Regular Session - May 13, 2003
2481
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
May 13, 2003
3:17 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we each bow our heads in a moment
of silence, please.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, May 12, the Senate met pursuant to
adjournment. The Journal of Friday, May 9,
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.
2483
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Johnson,
from the Committee on Finance, reports the
following nominations:
As a member of the Port of Oswego
Authority, Thomas W. Schneider, of Oswego.
THE PRESIDENT: Senator Johnson.
SENATOR JOHNSON: Move the
nominations.
THE PRESIDENT: The question is
on the confirmation of Thomas W. Schneider, of
Oswego, as a member of the Port of Oswego
Authority, for a term to expire September 1st
in the year 2006. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The nominee is
hereby confirmed.
The Secretary will read.
THE SECRETARY: As a member of
the State Racing Commission, Lorraine Power
2484
Tharp, Esquire, of Saratoga Springs.
THE PRESIDENT: Senator Larkin.
SENATOR LARKIN: Thank you, Madam
President.
I am honored and privileged to put
forth the nomination of Lorraine Power Tharp
to be a member of the Racing and Wagering
Commission.
One just has to take look at her
resume and has to be very, very impressed.
She has held every office within the legal
profession, from the state to the national
level. She has authored many books concerning
what should and what shouldn't be done. She's
just published a book on the guidance for
lawyers that's over a thousand pages long.
I'll read it sometime.
But when you look and see her
ability to discuss the issues of racing -- at
a meeting this morning that we had at the
Racing and Wagering Committee, many questions
were asked. And her enthusiasm of not just a
title but of being able to be a partner with
the state to ensure that what we're going to
do with Racing and Wagering was a credit not
2485
only to herself but to the State of New York.
I place her name in nomination.
THE PRESIDENT: Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
I rise to second the nomination of
Lorraine Power Tharp.
You know that Saratoga Springs is
the epicenter of racing for the world. And I
think it was rather significant that yesterday
this entire Senate was honoring a constituent
of Senator Bruno's up there called Funny Cide.
And we were thrilled to see that a
New York-bred won that.
And I think it's so significant
that we have somebody so eminently qualified
to be a member of the State Racing Commission
as Lorraine Power Tharp. And it is with
enthusiasm that I support her nomination.
THE PRESIDENT: Senator Breslin.
SENATOR BRESLIN: Thank you,
Madam President.
I rise to echo my fellow Senators
in praise of Lorraine Power Tharp. Lorraine
has been a friend for over 25 years, a fellow
2486
lawyer, and someone who has the utmost respect
of the entire legal community, which resulted
in her being elevated to the position of
president of the New York State Bar.
So I look forward to seeing
Lorraine many times in the future in her new
capacity and also in her capacity as a lawyer.
Thank you, Madam President.
THE PRESIDENT: The question is
on the confirmation of Lorraine Power Tharp,
of Saratoga Springs, as a member of the State
Racing Commission, for a term to expire
February 1st in the year 2004. All those in
favor please signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The nominee is
hereby confirmed.
And on behalf of the Senate and as
a colleague and member of the state bar,
congratulations. We are indeed privileged to
have you on the Racing and Wagering Board.
Congratulations.
(Applause.)
2487
THE SECRETARY: As a member of
the Mental Health Services Council, Edgar R.
Scudder, of Mohawk.
As a member of the Advisory Council
on the Commission on Quality of Care for the
Mentally Disabled, Dale R. Angstadt, of
Gansevoort.
As a member of the Board of
Visitors of the Central New York Developmental
Disabilities Services Office, Margaret W.
Abbott, of Rome.
As a member of the Board of
Visitors of the Helen Hayes Hospital, David G.
Welch, M.D., of Queensbury.
As a member of the Board of
Visitors of the Metro New York Developmental
Disabilities Services Office, Fredricka J.
Pol, of the Bronx.
And as a member of the Board of
Visitors of the New York State Home for
Veterans and Their Dependents at Oxford,
Beverly P. Gardinier, of Amsterdam.
THE PRESIDENT: Senator Johnson.
SENATOR JOHNSON: Move the
nominations, Madam President.
2488
THE PRESIDENT: The question is
on the confirmation of the nominees as read by
the Secretary. All in favor please signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The nominees are
all hereby confirmed.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
THE PRESIDENT: Excuse me,
Senator Farley. I see Senator Skelos
standing.
SENATOR SKELOS: Thank you, Madam
President.
There will be an immediate meeting
of the Investigations Committee in the
Majority Conference Room.
THE PRESIDENT: There will be an
2489
immediate meeting of the Investigations
Committee in the Majority Conference Room.
Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
On behalf of myself, on page 17,
Calendar Number 203, Senate Print 2263, I
offer the following amendments.
Also on page 17, one of my bills,
Calendar 205, Senate Print 2265, I offer
amendments.
And to the following bills I offer
amendments:
On behalf of Senator LaValle, on
page 23, Calendar 337, Senate Print 288A.
On behalf of Senator Golden, on
page 42, Calendar 650, Senate Print 3974.
On behalf of Senator Maziarz, on
page 36, Calendar Number 567, Senate Print
930.
On behalf of Senator Libous, on
page 37, Calendar 580, Senate Print 3023.
And on behalf of Senator Hannon, on
page 15, Calendar Number 143, Senate Print
1089.
2490
I ask that these bills retain their
place on the Third Reading Calendar.
THE PRESIDENT: The amendments
are received and adopted, and the bills will
retain their place on the Third Reading
Calendar.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President.
On behalf of Senator Parker, I
would move that the following bills be
discharged from their respective committees
and be recommitted with instructions to strike
the enacting clauses: Senate 4260, 4261,
4263, 4266, and 4267.
And Senator Parker promises to get
it right next year.
(Laughter.)
THE PRESIDENT: So ordered, in
its entirety.
Senator Skelos.
SENATOR SKELOS: Madam President,
are there any substitutions at the desk to be
made at this time?
THE PRESIDENT: Yes, there are,
2491
Senator.
SENATOR SKELOS: If we could make
the substitutions, please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 6,
Senator Hoffmann moves to discharge, from the
Committee on Agriculture, Assembly Bill Number
8295 and substitute it for the identical
Senate Bill Number 4979, First Report Calendar
788.
On page 22, Senator Volker moves to
discharge, from the Committee on Civil Service
and Pensions, Assembly Bill Number 1874A and
substitute it for the identical Senate Bill
Number 2325A, Third Reading Calendar 325.
On page 40, Senator Spano moves to
discharge, from the Committee on
Transportation, Assembly Bill Number 6634 and
substitute it for the identical Senate Bill
Number 3814, Third Reading Calendar 638.
And on page 47, Senator Robach
moves to discharge, from the Committee on
Civil Service and Pensions, Assembly Bill
Number 7913 and substitute it for the
2492
identical Senate Bill Number 4108, Third
Reading Calendar 707.
THE PRESIDENT: Substitutions
ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
I move 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.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial reading
of the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
222, by Senator Hannon, Senate Print 454, an
act to amend the Public Health Law, in
2493
relation to providing.
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, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
223, by Senator Little, Senate Print 1838, an
act to authorize certain health care
professionals licensed to practice.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on July 23, 2003.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
309, by Senator Saland, Senate Print 1913A, an
2494
act to amend the Social Services Law, in
relation to abandoned infants.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 12. This
act shall take effect on the 60th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
318, by Senator Skelos, Senate Print 1015, an
act to amend the Family Court Act and the
Domestic Relations Law, in relation to
abandoned infants.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 10. This
act shall take effect on the 60th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
THE PRESIDENT: The bill is
passed.
2495
THE SECRETARY: Calendar Number
372, by Senator Balboni, Senate Print 2498B,
an act to amend --
SENATOR LIZ KRUEGER: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
474, by Senator LaValle, Senate Print 2067, an
act to amend Chapter 668 of the Laws of 1977,
amending the Volunteer Firefighters Benefit
Law.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
496, by Senator Spano, Senate Print 3766, an
act to amend the Labor Law, in relation to
making the failure to post a statement of
wage.
SENATOR SKELOS: Lay it aside for
the day.
THE PRESIDENT: The bill is laid
aside for the day.
2496
THE SECRETARY: Calendar Number
501, by Senator Velella, Senate Print 4177, an
act to amend the Labor Law, in relation to
requiring the special task force.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 12. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
502, by Senator Volker, Senate Print 623, an
act to amend Chapter 672 of the Laws of 1993,
amending the Public Authorities 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, 57.
THE PRESIDENT: The bill is
2497
passed.
THE SECRETARY: Calendar Number
517, by Senator Kuhl, Senate Print 2295,
Concurrent Resolution of the Senate and
Assembly proposing an amendment to Section 4
of Article 8 of the Constitution.
THE PRESIDENT: The Secretary
will call the roll on the resolution.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
547, by Senator Robach, Senate Print 3903, an
act to amend the General Municipal Law and the
Retirement and Social Security Law, in
relation to increasing.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect July 1, 2003.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
THE PRESIDENT: The bill is
2498
passed.
THE SECRETARY: Calendar Number
555, by Senator Leibell, Senate Print 4476, an
act to amend the Retirement and Social
Security Law, in relation to the receipt of
full pension benefits.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes the
noncontroversial reading of the calendar.
SENATOR SKELOS: Thank you, Madam
President.
There will be an immediate meeting
of the Local Governments Committee in the
Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Local Governments
Committee in the Majority Conference Room.
2499
SENATOR SKELOS: And if we could
go to the controversial reading of the
calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
372, by Senator Balboni, Senate Print 2498B,
an act to amend the Penal Law, in relation to
establishing.
SENATOR LIZ KRUEGER:
Explanation.
THE PRESIDENT: Senator Balboni,
an explanation has been requested.
SENATOR BALBONI: Thank you,
Madam President.
This bill is a bill that we have
discussed on several different occasions, but
this bill is a newer and improved version,
thanks to the input of none other than Senator
Schneiderman, who last year -- yes, Senator
Schneiderman.
And you think he doesn't contribute
to this process. Of course he does. He
contributes in every way, shape, and form.
And certainly it is today.
2500
Senator Schneiderman, last year
after our discussion about this bill -- which,
to refresh the people's recollection, this is
a bill which would criminalize the sale of
drugs in a home from the perspective of having
children in the home at the time of the drug
sale.
And many people in law enforcement
have pointed to the fact that when drugs are
being sold in any type of facility that there
is a potential for violence. Certainly there
is a potential for police and law enforcement
officials breaking into the apartment. And
there is also a potential for child abuse in
this situation.
So the thing that we must
criminalize and focus on when it comes time to
get the defendants into court is the fact that
they would be so brazen and so negligent in
their care of children, or their concern for
children, that they would continue to sell
drugs notwithstanding the fact that children
are present in the home.
Last year, Senator Schneiderman
brought up the fact that the bill back then
2501
had the phrase custodial parent or
custodial -- I'm sorry, it had a custody
relationship, the adult had a custodial
relationship with the child. And therefore
that would be the nexus by which we would
prosecute someone.
And Senator Schneiderman pointed
out the fact that you shouldn't limit it to
just being in a custodial role. Rather, you
should say any parent or any adult should be
aware and cognizant that there are children in
the home and therefore, if they choose to do
it notwithstanding that, they should be
penalized.
And we make, in this statute, this
particular offense an E felony.
Thank you, Madam President.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Madam
President, if the sponsor would yield, please.
THE PRESIDENT: Senator Balboni,
will you yield for a question?
SENATOR BALBONI: Yes, I would,
Madam President.
THE PRESIDENT: You may proceed,
2502
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
Senator Balboni, you stated that
this bill would make it illegal to sell drugs
in the home if a child was there. Is it not
already illegal to sell drugs in your home?
SENATOR BALBONI: It sure is.
And what this bill does, furthermore, is focus
on the aspect of the drug sale as being done
with reckless disregard.
This is almost a -- this could be
akin to someone who injures somebody but does
so in a way that they could have injured a lot
more people. And therefore, it's that
reckless nature of the act that we've chosen
to penalize and increase the penalty for.
SENATOR LIZ KRUEGER: Madam
President, if the sponsor would continue to
yield.
THE PRESIDENT: Senator Balboni,
will you yield?
SENATOR BALBONI: Yes, Madam
President, I will.
THE PRESIDENT: You may proceed,
Senator Krueger.
2503
SENATOR LIZ KRUEGER: Senator, I
would agree with you that selling drugs in a
home with children in it is clearly bad public
policy. And you used the term "reckless," and
I wouldn't disagree with that.
It's my understanding that from a
child-protective perspective, we also already
have the right to remove children from the
home if their parents are selling drugs in
that home, even before your law is in effect.
So we already have a law that says
it's illegal to sell drugs in your home, and
we have a law that says we can remove children
from the home if parents are selling drugs in
the home.
What does your bill do different
than those existing laws by adding this
additional category?
SENATOR BALBONI: This bill now
would allow prosecutors to include in the
indictment or in the prosecution an additional
crime and penalty of selling drugs in the home
while children are present.
SENATOR LIZ KRUEGER: Madam
President, through you, if the sponsor would
2504
continue to yield.
THE PRESIDENT: Will you yield,
Senator?
SENATOR BALBONI: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
So if I understand you correct,
this would add an additional penalty, you
could face two felonies for one charge of
dealing, as opposed to currently the one
felony.
SENATOR BALBONI: Madam
President, through you, it would of course
depend upon the amount of drugs that you were
selling in order whether or not it would reach
a felony classification.
But this would be a felony, an
E felony, no matter what amount of drugs are
being sold.
SENATOR LIZ KRUEGER: Madam
President, if, through you, the sponsor would
continue to yield.
THE PRESIDENT: Senator?
2505
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: He does yield.
You may proceed, Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
I appreciate all of the answers,
but that one in particular, because it brings
up my next question.
So I could be selling -- it's
always dangerous, I suppose, to use yourself
as an example in a drug case, but I could be
selling marijuana in my home in front of my
child at a small amount that would not reach a
felony charge but could, under your law, still
face a second charge, a felony charge, because
I was, quote, dealing marijuana in my home
with a child there. Is that correct?
SENATOR BALBONI: First of all,
is it a controlled substance?
SENATOR LIZ KRUEGER: I believe
that marijuana is -- I don't think your bill
said "controlled substance." Did it?
SENATOR BALBONI: I think that
would be -- Senator Krueger, I believe that
that would be for the prosecutor to determine
2506
as to whether or not to bring the original
indictment or prosecution.
In other words, it would be
fact-dependent.
SENATOR LIZ KRUEGER: Madam
President, through you.
THE PRESIDENT: To proceed on the
bill?
SENATOR LIZ KRUEGER: No, I'm
sorry, it's another question for the sponsor.
THE PRESIDENT: Excuse me,
Senator Skelos has risen.
Senator Skelos.
SENATOR SKELOS: If you'd excuse
the interruption, Senator Alesi has asked me
to call an immediate meeting of the Commerce
Committee in the Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Commerce Committee,
also in the Majority Conference Room.
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
I was asking whether Senator Balboni could
continue to yield.
THE PRESIDENT: Senator Balboni,
2507
will you yield for an additional question?
SENATOR BALBONI: Yes, Madam
President, I do.
THE PRESIDENT: You may proceed,
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
So perhaps I didn't understand your
answer, I'm sorry. So I could be -- whether
or not I am charged with a felony for selling
marijuana may be discretionary upon the
prosecutor, but it would also be discretionary
whether I got charged for -- under your new
law?
SENATOR BALBONI: No. Madam
President, perhaps -- let me add some
clarification to the debate. Perhaps this
would be helpful.
SENATOR LIZ KRUEGER: Thank you.
SENATOR BALBONI: I think that
your -- the example you're using is perhaps
problematic, since marijuana is not a
controlled substance for the purposes of this
debate. Crack cocaine, you're selling crack
cocaine.
SENATOR LIZ KRUEGER: Okay.
2508
SENATOR BALBONI: That's a much
better example for the purposes of this. And
so therefore, yes, if you -- you cannot sell
crack cocaine and not commit a felony.
So that is the example that's a
better fit for this particular bill.
SENATOR LIZ KRUEGER: Madam
President, if, through you, the sponsor would
continue to yield.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
I'm sorry, I still -- I don't -- I
accept that we could use crack cocaine versus
marijuana, although I don't see where in your
bill you clarify that.
SENATOR BALBONI: I don't. It's
in the statutes.
SENATOR LIZ KRUEGER: So in fact
it could be low-level drug dealing of
marijuana --
2509
SENATOR BALBONI: No, it wouldn't
be involved in this.
SENATOR LIZ KRUEGER: It wouldn't
be involved.
Because this says dealing with a
child in the first degree when a person sells
drugs in the presence of a child under 18,
it's not clear to me that it says it's a --
that it couldn't be a marijuana charge. It
says selling or using.
SENATOR BALBONI: There is a --
the issue is the -- is the phrase "controlled
substance." "Controlled substance" is a term
of art within the Penal Law and therefore has
a specific definition. And the definition is
that it does not include marijuana.
So it's by reference that that's
why your example would not be appropriate.
SENATOR LIZ KRUEGER: Okay.
Thank you.
Madam President, if, through you,
the sponsor would continue to yield.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, Madam
2510
President, I yield.
THE PRESIDENT: You may proceed,
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
So I do correct myself. My counsel
was pointing out the same thing you were at
that time, and I hadn't seen that correctly.
So let's say it is a different kind
of drug, depressants. I'm selling
depressants. Or antidepressants, in that
case.
SENATOR BALBONI: Or crack
cocaine.
SENATOR LIZ KRUEGER: Or crack
cocaine, right.
My concern here is that if you're
setting up a bill where you'd have potentially
an additional felony charge at the same time
as you already had the drug charge, that you
were setting up a scenario where people who
may in fact, still, even though they are
dealing -- and I am not supporting that, and I
am certainly not supporting their selling
drugs in front of their children -- they may
lose their opportunity to actually be able to
2511
go into a drug rehab program rather than do
jail time or an ATI program, because now they
face both the criminal drug charge and a
second felony charge that is associated with
it being a drug charge but is not per se a
drug charge itself.
So I was wondering whether you had
thought through what the impact might be on
discouraging people who, again, might be
first-time offenders, low-level -- even though
it's controlled-substance dealing in their
home, not something you want to defend -- that
we're actually setting up a situation where
people end up with no option but to go to jail
and lose their children when that may not be
in the best interests of anyone.
SENATOR BALBONI: Madam
President, through you -- and in fact, Madam
President, you probably know more about this
debate than most people in the chamber.
The fact that there are two
felonies that would be charged at the same
time would not act as a preclusion. You can
charge someone with ten felonies. That's not
the operative issue. What is the operative
2512
issue is if you have felonies over time.
So this would not, in and of
itself, act as a preclusion to any type of
other programs that you might otherwise be
eligible for. So there won't be any --
there's not a possibility of the situation you
describe.
And I know of your concern
generally that we shouldn't, as the old saying
goes, throw the baby out with the bathwater.
In other words, you know, sever parental
relationships by too harsh a penalty.
But let me tell you what the law
enforcement community has spoken to me about.
And, you know, you have to rely on their
expertise, because they deal with this every
day. And I would daresay that no one in this
chamber, nor none of our staffs, deal with
this issue every day.
They tell me that if you have
somebody who's selling crack cocaine in their
residence -- not on the street corner, not in
some burned-out building, but in their
residence -- and if children are present, that
they don't have any concern or regard for
2513
their children.
And if I were sitting as a Family
Court judge, that alone would be enough to
sever parental relationships. You're gone.
Because maybe it's not this time, but maybe
it's the next time that somebody comes in with
a gun and sprays the apartment with bullets,
and now you're putting that child right in the
line of fire.
Or when you're selling this kind of
substance, you now get so hopped up and high
yourself that you abuse the child. This is
what the law enforcement community is telling
us. This is what they're asking for, with
their expertise that they get on the streets
every day.
So I think that though any time you
take a child away from a parent it's such a
difficult thing to consider, in this
circumstance, where you're trying to make
money, it's not -- remember, we're not just
saying possession, Senator Krueger. We could
have said possession. We're not saying that.
We're saying sale.
And within our jurisprudence and
2514
with our expertise in the law enforcement
community, a sale is a much different animal
than mere drug possession and use. And if
you're selling it, you're bad. You're going
to go to jail and you ought to really go to
jail even longer if you do it while there are
children in the facility.
That's really what the bill talks
about.
SENATOR LIZ KRUEGER: Madam
President, on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR LIZ KRUEGER: Thank you.
I appreciate Senator Balboni's
analysis of the arguments for law enforcement.
And truly it is not an easy thing to stand on
the floor of the Senate and say: Wait a
second, are you trying to defend the rights of
a parent who would sell drugs in their home
with children there? I don't think any of us
would accept that as a justification for
actions.
But I also think that Senator
Balboni lays out a scenario that, while it may
2515
be accurate in some situations, is also one
extreme example.
Perhaps the more common example --
and it's why I'm so in a dilemma about this
legislation, I do believe that we are putting
too many people into jail for drug use in the
state of New York. I say over and over again
in every opportunity I have on this floor that
we should be addressing the unfairness of the
Rockefeller Drug Laws, that we should be
putting more people into drug treatment and
putting more funding into drug prevention than
into putting people into jail under drug laws.
And so it does concern me that this
would be one more felony charge to add to the
category of things that we put people in jail
for related to their drug use. Although it is
true, this is only on drug sales. And it's
controlled-substance sales.
But I still think it's an
oversimplification of the world that you can't
imagine a scenario where a woman with a drug
habit ends up selling a small quantity of
drugs out of her house in order, frankly, to
not leave her child alone in the house and hit
2516
the streets, and could find herself then
facing double charges of felonies and go to
jail for a longer period of time because of
your law.
And yet I also can't condone the
idea that society or our government wouldn't
say if somebody is selling drugs, if somebody
is using drugs, if somebody is selling drugs
in a home with a child, that there is a role
for government to make sure should that child
be there, should we remove that child, should
we make sure we are doing, of course,
everything we can to protect that child.
My confusion is I think we have the
tools to do so already in our Penal Law. We
can already charge people for selling drugs,
and we can already remove children from their
homes if their parents put them in a dangerous
situation. And I believe that our social
service and child welfare laws would certainly
define selling drugs in your home as a reason
to remove children from the home.
And so I am worried that what your
bill may do, although it might not have been
the intention, is to increase the chances that
2517
we will put people into jail for a longer
period of time without other options.
Having said that, I will vote yes,
but with real hesitancy about the impact.
Thank you.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. Very briefly on the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR SCHNEIDERMAN: I
appreciate the concerns that Senator Krueger
has expressed and others have expressed in the
past debating this piece of legislation.
I do have to say, though, that I
think Senator Balboni has targeted something
here that is a legitimate law enforcement
problem. I have brought quite a few
proceedings -- when I was a private lawyer, I
represented community groups on many occasions
trying to evict drug dealers. And in
New York, unlike many other places, drug
dealing is run primarily out of residential
housing.
2518
And it in fact is a strategic move
on the part of many drug dealers to try and
deal out of places where there are children,
because it makes it less likely that a judge
will actually evict the tenant of record.
This is not something that has just
been cooked up out of thin air by Senator
Balboni. This is an actual problem that law
enforcement faces. It is a very difficult
thing to do to put an end to a drug dealing
enterprise. Even if you arrest some of the
lower-level participants in the enterprise, if
you don't close down the drug operation, it
can renew itself for many, many years.
And I found that it was
particularly frustrating in bringing these
proceedings to have a judge turn to you and
say: "Well, yes, this guy was dealing drugs
out of the apartment, but we don't want to
actually bring an eviction proceeding because
there are children living there." That was a
part of the strategy of the drug dealers, I
realized, after a certain period of time.
So I do think this improves the
law. I think it adds an additional element
2519
that maybe, perhaps on one or two occasions,
will discourage someone from dealing drugs out
of a location where there are children
present.
I appreciate Senator Balboni's
amending the bill to deal with the issues that
I raised in our previous debate, and I
appreciate him giving me credit. I'm not now
willing to drop out of any future races, but I
appreciate the beginnings of a campaign of
sucking up.
(Laughter.)
SENATOR SCHNEIDERMAN: But I do
think that this is something that is really a
serious concern, and I would urge all of my
colleagues not to look at this as something
that's just piling on -- you know, adding more
penalties to people without regard for the
course of their conduct and making things
harder.
This is a very serious issue that
comes up when you actually try and shut down a
crack house. I think it's a good bill. I
think the Senator has made a good effort to
make it a better bill. And I am going to
2520
support it, and I urge everyone to do the
same.
Thank you.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President, I would ask if the sponsor would
yield for a couple of questions.
THE PRESIDENT: Senator Balboni,
will you yield for a question?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator Montgomery.
SENATOR MONTGOMERY: Senator
Balboni, I'm holding a bill dated
February 28th. Was it amended since -- was
your legislation amended since that date? Or
do I have an outdated version?
SENATOR BALBONI: It's 2498-B.
SENATOR MONTGOMERY: Okay, I have
the A version.
SENATOR BALBONI: Would you like
the B version?
SENATOR MONTGOMERY: Yes, I
2521
would.
SENATOR BALBONI: Here you are.
SENATOR MONTGOMERY: Thank you.
All right. In the A version, I
note that you did have criminal possession,
but you removed that. Is that correct?
SENATOR BALBONI: That's correct.
SENATOR MONTGOMERY: Okay, thank
you.
Also in the A version, Senator, you
included -- and I believe it's also in the B
version -- it's a dwelling where at least one
child resides.
Through you, Madam President, I
wonder, Senator Balboni, does that mean that
you are including any situation where a child
resides, though that child may not even be
present at the time of the arrest or the --
SENATOR BALBONI: Madam
President, we have -- this is another layer of
discussion that we've had in the past.
And I have tried to resolve this
issue with law enforcement. We haven't been
able to find a way to do this.
So the way that this proposal reads
2522
and the intent behind it is that it is
dependent upon the definition of "resides,"
and that does include people who are currently
in the house and who have the potential to
come back to the house.
Now, I believe, pursuant to our
prior discussions, that you are concerned
about the fact that there may not even be a
child in the home at the time that this
happens.
But, you know, again, in
discussions with the law enforcement
community, they say that, remember, it's
not -- it never happens that it's the first
sale that this happens. In other words, the
sale has been going on for a period of time,
then the intelligence has developed in the
police community, and then they go in.
So it may not have been the time
that the child was present when the first sale
occurs -- I mean, when the arrest occurs, but
I assure you, and so does the law enforcement
community, that there was a time when the
child was there, because that's where they
live.
2523
And I guess that also goes to the
mens rea, to the mental component. You know,
if a child lives in the home, you know that
they're there. It's not like, you know, some
neighbor's child comes in and is playing in
the basement and you have no idea that they're
in the home at the time that you conduct the
sale. It doesn't work like that, at least
that the law enforcement community is telling
me.
So on the one hand, I understand
your concern that there could be a conviction
when there isn't even a child present. But at
the same time, the word "resides" has
importance in this context because of the
nature of the crime. It's the sale of a
controlled substance that occurs many, many
different times.
And if a child resides there and
you're the one doing the sale, you knew or
should have known that they had the potential
to be there. And that is what gives this the
reckless nature to it, which is what we're
trying to criminalize.
SENATOR MONTGOMERY: Okay. Thank
2524
you again.
One further question, Madam
President.
THE PRESIDENT: Senator Balboni,
will you yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR MONTGOMERY: Thank you.
Senator Balboni, the part of the
law that you are amending seems to relate to
unlawful -- it says --
SENATOR BALBONI: Unlawful
dealing with a child.
SENATOR MONTGOMERY: With a
child.
SENATOR BALBONI: Right.
SENATOR MONTGOMERY: But you're
amending -- your amendment deals specifically
with a situation where the child is present or
a child resides, but that it's not necessarily
in relationship to dealing with a child.
SENATOR BALBONI: At the same
time.
2525
Again, your concern relates to the
specific instance of the arrest. And again,
it's a broader concern that if you're selling,
it's not the one time you're selling. You're
selling over time. And so therefore, you
know, you should know that a child resides
there.
SENATOR MONTGOMERY: Okay. Thank
you.
Madam President, briefly on the
bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR MONTGOMERY: Yes. I'm
pleased to see that Senator Balboni has
tightened up the legislation, to some extent,
in terms of removing the possession and making
it purely based on the selling.
I do continue to have a concern, as
has been expressed by Senator Krueger and
others, that we are continuing to cast the net
wider and wider to make it much easier for --
for instance, if the law enforcement enters
the home and they know that a child lives
there, has lived there -- may be there, maybe
2526
not -- but nonetheless, every adult in that
household, including that child's parents,
could become part of an arrest, which often
happens.
And in fact, the parent of that
child, or at least one of the parents, may not
have anything to do with the drug selling but
rather just may, unfortunately, be living with
people who are involved in criminal activity.
So I have opposed this legislation
in the past. It's a very -- it's a
double-edged situation. I certainly am
interested in protecting the interests of
children in particular. I also want law
enforcement to have the capacity to arrest and
for the district attorney to have as much
leverage as possible.
But on the other hand, the district
attorney, it seems to me, has as much leverage
currently as they need to send people away for
long periods of time, barring the fact that
there is a child present or not.
So I do have great concerns about
that, because our prisons are filled up with
people who, for lack of other possibilities,
2527
are there because of their involvement with
drugs.
And I know that it's going to get
worse very soon, because we're going to see
the impact of our financial, fiscal crisis --
our state and federal fiscal crisis is going
to impact on people who will end up being
arrested and sentenced based on this law.
So, Madam President, I'm going to
continue to oppose it. I probably will be
just the only vote this year. I know that
Senator Balboni and I often agree on these
types of bills, because I think he's --
generally, he goes in the right direction.
But just to be certain, I'm going
to continue. I won't change my vote this
time. But maybe if I continue to talk to him,
he'll convince me eventually to vote yes with
him.
Thank you.
THE PRESIDENT: Senator Diaz.
SENATOR DIAZ: Thank you, Madam
Chairlady. On the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
2528
SENATOR DIAZ: Madam President,
excuse me.
I just would like to congratulate
Senator Balboni for this kind of legislation
and also express my admiration to Senator Eric
Schneiderman for supporting such legislation.
Child abuse is child abuse. Whether it be
physical, whether it be sexually or mentally,
whatever kind, child abuse is child abuse.
Yes, we have a problem with the
Rockefeller law. We have a problem. However,
we should not let the problem that we have
with the Rockefeller law allow us to stop
protecting children and to stop sending a
heavy message to drug dealers and criminals.
The Rockefeller law is an atrocity,
but we have to deal with it. However,
children are very important, and children are
very, very important for us to be sure that in
everything we do we send a message that we
care about children. We cannot come here and
say because the Rockefeller law is too hard,
let's keep children subject to these kind of
abuses and these kind of education.
I sympathize with people that have
2529
drug habits. I'm very familiar with those
kinds of sickness. I'm very familiar with
them, believe me. When I say that I am very
familiar with that, I am very familiar with
drug-habit sickness.
However, children are more
important. Because we, when we are adults and
we make decisions and we make choices to use
drugs, sometimes it's our decision. Children,
sometimes they don't have the time and the
knowledge to make the decision. And anything
that we do to stop children from being
subjected to this kind of life or environment,
I go for.
So I again congratulate Senator
Balboni, and I will be voting for this bill.
Thank you very much.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. On the bill.
Senator Balboni has again gone up
in my Dow Jones. When I first came here, we
argued a lot of different bills and we
discussed a lot of issues and I felt that
2530
there was not the sense of cooperation that
allowed people to take a look at the bill and
really decide that there were changes that
needed to be made.
But I have to tell you that this is
not the first occasion when Senator Balboni
has done that, and for that I am appreciative.
But I too, like Senator Montgomery,
am not quite ready to vote yes. I need to
work harder on you, Senator Balboni.
Primarily because I think one of the things
that we continue to do is we don't look at
families holistically. We look at children
separately, we look at adults separately, but
we don't look at the interrelationship that
happens between children and their families.
In our failure to do that, then, we
do not, in our budgetary process, begin to
discuss not just the Rockefeller Drug Law --
because that's only a small part of a very
large, major problem that we have with
substance abuse in the State of New York.
But there is nothing reflective in
our budget and in any of the legislative
initiatives that we have done since I have
2531
been here that says that we have a better
understanding that while people may make the
initial choice to do drugs, that addiction is
no longer about choice. And that we have done
nothing beyond "say no." Saying no to an
addictive habit is not the answer.
But education is a part of the
answer, and we have done little to nothing, in
my opinion, to bring the two pieces of this
together. And so until we work as hard to
educate the public and to heal our public as
we do to incarcerate them, I will continue to
vote no.
THE PRESIDENT: Does any other
Senator wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57. Nays,
2. Senators Hassell-Thompson and Montgomery
recorded in the negative.
2532
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
474, by Senator LaValle, Senate Print 2067, an
act to amend Chapter 668 of the Laws of 1977.
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, 59.
THE PRESIDENT: The bill is
passed.
Senator Morahan, that completes the
reading of the controversial calendar.
SENATOR MORAHAN: Yes, Madam
President.
If we could go back to motions and
resolutions, previously we voted on Resolution
1579, by Senator Golden. We would like to
open that up to all other members of the
Senate.
If they don't wish to be on the
resolution, they should notify the desk.
2533
THE PRESIDENT: Any member who
does not wish to be a sponsor of that
resolution please notify the desk.
Senator Morahan.
SENATOR MORAHAN: Is there any
housekeeping at the desk?
THE PRESIDENT: No, there isn't,
Senator.
SENATOR MORAHAN: Okay. We'll
just stand by for a few seconds.
Madam President.
THE PRESIDENT: Senator Morahan.
SENATOR MORAHAN: Madam
President, there being no further business to
come before the Senate, I move that we stand
adjourned until Wednesday, May 14th, at
11:00 a.m.
THE PRESIDENT: On motion, the
Senate stands adjourned until Wednesday,
May 14th, at 11:00 a.m.
(Whereupon, at 4:05 p.m., the
Senate adjourned.)