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.



                                                        1742



                 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



                                                        1743



                 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



                                                        1744



                 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.



                                                        1745



                            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.



                                                        1746



                            (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



                                                        1747



                 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



                                                        1748



                 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



                                                        1749



                 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



                                                        1750



                 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



                                                        1751



                 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.



                                                        1752



                            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



                                                        1754



                 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 --



                                                        1756



                            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



                                                        1757



                 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?



                                                        1758



                            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



                                                        1759



                 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.



                                                        1761



                            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



                                                        1762



                 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



                                                        1763



                 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



                                                        1764



                 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.



                                                        1765



                            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



                                                        1766



                 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.



                                                        1767



                            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



                                                        1768



                 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



                                                        1769



                 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.)