Regular Session - April 8, 2003
1740
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 8, 2003
3:11 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: With us today to
give the invocation is the Reverend Dr. George
Miller, III, president of the Practical Bible
College in Johnson City, New York.
REVEREND YOUNG: Let's pray.
Our gracious and loving Heavenly
Father, we humbly come before You today.
We're amazed as we think of the great thought
that the awesome Creator, God of this
universe, allows us to come before Him and
call Him Father. May we each sense Your love
for us as individuals. May we trust You
completely.
God, these leaders before me today
I thank You for, because they are gifts from
You. I thank You for their willingness to
serve the people of the State of New York.
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These men and women are students of Your
purposes and resources and human lives and
history. You have chosen them for action,
action that can make a great and beautiful
difference in this State of New York and even
around the world.
May they each realize that they
cannot lead alone, but that they need each
other and, even more important, that they need
a God who gives to them wisdom, guidance, and
courage.
God, you have said in Your word
that if any of us lacks wisdom, let us ask of
God who gives generously to all. I pray that
the precious gift of wisdom be granted to
these leaders to be able to apply relevant
values to the decisions before them.
May Your spirit inform and
encourage them. May they receive wisdom to
chart correct courses to all their goals.
Help them to be guided by Your truth. In all
our differences, give them shared reality and
an accurate view of every issue in a way that
will lead to consensus. Lead this body of men
and women to the decisions that will lead to
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greatness.
God, also we pray that You would
accept our thanks for allowing us to live in
such a great country, the United States of
America. We thank You for the freedoms that
we enjoy every day, and may we never take them
for granted.
In this great land in which we
live, however, we realize that we are
experiencing often confusion, fear, and
disappointment. That You are the God of hope,
give us all hope.
Guide our President, his cabinet,
those in elected national positions. Protect
our troops around the world and especially in
Iraq and Kuwait. Bring about soon a surrender
of the Saddam Hussein regime, and may this war
end. We pray for peace in our individual
hearts, peace in our nation and around the
world.
In conclusion, Lord, I ask that as
the Apostle Paul tells us to do good to
everyone at every opportunity, may we each
obey that command, realizing that the command
alone would be a powerful step toward peace
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and prosperity.
I pray these things in the name of
our great God and Savior, Jesus Christ.
Amen.
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, April 7, the Senate met pursuant to
adjournment. The Journal of Friday, April 4,
was read and approved. On motion, Senate
adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
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On behalf of Senator Kuhl, would
you please place a sponsor's star on Calendar
Number 255.
THE PRESIDENT: The bill is so
starred, Senator.
SENATOR FARLEY: Madam President,
on behalf of Senator Seward, on page 8 I offer
the following amendments to Calendar 124,
Senate Print 1566, and I ask that that bill
retain its place on the Third Reading
Calendar.
Thank you, Madam President.
THE PRESIDENT: The amendments
are received, Senator Farley, and the bill
will retain its place on the Third Reading
Calendar.
Senator Skelos.
SENATOR SKELOS: Madam President,
I move that we adopt the Resolution Calendar
in its entirety.
THE PRESIDENT: All those in
favor of adopting the Resolution Calendar in
its entirety please signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
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(No response.)
THE PRESIDENT: The Resolution
Calendar 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 12,
Senator Nozzolio moves to discharge, from the
Committee on Crime Victims, Crime and
Correction, Assembly Bill Number 11 and
substitute it for the identical Senate Bill
Number 958, Third Reading Calendar 195.
THE PRESIDENT: Substitutions
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
57, by Senator LaValle, Senate Print 294, an
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act to amend the Education Law, in relation to
the inclusion of fiscal notes.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
66, by Member of the Assembly Magnarelli,
Assembly Print Number 4697, an act to amend
Chapter 206 of the Laws of 1974 amending the
Labor Law.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
99, by Senator Balboni, Senate Print 517, an
act to amend the Family Court Act and the
Domestic Relations Law, in relation to the
issuance of orders of protection.
THE PRESIDENT: Read the last
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section.
THE SECRETARY: Section 10. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
142, by Senator Skelos --
SENATOR PATERSON: Lay that
aside, please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
259, by Senator Kuhl --
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
267, by Senator Golden --
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
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270, by Senator Rath, Senate Print 1681, an
act to amend the Penal Law, in relation to
aggravated harassment of an individual using a
facsimile machine.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
311, by Senator Saland, Senate Print --
SENATOR LIZ KRUEGER: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
341, by Senator Libous, Senate Print 2894, an
act to amend the Mental Hygiene Law, in
relation to renaming the Binghamton
Psychiatric Center the Greater Binghamton
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Health Center.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
366, by Senator Maziarz, Senate Print 1512, an
act to amend the Criminal Procedure Law, in
relation to permitting a social worker or
other professional to provide.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 48. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
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passed.
THE SECRETARY: Calendar Number
371, by Senator Spano, Senate Print 1936A, an
act to amend the Penal Law, in relation to the
reckless assault of a child resulting in
serious physical injury.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
379, by Senator McGee, Senate Print 3230, an
act to amend the Penal Law, in relation to the
minimum sentence of imprisonment.
THE PRESIDENT: Senator McGee.
SENATOR McGEE: Madam President,
please lay that bill aside for the day.
THE PRESIDENT: The bill is laid
aside for the day.
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SENATOR McGEE: Thank you.
THE PRESIDENT: Senator Skelos,
that completes the reading of the
noncontroversial calendar.
SENATOR SKELOS: Thank you, Madam
President. If we could go to the
controversial reading of the calendar.
THE PRESIDENT: Would the members
please take their conversations outside the
chamber.
The Secretary will read.
THE SECRETARY: Calendar Number
57, by Senator LaValle, Senate Print 294, an
act to amend the Education Law, in relation to
the inclusion of fiscal notes.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Yes,
Madam President. If the sponsor would yield
to some questions, please.
THE PRESIDENT: Senator LaValle,
will you yield for a question?
SENATOR LaVALLE: Yes, I will.
THE PRESIDENT: You may proceed,
Senator.
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SENATOR HASSELL-THOMPSON: Thank
you, Madam President. Through you.
Senator, how will this be
implemented, and who will enforce the
legislation?
SENATOR LaVALLE: This bill would
require, as you know, fiscal notes for any
action, amendment to the rules, or new rules
that are adopted by the Board of Regents, the
State University and the City University. And
they would submit that to the legislative
bodies so that we would have an idea of what
impact these resolutions or these rules would
have on our life.
And the best example I can give to
you, Senator, is the standards that were
created by the Board of Regents and the fiscal
impact that that has had on our budget. While
almost every member of this body is supportive
of those standards, we needed to know how that
would impact our budgets.
And we require fiscal notes of many
bodies, or certainly of this body, so that we
understand what the impact is. And we're
merely asking the education governing
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boards -- SUNY, CUNY, and the Board of
Regents -- to give us that information.
SENATOR HASSELL-THOMPSON:
Through you, Madam President, if the sponsor
will continue to yield.
SENATOR LaVALLE: Yes.
THE PRESIDENT: The Senator does
yield.
You may proceed, Senator.
SENATOR LaVALLE: Yes, I'd be
delighted.
SENATOR HASSELL-THOMPSON: Thank
you.
Then, Senator, will this
legislation deter the boards from taking any
necessary action when it deals with increases
in expenditures?
SENATOR LaVALLE: It certainly
would -- like any fiscal note provides the
body Division of the Budget with information
that they need. But I do not believe anyplace
contained in here indicates that they have to
make changes.
We certainly will be, when we
understand what the fiscal impact is, would be
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having a dialogue with that body to say do you
realize that it would have X impact on our
budget, and maybe you need to have -- make
changes.
Now, that body may simply say to
us: No, we're going to stand by that action,
and we simply are providing you with the
information needed as to what the fiscal
consequences would be.
SENATOR HASSELL-THOMPSON: Madam
President, if the sponsor would continue to
yield.
THE PRESIDENT: Senator, will you
yield for another question?
SENATOR LaVALLE: Yes, I'd be
delighted to.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Thank
you.
Will the boards have to notify the
State Education Department before the adoption
of the resolutions?
SENATOR LaVALLE: I'm sorry,
Senator, I couldn't --
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SENATOR HASSELL-THOMPSON: Would
the boards have to notify the State Education
Department before the adoption of these
resolutions? I mean, in other words, it's
almost like a ratification. Do they have to
before the adoption of these resolutions?
SENATOR LaVALLE: Certainly
the -- to use the example of the Commissioner
of Education, here we're asking that the --
let me just go to that section dealing with
the Board of Regents.
It says: "Prior to the adoption of
a resolution or any alteration or amendment to
the rules and regulations prescribed by the
Regents that may require an increase in
expenditure of the state's money, in the
fiscal year of the adoption or any future
year, a fiscal note shall be required."
So that's all that we're simply
saying, that a fiscal note is required as to
any impact that this would have. It doesn't
bring the Commissioner -- that the
Commissioner has to advise us or whatever.
It's the board, upon their action.
And just remember that the
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Commissioner actually works for the Board of
Regents and is their administrator and the
implementor of their policies.
So it's actually the board
resolution -- it's the same way as we work
here. Legislation that we pass, we require
and ask for a fiscal note, fiscal impact, so
that we know what the consequences are. We're
really asking for the same thing of the
education governing boards.
SENATOR HASSELL-THOMPSON: Madam
President, final question, if the sponsor will
yield.
THE PRESIDENT: Senator, will you
yield for a final question?
SENATOR LaVALLE: Yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Okay,
thank you.
Senator, is this an attempt by the
Legislature to kind of overstep or by pass the
authority that I presume now belongs to the
SUNY and CUNY boards and the Regents in making
this policy decision?
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SENATOR LaVALLE: No, absolutely
not. Policy decisions -- and this legislation
does not, in its language nor its intent, is
to intrude in the policy of the three boards
that hold, under our statutes, the
policymaking for education, in the case of the
Board of Regents that covers both elementary
and secondary and higher education, the SUNY
board and the CUNY board.
This legislation clearly has as its
intent to tell us in the state -- Division of
the Budget, the Legislature -- what are the
fiscal consequences of their actions.
Many people, and I use again as an
example, were supportive as a matter of policy
of the higher standards for elementary
education. But this body and many of its
members were surprised at the fiscal
consequences. Had we known from the very
beginning we could have, in partnership -- in
partnership -- better planned for how we would
meet the policy consequences and the fiscal
consequences as they impacted the State of
New York.
And that's all we want to know. As
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we ask in any fiscal note, just tell us how
much is it going to cost. We do not challenge
nor ask about the policy behind it, because
that's clearly delineated in the Constitution
when it comes to the Board of Regents, in
statutes that we, we as a Legislature,
developed and empowered them to be.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Senator Diaz.
SENATOR DIAZ: Thank you, Madam
President. Through you, Madam President, can
I ask a question to the sponsor?
THE PRESIDENT: Senator, will you
yield for a question?
SENATOR LaVALLE: Yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR DIAZ: Thank you, Senator
LaValle.
I have here something that says:
"Under current law, a fiscal note is not
required prior to the adoption of a
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resolution, alteration, or amendment to the
rules and regulations by the SUNY Board of
Trustees, the CUNY Board of Trustees, or the
Board of Regents.
"There are many instances when
these boards have adopted resolutions that
require a significant increase in state
funding in order to implement proposed
changes. These changes can cost millions if
not hundreds of millions of dollars to put
into effect. However, there is no
acknowledgment regarding those costs when the
board votes for these proposals."
My question, can you name any
resolution, any alteration, or any amendment
that the board has implemented or voted for
that could cause that --
SENATOR LaVALLE: Yes, I'd be
delighted to.
And one of the recent changes or
adoption of rules by the Board of Regents was
done to implement legislation that this body
and the Assembly passed and the Governor
signed into law requiring defibrillators to be
in our schools.
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The impact when you looked at the
regulations -- and I just spoke to
Commissioner Mills about this very, very
recently. When you look at the regulations,
the regulations seem, in my judgment and the
judgment of other people, to have expanded and
broadened the legislative intent.
And so it would be important for us
as well as school districts to have understood
what that impact is after the regulations were
adopted. Which were enormous on our school
districts.
I talked about the standards that
the Board of Regents adopted requiring our
school districts -- and again, I indicate that
almost to the person in this body, there is
support for those standards, the higher
standards. But the fiscal impact should be
known. Which is huge. Which is huge.
When we talk about certain
requirements that I'm hearing in the middle
school that are regulatory changes that have
an impact, I think we need to know about that
so we can plan for it in our budgets.
Or we can go back and say to the
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Board of Regents, in the case of the
legislation requiring defibrillators, that
they have broadened that beyond the intent of
the sponsor and this Legislature.
And I could go on and on. When the
State University does certain things to
broaden its enrollment and student body, those
actions have an impact on our tuition
assistance program, whether it be at the
community college level or the senior college
level.
And, Senator, I could go on. It
was obvious that, having spent some time in
this chamber dealing with educational matters,
that it has gone far beyond the regulatory
reach and the impact, fiscal impact has become
greater and greater.
And I think we just need to know,
and I think the sponsors on our governing
boards need to be more conscious that their
policy decisions have grave and significant
fiscal impacts both to the state and to the
localities.
SENATOR DIAZ: Madam President,
through you, would the sponsor yield for
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another question, last one?
THE PRESIDENT: Senator LaValle,
will you yield for another question?
SENATOR LaVALLE: Yes, I will,
Madam President.
THE PRESIDENT: You may proceed,
Senator Diaz.
SENATOR DIAZ: I don't know if I
get you right, but you said that what they did
before was approved by this body, by the
Assembly and the Governor signing it. My
question -- and I would like to understand
this very clear -- my question, when they do a
resolution, alteration, or amendment that has
to do with money, to increase the budget or
whatever, don't we have to approve that? Or
they could do that on their own?
SENATOR LaVALLE: Senator, I gave
two separate examples.
One, the higher standards for
education, was something done on their own
initiative and done within the scope of their
authority. That action, this body, this
legislative body had no input, had no -- I
mean, we could have the authority to make
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changes to that scope or that reach, but what
we were left with was the bill. They took the
action, handed us the bill, and said "your
problem."
What I'm trying to do here is
establish a partnership. And partners talk to
one another. Partners dialogue. They don't
just enjoy the dinner and then just hand you
the bill.
The second example was how a
regulatory action broadened the authority of
legislation that we passed. And the fiscal
consequences was had on the local school
districts, on the local school districts.
Now, here again we have to try and
ameliorate that state mandate. Because back
in my district, all I hear is the state
mandates something but doesn't pay for it, or
it doesn't pay enough of its fair share.
So I think we need, and through
fiscal notes hopefully, hopefully, will give
us better communication in the partnership
between the Legislature, the Governor, and
these educational governing bodies.
SENATOR DIAZ: Thank you.
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Madam President, on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator Diaz.
SENATOR DIAZ: It is, to me,
something very interesting that for years and
years our minority community has been working
or has been forced to work under certain
rules. When our community starts growing and
we start getting -- reaching academic,
political, or those levels where we can
compete with the rest of humanity in the state
and in the nation, there are always someone
coming up with some idea of "let's remediate
something."
And every time that someone calls
for reform or changes, they're always to
affect our community, black and Hispanic
community, and those changes are always to the
detriment of our people.
I know Senator LaValle. He's a
very honest and very dedicated person. I
just -- I'm just worried that when our people,
members of our community, get appointed to
positions such as regent or board of the
colleges, then we have to change the ballgame
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to tie their hands. But those hands were not
tied before our people got there.
So I am very, very interested in
seeing how things change, changes, when our
people get to positions of power. And I'm --
you know, I -- I've got problems with this
bill.
Thank you, Madam President.
SENATOR OPPENHEIMER: Madam
President.
THE PRESIDENT: Senator
Oppenheimer, why do you rise?
SENATOR OPPENHEIMER: I'd like to
question the sponsor, if he will yield.
THE PRESIDENT: Senator Volker
has been waiting to ask a question.
Senator Volker, do you yield?
SENATOR VOLKER: Okay.
SENATOR OPPENHEIMER: Oh, I'm so
sorry. I didn't see you.
THE PRESIDENT: All right,
Senator Oppenheimer. Senator Volker will
yield.
SENATOR VOLKER: I yield. I
yield.
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SENATOR OPPENHEIMER: I also have
a lot of problems with this bill. I'd like to
ask the sponsor, if he will yield --
THE PRESIDENT: Senator LaValle,
will you yield for a question?
SENATOR LaVALLE: I would be
delighted.
THE PRESIDENT: Senator
Oppenheimer, you may proceed with a question.
SENATOR OPPENHEIMER: Thank you
so much.
In many ways this looks to me like
it's just another attack on the Board of
Regents. If you could tell me, Senator
LaValle, is this -- this would cover both
education issues and noneducation items;
right? Correct?
SENATOR LaVALLE: Senator, this
bill applies to the State University of
New York, the City University of New York, and
the Board of Regents. It includes all three
governing boards dealing with education and
higher education in the State of New York.
SENATOR OPPENHEIMER: So if you
would continue to yield, that would mean
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both --
THE PRESIDENT: Senator LaValle,
will you yield, please?
SENATOR LaVALLE: Yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR OPPENHEIMER: That would
be noneducational as well as educational
issues?
SENATOR LaVALLE: The -- well,
when it -- certainly City University, State
University deal with higher education. The
Board of Regents has a broader ambit that
deals with the professions, the museums, the
libraries.
So the answer is yes, is yes.
SENATOR OPPENHEIMER: The reason
I questioned, if you will continue, is because
you were using the CPR or the --
SENATOR LaVALLE: Defibrillators.
SENATOR OPPENHEIMER: -- the
defibrillators as an issue.
SENATOR LaVALLE: For our
elementary and secondary schools, Senator.
SENATOR OPPENHEIMER: As an
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issue. Right.
Okay. The last question I have for
the Senator --
THE PRESIDENT: Senator LaValle,
will you yield for a question, first of all?
SENATOR LaVALLE: Yes, I'd be
delighted.
THE PRESIDENT: Senator
Oppenheimer, you may now proceed with a
question.
SENATOR OPPENHEIMER: On the
issue of -- I'm just looking now at K through
12, the education policy which is set by the
Regents. Would you not say that we have the
input, in either voting for it or not voting
for it or extracting what we wish out of it,
in our ability to pass a budget?
SENATOR LaVALLE: Senator, the
Legislature in all three cases -- in the Board
of Regents, State University, and City
University -- their impact is very analogous
to the election or selection that we have to
members of the MTA, to the public benefit
corporations.
We elect members of the Board of
1770
Regents, we confirm the Governor's
appointments to the City University and the
State University. After that, they have broad
regulatory powers.
And again, I use as the greatest
impact that we have had is the standards for
our elementary and secondary schools -- that
again, I say, we favor. But what we did not
know at the time that they adopted it -- and
we had no input, no discussion -- we were left
with the bill from those policy changes and
those regulatory changes.
Now, I suppose this body could, if
it wished, say, delay the impact of certain
requirements, could change as a matter of law
those requirements. We could do that. But
the fact of the matter is that then gets into
something that Senator Hassell-Thompson talked
about, questioning do we get into the issue of
policy.
Under the Constitution, we -- the
Constitution has delegated to the Board of
Regents certain powers as a corporation
running the University of the State of
New York. And we have on an annual basis
1771
given the State Education Department powers to
promulgate regulations to implement certain
laws.
Whether it be the laws that we
passed for the handicapped, the Board of
Regents takes that law, or the Commissioner,
and they then add -- sometimes intentionally,
sometimes an unintentional result -- a certain
fiscal impact on the local school districts.
The local school districts, as you
know, as a valued member of the Education
Committee, come to us. And they said: What
did you do? You passed these changes for the
handicapped that have an enormous impact on
our budget. Give us more money. You passed
and required us to have defibrillators in our
district. Give us the money. It costs more
money.
And it goes on and on and on. I
think we need to know what that fiscal impact
is. That's all this bill does. That's all
this bill does. It's narrowly focused on the
issue of just let us know what the impact is.
As I say, you and I go to dinner,
you say, "Senator, thanks for the dinner," and
1772
you hand me the bill. That's not fair.
Unless we had an agreement prior that I was
taking you to dinner, Senator.
SENATOR OPPENHEIMER: Thank you,
Senator LaValle. Your sincerity is not
questioned, and your hard work and
understanding of educational questions is not
questioned.
On the bill, please.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR OPPENHEIMER: I'm really
pulled in a couple of directions. If it's a
noneducational issue, I don't mind seeing a
fiscal impact on it. But I -- as far as
educational policy, I feel that has to stay in
the domain of -- in the question of K through
12, in the domain of the Board of Regents.
It is probably the most stellar
feature that we have of any state concerning
the creation and establishment of educational
policy. It is very valued, and we are admired
by many states for our Board of Regents. And
therefore, I think to say everything has to be
brought down to a monetary consideration is
1773
doing education a disservice.
I see education as the primary,
principal responsibility of state government,
since there's no mention of it at the federal
level and it then devolves upon us. And there
can be no more important issue than how we
educate our children.
And I think the Board of Regents,
in putting forth a set of standards -- which
is going to be costly, but it is more costly
if we do not educate our children to the level
where they will be able to hold jobs and
participate in the economy, hopefully be
voting citizens, know their issues. That's
not going to be done unless we try and bring
them up to these standards.
So I'm going to be voting no,
because this sounds to me like it's getting
into -- we're trying to set a number on what
it costs to educate properly, give a child a
sound education.
As for the noneducation issues, I
can see the value of it. But I cannot see
it -- it would hamper our education standards
and our support for education.
1774
THE PRESIDENT: Senator Volker.
SENATOR VOLKER: Madam President,
I rarely rise to speak on my colleagues'
bills, Senator LaValle's bills. In fact, many
of the bills we disagree with, on bills. As I
think a lot of people know.
But on this one, this is a rather
mild message. To me, the whole issue is the
Education Department. As I -- you know, I've
been here a long time, and we've had our
differences with the Board of Regents and with
the Education Department. But I don't believe
I've ever seen a time when the Education
Department has directly intervened in creating
havoc for us, and more fiscal problems.
When the school districts start
telling us about mandates, inevitably we get
into something that the Ed Department has
done. They say, Well, it's the state. And we
say, Well, it's the Education Department.
The defibrillator situation -- by
the way, we passed a simple, straightforward,
fine bill. Senator Kuhl passed this last
year. None of us knew -- at least I didn't
know, and I don't think Randy knew -- that it
1775
was going to be totally brutalized by the
Education Department's idiotic regulation.
Which many schools, you will find upstate, are
ignoring, because it is absolutely
unaffordable for some schools.
And then we're the ones that get
criticized for that. We didn't ask for that.
They were mad, by the way, from what I
understand, because we didn't consult with
them enough. So they said: The hell with you
people, we're going to do this huge thing.
It's the biggest mandate, by the way, that we
passed last year -- and we didn't pass it.
They did.
The year before was the building
aid situation. They were talked with. I
understood they were mad because we didn't
talk with them enough before we did it. Well,
the fiscal people tell me that that wasn't
true, that our fiscal people, our education
people, talked with them about finding a way
to make it easier and cheaper to deliver
building aid so it wouldn't create any
problems on a local level.
Well, the Education Department,
1776
they didn't exactly do a regulation, but they
did some standards that turned into a fiasco.
And to this day, a year and a half later,
we're still having problems and straightening
them out because the Education Department will
not thoroughly comply with what this body told
them to do.
Now, I'll admit to you that I'm
especially irritated because yesterday the
Education Department came out with some grants
that they do every year for after-school
money. Which Buffalo, the city that I don't
represent -- but I do -- was a major
participant for many, many years. Virtually
every city in the state.
For some strange reason, this year,
for the first time, the Education Department
said they didn't like our application, or
their application, and gave the City of
Buffalo, with some of the largest problems in
the State of New York, no money.
We hear rumors internally that
they're mad at Buffalo because Buffalo was
late with filing a certificate or audit
papers. Which everybody in the state knows
1777
happens all the time. One year New York City
didn't file for a whole year. They went over.
We all knew about that. But it exposed some
problems that the Ed Department has with their
questionnaires, their audits. And admittedly
that Buffalo has got it in and so forth, but
they were late. So it caused embarrassment to
them.
My problem is I'm a little tired --
more than a little tired -- of bureaucrats
telling this body what we should spend, how we
should spend it, and ignoring this body,
whether it's Senator LaValle or whether it's
Senator Oppenheimer or whoever it is. It
seems to me -- and my bill would have been a
lot stronger than Senator LaValle's. His, you
know, is a nice bill. It tells them from now
on you got to tell us what's going on. I plan
on putting -- if I put any bills in on
education, I'm going to say this bill cannot
have any regulations by the Ed Department to
implement it. Which I think would send a
really strong message.
But I am serious, I want to help
kids as much if not more than anybody. But I
1778
am tired of a -- what sometimes is called an
education aristocracy that doesn't care about
money and that has the attitude that kids
can't be taught unless you spread hundreds of
millions of dollars of money around. Well,
you know, the answer is yes, we got to give
money. And this Legislature and this house
has been extremely generous to education.
We've all been criticized for it, but that's
the way it is.
But when we allocate money, we
should know what we are allocating it for.
And we don't have to have somebody who is a
bureaucratic educated whatever -- and a group,
by the way, that we have virtually no say in.
Because the Board of Regents now, the way that
operation works, we have almost no say in the
Board of Regents or in the Ed Department. And
that's wrong. And we'll eventually change
that one way or another.
But I think the biggest point is
that Senator LaValle's bill is a move toward
making sure that we in this body, when we do
legislation, we know not only what we're
voting for but that our budget shows the money
1779
in there that should be paid, and not have
somebody in the Ed Department decide to make
it 200 million instead of 100 million.
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: Yes, Madam
President, I rise to speak on the bill.
I think it is a good bill --
THE PRESIDENT: You may proceed,
Senator.
SENATOR LACHMAN: I think that
Senator LaValle listened to some of the
comments that Senator Stavisky -- who
unfortunately is not in the chamber today, so
I can't speak for her final opinion -- and
that I had made on the bill. It's a slight
improvement over last year's bill that I voted
for, and I think we voted 58 to 2 for that
bill.
I think it is a bill that is
pro-education, and at the same time it does
permit the state legislator to act as a state
legislator, commenting on what I said
yesterday regarding the adoption of the
budget. We are a Legislature, we have to
oversee certain things, and we have to make
1780
certain that good education takes place from K
through and beyond it.
It's not a coincidence that last
year's bill, the Board of Education did not
oppose it, the Department of Education does
not oppose it now, the CUNY Board of Trustees
and administration don't oppose it, and even
one of the most progressive unions -- really
one of the most progressive unions in the
state of New York, the Professional Staff
Congress, has not said that they would oppose
this bill.
This bill gives us in the State
Legislature the opportunity to seize the
initiative and act like legislators and
improve guidelines for education as well as
for noneducational issues and health issues
such as defibrillators.
Thank you.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. If, through you, the sponsor
would yield to one question.
THE PRESIDENT: Senator LaValle,
will you yield for a question?
1781
SENATOR LaVALLE: Yes.
THE PRESIDENT: Go ahead, Senator
Krueger.
SENATOR LIZ KRUEGER: Thank you.
Senator, in your legislation it
says that a fiscal note will be secured from
the Division of the Budget. What if the
Division of the Budget doesn't want to come up
with a fiscal note? What happens?
SENATOR LaVALLE: Senator, when
the -- let's assume this is law. When we
direct in our law for a party to do certain
things, we expect them to do it.
Now, I don't know what else you
would require of this, because we're very
clear here in what we're asking the boards to
do, the Commissioner, the Chancellor, and the
Division of the Budget. And each party
should, if this were the law, they should
comply with the law.
SENATOR LIZ KRUEGER: Thank you.
Madam President, to speak on the
bill.
THE PRESIDENT: You may proceed
on the bill, Senator Krueger.
1782
SENATOR LIZ KRUEGER: Thank you.
Senator LaValle, thank you for your
answer. And I do support your bill.
The reason I asked the question was
it was not apparent to me that the language of
the bill required the Division of the Budget
to provide a fiscal note when requested by
CUNY or SUNY or the Regents.
The reason I support your bill is
because I do believe that we should have
fiscal notes and fiscal analysis done on every
decision that gets made here in the state by
major institutions. And in fact, a
frustration of mine has been that we pass
legislation through this house all the time
where the fiscal notes either don't exist or,
worse, are meaningless.
We've passed legislation this week
alone where a fiscal note says it will cost
the state something this year and in future
years. Well, again, following up to some
degree on your own comments and on Senator
Volker's comments, isn't that ridiculous?
We're passing costs on to localities, we're
trying to do our own budget analysis in tough
1783
fiscal times, and yet I think that we should
hold ourselves to as high a standard as you
are asking our institutions of higher
education to hold themselves.
And so I'm concerned both that our
failure in this house to do accurate, correct
fiscal analysis of the costs of our actions --
and I am concerned in this context that if the
Governor's agency, the Department of the
Budget, simply decides that this isn't a
mandate on them, this just says CUNY, SUNY,
and the Regents can't act until they get a
fiscal note, and the Department of the Budget
chooses not to give them a fiscal note, that
we have put them in a bind where they would be
frozen.
So my question was not because I
opposed your legislation, my concern was a
linguistic one of making sure that when this
legislation passes, if it does in both houses,
that the Governor and his agency, the
Department of the Budget, understands that
they have a new mandate, so to speak.
And again, I'd like to take this
opportunity to highlight that we shouldn't be
1784
passing any legislation in the New York State
Senate that doesn't have accurate, factual
fiscal notes that, I would argue, for the
benefit of the people of the State of New York
not only show the fiscal implications for the
State of New York, but also show the fiscal
implications for our localities. Because on
so many different issues that we pass laws on
here, we transfer a share of those expenses to
our localities.
Thank you very much, Madam
President.
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 4. 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 57 --
THE PRESIDENT: Senator
Oppenheimer, do you wish to be heard?
SENATOR OPPENHEIMER: To explain
1785
my vote, please, Madam President.
THE PRESIDENT: All right. You
may proceed to explain your vote once you've
been recognized, and you are so recognized.
SENATOR OPPENHEIMER: I would say
that I can concur on most issues as far as
having fiscal notes. It's been a point that I
have been making for many years, and I think
it's a valid one.
My specific concern is this body
trying to make education policy. Do we know
the value or the cost of providing Latin or
AP biology or calculus? It is simply not a
realm that we have expertise in. And it is
not something that you can set dollar amounts
on, in my opinion.
In most every other area, I would
concur, fiscal notes are superb, and I would
seek them. But not in the area of educational
policy. We just don't know enough in this
body.
I vote no.
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Those recorded in
1786
the negative on Calendar Number 57 are
Senators Andrews, Diaz, Hassell-Thompson,
Montgomery, and Oppenheimer. Ayes, 54. Nays,
5.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
142, by Senator Skelos, Senate Print 557, an
act to amend the General Obligations Law, in
relation to exoneration of certain crime
victims.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Skelos,
an explanation has been requested.
SENATOR SKELOS: Thank you, Madam
President.
This bill amends the General
Obligations Law by bringing back the
assumption of risk doctrine in certain civil
lawsuits. The defendant, who is generally a
victim or a Good Samaritan, would have to
prove by a preponderance of the evidence, by
showing that the plaintiff committed the crime
and that the defendant's actions were
1787
justified under the circumstances.
The criminal then would have
assumed the risk of his injury by his
intentional actions against the victim.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. Briefly on the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR SCHNEIDERMAN: I believe
the sponsor, for my purposes, has been
cross-examined on this previously.
The reason that I have concern
about this is that sometimes, under the rubric
of being tough on criminals, we can make very
serious changes in the law with unintended
consequences that can inflict serious, serious
harm on individuals but also serious harm on
our system of justice.
New York already has a rule, a
common-law rule, and I would respectfully
submit that the rule currently in effect is
better than the rule proposed by this
legislation. Currently, under common law, if
1788
a plaintiff is injured while engaged in
conduct that is a serious violation of law and
the injuries are the direct result of that
violation, a lawsuit may be dismissed, but the
judge can take all factors into account.
The legislation before us would
change that rule and provide a much broader
requirement that if the injury that was
sustained by the plaintiff arose during the
commission of a crime, not that the injury was
a direct result of the crime. This is a
critical distinction.
We have a law that this is an
amendment to of comparative negligence in
New York State. The point of the comparative
negligence statute, which is relatively new,
is to allow our justice system to take into
account every possible factor. The statute
we're voting on now would permit, for example,
if someone was running down the street having
committed a robbery and the police were in hot
pursuit, a vigilante who just didn't like the
looks of the fleeing felon, from pulling out a
gun and killing them.
And there would be no possibility
1789
that a court could consider the relative
merits of the claim, could take into account
the fact that this was a felon, could take
into account the need to stop the person.
This is an anti-democratic bill in
the most fundamental sense. It stops judges
and juries from considering all the facts. It
imposes a legal requirement that limits the
system of justice in its ability to take into
account all possible factors.
It's important for us to bear in
mind our laws do not just protect good people.
Our laws protect everybody. And someone may
be doing a bad act and that bad act very well
may require that any claim against that -- by
that person against someone who injured them
be thrown out. But let's let the common-law
rule apply. Let's let the courts consider all
factors.
This bill would prevent the courts
from considering the factors now that have led
to frequent dismissals of lawsuits by those
accused of crimes against those who have
injured them in the course of the commission
of those crimes.
1790
The bottom line is that the system
right now, subject to some judicial decisions
which I disagree with and which we can all
criticize, works pretty well. This bill would
throw out the baby with the bathwater. There
would be people who deserve to be punished who
would go without punishment if this bill is
passed.
There would be people who inflict
harm disproportionate to the need to stop a
crime, without any regard to the need to stop
a crime. Because, again, the language of the
proposed bill is that if the injury was
sustained by the plaintiff arose during the
commission of the crime. That can include
fleeing from the scene of the crime.
This opens the door to a lot of
people who are committing bad acts going free.
You don't have to be interested in protecting
criminals to oppose this bill. I strongly
support the common-law rule in existence now
that enables a judge to dismiss a case if they
find that a felon committing a serious
violation of the law suffered an injury that
was a direct result of that violation.
1791
That's the law now. I don't see
any reason to change it. And I know that
there will be cases, the law of unintended
consequences being what it is, where this
statute would prevent civil actions against
people who really should be brought to justice
for their misconduct.
I'm going to vote no. I encourage
everyone else to vote no.
Thank you, Madam President.
SENATOR SKELOS: Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Normally I don't
get up and respond, because I know Senator
Morahan wants to move the session along today.
But you're almost correct, Senator
Schneiderman. And some of your comments
perhaps are a bit dramatic in their scope.
Number one, this is not just
intended as a hard-on-criminals piece of
legislation. What it does is it says under
certain circumstances individuals who commit a
crime should not be able to get a windfall
civil judgment because the injury occurred
during the commission of the crime.
1792
I think you should note in the
legislation that whatever the response is to
the criminal activity, it has to be
justifiable pursuant to Section 35 of the
Penal Law. So the example that you used, if
the police are in hot pursuit and a vigilante
appears and shoots the criminal dead or
injures him severely, I don't believe that
they would be successful by a preponderance of
evidence to have the assumption of risk
doctrine applied under these circumstances
that you laid out.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President.
I appreciate the sponsor's
comments. And I love being called almost
correct by Senator Skelos. That is a very
high compliment, given the source.
My reading of the statute is
somewhat different. And I do think that
partly this is exactly why I believe in
leaving more latitude to judges. I do not
think that Article 35 of the Penal Law would
1793
necessarily require a court to dismiss an
action under those circumstances.
And once again, we have a
common-law rule that is working pretty well,
and I think we have to exercise great care in
entering an area where we have opened the door
to a court's consideration of every possible
factor to look for that one case that I can't
think of now, if my example was wrong -- that
one case that even Senator Skelos can't think
of now -- where an injustice would be done
because we won't allow the courts to take into
account all of the possible factors.
Thank you, Madam President.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. If the sponsor would yield
to a question.
THE PRESIDENT: Senator, will you
yield for a question?
SENATOR SKELOS: Yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR LIZ KRUEGER: Thank you.
Perhaps Senator Schneiderman, in
1794
his just closing statement, started my
question for me. We changed the state law in
1975. Your memo in support of your
legislation says "This bill was drafted in
response to the growing number of cases
brought by criminals seeking civil negligence
damage awards against their victims."
It's 27 years -- almost, really,
28 years since we changed the law in 1975.
What is the evidence that we need this law?
How many of these cases have been going
through where juries and judges have not made
the correct decision of fairness under the
existing law?
SENATOR SKELOS: A number of the
cases are old. There are more recent cases,
and we'd be happy to send them to you.
SENATOR LIZ KRUEGER: Madam
President, through you, thank you. If the
sponsor could continue to yield.
THE PRESIDENT: Senator, will you
yield?
SENATOR SKELOS: Yes.
SENATOR LIZ KRUEGER: Thank you,
Senator Skelos.
1795
SENATOR SKELOS: If I could just
comment.
SENATOR LIZ KRUEGER: Please.
SENATOR SKELOS: Senator Balboni
mentioned to me, and he could probably cite it
for you and even autograph his St. Johns Law
Review article exactly on this subject. And
I'm sure at any point Senator Balboni could
repeat it verbatim to the entire assemblage
here today if you would so wish. Within the
two-hour limitation that we have.
(Laughter.)
SENATOR LIZ KRUEGER: Madam
President, through you, on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR LIZ KRUEGER:
Unfortunately, because I don't think I have
time to read Senator Balboni's paper before
the vote today, I will vote no today.
But I will keep an open mind after
having an opportunity to review the data, that
perhaps the next time this legislation comes
up we could have a more educated discussion
with all of us having a chance to share the
1796
data before it comes to the floor.
Thank you, Madam President.
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: Madam
President, very quickly.
This Legislature has addressed this
issue many, many times before. The
discussions with Senator Dollinger go on for
pages and pages and pages.
But let me be very clear about
this. Senator Skelos is right, Senator
Schneiderman is wrong. Let me tell you why.
Because in Senator Schneiderman's
saying "consider all the facts," what he's not
telling you or not even acknowledging is that
litigation is expensive. Not the outcomes of
litigation, litigation itself. And that's the
point of Senator Skelos's bill and of similar
bills that I've carried and other people in
this chamber.
Again, we have this huge financial
crisis. Every sector, whether it's medical
malpractice premiums, whether it's school
districts, insurance companies, auto rates,
everybody is talking about litigation costs.
1797
But yet in this state we're still going to
hold on --
THE PRESIDENT: Senator -- excuse
me, Senator Balboni.
Senator DeFrancisco.
SENATOR DeFRANCISCO: Will
Senator Balboni yield?
SENATOR BALBONI: Yes, I would.
THE PRESIDENT: You may proceed,
Senator DeFrancisco.
SENATOR DeFRANCISCO: Senator,
did you go to law school?
(Loud audience reaction.)
SENATOR BALBONI: Did I go to law
school?
Madam President, I'd like to say
that I guess some of us were out very late
last celebrating the victory of a certain
college upstate, and therefore perhaps our
equilibrium has been tainted.
SENATOR DeFRANCISCO: A serious
question. If you'd answer this question.
THE PRESIDENT: Senator Balboni,
that was nonresponsive.
Senator DeFrancisco.
1798
SENATOR DeFRANCISCO: The
question is this. Having no court system
would save a lot of money in litigation.
Don't you agree that there is a place in this
world, this country, to resolve disputes by
way of litigation?
SENATOR BALBONI: Madam
President, through you, no, I do not. Not
when you've committed a felony, John. That's
the deal.
When you step outside the
boundaries of society to flaunt the rules of
our society, you have no place in the court
system. That's the point. And why can't we
say, on this floor, you don't have a right to
use the courts if you've committed a felony?
You don't.
You can't tell me that in the
examples that Senator Schneiderman has talked
about, where there's a criminal act, where you
go and you shoot somebody, that the argument
follows, well, then you lose the deterrent
effect if you don't have the ability to sue
the person who commits a criminal act against
the criminal, in the case of shooting a
1799
fleeing felon.
That is a specious argument at
best, because the deterrent effect does not
come from a lawsuit, it comes from criminal
prosecution. That's common sense.
The point here is that litigation
is expensive. Litigation is what drives
costs. So for the felon in this state, let's
say no. Let's say you're not entitled to get
to our courthouse, you're not entitled to
flaunt our rules and then come back and use
them.
THE PRESIDENT: Senator
DeFrancisco, why do you rise?
SENATOR DeFRANCISCO: I'd like to
see if he would answer another question.
THE PRESIDENT: Senator Balboni,
will you yield for a question?
SENATOR BALBONI: Yes.
SENATOR DeFRANCISCO: Does it
matter to you whether or not the felon has
been convicted of the felony before these
rules apply?
SENATOR BALBONI: Yes, it does.
SENATOR DeFRANCISCO: So if you
1800
are not convicted of a felony --
SENATOR BALBONI: Then you're not
a felon.
SENATOR DeFRANCISCO: -- even
though it looks like felonious behavior by the
facts, you would be allowed to recover under
these circumstances?
SENATOR BALBONI: Madam
President, through you, I'm sure that the
Senator is aware -- because I know he went to
law school -- that any type of case that would
be brought under this statute that Senator
Skelos proposes, you have to be convicted.
And, secondly, it would be brought
by a motion for summary judgment at the outset
of the trial, or a motion to dismiss. That
would be considered by a judge. A judge, of
course, would make the determination, not only
whether or not the person was convicted of a
felony but, secondly, if the act that was the
subject matter of the lawsuit occurred during
the commission of the felony. There's a
two-part analysis that's done.
And the point of this statute is
that you don't have to go to depositions, you
1801
don't have to go to the cost of litigation,
you don't have to go to jury trial. I have
tried these cases, ridiculous cases where the
person did not belong in court. It cost the
County of Nassau back then literally tens of
thousands of dollars to defend this thing over
time, and that was wrong. Because they
committed a felony. It shouldn't have been in
the courtroom.
Anyway, Madam President, with that,
this bill is a very important bill. It sends
a great signal. And I believe it should be
passed forthwith.
Thank you very much.
THE PRESIDENT: Senator Diaz.
SENATOR DIAZ: Thank you, Madam
President. On the bill.
THE PRESIDENT: You may proceed
on the bill, Senator Diaz.
SENATOR DIAZ: I never thought
that I would see what I have seen today. And
I have seen something very interesting here.
I am not a lawyer. I am not going
to law school. I am not a trial lawyer. I am
simply a reverend that ran for office
1802
believing that he will come here to try to
protect the victims and not the criminals.
I'm here to protect the victims.
Criminals have been protected for so long.
And to tell someone -- to tell someone that
they could get a gun, they could go into my
house to rob me and then, if I do something to
them, they could sue me, why don't we better
tell them: Here's my daughter, here's my
wife, help yourself?
This is outrageous to come here
trying to protect the criminals. Criminals
should go to jail. That's where they belong.
That's where they belong. And not -- and we
should not be here protecting criminals and
sending them messages telling them that they
can go ahead and do whatever they're doing in
our community.
Senator Skelos, that's a good bill.
Senator Balboni, I'm with you.
My fellow over there, I'm sorry for
you.
Thank you very much.
(Laughter.)
THE PRESIDENT: Does any other
1803
member wish to be heard on this bill?
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President.
I think -- listen, we're -- we
sometimes get a little bit carried away here.
I just want to say, in closing,
that we are addressing a serious issue and
that everyone here should take a very close
look at what this statute provides.
The jurors from my district and
from Senator Balboni's district and Senator
DeFrancisco's district who take an oath to do
justice, when they take every factor into
account I believe have the ability to assess
whether or not someone should be allowed to
bring a claim because the claim arose in
connection with that person committing a
crime.
But I would urge everyone to
consider the breadth of the statute. This
does not just exonerate victims. My good
colleague, this is not about victims of
crimes. This exonerates -- or prevents,
protects from liability vigilantes, third
1804
parties who just might decide that someone who
didn't even commit a crime -- because look at
the statute. It could be someone attempting
to commit a crime. And some third party --
forget about the jury, forget about the judge,
can never be brought to court. No one can
even hear that claim if someone dies or
someone is paralyzed.
This statute is an extremely broad
statute. And I do not think that my good
friend Senator Balboni, upon reflection,
really does believe that you don't have access
to our civil justice system, to the courts of
this nation, if you commit a crime.
Remember, there are a lot of very
bad people out there who are protected by our
laws. They say hard cases make bad law.
Well, there are a lot of times in which there
are decisions that are made that I have
troubles with, but ultimately, for the last
several hundred years, the right to take your
case to a judge and jury has been as important
a part of our system of government as any
other.
And, arguably, this is what has
1805
defined our nation and made us a success where
many other experiments in democracy and
republican forms of government have failed.
Everyone has access to the courts,
everyone should have access to the system of
justice. It doesn't mean they win, and it
doesn't mean it's an expense-free enterprise.
But, frankly, democracy is very, very
expensive. Dictatorships are a lot cheaper.
I support democracy. Let's not
rush to change the law that doesn't need
changing. Let's not prevent any one person
who should be subject to liability from being
hauled before the bar of justice. I urge a no
vote.
THE PRESIDENT: Senator Kuhl.
SENATOR KUHL: Yes, Madam
President, just a point of information. Could
you, the desk or the Journal Clerk tell me how
many times Mr. Schneiderman has spoken on that
bill?
I believe it was three times, and
that's a violation of the rules. But I did
not want to raise the issue, I wanted to
provide him the courtesy.
1806
I would just remind the members of
the house that in fact there is a rule that a
person can only speak on a bill twice.
Thank you, Madam President.
THE PRESIDENT: Thank you,
Senator Kuhl.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator
DeFrancisco, to explain your vote.
SENATOR DeFRANCISCO: I just want
to explain my vote.
The fact of the matter is in civil
litigation there's a system that we have that
I think makes a lot of sense. It's called
comparative negligence. That you're judged
based upon what you've done, whether you're
negligent or not negligent.
And to have a blanket rule that
you're always considered to be at fault no
matter what the circumstances may be, based
1807
upon another proceeding, I think is wrong.
Judges are there to make sure the
rules are applied. There's appellate courts
to make sure the rules are applied. Blanket
rules may take care of most of the cases that
everyone feels are outrageous, but it also is
going to hold in its net those cases that
aren't outrageous where someone's comparative
negligence should have been taken into account
in a civil proceeding.
I vote no.
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 142 are
Senators Andrews, DeFrancisco, Dilan, Duane,
Hassell-Thompson, L. Krueger, Montgomery,
Parker, Paterson, and Schneiderman. Ayes, 49.
Nays, 10.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
259, by Senator Kuhl, Senate Print 2558A, an
act authorizing the Commissioner of General
Services, on consent of the Commissioner of
1808
the Department of Transportation, to transfer
and convey.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: An explanation
has been requested, Senator Kuhl.
SENATOR KUHL: Yes, Madam
President.
This is a very simple-oriented
bill. It allows or gives --
THE PRESIDENT: You may proceed,
Senator.
SENATOR KUHL: This bill, if
passed, would give the Commissioner of the
Office of General Services the permission to
transfer a parcel of land currently owned by
the State of New York to a municipality. In
exactness, it would be the County of Steuben.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Yes, thank
you. If the sponsor would yield for a
question.
THE PRESIDENT: Senator Kuhl,
will you yield for a question?
1809
SENATOR KUHL: Yes.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
SENATOR SCHNEIDERMAN: I wonder
if the sponsor could tell us what's the cost
of this transaction, how much money is being
provided.
SENATOR KUHL: There's no
provisions for the transfer of any funds that
I know of, Senator.
SENATOR SCHNEIDERMAN: Through
you, Madam President. Is it anticipated
that --
THE PRESIDENT: Senator Kuhl,
will you yield for a question?
SENATOR KUHL: Yes.
THE PRESIDENT: You may proceed
with a question, Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President.
Do we have any information at all
as to the value of the land that is to be
conveyed?
SENATOR KUHL: No.
SENATOR SCHNEIDERMAN: Through
1810
you, Madam President, if the sponsor would
yield for one final question.
THE PRESIDENT: Senator Kuhl,
will you yield for a final question?
SENATOR KUHL: I'd be happy to
yield for a question.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
SENATOR SCHNEIDERMAN: How, if
the sponsor knows, is a determination to be
made during this period of fiscal crisis as to
the value of the land that is being conveyed
through this statute?
SENATOR KUHL: Well, Senator, I'm
sure you're aware of the Public Lands Law --
in particular, Section 34 -- which authorizes
the conveyance by the Commissioner of General
Services of parcels of property owned by the
state to municipalities for basically general
purposes -- transportation, things of that
nature.
There is no provision to allow for
the transfer of property for a transfer
station of garbage. This bill would allow
that to happen.
1811
Currently, there is a piece of
property which is right in the way of an
interstate highway system that is being
proposed. It's the intersection of I-86 and
I-99, which is about 6 miles north of the
Pennsylvania border and runs through Steuben
county. The county operates a transfer
station at that location right now. The
highway would take that transfer station out
of existence. It will be taken by certainly
eminent domain.
The county has a wish to
reestablish and relocate that transfer
station, so the state is -- has a piece of
property that is not being used. It is
essentially a surplus piece of property. But
there is no statutory provision under the
current law that allows for this transfer from
the state to the county for this particular
purpose.
Now, you will note in the
legislation that's proposed that should the
purpose for which this parcel is being
conveyed ever cease, that the property then
reverts back to the State of New York. So it
1812
is essentially a temporary transfer for a
public purpose which is not authorized under
the current Public Lands Law, particularly
Section 34.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. On the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR SCHNEIDERMAN: My
understanding of the law that we're
discussing, or the area of law that we're
discussing, is that there is a requirement for
fair compensation.
The statute before us requires that
the conveyance of the land is to be made at
such time and on such terms and conditions as
the Commissioner of General Services may fix
and determine, including payment of such
consideration as the Commissioner of General
Services determines to be fair and equitable.
I think the concern that has
expressed by some is that this is something
that violates what I suppose Senator Volker
was referring to earlier when he stated that
when we allocate money or do things that cost
1813
money, we should know what we are allocating
it for.
It would be good for us to know
before we pass legislation how much money is
actually involved. I don't know the standards
by which the commissioner is going to make
this determination. It sounds as though this
is certainly something that is for a worthy
municipal purpose.
But I think, in keeping with the
debate that's gone on earlier today, the times
do require us to be cautious about the amounts
of money that are involved in any such
undertaking, and it would be prudent for us to
find out how much money is involved when we're
making transfers of this type.
Thank you, Madam President.
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 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
1814
THE SECRETARY: Ayes, 59.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
267, by Senator Golden, Senate Print 1504 --
SENATOR SKELOS: Madam President,
would you please lay that bill aside at the
request of the Minority. For the day, lay it
aside for the day.
THE PRESIDENT: The bill is laid
aside for the day, Senator.
THE SECRETARY: Calendar Number
311, by Senator Saland, Senate Print 1917, an
act to amend the Family Court Act, in relation
to evidence of child neglect.
SENATOR HASSELL-THOMPSON:
Explanation.
THE PRESIDENT: Senator Saland,
an explanation has been requested.
SENATOR SALAND: Thank you, Madam
President.
Madam President, this bill proposes
to take the current language, which deals with
somebody who regularly and voluntarily
participates in a drug or substance abuse
1815
program, where that person would otherwise be
accused of neglecting a child, and says that
instead of making the determination as to
whether that person has voluntarily and
regularly participated in such a program in
the fact-finding section, what this would
propose to do would be to place it under
Section 1052 of the Family Court Act in the
dispositional section.
The essence of what this is about
is that it effectively -- the ability to
allege that one is voluntarily and regularly
engaging in a substance and alcohol abuse
program effectively serves as a means by which
to at least initially obviate the neglect
proceeding that would otherwise occur where
somebody has neglected their child, allegedly
due to misusing drugs or alcohol to the extent
that that person loses the self-control of his
or her actions.
The idea behind this is that it
would be in the best interests of the child
and in fact for the family to have the ability
to have a situation in which the court would
monitor and be able to effectively determine
1816
that the person is not merely using their
voluntary attendance at a drug rehab program,
in essence to get out from underneath a
neglect petition.
This would effectively require some
meaningful participation in the program and
avoid what would otherwise be the use of an
affirmative defense to squelch a neglect
petition.
There have been cases in which this
has in fact occurred. This in part, I think,
reflects the reality of attempting to deal
with situations that far too frequently occur
within our system, and in part I would also
think would reflect some of the changes we
made when we adopted the ASFA legislation in
early 2000 in which we dealt with issues at
that time which effectively said in New York
thereafter the safety and well-being of a
child would have primacy in terms of
determining these types of proceedings and
that, while family preservation certainly
remained critically important, not where it
jeopardized a child's well-being.
THE PRESIDENT: Senator Krueger.
1817
SENATOR LIZ KRUEGER: I will
yield to Senator Velmanette Montgomery, if
that's all right with the chair.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President, I'm just going to speak on the
legislation.
I think we've seen this before.
We've had debates and discussions about it
with Senator Saland. And I just want to point
out that I understand that Senator Saland
seeks to address the safety of children whose
parents are found to be in this position.
But one of the problems that I've
raised with this is that we are removing for
parents a carrot which says that in order to
be eligible to be reunited with the child or
to continue and not be charged with abuse or
neglect, you must participate in a program for
rehabilitation and treatment.
So by not putting it on the front
end, and by there not being an assurance that
the decision will go in favor of the parent
even if they participate, it removes an
1818
incentive, it seems to me, for those people
who might be helped by treatment to go and
seek treatment by virtue of the fact that they
will be allowed to continue to be with their
children.
So I'm opposing this, even though
Senator Saland is proposing that the
dispositional phase of the case is when the
factor of drug treatment comes into play,
rather than the initial phase.
So I'm going to continue to oppose
this legislation, Madam President, because I
think that we stand a chance of in fact
discouraging parents to go into treatment and
rehabilitation.
Thank you.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. If the sponsor would
yield, Senator Saland.
THE PRESIDENT: Senator, will you
yield for a question?
SENATOR SALAND: Yes, Madam
President.
1819
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON:
Senator Saland -- through you, Madam
President -- has there been any thought to the
impact that this law may have on those
programs and the individuals who use them?
SENATOR SALAND: I would think
that they in fact would have a very beneficial
impact on the individuals that use them,
inasmuch as there would be, in effect, an
equal sign that voluntary and regular
participation would have to equal meaningful
participation.
The idea behind it being that that
meaningful participation would assist the
family in sustaining the family unit and
really would be in the best interests of the
child and that it would not merely be an
effort to try and avoid what occurs in
conjunction with a neglect proceeding, making
it into an adversarial proceeding in which the
idea is winning.
I don't think the idea is winning.
Whether you be the respondent or the
1820
petitioner, the idea is what's in the best
interests of the child.
And I would think that this would
very much be in the best interests of the
child.
SENATOR HASSELL-THOMPSON: Madam
President, if the sponsor would continue to
yield.
THE PRESIDENT: Senator, will you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: So,
Senator Saland, are you saying to me that you
do not believe that this bill removes the
regular and voluntary participation?
Because my understanding or my
interpretation of this bill is that you are
legislating as opposed to allowing for
voluntary participation.
SENATOR SALAND: No, what this
would say would be that to the extent that
somebody is regularly and voluntarily
1821
participating -- and let me get the exact
language here so that I make sure that you and
I are both on the same page.
If you look at page 2, under
Section 1052, down around lines -- the
beginning on line 17, "whether the respondent
has enrolled in a recognized rehabilitation
program and is participating therein in a
regular and satisfactory manner."
Satisfactory, meaningful -- I used
the term "meaningful." I would think that the
two would be somewhat similar.
And if you take a look at the
section before that, which is immediately
above that, that deals with Section 1046 of
the Family Court Act, which is the section
that deals with evidence.
And the kind of conduct that
they're talking about there I would think sort
of speaks for itself. You know, "Proof that a
person repeatedly misuses a drug or drugs or
alcoholic beverages to the extent that it has
or would ordinarily have the effect of
producing in the user thereof a substantial
state of stupor, unconsciousness,
1822
intoxication, hallucination, disorientation or
incompetence, or a substantial impairment of
judgment or a substantial manifestation of
irrationality, shall be prima facie evidence
that a child of or who is the legal
responsibility of such person is a neglected
child."
And I propose to take out "except
that such drug or alcoholic beverage misuse
shall not be prima facie evidence of neglect
when such person is voluntarily, regularly
participating in a recognized rehabilitation
program" and say that you weigh that type of,
I think, extraordinarily poor and lacking in
parental ability -- if not in just general
parental good sense -- conduct, and you bring
that to the end of the equation and say: We
want you to be the guardian, the parent, the
glue that helps your child get through life
and get through life capably. In your
condition, you can't do that. So we think
that it's imperative that you not merely agree
to voluntarily participate in a program, but
that participation be meaningful or -- again,
using the term in the bill -- satisfactory.
1823
Participating in a satisfactory manner.
And I think that that is critically
important to the best interests of the child.
SENATOR HASSELL-THOMPSON: Madam
President, through you.
THE PRESIDENT: On the bill?
SENATOR HASSELL-THOMPSON: Not
yet.
THE PRESIDENT: Do you have
another question?
SENATOR HASSELL-THOMPSON: If the
Senator will continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President.
Senator, can you, for me, in the
terms -- since you are the sponsor of the
bill, can you help me to understand what you
mean by "satisfactory" and how that would be
determined as a legislator versus someone who
1824
is from the medical profession?
SENATOR SALAND: I don't pretend
to sit as a judge. I think the judge, when he
or she takes the totality of the
circumstances, will have the ability. It's
almost, you know, what is a reasonable or
prudent person standard. I think a judge
has -- we don't define what is reasonable or
prudent when we put that standard in law.
But very similarly, I think what a
court determines to be satisfactory, whether
that person is participating in a satisfactory
manner -- and I would assume that that would
mean not merely regular attendance but
attendance in a fashion in which the end
result is that this person has the ability to
avoid the kinds of behavior that I referred to
before under 1046 and meaningfully relate with
his or her child in a fashion, again, that
would be in best interests of the child.
But that would come from the
totality of the circumstances as the court
would determine at that time.
SENATOR HASSELL-THOMPSON: Madam
President, through you, if the sponsor would
1825
continue to yield.
THE PRESIDENT: Senator, will you
yield?
SENATOR SALAND: Certainly.
THE PRESIDENT: You may proceed.
SENATOR SALAND: Let me also add,
Senator, that this talks about prima facie. I
mean, once you establish prima facie, or once
you create the ability to -- once you've
stated your case, you effectively then are
transferring the burden over to the other
party.
So in this case where I'm
eliminating the language about prima facie
evidence, in effect what I'm saying is I'm
taking that out of the mix, not going forward,
and I'm just saying the time for you to go
forward will be at the end of the hearing,
that we're not going to give you effectively
that ability at the beginning of the
proceeding.
SENATOR HASSELL-THOMPSON: So my
question that you agreed to yield to, are you
stating that without this language that judges
now faced with these cases do not have the
1826
ability to make reasonable or satisfactory
assessments using -- I think your words --
meaningful participation such as regular
attendance, et cetera, et cetera?
SENATOR SALAND: No. What I'm
saying is that there is a divergence on how to
deal with this particular section.
There's at least one court that has
said that in fact the refusal of a parent to
engage in meaningful participation in a
program constitutes in and of itself neglect.
That is in a recorded case; I don't recall
whether it was a Family Court case or an
Appellate Division case.
There are other courts who have
construed this to mean once you show that
you're voluntarily and regularly
participating, that you have effectively made
your case, and it prevents the presumption
otherwise set forth with regard to negligence
from going forward.
SENATOR HASSELL-THOMPSON: Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator, do you
1827
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Thank
you, Senator. Thank you, Madam President.
In past debates, Senator Saland,
you used the term "immunity bath" for the
protection which respondents now have under
the law.
However, current law states that if
any evidence that the child's physical,
mental, or emotional condition is impaired or
in danger of being impaired, the proceeding
may continue. Can you help me with that?
SENATOR SALAND: You may recall
when I used that, I said it really doesn't
fit. And if you're looking at the transcript,
I'm willing to bet you can find that.
SENATOR HASSELL-THOMPSON: Yes, I
do.
SENATOR SALAND: So I said it
really doesn't fit, but it was something akin
to an immunity bath. And I used that for lack
1828
of any other term at the time.
So what is the rest of your
question?
SENATOR HASSELL-THOMPSON:
Current law. Because my concern with this
bill -- I'm sorry, Madam President, through
you. And I really was trying not to go on the
bill, because I want to continue to ask you
just a couple of more questions.
THE PRESIDENT: Senator, will you
yield for another question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Thank
you.
See, my contention is that, number
one, we're taking a certain judicial
discretion from judges in the courts in some
of the legislative initiatives in this bill.
Secondly, it appears that this bill
removes voluntary participation in alcohol and
drug rehab programs as what I consider to be
an affirmative defense for child neglect
1829
proceedings. And it instead authorizes the
court to consider such participation in the
disposition phase of the proceeding. And it
also allows the court to require such
participation in dispositional orders.
To my question. There are concerns
that parents who lack sufficient financial
resources to provide themselves with adequate
counsel end up losing on both ends. And --
SENATOR SALAND: Let me say that
with regard to the first part of your comment,
I would agree with you insofar as it does, and
it was my intention to do away with the
affirmative defense.
I would, however, beg to differ
with you --
SENATOR HASSELL-THOMPSON: I'm
sorry, I couldn't hear you. And I apologize
for your colleagues.
Madam President.
SENATOR SALAND: Madam President.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, I yield.
But I believe it's a question of order. The
1830
Senator cannot hear me.
I think what I had just said was
something to the effect of I would concur with
your observation that it does away with the
affirmative defense, and that is something
which, quite candidly, I had hoped to
accomplish with this bill.
But I would disagree with your
contention that it denies discretion to the
court. I think, if anything, it provides more
discretion to the court.
I have a comfort level with that.
And some people may not have a comfort level
with that. And it may well reflect the fact
that I've at some time in my life spent a lot
of time practicing and handling these types of
cases in Family Court.
But you then went on to say
something else, Senator, and I don't quite
recall what that something else was.
SENATOR HASSELL-THOMPSON: What I
was saying was -- if I may, Madam President --
there are concerns that parents who lack
sufficient financial resources to provide
themselves with adequate counsel will be
1831
unable to navigate through the confusing
Family Court system, and it potentially sets
up a situation where children may be forced to
stay in foster care longer and may even lead
to cases where parents' rights are terminated.
SENATOR SALAND: There is
certainly no desire to have children languish
in foster care longer. I mean, that's not
what this is about.
And I would just merely say to you
whatever is the extent of representation
that's being provided now would not in any
way, shape, or form be impaired by this bill.
All this bill does is say we will
entertain this issue, not at the beginning of
the proceeding -- and whomever the counsel
might be at the beginning of the proceeding
would assumedly be the same counsel at the end
of the proceeding -- we will entertain it at
the end or dispositional phase of the
proceeding.
And it would be my hope, my very
serious and fervent hope, that as part and
parcel of that dispositional hearing that the
court would say where that parent has
1832
participated and participated meaningfully or
satisfactorily, as the case would be, that
it's working. And we very much want to
maintain that family unit, to preserve that
family unit.
In other instances the court may
say, Unless you're going to participate more
meaningfully, we're going to remove your
child. Or the court may say, Yeah, we'll
remove your child, you take -- you participate
in the program and show that you mean it and
we'll be back in court six months from now,
and hopefully then I can make the order
returning your child to you, and you'll both
benefit from it.
As I said, I don't profess to be a
judge. But nonetheless, cases are determined
on their facts. And I think these cases are
more than facts, they involve families. And I
think the court has to have the ability to
assist when we're talking about children. And
I believe this is a tool to accomplish that.
SENATOR HASSELL-THOMPSON: Thank
you. That's the point at which I want to
speak on the bill, Madam President.
1833
THE PRESIDENT: You may proceed
on the bill.
SENATOR HASSELL-THOMPSON: Thank
you.
Senator Saland, you know, I applaud
your efforts in this bill and in many others,
and certainly some that Senator Meier has put
forward, since I have been here in the State
Senate.
But I always am concerned that
somewhere in here the incidences of parents
who are substance abusers are somehow lost in
an attempt to save children.
And certainly it has been, from my
own many years of professional experience
working with these parents, that children have
been my greatest concern. I have been the
greatest advocate for children under these
circumstances. And working with women for at
least 20 of the last 25 years of my career,
working specifically with women and children
of substance abusers, I have had some
experience with many of these cases and
certainly have represented both children and
parents in the courts.
1834
And so I don't want anyone to
construe my concern about the legislation as
not being one who is not concerned about
children, because certainly I am. But I am
concerned that this particular bill creates a
disincentive for parents to enroll in
substance abuse rehabilitation programs. It
does not give parents or guardians credit for
their actions in the fact-finding portion of a
neglect proceeding, but rather simply takes
program participation into account in the
dispositional phase, like any other
circumstance.
This legislation fails to consider
the fact that many of the respondents do not
have money for an adequate defense and would
likely suffer the consequence of such lack of
representation. The element of this exception
will likely create more cases where children
are unnecessarily removed from their homes.
Substance abuse, as a reminder, is
a disease. For the inflicted individual, it's
a lifelong struggle to maintain sobriety. One
slip should not place the individual in a
situation where they have to go through an
1835
entire court proceeding and put their sobriety
in greater jeopardy because of the emotional
stress, unless there are other circumstantial
reasons for the proceeding.
Thank you, Madam President. I will
vote no.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. Since so many of the
questions have been raised already, I'll go
directly to speaking on the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR LIZ KRUEGER: Thank you,
Madam President.
I'd like to highlight again, as my
colleague Ruth Hassell-Thompson just spoke so
eloquently on, that I think that the dangers
of this bill override the advantages.
And I do also, I respect Senator
Saland's work on issues around children and
families and improvements that have been made
in the Family Court system because of the work
that he has done over the years.
But for me, what stands out in this
1836
bill is it will discourage parents of children
who have substance abuse problems from
voluntarily going forward to seek treatment
because of the fear that the act of seeking
treatment and exposing themselves to someone
else -- an institutional setting or the
government -- that they have a substance abuse
problem, will cause the outcome to be that
they lose their children until the
dispositional period, which can be months and
months and months. It will discourage them
from seeking the help that is in the best
interests of themselves and their children.
Even if I were to argue that it's
not the intent of Senator Saland's bill to
discourage people from voluntarily
participating in drug treatment, my own
experience also, in twenty years of working in
community-based organizations with families
who have had substance abuse problems and
other issues, is that's exactly what happens.
When we put the burden on families
to believe that they risk the loss of children
if they go forward to seek help, all we do is
encourage them to hide the problem, making it
1837
worse.
Now, under the existing law as it
stands, a court can still recognize dangers to
the children and remove those children from
the home whether or not the parent is
participating in a drug treatment program.
But under the law as Senator Saland has
proposed changing it, families will not go
forward to seek help because they will believe
that they are at risk of losing children
simply by asking for the help, when before
they weren't at that risk.
I have seen it happen with families
in my own work when it comes to substance
abuse. I have seen women stay with domestic
violence abusers because they believe that
seeking help will somehow translate to an
accusation that they failed to protect their
own children, and so they stay quiet. I have
seen families in the City of New York not come
forward to seek help to avoid eviction and
homelessness because of the belief that they
will lose their children on the grounds that
they neglected them by ending up homeless.
I believe that the goals of the
1838
state, and I believe the goals of Senator
Saland, are not to try to break up families
unnecessarily, are not to take children away
from their parents unnecessarily, and are not
to discourage people from voluntarily
participating in drug treatment.
And I will also highlight that all
of the research shows that adults who go
forward on a voluntary basis to participate in
substance abuse programs are the people who
are the most successful in the outcome of
those programs. When people go into programs
under threat or under court order, they have a
much lower success rate than people who
voluntarily participate in these programs.
And so to change our laws to
discourage people from being able to go
forward, admit they have a problem, get
services and keep their families together I do
not believe will be in the best interests of
children, their families, or the State of
New York.
So I would urge my colleagues to
vote no on this bill, and urge Senator Saland
to reevaluate his own position on this.
1839
Because I know that his goals are the same as
mine on behalf of children and getting
substance abuse treatment for adults who are
suffering from this illness.
Thank you very much, Madam
President.
THE PRESIDENT: Does any other
member wish to be heard?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect on the 120th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 311 are
Senators Andrews, Dilan, Duane,
Hassell-Thompson, L. Krueger, Montgomery,
Parker, Paterson, Schneiderman, and A. Smith.
Ayes, 49. Nays, 10.
THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes the
reading of the controversial calendar.
SENATOR SKELOS: Madam President,
1840
is there any housekeeping at the desk?
THE PRESIDENT: Yes, there is,
Senator.
Senator McGee.
SENATOR McGEE: Thank you, Madam
President.
On behalf of Senator LaValle, on
page number 16 I offer the following
amendments to Calendar Number 260, Senate
Print Number 2562, and ask that said bill
retain its place on the Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
SENATOR McGEE: Thank you, Madam
President.
On behalf of myself, on page
number 24 I offer the following amendments to
Calendar 379, Senate Print Number 3230, and
ask that said bill retain its place on Third
Reading Calendar.
THE PRESIDENT: That amendment is
also received, and the bill will retain its
place on the Third Reading Calendar.
1841
SENATOR McGEE: Thank you, Madam
President.
I wish to now call up my bill,
Print Number 2482, recalled from the Assembly,
which is now at the desk.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
278, by Senator Volker, Senate Print 2482, an
act to amend the Criminal Procedure Law.
THE PRESIDENT: Senator McGee.
SENATOR McGEE: Madam President,
I now move to reconsider the vote by which
this bill was passed.
THE PRESIDENT: The Secretary
will call the roll upon reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
SENATOR McGEE: Madam President,
I now offer the following amendments.
THE PRESIDENT: The amendments
are received, Senator.
SENATOR McGEE: Thank you, Madam
President.
THE PRESIDENT: Senator Skelos.
1842
SENATOR SKELOS: Madam President,
there being no further business to come before
the Senate, I move we stand adjourned until
Wednesday, April 9th, at 11:00 a.m.
THE PRESIDENT: On motion, the
Senate now stands adjourned until tomorrow,
Wednesday, April 9th, 11:00 a.m.
(Whereupon, at 5:00 p.m., the
Senate adjourned.)