Regular Session - May 27, 2003
3025
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
May 27, 2003
3:21 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
3026
P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we bow our heads in a moment of
silence, please.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Sunday, May 25, the Senate met pursuant to
adjournment. The Journal of Saturday, May 24,
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.
3027
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.
THE PRESIDENT: You're welcome.
SENATOR FARLEY: I offer these
amendments to the following Third Reading
Calendar bills:
Senator LaValle, page 13, Calendar
314, Senate Print 1662;
Senator LaValle, on page 19,
Calendar 444, Senate Print 334;
Senator LaValle, on page 20,
Calendar Number 473, Senate Print 2063;
Senator Velella, page 23, Calendar
Number 525, Senate Print 4380;
Senator Seward, on page 37,
Calendar Number 740, Senate Print 2840;
Senator LaValle, on page 43,
Calendar Number 811, Senate Print 4428;
3028
Senator Nozzolio, on page 46,
Calendar Number 838, Senate Print 437;
For Senator Flanagan, on page 50,
Calendar Number 886, Senate Print 3451;
For Senator Wright, page number 58,
Calendar Number 972, Senate Print 2426;
And for Senator Little, on page 56,
Calendar Number 957, Senate Print 3365.
Madam President, I now move that
these bills retain their place on Third
Reading Calendar.
THE PRESIDENT: The amendments
are received and adopted, and the bills will
retain their place on the Third Reading
Calendar.
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 20,
Senator Maziarz moves to discharge, from the
Committee on Rules, Assembly Bill Number 3936A
and substitute it for the identical Senate
3029
Bill Number 3706, Third Reading Calendar 461.
THE PRESIDENT: The substitution
is ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution by Senator
Mendez at the desk. Could we have the title
read and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Mendez, Legislative Resolution Number 1824,
commending Citiwide Harm Reduction upon the
occasion of its Second Annual Positive
Empowerment Awareness of Community Health
Fair, on May 29, 2003.
THE PRESIDENT: On the
resolution, all those in favor of passing it
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
3030
SENATOR SKELOS: Madam President,
there's a privileged resolution at the desk by
Senator Maziarz. Could we have the title read
and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Maziarz, Legislative Resolution Number 1766,
honoring Richard L. Booth, Jr., upon the
occasion of his receiving a Community Service
Award from the Sweden/Clarkson Community
Center.
THE PRESIDENT: On the
resolution, all those in favor please signify
by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution by Senator
LaValle at the desk. I ask that the title be
read and move for its immediate adoption.
3031
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
LaValle, Legislative Resolution Number 1869,
celebrating the life of Michael A. Maffetone.
THE PRESIDENT: The question is
on the resolution. All those in favor please
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
there are two privileged resolutions at the
desk by Senator Larkin. Could we have the
title read on both and move for their
immediate adoption.
THE PRESIDENT: The Secretary
will read both resolutions.
THE SECRETARY: By Senator
Larkin, Legislative Resolution Number 1889,
commemorating the 50th Anniversary of the
Cease-Fire that ended the Korean War.
3032
And by Senator Larkin, Legislative
Resolution Number 1890, commemorating the
issuance of a United States Postal stamp
honoring Purple Heart recipients at a ceremony
in Newburgh, New York, on May 30, 2003.
THE PRESIDENT: The question is
on the resolutions. All in favor please
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolutions
are adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Rules Committee in the Majority Conference
Room.
THE PRESIDENT: There will be an
immediate meeting of the Rules Committee in
the Majority Conference Room.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial reading
of the calendar.
3033
THE PRESIDENT: The Secretary
will read.
SENATOR SKELOS: Oh, excuse me
one minute.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Before we do
that, would you please recognize Senator
Bonacic.
THE PRESIDENT: Senator Bonacic.
SENATOR BONACIC: Thank you,
Madam President.
Two quick things that I would like
to share with this illustrious body. First of
all, we have a basketball legislative team,
and we play Lexington, the School of the Deaf.
And last Tuesday, that team won by one point.
And we had one member from this Senate,
Senator Johnson DeFrancisco was on that team.
So -- and the Speaker played, by
the way, on the Assembly side, as well as a
group of others.
So we are not only good elected
officials, we're good athletes.
The second thing I would like to
announce is the Bone Marrow event that we did
3034
last week, where we raised $30,000, and I
would like to congratulate all of the members
on both sides of the aisle in both houses that
participated in that event.
Tomorrow there will be a luncheon
award. Our own Serph Maltese is being honored
for twelve years' contribution of
participating in that event. I thank you all,
and congratulations to you, Serph.
Thank you, Madam President.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
21, by Senator Maltese, Senate Print
Number 136, an act to amend the Municipal Home
Rule Law, in relation to punishment.
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, 56.
THE PRESIDENT: The bill is
passed.
3035
THE SECRETARY: Calendar Number
205, by Senator Farley, Senate Print 2265A, an
act to amend the Banking Law, in relation to
increasing the penalties for certain
activities.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 7. This
act shall take effect on the 120th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
337, by Senator LaValle, Senate Print 288B --
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
374, by Senator Volker, Senate Print 2773, an
act to amend the Criminal Procedure Law, in
relation to the authority of police officers.
SENATOR SCHNEIDERMAN: Lay it
3036
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
411, by Senator Balboni, Senate Print 2775, an
act requiring the commissioner of the Office
of General Services to modify an existing
World War II monument.
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, 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
437, by Senator Saland, Senate Print 1573A, an
act to authorize the Church of Jesus Christ
(Apostolic), Inc.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
3037
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
455, by Senator Skelos, Senate Print 3344A, an
act to amend the Penal Law, in relation to
assaults at a sports contest.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
488, by Senator Leibell, Senate Print 2998A,
an act to authorize approval of certain
transportation contracts.
THE PRESIDENT: There is a local
fiscal impact note at the desk.
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, 57.
3038
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
580, by Senator Libous, Senate Print 3023A, an
act to amend the Town Law and the Public
Officers Law, in relation to providing.
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, 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
592, by Senator Larkin, Senate Print 1222A, an
act to amend the Education Law, in relation to
requiring institutions.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
666, by Senator Bonacic, Senate Print 4009, an
3039
act to amend Chapter 915 of the Laws of 1982
amending the Public Authorities Law.
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, 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
670, by Senator Bonacic, Senate Print 4798, an
act to amend Chapter 555 of the Laws of 1989
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
passed.
THE SECRETARY: Calendar Number
3040
671, by Senator Leibell, Senate Print 4837, an
act to amend the Public Authorities Law, in
relation to the use of videoconferencing.
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
passed.
THE SECRETARY: Calendar Number
675, by Senator LaValle, Senate Print 293, an
act to amend the Education Law, in relation to
allowing students to sit on local school
boards.
THE PRESIDENT: 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: Ayes, 57.
THE PRESIDENT: The bill is
3041
passed.
THE SECRETARY: Calendar Number
677, by Senator Farley, Senate Print 4095, an
act in relation to ratifying certain actions
of the Board of Education.
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
passed.
THE SECRETARY: Calendar Number
678, by Senator Farley, Senate Print 4163, an
act in relation to authorizing the Hamilton
Fulton Montgomery Board of Cooperative
Educational Services.
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.)
3042
THE SECRETARY: Ayes, 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
744, by Senator Libous, Senate Print 4346, an
act to amend Chapter 420 of the Laws of 2002
amending the Education Law.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the same date and in
the same manner as Chapter 420 of the Laws of
2002.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
759, by Senator Skelos, Senate Print 2633, an
act authorizing the assessor of the County of
Nassau to accept an application.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
3043
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.
THE SECRETARY: Calendar Number
768, by Senator Nozzolio, Senate Print 2745,
an act to amend the Public Housing Law, in
relation to members of the Geneva Housing
Authority setting salaries.
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
passed.
THE SECRETARY: Calendar Number
823, by Senator McGee, Senate Print 4356, an
act to amend the General City Law, the Town
Law, the Village Law, and the General
Municipal Law, in relation to decisions.
3044
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 9. This
act shall take effect on the same date and in
the same manner as Chapter 662 of the Laws of
2002.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
841, by Senator Robach, Senate Print 684 --
SENATOR LIZ KRUEGER: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
885, by Senator Fuschillo, Senate Print 32 --
SENATOR LIZ KRUEGER: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
903, by Senator Flanagan, Senate Print 3582,
3045
an act to amend the Penal Law, in relation to
definitions of criminal enterprise.
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, 58.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
961, by Senator Saland, Senate Print 4112, an
act to authorize the Commissioner of General
Services.
THE PRESIDENT: Read the last
section.
SENATOR ROBACH: Lay it aside for
the day.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
969, by Senator Saland, Senate Print 1927, an
act to amend the Town Law and the Public
3046
Officers Law, in relation to providing.
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, 58.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
974, by Senator Skelos, Senate Print 2661, an
act authorizing the assessor of the County of
Nassau to accept an application.
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, 58.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
997, by Senator Saland, Senate Print 4526, an
3047
act in relation to authorizing the town board
of the Town of Fishkill.
THE PRESIDENT: There is a
home-rule message at the desk.
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, 58.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1027, by Senator Flanagan, Senate Print 3497A,
an act in relation to allowing the Long Island
Cares, Inc., The Harry Chapin Food Bank, to
file an application.
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, 58.
THE PRESIDENT: The bill is
3048
passed.
Senator Skelos, that completes the
noncontroversial reading of the calendar.
SENATOR SKELOS: Madam President,
if we can go to the controversial reading of
the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
337, by Senator LaValle, Senate Print 288B, an
act to amend the Education Law --
SENATOR LIZ KRUEGER:
Explanation.
THE PRESIDENT: Senator LaValle,
an explanation has been requested.
SENATOR LaVALLE: Thank you,
Madam President.
This bill is a very simple bill and
actually came about with a discussion I had
with Senator Lachman dealing with creation of
a separate bill that would deal only with the
time of the year that we would vote on the
selection of the Board of Regents.
The premise behind this is that
during the month of March we are very heavily
3049
involved in budget matters. The position and
selection of members of the Board of Regents
are very, very, very important positions. And
our involvement in this at a time when our
mind is on budgetary matters and there's a lot
of publicity about the budget really does not
do justice to the kind of focus that is needed
and the kind of attention that it should get
in the media.
And so this bill simply, simply
moves the time to -- if it's done by
concurrent resolution -- the first week in
May, first Tuesday in May. If not, we go into
joint session the third Tuesday in May. If
there is a religious observance why we can't
do it on the third Tuesday in May, it can
be -- it will be moved to the second Tuesday
in May.
That's all this bill does.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Madam
President, if, through you, the sponsor would
yield to a question.
THE PRESIDENT: Senator LaValle,
will you yield for a question?
3050
SENATOR LaVALLE: Sure, yes.
THE PRESIDENT: You may proceed,
Senator.
SENATOR LIZ KRUEGER: Thank you.
SENATOR LaVALLE: I thought my
explanation was --
SENATOR LIZ KRUEGER: Your
explanation was excellent, and it was exactly
as the memo described.
My question is, I believe the bill
also moves the term of a Regent from seven
years to five years. And I was wondering if
you could explain why the bill does that.
SENATOR LaVALLE: Oh, I don't
think --
SENATOR LIZ KRUEGER: I'm sorry,
Madam President, if, through you, I could
clarify my question to the Senator.
THE PRESIDENT: Yes, you may,
Senator Krueger. Of course.
SENATOR LaVALLE: Yes. Yes.
SENATOR LIZ KRUEGER: Thank you.
On line 9, Senator LaValle, it
removes the section on a seven-year term, and
then on line 1 on the second page it moves it
3051
to five years.
SENATOR LaVALLE: Yes, I see
that. It moves it to five-year terms, yes.
SENATOR LIZ KRUEGER: Oh, I'm
sorry. So, Madam President, through you, if
the sponsor would --
SENATOR LaVALLE: I think you
answered your own question, Senator.
THE PRESIDENT: Senator, would
you like to ask another question?
SENATOR LIZ KRUEGER: I would
like, Madam President. Thank you.
THE PRESIDENT: Senator LaValle,
would you yield, please?
SENATOR LIZ KRUEGER: Thank you.
SENATOR LaVALLE: Yes.
SENATOR LIZ KRUEGER: Thank you.
So, Senator, now that we've
clarified that it is moving the term from
seven years to five years, why would we do
that?
SENATOR LaVALLE: There are some
members that feel -- as you might have noted,
the term was initially 15 years, went to
10 years, went to seven years. And some
3052
people feel that it is very important that
members of the Board of Regents should have
review at a time earlier than seven years.
SENATOR LIZ KRUEGER: Thank you,
Madam President.
THE PRESIDENT: Does any other
member wish to be heard?
Senator Stavisky.
SENATOR STAVISKY: Madam
President, I plan to vote no on this bill
because of the change in the term of the
Regents.
However, I hope that if this passes
our house and passes the Assembly and is
signed into law by the Governor, because the
people in this room will be voting for the
bill, I sincerely hope they will join us when
we meet in joint session come the May period.
Thank you, Madam President.
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: Yes, I will be
voting yes on the bill.
And I think changing the years from
seven to five is positive rather than
negative, because it brings it back to the
3053
people. Once you have a person in office
15 years, and all that's trouble, we brought
it down to seven years. Five years is better.
We review each Regent, and we make a decision.
The only other prominent elected
official who I know serves seven years is the
president of France, Chirac.
So I vote for the bill, so we can
vote for seven years to five years.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I'm just going to speak on the
bill.
I certainly do like the fact that
Senator LaValle is going to try to change the
time that we are engaged in electing Regents.
But I'm still going to vote no on this bill,
because I believe we started out with a term
of 14 years for Regents, and it's been reduced
to 10 and to seven.
And the rationale for having longer
terms for Regents rather than shorter terms
was to hopefully remove, to some extent, the
politicizing of such a significant position in
3054
our state as the Regents represent and,
furthermore, to hopefully give them a sense of
more independence, as we do with our
judgeships.
So I'm going to oppose this because
I think the Regents, to me, for the children
in this state, the positions that they take,
many of which are very controversial for us,
but that they're able to focus specifically on
the outcomes related to children and they make
decisions based on that, I think it is
important enough to express what I believe to
be the wrong direction by reducing their
terms.
So I'm going to continue to oppose
this, even though I do favor the part of it
that changes the time.
Thank you very much.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Madam
President, I think there is some confusion in
the language. And to clarify that, I would
ask the sponsor to yield for a question.
THE PRESIDENT: Senator, will you
3055
yield?
SENATOR LaVALLE: Yes.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
SENATOR SCHNEIDERMAN: My reading
of the statute presently is that while it does
refer to seven-year terms, it states that
"Commencing on April 1, 1994, Regents shall be
elected for a term of five years."
Is it not the case that the term in
law now is five years?
SENATOR LaVALLE: Yes. The
answer is yes. We got carried away into
Senator Krueger's seven years --
THE PRESIDENT: May we please
have order.
Senator LaValle, you have the
floor. Go ahead.
SENATOR LaVALLE: -- and I think
we got a little carried away with the seven
years, when the statute is five.
SENATOR SCHNEIDERMAN: Thank you
very much.
Madam President, on the bill.
THE PRESIDENT: Go ahead,
3056
Senator.
SENATOR SCHNEIDERMAN: I actually
am going to vote against this bill. And I
disagree with what some of my colleagues have
said about the timing.
From my point of view, having been
here for a few years, I think one of the
things that we are able to attend to without
getting enmeshed in the politics of the budget
and the politics of the end of session
horse-trading is the Regents. I think the
Regents is something we get to before we
really are involved in other issues.
And my concern would be that if you
move it back into May, it's possible that
votes on the Regents can get caught up in some
of the other politicking.
The Regents politics such as it is,
in my experience the last four years here,
operates independently of the rest of the
activities we undertake in the session. And I
think that we have more time, frankly, to
focus on this in March than we do in May when
we really are usually, frankly, doing the
budget and we're also considering all the
3057
other issues we're trying to resolve before
the end of the session.
So I appreciate the arguments that
are made on either side of this. But from my
point of view, I think that focusing on the
Regents early in the session, getting it out
of the way, is actually a positive rather than
a negative.
So I'm going to vote against this
bill.
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: Those recorded in
the negative on Calendar Number 337 are
Senators Andrews, Connor, Hassell-Thompson,
Montgomery, Paterson, Schneiderman, and
Stavisky. Ayes, 53. Nays, 7.
THE PRESIDENT: The bill is
passed.
The Secretary will continue to
read.
3058
THE SECRETARY: Calendar Number
374, by Senator Volker, Senate Print 2773, an
act to amend --
SENATOR SCHNEIDERMAN:
Explanation.
SENATOR SKELOS: Lay it aside
temporarily.
THE PRESIDENT: The bill is laid
aside temporarily.
THE SECRETARY: Calendar Number
455, by Senator Skelos, Senate Print 3344A, an
act to amend the Penal Law, in relation to
assaults at a sports contest.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Thank you, Madam
President.
Today there's a growing epidemic at
some sporting events, and it's called sports
rage, where people that are observing a
sporting event see fit upon themselves to
attack participants, referees, first-base
coaches, on and on.
So what this legislation would do
3059
would make sports rage a Class E felony.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Madam
President, if the sponsor would yield for a
few questions.
THE PRESIDENT: Senator Skelos,
will you yield?
SENATOR SKELOS: Yes, I do.
THE PRESIDENT: You may proceed
with a question, Senator Schneiderman.
SENATOR SCHNEIDERMAN: Through
you, Madam President, just to make it clear,
this bill does not relate to assaults by one
fan or a sports observer against another
observer, does it?
SENATOR SKELOS: No, it does not.
We had a private discussion on
that, and we looked at the bill. And, you
know, with your able assistance, Senator
Schneiderman, we improved upon it.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. On the bill.
I don't want anyone else to get
carried away here today. I know why Balboni
3060
is trying to get my support. I'm not sure
about you.
I think that there is a question
that has been raised by a lot of people as to
whether or not there's a need for additional
penalties regarding sports rage as opposed to
any other type of rage. Why should an assault
on someone at a sporting event be treated
differently?
And my inclination is to actually
support this legislation as it has now been
revised, because, frankly, it is a different
type of an assault.
There are different factors that go
along with assaults, and we recognized that
when we passed the hate crimes bill a few
years ago, that the disruption of an event and
the intervention in an event to assault a
player or a referee really has an additional
element of criminal activity to an assault of
one person against another person on the
street. It affects the game, it affects other
participants, and it sends a very bad message.
So while I generally am reluctant
to add additional penalties, I do think this
3061
recognizes a difference in the nature of the
illegal conduct, and I do intend to vote for
the bill.
THE PRESIDENT: Does any other
member wish to be heard?
Senator Sabini.
SENATOR SABINI: Thank you, Madam
President.
Would the sponsor yield for
question, through you?
THE PRESIDENT: Senator, will you
yield for a question?
SENATOR SKELOS: Yes, I do.
THE PRESIDENT: You may proceed,
Senator.
SENATOR SABINI: Thank you.
In the sponsor's memorandum on this
bill you talk about how the bill seeks to
protect individuals and families who attend
sporting events.
I'm just wondering -- in reading
the bill, I didn't notice -- was there any
protection in the case of one of the
participants assaulting a spectator? Which
has happened.
3062
SENATOR SKELOS: This bill speaks
for itself. It talks about a spectator
attacking a participant.
SENATOR SABINI: Understood. But
if, through you, Madam President, the sponsor
would yield for an additional question.
THE PRESIDENT: Senator, do you
yield?
You may proceed, Senator.
SENATOR SABINI: While the
intentions on that are admirable, why would
one assault in the same building be treated
differently than another assault in the same
building?
SENATOR SKELOS: Because we deal
with individual issues quite often here in
terms of what we want to target and what we
want to improve on. And this is what I'm
targeting right now.
SENATOR SABINI: Madam President,
on the bill.
THE PRESIDENT: You may proceed,
Senator.
SENATOR SABINI: I think the bill
is well-intentioned and probably necessary.
3063
I would hope that we would also
address the concept that the participants and
the players are not -- shouldn't be treated
with kid gloves compared to the spectators.
And that we would make sure that everyone
attending a sporting event has equal
protection against assault by anyone at that
event, whether they be participant or
spectator.
Thank you.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59. Nays,
1. Senator Montgomery recorded in the
negative.
THE PRESIDENT: Senator
DeFrancisco, to explain your vote.
SENATOR DeFRANCISCO: I'd also
3064
like to explain my vote. I'm voting in the
negative. And it has nothing to do with the
concept that this is not a very serious
problem, because it is a very serious problem.
What I'm voting against is really
the concept that for every event that results
in some type of violent behavior, we have to
have a separate bill or we have to have a
separate aggravation of the penalty for that
type of conduct.
Tomorrow, if it happens to be
somewhere in a courtroom, someone gets
assaulted, then there will be a separate bill
with an enhanced penalty for a courtroom
assault.
I just think assault should be an
assault should be an assault and that the
penalties should be up to the judge based upon
the seriousness of the assault. So I'm going
to vote no for that reason and that reason
alone.
THE PRESIDENT: You will be so
recorded, Senator DeFrancisco, as voting in
the negative.
The Secretary will again announce
3065
the results.
THE SECRETARY: Ayes, 58. Nays,
2. Senators DeFrancisco and Montgomery
recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
592, by Senator Larkin, Senate Print 1222A, an
act to amend the Education Law, in relation to
requiring.
SENATOR LIZ KRUEGER:
Explanation.
THE PRESIDENT: Senator Larkin,
an explanation has been requested.
SENATOR LARKIN: Senator Krueger,
this bill here is very simple. What it says
in plain English, without all of the extras to
it, is that if your son or daughter goes away
to college and you're paying the bill, you
have the opportunity to ask the president of
the college, I would like a copy of my son or
daughter's scholastic record.
And when you look at the federal
legislation, it provides in there that you're
entitled to it as long as that student is
3066
declared by you as a dependent.
Thank you.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Madam
President, if, through you, the sponsor would
yield.
THE PRESIDENT: Senator Larkin,
will you yield?
SENATOR LARKIN: Yes.
THE PRESIDENT: You may proceed,
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
Senator, is it your understanding
that simply by being a dependent of the
parent, the parent has the right to request
the student's grades? Or only if the parent
is providing financial assistance for the
student? Because those are not necessarily
the same thing.
SENATOR LARKIN: The federal
Education Rights and Privacy Act provides for
it right in there, very clearly.
SENATOR LIZ KRUEGER: Madam
President, again if, through you, the sponsor
would yield.
3067
THE PRESIDENT: Senator, do you
yield?
Senator Larkin does yield.
SENATOR LARKIN: Because you have
to be a dependent. If you're my dependent, I
can then write to the university, college,
whatever it might be, and say, My son, my
daughter is enrolled in your university and is
my dependent, and I would like a copy of her
last-semester scholastic report.
SENATOR LIZ KRUEGER: Well -- Mr.
President, hello. You've changed.
If, through you, the sponsor would
yield.
ACTING PRESIDENT MORAHAN:
Senator Larkin, will you yield?
SENATOR LARKIN: Yes.
SENATOR LIZ KRUEGER: Thank you.
I appreciate the explanation. But I'm still a
little confused.
My understanding is there's a
difference between being a dependent for tax
purposes on your parents' tax forms and the
parent actually contributing to tuition or
financial assistance for college.
3068
So I just wanted to try to clarify.
This is anyone who takes their college-age
child as a dependent for tax purposes? Or
anyone who actually makes financial
contributions to the college for the child?
SENATOR LARKIN: Just the
dependent.
SENATOR LIZ KRUEGER: So if they
are a dependent for tax purposes, then they
could request it?
SENATOR LARKIN: I could -- you
could ask for a copy of their scholastic
record.
SENATOR LIZ KRUEGER: Okay.
Thank you very much, Senator.
Mr. President, on the bill.
ACTING PRESIDENT MORAHAN:
Senator Krueger, on the bill.
SENATOR LIZ KRUEGER: Thank you.
While it appears on its face
reasonable that if someone is contributing to
their college-age child's tuition that it
seems right that they should be able to ask
the college for the information, I have two
concerns that I think are going to lead me to
3069
vote against this bill.
One is the concept of legislating a
relationship between, quote, unquote, an adult
child and their parent. The child goes off to
college, one assumes they're over the age of
18 in almost all circumstances. And are we
now, the Legislature, supposed to insert
ourselves into both the 18-and-up young
adult's sort of responsibilities and
independence as they go off to college?
Or should we, rather, assume that
from a legislative perspective we should have
more of a hands-off perspective, that if
parents are paying the bills for their
children in college and they ask them for the
grades, they're going to get it, and if they
are not paying the bills -- and perhaps
there's not a great relationship, for whatever
reason, although they're still taking the
child as a dependent for tax purposes --
because it's fairly complicated to separate
yourself out and not be a dependent for tax
purposes if your parents choose to do that --
that we should not both, one, recognize and
respect the potential independence of
3070
18-year-olds-and-up in a college situation to
make these judgments for themselves and share
this information with parents if they choose
and when asked, and separate that out also
from the fact that not every college student
gets assistance from their parents
financially, even though they show up as a
dependent for tax purposes, and that there
should be some recognition of independence and
respect for such independence when young
people are in fact paying the bills themselves
and are not getting assistance from their
parents.
So if you had told me this bill was
specifically attached to if you're making
financial contributions to college tuition,
then you're a partner in this deal somehow and
you should have the right to request those
grades, I would say okay.
But there's no obligation that you
are a partner in your child's education just
because they're a dependent. I do think one
needs to respect the independence and rights
of people 18 and up in college.
And I also worry that while, again,
3071
it doesn't seem to be anything but a
well-intended piece of legislation, that
you're really asking the State Legislature to
be attempting to legislate a relationship of
open and trusting information between an
18-year-old-and-up and their parent. And I
don't think that's the business we should be
in.
So I'm going to actually be voting
no on this bill.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Krueger will be recorded in the
negative.
Senator Diaz.
SENATOR DIAZ: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MORAHAN:
Senator Diaz, on the bill.
SENATOR DIAZ: I am a parent; I
am the father of three adults. One is a
sergeant in the New York City Police
Department, one is a supervisor in the
New York City Housing Authority, and one is a
state assemblyman.
3072
The three of them are my children.
I'm their parent. And I as a parent, I would
think that any parent would like to know what
is -- what their children are doing when they
go to college.
Some parents go to work and they
have to kill themselves working to subsidize
their children's education. Others, maybe
they don't have to pay money to the school but
they have to pay the rent and the house, the
mortgage, food, and all the required things so
that student could have a place to live.
So it is only fair and just for any
parent to know what is it that their children
are doing in college. I mean, to esasorate
[ph] a parent from a children and let that
children go to college and do whatever they
want to do and waste that time in college
while the parents are thinking that the
children are doing a great job and getting a
good education, and suddenly the parents are
faced with the bad news: Your children --
your son, your daughter -- was wasting their
time all those years in college.
I think that this is a good bill.
3073
Any parent, any good parent -- and any good
children would allow, would want their
parent -- any responsible children would want
their parent to know their grades in college.
And any responsible parent would like to know
that their children are doing correct and
doing a proper education and doing well while
they are in college.
So I am supporting this bill, and I
congratulate Senator Larkin for this
legislation.
Thank you.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Diaz.
Senator Connor.
SENATOR CONNOR: Thank you, Mr.
President.
You know, there was a time about 35
or 40 years ago when I would have probably
been against this -- happily against it -- if
I were here instead of being a student.
But now, as my boys are fast
approaching college age, I'm very much in
sympathy with this. Because, Mr. President,
it's not just that you want to know how your
3074
children are doing in school, that you want to
encourage them to do well.
Very often a sudden change in a
student's performance -- you know, a B student
who's suddenly getting F's -- is a signal to
the parent that there may be some problem
there that requires as much intervention as a
parent can do for someone who is over 18.
And, Mr. President, while Senator
Krueger is correct, these are adults, if you
have a single 19-year-old student, I think we
all know if there is some serious health
problem or mental health problem -- I mean,
who else -- they're always your children --
who else do we look for to pay for and take
care of it but the parent?
And so I think it's more than just
a parent's right to know, am I paying so much
money and is that kid goofing off and going to
beer parties and getting -- oh, they're
adults, I forgot. Worst vote I ever took.
They can't go to beer parties till they're 21.
But they can go to Iraq.
The fact of the matter, Mr.
President, on the subject here is that the
3075
parent -- it's not just that. The parent has
a responsibility, particularly if the student
is living away from home, to -- and believe
me, Mr. President, unfortunately, the concept
of in loco parentis in colleges and
universities which 30 or 40 years ago -- until
30 or 40 years ago was the doctrine is just
not extant anymore, Mr. President.
Eighteen- and 19-year-olds go off
to colleges and universities, some of them
very, very large institutions, where
unfortunately, except for their own immediate
social circles, they are very much a number.
There is no one watching them, there is no one
watching over them, there's no one spotting
problems that could develop and require
intervention -- sometimes, unfortunately, Mr.
President, until it's too late.
One of the little tests a parent
can use to see if perhaps their son or
daughter is in need of some type of
intervention is to watch the consistency of
their academic performance and to monitor
that. Because believe me, Mr. President, the
average college and university would be an
3076
exceptional and certainly small institution of
higher education that actually monitored to
that level and worried about a young man or
young woman who suddenly was in depression
or -- from some problem with substance or
otherwise. So I think parents need this tool.
With respect to the argument that,
well, it's defined as dependent rather than
whether you paid the tuition, Mr. President,
the guidelines I -- unless they've changed, a
dependent on your tax form is a full-time
student over the age of 18. To claim as a
dependent, they have to be a student or
otherwise dependent on the parent, and the
parent who is claiming the dependent has to
pay more than half of their support.
Mr. President, I went to college
and law school and my parents never paid a
penny of tuition. They didn't have it, they
didn't pay it, they didn't need to because I
was fortunate enough to have scholarships.
But what they did do is at the end
of all of my summer jobs and whatever, when we
added it up and I was short a couple of
hundred bucks for room and board, food, they
3077
put in the rest so I could eat while I went to
school full-time.
And, yes, they sent me an
allowance, I can remember it well: $15 twice
a month. It doesn't sound like much now.
It's all I had. It's all I had for spending
money for bad college-student habits like beer
and -- it was legal then -- and cigarettes.
But they supported me. And I could
always go home when we weren't in school, and
I got all my meals and room. So I was very
much dependent, even though they didn't pay
any tuition. I don't think the standard is
are they paying the tuition. It's are they
supporting their child's efforts to get an
education, are they supporting their needs,
the other things -- I just brushed that off.
Of course my parents paid my health insurance
and all these other things that when you're 18
or 19 you don't worry about. I just thought
of that now, because now you suddenly realize
these things. I didn't even count that then
as support.
But the fact is without their
support, I couldn't have been educated. And
3078
that's true, I think, of many, many, many
students who will tell you: Well, I'm paying
my own way, I have loans, scholarship,
whatever, whatever. You kind of forget that
your parents are back there giving you a roof
over your head.
If you're not living at home and
they're feeding you, they're getting you the
money to feed you. They're taking care of
many costs that I think people don't think
about, like laundry money and all these other
necessities that when you're 18 or 19 you just
forget about until they're not there, till
they're not being provided.
So I think this bill -- and I
intend to vote for this. I think this bill --
I don't think we should quarrel over what the
definition of a dependent on the tax returns
versus who's paying the tuition. It's not
about that. It's who is supporting in a
significant way that child's educational
efforts.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Connor.
3079
Does any other member wish to be
heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of January
next succeeding.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MORAHAN:
Announce the results.
Senator Krueger, to explain her
vote.
SENATOR LIZ KRUEGER: Thank you.
Just to explain my vote briefly.
Having listened, after the dialogue
I have to reiterate my argument before by
saying if you're a parent who is supporting
your college-age child in school and you ask
them for their grades and they won't give them
to you, then you do have a problem, a bigger
problem than is the role of this Legislature
to address.
Thank you.
3080
ACTING PRESIDENT MORAHAN: Thank
you, Senator Krueger.
THE SECRETARY: Those recorded in
the negative on Calendar Number 592 are
Senators Breslin, L. Krueger, Parker, and
A. Smith. Ayes, 56. Nays, 4.
ACTING PRESIDENT MORAHAN: The
bill is passed.
THE SECRETARY: Calendar Number
841, by Senator Robach, Senate Print 684, an
act to amend the Executive Law, in relation to
funds of the Gen*NY*sis program.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT MORAHAN:
Senator Robach, an explanation has been
requested.
SENATOR ROBACH: Yes, Mr.
President.
This bill would clarify the current
law, adding language which would state that
the Gen*NY*sis funds could not be used for
projects which were already completed upon the
time of application.
I feel very strongly and I think
3081
the original intent was to make sure that this
money was in place, not as a funding mechanism
for existing projects, but a mechanism to
advance technology, create new jobs through
upstate New York.
This bill would codify that
language and set that in stone, which was the
intention of this legislation, working along
with the Dormitory Authority, Senate Finance,
and Assembly Ways and Means.
ACTING PRESIDENT MORAHAN: Thank
you, Senator.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MORAHAN:
Announce the results.
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT MORAHAN: The
bill is passed.
THE SECRETARY: Calendar Number
885, by Senator Fuschillo, Senate Print 3296,
3082
an act to amend Chapter 578 of the Laws of
2002.
SENATOR LIZ KRUEGER:
Explanation, please.
ACTING PRESIDENT MORAHAN:
Senator Fuschillo, an explanation has been
asked.
SENATOR FUSCHILLO: Thank you,
Mr. President.
This is an amendment to a chapter
we passed last year affecting Republic
Airport. It's an airport that is in
Farmingdale, on Long Island, that is owned by
the state, run by the Department of
Transportation. There are hangars there and
other parcels, storage parcels, that are
privately leased through the Department of
Transportation.
Last year, as a result of 9/11, or
two years ago, the attacks on our state, the
Republic Airport was affected by the no-fly
zone that was implemented by the federal
government.
This would allow for a more ample
time for these individuals who lease the state
3083
property to continue the negotiations with the
Department of Transportation, who is actively
negotiating with them to try to provide some
subsidies during a period of time where their
businesses were essentially shut down.
ACTING PRESIDENT MORAHAN: Thank
you, Senator.
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Mr. President. If the sponsor would yield,
please.
ACTING PRESIDENT MORAHAN: Does
the sponsor yield for a question?
SENATOR FUSCHILLO: Yes, I will.
ACTING PRESIDENT MORAHAN: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you.
Senator, your explanation seems
quite plausible. My question is, is Republic
Airport the only airport in the State of
New York that finds itself in this situation
post-September 11th?
SENATOR FUSCHILLO: I don't know,
to answer your question, Senator Krueger.
This is in my district. This is the one that
3084
is affected by the legislation, the one that
we're dealing with.
SENATOR LIZ KRUEGER: Mr.
President, if the sponsor would continue to
yield, please.
ACTING PRESIDENT MORAHAN:
Senator Fuschillo, will you continue to yield?
SENATOR FUSCHILLO: Yes, I do.
ACTING PRESIDENT MORAHAN: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you.
Do you know, Senator, whether there
are any other airports that are under the same
decision from a year ago now that will sunset,
because your bill only addresses that one
airport?
SENATOR FUSCHILLO: I don't know
that.
SENATOR LIZ KRUEGER: Thank you.
And, Mr. President, if the sponsor
will continue to yield.
ACTING PRESIDENT MORAHAN:
Senator Fuschillo, will you continue to yield?
SENATOR FUSCHILLO: Yes, I will,
Mr. President.
3085
ACTING PRESIDENT MORAHAN: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you.
Senator, do you have any estimate
of what the fiscal cost to the state would be
from continuing this, not charging fees and --
what were they, fees and other rate charges
and rentals for this airport?
SENATOR FUSCHILLO: The time
period, I believe, was just 45 days from
September 11th, 45 days out, because of the
no-fly zone.
I believe at the time, Senator
Krueger, it was estimated to be less than a
hundred thousand dollars that the businesses
were paying to the state during the shutdown
period.
SENATOR LIZ KRUEGER: And, Mr.
President, one more question of the sponsor,
if he would yield.
ACTING PRESIDENT MORAHAN:
Senator Fuschillo, would you yield for one
more question?
SENATOR FUSCHILLO: Yes, I do,
Mr. President.
3086
ACTING PRESIDENT MORAHAN: The
Senator yields for one more question.
SENATOR LIZ KRUEGER: Thank you.
I'm showing my lack of knowledge
about your district and its airport. Is there
still a no-fly zone in effect that affects
this --
SENATOR FUSCHILLO: As I stated
previously, Senator, it was only 45 days from
September 11th that the no-fly zone was in
effect.
SENATOR LIZ KRUEGER: Thank you,
Senator.
On the bill briefly, Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Krueger, on the bill.
SENATOR LIZ KRUEGER: Thank you.
I am concerned that we would have a
specific law that would exempt one airport
from rates and fees and rental costs that
other airports don't have the same privileges
of.
And I'm also concerned how long we
would carry this forward, given the fact that
there's no longer a no-fly zone affecting
3087
Republic Airport.
But I will vote for this bill, in
the hope that we either look at the situation
for other airports or make sure that we
continue to evaluate when we extend bills
beyond a time that may be appropriate for a
specific emergency condition.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Stavisky.
SENATOR STAVISKY: Mr. President,
if Senator Fuschillo would yield. I'm a
little unclear --
ACTING PRESIDENT MORAHAN:
Senator Fuschillo, will you yield for a
question?
SENATOR FUSCHILLO: Yes, Mr.
President, I'd be happy to.
ACTING PRESIDENT MORAHAN: The
Senator yields.
SENATOR STAVISKY: Did I hear you
say that the hangars are leased to private
interests?
SENATOR FUSCHILLO: Mr.
President, through you, there are private
3088
companies, Senator Stavisky, that rent hangars
currently on state property, correct.
SENATOR STAVISKY: And are these
profit-making companies?
SENATOR FUSCHILLO: Yes.
SENATOR STAVISKY: Mr.
President -- thank you, Senator.
Mr. President, on the bill.
ACTING PRESIDENT MORAHAN:
Senator Stavisky, on the bill.
SENATOR STAVISKY: I guess I will
vote for it also, but I have misgivings.
I represent LaGuardia Airport, and
they certainly are not getting any fees waived
or any help. In fact, they want to sell the
airport, or at least sell the ground under the
airport, which I think is a disgrace.
We don't seem to know the answer to
whether there are other facilities in the
State of New York receiving these tax breaks
or the waiving of the fees and so on. But if
this is a profit-making venture, then it seems
to me that we're opening a can of worms here.
And I'm inclined to vote no, Mr.
President.
3089
ACTING PRESIDENT MORAHAN:
Senator Stavisky, how do you vote?
SENATOR STAVISKY: No.
ACTING PRESIDENT MORAHAN:
Senator Stavisky will be recorded in the
negative.
Does any other Senator wish to be
heard on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MORAHAN:
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 885 are
Senators A. Smith and Stavisky. Ayes, 58.
Nays, 2.
ACTING PRESIDENT MORAHAN: The
bill is passed.
THE SECRETARY: Calendar Number
374, by Senator Volker, Senate Print 2773, an
act to amend the Criminal Procedure Law, in
3090
relation to the authority of police officers.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT MORAHAN:
Senator Volker, an explanation has been
requested.
SENATOR VOLKER: Yes, Mr.
President. This bill is known as the Police
and Public Protection Act of 2003. It
initially came to us back in 1999 as the
Police and Public Protection Act of 1999, as a
Governor's program bill. It is not a
Governor's program bill now, I might add,
because we haven't received it yet from
Governor.
But what the bill does -- and this
is a bill that has received some criticism and
some good publicity. Let me point out that
the memo is a little old, I'll be honest with
you. It talks about heavy violence and crime.
Well, thankfully, thanks to this house and the
Governor and the other house, we've been able
to cut that down rather dramatically.
We still obviously have some major
problems. And the memo, which I won't
3091
describe, points out some of the idiotic
decisions -- I think they're idiotic -- that
have been made by some of the courts in our
state relating to issues such as abandonment
of evidence and things of that nature.
I guess if you're the defense
attorney, and obviously if you're the
defendant, they sound great. But in the long
haul, what they signal to the street is that,
very honestly, this state is not totally
serious about dealing with criminal justice.
And I know if you zero in on the
police part of this that deals with the police
having an objective credible reason not
necessarily indicative of criminality, I think
we start thinking that somehow this is some
huge Fourth Amendment issue.
The trouble is these issues don't
revolve what happens in the street as much as
they revolve around what happens in the
courtroom.
Remember one thing, if I might say.
There is no court system in the United States
of America, I believe, that is as liberal on
rights as ours is. And, I mean, you can argue
3092
all you want that we have tough laws here.
And we do, we have tough laws in New York.
And under Governor Pataki -- and under Mario
Cuomo to a certain extent, too, but I think
much improved in the last few years -- we have
developed very tough, hard-nosed statutes that
have had a major impact on our streets.
And many of the reports you hear
from the media say: We don't know why the
murder rate has gone down, we don't know why
the violent crime rate's going down. It's
pretty obvious. We've passed the death
penalty. We've passed tough statutes. People
say: Well, we haven't executed anybody.
Well, I want to tell you something.
If you want to see the record, look at the
dive record, I call it. No state has ever had
so many people diving for cover as we have in
this state. We have people pleading to 90
years to life, 90 years to life. Tough to get
out when you're in for 90 years minimum. In
fact, if he gets out, we don't care. I mean,
I -- well, what I mean by it is I don't think
he's going to be any problem.
But the point I'm making is that
3093
there is a whole series of things that we have
done that have been favorable. There are
several pieces of this bill that we have, by
the way, debated on a number of times before.
It seems to me the key part of this bill
relates to the issue of the courts
interpreting Section 1 -- or Article 1,
Section 12 of the State Constitution in a more
liberal basis, if you can say that, or on a
basis that is stronger than the United States
Constitution.
The United States Constitution does
not allow for suppressing of evidence unless
there is a bad faith shown by the people who
obtain the evidence. In this state, basically
what we say is -- and even though the United
States Constitution, which is supposed to be
one of the toughest in the world, is tough, we
want to make it tougher.
And we want to say that any time
that you make a technically deficient
obtaining of evidence -- you know, silly
situations such as a guy's running down the
street with a bag full of drugs and guns,
drops it down, runs away, gets arrested, they
3094
go back, pick the bag up, and they say, "Well,
he intended to abandon it."
That's fascinating. But on the
other hand, it treats situations in a manner
in which people say, you know, that's an
injustice. That is not just.
When the police officers or the law
enforcement people make mistakes that are so
critical -- and frankly, especially if they're
truly in bad faith, where they set somebody up
or something of that nature, this statute will
not prevent that from denying the evidence,
and the person's prosecution couldn't go
forward.
So I think you have to take this
bill, it seems to me, in light of what we're
dealing with here, in a situation where our
rights -- yours, mine, all of us -- are being
denied every day because a group of people
decided that they wanted to attack us as a
nation. They didn't just attack the World
Trade Center in New York City, they attacked
in Washington and all over this country. And
there are some very strong information that
they intended to hit Chicago and Los Angeles
3095
on that same day.
So I can only say -- and I know
that we've debated this bill on many
occasions. The provision in here I know
bothers many people, particularly in the City
of New York, that says police officers engaged
in law enforcement duties approach persons at
a public place where the police have an
objective, credible reason not necessarily
indicative of criminality.
Well, the reason for that is that
you don't necessarily have to have somebody
that you know is a criminal. But if their
actions -- and, by the way, you have to prove
that in a case in which you arrest somebody on
that basis -- then if that person you can show
some very good reason, a reasonable reason is
what it is, for stopping that person, you
still have to act responsibly after that. And
if you do, that you can maintain a
prosecution.
There have been some really
incredible reasons used by the courts to dodge
certain things. A person running from
somebody for no reason shouldn't be
3096
suspicious. Well, I don't think that that
quite follows, particularly when you find guns
and drugs and all sorts of stuff after that.
So I think the major point here
lies in the bad-faith piece of this, which
is -- says that our constitution should match
in effect -- or at least our courts with the
national courts, with federal courts.
And the other thing is that the
search and seizure rules should be objective
enough, should be allowed so that we could at
least prosecute people on the same basis as
other states prosecute people.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Volker.
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President, I'm just -- I would just like to
speak on the bill.
ACTING PRESIDENT MORAHAN:
Senator Montgomery, on the bill.
SENATOR MONTGOMERY: I would like
to read for the record a couple of sentences
from the memo that was given to us from the
New York Civil Liberties Union as it relates
3097
to the New York City Police Department.
It says, and I read from this memo,
"In the mid-1990s the New York City Police
Department implemented a policy of aggressive
investigation and prosecution of so-called
quality of life infractions. The policy led
to well-documented abuses. In 1998, a New
York Times study of arrest data showed a
dramatic increase in the number of improper
arrests made by New York City police.
"According to the Times analysis,
district attorneys rejected charges in more
than twice as many cases as had been rejected
in the prior four years."
There is no question that there is
a serious issue and problem as it relates to
the arrests that are made by the police
department when they are encouraged to make
arrests without necessarily there being any
criminal activity observed.
The law, Mr. President, as I read
it here, already allows a police officer to
stop a person in a public place located within
the geographical area of such officer's
employment when he reasonably suspects that
3098
such person is committing, has committed, or
is about to commit a crime. That is already
in law.
What the author of this legislation
seeks to do is extend it to an officer being
able to do the exact same thing even when
there is not any reasonable suspicion.
The only thing that I can imagine
with this legislation is that as I ride
through my district and I see all of these
especially young black men standing on the
corner, having their social life, they look
strange -- maybe their pants are not looking
right they are just looking weird. They look
weird to me. I think they look weird to most
everybody. But that's who they are. And
those are the ones that police will be able to
stop just because they're standing out there
on that corner.
And, Mr. President, that defies the
Constitution of the United States of America.
It defies the constitution of our state, I
believe. And we should not be proposing that
police can stop and search people, especially
like the people in my district who are going
3099
to be most susceptible to this law. We should
not be passing legislation which encourages
that.
It is the epitome of saying we must
allow -- we must put in law the capacity of
the police department to do racial profiling,
racial arrests, without any cause, without any
reasonable suspicion of any criminality.
I object to this. I oppose this
legislation. And I understand that Senator
Volker has good intentions for some things.
But certainly this is not a good-intentioned
bill. This is going to hurt people. It is
going to especially hurt young
African-American men and women, especially
those that live in my district, because I see
them every day, I know how they're already
treated by the police, and this only enhances
the capacity of the police to stop and arrest
and harass them, including my own son.
So obviously I am adamantly opposed
to this legislation.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Montgomery.
Senator Parker.
3100
SENATOR PARKER: Mr. President,
on the bill.
ACTING PRESIDENT MORAHAN:
Senator Parker, on the bill.
SENATOR PARKER: First, I wanted
to just say I really understand, Senator
Volker, where you're coming from in terms of
what we all are concerned about regarding
crime and the criminal justice system.
Oftentimes people are harassed. In
fact, in my very community we have a great
deal of both gang activity and drug activity
that we have not been able to solve because we
have people who we pick up and wind up, you
know, back on the street.
But as I talk to my neighbors and
the residents of those buildings and we
continue to work together to deal with these
issues of crime, I remind them that the
criminal justice is the hallmark of what
America is about, that we are Americans and we
do -- we want freedom. We want freedom of
speech, we want freedom to do what we please
to do in our homes. We want the freedom to be
able to walk down the street and people not
3101
harass you or bother you based on what you
look like or who you are, your race or your
religion or your creed or your sexual
orientation.
And so when I look at a bill like
this, this actually restricts all of the
things that we think of as we think of being
Americans. What makes us different than
anybody else is that we are Americans, that we
do -- we value the freedom that we have here
and the right to be different.
And despite all the freedoms that
we have here, we still have a great deal of
abuse by police. This is something that was
actually at the forefront of the political
agenda in New York City prior to 9/11. And
some of us forgot, in the terrorism that took
place on 9/11, what was happening prior to
that.
Well, prior to that, politically in
New York City we were on the verge of a major
shakeup of the police department based on
harassment of citizens.
And, yes, we do have one of the
most lenient systems in the world when it
3102
comes to a court system. And you know what?
We should. Because it is better -- as the
founders of the United States tell us, it is
it is better to let a hundred guilty people go
than imprison one innocent man or woman.
And as we've seen time and time
again, especially now with the DNA evidence,
we're now finding, you know, exorbitant
amounts of people who are now spending or who
have spent time in our prison system who are
innocent. Imagine, when we have the ability
to stop people and to arrest them on less
evidence than we currently are demanding, the
numbers that are going to go up.
I think, Senator Volker, in a
perfect world, without racism, without sexism,
without ageism, without discrimination against
people because of their sexual orientation, I
would vote for this bill in a minute. But
unfortunately, we don't live in a perfect
world. Unfortunately, we live in a place
where not only do juries makes mistakes and
judges make mistakes, but unfortunately, as
brave as good as they are, as good as they
are, as well-intentioned as they are, our
3103
police department makes mistakes.
And I think that this legislation
unfortunately broadens the margin at which
those mistakes can be made. So I'll be voting
no, and I'm asking my colleagues on both sides
of the aisle to join me in a no vote on this
bill.
Thank you.
ACTING PRESIDENT MORAHAN:
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
Briefly on the bill, Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Krueger on the bill. Briefly.
SENATOR LIZ KRUEGER: Thank you.
Well, I have to agree -- was that a
reference that I'm not briefly usually?
ACTING PRESIDENT MORAHAN: You
said briefly on the bill.
SENATOR LIZ KRUEGER: Thank you.
With my usual brevity, Mr. President.
My colleagues have already pointed
out a number of the issues, and I just want to
highlight again how we have a good standard
already in this state. We don't need this
3104
bill. This would open up, I believe, our
police and our courts and our citizens to a
very vague definition that is not in anyone's
best interest.
Again, the record is clear. We
already have established precedent in New York
State from the Court of Appeals about when a
police person or other criminal justice
official can and should interact with
citizens. In order to make an arrest, the
police must have probable cause to believe a
crime has been committed.
Or to briefly but forcibly stop and
detain an individual, the police must have
reasonable suspicion to believe a crime has
been committed to approach, ask questions, and
take other actions they may deem appropriate.
And within constitutional
limitations, the police must have an
objective, credible reason not necessarily
indicative of criminality, or they must have a
founded suspicion criminality is afoot.
This law does away with those
standards by opening it up to any
interpretation by any member of the police on
3105
our streets. And in fact, if there is no even
assumption that something possibly might be
going awry or might have criminal intent, all
you are left with is a judgment by the police
rather than clarifying it for them that
because I look a certain way -- the color of
my skin, whether I'm a man or woman, my
ethnicity -- if I come from a country that our
own U.S. country may not be at good relations
with, that it opens up abuse, assault, and the
unconstitutionality of police powers that, as
Senator Parker said, we are proud that we have
in this country.
I also believe that while this bill
predates the terrorism of 9/11 and the Patriot
Act, Senator Volker in his own statements
referenced that issue. And again, just to
highlight that, this whole country is
reevaluating how far have we gone and that we
shouldn't go further.
There are now over 108 localities
in this country who have passed resolutions
calling for the reversal of the USA Patriot
Act, which in fact opened the door to far
broader powers by government to intrude on the
3106
lives of individuals.
The City of Albany itself has
passed such a resolution calling on a reversal
of the Patriot Act.
When I was doing some research,
Senator Volker, about your bill, I found that
in addition to cities around the country
questioning the country going down this road,
conservative think tanks are sharing the same
views as my Democratic colleagues. The Cato
Institute, the Heritage Foundation are opposed
to this opening of powers of our government
without justification.
So I think this is a piece of
legislation where those of us who define
ourselves on the left and those of who define
ourselves on the right can actually agree,
this goes too far. The harm it can do is too
great a risk for us to take with our
constitutional protections and with our
freedoms.
I will vote no. I urge my
colleagues, particularly on the right of the
Republican Party, to join me in voting no on
this bill.
3107
Thank you.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Krueger. You will be recorded in
the negative.
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President, just very briefly.
Senator Volker, you talked on this
bill about the fact that the State of New York
is too liberal, and I think I heard Senator
Parker say that it should be. I echo him in
saying that, primarily because I think that
one of the things that New York has been more
successful than most states, based upon its
diversity, is to use the longest measure, not
the shortest measure, in how it deals with the
people in our state.
And because of that, I would not
like us to change the definition of justice.
As I listen to what you said, I too am very
concerned about crime in our streets. I'm
certainly concerned about the acceleration of
crime against this country.
But I still feel that each of us
has the responsibility to look very carefully
3108
and closely at each of the legislative
initiatives that we take and ensure that we do
not put constitutional rights fifty years
back, a hundred years back.
The numbers of people that I feel
that will be most greatly affected by this may
not be constituents of yours or some others in
these chambers. But certainly those who are
African-American, particularly those who are
men, those who are immigrants of Middle
Eastern descent, and those that are unable to
enjoy the same civil-liberty protections long
established and defended by our judicial
system, will have a serious problem with this
bill.
Those are the people that live in
my district. And maybe I have a
disproportionate number in my district. But
people come to these shores and certainly
people choose to come to New York State and
they abide here for the sole purpose of the
fact that there is a relaxation and a
liberalism.
And I would not want us to define
liberalism to be something that is bad, but,
3109
rather, something that says that we take a
strong and hard look at how we deal with the
people who live in the state of New York and
choose to live in the state of New York.
So I must vote no on this bill and
just -- I needed to be able to share my
concerns, along with some of those that have
been expressed by my colleagues.
ACTING PRESIDENT MORAHAN:
Senator Hassell-Thompson will be recorded in
the negative.
Senator Sabini.
SENATOR SABINI: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MORAHAN:
Senator Sabini, on the bill.
SENATOR SABINI: As many know, I
was a member of the New York City Council for
ten years, and I became a -- got a law signed
into the books in New York City against
aggressive pan-handling. The ACLU said they
would have it overturned and they wound up not
even filing suit.
I had another proposal which has
not become law which was based on a Chicago
3110
statute that said that where there was a
pattern of gang activity and arrests that were
coefficients of gang activity -- on
prostitution, drug dealing and robberies --
that the police would have broader authority
in those geographic areas.
And that that in effect was a
geographical probable cause that gangs that
had a hegemony of over certain neighborhoods
and were, in effect, taking over sections of
town. And the police, not having probable
cause to stop them, were being frustrated in
their takeover activities or to prevent
takeover activities of neighborhoods.
But those bills were bills that I
thought were thought out and gave a balance of
protection. And while there were those that
claimed that I was giving the police too much
power in both those proposals, I felt very
strongly I wasn't.
However, in examining this bill, I
get an impression that Senator Volker, in his
desire to protect the public safety, goes too
far, that the balance really isn't there. And
unless I'm missing something, that the
3111
probable-cause relationship that exists in the
law is sort of being stepped over like a --
stepping over a puddle of water that you sort
of want to avoid because we don't like it.
I think this goes too far. I
represent a very multiethnic community of
people, both who have come to our shores to
seek the American dream, people that have been
there a long time, like I have,
African-American families who are sending
their children to really great schools. And I
think that the application of this bill, were
it to become law, would be way too broad in
pinning back the rights of New Yorkers all
over this state -- not just in the area I
represent, but everywhere.
Senator Parker said in a perfect
world he wouldn't mind voting for this bill.
I wouldn't mind voting for this bill in a
perfect world, because I think if we needed
this bill it would be an imperfect world and
not one that I would want to feel was America
as we know it today.
I'm all for protecting the police
and to give the police new tools in fighting
3112
crime. I just think this tool goes a little
too far, and I'll be voting in the negative.
Thank you.
ACTING PRESIDENT MORAHAN:
Senator Sabini will be recorded in the
negative.
Senator Connor.
SENATOR CONNOR: Thank you, Mr.
President.
You know, over the years attitudes
change and society's approach to criminal
justice and other things changes.
My own attitudes change. I
remember sitting here some 25 years ago when
the stop and frisk case I guess had made it to
the Supreme Court and being kind of appalled
at the decision that came down, the standard
that evolved of reasonable suspicion on the
part of a police officer. Before that, I had
been one who believed it should be probable
cause, a much more stringent standard. But
we've lived with that.
And certainly after 9/11,
particularly those of us in New York City and
those of us who were in some of the -- worked
3113
and lived near some of the more sensitive
security zones and all just willingly
tolerated being stopped and "Can you open your
trunk?" or "I'm going to look in your car."
And, you know, most people would say to the
police officers or security personnel
involved, Thank you. Thank you, because there
was a real perceived threat at the time.
I don't think in this bill we're
dealing with those situations. And I don't
think anybody questions that in the aftermath
of a terrorist attack or when there's real
intelligence that shows the imminence of it
that we ought to give way, we ought to let the
police and the security authorities do things
like stop everybody at a roadblock and perhaps
do things that on a good day they shouldn't do
and we shouldn't want them to do it.
This bill doesn't deal with those
exigent circumstances. I don't see anything
in this bill that says when the Governor or
the appropriate authorities have declared a
national emergency or a national security
emergency. I think we all understand then.
Heck, you know, pat everybody down
3114
if you've got a reasonable belief that there's
going to be some terrorist act in a stadium.
Or search all the cars going over a bridge if
you have some reasonable belief that somebody
is trying to blow up the bridge.
This bill isn't about that. This
bill isn't about those kind of emergency
situations. This bill is about everyday
conduct. And I read this bill, and my first
thought is this bill is an unlimited license
to profile. That's what it is. It's a
license to profile -- the very profiling that
we have for these past years been concerned,
about been angry about.
We see in a neighboring state the
huge struggles, the New Jersey Turnpike
experience where people were stopped -- what
was the term they used, driving while
black? -- and the great trauma and injustices
that arose out of that.
I don't think we in New York State
want to adopt a license to profile. And
that's not a slur on the great majority of our
policemen and women and law enforcement
personnel. They have a job to do.
3115
But we have a job to do as well.
And our job is to define the standards on
which we want them to conduct their law
enforcement activities.
I remember many, many years ago
traveling -- many years ago, 30 some years
ago -- joining volunteer efforts put together
by the late, great Paul O'Dwyer to provide
volunteer legal representation to certain
people, most of whom were Irish-Americans, who
the federal government was investigating for
gun-running, alleged gun-running activities.
While I was doing this great work
as a young lawyer, my then wife and I decided
we wanted to go to Ireland for a vacation.
Long before I was in public office. And lo
and behold, there was always that one car that
followed us everywhere. And eventually the
Garda stopped us, and they had a whole lot of
I thought irrelevant questions for me about
what I'd done in New York as well as since I'd
been there.
And in my natural American
hesitation to answer, I was very curtly
informed that I could be taken in and held --
3116
and this was not in northern Ireland, this was
in the Republic -- and be held for seven days,
without talking to lawyers or anybody else,
until I chose to answer all their questions.
I don't think we want to go there.
By the way, I answered all the questions on
the spot. I didn't want to ruin my vacation.
And I didn't really have anything to hide.
But the fact is, I don't think we
want to go down this road. Reasonable
suspicion is a pretty loose standard as it is
for the police. It's a combination of some
objectivity, yes, some street smarts on the
part of policemen and women. And we want them
to have some street smarts and street
knowledge about, you know, trouble spots and
troublemakers. That's -- you know, we can
live with that.
This idea, though, that a police
officer can just basically stop everybody
coming down the street -- not in a national
emergency, I think we'd understand that -- but
just as part of a hit-or-miss "I'm going to
make a bust if I got to stop fifty people," I
don't think that's the way to go. I think
3117
this goes way too far. Way too far.
And, you know, if you look at the
federal exclusionary rule, if you read
carefully the seminal Supreme Court cases that
federalized the -- that used the 14th
Amendment to apply the exclusionary rule to
the states -- what am I thinking of? Mapp
against Ohio, probably. And their rationale
was -- there had been a federal rule for
federal officers -- that they were applying it
to the states because the states had failed to
take action against their law enforcement
personnel who violated people's rights under
the 4th Amendment against search and seizure.
And if you read that, there was
almost an invitation there that said this is
going to be the rule for the states until the
states prove to the Supreme Court that they'll
do something about it.
I have yet to see the really strong
enactment by this state that has real severe
punishments for law enforcement officers who
in bad faith, in bad faith conduct unlawful
searches and seizures. Yes, there are civil
suits, there have been civil suits. There are
3118
some pending now for some rather tragic cases
in New York City. But realistically, when a
police officer in bad faith decides to conduct
an illegal search, what's the penalty?
I mean, yeah, there's a certain
irony in the exclusionary rule, because the
only person whose right to be secure, the only
people whose right to be secure against
unreasonable, unlawful search and seizure are
those who probably were guilty of something,
because the evidence being suppressed is
evidence of criminality.
But what have we done, what have we
done to vindicate and uphold the
constitutional rights of citizens who are
unlawfully searched and there's no criminal
evidence found? They're upset, they're
outraged, maybe they'll sue. I've yet to
hear, with probably one exception, of any
punishment coming down on law enforcement
officers or their supervisors who authorize
such conduct.
And I would suggest, before we
start tinkering with the exclusionary rule,
perhaps we ought to address what do you do
3119
about people who wilfully conduct unlawful
searches. And if you could frankly vindicate
the rights of all the innocent people who are
unlawfully searched, then maybe you could
start talking about, well, do we really have
to let those few who were guilty of having
evidence of criminality walk by suppressing
the evidence. We haven't done that.
So, Mr. President, I'm against this
bill. I think we're going -- taking a big
step down the wrong path on this bill. The
reason this country and this state are
different than the rest of the world, the
values that we uphold, are at stake here. We
shouldn't let the criminals win. We shouldn't
let anyone else win by changing our standards
because of their conduct.
I think, under present law, crime
has been coming down. That's all we hear in
New York City and New York State, the drastic
reductions in crime. Which the Governor takes
credit, for which Mayor Giuliani took credit
for, and Mayor Bloomberg takes credit for.
The drastic reductions in crime that we've
experienced have been under the law that we're
3120
now saying is too lenient, too liberal, too
whatever.
I don't understand. If it's not
broke, we shouldn't be trying to fix it. I'm
voting no, Mr. President.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Connor. You will be recorded in
the negative.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. If the sponsor would yield for
one question.
ACTING PRESIDENT MORAHAN:
Senator Volker, will you yield for one
question?
SENATOR VOLKER: Certainly.
ACTING PRESIDENT MORAHAN: The
Senator yields.
SENATOR SCHNEIDERMAN: The
current law, as has been pointed out by some
of my colleagues, requires -- State Criminal
Procedure Law Section 140.50 permits police
officers to approach and stop a person in a
public place where the officer reasonably
suspects that the person is committing, has
3121
committed, or is about to commit a crime.
This legislation would change that
standard. And it states that an officer may
approach a person, stop and take other actions
when he has an objective -- this is the
language of the bill -- an objective, credible
reason not necessarily indicative of
criminality to do so.
And I'd like the sponsor to list
for us, if he could, some examples of
objective, credible reasons not necessarily
indicative of criminality for stopping
someone.
SENATOR VOLKER: Sure. You could
list a whole bunch of things.
But let me tell you something,
Senator. This has nothing to do, really, when
you come right down to it, with stopping
people in the street. This isn't going to
change anything.
The problem here is, I think what
we're not looking at is we're reading this
language and we're saying, Oh, my gosh, people
are going to read this and a cop is going to
read this and say: Now I can go out and
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really stop somebody.
This is all for the appeals courts.
I mean, remember, what this is about is how
appeals court have interpreted our statute.
And they've said, Well, if you don't know that
this is a criminal, if you don't know that
this person has committed a crime or is about
to commit a crime.
Well, the problem is that that's
getting into the head of the police officer.
And he has to have solid evidence, basically,
even though this person, as somebody said, may
walk up with a knife or a gun or a sword, as
one guy did, and swings it around. Maybe he's
not a criminal. Maybe he just happens to be
somebody who's walking down the street and
likes to use a sword. Or the other guy that
had the AR-57, or whatever it was, without the
firing pin in it.
I think, Senator, the answer to
that is that the objective -- the objective,
credible -- you have to have some evidence
that the person did something which could be
interpreted as disorderly or criminal or
something of that nature.
3123
And this won't really change
anything, I can tell you. I've been out in
the street, by the way, and I could tell you
some -- when I hear these stories about
minority neighborhoods, I have to kind of
laugh. Because I was picked up, my son was
picked up. I can tell you that it happens
everywhere, and it happens for different
reasons.
My son was speeding one night in
the Senate car. The only reason they stopped
him, they knew for sure that that kid in the
car wasn't a Senator.
And, I mean, you know, things of
this nature that -- but the problem, I think,
is, Senator, and I mean this very sincerely, I
think I'm as assiduous to worries about law
enforcement officers as anybody. I knew good
cops, and I knew bad cops.
And when you talk, by the way,
Senator Connor, about bad searches and things
like that, you're right, they don't prosecute
cops, they fire them. At least in my area, if
you create too much problem and if you have --
and in the City of New York they do too, you
3124
just never hear about it. Sometimes they do.
Or they get shifted out some place in East
Yujunga.
In the State Police, they ended up
in the North Country. And if they do it too
often, they get fired. Or you can bring
criminal charges against them, but you got to
prove it. Which is my point.
And that is that I think -- I
understand what spawned this. And I
understand the problems in New York City that
spawned this. And -- but I can say to you
that if you have a person who commits or does
some activities that calls into question
whether they might create disorder, harm
themselves or harm somebody else, a police
officer right now has the right to stop that
person.
However, if they go into the
appeals court, they find a gun or, let's say,
drugs, courts have been regularly in New York
throwing those cases out. Because they said,
Well, you didn't know he was going to commit a
crime. You didn't know that he had already
committed a crime or might commit a crime.
3125
And therefore, they're throwing it out.
This statute is not for the street.
This statute is for the appeals courts.
And, you know, you mentioned Mapp
versus Ohio. We can't reverse Mapp versus
Ohio. We don't want to. What this does,
however, is to allow New York police and New
York law enforcement people to have the same
kind of rule as is in the whole rest of the
country.
If police, by the way, abuse it,
then they should be punished and certainly
their charges could be thrown out. This
doesn't say anything about arresting anybody.
This doesn't change arrest rules. It's only
setting up a standard which has already been
the standard but which now makes more sense in
the appellate courts.
SENATOR SCHNEIDERMAN: Thank you.
Mr. President, on the bill.
I certainly respect the sponsor's
sincerity. However, I don't think we got an
answer to our question. I do not understand
what an objective, credible reason not
necessarily indicative of criminality would be
3126
for stopping someone and again, this is the
language of the bill, take such other action
as the officer deems appropriate.
This is an extremely broadly worded
bill. And it's asking us to do something, to
change a law, as has been pointed out by many
of my colleagues, that is working pretty well.
Crime has gone down.
I also don't know where we got this
notion that we're the most lenient -- have the
most lenient criminal justice system in the
world. We incarcerate more people than any
other industrial democracy. Maybe we have a
more lenient system than Iran. But certainly
when you compare us to other industrial
democracies, we don't necessarily match up as
being so lenient. There are not criminals
running free here that would be incarcerated
in other places.
And I would respectfully request
from the sponsor, before asking us to monkey
around with the rule that protects people from
abuses by those in authority, a rule that
changes a system that seems to be working
pretty well, to provide more justification
3127
than we've received so far. I mean, the bill
memo states that guns and reliable evidence of
guilt are all too commonly excluded in murder,
rape, assault, robbery, weapons possession,
narcotics, and other serious felony trials in
our state.
I don't know how many -- there's no
citation to any studies showing how many there
are. I know that, you know, from my own
limited experience I don't think it's very
much. This is a prophylactic rule that works
more or less well. I don't think that there's
any justification been offered to change it.
I would also note that in addition
to New York, many, many other states have an
alternative exclusionary rule to the federal
rule, including Alaska, Arizona, Connecticut,
Ohio, Indiana, Kansas, Kentucky, Louisiana,
Massachusetts, Michigan, Minnesota, Missouri,
Montana and -- out of deference to the time,
I'm not going to continue.
But there are lots of states that
have dual exclusionary rules. Our dual
exclusionary rule works pretty well. Crime is
going down. We don't know how many of these
3128
bad cases actually exist.
And my final point, which I think
is critical, is that I don't see any possible
argument, if this is meant for appellate
courts, I think we should make it
constitutional before we send it to appellate
court.
We cannot legislate, by legislation
tell the Court of Appeals how to interpret the
New York State Constitution. And Section 4 of
this bill seems to me to be a transparent
effort to do that. This attempts to restrict
what courts can do in interpretations of the
State Constitution. I don't see how that
survives scrutiny.
I hope that if there is a way to
address a serious problem that we experience
in terms of disorderly activity, unruly
activity -- many people have spoken about it.
Let's come up with a solution that actually
narrowly addresses that problem.
I don't see a definition of the
language in Section 1 that would allow us to
proceed responsibly with this bill. I don't
see any sort of recitation of the numbers of
3129
cases in which criminals are getting away
because of abuses of the present system. I
don't see any explanation how Section 4 could
possibly be constitutional.
And, frankly, I really don't see
the necessity to restrict constitutional
protections through a mechanism that is so
vaguely worded.
And I respect the fact that the
sponsor is talking about appellate courts.
But if this bill became law -- and I'm
confident it will not -- but if this bill
became law, you've got to believe that the
police officers of the state are going to be
aware of it and that it is going to change
conduct on the street.
So I'm going to be voting no, and I
hope we'll be able to come back to a more
realistic effort to address some of the issues
that have been raised here today at some point
before the end of the session.
Thank you, Mr. President.
SENATOR VOLKER: Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Volker.
3130
SENATOR VOLKER: Just let me say,
I guess I may have misspoke. I didn't say our
system itself was so lenient. Of course it's
not that lenient. It's a good, tough system.
But I point out to you, and there's
a whole list of cases in the memo here that
points out some of the ludicrous attempts, I
think by the Appellate Division and by our
Court of Appeals to allow clearly criminal
people to be able to avoid justice.
The Torres case, where there was
all kinds of evidence that the person that
person they were looking for was the same
person. It turned out he had guns and drugs
and so forth, because he dropped the bag. And
the police officer had felt the bag and said,
"There's a gun there." And they said, "Yeah,
but you didn't really know it was a gun." I
mean, a lot of nonsense is what it really is.
This doesn't have to do with the
street because it -- it could have, by the
way, in one way been determined that the same
rules that apply presently, that is the rules
that apply presently for stop and frisk, could
potentially have been used, except that the
3131
narrow scope that many of the Appellate
Division judges are using, and the Court of
Appeals, is so narrow that they used the
present statute to exclude evidence.
There's nothing in this bill, when
you come right down to it, that allows police
that much latitude to stop and frisk anybody
that's not always there. But what it does do,
however, is that it sends a message to our
Appellate Division and changes the statute.
And the basis of the constitutional
decision by our Court of Appeals is based on
our statute, not based on the federal
decision. Because if it was, they would have
to follow federal constitutional law.
So what I'm saying is -- and I
understand the nervousness. I'm nervous too
about this sort of stuff. I've defended, I've
prosecuted, I've done all sides. But I must
tell you that in the long haul we're going to
do a bill similar to this someday, I'm sure.
And unfortunately, we may do it in a big hurry
when -- if things get worse. Which has always
bothered me, because the best time to do
statutes is not under some sort of an
3132
emergency, because then you tend to do things
that maybe are not the best idea.
The old saying about bad cases make
good law, well, that's not necessarily so.
Because in the long haul, if we should start
to get real big problems in our streets and
found out, for instance, like we now know,
that one of the terrorists was let out of
prison because of some, you know,
technicalities and so forth, you may see even
more of that. And that's not good.
And I guess I understand your
concern. I have the concern too. But I have
a bigger concern that people who clearly are
guilty of a crime and are guilty of something
that they can't even defend are in a situation
where they're able to get off because somebody
made a technical decision based on what many
of us think are erroneous assumptions.
As I said, I was picked up one time
when I was younger on suspicion of a stolen
car because I was following the gasoline trail
of a car, because I knew it was a friend of
mine who had been in the car, and we were
trying to find out where he ended up. And the
3133
police brought me in and sort of threatened
me. The big threat was they were going to
call my father. I said, "Please don't do
that, don't do that."
But the point is, I mean, these
kind of things do happen with law enforcement
people. Because in the long haul, in the old
days, things were a lot different. And we
realize that. And we realize that things
are -- you know, have been in agitation in the
city because of all the problems that have
happened.
But just remember one thing, for
all of us, whatever -- whoever we are, in the
long haul, we're much better off to have a
tough, efficient, and just criminal justice
system.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Volker.
Does any other Senator wish to be
heard?
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT MORAHAN: Call
3134
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MORAHAN:
Announce the results.
SENATOR MONTGOMERY: To explain
my vote, Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Montgomery, to explain her vote.
SENATOR MONTGOMERY: Yes, Mr.
President, just briefly to explain my vote.
I apologize for taking these --
some of these bills so personally and
expressing it in that way. But I'm just
reminded how our experiences are so different.
And very often it shapes how we respond to
these bills.
I know that when I get off at
Exit 17 and I ride through and get back on the
Thruway, I'm constantly thinking, Whose
district am I in? Is it yours, Mr. President?
It is Senator Larkin? Is it Senator Bonacic?
Because I know that in case I get stopped and
I'm -- you know, I'm having to call someone,
I'm going to call one of you guys. So I keep
your numbers with me. Because I like driving
3135
down there, but I know it's not necessarily
the safest thing to do.
And now that I have a 16-year-old,
I guess I'm also so cognizant of the fact that
now for the first time he goes and comes by
himself. And in his quest for a little bit of
independence, walking the streets in my
neighborhood, I've told him and all of his
friends: "Be sure you take your
identification and my card." And I mean that
most sincerely. Because I understand that at
any moment, he could be stopped.
And even currently, he could be
stopped. But with this legislation, if he is
stopped, there would be no recourse for me to
appeal that he was stopped for no apparent
reason.
So I think that is a mistake. Yes,
I do take it very personally. I know my
experience is so different from Senator
Volker's, and thus he has a different
perspective. But this is what has shaped my
life, the experiences that I've had throughout
my life.
So I certainly take this very
3136
personally. It's a very serious issue for me.
And I am voting no on this legislation,
therefore.
ACTING PRESIDENT MORAHAN:
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 374 are
Senators Andrews, Breslin, Brown, Connor,
DeFrancisco, Dilan, Hassell-Thompson, L.
Krueger, Montgomery, Onorato, Parker,
Paterson, Sabini, Sampson, Schneiderman,
A. Smith, M. Smith, and Stavisky. Ayes, 42.
Nays, 18.
ACTING PRESIDENT MORAHAN: The
bill is passed.
Senator Kuhl.
SENATOR KUHL: That completes the
calendar, I believe, does it not, Mr.
President?
ACTING PRESIDENT MORAHAN: Yes.
SENATOR KUHL: Okay. Can we
return now to the reports of standing
committees. I understand that there's a
report of the Rules Committee at the desk.
ACTING PRESIDENT MORAHAN: The
3137
Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bills direct to third reading:
Senate Print 3060A, by Senator
Marcellino, an act to amend the Penal Law and
the Correction Law.
And Senate Print 4099, by Senator
Saland, an act to amend the Social Services
Law.
ACTING PRESIDENT MORAHAN:
Senator Kuhl.
SENATOR KUHL: Move to accept the
report of the Rules Committee.
ACTING PRESIDENT MORAHAN: All
those in favor of accepting the Rules
Committee report say aye.
(Response of "Aye.")
ACTING PRESIDENT MORAHAN:
Opposed, nay.
(No response.)
ACTING PRESIDENT MORAHAN: The
Rules report is accepted.
Senator Kuhl.
SENATOR KUHL: Is there any
3138
housekeeping at the desk?
ACTING PRESIDENT MORAHAN: Yes,
there is, Senator.
SENATOR KUHL: Could we do that
at this time.
ACTING PRESIDENT MORAHAN:
Senator McGee.
SENATOR McGEE: Mr. President, on
page number 38 I offer the following
amendments to Calendar Number 745, Senate
Print Number 1123. And on behalf of Senator
Bonacic, I ask that said bill retain its place
on Third Reading Calendar.
ACTING PRESIDENT MORAHAN: The
amendments are received and adopted, and the
bill will retain its place on the Third
Reading Calendar.
SENATOR McGEE: Thank you, Mr.
President.
Mr. President.
ACTING PRESIDENT MORAHAN:
Senator McGee.
SENATOR McGEE: On behalf of
Senator Skelos, on page number 39 I offer the
following amendments to Calendar Number 760,
3139
Senate Print Number 2851A, and ask that said
bill retain its place on Third Reading
Calendar.
ACTING PRESIDENT MORAHAN: The
amendments are received and adopted, and the
bill will retain its place on the Third
Reading Calendar.
SENATOR McGEE: Thank you, Mr.
President.
ACTING PRESIDENT MORAHAN: Thank
you, Senator McGee.
Senator Kuhl.
SENATOR KUHL: Does that complete
the housekeeping at the desk?
ACTING PRESIDENT MORAHAN: Yes,
it does.
SENATOR KUHL: May we return to
the order of motions and resolutions, then. I
understand there's a privileged resolution, a
concurrent resolution at the desk.
ACTING PRESIDENT MORAHAN: The
Secretary will read.
SENATOR KUHL: I ask that the
title be read only and move for its adoption.
ACTING PRESIDENT MORAHAN: The
3140
Secretary will read the title.
THE SECRETARY: The Assembly sent
for concurrence Assembly Concurrent Resolution
Number 897. Senator Balboni moves to
substitute Assembly Concurrent Resolution 897
for Senate Concurrent Resolution 1911.
ACTING PRESIDENT MORAHAN:
Substitution ordered.
The Secretary will read the title.
THE SECRETARY: Assembly
Concurrent Resolution Number 897, concurrent
resolution of the Senate and Assembly
proposing to establish the Temporary Joint
Legislative Committee on Disaster Preparedness
and Response, and providing for such
committee's powers and duties.
ACTING PRESIDENT MORAHAN: On the
resolution, all in favor signify by saying
aye.
(Response of "Aye.")
ACTING PRESIDENT MORAHAN:
Opposed, nay.
(No response.)
ACTING PRESIDENT MORAHAN: The
resolution is adopted.
3141
SENATOR KUHL: Mr. President,
will you please recognize Senator Larkin.
ACTING PRESIDENT MORAHAN:
Senator Larkin.
SENATOR LARKIN: Thank you, Mr.
President.
We earlier passed two resolutions,
and I would like to ask that it be opened up
for all members. One was on the initiation of
the Purple Heart stamp, which will be on
Friday, May 30th. And the other is on the
fiftieth anniversary of the cessation of
hostilities in Korea.
ACTING PRESIDENT MORAHAN:
Resolutions 1899 and 1890 are open for anyone
who would like to be listed. If you care not
to be listed on the resolutions as a sponsor,
notify the desk.
Thank you, Senator Larkin.
Senator Kuhl.
SENATOR KUHL: Also, Mr.
President, Senator Balboni has indicated his
desire to have all the members on the
concurrent resolution which was just passed in
this house. And so could we ask that the
3142
same -- take the same procedure, put every
member on. That's with the consent of the
Minority members.
ACTING PRESIDENT MORAHAN: The
resolution is open for anyone who wants to be
a sponsor. Anyone who does not want to be a
sponsor, please notify the desk.
Senator Kuhl.
SENATOR KUHL: That having been
done, Mr. President, there being no further
business to come before the Senate today, I
move the Senate stand adjourned until
tomorrow, Wednesday, May 28th, at 3:00 p.m.
ACTING PRESIDENT MORAHAN: On
motion, the Senate stands adjourned until
Wednesday, May 28th, at 3:00 p.m.
(Whereupon, at 5:18 p.m., the
Senate adjourned.)