Regular Session - March 17, 2003
1034
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 17, 2003
3:14 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
stand 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 each 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,
Saturday, March 15, the Senate met pursuant to
adjournment. The Journal of Friday, March 14,
was read and approved. On motion, Senate
adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Senator Skelos.
SENATOR SKELOS: Madam President,
1036
there will be an immediate meeting of the
Children and Families Committee in the
Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Children and Families
Committee in the Majority Conference Room.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Seward.
SENATOR SEWARD: Yes, Madam
President. On page 13, I offer the following
amendments to Calendar Number 129, Senate
Print Number 1447, and ask that the said bill
retain its place on the Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, Senator, and the bill will
retain its place on the Third Reading
Calendar.
1037
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution at the desk by
Senators Bonacic, Kruger, and Balboni. Could
we have it read in its entirety and move for
its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senators
Bonacic, C. Kruger, and Balboni, Legislative
Resolution Number 780, paying tribute to the
life and selfless heroism of Staff Sergeant
Brian Pavlich of Port Jervis, New York.
"WHEREAS, It is with a heavy heart
that this Legislative Body pays tribute to
Staff Sergeant Brian Pavlich of Port Jervis,
New York, and the ten other members of the
United States Army 10th Mountain Division who
lost their lives in the Black Hawk tragedy at
Fort Drum on March 11, 2003; and
"WHEREAS, This Legislative Body
extends its deepest sympathy to the families
of each of these brave Americans -- Staff
Sergeant Brian Pavlich; Sergeant John L.
Eichenlaub, Jr.; Sergeant Joshua M. Harapko;
1038
Private First Class Shawn A. Mayerscik;
Private First Class Andrew D. Stevens; Private
First Class Stryder O. Stoutenburg; Private
First Class Tommy C. Young; Captain
Christopher E. Britton; Chief Warrant Officer
Kenneth L. Miller; Specialist Barry M.
Stephens; and Specialist Lucas V. Tripp; and
"WHEREAS, This Legislative Body
would also like to extend its heartfelt
thoughts and prayers to the families of
Specialist Dmitri Petrov and Specialist Edwin
A. Mejia, as they cope with their injuries and
grieve for their fallen comrades; and
"WHEREAS, No one can fully
understand a tragedy such as this, but only
know that prayers help us through the day and
help us endure the night; there are prayers of
friends and strangers that give us all
strength, and there are prayers that yield our
will to a will greater than our own; and
"WHEREAS, Staff Sergeant Brian
Pavlich grew up in Port Jervis, New York,
where he was a Boy Scout and a member of the
volunteer fire department; he attended Port
Jervis High School and played football for the
1039
Red Raiders under the lights at Glennette
Field; and
"WHEREAS, The son of a soldier and
grandson of a soldier, Staff Sergeant Brian
Pavlich signed up for the United States Army
as soon as he received his high school
diploma; he saw combat in Kosovo and was part
of Operation Anaconda in the mountains of
Afghanistan; and
"WHEREAS, An exemplary soldier,
Staff Sergeant Brian Pavlich received the
Expert Infantryman Badge, one of the United
States Army's highest non-combat awards; and
"WHEREAS, Staff Sergeant Brian
Pavlich is survived by his wife, Heather;
parents, Edward, Sr., and May; sister,
Elizabeth; and brother, Edward, Jr.; and
"WHEREAS, It is the sense of this
Legislative Body to convey its grateful
appreciation and heartfelt regret in
recognition of the loss of these courageous
individuals who dedicated their purposeful
lives and careers to serve their country in
the United States Army; now, therefore, be it
"RESOLVED, That this Legislative
1040
Body pause in its deliberations to pay tribute
to the life and selfless heroism of Staff
Sergeant Brian Pavlich of Port Jervis,
New York, and be it further
"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to the family of Staff Sergeant Brian
Pavlich."
THE PRESIDENT: Senator Bonacic.
SENATOR BONACIC: Thank you,
Madam President. On the resolution.
It's with a heavy heart of sorrow
that I stand today to talk about this
resolution and Brian Pavlich. Brian was from
the city of Port Jervis.
And we -- since I've been in public
service in Albany, I have seen three fallen
heroes from the city of Port Jervis: 1990,
Anthony Aversa, BCI investigator killed in a
bad drug bust; September 11, 2001, Doug
Miller, firefighter, who was lost in the
terrorist attack; and now, on March 11th of
this year, 13 soldiers went down on the Black
Hawk helicopter accident. Eleven died, two
survived. The only one that died from the
1041
state of New York was a son of Port Jervis,
Brian Pavlich.
He was a 20-year-old man, had a
wife that was his sweetheart. He came from a
family of soldiers. His love of country was
his family creed. From the time he could
talk, Brian Pavlich held tight to his father's
and his grandfather's shirttails, both of whom
were soldiers who fought in places like
Normandy, Omaha Beach, and Vietnam. He was
dedicated to his family. He was dedicated to
being a soldier.
After joining the Army, he wanted
to fly choppers just like the Black Hawk. And
when he passed away, his young wife said he
died an honorable and respectful death doing
what he loved to do.
This New York State Senate extends
our deepest condolences, not only to the
Pavlich family but to all of the families of
the other 10 soldiers who lost their lives
serving our country.
He died protecting our freedoms,
our country, and our community. He will
always be remembered as one of our nation's
1042
fallen heroes.
Thank you, Madam President.
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: Madam
President, patriotism is a thing often spoken
of but seldom exercised. But there's no
greater demonstration of that patriotism than
to put on one's country's uniform, to go and
leave your family, to travel far away and put
yourself in harm's way.
The soldiers killed and injured
last week personified that patriotism. I bet
if you'd asked them if they were patriots or
heroes, they would have said: No, we're just
doing our job.
But we know differently. All of us
know that because they and their fellow
soldiers do their jobs, we're able to live in
freedom.
Last week the face of the
deployment was shown to me when I went to
speak to the deployment of 150 Marines in
Albany. And there was family there. And
there were the fathers with their families all
around them, the kids running around, and the
1043
wives crying, uncertain about the future, both
physically, emotionally, and also about their
financial security.
And I spoke to one of the colonels
there, and we talked about this incident, and
he said: "We train hard." And what people
don't always recognize is training hard is
dangerous. We don't always appreciate that.
Many people will argue about the
best way to protect democracy. And I don't
have an answer, but I know this one thing for
sure. Democracy can only continue to flourish
if men and women like those on that helicopter
continue to take up the call of duty.
May they rest in peace.
THE PRESIDENT: Senator Wright.
SENATOR WRIGHT: Thank you, Madam
President.
I too rise to join my colleagues in
recognizing our fallen heroes. As the
representative of the community that is host
to Fort Drum, I was given the honor of joining
the Governor and the Congressional delegation
at the memorial service last Friday to
recognize these individuals and to help share
1044
in the grief with their families.
And I can tell you without
reservation that it is probably one of the
most difficult tasks that I've had in ten
years in this position. It was a circumstance
that you are impressed by their dedication and
their commitment and their honor. You are
also taken aback by their youth, their young
families, their children.
It is a very serious business to
serve in the military of one's country. And
many of these young men return from
Afghanistan, return from having successfully
engaged in combat, to return unharmed, only to
sacrifice and make the ultimate sacrifice for
this nation while in what is considered a
routine training exercise.
The routine business of defending
this country is a very serious business. It
is a very dangerous business for the young men
and women who wear our uniform. And we are
living in very serious times. And while we
are here today, as we were there Friday to
hear their commanders speak of them in the
most eloquent of terms, to hear their
1045
colleagues and their families share their
remorse and their loss, and to some minimal
attempt we to share our sympathy with their
loss.
But more importantly, when the day
is done, there is not a family member there,
nor was there anyone that was in attendance
that wouldn't recognize those 11 individuals
and the two who have survived as true heroes,
recognize their dedication and commitment to
this country and without question recognize
that they would do it all over again given the
choices that they'd faced.
We can be proud as a nation that
that's the caliber of young men and young
women who have chosen to represent our nation.
Our recognition here today is but a small
tribute to what I hope we all do on a regular
basis as we go forward and face the challenges
that we are facing in the near future, to
respect and recognize these young men and
women and pray for their safe return. May God
bless.
Thank you.
THE PRESIDENT: The question is
1046
on the resolution.
Senator Paterson.
SENATOR PATERSON: I'm sorry,
Madam President. If -- before we take the
resolution up, if I might add a thought.
THE PRESIDENT: Please proceed.
SENATOR PATERSON: I want to join
Senator Wright and Senator Bonacic and Senator
Balboni and the feelings of everyone in this
chamber, spoken or unspoken, of our support
for our armed forces overseas and our
particular grief at the death of 11 of them in
the tragic accident last week.
Sometimes differing on policy and
differing on procedure might lead those to
feel that there isn't equal and overwhelming
sentiment of respect, concern, and, in the
end, love for Americans who volunteered for
service to our country in the military and
then perished in that service. There's
nothing so noble or nothing so great.
And I'm always inspired and I'm
always moved by the words of Senator Balboni
when he said that probably if you asked them
did they know they were heroes, did they know
1047
how they moved the rest of us, they would say:
We're just doing our jobs.
And well aware that Senator Balboni
is an admirer of Shakespeare, it made me think
of the Shakespearean admonishment in Sonnet
94: "The summer's flower is to the summer
sweet, but to itself it only live and die."
I think that's emblematic of what
those young men and women tried to give to
this country, 11 of them perishing last week
in a terrible accident. We can recognize them
at this moment in time, but their families
have lost them for every moment in time in the
future.
We pray for their families, we wish
their families our best, and we could only
state and restate our heartfelt grief over
their loss but our continuing adulation for
their service to our country and to the
example that they've set for all of us about
what they were able to give for what they
believed in and for our cause.
THE PRESIDENT: Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
1048
I want to commend my colleagues on
their very moving eloquence on this tragedy,
and only add one addendum, that these young
men were part of one of the most renowned and
wonderful 10th Mountain Division, which is
serving in Fort Drum. Tenth Mountain Division
has been at the forefront of almost everything
that this nation has been involved in as far
as protecting our security, whether it be in
Afghanistan, Kosovo, or in World War II.
And the 10th Mountain Division has
been stationed at Fort Drum and has been very
much a part of our defense, and certainly
these young men. It's a tragedy that this
happened to a group of young men that have
really served our country so well. May God
rest them.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
Senator Bonacic would like to put every member
on the resolution. If any member does not
wish to sponsor it, they should notify the
desk.
And perhaps it would be appropriate
if we adopt the resolution by the senators
1049
standing in a moment of silence.
THE PRESIDENT: Any member who
does not wish to be a cosponsor of this
resolution, please notify the desk.
We'll observe a moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: The question is
now on the resolution. All in favor please
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,
I believe there's a substitution at the desk.
If we could make it at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 4,
Senator Morahan moves to discharge, from the
Committee on Elections, Assembly Bill Number
390 and substitute it for the identical Senate
1050
Bill Number 1320, First Report Calendar 207.
THE PRESIDENT: The substitution
is ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial reading
of the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
75, by Senator Volker, Senate Print 664, an
act to amend the Penal Law and the Vehicle and
Traffic Law, in relation to endangering the
welfare of a child.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
80, by Senator Padavan, Senate Print 845, an
act to amend the Criminal Procedure Law, in
relation to the defense of guilty but mentally
ill.
SENATOR PATERSON: Lay that
aside.
SENATOR PADAVAN: Madam
1051
President.
THE PRESIDENT: The bill is laid
aside.
Senator Padavan.
SENATOR PADAVAN: Madam
President, would you place a sponsor's star on
that bill, please.
THE PRESIDENT: The bill will be
starred, Senator.
THE SECRETARY: Calendar Number
95, by Senator DeFrancisco, Senate Print 1485,
an act to amend the Surrogate's Court
Procedure Act, in relation to computation.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
151, by Senator LaValle --
1052
SENATOR SKELOS: Lay it aside for
the day.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
154, by Senator Kuhl, Senate Print 1429, an
act to amend the Vehicle and Traffic Law, in
relation to exempting any child under the age
of 14 years.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
167, by Senator Meier, Senate Print 1821, an
act to amend the Social Services Law, in
relation to reimbursement.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
January.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
THE PRESIDENT: The bill is
1053
passed.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Madam President,
if we could go to the controversial calendar,
starting with Calendar 154, by Senator Kuhl.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
154, by Senator Kuhl, Senate Print 1429, an
act to amend the Vehicle and Traffic Law, in
relation to exempting any child under the age
of 14 years.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Kuhl, an
explanation has been requested.
SENATOR KUHL: Thank you, Madam
President.
This is a proposal that's been
debated on the floor of this house in years
past. To date, we've not had recognition of
the problem that exists in the community out
in my Senate district. And that is, several
years ago we passed a requirement that young
1054
people who ride bicycles actually wear a
helmet. We mandated it.
In one particular community, a
religious community known as the Mennonite
community in my area, and most notably in
Yates County, in the Penn Yan area, part of --
one of the religious tenets that's held by
these people is that they wear wide-brimmed
black hats or full-fledged bonnets.
And so what we have done is made
criminals out of these people by forcing them
to be put in a position where they discard
their religious tenets and actually wear a
helmet.
The modern means of transportation
for most of these people is by bicycle. And
so I don't think that that's -- there's an
overwhelming safety concern. We've never had
any reported accidents that resulted in death
or serious injury to these people.
And so this bill would essentially
allow them, under these circumstances, not to
have to wear a helmet.
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: Yes, Madam
1055
President, through you, I would like to speak
on the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR LACHMAN: This bill, as
we know, as Senator Kuhl has said, has come
before us several times. I look upon it as a
very important bill, not just because it's in
aid of the Mennonite community in Senator
Kuhl's district, but also the implications
that this bill has.
Many people have said that the most
important -- one of the most important things
that the American democracy has produced is
the First Amendment to the Constitution. And
the First Amendment to the Constitution says
two things: One, there shall be no
establishment of religion, and, two, that no
one should prevent the free exercise of
religion from taking place.
Now, exactly 30 years ago, in 1973,
the Amish population in Wisconsin was very
upset and very concerned that their children
were being forced to attend public school
after the eighth grade. It was in opposition
1056
to their religious beliefs. And yet it was
part of state law.
And this is an example where
religion and religious beliefs and religious
principles come into conflict with laws of a
state. And the State of Wisconsin ruled that
an exception should be made to the Amish
population of Wisconsin, that they did not
have to attend any type of schooling, whether
public or private, after the eighth grade.
Now, this was 30 years ago, and
it's as important today as it was then. And
not only is it important for the Amish, but
it's important for all groups. The First
Amendment has brought to American life a
virtual greenhouse of religious growth.
I mean groups such as the Mormons,
the Christian Scientists, the Disciples of
Christ are rooted in American soil and came
from America. And small groups like Baptists
and Methodists, who came from Britain,
flourished in the American environment.
And they flourished because of the
great respect that Americans have had for
freedom of religion and that no one should
1057
interfere with the free exercise of religion.
I am proud to stand alongside of
Senator Kuhl on this bill -- I'm not even sure
the Mennonites in his district vote. Oh, they
don't vote -- because it's an issue of
religious principle, which to me is one of the
great things that this country stands for.
Thank you kindly.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. Just briefly on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR MONTGOMERY: Yes. I have
voted no in the past on this legislation. And
the reason being, for me, is that I don't see
this in any way associated with whether or not
any group is able to freely worship.
And this has nothing to do with
respect for religion or any of that. I just
see this as being a bill which seeks to exempt
a certain group of children from the
requirement that children wear helmets when
they are riding their bicycles or any other
1058
such vehicle.
So I vote no because I think that
whatever laws we enact to protect the
interests of children are just specifically
for their protection, and we should not exempt
them simply because the adults who are
responsible for them do not want them to be
covered by the laws to protect them. So I am
going to continue to oppose this legislation.
And I certainly hope that Senator
Kuhl will understand the importance of the
protection of children, one. And, two, that
there are many other groups who wear
headgear -- some of them are represented by
me -- and they certainly do vote, for certain.
But I still believe that every
child deserves to be protected by the laws of
our state. So I'm voting no again.
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 immediately.
THE PRESIDENT: Call the roll.
1059
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 154 are
Senators Libous, Montgomery, A. Smith, and
Stachowski. Ayes, 55. Nays, 4.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
75, by Senator Volker, Senate Print 664, an
act to amend the Penal Law and the Vehicle and
Traffic Law, in relation to endangering the
welfare of a child.
SENATOR VOLKER: Madam President.
THE PRESIDENT: Senator Volker.
SENATOR VOLKER: This bill, which
has been around for a couple of years --
THE PRESIDENT: Is there an
explanation requested?
SENATOR VOLKER: Yes, Senator
Paterson requested it. You probably didn't
hear him. I heard him.
(Laughter.)
THE PRESIDENT: No, I didn't, his
meek voice.
Thank you, Senator Paterson.
1060
You may proceed, Senator Volker.
SENATOR VOLKER: He whispered to
me.
(Laughter.)
SENATOR VOLKER: This bill
actually has a history that goes back to the
time when the Assembly and the Senate were
attempting to come to an agreement on a series
of bills relating to child endangerment.
At that time we were -- we thought
we were well on our way to come, and we did
come, to an agreement. Although the Assembly,
frankly, did not want to move on as strongly
as we did in doing bills that would waive the
statute of limitations and would allow crimes
against young people to be prosecuted on a
more general basis.
There's been some stuff in the
paper lately about the fact that we were the
ones that had backed away, when in reality it
was the Assembly that had really backed away
because they did not want to go as far as the
Senate was willing to do in protecting
children, very honestly.
This bill is a bill that relates to
1061
the issue of endangering the welfare of a
child. It would create a new offense of
endangering the welfare of a child in the
first degree.
We have already had on the books
for some time endangering the welfare of a
child in the second degree, which is merely a
Class A misdemeanor. And a person is guilty
of that offense when he or she knowingly acts
in a manner likely to be injurious to the
physical, mental, or moral welfare of a child
less than 17 years old. And there's some
basis in the law for issues involving
neglected children and persons in need of
supervision.
The problem with that statute is
that it's only a Class A misdemeanor, and it's
become somewhat of catchall for all sorts of
acts by parents and guardians and so forth.
And in fact, at the time we did a
study that showed that there were 7,000
arrests in relation to endangering the welfare
of a minor here many years ago. The problem
was almost no one got convicted. Virtually
all the cases ended up in probation and were
1062
either for that or dismissed, and other
charges were allowed to be furthered against
the parents or whoever the endangering the
welfare of the child was involved.
This bill says that if you have
previously been convicted of endangering the
welfare of a child or if a person -- let me
read the statute here -- if a person has been
previously convicted or when he or she
knowingly acts in a manner which creates a
substantial risk of serious physical injury or
prolonged impairment of the mental or
emotional condition of a child less than
17 years old, the charge would be a Class D
felony.
Now remember, this is a -- what
this would create is a charge. That would not
necessarily mean that that would be the final
conviction. Because what will probably happen
here is many of these cases will end up being
reduced back to a misdemeanor. Which will
mean, very honestly, that at least you'll have
something substantial in these cases.
But one thing I would remind
everybody, that a Class D felony is punishable
1063
by up to seven years in prison. And the real
reason for this statute is to give, in
particularly egregious cases -- remember,
these are children under 17 years of age --
mostly by parents or persons in supervision,
who one way or another in effect abuse these
children, short of the actual physical abuse,
but where they have been harassed or to a
point where there could be serious
implications for their physical and mental
health.
And that's really what this is. In
multiple offenses, it could be a D felony. Or
in very serious offenses involving the health
and welfare of a child under 17, you could be
charged with a D felony.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, first I want to commend Senator
Volker. I see Senator Padavan saw I was
around today, put a star on his bill, and ran
out of the chamber. Hopefully he'll come back
sometime.
But Senator Volker is here. I
wonder if he'd yield for a question.
1064
SENATOR VOLKER: Certainly. Yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR PATERSON: These
situations, which is sort of a new theory of
law where we're taking what would be an A
misdemeanor charge and we're upgrading it to a
D felony based on what could be identical
circumstances, but a presumption based on a
previous conviction -- similar to legislation
calling for predicate misdemeanor cases to be
regarded as felonies.
In this particular situation, if
that's what we're actually doing, why would we
choose the D felony, which is the second class
up, rather than the E felony?
SENATOR VOLKER: Senator, I think
the reason is because the attempt is being
made here to point up the seriousness of these
kinds of offenses.
And rather than go to an E felony,
which is the lowest-grade felony -- because in
certain cases, these could be very serious
matters. And therefore, a D felony would be
available for parents or guardians or whoever
1065
it is who would commit these sort of offenses,
not only for a second time but also where
there is evidence of serious physical or
mental pressure or whatever.
As you and I know, this would take
considerable proof to allow this to happen.
I'm the first one to say that. Because judges
look at this and juries look at this very
strictly when you're dealing with these kinds
of offenses.
But remember, we are dealing here
with children under the age of 17. And it
could be, obviously, children who are much
younger. That's -- we say under 17, but it
could be children who are 13, 14, 15,
whatever.
And -- but I think what the attempt
is being made here is to make this clearly the
potential for a serious offense here in
certain cases that, frankly, have not been
treated by the courts or, I must say, by the
system in as serious a vein as they should be
treated.
THE PRESIDENT: Senator
Montgomery.
1066
SENATOR MONTGOMERY: Yes, Madam
President. I would just like to ask a
question of clarification.
SENATOR VOLKER: Sure.
THE PRESIDENT: Senator Volker
yields.
You may proceed, Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Senator
Volker, I like the section of the bill where
you specifically talk about a person who's
been previously convicted of a serious
offense.
I'm just -- in the second part,
where you say "he or she knowingly acts in a
manner which creates a substantial risk of
serious physical injury or prolonged
impairment of the mental or emotional
condition," I'm just wondering, that seems to
be a rather subjective characterization,
substantial risk of serious physical injury
and prolonged impairment.
I'm not sure that that really is
specific enough so that any number of
possibilities could be defined based on this
1067
law.
SENATOR VOLKER: Remember,
Senator, let me just say back in, I think,
'97, '98, we debated over that a great deal.
And the problem was the more we tried to
specify, the more we ended up in saying that
we had to have a broad enough standard that
would take in -- let me give you an example.
Someone puts a child or locks them
up in a room for like two weeks, or something
of that nature. Clearly, that would fall into
a situation where the physical and emotional
well-being of that child would be potentially
impaired, where the parents just for no reason
other than whatever it is.
And there's a series of -- we
looked, in fact, at a series of situations
that occurred. And when you think of that
situation I just told you, all they could
really find to charge a person in those cases
was a Class A misdemeanor.
And we looked at other things, and
we said: Well, what else would you charge
them with? Neglect, I suppose. But then all
that would happen to that person would be the
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person might have the child taken away from
them. But if the child was 17, probably not,
or 17 or under, because they were old enough
that very possibly the court would say: Well,
we're going to monitor you, or whatever.
But because there were certain
areas that appear to be so serious that they
deserve a higher penalty and a threat to make
sure that people don't, for instance, commit
these situations again, that's why we came up
with this language which in the law would
require, I think, some unusual proof.
So that a lawyer, I think, would
tell you that not too many cases would
probably fall under this unless you had some
pretty stiff evidence that the child was
really severely potentially impaired, short of
physical abuse, short of regular physical
abuse, or in the case -- in certain cases
where people harass kids and so forth, so that
kind of mental abuse, unless it's on a very
prolonged basis.
That's the real reason we used this
language, which was about the best language,
if I can remember, we came up with which would
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deal with some of the situations that were
occurring, especially in some of the major
cities. It's not just New York City but a lot
of the other cities in this state where some
kids were being subjected to some horrendous
problems by parents who were just unable to
control themselves or whatever. And the
feeling was that we had to have some way to
deal with that, and that's what this is about.
We tried to come up with some even
more definitive language, but in the end this
is the best language we could come up with.
SENATOR MONTGOMERY: Okay. Just
one further question, through you, Madam
President.
THE PRESIDENT: Senator Volker,
will you yield for a question?
SENATOR VOLKER: Sure.
THE PRESIDENT: You may proceed,
Senator Montgomery.
SENATOR MONTGOMERY: Thank you.
I notice that your statistics are
based on the 1995 year, and you had more than
7,000 arrests.
SENATOR VOLKER: Yeah. Yeah.
1070
It's gotten worse.
SENATOR MONTGOMERY: That's what
I was going to ask. In the last eight years,
has this been a greater problem?
SENATOR VOLKER: And let me just
say you're right. In fact, I just looked at
this and I realize we have to update those.
And I will do that, by the way. I'll get
those from DCJS.
But from what I understand, it's
now well into the tens of -- 10,000 to 15,000,
whatever. It was, in fact, in 2000, if I
remember right. But I will check into this.
But I can tell you that it's much
worse.
SENATOR MONTGOMERY: Thank you,
Senator.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. If, through you, the sponsor
would yield to a question.
THE PRESIDENT: Senator Volker,
will you yield for a question?
SENATOR VOLKER: Yes, Madam
President.
1071
THE PRESIDENT: You may proceed,
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
Senator Volker, I was also looking
at the memo you described, which you mentioned
may in fact be outdated. But you talk about a
range of crimes, as extreme as torturing a
child to as -- another category of exposing a
child to drug use.
So as I understand it, while it
seems clear that -- in the case of torture,
that under this scenario, if a parent was
caught smoking marijuana in front of their
children more than one time, they could end up
with a D felony, going to jail for up to seven
years. Is that correct?
SENATOR VOLKER: No, that's not
true.
I think the problem with that is
that would end up as a Class A misdemeanor,
most likely. Although what mostly happens
with those kinds of things, for that kind of
an offense, for the most part, the person
isn't charged at all.
Because merely smoking in front of
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a child, there's no forced -- forcing the
child to smoke marijuana, I suppose. Or some
sort of -- taking some sort of drug might be
considered -- I would think would be
considered endangering the welfare. But the
mere fact of smoking drugs or anything in
front of a child does not mean that you've
necessarily endangered the welfare of the
child.
Well, let me say that one of the
frequent charges, if you allow a child to
drive a car when they're underage, and you're
in the car and there's an accident, whatever,
that could constitute -- but that still would
constitute, ironically, only a Class A
misdemeanor. Because there's not necessarily
anything in that that would strictly say that
you intended to cause physical or emotional
trauma.
But now if you are a drug user and
you subject that child -- as I had a case,
many years ago, we had -- and this was,
unbelievable as it may sound, these were young
kids who the mother and father -- and we tried
to charge them with a felony and ended up with
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a misdemeanor -- where, to quiet them down,
the parents were giving them ether. Ether.
And I admit that I got pretty upset. And we
broke the door in and grabbed the kids and
we -- what we did is we just took the kids
away from them.
But in the end, we really couldn't
get them. We tried to get them on a felony
for that sort of conduct, but we really
couldn't, because we couldn't prove that there
was severe physical or any kind of injury to
get just the misdemeanor, which is what it was
at the time.
There's a classic example of what
this D felony would cover. Because there's no
question that if we went into court with that
kind of evidence, we could certainly get a
D felony.
But as far as any of the -- you
know, the ordinary things, smoking or having
someone, you know, involved in -- unless they
were selling drugs. Now, if they're selling
drugs in front of children or doing something
of that nature, or, as sometimes has happened,
where we had an incident in Western New York
1074
where a fellow was a gun seller and was
selling guns in the house where the children
were. And one of the children -- the way they
found them, the children grabbed one of the
guns and went out and shot at somebody.
There's the classic example.
SENATOR LIZ KRUEGER: Thank you.
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 8. This
act shall take effect on the first day of
number of.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59. Nays,
1. Senator Montgomery recorded in the
negative.
THE PRESIDENT: The bill is
passed.
Senator Marcellino, that completes
the reading of the controversial calendar.
SENATOR MARCELLINO: Thank you,
1075
Madam President.
May we now return to reports of
standing committees, for a report of the
Children and Families Committee.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Senator Rath,
from the Committee on Children and Families,
reports the following bill direct to third
reading: Senate Print 2947, by Senator
Saland, an act to amend the Social Services
Law.
THE PRESIDENT: Without
objection, the bill is reported to third
reading.
Senator Marcellino.
SENATOR MARCELLINO: Madam
President, would you please recognize Senator
Montgomery.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Thank you,
Madam President. I would like to be on record
that had I been in the chamber when Calendar
102, Senate Bill 1034 was voted, I would have
1076
voted no.
THE PRESIDENT: You will be so
recorded, Senator Montgomery.
SENATOR MONTGOMERY: Thank you.
THE PRESIDENT: Senator
Marcellino.
SENATOR MARCELLINO: And would
you please recognize Senator Stachowski.
THE PRESIDENT: Senator
Stachowski.
SENATOR STACHOWSKI: Madam
President, if there wasn't a rule preventing
me from doing so, I would introduce the people
from the West Seneca Christian School that are
in the audience and have sat through the
session, most of them staying awake.
(Laughter.)
THE PRESIDENT: Thank you,
Senator.
Senator Marcellino.
SENATOR MARCELLINO: Madam
President, I'd waive the rule to introduce the
one who's asleep.
(Laughter.)
SENATOR MARCELLINO: Is there any
1077
housekeeping at the desk, please?
THE PRESIDENT: No, there isn't,
Senator.
SENATOR MARCELLINO: That being
so, I move we adjourn until March 18th at
3:00 p.m.
THE PRESIDENT: On motion, the
Senate stands adjourned until Tuesday,
March 18th, 3:00 p.m.
(Whereupon, at 4:01 p.m., the
Senate adjourned.)