Regular Session - January 26, 2004

    

 
                                                        208



                           NEW YORK STATE SENATE





                          THE STENOGRAPHIC RECORD









                             ALBANY, NEW YORK

                             January 26, 2004

                                 3:05 p.m.





                              REGULAR SESSION







            LT. GOVERNOR MARY O. DONOHUE, President

            STEVEN M. BOGGESS, Secretary















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                           P R O C E E D I N G S

                            ACTING PRESIDENT GOLDEN:    The

                 Senate will 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.)

                            ACTING PRESIDENT GOLDEN:    I ask

                 us all to bow our heads in a moment of

                 silence.

                            (Whereupon, the assemblage

                 respected a moment of silence.)

                            ACTING PRESIDENT GOLDEN:    Reading

                 of the Journal.

                            THE SECRETARY:    In Senate,

                 Saturday, January 24, the Senate met pursuant

                 to adjournment.  The Journal of Friday,

                 January 23, was read and approved.  On motion,

                 Senate adjourned.

                            ACTING PRESIDENT GOLDEN:    Without

                 objection, the Journal stands approved as

                 read.

                            Presentation of petitions.

                            Messages from the Assembly.



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                            Messages from the Governor.

                            Reports of standing committees.

                            The Secretary will read.

                            THE SECRETARY:    Senator Seward,

                 from the Committee on Insurance, reports:

                            Senate Print 525, by Senator

                 Balboni, an act to amend the Insurance Law;

                            1172, by Senator Seward, an act to

                 amend the Insurance Law;

                            And Senate Print 1173, by Senator

                 Seward, an act to amend the Insurance Law.

                            Senator Volker, from the Committee

                 on Codes, reports:

                            Senate Print 67, by Senator

                 Maltese, an act to amend the Civil Practice

                 Law and Rules;

                            99, by Senator Velella, an act to

                 amend the Penal Law;

                            236, by Senator Volker, an act to

                 amend the Criminal Procedure Law;

                            237, by Senator Volker, an act to

                 amend the Criminal Procedure Law;

                            240, by Senator Volker, an act to

                 amend the Penal Law;

                            277, by Senator Skelos, an act to



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                 amend the Penal Law;

                            432, by Senator Nozzolio, an act to

                 amend the Penal Law;

                            518, by Senator Balboni, an act to

                 amend the Civil Rights Law;

                            552, by Senator Skelos, an act to

                 amend the Criminal Procedure Law;

                            554, by Senator Skelos, an act to

                 amend the Penal Law;

                            624, by Senator Padavan, an act to

                 amend the Penal Law;

                            1021, by Senator Skelos, an act to

                 amend the Criminal Procedure Law;

                            1206, by Senator Robach, an act to

                 amend the Penal Law;

                            5554, by Senator Skelos, an act to

                 amend the Criminal Procedure Law;

                            And Senate Print 5912, by Senator

                 Volker, an act to amend the Civil Practice Law

                 and Rules.

                            Senator Spano, from the Committee

                 on Investigations and Government Operations,

                 reports:

                            Senate Print 2027A, by Senator

                 LaValle, an act to amend the Public Buildings



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                 Law;

                            3343C, by Senator Skelos, an act to

                 amend the Public Officers Law;

                            4475, by Senator Leibell, an act to

                 amend the Public Officers Law;

                            5727, by Senator Libous, an act to

                 amend the Alcoholic Beverage Control Law;

                            And Senate Print 5958, by Senator

                 Skelos, an act to amend the Public Officers

                 Law.

                            All bills ordered direct to third

                 reading.

                            ACTING PRESIDENT GOLDEN:    All

                 bills reported directly to third reading.

                            Reports of select committees.

                            Communications and reports from

                 state officers.

                            Motions and resolutions.

                            Senator Farley.

                            SENATOR FARLEY:    Thank you, Mr.

                 President.

                            On behalf of Senator Marcellino, on

                 page 11 I offer the following amendments to

                 Calendar 100, Senate Print 783A, and I ask

                 that that bill retain its place on the Third



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                 Reading Calendar.

                            ACTING PRESIDENT GOLDEN:    The

                 amendments are received and adopted, and the

                 bill will retain its place on the Third

                 Reading Calendar.

                            SENATOR FARLEY:    Mr. President,

                 on behalf of Senator Rath, I move that the

                 following bill be discharged from its

                 respective committee and be recommitted with

                 instructions to strike the enacting clause.

                 That's Senate Print 2055.

                            ACTING PRESIDENT GOLDEN:    So

                 ordered.

                            SENATOR FARLEY:    On behalf of

                 Senator Marcellino, Mr. President, I move that

                 the following bill be discharged from its

                 respective committee and be recommitted with

                 instructions to strike the enacting clause.

                 That's Senate Print 2935.

                            ACTING PRESIDENT GOLDEN:    So

                 ordered.

                            SENATOR FARLEY:    Thank you.

                            ACTING PRESIDENT GOLDEN:    Senator

                 Fuschillo.

                            SENATOR FUSCHILLO:    Thank you,



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                 Mr. President.

                            On behalf of Senator Golden, on

                 page number 7 I offer the following amendments

                 to Calendar Number 52, Senate Print Number

                 4446, and ask that said bill retain its place

                 on Third Reading Calendar.

                            ACTING PRESIDENT GOLDEN:    The

                 amendments are received and adopted, and the

                 bill will retain its place on the Third

                 Reading Calendar.

                            SENATOR FUSCHILLO:    Mr.

                 President, on behalf of Senator Volker, on

                 page number 10 I offer the following

                 amendments to Calendar Number 86, Senate Print

                 Number 3127, and ask that said bill retain its

                 place on Third Reading Calendar.

                            ACTING PRESIDENT GOLDEN:    The

                 amendments are received and adopted, and the

                 bill will retain its place on the Third

                 Reading Calendar.

                            SENATOR FUSCHILLO:    Mr.

                 President, on behalf of Senator Saland, on

                 page number 11 I offer the following

                 amendments to Calendar Number 93, Senate Print

                 Number 216, and ask that said bill retain its



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                 place on Third Reading Calendar.

                            ACTING PRESIDENT GOLDEN:    The

                 amendments are received and adopted, and the

                 bill will retain its place on the Third

                 Reading Calendar.

                            Senator Skelos.

                            SENATOR SKELOS:    Mr. President,

                 if we could go to the noncontroversial reading

                 of the calendar.

                            ACTING PRESIDENT GOLDEN:    The

                 Secretary will read.

                            THE SECRETARY:    Calendar Number

                 5, by Senator Volker, Senate Print 5883A, an

                 act to amend the Tax Law, in relation to the

                 imposition of sales and compensating use

                 taxes.

                            SENATOR SCHNEIDERMAN:    Lay it

                 aside.

                            ACTING PRESIDENT GOLDEN:    The

                 bill is laid aside.

                            THE SECRETARY:    Calendar Number

                 17, by Senator LaValle, Senate Print 345A, an

                 act to amend the Education Law, in relation to

                 reporting.

                            SENATOR SCHNEIDERMAN:    Lay it



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                 aside.

                            ACTING PRESIDENT GOLDEN:    The

                 bill is laid aside.

                            THE SECRETARY:    Calendar Number

                 58, by Senator Leibell, Senate Print 4887, an

                 act to amend the Waterfront Commission Act, in

                 relation to empowering.

                            ACTING PRESIDENT GOLDEN:    Read

                 the last section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT GOLDEN:    Call

                 the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 57.

                            ACTING PRESIDENT GOLDEN:    The

                 bill is passed.

                            THE SECRETARY:    Calendar Number

                 60, by Senator Marcellino, Senate Print 879,

                 an act to amend the Environmental Conservation

                 Law, in relation to management of wildlife

                 resources.

                            ACTING PRESIDENT GOLDEN:    Read

                 the last section.

                            THE SECRETARY:    Section 6.  This



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                 act shall take effect on the first of January.

                            ACTING PRESIDENT GOLDEN:    Call

                 the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 57.

                            ACTING PRESIDENT GOLDEN:    The

                 bill is passed.

                            THE SECRETARY:    Calendar Number

                 72, by Senator Maltese, Senate Print 136, an

                 act to amend the Municipal Home Rule Law, in

                 relation to punishment for the violation of a

                 local law.

                            ACTING PRESIDENT GOLDEN:    Read

                 the last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT GOLDEN:    Call

                 the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 57.

                            ACTING PRESIDENT GOLDEN:    The

                 bill is passed.

                            THE SECRETARY:    Calendar Number

                 74, by Senator Bruno, Senate Print 3556, an

                 act authorizing the South Glens Falls Central



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                 School District.

                            ACTING PRESIDENT GOLDEN:    Read

                 the last section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT GOLDEN:    Call

                 the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 57.

                            ACTING PRESIDENT GOLDEN:    The

                 bill is passed.

                            THE SECRETARY:    Calendar Number

                 76, by Senator Trunzo, Senate Print 5884, an

                 act to amend the General Municipal Law, in

                 relation to allowing active volunteer

                 firefighters.

                            ACTING PRESIDENT GOLDEN:    Read

                 the last section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT GOLDEN:    Call

                 the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 57.

                            ACTING PRESIDENT GOLDEN:    The



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                 bill is passed.

                            Senator Skelos.

                            SENATOR SKELOS:    Mr. President,

                 if we could go to the controversial reading of

                 the calendar.

                            ACTING PRESIDENT GOLDEN:    The

                 Secretary will read.

                            THE SECRETARY:    Calendar Number

                 5, by Senator Volker, Senate Print 5883A, an

                 act to amend the Tax Law, in relation to the

                 imposition of sales and compensating use

                 taxes.

                            ACTING PRESIDENT GOLDEN:    Read

                 the last section.

                            THE SECRETARY:    Section 5.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT GOLDEN:    Senator

                 Brown.

                            SENATOR BROWN:    Thank you, Mr.

                 President.  I just wanted to speak to this

                 bill.

                            I want to commend Senator Volker

                 and Assembly Majority Leader Tokasz for

                 putting this piece of legislation forward,

                 which I see as a step in the right direction



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                 on the Erie County sales tax.

                            We've discussed this item before,

                 and in Erie County we have an additional

                 1 percent of sales tax which was implemented

                 in 1985 as a temporary tax.  This tax has now

                 been temporary for the 19th year in a row.

                            But I do see this as a step in the

                 right direction, with the assistance of

                 Senator Volker and Assembly Member Tokasz.

                 And why it's a step in the right direction,

                 because it allow allows for some potential

                 sharing of that additional 1 percent of sales

                 tax in 2005 and 2006, in the amount of

                 $10.4 million, and in 2006 and 2007 in the

                 amount of, potentially, $21.1 million.

                            I want to say that this recommended

                 sharing comes from the Emergency Control Board

                 that was imposed on the City of Buffalo by

                 this Legislature and Governor because of

                 Buffalo's fiscal crisis.  And every member of

                 that control board -- including the county

                 executive, the Erie County executive and the

                 mayor of the City of Buffalo -- voted

                 unanimously that this potential sharing be

                 included in this piece of legislation.



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                            In addition, in the home rule

                 message that we received from the Erie County

                 legislature, this was passed unanimously by a

                 vote of 15 to 0 by the Erie County

                 legislature.

                            And I just want to say while I do

                 think this is a step in the right direction, I

                 would like to see some kind of permanent

                 sharing of that additional 1 percent of sales

                 tax.

                            I think for the county to have

                 collected this money for 19 years, which

                 generally amounts to $115 million per

                 1 percent every year, is just an injustice to

                 the City of Buffalo and the financial

                 difficulties that the city is experiencing.

                            Now, I think we all know that the

                 City of Buffalo is in need of help.  And I

                 think that this Legislature and certainly this

                 house of the Legislature has shown a

                 willingness to help the City of Buffalo.  And

                 the resources to help Buffalo are going to

                 have to come from somewhere, either from the

                 State of New York or from the County of Erie.

                 And I believe that the county does have the



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                 ability, through this sales tax, to assist the

                 City of Buffalo.

                            Now, just a fact that I want to

                 share with my colleagues is that Syracuse

                 receives 37.74 percent of the County of

                 Onondaga sales tax.  That's 19 percent more

                 than the City of Buffalo receives.  Rochester

                 receives 34.12 percent of the Monroe County

                 sales tax, which is 15 percent more than the

                 County of Erie receives.

                            Colleagues, now is the time for us

                 to consider making a sharing permanent.  I

                 know that that sharing permanency can't be

                 done this year, but certainly I'm hoping that

                 it can be done next year.

                            Now, I feel so passionately about

                 this issue that last year I was the only

                 member of this house and the only member of

                 this Legislature to vote against this

                 extension of the additional 1 percent of sales

                 tax for the County of Erie.

                            But this is a critical, critical

                 issue for the county and for the City of

                 Buffalo.  I'm asking you to consider this.  I

                 want to commend Senator Volker and Assembly



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                 Member Tokasz for moving this in the right

                 direction.

                            I am only hopeful that next year

                 and the year after, that the county executive

                 in Erie County and that the Erie County

                 legislature honor the votes that they have

                 taken to do this sharing and we actually see

                 some sharing in those two years.

                            With that being said, I am going to

                 vote in the affirmative this year on this,

                 because I do think it's a step in the right

                 direction.  And I think it is a step in the

                 right direction because of Senator Volker's

                 advocacy on behalf of the entire county, but

                 certainly on behalf of the City of Buffalo.

                            Senator, I want to thank you for

                 that.

                            THE PRESIDENT:    Senator Volker.

                            SENATOR VOLKER:    Madam President,

                 I think everybody realizes that this bill,

                 with its legislative findings -- and the way

                 legislative findings work, and I know that

                 most of my colleagues understand it, that this

                 bill, the operative part of this bill relates

                 to the ability to continue the sales tax.



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                 Which again, the money will continue during

                 this fiscal year which we're already in.

                            The problem with the attitude --

                 the city was talking to us about sharing this

                 year.  Now, the county's fiscal year is

                 January 1st to December 31st.  The city's

                 fiscal year is July 1st to June 30th of the

                 following year.  The problem with trying to do

                 a share this year is that you would, in

                 effect, be taking a piece out of the county

                 budget that's already in the county budget,

                 and you would cause a deficit to the County of

                 Erie, which would in effect probably result in

                 a downgrading of the county's bond rating and

                 a lot of other things.

                            What this bill does is, and with

                 the agreement of the Emergency Control Board,

                 who essentially passed a resolution, as

                 Senator Brown suggested, suggesting that we do

                 this starting December -- or, I'm sorry,

                 January 1st of 2005, and the county

                 legislature approved by home rule message this

                 bill.

                            Now, you say, Well, if nothing

                 changes, isn't the County of Erie then going



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                 to be short the money?  That's true, and

                 that's why this has no specific authority in

                 law.

                            However, let me point out to

                 everyone that we are extremely hopeful -- more

                 than hopeful.  This Legislature, and I'm sure

                 this house is going to, is going to do

                 legislation changing and improving Medicaid.

                            And by that I mean we're going to

                 provide some money.  And we're going to have

                 to.  And I assume we're going to do some

                 reforms also before this year is out.  The

                 Governor has a proposal, we have a proposal,

                 and I think the Assembly is going to have a

                 proposal.

                            The beneficiaries in upstate

                 New York are counties.  In the City of

                 New York, obviously the City of New York would

                 be one of the beneficiaries of those changes.

                 In our upstate, it's the county, and that's

                 the County of Erie.

                            The Governor's proposal alone, if

                 we passed it, as I understand, pretty well the

                 way it is -- and I'm not saying we should, I'm

                 just saying that monetarywise, it would give



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                 the county more than the 15 million that would

                 be provided by the terms of these legislative

                 findings.

                            So what we're assuming here is that

                 the county is going to get assistance.  And

                 then if the county gets in fact enough

                 assistance, they would, I would think, be all

                 prepared to allow this money anyway.

                            Because the city either needs money

                 from the county or from the state, because

                 although they are working on a plan right now

                 to downsize government and to stabilize the

                 government in Buffalo, they clearly need some

                 outside help in order to do that.

                            So what's what this is about.  It

                 took a great deal of back and forth, shall we

                 say.  And I think that we have come to an

                 agreement here that not everyone is happy

                 with, and that's why it's probably a pretty

                 good agreement.  And it's good that we do not

                 have a situation where we have a stalemate, as

                 several times we've had in the past.

                            So what will happen here is then

                 the 1 percent will continue and the County of

                 Erie, their budget will be in balance.  And



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                 the City of Buffalo hopefully will be on their

                 way to doing the same thing.

                            THE PRESIDENT:    Does any other

                 member wish to be heard?

                            Then the debate is closed.

                            Read the last section.

                            THE SECRETARY:    Section 5.  This

                 act shall take effect immediately.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 60.

                            THE PRESIDENT:    The bill is

                 passed.

                            THE SECRETARY:    Calendar Number

                 17, by Senator LaValle, Senate Print 345A, an

                 act to amend the Education Law, in relation to

                 reporting requirements.

                            SENATOR SCHNEIDERMAN:

                 Explanation.

                            THE PRESIDENT:    Senator LaValle,

                 an explanation has been requested.

                            SENATOR LaVALLE:    Thank you,

                 Madam President.

                            THE PRESIDENT:    You're welcome.

                            SENATOR LaVALLE:    This is a piece



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                 of legislation that we have discussed before

                 on this floor.

                            And before I talk about some of the

                 specific provisions, let me just indicate that

                 just recently in a discussion I had with Abe

                 Lachman, who is president of the Commission of

                 Independent Colleges and Universities, he

                 indicated that New York is the number-one

                 state in the country in terms of importing of

                 students, educating students from out of

                 state.

                            When we look at the number of

                 students who are foreign students, that

                 number, my counsel tells me, is 50,000

                 students that we are educating in our colleges

                 and universities from other countries.  And

                 this is something that we have always done.

                 It provides, as everyone knows, a good

                 environment, an enriching educational system

                 for not only the students who come from other

                 countries but our own students.

                            One of the conditions of a student

                 coming here is they are accepted because our

                 country issues a limited student visa.  And so

                 this bill goes to the point of what happens



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                 when a student does something that is

                 inconsistent with their promise to, one, come

                 to this country and be educated and, number

                 two, if they do come and don't attend class,

                 well, then, we need to know.

                            So the bill does two things.  It

                 says, well, we have a student who said they

                 were coming but never came, and, number two,

                 we have a student who came, started to attend

                 class, but has disappeared.

                            We ask the university or college to

                 do two things, one under federal law, where

                 they must provide Homeland Security with some

                 information.  But now we ask them to do one

                 other thing.  We ask them contemporaneously to

                 contact the State Police.  We want that kind

                 of articulation.  We want our State Police to

                 know that there's a student who should be --

                 should have been attending, never showed up,

                 or a student who has showed up but has now

                 disappeared.

                            And the whole purpose, as everyone

                 knows today, is to get all of the levels of

                 government to interact with one another,

                 exchanging information so that we know, like a



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                 glove in a hand, that everything is nicely

                 fitted and we have the proper information.

                            We also ask the university to

                 provide us with some data on the number of

                 students and from what countries are attending

                 that particular university.  We don't ask for

                 names, we are just asking for raw data.

                            If the university doesn't comply,

                 we do have some penalties.  We say, number

                 one, that university could -- could -- lose

                 its status of receiving students from other

                 countries or, secondly, they could be

                 penalized per omission, of $1,000 per

                 omission.

                            So we think this is a good bill.

                 We think, given where we were with 9/11 and

                 the world that we live in, that we are not

                 placing unreasonable burdens on our

                 universities, but we are ensuring that the

                 students at the university are safe and our

                 citizenry in general are safe from students

                 who are coming into this country for a purpose

                 other than receiving a quality and good

                 education from one of our great colleges or

                 universities.



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                            THE PRESIDENT:    Senator Farley.

                            SENATOR FARLEY:    Thank you, Madam

                 President.

                            I rise in support of Senator

                 LaValle's bill.  And I know there's

                 historically a lot of objection, particularly

                 from the other side.  As somebody that has

                 taught at a university for a long time, many

                 years, I don't think this is a great

                 intrusion.  It's no intrusion on any of our

                 students.

                            But with the state of the world

                 today, and it's been mentioned so many times

                 in the area of homeland security that this is

                 a conduit or an area where students do

                 participate in terrorism against our nation, I

                 think this is reasonable.  This is more or

                 less asking them to comply with a grave

                 concern that we have today.

                            Conditions are not the same the

                 same as they were a few years ago.  Today

                 we've got a very scary situation.  I think

                 that Senator LaValle has got a reasonable

                 bill.  I think it dovetails very, very well

                 with the Homeland Security, it makes our State



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                 Police a player.  And I think it's significant

                 and it's time has come.

                            And it's not that unreasonable.

                 It's not going to be a burden on the

                 university.  And I don't think it will be a

                 burden on our foreign students, many of which

                 I've had in class.

                            But the point of it is, it is

                 something that we need.  It's reasonable.  We

                 need this protection.  These are very troubled

                 times.  And I think this is a reasonable bill.

                 And, Senator LaValle, I commend you for

                 bringing it forward, and I ask those of you

                 that have had concerns about this to relook at

                 this, because times are a-changin', and this

                 is something that we need.

                            Thank you, Madam President.

                            THE PRESIDENT:    Senator Stavisky.

                            SENATOR STAVISKY:    Madam

                 President, if the sponsor would yield for a

                 couple of questions.

                            SENATOR LaVALLE:    Yes.

                            THE PRESIDENT:    Senator LaValle

                 yields.

                            You may proceed, Senator Stavisky.



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                            SENATOR STAVISKY:    Since this

                 information is available to the Office of

                 Homeland Security, wouldn't it be a lot easier

                 for the Office of Homeland Security to get the

                 email address of the State Police, or their

                 fax number, and get it to them that way?

                 Rather than --

                            SENATOR LaVALLE:    Senator, as you

                 may know -- and it's been discussed and

                 reported that the federal government really

                 relies on the first line of defense, what

                 happens with the police in our local

                 communities and the state police within the

                 states.

                            And so it is our people, really,

                 many times having this information, finding

                 someone and reporting to the federal

                 government that we have someone floating

                 around that should not be.

                            So I think it's just the reverse.

                 It's the local people that are really doing

                 the job of seeking out people in places that

                 they shouldn't be.

                            SENATOR STAVISKY:    If the Senator

                 would continue to yield.



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                            THE PRESIDENT:    Senator, do

                 you --

                            SENATOR LaVALLE:    Yes.

                            THE PRESIDENT:    He does yield.

                            You may proceed, Senator Stavisky.

                            SENATOR STAVISKY:    Under the

                 terms of your bill, the State Education

                 Department is going to collect the

                 information.

                            SENATOR LaVALLE:    Yes, that is

                 correct.

                            SENATOR STAVISKY:    As I read the

                 bill, one of the places where they're required

                 to send it is to the chair of the Senate

                 Higher Education Committee.

                            SENATOR LaVALLE:    Uh-huh.

                            SENATOR STAVISKY:    I'm curious

                 what --

                            SENATOR LaVALLE:    He would, as

                 soon as he gets that information, immediately

                 give it to the ranking member.

                            SENATOR STAVISKY:    Yes, give it

                 to the ranking minority member. I knew you

                 were going to say that.

                            SENATOR LaVALLE:    Absolutely.



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                            SENATOR STAVISKY:    My question,

                 though, had a more serious tone.  When I said

                 it, I realized what you were going to say.

                            I would like to know what the chair

                 of the Higher Education Committee needs to

                 know about the students with the visas who

                 haven't shown up for class.

                            SENATOR LaVALLE:    I think what

                 we're asking for is, it says here, "The

                 department shall provide to the Legislature a

                 report compiling such information."  And we

                 talk about the information on categories of

                 how many students at a particular university

                 and from what countries.

                            That information, Senator, was

                 either not forthcoming or wasn't collected in

                 work that we in the Legislature want to do.

                            And as you know, it says both the

                 Senate and Assembly chairs would receive that

                 information.

                            SENATOR STAVISKY:    Yes.

                            Really one or two more questions.

                            THE PRESIDENT:    Senator, will you

                 yield for two questions?

                            SENATOR LaVALLE:    I'd be happy



                                                        236



                 to, yes.

                            THE PRESIDENT:    You may proceed

                 with one or two questions, Senator.

                            SENATOR STAVISKY:    Senator

                 LaValle, you're asking the State Education

                 Department to collect this data from the

                 colleges and universities.  And in fact if the

                 colleges and universities don't collect the

                 data, they are subject to a fine of $1,000 for

                 a first -- per violation.

                            SENATOR FLANAGAN:    Per violation.

                            SENATOR STAVISKY:    And then a

                 $2,000 fine for second violations.

                            My question is in the area of

                 putting an unnecessary burden upon the State

                 Education Department.  You're causing them

                 additional expense to go out to collect this

                 data.  And does not this represent an unfunded

                 mandate?

                            SENATOR LaVALLE:    You know,

                 Senator --

                            SENATOR STAVISKY:    You knew I was

                 going to ask that question.

                            SENATOR LaVALLE:    Well, it dawned

                 on me after -- this is the second year we're



                                                        237



                 debating this bill, and I realized where some

                 of the opposition might come from.

                            And my eyes happened to come to

                 this, yes, mandate, on the department.  And we

                 ask the department to do lots of things.

                 This, I think, is important.  I'm not sure

                 it's burdensome on them.  I'm not sure that

                 we've even -- certainly, as sponsor, the

                 department has not come and indicated that

                 this was a burden on them.  Maybe they're

                 timid to come to the chairman, you know.

                            But I think it's important that one

                 of the roles that the department does and

                 should be playing is collecting information.

                 We ask them to collect information on our

                 elementary and secondary schools, on state aid

                 information, the nature of how many teachers

                 and the gender and the race and so forth.

                 Why?  Because it goes into better

                 policymaking, the more information that we

                 have.  I believe that very sincerely.

                            I'm sure that this is a mandate

                 that they would rather not have.  But I think

                 it's an important one in for us in the

                 Legislature.



                                                        238



                            SENATOR STAVISKY:    My last

                 question.

                            THE PRESIDENT:    Senator --

                            SENATOR LaVALLE:    Yes.

                            THE PRESIDENT:    He yields.

                            Go ahead, Senator.

                            SENATOR STAVISKY:    How does this

                 legislation impact or how is it affected by

                 SEVIS, the Student Exchange Visitor

                 Information System?

                            SENATOR LaVALLE:    I'm told that

                 the same information can be used to go to the

                 State Police, that it's not duplicative.

                            In my remarks I had indicated that

                 the colleges would be forwarding the

                 information contemporaneously, in my opening

                 remarks.

                            SENATOR STAVISKY:    But the bill

                 doesn't do that.  It doesn't give the

                 information to SEVIS.

                            On the bill, Madam President.  Very

                 briefly on the bill.

                            THE PRESIDENT:    You may proceed,

                 Senator.

                            SENATOR STAVISKY:    Thank you.



                                                        239



                            I think this legislation is a

                 duplication of existing law.  We're placing an

                 unfair burden on the State Education

                 Department and, in fact, on the commissioner.

                 Because as I read the last page of the bill,

                 he serves not only as the enforcement officer

                 but also the judge and jury on violations.

                            So we do have an unfunded mandate.

                 And as I know, my colleagues do not like to

                 vote for mandates without providing the

                 necessary funding stream.

                            Secondly, I'm concerned with what

                 the State Police is going to do with this

                 information once they receive it.

                            And lastly, it seems to me that

                 this information is already available.  And

                 much as we all want to thwart potential

                 terrorists, I just don't think this is the way

                 to do it.

                            Thank you.  And I thank Senator

                 LaValle for his detailed responses.

                            THE PRESIDENT:    Senator Lachman.

                            SENATOR LACHMAN:    Yes.  What I

                 have to say is said with all due respect to

                 Senator LaValle.  I cannot support this bill.



                                                        240



                            But before I go into the substance

                 of the bill, I would like to correct a

                 statement that was made that was not -- that

                 is not germane to the bill.  And the initial

                 statement that was made was that New York

                 State has more out-of-state students than any

                 other state in the nation.

                            I think that's a very good thing

                 for New York State.  First of all, we have,

                 besides our private colleges and

                 universities -- which now have an excellent

                 spokesman -- we have, out of the three public

                 universities in the nation, the first, SUNY,

                 with the largest population of any state

                 university, and CUNY, which has the third

                 largest population of any publicly funded

                 university.

                            And in terms of the area of

                 students from out of state coming to New York,

                 there are many, many students coming to

                 New York for our teaching hospitals.

                 Fifteen percent of all of the teaching

                 hospitals in the United States are in New York

                 State -- primarily in New York City, but other

                 parts of the state as well.



                                                        241



                            And this is a great means of

                 developing the economy of the state and the

                 city, as well as educating physicians and

                 others who will aid society.  So I just want

                 to separate the issue of students who come

                 from out of state from students who come from

                 out of the United States.

                            Now, on the second issue, I would

                 also echo some of the words that my

                 predecessor has mentioned.  It is duplicative.

                 I do not believe that the Board of Regents or

                 the State Commissioner of Education want this

                 to occur.

                            And I think that having 50,000

                 students in our universities who come from out

                 of the country is a positive rather than a

                 negative.  Because these students interact

                 with the students who were born in the city

                 and the state, and they create even a better

                 academic environment.

                            Whether they come from Asia or

                 Russia or Africa, it in a sense brings to the

                 universities of the state of New York and the

                 colleges of the state of New York a different

                 perspective and, at the same time, a great



                                                        242



                 deal of academic training and scholarship

                 which will benefit our society in the future.

                            Finally, I'm very concerned that

                 one of my colleagues -- and even if I hadn't

                 heard the word "some," I would still be

                 concerned -- said that foreign students

                 participate in terrorism.  Not you, Senator

                 LaValle.  If someone else had said some

                 foreign students participate in terrorism, I

                 would respond by saying some American-born

                 students participate in terrorism.

                            We cannot have here two different

                 categories of students.  We cannot say that

                 foreign students are more prone to participate

                 in terrorism than American students are.  And

                 by and large, this, I'm told again and again,

                 comes out of speeches of the president of the

                 United States, George W. Bush, who has

                 defended foreigners in the United States going

                 to universities and has said continually that

                 the vast majority, as the vast majority of

                 Americans, do not participate in terrorism.

                            And I think we have to be very,

                 very careful when we discuss something like

                 this and use words of "terrorism" to reflect



                                                        243



                 upon foreign nationals, especially students

                 who come to this country and reinvigorate the

                 country and learn and give so much to this

                 nation.

                            Especially since this bill is

                 duplicative, especially since it is not asked

                 for or required by the Commissioner of

                 Education or by the State Board of Regents, I

                 cannot support it.

                            THE PRESIDENT:    Does any other

                 member wish to be heard on this bill?

                            Senator Krueger.

                            SENATOR LIZ KRUEGER:    Thank you,

                 Madam President.  Briefly on the bill.

                            I appreciate my predecessor's

                 comments about this bill.

                            And I won't phrase it as a

                 question, because I think Senator LaValle

                 intended to answer correctly.  But when

                 Senator Stavisky asked wouldn't it be simpler,

                 simply, for the INS or Homeland Security to

                 provide the information to the State Police,

                 Senator LaValle answered:  "But we want the

                 State Police to be first line of response,"

                 and that the federal government is asking us



                                                        244



                 to do that.

                            And I don't disagree with your

                 analysis, but what I do disagree with is that

                 this bill would actually require every college

                 in this state to have two systems.  Right now

                 they have to respond to the federal SEVIS

                 system, which is not a system they control or

                 create, but rather the federal government

                 sends them the information on each individual

                 student and they must put information in in

                 response.

                            Under this bill, the state is

                 asking each institution to create their own,

                 second computer system.  Because they don't

                 own SEVIS; it's the federal that they're

                 responding to.  It would require each

                 institution to create a separate, independent

                 second system for tracking the same

                 information, put that information and then

                 somehow get it to the State Police.

                            So I would argue that this bill is

                 duplicative of what the federal government has

                 already mandated and put in place, and that if

                 the State Police need this information, and

                 even if one accepts that there's a very good



                                                        245



                 reason why you want State Police to have the

                 same information as Homeland Security, that it

                 is a far more cost-effective and simpler and

                 more elegant way to get to your point by

                 simply having Homeland Security share the

                 information they already have through an

                 existing system with whoever in the New York

                 State Police or New York State Criminal

                 Justice should be appropriately looking at

                 this information.

                            I'm not sure I would support the

                 argument that individual legislators, whether

                 they be chairs of committees or not, ought to

                 be having this particular -- this information.

                            So I will say that this is not just

                 an unfunded mandate, it is an enormous new set

                 of burdens on each individual college and

                 university in the state.  I don't think it

                 does, in this day and age, with the federal

                 program in place, anything to improve security

                 or protection.

                            And to just follow up on the

                 statement of Senator Lachman that Education

                 hasn't asked for this, the Regents haven't

                 asked for this -- I don't believe the State



                                                        246



                 Police have asked for this either.

                            So again, I would argue that at

                 this point in time our proposing a new

                 unfunded mandate on our universities that

                 would require an enormous new database and

                 administrative system, the possibility for

                 mistakes in two systems collecting the same

                 information would not, in fact, improve our

                 security at all.

                            But rather, a way to get to the

                 same point is to simply arrange for, if it is

                 in the best interests of the State Police and

                 Homeland Security, for those two agencies to

                 agree to share existing information.

                            So I'll vote against this bill,

                 because I don't think the State of New York

                 needs this to accomplish the goals at this

                 point in time.

                            Thank you, Madam President.

                            THE PRESIDENT:    Senator

                 Schneiderman.

                            SENATOR SCHNEIDERMAN:    Thank you,

                 Madam President.  If the sponsor would yield

                 for a question.

                            THE PRESIDENT:    Senator, will you



                                                        247



                 yield for a question?

                            SENATOR LaVALLE:    Yes.

                            THE PRESIDENT:    Thank you,

                 Senator LaValle.

                            You may proceed with a question,

                 Senator Schneiderman.

                            SENATOR SCHNEIDERMAN:    Thank you.

                            Have the State Police issued a memo

                 in support of this proposal or otherwise

                 publicly indicated support for this?

                            SENATOR LaVALLE:    No.  Nor do I

                 have any memos in opposition on the bill.

                            SENATOR SCHNEIDERMAN:    And

                 through you, Madam President, there was some

                 earlier discussion of the State Department of

                 Education.  Have any administrators or

                 representatives of the colleges or

                 universities of this state indicated that they

                 would like to see this bill passed and the

                 system installed?

                            SENATOR LaVALLE:    I think you

                 probably know the answer to that.  But no.

                            SENATOR SCHNEIDERMAN:    And

                 through you, Madam President.

                            THE PRESIDENT:    Senator, will you



                                                        248



                 yield for another question?

                            SENATOR LaVALLE:    Yes.

                            THE PRESIDENT:    Go ahead, Senator

                 Schneiderman.

                            SENATOR SCHNEIDERMAN:    Do the

                 State Police have an electronic system in

                 place, as the federal agencies do through

                 SEVIS, to receive this information if it were

                 to be reported?

                            SENATOR LaVALLE:    I don't believe

                 they have an exact system.

                            SENATOR SCHNEIDERMAN:    Okay.

                 Thank you.  I'd like to thank the sponsor for

                 his answers.

                            On the bill, Madam President.

                            THE PRESIDENT:    You may proceed

                 on the bill, Senator.

                            SENATOR SCHNEIDERMAN:    I think

                 what we have here is an effort to fit a square

                 peg into a round hole.  We have a federal

                 system that has been developed at great

                 expense in an effort to prevent there from

                 being a duplication of efforts and to make

                 sure that we have one seamless system in which

                 all information can be shared.



                                                        249



                            And this is an effort to insert the

                 New York State Police -- for whom I have the

                 highest regard -- into this process when they

                 don't want to be there, they are not equipped

                 to handle the situation, they do not have the

                 electronic system to receive the data, as the

                 federal agencies do.  It imposes a burden on

                 our colleges and universities that they

                 clearly don't want.

                            And I would suggest -- if I may,

                 reading from a document that was produced by

                 the U.S. Immigrations and Customs Enforcement

                 Service -- that this bill runs completely

                 contrary to everything we're trying to

                 accomplish in the federal Department of

                 Homeland Security.

                            And this is on the website of the

                 U.S. Immigrations and Customs Enforcement

                 Agency.  "For 50 years, U.S. educational

                 institutions been required to maintain such

                 information about foreign students studying at

                 their facilities.  In the past, this was a

                 decentralized, inefficient and paper-driven

                 system.  SEVIS, for the first time, automates

                 and centralizes this data."



                                                        250



                            That is the goal of the federal

                 government.  We're spending billions of

                 dollars on homeland security, we're trying to

                 make sure that people don't slip through the

                 cracks as they did, tragically, before

                 September 11th.  And I'm afraid that what

                 we're trying to do here, maybe by showing that

                 the state government, we're getting in on the

                 effort to defend the public also, is really

                 creating problems that the federal government

                 is spending a lot of time and energy trying to

                 correct.

                            We do not need to tell the federal

                 government how to go about the business of

                 collectivizing the information and ensuring

                 that there's accurate information disseminated

                 as fast as possible to all appropriate

                 agencies.  We certainly don't need to impose

                 on colleges and universities the requirement

                 to create a duplicative, paper-driven system

                 that would overlap with the federal system.

                            I think the answer to this problem

                 clearly is to have the federal government

                 collect the information and then to provide it

                 to any local law enforcement agency they think



                                                        251



                 needs the information.

                            And I would suggest that the best

                 route for this might be to have communication

                 with the Department of Homeland Security.

                 Certainly Senator Balboni seems to have all

                 sorts of connections in this area.  Maybe we

                 could make an inquiry about sharing this

                 information with local agencies in New York

                 State.

                            And I would urge that that should

                 include more than the State Police.  Obviously

                 in New York City the New York City Police

                 Department is our lead agency.

                            But this bill imposes burdens on

                 colleges who don't want it, imposes burdens on

                 the State Police, who don't want it, imposes a

                 paper-driven system on everyone while the

                 federal government is spending billions of

                 dollars to get away from this sort of

                 duplicate, paper-driven system.  I just think

                 it's an effort to make something happen that

                 the agencies involved will never make happen

                 effectively and efficiently.

                            And people's lives certainly are

                 affected seriously by such systems.  There are



                                                        252



                 examples that have been cited, since the

                 federal system has been implemented, of

                 students being held in interrogation systems

                 for processing as though they were illegal

                 aliens, when returning to the country, just

                 because of problems with the records.

                            A student at Washington University

                 in St. Louis was actually held in prison

                 because the school couldn't access the file

                 properly.

                            This is serious stuff.  And we

                 shouldn't be trying to impose systems that

                 really aren't tested and would create problems

                 without a great deal of thought and care.

                            So I urge everyone to vote no on

                 the bill.  Our colleges and universities are

                 suffering enough.  We will be hearing in the

                 budget process that they need more money.  And

                 according to the estimates of the compliance

                 with the federal system, some colleges and

                 universities have reported already it's

                 costing them hundreds of thousands of dollars

                 each year to comply with the requirement to

                 collect the data and process it for the feds.

                            We don't need to impose more



                                                        253



                 burdens.  Let's try and make the federal

                 system work and communicate with the federal

                 government to get the information we need.  I

                 urge everyone to vote no.

                            Thank you.

                            THE PRESIDENT:    Read the last

                 section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the first of August.

                            THE PRESIDENT:    Call the roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Those recorded in

                 the negative on Calendar Number 17 are

                 Senators Breslin, Brown, Diaz, Dilan,

                 Gonzalez, Hassell-Thompson, L. Krueger,

                 Lachman, Mendez, Montgomery, Onorato,

                 Oppenheimer, Parker, Paterson, Sabini,

                 Sampson, Schneiderman, A. Smith, and Stavisky.

                 Also Senator Andrews.  Also Senator M. Smith.

                            Ayes, 39.  Nays, 21.

                            THE PRESIDENT:    The bill is

                 passed.

                            Senator Skelos, that completes the

                 controversial reading of the calendar.

                            SENATOR SKELOS:    Madam President,



                                                        254



                 is there any housekeeping at the desk?

                            THE PRESIDENT:    No, there isn't,

                 Senator.

                            SENATOR SKELOS:    Thank you.

                            If there's no further business to

                 come before the Senate, I move we adjourn

                 until January 27th at 11:00 a.m.

                            THE PRESIDENT:    On motion, the

                 Senate stands adjourned until Tuesday,

                 January 27th, 11:00 a.m.

                            (Whereupon, at 3:55 p.m., the

                 Senate adjourned.)