York and in the United States.
That's what this is all about. That's what
this legislation is all about, this bill and
other bills.
And I know that you join with us in
all of those good intentions. I know that the
debate doesn't in any way relate to anything
other than partnering with us in all of these
good things that we are trying to do on behalf
of our people here, our mutual constituency
here in New York State.
So I thank you for the debate. I
thank you for the exchanges. I thank you for
our opportunity not to agree with you on
everything and for yours not to agree with us
on everything. And I have a feeling that as
we go forward with this session, we will have
further debates on issues and on the process,
and we'll disagree and we'll agree.
576
But, Mr. President, we're getting a
vote on this bill. And I would encourage my
colleagues here all to be supportive and to
deliver the right message.
And for those that comment that
this is a one-house bill, I would encourage
you to use your good offices and your
leadership. When this bill goes to the
Assembly, as has happened thousands of times
in our lifetime, this bill can appear on the
floor of the Assembly and pass, and it will be
signed by the Governor immediately.
So, Senator, there is nothing that
relates to this being a one-house bill. This
is only a one-house bill if the Assembly
refuses to accept it when it leaves this
chamber and act on it in their house. And
with your support, with your partnership with
our Attorney General and his great office, who
knows? The discussion, the emergency, the
necessity may weigh heavily enough on our
colleagues so that they take this bill up and
they may pass it and the Governor will sign
it.
So thank you for your partnership,
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for your discussion and your debate.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 34. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Montgomery, to explain her vote.
SENATOR MONTGOMERY: Yes, Mr.
President, just briefly.
I'm going to vote no on the bill.
But I would like to respond, certainly, to the
Senator who implied that many people had not
been to service. And my husband was in the
Army. I had a brother in the Marine Corps.
All of the men, basically, in my family served
in the military. And so I don't apologize.
Sometimes I wonder what they served
for, because pretty soon we won't have freedom
to do much more, not even to speak on the
floor of this house.
I want to say that I hope that
578
those young men who are over there fighting
for our freedom, I hope that when they come
back they can go to City College, SUNY, that
they can find a place to live, even in my own
district, that they will have some protections
as citizens when they return.
And certainly I support them,
because I come from a family of military
people. And I have absolutely no problem at
all saying to you that I stand here as an
American, fully committed to the support of
those people who have fought throughout the
years for us to be able to stand here and
debate and to disagree. I hope we will
continue to do that. And I support those
young people because they are fighting for us
to continue to be able to do this.
I vote no on this bill, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Montgomery will be recorded in the negative.
Senator Ada Smith, to explain her
vote.
SENATOR ADA SMITH: Thank you,
Mr. President.
579
I stand here as a proud American of
African descent who believes strongly that we
must protect our country and ourselves from
any act of terrorism. But I also believe
deeply that we cannot continue to diminish the
Fourth Amendment. We must be ever vigilant
that we do not do away with the rights of
people.
We must also continue to fight
strongly in this chamber that we have a
process that is fair to all. Wouldn't it be
nice if you had the opinions of all sides
before a bill came to the floor? Wouldn't it
be much more effective? Wouldn't it be nice
if we no longer went about having legislation
by press release? And wouldn't it be nice if
we didn't keep reacting to the latest
newspaper stories?
Mr. President, I vote no because I
vote for the rights of people.
ACTING PRESIDENT MEIER: Senator
Ada Smith will be recorded in the negative.
Senator Duane, to explain his vote.
SENATOR DUANE: Thank you, Mr.
President.
580
I just have to comment to Senator
Balboni that under our rules, only chairs can
hold public hearings. And maybe we should
change that. But we actually have never had
any hearings on our rules, no public hearings
on our rules. In fact, we didn't have them
before our ability to do motions to discharge
and amendments were so severely restricted.
So I mean I think it's ridiculous
that we've never had public hearings on our
rules, but that's for another day.
And I'm not defending the Assembly.
I'm absolutely not defending the other house.
But instead of bemoaning the other house, I
think we should put our own house in order.
And I think that's the point that many of us
are trying to make.
And, Senator Larkin, how dare you
criticize me for not serving in the military
when I'm not allowed to serve in the military,
being proud and open about who I am? Don't
question my patriotism. I represented the
World Trade Center. We all lost people in
that terrible, terrible tragedy.
I'm going to vote no on this bill
581
for reasons of policy which have been raised
and for reasons of process which have already
been raised. And I do also have to take
responsibility. It is true that I voted on
this bill last June on the last day of session
that afternoon. And it was one of scores or
bills we voted on that day. And, you know,
maybe I was out of the chamber and maybe I
didn't read the bill thoroughly enough. And
I'm going to take responsibility for that.
You know, I quickly thought, gee, I
voted on this bill in special session, October
of 2001, and I thought that was the only time
we voted on it. But I was wrong. And I
didn't -- I didn't do my job on that one.
And, you know, I'm ashamed of myself because I
said I would never do that here.
ACTING PRESIDENT MEIER: Senator
Duane, the time appointed by the rules to
explain your vote has expired. Would you
state your vote, please.
SENATOR DUANE: Well, with --
ACTING PRESIDENT MEIER: State
your vote, please, Senator.
SENATOR DUANE: With apologies to
582
the opponents of the death penalty, I'm voting
no on this bill.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the negative.
Senator Diaz, to explain his vote.
SENATOR DIAZ: Thank you,
Mr. Chairman. What is the time that I have?
ACTING PRESIDENT MEIER: You have
two minutes, Senator, under the rules.
SENATOR DIAZ: This nation is in
a state of high alert. Mayor Bloomberg, in
the City of New York, ordered the Police
Department to protect the Jewish synagogues.
I'm looking at the news, and I'm seeing the
police, with all kind of weapons, protecting
the Jewish synagogues because they are in
danger of being attacked.
I was not here last year, I was not
here in June when this bill came through, but
I'm here today. And I don't know where I'm
going to be in two years from now. But I know
I'm here today and I know that I served my
country as a volunteer in the Army, and I was
persecuted, even with my uniform. I was
583
abused, discriminated, but also have been
abused and discriminated by people that defend
the civil rights of people in this city, in my
town.
So I understand that they are the
laws, and the rules should be changed so, like
in the City Council in the City of New York,
we could conduct public hearing after public
hearing before it comes to the point. But,
ladies and gentlemen, I hate to see the Jewish
synagogues and those people being protected
the way it is because we have been threatened
by enemies of this country.
Let me tell you something else. On
September 11th I saw something that was
disgusting and it was barbarous. I saw people
laughing and dancing in the street when the
two World Trade Centers were destroyed and
people died. I saw people laughing in other
countries, in other places, because of what
they did to this country.
So ladies and gentlemen, the rules
should be changed, yes, so we could too have
meeting after meeting. But I never -- I have
a month here, one month, and I never heard
584
that before. So let's change the rules.
But today I am not going to do like
Pontius Pilate and wash my hands. I'm voting
yes.
ACTING PRESIDENT MEIER: Senator
Diaz will be recorded in the affirmative.
Senator Marchi, to explain his
vote.
SENATOR MARCHI: Mr. President, I
go back to the genesis of the legislation
that's before us today. It did not stem or
arise on the circumstances of September 11.
Five years before, those who perpetrated the
crime and came in with two planes and crashed
into that tower, they had planned their own
suicide and lived with it for five years and
carried it to perfect execution.
This is the determination that
underscores and underlies the repeated taking
of life, even to this day, in the Middle East.
So that this preceded by a long period, and
there's been further threats that we have been
responding to. I just regret the fact that I
didn't join with this a lot sooner.
I am supporting this legislation.
585
I wish we had supported it and gone on record
earlier, even. But this is the appropriate
time in view of the circumstances that have
their genesis and have been reinforced by
supportive statements by those who don't wish
us well to continue in the future.
I vote aye.
ACTING PRESIDENT MEIER: Senator
Marchi will be recorded in the affirmative.
Senator Schneiderman, to explain
his vote.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
This has been a good debate. I'm
sorry that it has been limited to the last
couple of hours. I think these are critical
issues and they require our full attention and
all of the talent and consultation we can
possibly apply to getting the laws changed and
not just passing bills so that we can berate
the other house as they pass bills and berate
us.
The question I think we have to
address here is are we serious about making
our state safer or are we just posturing.
586
There are things we can do to make our state
safer. And I know that the sponsor of this
legislation is sincere about this. And I
would suggest that in addition to working on
passing legislation to change the laws of our
state, which I look forward to doing with
Senator Balboni and others in this house,
let's address other critical issues.
As we stand here today, we are
faced with a critical public safety emergency.
The subways of the city of New York has been
targeted by terrorists, it's been in the
newspapers. And yet the MTA is about to close
down 177 token booths. Senator Marcellino
said we need more eyes and ears. We're about
to lose the eyes and ears that protect
millions of New Yorkers every day.
There were 60,186 emergency-button
activations by station agents in one year.
That's because of crimes in process, that's
because of emergencies. How, in a time when
the Governor says we're going to cut
everything except budget items related to
public safety, can we, in an effort to save
$20 million a year -- just a small item in
587
terms of the cost of the war on terrorism --
how can we shut down 177 token booths?
And I would suggest that Senator
Balboni go with me, when I have my appointment
for the Governor, to request that we keep the
token booths open -- if anything, we beef up
security in the subways. That's something we
can do this week, and that's something that
will make our state safer.
So let's test ourselves. Are we
posturing, or are we serious about fighting
terrorism and protecting our citizens? And
that is one concrete example I would request
that all the members of this house join with
me in addressing.
I'm going to vote no because of the
due process issues. And I do hope that I will
have a chance to vote yes on a bill,
corrected, that addresses some of these
problems.
ACTING PRESIDENT MEIER: Senator
Schneiderman, your two minutes has expired.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
ACTING PRESIDENT MEIER: You will
588
be recorded in the negative.
Senator Flanagan, to explain his
vote.
SENATOR FLANAGAN: Thank you, Mr.
President.
I can't believe that before I came
to this house people told me there was
actually no debate. It's amazing that people
would make those kinds of assertions about
what goes on in this house.
I just have a couple of things that
I wanted to focus on, and they relate to
Senator Balboni and to Senator Bruno. On
September 13, 2001, many of us were here in
Albany. We had an extraordinary event. We
had a session presided over by the Governor in
the New York State Assembly, we acted swiftly,
we acted certainly, and we acted with clarity
in trying to protect all New Yorkers.
Like everybody else, I'm outraged
by the things that have happened to our state.
And I'm an American citizen, I love this
country, it's the greatest place in the world.
But I was outraged even more because it was
New York. I felt like I didn't care where you
589
were from, Manhattan or Erie County or Suffolk
County, it tore at the heart of New Yorkers.
That's the thing that really drove me crazy.
But when we were there, Senator
Bruno spoke with great clarity in that
extraordinary session. And frankly, I think
he was brilliant in what he said. And today
the message is similar, that you can't live in
freedom if you live in fear.
I believe the call is to do
something now, and I'm going to tell you why I
think we can get it done right now. He's my
pal and he's my friend, and we've served in
both houses, but Mike Balboni is a great
example of why we can accomplish something
right now. All we need is dedication,
commitment, perseverance and
stick-to-ittiveness, if nothing else. Get
people in a room, get things done now.
He's traveled all over the state,
he's been all over the country learning about
issues that are important to all of us. And
the difference is, he's actually doing it. He
can help get this issue resolved. That's
something we should focus on.
590
And I'll tell you, finally, my
constituents, they're not going to give a
tinker's damn about the process. What they're
going to worry about is the results. And I
don't want to find myself or any of us in a
situation where the question becomes why
didn't we do something.
It's been 17 months, ladies and
gentlemen. There have been hearings, there
have been debates, there have been bills. We
should act now.
Thank you.
ACTING PRESIDENT MEIER: Senator
Flanagan will be recorded in the affirmative.
Senator Sabini, to explain his
vote.
SENATOR SABINI: Thank you, Mr.
President.
I'm going to be voting in the
affirmative on this piece of legislation. But
since the debate in the chamber today or the
discussion in the chamber today seemed to
revolve around, at least by some of us, issues
of process, and by others on issues of
questioning motives and why people would bring
591
these questions to the floor on such a
hot-button issue as our security in our state,
let me just echo the point I tried to make
earlier in asking questions of the sponsor.
Which was use the talents of us, make the
process more inclusive so that we can come to
effective and reasonable solutions to our
state's issues.
We're joined today -- my successor
in the City Council, my partner in government
and politics, Helen Sears, is in the chamber.
And I know that she and I have both, as well
as all of us, have had to vote on legislation
very quickly sometimes. But as Senator
Schneiderman points out, this bill is going
nowhere today other than this house.
And I can understand the zeal
people have for wanting to pass this quickly.
But colleagues in the Majority should
understand that when we get a bill at
5 o'clock that some of us would have liked to
have seen a little earlier and perhaps had
some comment on and gone back to our district
attorneys and back to our law enforcement
officials to get a better piece of
592
legislation.
So I would like to be marked in the
affirmative, but please understand that our
comments were made in the spirit of process
and not in an unpatriotic manner.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Sabini will be recorded in the affirmative.
The Secretary will announce the
results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 87 are
Senators Dilán, Duane, Hassell-Thompson,
Montgomery, Parker, Paterson, Schneiderman,
and A. Smith. Ayes, 52. Nays, 8.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time call up Senate 1711.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: Calendar Number
89, by Senator Rath, Senate Print 1711, an act
to amend the Penal Law, in relation to the
593
placement of devices and objects.
SENATOR BRUNO: Is there a
message of necessity at the desk?
ACTING PRESIDENT MEIER: There is
a message at the desk.
SENATOR BRUNO: I would move that
we accept the message.
ACTING PRESIDENT MEIER: All
those in favor of accepting the message
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
message is accepted. The bill is before the
house.
The Secretary will read the last
section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58. Nays,
594
2. Senators Duane and Schneiderman recorded
in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time call up Senate 1712.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: Calendar Number
90, by Senator Rath, Senate Print 1712, an act
to amend the Penal Law, in relation to civil
liability.
SENATOR BRUNO: Is there a
message of necessity at the desk?
ACTING PRESIDENT MEIER: There is
a message.
SENATOR BRUNO: I would move that
we accept the message.
ACTING PRESIDENT MEIER: All
those in favor of accepting the message of
necessity signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
595
(No response.)
ACTING PRESIDENT MEIER: The
message is accepted. The bill is before the
house.
The Secretary will read.
THE SECRETARY: Section 2. This
act shall take effect on the same date as a
chapter of the Laws of 2003.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Bruno.
SENATOR BRUNO: Mr. President,
for those members that may have an interest,
there will not be a meeting of the Local
Government Committee or the Children and
Families Committee, as was originally
intended. Those meetings are going to be put
off until the chairs call them when we return
to session after February 24th.
And, Mr. President, can we at this
596
time take up 1627.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: Calendar Number
88, by Senator Balboni, Senate Print 1627, an
act to amend the Penal Law, in relation to
creating the crime of cyberterrorism.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MEIER: Senator
Balboni, an explanation has been requested.
SENATOR BALBONI: Mr. President,
this bill is a bill that we did last spring.
It changes the New York Penal Law so as to
provide for a new crime. That would be the
crime of cyberterrorism.
Currently in New York state law
there is computer tampering, which involves
the internal manipulation or degradation of a
computer system through the use of a virus, a
worm, a logic bomb, a back door. All of these
technical jargony phrases to people who hack
or people who get involved in computers, they
know about these things. It's a new language
for us, but nonetheless very significant in
its impact on us.
597
As we know, our society has become
more and more involved with computers. And
it's not just about financial arrangements,
it's not just about how we do business. It's
also about our security. Our water
facilities, our water treatment plants, our
electrical facilities are more and more run by
computers.
Well, the cyberterrorism attack
that is specifically pointed to in this bill
is what is known as a denial of service
attack. Basically what happens is a computer
hacker will go and take hundreds of computers,
say in a computer farm, will go and put in a
virus. The virus will then take over those
computers for the purpose of attacking a site,
another site, and they will go into the
Department of Defense, the New York State
corrections system, the New York State Police
Department, a hospital.
And what they'll do is they'll ping
that computer. That is the term, they will
ping it. What they will do is they will ask
for information, they will request
information, and they'll overload the system
598
with requests for information.
This is a denial of service attack.
And in speaking to experts around the country,
this is currently not covered in our law. We
raised the penalties, I believe it's to a C
felony when it's done -- I'm sorry, to a
B felony when it is done in connection with a
terrorist act.
And I believe that this is one of
the first bills of its kind in the nation.
And I know that Washington has been looking at
this. And I think it's something that we
should move on expeditiously.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Onorato.
SENATOR ONORATO: Mr. President,
will the sponsor yield?
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: Yes, Mr.
President, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR ONORATO: Senator
599
Balboni, we passed this bill and I voted for
it, and I intend to vote for it again.
SENATOR BALBONI: Thank you.
SENATOR ONORATO: But we seem to
have a little bit of a problem when we're
talking about computers and cyberspace.
When it's committed outside of the
state of New York, how can we implement the
enforcement of this law when the act occurs
outside the state of New York?
SENATOR BALBONI: Mr. President,
Senator Onorato raises a very good question
about jurisdiction.
There are several cases that have
been considered at the federal level that
actually trace the crimes back to someone who
has perpetrated the crime in Russia.
It is a very difficult enforcement,
but nonetheless we have, through our long-arm
statutes and our long-arm jurisprudence, the
ability to go after people who injure folks
here.
Of course what we would hope for,
there would be a concomitant prosecution both
from the federal and the state justice
600
departments or state prosecutors. But
nonetheless, we can go after people who are
outside of this jurisdiction. It's not easy,
but that's part of what this law intends to
do.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Duane, to explain his vote.
SENATOR DUANE: Thank you, Mr.
President.
I'm voting no on this bill, and
it's really strictly a protest vote on the
process. I am looking forward to having the
ability to vote on legislation, and I may very
well vote in favor of legislation, but that's
after public hearings, after the Assembly has
done its work, we have a conference committee
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and there's an agreed-upon bill.
I believe my constituents expect me
to vote in a responsible manner. I don't
think voting in the affirmative on this bill
today after the -- well, the lack of process
that's happened is appropriate. And I look
forward and I'm hopeful but not optimistic
that I'll have the ability to vote on real,
thoughtful legislation later on in our
session.
Again, I'm voting no, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the negative.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 59. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
(Governor Pataki entered the Senate
chamber.)
ACTING PRESIDENT MEIER: Senator
Bruno.
SENATOR BRUNO: Mr. President,
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there being no further business to come before
the Senate, I would move that we stand
adjourned until February 24th at 3:00 p.m.,
intervening days to be legislative days.
And we welcome the Governor back to
the chamber, former Senator. We're honored to
have him here providing the leadership and
joining us as we adjourn for Presidents' Week.
Thank you, Governor.
(Applause.)
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Monday, February 24th, at 3:00 p.m.
Intervening days will be legislative days.
(Whereupon, at 2:56 p.m., the
Senate adjourned.)