Regular Session - March 3, 2003
701
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 3, 2003
3:07 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we bow our heads in a moment of
silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Sunday, March 2, the Senate met pursuant to
adjournment. The Journal of Saturday,
March 1, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
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Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Seward,
from the Committee on Insurance, reports the
following bills:
Senate Print 1447, by Senator
Seward, an act to amend the Insurance Law and
the Legislative Law;
2037, with amendments, by Senator
Seward, an act to amend the Insurance Law;
2040, by Senator Seward, an act to
amend the Insurance Law;
And Senate Print 2356, by Senator
Seward, an act to amend the Insurance Law.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
objection, the bills are reported direct to
third reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
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SENATOR SKELOS: Madam President,
there's a privileged resolution at the desk by
Senator Brown. Could we have the title read
and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator Brown,
Legislative Resolution Number 558,
memorializing Governor George E. Pataki to
proclaim March 3 through 7, 2003, as Athletic
Training Week in New York State.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial reading
of the calendar.
THE PRESIDENT: The Secretary
will read.
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THE SECRETARY: Calendar Number
58, by Senator LaValle, Senate Print 296A, an
act to amend the Education Law and the General
Municipal Law, in relation to regulation of
conduct.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
July.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 45.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
70, by Senator Balboni, Senate Print 513, an
act to amend the Vehicle and Traffic Law, in
relation to aggravated unlicensed operation.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
79, by Senator Marcellino, Senate Print 775,
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an act to amend the Criminal Procedure Law, in
relation to anonymous juries.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect on the 30th day.
THE PRESIDENT: Senator
Marcellino, to explain your vote.
SENATOR MARCELLINO: Yes, Madam
President. I would like to get up and rise to
explain my vote on this bill.
This is the eighth year that this
bill will have passed this house unanimously,
and it is also the eighth year -- well, I
can't count that. Seven of the last -- the
last seven years we have not had the bill out
on the floor in the other chamber for a vote.
I can't call it a partisan issue;
it certainly isn't. We get bipartisan support
in this house. We simply cannot get it onto
the floor in the other chamber.
This is one of a series of pieces
of legislation we've discussed so far this
year where the other house refuses to come to
the plate with an alternative version if
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they're not happy with the existing form.
We urge the other house, this is a
good bill. We urge the other house to support
this bill. I thank you for allowing me to
speak on this bill. And of course I vote aye.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
91, by Member of the Assembly Weinstein,
Assembly Print Number --
SENATOR SKELOS: Lay it aside for
the day.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
103, by Senator Skelos, Senate Print 1055, an
act to amend the Penal Law, in relation to
concurrent and consecutive terms of
imprisonment.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
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aside.
THE SECRETARY: Calendar Number
112, by Senator Volker, Senate Print 1384, an
act to amend the Criminal Procedure Law, in
relation to proof of the commission of a
previous sexual assault.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
113, by Senator Volker, Senate Print 1433, an
act to amend the Penal Law, in relation to
establishing a three-year period of probation.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Madam President,
if we could then go to the controversial
reading of the calendar.
THE PRESIDENT: The Secretary
will read.
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THE SECRETARY: Calendar Number
70, by Senator Balboni, Senate Print 513, an
act to amend the Vehicle and Traffic Law, in
relation to aggravated unlicensed operation of
a motor vehicle.
SENATOR BALBONI: Does anyone
want an explanation?
SENATOR SCHNEIDERMAN: Well,
since Senator Balboni is obviously eager to do
so, we will be very happy to have a persuasive
explanation.
SENATOR BALBONI: I'm always
ready and willing to provide information to --
THE PRESIDENT: Senator Balboni,
you may continue or proceed, whichever is
appropriate.
SENATOR SCHNEIDERMAN: We request
an explanation of the statewide implications
of the legislation.
SENATOR BALBONI: Madam
President, this is a bill that has passed many
times before. It addresses a situation
actually coming out of New York City.
And unfortunately, all too often we
read newspaper accounts again and again of
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people who are involved in tragic vehicle
accidents where lives are lost and then we
find out that the individual who has committed
the act has had several suspensions or in fact
is driving with a revocation.
And it's an interesting note, I've
tried to actually find out from the Department
of Motor Vehicles whether or not there is
actually a correlation between individuals who
have unlicensed operations or have suspended
licenses and the amount of accidents that they
have. And there is in fact a correlation.
So what this bill essentially does
is it amends paragraph A of subdivision 1 of
Section 511 of the Vehicle and Traffic Law to
establish a presumption that a person who has
in effect three or more suspensions or
revocations imposed on at least three separate
dates knows that his or her license was
suspended or revoked.
This is a common-sense application
of the law. It helps traffic prosecutors in
order to prevent people from driving with
suspended or revoked licenses.
Thank you, Madam President.
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THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the 90th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
The Secretary will read.
THE SECRETARY: Calendar Number
103, by Senator Skelos, Senate Print 1055, an
act to amend the Penal Law, in relation to
concurrent and consecutive terms of
imprisonment.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. If the sponsor would yield.
THE PRESIDENT: Senator Skelos,
will you yield for a question?
SENATOR SKELOS: Yes, Senator
Duane.
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THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Thank you.
I'm wondering if, while we do these
pieces of sexual assault legislation that
aren't part of any kind of omnibus reform, if
it's envisioned that we're going to deal with
the issue of clergy abuse this year as part of
the sexual assault reforms that we're looking
at.
SENATOR SKELOS: Senator Duane,
I'm dealing with this legislation. I note
that it passed 60 to nothing in the year 2000;
59 to 1, with you dissenting, in the year
2001.
This is what -- this legislation
strictly deals with sentencing in first-degree
rape cases.
SENATOR DUANE: Madam President,
on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator Duane.
SENATOR DUANE: Thank you.
I have a major concern that we do
revisions to the state sexual assault laws in
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a piecemeal fashion and that we don't do an
omnibus piece of legislation which takes into
account all of the reforms which various
legislators think are important.
And I have to note that of all of
the bills that have at least so far gone
through committee, none of those bills have
dealt with the issue of abuse of children on
the part of clergy members, whether it be
reporting, whether it be statute of
limitations, among other issues. And I think
that if we are going to change the state's
laws on the issue of sexual abuse and sexual
assault, we should do so in a comprehensive
manner and not legislatively just piece by
piece.
So it's my intention to vote no on
this, even though I believe the merits of this
particular bill are fine. But the way that we
should deal with these issues are in a
comprehensive fashion with an omnibus reform
bill.
So I will be voting no on this bill
in the hope that later on in the session, and
soon in the session, we'll deal with a
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comprehensive sexual assault reform package
and also one that includes the issue, the
terrible issue which New York State is really
lagging in, of abuse on the part of members of
the clergy.
Thank you, Madam President.
THE PRESIDENT: Does any other
Senator wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Senator
DeFrancisco.
SENATOR DeFRANCISCO: I'd just
like to explain my vote.
I read this bill carefully, and I
just want to note for the record that this
bill applies whether the offender is a clergy
member or whether the offender has another
occupation.
And, quite frankly, it's a bill
that applies to everyone. And it's a good
bill. That's why I'm voting yes.
THE PRESIDENT: Senator
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DeFrancisco, you will be recorded as voting in
the affirmative on this bill.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
112, by Senator Volker, Senate Print 1384, an
act to amend the Criminal Procedure Law, in
relation to proof of the commission of a
previous sexual assault.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Volker,
an explanation has been requested.
SENATOR VOLKER: Madam President,
this is a bill that passed almost unanimously
last year, except for 11 people.
(Laughter.)
SENATOR VOLKER: Well, you can't
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have everything. What can I tell you.
Anyways, this -- actually, this is
a bill that we lifted out of a Governor's
program bill that passed here a couple of
years ago. And these are the -- frankly, the
provisions that didn't pass out of that bill.
And it relates really to three
areas. The first area, which I know is the
most controversial, relates to previous or
prior bad acts of person who is charged in a
sexual assault case. And it overrules the
so-called Molineaux case, which says that you
can't bring in prior bad acts.
What this would allow is to show a
train of evidence or to show a -- or, rather,
a train of problems involving sexual assault.
You could bring in not only previous sexual
offenses, but you could bring in previous
arrests. However, the judge, of course, would
have the right to determine whether the
probative value would be outweighed by the
danger of undue prejudice.
Probably the likelihood is that in
many cases the judge would presumably make
that kind of decision. So that the likelihood
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is that you would probably never have anything
but previous convictions allowed by a judge.
The second thing is that this bill
would allow the district attorney to appeal
what he considers unduly lenient sentences,
just as a defendant can do now. And that, by
the way, this applies not only to sex offenses
but to any offense.
And, thirdly, it allows the state,
meaning the district attorney, to apply to
overturn unduly lenient bail determinations.
Which is really something that has been a high
priority for a lot of individuals as well as
district attorneys, because there have been
some instances, some pretty bad instances
involving bail in this state.
Obviously, these three provisions
are controversial. We debated this last year
at some length. I would point out that we
have, in the past, have had some discussion
with the Assembly and continue to have some
discussions with the Assembly.
And I'll be the first to admit to
you the most likely is that if we do a
reversal of the Molineaux rule, it probably
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will be restricted just to previous
convictions. And I'll be perfectly -- frankly
admit that. I think there's little question
that very few judges will allow previous bad
acts to come into evidence except for
convictions.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Madam
President, if the sponsor would yield for a
few brief questions.
THE PRESIDENT: Senator Volker,
will you yield for a question?
SENATOR VOLKER: Yes.
SENATOR SCHNEIDERMAN: Through
you, Madam President. The first section of
this bill refers to the defendant's commission
of another offense. And the specific language
I'm citing provides for the admission of
"evidence of the defendant's commission of
another offense or offenses."
Is the term "commission" defined
anywhere in the Penal Law? I'm not sure what
that defines.
SENATOR VOLKER: Well, the
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commission -- obviously, evidence of a
commission would be either arrests or
convictions.
By the way, this provision, it has
been pointed out to me, could potentially have
some impact on clergy situations. And because
of the fact that the commission of prior acts,
which would mean not just convictions but also
arrests or something of that nature, could
potentially be involved. I only point that
out because it has been pointed out to me.
I'll give you the answer. Because
it's not specifically defined, it could be
determined to be previous arrests.
SENATOR SCHNEIDERMAN: Through
you, Madam President, if the sponsor would
continue to yield.
SENATOR VOLKER: Certainly.
Sure.
THE PRESIDENT: Senator Volker
yields for a question.
You may proceed, Senator.
SENATOR SCHNEIDERMAN: I think,
as a good lawyer does, you try and anticipate
the questions that are coming in advance, and
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you've acknowledged that this bill would allow
a court to admit evidence of an arrest even if
the defendant was acquitted or if the charges
were dropped.
My question here, though, is
evidence of the defendant's commission, it
sounds to me as though it can go far beyond
that. One eyewitness's testimony, or
purported eyewitness's testimony, is evidence
of the commission. Is there anything to
prevent an overenthusiastic court from even
going beyond an arrest, under the language of
this bill, and admitting other evidence of a
defendant's commission of an offense?
SENATOR VOLKER: Well, last
year -- and by the way, I just want to tell
you that you're doing a very good job, as
Senator Dollinger did last year. We debated
this for about an hour last year. I'm not
trying to . . .
That's probably true. But one of
the things I think that we have to understand
is it's almost inconceivable that a judge in
this state would allow the evidence to go
beyond certain limits. And of course since
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the statute talks about the possibility of
undue prejudice, if he allowed that, it
probably would be a flag for an appeal down
the line. I only point that out because I
understand what you're getting to.
I guess maybe I'm bringing up the
fact that in this case we are sort of allowing
some more latitude to judges, which your
conference has been asking for to a great
extent in sentencing.
I think we have a lot of confidence
that judges are not going to go beyond the --
this is not a district attorney making these
decisions, this is a judge.
It seems to me when you're dealing
with sexual assaults, you have to be a little
bit creative here, because these are extremely
dangerous areas. We have found that out not
only in the areas involving women and children
but, frankly, also to a certain extent in the
clergy area, which is a very, very difficult
area.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President, I
wonder if the sponsor could explain in
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practical terms how the appeal of a sentence
as being unduly lenient would work. How would
a prosecutor handle that, and what would the
standards be by which the court would make
such a determination?
SENATOR VOLKER: Oh, unduly
lenient, I'm sorry. Well, I guess the
question would be that the standards would be
whether -- it stands for itself, "unduly
lenient."
I suppose if an appellate judge
said this is obviously not -- and given the
evidence that was presented at the time of the
decision, then the appellate judge would look
at it from the same sort of standard that he
would look at it when a defendant brought an
action or appealed on the basis that it was
unduly severe.
And the same thing would be true on
bail. Which, as you know, you can do. You
can go in and say: "This bail is way too
high, and here's why."
And I think on a sentencing, if a
DA believed that a sentence was unduly
lenient, he would go in and say: "Here's the
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evidence."
Now, we know that no district
attorney has the right to retry a case. So
the DA would have to show very specific
reasons why that sentence would not fit under
the sentencing structure of the case in point.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. On the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR SCHNEIDERMAN: I thank
the sponsor for his responses to my questions.
I do find it really somewhat
remarkable that we're proposing to introduce
into the criminal law of the State of New York
something that is as poorly defined as the
first section of this bill. This would allow,
potentially, the introduction of any sort of
evidence of a defendant's commission of an
offense of sexual assault.
There's no -- nothing limiting it
to a conviction, there's nothing limiting it
to an arrest, there's nothing limiting it to
evidence that was introduced in a prior trial.
And while I do appreciate the
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sudden, newfound respect for the judiciary, I
think the whole basis of this legislation is a
lack of trust of the judiciary. If we're so
confident that judges will exercise discretion
with regards to the application of Section 1
of the bill, then why are we so worried about
the judges being so lenient and so prone to
error in the other sections of the
legislation?
I think that this is really a
remarkable step past anything that has, as far
as I'm aware, has ever been introduced in our
criminal law. It goes beyond the federal case
law that I'm familiar with.
And I do think that the balances
between prosecutors and defendants is very
delicate already. And the notion of
introduction of evidence of a crime -- which
may never have been charged, which someone may
have been acquitted -- of sexual assault has
such a powerful negative impact on many jurors
that we're really playing here with fire.
And I would urge my colleagues to
consider very carefully before voting to make
such a change. I do think that there -- I
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must say that I understand the basis for some
of the other provisions in this legislation.
I think they seem quite reasonable. I do
think, though, that that is not just a smoking
gun, that's a nuclear warhead. And I would
urge my colleagues to vote no on that basis.
Thank you, Madam President.
THE PRESIDENT: Senator Sabini.
SENATOR SABINI: Madam President,
would the sponsor yield for a question?
SENATOR VOLKER: Sure.
Certainly.
SENATOR SABINI: Through you,
Madam President, thank you.
Senator Volker, this is asked out
of -- purely for informational and not for
advocacy purposes, because I've admired from
afar your work on criminal law in this state.
Section 8 of the bill, on the
review of bail, is there any other place in
the Criminal Procedure Law that that's allowed
right now, under current law, for any other
offense?
SENATOR VOLKER: No.
In fact, let me just say to you
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that this provision was in a -- the sexual
assault bill. In all honesty, it probably
didn't belong there. Because this involves
every case. This just doesn't involve sex
cases. This involves any case in the Penal
Law. So it is not limited just to sexual
assault cases, whatever; it is an overall
provision.
And it's one of the reasons, by the
way, why initially we pulled it out of the
other bill, which became law. Of course the
other reason we pulled it out was the Assembly
wouldn't pass it with that in there. But, you
know.
SENATOR SABINI: So, Madam
President, if the sponsor would yield for an
additional question.
THE PRESIDENT: Senator Volker,
will you yield for a question?
SENATOR VOLKER: Certainly.
THE PRESIDENT: You may proceed,
Senator.
SENATOR SABINI: So this
Section 8 of this bill applies to all offenses
under the Criminal Procedure Law?
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SENATOR VOLKER: Yes.
Remember, the defendant now has the
unfettered right to appeal in any instance.
What this bill would do is to give the
prosecution the same ability -- that doesn't
mean that it's going to happen, but give the
prosecution the same ability to appeal as the
defendant himself has. Or herself.
SENATOR SABINI: In all cases, up
to 72 hours?
SENATOR VOLKER: Right.
SENATOR SABINI: Thank you.
Thank you, Madam President.
THE PRESIDENT: Senator Diaz.
SENATOR DIAZ: On the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR DIAZ: Thank you. Madam
President, thank you very much. Madam
President, I am taking this opportunity to
speak on behalf of the bill.
And I think that -- I come from the
Bronx, the Hispanic community. I have seen so
many judges and so many sentences that have
been so lenient to people that have committed
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crimes against our community that this bill
will, will, will give the DAs the opportunity
to appeal those lenient sentences.
So I think that this is a good
bill, and I think that we all should support
this bill. And I will vote for this bill.
THE PRESIDENT: Senator Krueger.
SENATOR KRUEGER: Thank you,
Madam President. If, through you, the sponsor
would yield for a question.
THE PRESIDENT: Senator Volker,
will you yield for a question?
SENATOR VOLKER: Yes.
THE PRESIDENT: You may proceed,
Senator Krueger.
SENATOR KRUEGER: Thank you,
Madam President.
Senator Volker, the Section 3 --
Section 450.30 Criminal Procedure Law
amendment which would grant prosecution the
right to appeal sentences that are unduly
lenient, is there precedent for that anywhere
else in our criminal justice system, that a
prosecutor could actually request an appeal of
a decision by a court if they thought it was
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too lenient?
THE PRESIDENT: Senator Krueger.
SENATOR VOLKER: I'm sorry --
THE PRESIDENT: Excuse me. First
Senator Volker. You were going to respond.
SENATOR VOLKER: -- I was just
inquiring.
The answer is yes, there are a lot
of those, but not in -- well, this applies --
obviously, this is something new in New York.
But the federal system has had that for some
time. And there are a lot of states that have
allowed this over the years. I can't tell you
exactly what they are.
But this is unprecedented for
New York law, yes.
SENATOR KRUEGER: Madam
President, if, through you, the sponsor would
continue to yield.
SENATOR VOLKER: Certainly, yes.
THE PRESIDENT: Senator Volker
does yield. You may proceed, Senator Krueger.
SENATOR KRUEGER: Thank you.
And, Senator Volker, clearly you do
have a long and respected history in criminal
730
law, which I respect. And I have almost no
history in criminal law other than listening
to debates on the floor here for the last
year.
Could I ask you whether you think
there are some risks to changing that
precedent overall in our criminal justice
system? Even though I heard Senator Diaz
speaking of his concern that judges make bad
decisions sometimes, and he sees that, and I
think we could all give examples of that, I
might argue that we should address that
through court reform and through review of how
we make decisions of the judges that we pick,
rather than opening ourselves up to, as you
stated, an unprecedented change in our
criminal justice system.
And so I was wondering from the
bigger picture, not necessarily just for this
bill, how you see this as a precedent.
SENATOR VOLKER: Senator, I
don't -- you know, I don't know if I agree
that court reform -- I think court reform is a
matter of process.
I don't, you know -- I mean, I
731
disagree with judges. And it was the
disagreement with the way certain judges were
handling drug cases back in the '70s -- for
instance, there were studies that were made
that clearly showed, and no one really denied
it, that judges as a whole in New York City
were sentencing drug offenders to about a
third of what upstate judges were sentencing
people to.
There were some judges -- in fact,
there was one judge in his whole career never
sentenced a drug person to jail, and bragged
about it as he left. There was another judge
that bragged about the fact that -- in fact,
he had a name, and I won't get into it. But
he was called "Let 'em out" whatever his name
was. And I know the guy, but I won't mention
his name.
And -- but I think -- yes, that's
right. But, you know, I think the answer is
that there is a lot of sense in having other
judges review decisions made -- and let's
remember, this is not really a jury decision,
this is a judge's decision to sentence and a
judge's decision to give bail. There's a lot
732
of sense to have another judge look at it.
And this is the appellate division, basically,
because the next step in most of these cases
would be the appellate division, just to
review them.
We know, by the way, that usually
what happens, unless there's something really
striking, the appellate division won't take
much time in reviewing it unless there's
something really bad. So the DA probably
won't appeal very many, because it would be
useless to do it.
But in certain cases that appear on
their face to be a problem, I don't exactly
see why the appellate court shouldn't be given
the same privilege or the same decision-making
as a defendant can do with the DA.
That, you know -- the real reason
that this hasn't happened is because the
defendant attorneys -- and I understand it,
they just don't want to be bothered with
anything after that. And they're just afraid
that maybe somebody might find out that
something sticks out, you know, like a sore
thumb. And I understand that, I guess.
733
I guess I just think in this day
and age, when we have such a -- and
especially, I think, in the city. It has
nothing to do with -- the matter of cases are
run through so quickly, sometimes, that it
wouldn't be a bad idea to at least have some
way to take a review of them.
That's -- I mean, I don't think --
do I think a lot of cases will be turned over?
Nah. Do I think a lot of bail will be turned
over? Nope. But every once in a while, there
may be one that appears to be unusually out of
place. And that's what I think we're looking
for.
SENATOR KRUEGER: Madam
President, if, through you, the sponsor would
continue to yield.
THE PRESIDENT: Senator Volker?
SENATOR VOLKER: Sure. Yes.
THE PRESIDENT: Go ahead, Senator
Krueger.
SENATOR KRUEGER: Thank you,
Senator.
So if I understand your answer to
my last question, you would actually support
734
expansion of this precedent to other areas of
criminal justice as well, and not exclusive to
sexual assault law?
SENATOR VOLKER: Well, that's
what this bill is.
SENATOR KRUEGER: This is --
SENATOR VOLKER: This bill goes
to all areas.
SENATOR KRUEGER: It goes to all
areas, not just to --
SENATOR VOLKER: I don't think
it's necessarily -- I think, frankly, I think
the sexual assault area -- my first step, my
preference would be as a first step in sexual
assault cases. Now, I'll be the first to
admit that to you.
What we did here was just pull this
out of the bill that the Governor had
submitted to us, and that's what this bill is.
If I were a betting man -- and I'm not -- but
the likelihood is that when this happens, and
I think it will happen, it probably will
eventually at least start out with sexual
assault rather than be as broad as this
legislation is. I'm being perfectly honest
735
now.
SENATOR KRUEGER: Thank you,
Madam President. Thank you.
THE PRESIDENT: Senator Stavisky
is first.
SENATOR STAVISKY: I yield to my
northern colleague.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. And to my colleague, I
thank you.
Just a couple of questions, if the
Senator will yield.
SENATOR VOLKER: Certainly, I
yield.
SENATOR HASSELL-THOMPSON: Since
this bill does expand itself to include all
kinds of cases, do you believe that if this
bill was passed when the Diallo case was being
tried against the police officers, that this
would change the way in which the judiciary
made the decision about those police officers?
SENATOR VOLKER: Boy, I've got to
be honest with you, I don't know -- I really
736
don't know enough about that, to tell you the
truth. I doubt it would, but then I don't
know.
It's possible, I suppose, that it
potentially could. But in specific cases,
it's very difficult to determine. But I would
tell you that more review always brings up the
possibility that situations could -- could
change on either side, by the way. And so I
suppose it's possible.
SENATOR HASSELL-THOMPSON: The
next question, through you, Madam President,
if the Senator would yield.
THE PRESIDENT: Senator, will you
yield?
SENATOR VOLKER: Yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: During
this -- presuming, then, that the prosecutor
has the right to overturn the appeal process,
what would happen to the possible bail
opportunities for the offender?
SENATOR VOLKER: I don't think it
would have any -- let's understand here, this
737
doesn't overturn the defense possibilities.
The defense remains exactly as it is now -- I
mean, the right to appeal and the right to
appeal bail and so forth.
This just applies to the other
side, gives the prosecution the ability to
also appeal bail, except on the other side,
and say it's too lenient or it's too low and
so forth.
I don't think it would have any
impact at all on the defendant's side, because
a judge right now knows that the defendant can
appeal anyways. And the fact that the DA
could appeal -- in fact, some would say that
some judges might be inclined to in fact
increase the bail, just to see whether the DA
would appeal and try to get it reduced, and
then that judge would be kind of off the hook.
I don't mean to, you know -- but some might
say that.
I think most likely this would only
involve a very few cases. Because no DA in
this state is going to want to appeal a case
that he doesn't really believe stands out.
He's not going to be bothered. You know, in
738
other words, these are busy courts in Erie
County, Rochester, Monroe, New York, all
around, and I don't think that they would even
bother to appeal unless it was something that
really stood out.
And there have been some that I
think have kind of stood out occasionally.
We've had a few cases where bail was posted at
a low number, the person went out and then
committed crimes, and then they came back in
and of course raised the bail dramatically
because of what happened while the person was
out on bail. I mean, that you can do now.
What this would say basically is
that you wouldn't need a crime or something
else to force somebody to come in and change
the bail.
SENATOR HASSELL-THOMPSON: Thank
you, Senator.
Just quickly on the bill, through
you, Madam President.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR HASSELL-THOMPSON: I too,
like Senator Krueger, if this were more
739
strictly related to sexual offenses, I think
that I could wholeheartedly support this bill.
But I think that it is not -- it is
not my sense that I sit here to make the job
of the prosecutor easier. I think that part
of what we need to experience is that
prosecutors really need to do a better job in
terms of how they try cases and the way they
do their investigations.
So that I will be voting no on this
bill. But I do thank Senator Volker for his
continued raising of the issue, particularly
as it pertains to sexual assaults.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: Thank you.
I too join the Dale Volker fan
club. We respect your long tradition both in
law enforcement and in law making.
But I do have one question about
the bill, Madam President, if the Senator
would yield for a question.
SENATOR VOLKER: I will yield,
yes.
SENATOR STAVISKY: If you take a
look at lines 4 and 5 on page 1, it talks
740
about evidence of the defendant's commission
of another offense. And you use the word
"commission" and not "conviction." Can you
explain the distinction between "commission"
and "conviction"?
SENATOR VOLKER: That's very
astute. It really is. And using the word
"commission" really means -- and very bluntly,
it means that it is more than just a
conviction. It could be, obviously, an
arrest. And evidence -- and by the way,
that's why we later on say that the judge has
the right not to do that, because it might
have undue influence, undue prejudice on the
defendant.
But you are right, "commission"
means more than a conviction. And that is, it
could be an arrest.
As I said to Senator Dollinger and,
recently, Senator Schneiderman, this is an
issue -- "commission" is a word that means
what it says. And that is that "commission"
means that anything that would indicate that
this person was involved in previous sexual
assaults that could help indicate that this
741
person is a predator or is an offender.
And it would be the judge's
decision to say whether it's something that
should be included in the trial or in the
evidence or should not. And my guess is,
frankly, that other than convictions, most
judges will probably not allow that in unless
there's some specific reason why he would
allow it in. Or he or she would allow it in.
SENATOR STAVISKY: One last
question.
THE PRESIDENT: Senator Volker,
will you yield?
SENATOR VOLKER: I yield.
THE PRESIDENT: You may proceed,
Senator Stavisky.
SENATOR STAVISKY: In other
words, the word "commission" could also
include acquittal?
SENATOR VOLKER: Yeah, it could.
But I got to tell you, the chances of that are
virtually nil. And the reason is because it
would involve an arrest.
But I think probably any judge that
would allow -- one thing is the defendant, of
742
course, would come right back and say -- his
attorney would say: Yeah, but it was an
acquittal. He was not convicted, he was
not -- and I doubt very much that any DA would
want to put into evidence something where
somebody was actually acquitted. I don't
think it would go over very well with the
jury.
But that would be a decision I
think the judge -- that is, I personally
wouldn't. I mean, if I'm -- it seems to me if
I'm the prosecutor and you say this fellow has
no convictions or whatever, but he had an
acquittal, it's not exactly good evidence.
SENATOR STAVISKY: Thank you.
On the bill very briefly.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR STAVISKY: That's the
reason why I'm going to vote against this,
measure.
You know, we feel sort of guilty
because all of us are troubled by this whole
area of sexual assault. And yet there is the
possibility that somebody has been acquitted,
743
is innocent, was framed or whatever.
And, Madam President, I plan to
vote no.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President, just on the bill.
I find it somewhat troubling that
we are debating legislation which would
essentially go further and establish a
precedent to reduce the authority of the judge
to make decisions on bail and sentencing, but
when we have before us, before our state a
major issue regarding court reform, which I
think is much broader and is extremely
important. And unfortunately, it's one that
we're not discussing.
I have in my district one of three
community justice centers I believe in
New York City -- one of them in Manhattan, one
in the Bronx, and one in my district,
fortunately. I'm very fortunate to have it.
It's a court that is in the community. The
judge is also part of the community. The
district attorney is there. There are 14
744
agencies in the building. The judge has a lot
of leeway in sentencing.
And the judge works with the
district attorney, with the local police
department, with the community. Sentencing is
relevant. And also, there is alternative
sentencing and so forth and so on.
It makes a lot of sense. It makes
a huge difference. And the judge does know
who and how much and to what extent sentencing
and bail occurs, because he knows people from
not just coming before him one time, but
because very often people come back to that
Judge many times because the sentencing
requires them to reappear.
The drug court that we have works
very well. Domestic violence court works very
well. The -- there is a youth court within
the community justice court.
We certainly understand very, very
specifically, it's very reasonable that we
should be looking at elevating the Family
Court to the Supreme Court so that one case
can be dealt with or one family can be dealt
with, all of the issues in one case can be
745
within one court.
Why aren't we doing that? I don't
understand why we don't discuss and why we
don't have a bill from Senator Volker, Senator
Seward, somebody -- why don't we have a bill
this talks about court reform, and why aren't
we looking at supporting what really works,
what gives the maximum authority to the judge
but creates a relationship with the judge and
the DA and the whole process so that it
doesn't break down, as Senator Volker is
trying to fix here?
So, Madam President, I'm going to
vote no for reasons that obviously I don't --
I would not wish to see the district attorney
have the right to appeal a judge's decision on
bail and sentencing. But also, I'm very
disappointed that we have not risen to the
need and the responsibility to talk about
court reform, which is the major question in
our state. I think if we did that, if we had
legislation that did that, it would clarify
and fix a lot of the issues that we try to fix
piecemeal and create more problems than we
actually resolve.
746
So I'm voting no on this bill as
well.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 11. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 112 are
Senators Breslin, Dilán, Duane,
Hassell-Thompson, L. Krueger, Montgomery,
Paterson, Schneiderman, A. Smith, and
Stavisky. Ayes, 50. Nays, 10.
THE PRESIDENT: The bill is
passed.
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Yes,
thank you, Madam President. I rise to request
unanimous consent to be recorded in the
negative on Calendar Number 70, Senate Print
513.
THE PRESIDENT: You will be so
747
recorded, without hearing any objection, as
voting in the negative on that bill.
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I was attending the Finance
Committee hearings last week, and a vote in
this house, Calendar -- it's Senate Bill 851.
Had I been in the chamber at the time that it
was voted on, I would have voted no.
THE PRESIDENT: The record will
so note, Senator Montgomery.
SENATOR MONTGOMERY: Thank you.
THE PRESIDENT: Senator Parker.
SENATOR PARKER: Yes, Madam
President. I rise to request unanimous
consent to be recorded in the negative on
Calendar 112, Senate Print 1384.
THE PRESIDENT: You will be so
recorded, Senator Parker, as voting in the
negative on that bill.
Senator Andrews.
SENATOR ANDREWS: Madam
President, I rise to be recorded in the
negative -- request unanimous consent to be
recorded in the negative on Calendar 112,
748
Bill 1384.
THE PRESIDENT: Hearing no
objection, you will be so recorded as voting
in the negative, Senator.
The Secretary will read.
THE SECRETARY: Calendar Number
113, by Senator Volker, Senate Print 1433, an
act to amend the Penal Law, in relation to
establishing a three-year period of probation.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President, on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR DUANE: Thank you, Madam
President.
And this is in part for the
edification of the main perpetrator against me
of the throw a comment and then leave the
chamber, shockingly. The perp is still in the
chamber.
I never said that either Calendar
Number 103 and I'm not saying about Calendar
Number 113 that they would not apply to
priests. So hopefully in the future, before
749
someone hurls something across the chamber
they'll actually listen to what I'm saying.
However, I do think that this is a
very clumsy way to deal with the issue of
reforming our sexual assault legislation. It
should be done in a comprehensive fashion.
THE PRESIDENT: Senator Skelos.
Excuse me, Senator Duane.
SENATOR SKELOS: Madam President,
could I make a point of order.
I'm not exactly sure what Senator
Duane is doing at this point. We're on the
controversial reading of the calendar. We've
completed one bill, and we're about to start
another piece of legislation. So --
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Madam
President, I believe Senator Duane is speaking
on the bill.
SENATOR DUANE: Yes, Madam
President.
THE PRESIDENT: And you were
recognized in order to speak on the bill. You
may proceed. And please keep it germane,
750
Senator Duane, as I'm confident you will.
Speak on the bill.
SENATOR DUANE: Thank you, Madam
President. My middle name is actually
germane.
Anyway, I also think that we need
in this session to deal with the issue of
clergy abuse, particularly around the issues
of statute of limitations and reporting.
So again, the reason I'm voting no
on this is not because priests are not
included in this -- I understand that they
are, as they were in the previous piece of
legislation during today's session -- but
because I believe that we need to both look at
the issue of sexual assault comprehensively
and not in a piecemeal fashion, and that we
also, sooner rather than later, need to deal
with the issue of clergy abuse.
And I'll be voting no on this
because it is piecemeal and not comprehensive.
Thank you, Madam President.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
751
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes the
reading of the controversial calendar.
SENATOR SKELOS: Is there any
housekeeping at the desk, Madam President?
THE PRESIDENT: No, there isn't,
Senator Skelos.
SENATOR SKELOS: Madam President,
on behalf of Senator Bruno, I hand up the
following Majority committee assignment
changes and ask that they be filed in the
Journal.
THE PRESIDENT: The notice will
be filed in the Journal. It has been
received.
Senator Skelos.
752
SENATOR SKELOS: Madam President,
there being no further business to come before
the Senate, I move we stand adjourned until
Tuesday, March 4th, at 3:00 p.m.
THE PRESIDENT: On motion, the
Senate stands adjourned until Tuesday,
March 4th, 3:00 p.m.
(Whereupon, at 4:00 p.m., the
Senate adjourned.)