Regular Session - May 29, 2003

    

 
                                                        3268



                           NEW YORK STATE SENATE





                          THE STENOGRAPHIC RECORD









                             ALBANY, NEW YORK

                               May 29, 2003

                                11:07 a.m.





                              REGULAR SESSION







            LT. GOVERNOR MARY O. DONOHUE, President

            STEVEN M. BOGGESS, Secretary















                                                        3269



                           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,

                 Wednesday, May 28, the Senate met pursuant to

                 adjournment.  The Journal of Tuesday, May 27,

                 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.



                                                        3270



                            Messages from the Governor.

                            Reports of standing committees.

                            Reports of select committees.

                            Communications and reports from

                 state officers.

                            Motions and resolutions.

                            Senator Fuschillo.

                            SENATOR FUSCHILLO:    Thank you,

                 Madam President.

                            On behalf of Senator Nozzolio, on

                 page number 51 I offer the following

                 amendments to Calendar Number 954, Senate

                 Print Number 2746, and ask that said bill

                 retain its place on Third Reading Calendar.

                            THE PRESIDENT:    The amendments

                 are received and adopted, and the bill will

                 retain its place on the Third Reading

                 Calendar.

                            SENATOR FUSCHILLO:    Madam

                 President, on behalf of Senator Morahan, on

                 page number 56 I offer the following

                 amendments to Calendar Number 1025, Senate

                 Print Number 2226A, and ask that said bill

                 retain its place on Third Reading Calendar.

                            THE PRESIDENT:    The amendments



                                                        3271



                 are received and adopted, Senator, and the

                 bill will retain its place on the Third

                 Reading Calendar.

                            SENATOR FUSCHILLO:    Madam

                 President, on behalf of Senator Maziarz, I

                 wish to call up Senate Print Number 2627,

                 recalled from the Assembly, which is now at

                 the desk.

                            THE PRESIDENT:    The Secretary

                 will read.

                            THE SECRETARY:    Calendar Number

                 477, by Senator Maziarz, Senate Print 2627, an

                 act authorizing the Town of Newfane, Niagara

                 County.

                            SENATOR FUSCHILLO:    Madam

                 President, I now move to reconsider the vote

                 by which the bill was passed.

                            THE PRESIDENT:    The Secretary

                 will call the roll upon reconsideration.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 40.

                            SENATOR FUSCHILLO:    Madam

                 President, I now offer the following

                 amendments.

                            THE PRESIDENT:    The amendments



                                                        3272



                 are received, and the bill will retain its

                 place on the Third Reading Calendar.

                            Senator Skelos.

                            SENATOR SKELOS:    Madam President,

                 if we could go to the noncontroversial reading

                 of the calendar.

                            THE PRESIDENT:    The Secretary

                 will read.

                            THE SECRETARY:    Calendar Number

                 109, by Senator Larkin, Senate Print 1235, an

                 act to amend the Penal Law, in relation to the

                 imposition of criminal penalties.

                            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, 45.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 144, by Member of the Assembly Parment,

                 Assembly Print Number 4095, an act to amend



                                                        3273



                 the Family Court Act, in relation to the

                 reappointment.

                            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, 45.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 163, by Senator Saland, Senate Print 2023, an

                 act to amend the Education Law, in relation to

                 excluding expenditures.

                            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, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number



                                                        3274



                 303, by the Assembly Committee on Rules,

                 Assembly Print Number 7882, an act to amend

                 the Surrogate's Court Procedure Act, in

                 relation to jury trials.

                            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, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 378, by Senator Volker, Senate Print 3090, an

                 act to amend the Criminal Procedure Law, in

                 relation to persons --

                            SENATOR LIZ KRUEGER:    Lay it

                 aside.

                            THE PRESIDENT:    The bill is laid

                 aside.

                            THE SECRETARY:    Calendar Number

                 424, by Senator Rath, Senate Print 3566, an

                 act to amend the Family Court Act, in relation

                 to the notice of respondent.



                                                        3275



                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect on the 90th day.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 435, by Senator Wright, Senate Print 1066, an

                 act to amend --

                            SENATOR SCHNEIDERMAN:    Lay it

                 aside.

                            THE PRESIDENT:    The bill is laid

                 aside.

                            THE SECRETARY:    Calendar Number

                 456, by Senator Wright, Senate Print 3423, an

                 act to amend the Penal Law, in relation to

                 criminal tampering in the first degree.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the first of

                 November.



                                                        3276



                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 467, by Senator Rath, Senate Print 3600, an

                 act to amend the Family Court Act, in relation

                 to child support violation.

                            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, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 514, by Senator Larkin, Senate Print 2130, an

                 act to amend the Racing, Pari-Mutuel Wagering

                 and Breeding Law, in relation to antitrust

                 exemptions.

                            THE PRESIDENT:    Read the last

                 section.



                                                        3277



                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 515, by Senator Marchi, Senate Print 1884 --

                            SENATOR SCHNEIDERMAN:    Lay it

                 aside.

                            THE PRESIDENT:    The bill is laid

                 aside.

                            THE SECRETARY:    Calendar Number

                 519, by Senator DeFrancisco, Senate Print

                 4429, an act to amend the Judiciary Law, in

                 relation to administrative judges.

                            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, 47.

                            THE PRESIDENT:    The bill is



                                                        3278



                 passed.

                            THE SECRETARY:    Calendar Number

                 527, by Senator --

                            SENATOR SKELOS:    Lay it aside for

                 the day, please.

                            THE PRESIDENT:    The bill is laid

                 aside for the day.

                            THE SECRETARY:    Calendar Number

                 605, by Senator Volker, Senate Print 3127, an

                 act to amend the Criminal Procedure Law and

                 the Family Court Act, in relation to the

                 duration of orders of protection.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 10.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 606, by Senator Rath, Senate Print 3565, an

                 act to amend the Family Court Act and the

                 Social Services Law, in relation to



                                                        3279



                 commitments.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect on the 90th day.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 611, by Senator Rath --

                            THE PRESIDENT:    Senator Rath.

                            SENATOR RATH:    Madam President,

                 I'd like to place a sponsor's star on that

                 bill, please.

                            THE PRESIDENT:    The bill is so

                 starred, Senator.

                            The Secretary will continue to

                 read.

                            THE SECRETARY:    Calendar Number

                 652, by Senator Volker, Senate Print 4259, an

                 act to amend Chapter 367 of the Laws of 1999,

                 amending the Civil Practice Law and Rules.

                            THE PRESIDENT:    Read the last



                                                        3280



                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 673, by Senator Leibell, Senate Print 4839, an

                 act to amend the Cooperative Corporations Law,

                 in relation to the formation of cooperatives.

                            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, 47.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 681, by Senator Kuhl, Senate Print 4452, an

                 act to amend the Education Law, in relation to

                 the salary cap for a district superintendent.



                                                        3281



                            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, 48.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 691, by Senator Velella, Senate Print 4123 --

                            SENATOR SKELOS:    Lay it aside for

                 the day.

                            THE PRESIDENT:    The bill is laid

                 aside for the day.

                            THE SECRETARY:    Calendar Number

                 705, by Senator Robach, Senate Print 3916, an

                 act to amend the Education Law and the

                 Retirement and Social Security Law, in

                 relation to the applicable interest rate.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect January 1, 2004.

                            THE PRESIDENT:    Call the roll.



                                                        3282



                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 48.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 721, by Senator Nozzolio, Senate Print 3829,

                 an act to amend the Executive Law, in relation

                 to personal interviews.

                            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, 47.  Nays,

                 1.  Senator Montgomery recorded in the

                 negative.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 734, by Senator Farley, Senate Print 4387A, an

                 act to amend the Banking Law, in relation to

                 making certain technical corrections.

                            THE PRESIDENT:    Read the last

                 section.



                                                        3283



                            THE SECRETARY:    Section 6.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 48.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 738, by Senator LaValle, Senate Print 2233, an

                 act to amend the Education Law, in relation to

                 mandatory continuing education for land

                 surveyors.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect on the same date as

                 Section 1 of Chapter 135 of the Laws of 2002.

                            THE PRESIDENT:    Senator

                 Hassell-Thompson, why do you rise?

                            SENATOR HASSELL-THOMPSON:    Thank

                 you, Madam President.  I rise to request

                 unanimous to be recorded in the negative --

                            THE PRESIDENT:    We have to wait

                 until the roll call is over, please.

                            The Secretary will continue to



                                                        3284



                 read.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 48.

                            THE PRESIDENT:    The bill is

                 passed.

                            Senator Hassell-Thompson.

                            SENATOR HASSELL-THOMPSON:    Okay.

                 Thank you.  You didn't see me standing before.

                 That's hard to believe, but -- thank you,

                 Madam President.

                            I would like to have -- I rise to

                 request unanimous consent to be recorded in

                 the negative on Calendar Number 721.

                            THE PRESIDENT:    You will be so

                 recorded in the negative, Senator

                 Hassell-Thompson.

                            SENATOR HASSELL-THOMPSON:    Thank

                 you.

                            THE PRESIDENT:    The Secretary

                 will continue to read.

                            THE SECRETARY:    Calendar Number

                 771, by Senator Bonacic, Senate Print 4008, an

                 act to amend the Private Housing Finance Law,

                 in relation to the powers of the New York

                 State Housing Finance Agency.



                                                        3285



                            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, 48.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 829, by Senator Velella, Senate Print --

                            SENATOR SKELOS:    Lay it aside for

                 the day.

                            THE PRESIDENT:    The bill is laid

                 aside for the day.

                            THE SECRETARY:    Calendar Number

                 830, by Senator Velella --

                            SENATOR SKELOS:    Lay it aside for

                 the day.

                            THE PRESIDENT:    The bill is laid

                 aside for the day.

                            THE SECRETARY:    Calendar Number

                 836, by Senator LaValle, Senate Print 284, an

                 act to amend the State Finance Law, in

                 relation to commodities and service contracts.



                                                        3286



                            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, 48.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 846, by Senator Farley, Senate Print 1070, an

                 act to amend the Executive Law, in relation to

                 designation of August 7th as Family Day, a day

                 of commemoration.

                            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, 48.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 860, by Senator LaValle, Senate Print 3329, an



                                                        3287



                 act to amend Chapter 9 --

                            SENATOR LaVALLE:    Lay that aside,

                 for the day, please.

                            THE PRESIDENT:    The bill is laid

                 aside for the day.

                            THE SECRETARY:    Calendar Number

                 863, by Senator Golden, Senate Print 3961A, an

                 act to amend the Executive Law, in relation to

                 designating Asian New Year as a day to be

                 commemorated.

                            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, 51.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 872, by Senator Trunzo, Senate Print 1368, an

                 act to amend the Vehicle and Traffic Law, in

                 relation to the penalty for operating certain

                 commercial motor vehicles.

                            THE PRESIDENT:    Read the last



                                                        3288



                 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, 51.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 875, by Member of the Assembly Smith, Assembly

                 Print Number 3309, an act to amend Chapter 122

                 of the Laws of 2001, amending the Vehicle and

                 Traffic 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, 51.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 890, by Senator Farley, Senate Print 4385, an



                                                        3289



                 act to amend the Public Authorities --

                            SENATOR LIZ KRUEGER:    Lay it

                 aside.

                            THE PRESIDENT:    The bill is laid

                 aside.

                            THE SECRETARY:    Calendar Number

                 893, by Senator Fuschillo, Senate Print 4740,

                 an act authorizing the study of current rules

                 and regulations relating to the operation of

                 drawbridges.

                            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, 51.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 894, by Senator Nozzolio, Senate Print 432, an

                 act to amend the Penal Law, in relation to

                 making it a crime to steal or possess stolen

                 anhydrous ammonia.

                            THE PRESIDENT:    Read the last



                                                        3290



                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 52.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 896, by Senator Balboni, Senate Print 514, an

                 act to --

                            SENATOR SCHNEIDERMAN:    Lay it

                 aside.

                            THE PRESIDENT:    The bill is laid

                 aside.

                            THE SECRETARY:    Calendar Number

                 901, by Member of the Assembly Ramos, Assembly

                 Print Number 7048B, an act to amend the Penal

                 Law, in relation to possession of billies or

                 blackjacks.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.



                                                        3291



                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 52.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 905, by Senator Johnson, Senate Print --

                            SENATOR SKELOS:    Star that bill

                 at the request of the sponsor.

                            THE PRESIDENT:    The bill is so

                 starred.

                            THE SECRETARY:    Calendar Number

                 907, by Senator Saland, Senate Print 4528, an

                 act to amend the Penal Law, in relation to

                 unlawful use of a scanning device or --

                            SENATOR SALAND:    Please star that

                 bill, Madam President.

                            THE PRESIDENT:    The bill is

                 starred.

                            THE SECRETARY:    Calendar Number

                 908, by Senator Saland, Senate Print 4529, an

                 act to amend the Penal Law, in relation to

                 harassment of teachers and school personnel.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This



                                                        3292



                 act shall take effect on the first of

                 September.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 51.  Nays,

                 1.  Senator Montgomery recorded in the

                 negative.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 910, by Senator Fuschillo, Senate Print 4584,

                 an act to amend the Penal Law, in relation to

                 false personation.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect on the first of

                 November.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 51.  Nays,

                 1.  Senator Montgomery recorded in the

                 negative.

                            THE PRESIDENT:    The bill is

                 passed.



                                                        3293



                            THE SECRETARY:    Calendar Number

                 913, by Senator Marcellino, Senate Print 4941,

                 an act to amend the Criminal Procedure Law, in

                 relation to anonymous juries.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 3.  This

                 act shall take effect on the 90th day.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 52.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 928, by Senator Kuhl, Senate Print 2581, an

                 act to amend the Parks, Recreation and --

                            SENATOR SKELOS:    Lay it aside for

                 the day, please.

                            THE PRESIDENT:    The bill is laid

                 aside for the day.

                            THE SECRETARY:    Calendar Number

                 936, by Senator Maltese, Senate Print 1180, an

                 act to amend the General Municipal Law, in

                 relation to certain lung disabilities.

                            THE PRESIDENT:    Read the last



                                                        3294



                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the first of July.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 52.

                            THE PRESIDENT:    The bill is

                 passed.

                            Senator Skelos, that completes the

                 noncontroversial reading of the calendar.

                            SENATOR SKELOS:    Thank you, Madam

                 President.  If we could go to the

                 controversial reading of the calendar.

                            THE PRESIDENT:    The Secretary

                 will read.

                            THE SECRETARY:    Calendar Number

                 378, by Senator Volker, Senate Print 3090, an

                 act to amend Criminal Procedure Law, in

                 relation to persons designated as peace

                 officers.

                            SENATOR SCHNEIDERMAN:

                 Explanation.

                            THE PRESIDENT:    Senator Volker,

                 an explanation has been requested.

                            SENATOR VOLKER:    Madam President,



                                                        3295



                 this is a bill that would allow peace officer

                 status for the security force at the Erie

                 County Medical Center.

                            I think that one thing we -- I

                 listened yesterday to a debate on peace

                 officer status, and apparently there's a

                 misunderstanding that peace officer status

                 gives the same powers as police officers.

                 That's absolutely not true.

                            The problems, in fact, we're having

                 now is, and particularly in a city like

                 Buffalo, where the police force is being

                 downgraded, or rather consolidated or whatever

                 is being done -- in other words, there are

                 fewer police officers.  In certain high-crime

                 areas, and the Erie County Medical Center is

                 in an area that I think some would consider a

                 high-crime area, you need the color of law.

                            And what peace officer status does,

                 I think -- understand, police officer status

                 gives a person the right to make arrests

                 off -- in any place within the jurisdiction,

                 basically, although a police officer can make

                 certain arrests anyplace.

                            A peace officer only has power in



                                                        3296



                 relation to where his authority is; that is,

                 at the facility or wherever it is that he or

                 she is involved with.

                            It gives no authority to carry

                 guns.  Except that I can assure you that most

                 of the security officers at the Erie County

                 Medical Center already carry guns.  They have

                 permits.  And the reason is, it is a fairly

                 dangerous area.  And this -- the peace officer

                 authority does not give it -- if the people

                 that are involved say they can't do that, they

                 can't do it.

                            And I think one thing that people

                 should realize, a lot of the peace officer

                 people now are asking us for two things.

                 First of all, they want the power of police

                 officers, because that gives them much more

                 authority to make arrests and things of that

                 nature.

                            The second thing, of course, they

                 all like is they all want to be police

                 officers.  But we don't let people become

                 police officers unless they go through the

                 same training as all other police officers go

                 through.



                                                        3297



                            And the difficulty is that in some

                 cases that becomes very problematic.

                 Particularly in New York City, where there's a

                 lot of the people who are doing some very

                 dangerous work that want to be police officers

                 because of the situation they're in, but we

                 have balked at doing that.

                            The peace officer basically gives

                 that person some authority -- the color of

                 authority, is what I call it.  Not a heck of a

                 lot more authority in many ways than an

                 average citizen has, because everybody to a

                 certain extent has the right to grab somebody

                 who immediately just committed a crime.

                            But it gives some color of

                 authority.  And more than anything, to tell

                 you the truth, it allows that person to have

                 some coverage should there be a problem with

                 some action that they take, and gives them at

                 least some authority.

                            Most peace officers -- and they're

                 asked, by the way, that if there's something

                 very serious where they have time to make an

                 arrest, they call a local police officer.

                 Because the real authority is not in peace



                                                        3298



                 officers, it's with police officers.

                            And, for instance, serving

                 warrants.  And we used to have this even way

                 back when I was a police officer, where we

                 would get calls from people at institutions or

                 whatever and you would go there with the

                 warrant and they would go with you and serve

                 the warrant.

                            It's really designed if someone

                 sees a crime being committed, that they have

                 the color of authority to go and arrest that

                 person and turn them over to a police officer.

                 Because they have really not the authority to

                 move ahead and really prosecute the case; that

                 has to be done by the local authorities.

                            THE PRESIDENT:    Senator Krueger.

                            SENATOR LIZ KRUEGER:    Thank you,

                 Madam President.  If the sponsor would yield.

                            THE PRESIDENT:    Senator Volker,

                 do you yield?

                            SENATOR VOLKER:    Certainly.

                            THE PRESIDENT:    You may proceed,

                 Senator.

                            SENATOR LIZ KRUEGER:    Thank you.

                            Well, I was so glad that you had a



                                                        3299



                 bill here today, Senator Volker, on peace

                 officers.  Because, as I've brought up several

                 times just this week, we seem to keep passing

                 bills here to expand the number of people who

                 are peace officers and the authority they

                 have.

                            SENATOR VOLKER:    Yes.  Yes.

                            SENATOR LIZ KRUEGER:    In fact, as

                 you just explained, we don't let people who

                 want to become police officers become them

                 because we don't have enough money to have

                 enough police.  And you're using the example

                 of a hospital in your own district.

                            But as you just said, they carry

                 guns, we're giving them the right to do

                 arrests, warrantless searches --

                            SENATOR VOLKER:    No, that's

                 not -- by the way, that's not true.

                            SENATOR LIZ KRUEGER:    It's not

                 true.

                            SENATOR VOLKER:    They have very

                 little authority to do warrantless searches,

                 except if there's a crime committed or

                 something where there is a reason connected

                 with the -- and I don't mean to interrupt you.



                                                        3300



                            But -- and, by the way, it doesn't

                 give them the authority to carry guns.

                            SENATOR LIZ KRUEGER:    No, but you

                 said that these people already had that.

                            SENATOR VOLKER:    They do because

                 they have permits.

                            SENATOR LIZ KRUEGER:    Right.

                            SENATOR VOLKER:    And if the local

                 people decide, the people that run the

                 institution, that they can continue to carry

                 guns but under the authority of their -- they

                 have to do the same process as everyone else,

                 is what I mean.  In other words, get checked

                 and make sure they're -- of their ability to

                 be able to do it.

                            But I would point out to you, if I

                 just might say, that one of the problems is

                 you need people who have some authority to

                 oversee some of these public institutions.

                            Many of these people, by the way,

                 are trained as police officers -- or trained

                 the same as police officers.  Because what's

                 happening is admittedly this is one of the

                 ways you can then become a police officer, is

                 to become a peace officer at some place and



                                                        3301



                 then later apply, if there is an opening, to

                 become police officers.

                            But the problem is that you have to

                 have some sort of authority in these type of

                 places.  There have been some very serious

                 incidents that have occurred in these places,

                 shootings and so forth.  And particularly,

                 unfortunately, at hospitals in Western

                 New York, where people are brought in with

                 stab wounds and things of that nature, and

                 maybe the other people that were involved in

                 it come looking for them at the hospital or

                 whatever.  So it's a pretty serious matter.

                            And I only point out that we pass

                 a -- it's true, we pass a number of peace

                 officer bills a year.  But only a few become

                 law.  And this one, very, very honestly,

                 probably will, because, I think, of the

                 serious nature of the situation involved.  And

                 I only point that out to you.

                            SENATOR LIZ KRUEGER:    Madam

                 President, if through you the sponsor would

                 yield to an additional question.

                            THE PRESIDENT:    Senator, will you

                 yield?



                                                        3302



                            SENATOR VOLKER:    Certainly.

                            THE PRESIDENT:    You may proceed,

                 Senator Krueger.

                            SENATOR LIZ KRUEGER:    Thank you.

                            I appreciate your explanation, your

                 clarification.

                            I guess the question I want to ask

                 you, which is both, I think, on your bill and

                 on the broader issue, we know our crime rate

                 is going down throughout the state of

                 New York, happily.  And yet it seems, through

                 the action of the Legislature with these peace

                 officer bills, we are creating a second tier

                 of police where we don't have a mandated,

                 standard training protocol or an institutional

                 relationship with the prosecutors, as you

                 describe.

                            And yet in various institutions

                 throughout the state of New York -- hospitals,

                 universities, energy plants -- we are talking

                 about creating a secondary structure of police

                 for most purposes, if you're talking about the

                 ability to carry guns in some circumstances,

                 if you're talking about the ability to do

                 searches in some circumstances, to chase



                                                        3303



                 people off the premises in some circumstances.

                            You are an expert on the police

                 system and the judicial system in this state.

                 Don't you think we're walking down,

                 potentially, a dangerous road by having a

                 second tier, nonpolice police system?

                            SENATOR VOLKER:    The answer is

                 no.  And I'll tell you why.  Because the

                 problem is we don't do this.  These are not

                 police, they're peace officers.  There's --

                 the authority is much, much less.

                            The prime reason that these people

                 get peace officer status has to do with their

                 ability to enforce certain standards of the

                 institutions.  They're really not designed,

                 for instance, to enforce the Penal Law.

                 They're designed to allow for certain actions

                 that have to be taken within these

                 institutions where there are no police

                 officers present.

                            I think one of the things that has

                 to be remembered also, in this lawsuit-crazy

                 age that we live in, it also gives them some

                 authority to have certain coverage.  Because

                 challenging all authority is so prevalent



                                                        3304



                 today in civil suits that you have to have

                 some level of authority in order to even

                 manage these -- the alternative, by the way,

                 the alternative is to hire professional

                 security guards, mandate very expensive

                 procedures with them.  And in some places,

                 that has happened.

                            In this state we have not been very

                 successful at convincing cities, towns,

                 villages or anybody else to do that sort of

                 thing.

                            So when you think about it here,

                 what is the alternative?  Is the alternative

                 not to do this and therefore risk even more

                 problems than we might create now?  I don't

                 think so.

                            And as I say, most peace officers

                 do not carry weapons.  They do not.  Because

                 the peace officer status does not give them

                 authority.  It is only whether the local

                 people want it and, secondly, the issue of

                 permits.

                            The third thing you should

                 understand is they can't chase anybody off

                 the -- they have no authority, under peace



                                                        3305



                 officer status, to chase anybody anywhere.  If

                 the person leaves the building and walks away,

                 they have to call a police officer.  I suppose

                 you could argue if you're chasing somebody out

                 the door and they fall on the sidewalk or

                 something.

                            But their only authority is in

                 relation to the facility that they -- where

                 they work.  They do not have any other

                 authority to do any other arrests or any

                 enforcing of the local violations or penal

                 laws or anything of that nature.

                            SENATOR LIZ KRUEGER:    On the bill

                 briefly, Madam President.

                            THE PRESIDENT:    You may proceed,

                 Senator.

                            SENATOR LIZ KRUEGER:    Thank you.

                            I appreciate Senator Volker's

                 explanation.

                            Again, I think the issue here is

                 bigger than his one bill.  The bill that we

                 dealt with earlier in the week involved the

                 right of peace officers at nuclear power

                 plants to in fact leave their facilities to

                 follow through, so that one was different.



                                                        3306



                 The bill we dealt with yesterday for a

                 university system peace officers to have

                 certain police powers was slightly different

                 than your bill today.

                            Your bill today, as you said,

                 doesn't include the right to guns, although

                 they already carry guns.

                            My point is, and it is my concern

                 with the direction we are going, we are

                 creating a second-tier police system in this

                 state through these individual peace officer

                 pieces of legislation.  Each one works under a

                 different set of rules, a different set of

                 standards, somebody else overseeing them.

                 There is no standardization or institutional

                 base of rules, regulations, training, approval

                 for these peace officers throughout the state.

                            I fear that we walk ourselves down

                 a road where we turn around, take a look back

                 a few years from now and say, how did we

                 create 52 different subpolice systems in the

                 state of New York, each of which have their

                 own rules, but many of which have most police

                 powers?

                            Because, I would argue, first peace



                                                        3307



                 officer, then you do have people coming

                 forward saying the right to carry guns.  If

                 you're doing arrests, you are in a dangerous

                 situation, you're going to ask for the power

                 to carry a gun.

                            If you can do a search at a

                 university, where's the line between a

                 warrantless search and a search in which you

                 should call the police?

                            I think New York State is doing

                 ourselves and our communities an injustice by

                 not asking the bigger questions about why are

                 we going down the road of so many subpolice

                 systems.

                            Do we have adequate police

                 protection in our communities?  If we don't,

                 let's address it through our police systems

                 rather than setting up a quasi-privatized,

                 piecemeal system for people who won't be

                 police but will have many of the authorities

                 and powers of individual police.

                            I'll vote for your bill, again with

                 the hesitation I've raised on all of the bills

                 this week.  But I really think this

                 Legislature needs to sit down and take a look



                                                        3308



                 at the needs for police response throughout

                 our communities and what we should doing in a

                 broad-based structure rather than these

                 individual peace officer bills.

                            Thank you, Madam President.

                            THE PRESIDENT:    Does any other

                 member wish to be heard on this bill?

                            Then the debate is closed.

                            Read the last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the 180th day.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 57.

                            THE PRESIDENT:    The bill is

                 passed.

                            Senator Connor.

                            SENATOR CONNOR:    Thank you, Madam

                 President.  May I have unanimous consent to be

                 recorded in the negative on Calendar Number

                 519.

                            THE PRESIDENT:    Without hearing

                 any objection, you will be so recorded as

                 voting in the negative, Senator Connor.

                            The Secretary will continue to



                                                        3309



                 read.

                            THE SECRETARY:    Calendar Number

                 435, by Senator Wright, Senate Print 1066, an

                 act to amend the Real Property Tax Law, in

                 relation to the taxation of certain state

                 lands.

                            SENATOR SCHNEIDERMAN:

                 Explanation.

                            THE PRESIDENT:    An explanation

                 has been requested, Senator Wright.

                            SENATOR WRIGHT:    Thank you, Madam

                 President.

                            The bill before us today amends the

                 Real Property Tax Law to add the town of

                 Parish in the county of Oswego to a listing of

                 townships in various counties across the state

                 and amends the Real Property Tax Law to

                 provide for the payment of state real property

                 taxes.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect --

                            THE PRESIDENT:    Senator

                 Schneiderman.



                                                        3310



                            SENATOR SCHNEIDERMAN:    Thank you,

                 Madam President.  Briefly on the bill.

                            THE PRESIDENT:    You may proceed

                 on the bill.

                            SENATOR SCHNEIDERMAN:    This is a

                 bill that we addressed last year that provides

                 for property -- that certain state property

                 will be exempt from taxation -- will be

                 taxable, excuse me, will be taxable by

                 municipalities, and provides a list of certain

                 specific municipalities.

                            A lot of us voted against this last

                 year because of the sense of injustice of

                 identifying some areas of the state,

                 localities -- and every local government in

                 this state, including the government of the

                 great city of New York, is hurting right now.

                 We have lots of state property in all these

                 municipalities.  It hurts every municipality

                 that we can't tax state property.

                            Senator Breslin's district, I

                 think, is the leader in the state of having

                 state property that's not subject to taxation.

                            We have a fiscal crisis in many

                 parts of the state.  I'm sympathetic to the



                                                        3311



                 fact that the municipalities listed in this

                 bill would like to get the revenue from state

                 property.  But so would all of the rest of us.

                 So would all the rest of us.

                            And there's no reason why state

                 property in the Bronx shouldn't be helping us

                 balance our budget, why state property in

                 Brooklyn, state property in Albany or in

                 Buffalo shouldn't be helping us balance our

                 budget.

                            So I voted no on this last year --

                 as did many, many of my colleagues -- because

                 this bill represents a fundamental injustice.

                 If we're going to try to help some

                 municipalities by providing that they can get

                 tax revenues from state land, let's do it

                 fairly.  Let's do it for everybody or let's do

                 it for nobody.

                            This is a serious, serious problem

                 in the City of New York.  We have huge,

                 valuable state properties that are not subject

                 to taxation.  The state does not, in my view,

                 do enough for the major cities of this state

                 as it is, for New York, for Yonkers, for

                 Buffalo, Rochester, and this bill would



                                                        3312



                 exacerbate the problem.

                            So I'm voting no, as I did last

                 year, along with 18 of my colleagues,

                 including, I think, virtually everyone from

                 the City of New York on my side of the aisle.

                            So if we're going to provide

                 additional aid to municipalities, let's do it

                 fairly.  Let's not increase the discrimination

                 against New York City and other big cities by

                 the government of the State of New York.

                            Thank you, Madam President.

                            THE PRESIDENT:    Senator Stavisky.

                            SENATOR STAVISKY:    Madam

                 President, for the same reason yesterday that

                 I voted against special tax breaks for certain

                 airports -- and as the representative of

                 LaGuardia Airport, I think we are just as in

                 need of assistance -- I will vote no again

                 this year.

                            Thank you.

                            THE PRESIDENT:    Senator Krueger.

                            SENATOR LIZ KRUEGER:    Thank you.

                 Just to both be a representative of New York

                 City and highlight for this house that I

                 recognize the issues for the rest of the



                                                        3313



                 state.

                            In fact, there was a task force

                 chaired by Senator Bonacic and Senator Little

                 around issues around real estate tax

                 inequities in the State of New York in land.

                 And in fact, some of the issues highlighted

                 there, that in much of upstate New York large

                 parts of counties and districts are in fact

                 parkland or state-owned land that also cannot

                 collect tax revenue.  And it does great harm

                 not only to the cities, as Senator

                 Schneiderman said, but also to upstate

                 districts.

                            If we're going to deal with this

                 issue, we have to deal with it from a

                 statewide perspective.  And this is not the

                 way to do it.  So I vote no and urge people

                 from areas with large parks and open lands and

                 from urban areas to vote no.

                            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



                                                        3314



                 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 435 are

                 Senators Andrews, Brown, Diaz, Dilan, L.

                 Krueger, Montgomery, Oppenheimer, Parker,

                 Paterson, Sabini, Schneiderman, M. Smith,

                 Stachowski, and Stavisky.  Also Senator A.

                 Smith.  Ayes, 42.  Nays, 15.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 515, by Senator Marchi, Senate Print 1884, an

                 act to amend the Judiciary Law and the

                 Education Law, in relation to creating.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 7.  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.



                                                        3315



                            THE SECRETARY:    Calendar Number

                 890, by Senator Farley, Senate Print 4385, an

                 act to amend the Public Authorities Law, in

                 relation to authorizing regional

                 transportation authorities.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 5 --

                            THE PRESIDENT:    Senator Krueger,

                 excuse me.

                            SENATOR LIZ KRUEGER:    I'd just

                 like to speak on the bill briefly.

                            THE PRESIDENT:    You may proceed

                 on the bill.

                            SENATOR LIZ KRUEGER:    Thank you.

                            I just wanted to highlight to this

                 house that this is a bill that gives

                 off-budget authorities even more power to make

                 financial decisions for themselves absent the

                 role of the Legislature.

                            And while it seems a relatively

                 innocuous bill, the ability of upstate

                 authorities to have the same authority of the

                 MTA, to have lines of credits at banks,

                 allowing them to avoid taking out additional



                                                        3316



                 bonds, and they argue that it's

                 cost-effective -- and it may be -- it raises

                 for me yet again the red flag that all of us

                 should be aware of, that we have large numbers

                 of off-budget authorities in this state that

                 have the ability to raise their own revenues,

                 increase their fees and tax the public without

                 the Legislature being a participant -- and

                 unfortunately, as we have seen with the MTA

                 frequently, lately, the ability to perhaps

                 misrepresent the numbers in the books that

                 they provide to the public when the public

                 asks for information.

                            And so I worry that this gives the

                 regional transportation authorities an

                 additional power that the MTA already has had

                 to raise its own money, perhaps under the veil

                 of no one in the public eye knowing what's

                 going on.

                            So I've reviewed this with Senator

                 Farley, and I do think I can support this

                 because it does allow regional authorities

                 simply to borrow some additional money at

                 lower cost.

                            I wanted to highlight for this



                                                        3317



                 house yet again how important it is for the

                 Legislature to take back authority to review

                 off-budget authorities, to not allow MTA or

                 other off-budget authorities to continue to

                 have 100 percent control over their own

                 decision-making, their own finances, their own

                 ability to raise taxes on the people of

                 New York State.

                            And I thought I would take this

                 opportunity to urge us yet again to move

                 forward on reform bills for public

                 authorities, including the MTA and other

                 regional authorities such as those covered by

                 this bill.

                            So I will vote yes for this bill,

                 but I wanted to take the opportunity to raise

                 yet again an issue we should deal with before

                 we go home this year.

                            Thank you, Madam President.

                            THE PRESIDENT:    Does any other

                 member wish to be heard on this bill?

                            Then the debate is closed.

                            Read the last section.

                            THE SECRETARY:    Section 5.  This

                 act shall take effect immediately.



                                                        3318



                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 57.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 896, by Senator Balboni, Senate Print 514, an

                 act to amend the Civil Practice Law and Rules,

                 in relation to prohibiting civil actions.

                            SENATOR SCHNEIDERMAN:

                 Explanation.

                            SENATOR BALBONI:    Ask nicely.

                            THE PRESIDENT:    An explanation

                 has been requested, Senator Balboni.

                            SENATOR BALBONI:    Madam

                 President, this is a bill that first started

                 passing this house in big numbers in 1998.

                 And my only disappointment is that we have not

                 had this debate on the floor of the New York

                 State Assembly.

                            We have discussed this ad infinitum

                 or, as some would say, ad nauseam.  But

                 nonetheless, the principles inherent in the

                 proposal remain sound.  That is, that if you

                 choose to commit a felony in this state you



                                                        3319



                 should not be permitted to walk back into the

                 very courtroom that you snubbed your nose at

                 and then utilize that court system to gain

                 compensation for your injuries that resulted

                 from your own felonious conduct.

                            That's the bill in a nutshell.

                            THE PRESIDENT:    Senator

                 Schneiderman.

                            SENATOR SCHNEIDERMAN:    Thank you,

                 Madam President.

                            I have been reviewing the records

                 of the Dollinger-Balboni debates on this bill

                 over the years, which, for those of you who

                 have purchased the collected Dollinger-Balboni

                 debates, are at page 4827.  In fact, only two

                 copies have been sold, one in Rochester and

                 one in Nassau County.

                            But Senator Dollinger and Senator

                 Balboni engaged in an interesting debate last

                 year.  And I wonder if the sponsor might yield

                 for a question so I might follow up on a point

                 made by our dearly departed colleague.

                            THE PRESIDENT:    Senator, are you

                 willing to yield?

                            SENATOR BALBONI:    I'm sorry,



                                                        3320



                 Madam President.  For the record, you're not

                 suggesting that Senator Dollinger passed away.

                 He's merely left this building.

                            SENATOR SCHNEIDERMAN:    No, but

                 people who have --

                            THE PRESIDENT:    I take that as a

                 yes, Senator.

                            SENATOR SCHNEIDERMAN:    He is out

                 of the country at the moment.

                            Through you, Madam President.

                            THE PRESIDENT:    You may proceed.

                            SENATOR SCHNEIDERMAN:    Much of

                 the debate last year related to the lack of

                 any language in this legislation requiring

                 nexus between the criminal conduct, the

                 felony -- the conduct that results in a felony

                 conviction and the incident that forms the

                 basis for the claim for damages.

                            This is an action, as I think

                 everyone knows, that some refer to as the

                 hapless burglar act.  If someone is committing

                 a crime and is injured either by the person

                 who's the victim of the crime or by some

                 complete third party -- if someone walks by

                 and see someone stealing a watch and shoots



                                                        3321



                 someone in the back and paralyzes them, that

                 person would be exempt from liability because

                 it was in the commission of a felony.

                            SENATOR BALBONI:    I'm sorry,

                 Madam President, may I just -- I want to make

                 sure that the record is clear.  Let me just

                 correct that last statement.

                            The bill would not exempt that

                 individual from liability.  It would merely

                 say that they cannot bring a state civil

                 remedy.

                            They would still be subject to

                 prosecution and incarceration under the state

                 Penal Law, and they would still be subject to

                 a federal civil rights action.

                            SENATOR SCHNEIDERMAN:    Yes.

                 Thank you, Madam President, thanks, Senator

                 Balboni, for that correction.

                            The point I am attempting to make

                 is that throughout the debate last year

                 Senator Balboni repeatedly referred to the

                 fact that this bill is limited to actions that

                 are in the course of the commission of a

                 felony.

                            It states, at the first page, this



                                                        3322



                 would prohibit individuals who commit a felony

                 from suing for any injuries incurred, quote,

                 as a result of the commission of that crime.

                            Senator Balboni went on to state

                 that this bill talks about being injured

                 during the commission of a felony.

                            I am reading the section 1411-A,

                 lines 9 to 16 of the bill, which is the

                 relevant section.  I do not see anything that

                 requires any nexus whatsoever between the

                 culpable conduct that results in a felony

                 conviction and the civil action.

                            All this bill says is recovery is

                 barred in any action to recover damages for

                 personal injury or wrongful death.  Any.  It's

                 barred in any action, any culpable conduct of

                 the claimant or decedent resulting in a felony

                 conviction.

                            There's not even a preposition.

                 There's nothing that says in the course of the

                 act that's the basis for the civil action.  It

                 doesn't say committed during the incident

                 resulting in a civil action.  It doesn't say

                 it's the proximate cause of the injury

                 resulting in the civil action.



                                                        3323



                            What's the nexus, Senator Balboni?

                            SENATOR BALBONI:    Madam

                 President, through you.

                            If I -- I don't have a Black's Law

                 Dictionary here, and I apologize for that.

                 But I can certainly send you the cite.

                            The key to the answer is what we

                 refer to this bill in the office.  This is

                 known as the "culpable crimes bill."  And your

                 question goes to the definition in this

                 state's jurisprudence of the phrase "culpable

                 conduct."

                            We tried to make sure that we had a

                 statute that recognized the judicial realities

                 in this state's civil justice system.  And to

                 do that, we went back to 1975, when the CPLR

                 was changed from the contributory negligence

                 standard to a comparative negligence standard.

                 And we went back to the case law that had been

                 developed prior to the change in the statute,

                 and the case law specifically refers to

                 culpability.  And that is the phrase upon

                 which we seized.

                            So if you read the language of the

                 bill, it says in any action to recover damages



                                                        3324



                 for personal injury, any culpable -- which

                 means responsible, connected -- conduct on

                 behalf of the claimant resulting in a felony

                 conviction shall be a complete bar to

                 recovery.

                            Now, the ultimate safeguard in this

                 particular application is the judicial review

                 attendant to a motion for summary judgment at

                 the threshold of the action.  And that's

                 really what this is.

                            As you know, being a litigator

                 yourself, Senator Schneiderman, that the way

                 that this statute would act as a complete bar

                 is upon the commencement of an action by the

                 felonious plaintiff and then a response by the

                 defendant to dismiss summarily this motion.

                            That motion would then be reviewed

                 by the court.  And in that case, since we

                 actually use the phrase or the word

                 "culpable," the court would then make that

                 inquiry on the papers submitted, whether or

                 not in fact the conduct was culpable to the

                 felony.

                            So at the end of that review, the

                 court could do one of three things, as you



                                                        3325



                 know.  The court could say, you are correct --

                 I'm sorry, do you have a train to catch?

                            SENATOR SCHNEIDERMAN:    A train of

                 thought is what I'm trying to catch.

                            (Laughter.)

                            SENATOR BALBONI:    You've been

                 missing that train for several years now.  But

                 don't let that discourage you.

                            (Laughter.)

                            SENATOR BALBONI:    I'm sorry, just

                 a little joking here.

                            SENATOR SCHNEIDERMAN:    Never

                 engage in a battle of wits with an unarmed

                 man.

                            (Laughter.)

                            SENATOR BALBONI:    The court could

                 say, number one:  I agree with you, plaintiff,

                 you do have a case.  This goes to jury.

                 Number two:  I disagree with you, defendant --

                 I disagree with you, plaintiff, you do not

                 have a case because of your conduct.  Or,

                 number three:  It is a question of fact as to

                 whether or not your actions were in fact a

                 nexus or related to this particular cause of

                 action.



                                                        3326



                            So that's what the court would do.

                            SENATOR SCHNEIDERMAN:    Thank you.

                 Through you, Madam President.  And for my

                 part, I will endeavor to be brief in this

                 question.

                            I appreciate all of the historical

                 contextual discussion, but I want to focus on

                 the language of the statute.  Because I

                 honestly, honestly do not believe that there

                 is any connection in the language, the way the

                 statute is drafted, between the felony and the

                 subject matter of the action for personal

                 injury.

                            This says, when you talk about

                 culpable, it doesn't refer to culpability in

                 terms of the action for personal injuries.  It

                 states recovery is barred in any action for

                 personal injury, et cetera -- right? -- in any

                 action to recover damages for personal injury,

                 injury to property, or wrongful death, any

                 culpable conduct of the claimant or decedent

                 resulting in a felony.

                            "Culpable conduct" modifies

                 "resulting in a felony conviction."  It does

                 not relate to the civil action.  It's a



                                                        3327



                 complete bar to recovery.  Culpable conduct of

                 the claimant or decedent resulting in a felony

                 conviction.  That is the use of the word

                 "culpable" in the context of the criminal law

                 and the felony conviction.

                            There is nothing that requires that

                 that felony have any specific connection to

                 the civil action for personal injury, injury

                 to property or wrongful death.

                            And whatever we say about history

                 and whatever we saw about Black's Law

                 Dictionary, that doesn't cover up what I think

                 is a fundamental drafting error.  If the

                 statute is drafted to say any culpable conduct

                 of the claimant or decedent resulting in a

                 felony conviction committed in the course of

                 the events out of which the action for

                 personal injury -- that would be different.

                            It doesn't say that.  I think we've

                 been going year after year through this

                 without addressing a fundamental drafting

                 error.

                            There is no reason for me to

                 believe that a court could not interpret this

                 as broadly as to say, and this came up in the



                                                        3328



                 earlier debates, that someone who is fleeing

                 from -- or let's give a better example, since

                 we're big on criminalizing multiple

                 misdemeanors and making them felonies in this

                 house.

                            Say we had someone who's under one

                 of these statutes where multiple misdemeanors

                 turned into a felony, has been driving without

                 a license or some such thing, and is stopped

                 by the police and tries to get out of their

                 car and is beaten up.  Now, that person would

                 be barred from recovery.

                            And I appreciate what Senator

                 Balboni says.  We can only do certain things

                 in the state government.  We cannot prohibit

                 them from bringing a federal civil rights

                 action.  We cannot prohibit a criminal

                 prosecution.  But in reality, it is a critical

                 remedy to be able to seek civil redress.

                            I don't see any connection here.

                 "Culpable conduct" refers to the felony

                 conviction.  It does not refer to personal

                 injury.  And I don't -- and if we're relying

                 on case law, the case law right now bars

                 recovery in the most egregious circumstances.



                                                        3329



                 And we've discussed this before, Barker versus

                 Kallash.

                            Where's the causal connection?

                 Where's the nexus between the recovery for a

                 civil action in the language of the statute,

                 not somewhere else out in the ethers of the

                 law?

                            SENATOR BALBONI:    Madam

                 President, through you.

                            THE PRESIDENT:    You may proceed,

                 Senator.

                            SENATOR BALBONI:    I appreciate

                 your concern about the word "culpable."

                            I would offer several pieces of

                 solace for you.  The first is that the New

                 York State Trial Lawyers Association

                 memorandum on this particular bill -- and

                 they, as you know, have been reviewing this

                 bill for several years -- does not mention

                 anything about the nexus between the activity

                 and the felony and the lawsuit.

                            So apparently they have no problem

                 with that aspect of this legislation.

                            SENATOR SCHNEIDERMAN:    Through

                 you, Madam President, if the sponsor would



                                                        3330



                 yield again, I am --

                            THE PRESIDENT:    Senator, will

                 you -- gentlemen --

                            SENATOR BALBONI:    I have not

                 completed my answer.

                            THE PRESIDENT:    Senators, it's

                 hard for the --

                            SENATOR SCHNEIDERMAN:    Oh, I

                 apologize.  It's sometimes hard to tell.

                            THE PRESIDENT:    It's hard for the

                 stenographer to follow you when two people are

                 speaking at once.

                            Senator Balboni, do you yield for a

                 question?

                            SENATOR BALBONI:    Madam

                 President, I'm actually attempting to still be

                 responsive to the initial inquiry by the

                 gentleman.

                            THE PRESIDENT:    All right, you

                 may continue.  You have the floor, Senator

                 Balboni.

                            SENATOR BALBONI:    So that's the

                 first thing.  The New York State Trial Lawyers

                 Association doesn't seem to have a problem

                 with the word "culpable" and did not point



                                                        3331



                 out, quote, drafting errors.  Their opposition

                 is based upon other concerns.

                            Secondly, this is an interesting

                 defense, but let's take it out to its logical

                 extreme.

                            So what you're saying to me is that

                 if this statute were to become law and an

                 individual brought a lawsuit in an automobile

                 accident case, but had recently been convicted

                 of a felony for drug possession, that the

                 court would then apply this statute?  Is that

                 what you are saying?

                            ACTING PRESIDENT MEIER:    Senator

                 Schneiderman.

                            SENATOR SCHNEIDERMAN:    Oh.  I am

                 not saying that at all.

                            If I have the floor back, I would

                 like the sponsor to yield for another

                 question.

                            ACTING PRESIDENT MEIER:    Senator

                 Balboni, do you yield for another question?

                            SENATOR BALBONI:    Sure.  I just

                 want to get clarification on my question.

                            So, in fact, that is an absurd,

                 extreme example, this -- a perversion of this



                                                        3332



                 statute.

                            SENATOR SCHNEIDERMAN:    I don't

                 know.  I think the statute is so incoherent

                 it's difficult to interpret what would be a

                 perversion and what wouldn't be.

                            But I would like the sponsor to

                 yield to another question.

                            ACTING PRESIDENT MEIER:    Senator

                 Balboni, do you yield for a question?

                            SENATOR BALBONI:    Mr. President,

                 I'm going to take the last response as a yes.

                 And then I will also yield.

                            ACTING PRESIDENT MEIER:    The

                 sponsor yields.

                            SENATOR SCHNEIDERMAN:    Creative

                 creativity in interpretation is a very

                 important skill.

                            First of all, I think it is

                 excellent that Senator Balboni is now citing

                 the Trial Lawyers as the authority on legal

                 interpretation in this state.

                            I have learned something, though,

                 in my years here.  And I'm often reminded of

                 this by Senator Ruben Diaz.  Sometimes the

                 trial lawyers are wrong.  I mean, I've been



                                                        3333



                 through a couple of debates on this bill, and

                 this issue was raised, but I had never really

                 focused in until this year to the drafting

                 error.

                            And I think it is clearly a

                 drafting error.  There is no connection

                 between the second half of the phrase and the

                 first half of the phrase.  And I don't know

                 how a court would interpret it.

                            I do know that an overly aggressive

                 prosecutor with an ax to grind for someone

                 could attempt to interpret it broadly.  And

                 there are times when there are perversions of

                 statutes.

                            But once again, I would like to

                 request -- and this is the last time I will do

                 so -- what specific words in this statute

                 indicate that the culpable conduct of the

                 claimant or decedent resulting in a felony

                 conviction has some connection, or what the

                 nature of that connection is, to the action

                 for personal injury.

                            What are the words in this statute

                 that state there must be some connection

                 between the culpable conduct resulting in a



                                                        3334



                 conviction and any action?

                            SENATOR BALBONI:    Mr. President,

                 through you, I'm beginning to discern the

                 gentleman's confusion over certain aspects of

                 the bill.  And let me just clarify.

                            When you said that you're concerned

                 about a prosecutor's zeal, this is not a

                 criminal statute.  So there would be no

                 prosecutor involved in the application of this

                 statute.

                            The only time that this statute

                 would be invoked is if in fact, say, a county

                 attorney or an attorney for the city or a

                 defense attorney on behalf of some insurance

                 company were to decide this is the applicable

                 statute that would bar recovery.

                            So I just want to make sure that

                 we're clear, this is not a criminal statute

                 even though it references felony.

                            Secondly, I will go back again to

                 the word "culpable."  And the reason why we

                 did not go to the broader language is to try

                 to make sure it was in, you know, this action

                 and this particular -- because that's very

                 difficult to define.  And what we're doing



                                                        3335



                 here, and you -- lastly, your reference to

                 Barker versus Kallash is an important one, and

                 that really goes to the crux of this bill.

                            This bill is not establishing new

                 ground, new precedent.  It's not taking the

                 state in a different direction.  What it is

                 doing is it is merely codifying existing case

                 law.

                            And I think you'll agree that if

                 there is a benefit to codification, it is the

                 utilization of that statute in motions of

                 summary judgment.

                            ACTING PRESIDENT MEIER:    Senator

                 Schneiderman.

                            SENATOR SCHNEIDERMAN:    I will

                 take that answer as there is no connection

                 language there.

                            I will now speak on the bill

                 briefly.  Very briefly.  Very briefly.

                            ACTING PRESIDENT MEIER:    Senator

                 Schneiderman, on the bill.

                            SENATOR SCHNEIDERMAN:    I think

                 there are two fundamental problems with this

                 law.

                            One is that even if it was drafted



                                                        3336



                 correctly, I would vote against it.  Because

                 what this bill seeks to do is to take away

                 from the jury the ability to take into account

                 all the factors in a case.

                            There is no easy course for someone

                 who is committing a felony and attempts to

                 bring a civil action based on that felony to

                 get a recovery.  Many of those actions are

                 dismissed.  Most are barred by the doctrine of

                 Barker versus Kallash.

                            And I think that, you know, the

                 examples that have been cited in past debates

                 are clear enough.  If someone, you know, is in

                 the process of stealing a watch and a

                 bystander -- because it doesn't even have to

                 be the victim -- shoots him 18 times in the

                 legs, then no civil recovery would be

                 available in the courts of the State of

                 New York if this passed.  A question about --

                 question about its application in other areas.

                            But more centrally, I think today

                 we have in fact identified a drafting error.

                 There is no language that connects any

                 culpable conduct of the claimant or decedent

                 resulting in a felony conviction to the civil



                                                        3337



                 action.  It doesn't say culpable conduct in

                 the course of events that led to the civil

                 action.  There is no nexus.

                            This could be interpreted as

                 broadly as a court wanted to interpret it.  It

                 is an invitation to confusion.

                            And I would like to call the

                 Senator's attention to the fact that, as he

                 has cited the law dictionary, Black's Law

                 Dictionary, "culpable" is defined simply as

                 blameable, censurable, criminal.

                            So this refers to culpable conduct,

                 culpable conduct of the claimant or decedent

                 resulting in a felony conviction.  I think

                 it's absolutely clear that culpability here

                 refers to the conduct resulting in a felony

                 conviction.  There is no definition of the

                 relationship between the civil action and the

                 conduct.  I think that's a fatal flaw.

                            I do understand people's concern

                 about some cases that get a lot of publicity.

                 But I do think the law as it exists in the

                 State of New York now does adequately address

                 those concerns while providing a balance.  The

                 balance is this.  You don't want people's



                                                        3338



                 rights to recover, to put their case before a

                 jury, to be preempted by us saying we're

                 better than a jury, unless you have a very,

                 very extreme circumstance.

                            In this court, cases brought by

                 felons or alleged felons for civil recovery

                 are frequently thrown out at an early stage.

                 The law works as it is now.  And I think

                 passing a statute as poorly drafted as this is

                 just going to make the situation worse.

                            I vote no, and I urge everyone to

                 vote no.

                            ACTING PRESIDENT MEIER:    Senator

                 Connor.

                            SENATOR CONNOR:    Thank you, Mr.

                 President.

                            Having heard my learned counsel

                 colleagues debate the drafting error or

                 non-error, I would say, based on my

                 experience, we're looking at a four-three

                 decision from the Court of Appeals should this

                 ever become law.  Which way it will go, I

                 don't know.  But that's how drafting issues

                 get resolved.

                            And that makes our job difficult,



                                                        3339



                 because we're never sure when we pass a law,

                 any law, that it's going to end up meaning

                 what we thought it meant when we all voted.

                            But I'd like to focus on something

                 less technical and a bigger picture.  Because

                 what has disturbed me for some years is the

                 lack of an approach to the total texture of

                 tort law and what it's about.

                            We tend to see -- and the

                 advocates, whether people who want so-called

                 tort reform or the trial lawyers and consumer

                 groups that talk about individual rights to

                 recover, we tend to focus on the dollars and

                 of a particular case involving a tort or

                 alleged civil wrongdoing, recovery, damages.

                            It sounds like it's all about

                 money.  You know, the advocates for existing

                 law will talk about the poor victim of a tort

                 and their need and ability to recover damages

                 so that they can be put right or get medical

                 treatment or live out their lives in comfort

                 or medical attention, whatever they need.

                            So we look at that as a onesies

                 thing.  And, yes, one purpose of the tort law

                 as it evolved from the common law down into



                                                        3340



                 the state, into our statutes, is to compensate

                 victims of civil wrongdoing for the damages

                 they incurred as a result of someone else's

                 negligence, someone else's actions contrary to

                 their duty to the public or a person, or

                 someone who fails to act who has a duty to

                 act.

                            But we always lose sight of the

                 larger -- there's a second, equally important

                 function or purpose in tort law.  And that is

                 as a means by which society deters certain

                 dangerous or negligent conduct to protect

                 everybody.  And we deter it by giving damages

                 to the victim of a particular act, but we do

                 that to deter the tortfeasor's conduct, to

                 protect the public at large.

                            And, Mr. President, I think this

                 bill is too focused on that onesies situation.

                 My gosh, the burglar gets injured, he's the

                 wrongdoer, yet the homeowner has to pay

                 damages.  That does strike the public and

                 everyone else as, gee, that's not fair, the

                 felon gets damages.

                            But the justification is that

                 larger picture that we want to deter



                                                        3341



                 homeowners or whatever, in the case of a

                 burglary, from doing particularly dangerous

                 things that could hurt not just burglars but

                 other people.

                            And the classic common law

                 enunciation of this is the question of the

                 trap or the tripwire gun, the spring gun.

                 Worried about your safety, you set up a

                 shotgun with a spring gun attached to the

                 window or whatever, door.  And if someone

                 breaks in, the gun goes off and you shoot the

                 burglar.

                            The law has always imposed absolute

                 liability in this case.  There's no

                 justification for it.  The homeowner can't say

                 "I was justified."  The law is always absolute

                 liability.

                            Why?  To protect burglars?  Because

                 the burglar is going to get a recovery, the

                 burglar get a judgment against the homeowner

                 because he's a burglar and we want to protect

                 burglars?

                            No, it's to protect the newspaper

                 delivery person.  It's to protect the

                 firefighter who has to go in there.  It's to



                                                        3342



                 protect the police officer who may have reason

                 to go in there.  Maybe he has a warrant to go

                 in there, has every right to go in there.

                            It's to protect children who -- you

                 know, are they burglars?  I don't know.  Kids

                 are kids.  Ten-year-old kids sometimes are

                 tempted to open a window and go in and peek in

                 somewhere.  Do we really want their heads

                 blown off?  No.

                            So the function of the law isn't

                 necessarily -- or, in that case, the primary

                 purpose of the rule of tort liability is not

                 to compensate the person who gets hurt, it's

                 to deter everyone from ever setting a spring

                 gun trap.

                            And I suggest that this bill, in

                 focusing on, as Senator Schneiderman pointed

                 out, the bystander who believes they've just

                 seen a purse snatching and puts, you know, ten

                 bullets in the back of a fleeing

                 perpetrator -- everybody will say:  Oh, but

                 why should the purse snatcher get money?

                            Well, we don't want bystanders to

                 shoot ten bullets in anybody.  They don't

                 necessarily know the facts.  They don't know



                                                        3343



                 what they've seen, necessarily.

                            We want to deter people from doing

                 dangerous things.  Not to protect the felon

                 who may be injured, to protect everybody.

                            And I suggest that we go down a

                 very slippery road here when all we focus on

                 is who's going to get the damages.

                            We don't want -- and the way you do

                 it -- so you say:  Well, why protect felons?

                 Protect the innocent.  This bill doesn't

                 affect the innocent.  This bill doesn't

                 prevent the firefighter who gets shot because

                 of a spring gun going into a building.  This

                 bill would let that firefighter recover, but

                 not the burglar.

                            Sounds logical, doesn't it?  Okay,

                 we won't let the burglar recover, but the

                 firefighter can recover.

                            That misses the point.  The point

                 is, we don't want anyone to set a spring gun

                 because we don't want that firefighter to

                 recover damages for having his legs blown off.

                 We don't want him to get shot in the first

                 place.

                            And that's the purpose of the law.



                                                        3344



                 And that's why I'm against this.

                            That's why, while you can talk

                 about stories -- oh, he was a criminal, why

                 should he get damages -- a better way,

                 perhaps, Mr. President -- and I'm not in the

                 business of drafting Senator Balboni's

                 bills -- if you want to serve his purpose and

                 still vindicate the larger purpose of the law,

                 to protect the public, to deter dangerous

                 conduct, let the felon recover the damages and

                 give the money to a crime victims fund.

                            It deters the person who does a

                 dangerous thing, because they're still going

                 to have to pay through the nose for such

                 dangerous conduct as setting a spring gun or

                 some other kind of trap or maintaining a

                 totally unsafe building.  You know,

                 whatever -- whatever these things arise in.

                            They'll be deterred, because

                 they'll still have to pay.  And you won't

                 reward the felon.  And the public at large

                 will be protected, and innocent people who are

                 damaged will collect the judgment.

                            I'm going to vote no on this bill,

                 Mr. President.



                                                        3345



                            ACTING PRESIDENT MEIER:    Senator

                 Diaz.

                            SENATOR DIAZ:    Thank you, Mr.

                 President.

                            I represent the 32nd Senatorial

                 District in Bronx County.  They call that

                 section the South Bronx.  And when you read in

                 the newspaper how terrible the crime is in the

                 South Bronx, some people talk about the South

                 Bronx as something negative.

                            There is a great incidence of crime

                 in the city of New York, especially in our

                 black and Hispanic neighborhoods.  And we

                 politicians, when we go running and asking

                 people to vote for us to get reelected, one of

                 the things that we promise is that we are

                 going to be tough on crime, is that we're

                 going to clean the streets, that we're going

                 to support the senior citizens.  And that

                 we're going to give people -- if you vote for

                 me, we tell people, I'm going to bring a

                 better environment, I'm going to bring peace,

                 and I'm going to be tough on crime.

                            Year after year, year after year,

                 you see that in our neighborhoods, crimes



                                                        3346



                 continue to be.  I'm here only five months,

                 but I am starting to know why.  It is because

                 we come here and we put our minds and our

                 effort in semantics:  this word here and this

                 word there.  Meanwhile, the criminals are

                 committing crimes, and we're giving, day after

                 day, more power to the criminals.

                            I heard here and I found out here

                 that if I'm sleeping in my house and a

                 criminal breaks into my home and I do

                 something to that criminal, that criminal

                 could sue me for damages.

                            Then I was talking to my wife, and

                 I explained that to my wife.  And my wife

                 said:  Why don't you pass a law saying to the

                 criminal, Here, come on, here's my daughter,

                 here's my wife.  Because what we do here is

                 sending messages to people.  Go ahead, keep

                 committing crimes, because crime pays.

                            Crime -- ladies and gentlemen,

                 crime does not pay.  And any behavior, any

                 conduct, anyone that enters into a behavior to

                 commit crime, to do damage, should be

                 punished.  And if in doing so someone gets

                 hurt, they weren't supposed to do that.



                                                        3347



                            Why -- what was you doing trying to

                 commit that felony?  What are you doing trying

                 to come into my house?  You got no business,

                 you have no business trying to -- I got

                 elected to be tough on crime.  And I got

                 elected to protect the senior citizens so they

                 could go into the streets, so they could enjoy

                 the park, so they could live a life out of

                 fear.

                            I got elected so my district could

                 get -- could be tough on crimes so criminals

                 know that they cannot commit crime, that we

                 are tough on crimes and that they, anyone

                 anywhere, if they go into a bodega to rob the

                 bodega and they get hurt, you wasn't supposed

                 to be doing that.

                            If they go into any one -- if they

                 enter into any kind of criminal behavior and

                 they get hurt, they wasn't supposed to be

                 doing that.

                            So, ladies and gentlemen, when you

                 go back to your communities and open your

                 mouths and telling the people:  Vote for me,

                 because I'm going to be tough on crime, I hope

                 you come here and do that too.



                                                        3348



                            But stop going through the

                 semantics and finding out this word and that

                 word and -- and yes, Mr. Schneiderman, I think

                 that sometimes the trial lawyers are wrong.

                 But I didn't get elected here to defend the

                 trial lawyers.  I got elected to defend my

                 community and to be sure that people walk free

                 of crime in my community.

                            And that's why I'm voting for this

                 bill.  Thank you very much.

                            ACTING PRESIDENT MEIER:    Senator

                 Parker.

                            SENATOR PARKER:    Thank you, Mr.

                 President.  On the bill.

                            ACTING PRESIDENT MEIER:    Senator

                 Parker, on the bill.

                            SENATOR PARKER:    Let me first

                 begin by thanking Mr. Balboni, Senator

                 Balboni, for again a very thoughtful effort in

                 terms of the idea of protecting our

                 communities.  It's really important that we

                 have, you know, a real commitment.  And I

                 think that's absolutely what the Reverend

                 says.

                            And believe it or not, I actually



                                                        3349



                 get up to support the Reverend and to join

                 with the Reverend in saying that we ought to

                 be sending a message and that we ought to be

                 protecting our communities.  And I agree that

                 we ought to be protecting our communities.

                 But I'm not clear that this bill does exactly

                 that.

                            Our communities get protected not

                 just through deterring crime because people

                 are afraid of violence.  Our communities don't

                 get protected because, you know, people are

                 afraid to get shot in the streets.

                            If we want to help senior citizens,

                 we want to help young people, we want to help

                 our communities get better, let's pass a

                 living wage bill that raises minimum wage in

                 this body.  And I'm willing to join anybody to

                 work on doing that.  Because we absolutely

                 understand that when in fact people's incomes

                 get better and when the economy is better,

                 then in fact crime goes down.

                            Let's do things like invest in

                 youth programs.  Because we do understand that

                 when we engage our young people, our young

                 people have less time to be engaged in, you



                                                        3350



                 know, idle activities that get them in

                 trouble.

                            So let's add more money for youth

                 programming.  Let's add more programs.  Let's

                 put more money for school programs, add music

                 and dance and art back into the classrooms so

                 that young people are engaged in the school

                 system.

                            Let's in fact do things to help,

                 you know, Chancellor Klein in New York City

                 and other chancellors around the state in

                 terms of bolstering their school systems so

                 that we have better education.  Let's continue

                 to do the things and the hard work that Ken

                 LaValle and other people have been doing to

                 bolster higher education, to give people more

                 economic opportunity.

                            Economic opportunity is really

                 where we do protection.  But that's not what

                 this bill is about.  This bill is really about

                 a question of whether we continue to send the

                 message to our community that freedom and the

                 important things that are put forth in our

                 U.S. Constitution continue to hold true.

                            And I think that the message we



                                                        3351



                 want to go forward is that the Constitution is

                 right, that to the degree that we have a

                 system that is not perfect but works and is

                 good and we continue to work with it, is the

                 message that we want to go forward with.

                            And so that, you know, we're

                 looking for now, you know, in this bill an

                 opportunity to, you know, decide whether

                 juries have the last say in whether somebody

                 should be compensated or not for injuries.

                 And my thing is, that's the way the system is.

                 I'm not clear that this bill improves on that

                 system.

                            And I feel more than comfortable in

                 letting my neighbors and friends who sit on

                 juries in Kings County make the decisions

                 about, in a particular situation, whether

                 somebody should be compensated and whether

                 that person, you know, was engaged in a

                 felonious activity or whether that person was

                 a newspaper delivery boy or just a neighbor or

                 some curious kid.  It's the jury's decision,

                 not our decision, to make sure that people get

                 compensated or not compensated as the case

                 goes.



                                                        3352



                            So unfortunately, I'm not going to

                 be able to vote for this bill.  But I do

                 applaud the attempt.  And I think that we

                 should continue to have these discussions

                 about how we better protect our communities.

                            ACTING PRESIDENT MEIER:    Senator

                 Balboni.

                            SENATOR BALBONI:    Mr. President,

                 I'm smiling because this has been a bill that

                 I put in when I was in the State Assembly back

                 in 1992.  And back then, I never got the

                 chance to discuss it on the floor.  When I

                 came here, I got my big chance and I put it

                 out here.

                            And I want to thank Senator

                 Dollinger, if he's listening from whatever

                 place he is, but also -- from Paris,

                 probably -- and Senator Schneiderman for

                 indulging me.  This is one of the finer

                 aspects of law that I've really enjoyed

                 getting into.

                            But that aside, this bill is about

                 bigger concepts.  It's about bigger issues.

                            And, Senator Parker, you're right,

                 that you need to broaden the scope and the



                                                        3353



                 approach.

                            And, Senator Connor, I'm thrilled

                 that you've joined this debate.  I really mean

                 that.  And your points outline the

                 differences.

                            You know, there aren't that many

                 bills in this Legislature that we can truly

                 say from a philosophical perspective there's a

                 clear line and be able to articulate it.  Our

                 constituents say to us all the time that the

                 line between Democrats and Republicans has

                 blurred.  We don't really fall down on one

                 side of an issue or another.  This is

                 different.

                            But let me now, as I try to make it

                 into a grander issue, let me take the air out

                 of that balloon and tell you I have bad news

                 for all of you who vote against the bill.

                 This is already law.  That's the point.  The

                 Court of Appeals has already decided this

                 issue.

                            So, Senator Parker, the court

                 already takes away from your neighbors the

                 ability to decide this issue in court.

                            How do I know this?  I've tried it.



                                                        3354



                 And then you say to me, Well, then, why did

                 you put in the bill, Balboni?

                            Because this will save money.  It's

                 the implementation through statute of what our

                 Court of Appeals has already determined.

                            What would really be interesting --

                 and I challenge all of you to do this -- let's

                 see if you really believe what you're saying.

                 Put in a piece of legislation that repeals

                 Barker versus Kallash.  Put a piece of

                 legislation in right now that says:  You know

                 what, the Court of Appeals is wrong; as a

                 felon, you should be able to go to a jury

                 every time.  Put that bill in, I dare you.

                            But you won't.  You know why?

                 Because you understand what the court

                 understood and what we're trying to understand

                 here and why this bill has passed every year.

                 Because there's a broader message.  It is

                 about deterrence, Senator Connor, deterrence

                 of criminal behavior, of all sorts of criminal

                 behavior.  But that deterrence is in a lot of

                 different ways.

                            The thing I truly object to here is

                 that you're right, it's not about dollars and



                                                        3355



                 cents.  But yet somehow we elevate, in this

                 debate, dollars and cents to a level that it

                 doesn't belong in.  Because here's the

                 absurdity.  With the spring gun -- your

                 example, Senator Connor.  Here's the spring

                 gun analysis.

                            As a farmer with a rural piece of

                 property, I'm not going to set up a spring gun

                 to catch a burglar coming into my barn,

                 because I'm not going to be able to stop the

                 guy from suing me but I'm going to spend

                 25 years in prison for having taken off his

                 legs.

                            I mean, you know, deterrence?

                 Folks, I mean, maybe my experience in life is

                 a lot different than yours.  But lawsuit on

                 one hand, imprisonment on the other hand?

                 There's no comparison, guys.

                            You know, deterrence is prison.

                 Which is why -- by the way, there's another

                 issue that no one's mentioned, but let me

                 bring it out here.  And I'm trying to do this

                 quickly, because I know it -- I'm very

                 conscious of where we are on the calendar.

                            When the bill first came up, the



                                                        3356



                 main concern was of the minority community and

                 police brutality, that this bill would be used

                 to shield police organizations so they could

                 commit acts of brutality, particularly against

                 the minority community, and not be deterred or

                 be accountable.

                            Well, let me address that right

                 now.  First of all, personally, if I truly

                 believed that that was the effect, I would

                 never put my name to this piece of

                 legislation.  Never.

                            But here's the way it works in the

                 real world.  If you have a police organization

                 that commits an act of brutality, first off,

                 the individual officers are subject to

                 criminal prosecution.  And if there's anything

                 we know for sure, when a police officer goes

                 inside to a prison system, they're treated a

                 lot worse than almost anybody else.  So

                 there's a real deterrent there.

                            But here's the second thing.  The

                 federal civil rights legislation, law, 1983,

                 it's a statute that allows for a broad-based

                 civil liability lawsuit not just against the

                 individual officers, which you can do, but



                                                        3357



                 against the organization as a whole, against

                 the city and the municipality.

                            And I'll tell you what, that's a

                 lot harder statute than the CPLR here in this

                 state.  I know.  I've tried it.  I've been in

                 court cases where this has been applied.

                            So again, you don't lose the

                 deterrent because of the application of

                 federal law.  As a matter of fact, and I've

                 said this before, if you were to bring an

                 action for police brutality in state courts,

                 it's legal malpractice.  Because you should go

                 in federal courts.  That's exactly where you

                 should be.

                            So to wrap up, number one, this is

                 already law.  If you really have an issue with

                 this, then repeal the law as it is now.  But,

                 number two, recognize that we're not taking

                 away deterrence with this statute.  All we're

                 doing is we're saying to everybody else, every

                 other hard-working stiff out there who has

                 never committed a crime in their lives, that

                 if you do commit a crime, you're not equal.

                 You're not equal.  You've stepped outside the

                 boundaries.  You don't belong here.  You



                                                        3358



                 belong in prison.  And we're not going to help

                 you.  We would help you if you stayed within

                 the bounds of society.

                            And that's the message.  That's

                 what we want to say here.  Don't do the crime.

                 Not because you can't do the time, but because

                 we're not going support you in your attempts

                 to be compensated.

                            Thank you, Mr. President.

                            ACTING PRESIDENT MEIER:    Senator

                 Schneiderman.

                            SENATOR SCHNEIDERMAN:    Very

                 briefly.

                            This was a good debate.  I think

                 everyone debating is sincere in their beliefs.

                 Even if we disagree, we all have the same

                 agenda of protecting our constituents and

                 making sure that the system of justice

                 operates fairly for all.

                            I do need to clarify something.

                 Senator Balboni stated that this is already

                 the law.  My concern with drafting is not just

                 a technical concern.  The law now under the

                 Court of Appeals requires, for the wrongful

                 plaintiff rule to apply, that if a plaintiff



                                                        3359



                 is injured while engaged in conduct that is a

                 serious violation of the law -- and this is

                 the operative language -- the injuries must be

                 a direct result of that violation.

                            The Court of Appeals has the nexus.

                 The law in the case law is better than the

                 language in the statute that is being

                 proposed.

                            I think that, you know, the good

                 senator, who no one doubts his sincerity, is

                 simply wrong that this is an improvement on

                 the case law.  The case law's language I think

                 is much more clear than the language in the

                 statute.  And maybe when we revisit this issue

                 next year we can work up some new language to

                 at least take that issue away.

                            I will continue to vote no, Mr.

                 President.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)



                                                        3360



                            SENATOR DIAZ:    To explain my

                 vote.

                            ACTING PRESIDENT MEIER:    Senator

                 Diaz, to explain his vote.

                            SENATOR DIAZ:    Thank you, Mr.

                 President.

                            In voting in favor of this bill, I

                 also would like to say that in our communities

                 we keep sending messages to criminals and then

                 we try to cover behind blaming the system.

                 Keep committing crimes; it's the system is the

                 one that has you committing crimes.  Because

                 the system doesn't give you this, go ahead,

                 kill; go ahead, rob; go ahead, assault.

                            And we keep blaming the system.

                 And we keep telling the criminal, Go, keep

                 abusing senior citizens; go, keep abusing

                 ladies; go, keep raping; go, keep doing

                 everything.  And then we say the system.  We

                 should give them this and we should give them

                 that.

                            And we send the message to

                 criminals, it's okay for you to continue to

                 doing crimes, it's okay for you to continue

                 abusing senior citizens, it's okay for you to



                                                        3361



                 continue doing rape and all those sorts of

                 things because the system is at fault.

                            I understand that we have a rotten

                 system and that we have to give education and

                 that we have to give more jobs and more

                 opportunity to our people.  But we, ladies and

                 gentlemen, we got to stop this blaming the

                 system.  People are committing crimes, people

                 are killing people because of the system.

                            When we come here:  Oh, they're

                 doing this because they don't have this.  And

                 then the criminal on the street says, You see?

                 I could do it, I could continue killing people

                 and robbing people and abusing senior citizens

                 because the system is forcing me to do this.

                            Well, my mother, my mother -- I am

                 the eighth child of my mother.  And she had to

                 wash, clean floors and wash dishes and do all

                 those kind of things so we could have an

                 education.  And those times were very

                 difficult.

                            Ladies and gentlemen, the system is

                 wrong.  Stop blaming the system and stop

                 telling the criminals to continue committing

                 crimes because of the system.



                                                        3362



                            Thank you.  I'm voting yes.

                            ACTING PRESIDENT MEIER:    Senator

                 Diaz will be recorded in the affirmative.

                            The Secretary will announce the

                 results.

                            THE SECRETARY:    Those recorded in

                 the negative on Calendar Number 896 are

                 Senators Andrews, Brown, Connor, DeFrancisco,

                 Dilan, Hassell-Thompson, L. Krueger,

                 Montgomery, Parker, Paterson, Schneiderman,

                 A. Smith, M. Smith, and Stavisky.  Ayes, 45.

                 Nays, 14.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            Senator Marcellino.

                            SENATOR MARCELLINO:    Mr.

                 President, is there any housekeeping at the

                 desk?

                            ACTING PRESIDENT MEIER:    Yes, we

                 have a motion.  And Senator Maziarz has also

                 asked to be recognized for another purpose.

                            Senator Maziarz.

                            SENATOR MAZIARZ:    Thank you, Mr.

                 President.

                            On page number 47, I offer the



                                                        3363



                 following amendments to Calendar Number 912,

                 Senate Print Number 4872, and ask that said

                 bill retain its place on Third Reading

                 Calendar.

                            ACTING PRESIDENT MEIER:    The

                 amendments are received and adopted, and the

                 bill will retain its place on the Third

                 Reading Calendar.

                            Senator Maziarz.

                            SENATOR MAZIARZ:    Thank you, Mr.

                 President.

                            I'd also ask unanimous consent to

                 be recorded in the negative on Calendar Number

                 681.

                            ACTING PRESIDENT MEIER:    Without

                 objection, Senator Maziarz will be recorded in

                 the negative on Calendar 681.

                            Senator Marcellino.

                            SENATOR MARCELLINO:    Mr.

                 President, there being no further business to

                 come before the Senate, I move we stand

                 adjourned until Monday, June 2nd, at

                 3:00 p.m., intervening days being legislative

                 days.

                            ACTING PRESIDENT MEIER:    On



                                                        3364



                 motion, the Senate stands adjourned until

                 Monday, June 2nd, at 3:00 p.m., intervening

                 days being legislative days.

                            (Whereupon, at 12:35 p.m., the

                 Senate adjourned.)