Regular Session - March 8, 2004

    

 
                                                        852



                           NEW YORK STATE SENATE





                          THE STENOGRAPHIC RECORD









                             ALBANY, NEW YORK

                               March 8, 2004

                                 3:39 p.m.





                              REGULAR SESSION







            SENATOR RAYMOND A. MEIER, Acting President

            STEVEN M. BOGGESS, Secretary















                                                        853



                           P R O C E E D I N G S

                            ACTING PRESIDENT MEIER:    The

                 Senate will please come to order.

                            May I ask everyone present to

                 please rise and repeat with me the Pledge of

                 Allegiance to the Flag.

                            (Whereupon, the assemblage recited

                 the Pledge of Allegiance to the Flag.)

                            ACTING PRESIDENT MEIER:    In the

                 absence of clergy, may we each bow our heads

                 in a moment of silence.

                            (Whereupon, the assemblage

                 respected a moment of silence.)

                            ACTING PRESIDENT MEIER:    Reading

                 of the Journal.

                            THE SECRETARY:    In Senate,

                 Friday, March 5, the Senate met pursuant to

                 adjournment.  The Journal of Thursday,

                 March 4, was read and approved.  On motion,

                 Senate adjourned.

                            ACTING PRESIDENT MEIER:    Without

                 objection, the Journal stands approved as

                 read.

                            Presentation of petitions.

                            Messages from the Assembly.



                                                        854



                            Senator Schneiderman.

                            SENATOR SCHNEIDERMAN:    Mr.

                 President, has the Senate received a

                 resolution from the Assembly advising the

                 members of the Senate that the Senate and

                 Assembly will meet at noon tomorrow in the

                 Assembly chamber to elect Regents of the

                 University of the State of New York, pursuant

                 to Section 202 of the Education Law?

                            ACTING PRESIDENT MEIER:    Notice

                 has been received, and it's on file with the

                 Journal Clerk's office, Senator.

                            SENATOR SCHNEIDERMAN:    Thank you

                 very much.

                            ACTING PRESIDENT MEIER:    Thank

                 you, Senator Schneiderman.

                            Messages from the Governor.

                            Reports of standing committees.

                            The Secretary will read.

                            THE SECRETARY:    Senator Seward,

                 from the Committee on Insurance, reports the

                 following bills:

                            Senate Print 1279A, by Senator

                 Saland, an act to amend the Insurance Law;

                            5918A, by Senator Seward, an act to



                                                        855



                 amend the Insurance Law;

                            And Senate Print 6208, by Senator

                 Seward, an act to amend the Insurance Law.

                            Senator Hoffmann, from the

                 Committee on Agriculture, reports:

                            Senate Print 616A, by Senator

                 Hoffmann, an act to amend the Agriculture and

                 Markets Law;

                            2777A, by Senator McGee, an act to

                 amend the Agriculture and Markets Law;

                            5865, by Senator Larkin, an act to

                 amend the Agriculture and Markets Law;

                            And Senate Print 5868, by Senator

                 Larkin, an act to amend the Agriculture and

                 Markets Law.

                            All bills ordered direct to third

                 reading.

                            ACTING PRESIDENT MEIER:    All

                 bills reported directly to third reading.

                            Senator Skelos.

                            SENATOR SKELOS:    Mr. President,

                 there will be an immediate meeting of the

                 Civil Service and Pensions Committee in the

                 Majority Conference Room.

                            ACTING PRESIDENT MEIER:



                                                        856



                 Immediate meeting of the Civil Service and

                 Pensions Committee in the Majority Conference

                 Room.

                            Reports of select committees.

                            Communications and reports from

                 state officers.

                            Motions and resolutions.

                            Senator Fuschillo.

                            SENATOR FUSCHILLO:    Mr.

                 President, on behalf of Senator Volker, on

                 page number 5 I offer the following amendments

                 to Calendar Number 41, Senate Print Number

                 3508, 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 FUSCHILLO:    On behalf of

                 Senator Volker, on page number 25 I offer the

                 following amendments to Calendar Number 376,

                 Senate Print Number 4844, and ask that said

                 bill retain its place on Third Reading

                 Calendar.

                            ACTING PRESIDENT MEIER:    The



                                                        857



                 amendments are received and adopted, and the

                 bill will retain its place on the Third

                 Reading Calendar.

                            SENATOR FUSCHILLO:    Mr.

                 President, on page number 25 I offer the

                 following amendments to Calendar Number 379,

                 Senate Print Number 5396, 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 Third Reading.

                            Senator Skelos.

                            SENATOR SKELOS:    Mr. President,

                 there's a privileged resolution, 3757, by

                 Senator Rath.  Could we have the title read

                 and move for its immediate adoption.

                            ACTING PRESIDENT MEIER:    The

                 Secretary will read.

                            SENATOR SKELOS:    And I think

                 Senator Rath would also like to open it up for

                 cosponsorship.

                            THE SECRETARY:    By Senators Rath

                 and Bruno, Legislative Resolution Number 3757,

                 memorializing The Honorable George E. Pataki



                                                        858



                 to designate March 2004 as "Women's History

                 Month" in the State of New York, and

                 commemorating the New York State Senate's

                 "Women of Distinction" tribute.

                            ACTING PRESIDENT MEIER:    Senator

                 Rath.

                            SENATOR RATH:    Thank you,

                 Mr. Chairman.

                            I would like to thank the Governor

                 for sending this message to us and for

                 responding to our request to designate Women's

                 History Month, and recommend to all of my

                 colleagues that there is a new display in the

                 Well area, with three new women from the

                 historical repertoire of famous women in

                 New York State, not the least of who is there

                 recognized this year is the first woman ever

                 to have served as a state senator.

                            So be sure and stop and enjoy it,

                 and recommend the display to all of your

                 friends.

                            I would like to open up the

                 resolution for everyone to join me.  And if

                 there is no objection, we will do that

                 accordingly.  Thank you.



                                                        859



                            ACTING PRESIDENT MEIER:    The

                 resolution is open for cosponsorship.  If you

                 do not wish to be on the resolution, please

                 notify the desk.

                            The question is on the resolution.

                 All those in favor signify by saying aye.

                            (Response of "Aye.")

                            ACTING PRESIDENT MEIER:    Those

                 opposed, nay.

                            (No response.)

                            ACTING PRESIDENT MEIER:    The

                 resolution is adopted.

                            Senator Skelos.

                            SENATOR SKELOS:    Mr. President,

                 there's a privileged resolution, 3758, by

                 Senator Seward.  Could we have the title read

                 and move for its immediate adoption.

                            ACTING PRESIDENT MEIER:    The

                 Secretary will read.

                            THE SECRETARY:    By Senator

                 Seward, Legislative Resolution Number 3758,

                 commending the Virgil Elementary School upon

                 the occasion of receiving The Business

                 Council's 2004 Pathfinder Award for

                 Outstanding Educational Improvement.



                                                        860



                            ACTING PRESIDENT MEIER:    The

                 question is on the resolution.  All those in

                 favor signify by saying aye.

                            (Response of "Aye.")

                            ACTING PRESIDENT MEIER:    Those

                 opposed, nay.

                            (No response.)

                            ACTING PRESIDENT MEIER:    The

                 resolution is adopted.

                            Senator Skelos.

                            SENATOR SKELOS:    Mr. President,

                 if we could go to the noncontroversial reading

                 of the calendar.

                            ACTING PRESIDENT MEIER:    The

                 Secretary will read.

                            THE SECRETARY:    Calendar Number

                 20, by Senator Velella, Senate Print 112, an

                 act to amend the Vehicle and Traffic Law, in

                 relation to reporting of accidents.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.



                                                        861



                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    Senator

                 Schneiderman, why do you rise?

                            SENATOR SCHNEIDERMAN:    Mr.

                 President, briefly to explain my vote.

                            ACTING PRESIDENT MEIER:    Senator

                 Schneiderman, to explain his vote.

                            SENATOR SCHNEIDERMAN:    I've

                 supported similar legislation in the past.

                            I do want to note that any time we

                 exempt police officers from accountability for

                 their actions -- and in this case, for a very,

                 very good reason, we don't want people

                 worrying about their own personal insurance

                 records when they're trying to respond to an

                 emergency -- but any time we exempt police

                 officers from responsibility, we have to do it

                 with tremendous care that it not be taken as a

                 license to act with impunity.

                            And the one thing that has been

                 missing from this legislation that I hope

                 we're going to be able to somehow add before

                 it becomes law is some recognition that if

                 there are police officers who are repeatedly



                                                        862



                 having accidents or some precincts that are

                 generating an untoward number of accidents,

                 that there be some mechanism in place to check

                 that.

                            We all want police officers to get

                 to the scene of an emergency as quickly as

                 possible.  We don't want to send a message, in

                 this or any other circumstances, that the

                 police are in any way beyond the law when it

                 comes to the basic responsibility to conduct

                 themselves in a manner that provides for

                 safety, both when they get to the emergency

                 and on their way there.

                            Thank you, Mr. President.

                            ACTING PRESIDENT MEIER:    Senator

                 Schneiderman, you're voting in the

                 affirmative?

                            SENATOR SCHNEIDERMAN:    Yes.

                            ACTING PRESIDENT MEIER:    Senator

                 Schneiderman will be recorded in the

                 affirmative.

                            The Secretary will announce the

                 results.

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill



                                                        863



                 is passed.

                            THE SECRETARY:    Calendar Number

                 27, by Senator Kuhl, Senate Print 1876, an act

                 to amend the Vehicle and Traffic Law, in

                 relation to appropriate reduced speeds.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the first of

                 November.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number

                 108, by Senator Bonacic, Senate Print 417, an

                 act to amend the Vehicle and Traffic Law, in

                 relation to allowing volunteer firefighters.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT MEIER:    Call the



                                                        864



                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number

                 121, by Senator Johnson, Senate Print 4468, an

                 act to amend the Vehicle and Traffic Law, in

                 relation to prohibiting.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the first of

                 November.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number

                 150, by Senator Saland, Senate Print 1917, an

                 act to amend the Family Court Act, in relation

                 to evidence of child neglect.

                            SENATOR LIZ KRUEGER:    Lay it



                                                        865



                 aside.

                            ACTING PRESIDENT MEIER:    Lay the

                 bill aside.

                            THE SECRETARY:    Calendar Number

                 194, by Senator Maziarz, Senate Print 5834A,

                 an act to amend the Highway Law, in relation

                 to the Niagara Wine Trail.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number

                 195, by Senator Maziarz, Senate Print 5837A,

                 an act to amend the Vehicle and Traffic Law,

                 in relation to authorizing.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the first of April.



                                                        866



                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number

                 213, by Senator Alesi, Senate Print 59 --

                            SENATOR SCHNEIDERMAN:    Lay it

                 aside.

                            ACTING PRESIDENT MEIER:    Lay the

                 bill aside.

                            THE SECRETARY:    Calendar Number

                 224, by Senator Rath, Senate Print 1681, an

                 act to amend the Penal Law, in relation to

                 aggravated harassment.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the first of

                 November.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.



                                                        867



                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number

                 249, by Senator Spano, Senate Print --

                            SENATOR LARKIN:    Lay it aside for

                 the day.

                            ACTING PRESIDENT MEIER:    Lay the

                 bill aside for the day.

                            THE SECRETARY:    Calendar Number

                 276, by Senator Velella, Senate Print 4169, an

                 act to amend the Workers' Compensation Law, in

                 relation to the death benefits for police

                 officers.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the first of

                 November.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number



                                                        868



                 392, by Senator Balboni, Senate Print 520, an

                 act to amend the General Municipal Law, in

                 relation to creating the Village of Westbury

                 Community Development Agency.

                            ACTING PRESIDENT MEIER:    There is

                 a home rule message at the desk.

                            Read the last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number

                 393, by Senator LaValle, Senate Print 722, an

                 act authorizing the Town of East Hampton,

                 Suffolk County, to establish road and highway

                 improvement.

                            ACTING PRESIDENT MEIER:    There is

                 a home-rule message at the desk.

                            Read the last section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect immediately.



                                                        869



                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number

                 397, by Senator Larkin, Senate Print 5082, an

                 act to authorize the Village of Walden, County

                 of Orange.

                            ACTING PRESIDENT MEIER:    There is

                 a home-rule message at the desk.

                            Read the last section.

                            THE SECRETARY:    Section 6.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            THE SECRETARY:    Calendar Number

                 399, by Senator DeFrancisco, Senate Print

                 5888, an act to amend the Town Law, in

                 relation to including the Onondaga Hill Fire



                                                        870



                 Department.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect immediately.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Ayes, 61.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            Senator Larkin, that completes the

                 noncontroversial reading of the calendar.

                            SENATOR LARKIN:    Mr. President,

                 can we now move to the controversial calendar.

                            ACTING PRESIDENT MEIER:    The

                 Secretary will read.

                            THE SECRETARY:    Calendar Number

                 150, by Senator Saland, Senate Print 1917, an

                 act to amend the Family Court Act, in relation

                 to evidence of child neglect.

                            SENATOR SCHNEIDERMAN:

                 Explanation.

                            ACTING PRESIDENT MEIER:    Senator

                 Saland, an explanation has been requested of



                                                        871



                 Calendar Number 150.

                            SENATOR SALAND:    Thank you, Mr.

                 President.

                            Mr. President, this is a bill which

                 we've considered in this house on prior

                 occasion.  What the bill does is it takes that

                 provision of the Family Court Act that

                 currently provides that where a respondent --

                 which in another proceeding would be

                 considered to be a defendant -- in an abuse or

                 neglect proceeding is shown to have regularly

                 participated in a rehab program, rehab with

                 respect to drugs or alcohol, that that in

                 effect amounts to a finding or an affirmative

                 defense, more appropriately, whereby that

                 person can in effect say that the alleged act

                 of neglect or maltreatment should not

                 proceed -- or the proceeding should not

                 proceed any further, it being considered the

                 ability as an affirmative defense to make the

                 petitioner, which would be the Social Service

                 Department, come forward and claim that in

                 fact there are other -- there is other

                 evidence that would warrant the continued --

                 continuation of the proceeding.



                                                        872



                            What this proposes to do is to take

                 it out of the so-called fact-finding section

                 and put it in the dispositional section.  The

                 result of that would be that, first and

                 foremost, a determination would be made as to

                 whether or not neglect or abuse had occurred.

                            That finding having been made, the

                 court would then determine whether in fact the

                 respondent was voluntarily participating in a

                 drug rehab program and would then determine

                 whether in fact that participation was in fact

                 one which was being driven in good faith, not

                 merely being used to shield the respondent

                 from the potential outcome of the neglect

                 proceeding.

                            And that would in effect be weighed

                 by the court.  The court would then determine

                 if the child should remain with his or her

                 family and whether, again, the parent or

                 guardian was in fact acting in good faith by

                 participating in the program.

                            The idea behind this bill is that

                 neglect and abuse proceedings should not be

                 able to be foiled by means of somebody using

                 the artifice of a supposed involvement in a



                                                        873



                 rehab program when in fact that is being

                 driven not by a desire for some type of

                 rehabilitation but a desire to terminate the

                 proceeding.

                            ACTING PRESIDENT MEIER:    Senator

                 Liz Krueger.

                            SENATOR LIZ KRUEGER:    Thank you,

                 Mr. President.  On the bill, please.

                            ACTING PRESIDENT MEIER:    Senator

                 Krueger, on the bill.

                            SENATOR LIZ KRUEGER:    Thank you.

                            I appreciate the Senator's

                 explanation of his bill.  And as I think we

                 know, I've debated the Senator on this bill in

                 previous years and discussed it in committee.

                            And so I just want to reiterate the

                 reasons why I think while we both share the

                 same intention -- to protect children and to

                 make the Family Court process a sound one that

                 does protect children -- my take on this bill

                 is in fact that the opposite outcomes will

                 happen from what Senator Saland hopes will

                 happen in his bill.

                            Under this bill, the presumption

                 becomes that if you go for substance abuse



                                                        874



                 treatment, if you volunteer, if you declare

                 that in some way, that the court should, by

                 definition, make an assumption of neglect and

                 take your child.

                            In fact, a court, under the

                 existing law, has perfect ability to follow

                 through on investigations and remove a child

                 because they believe there is neglect or abuse

                 or evidence of, under existing law, where

                 parents can voluntarily participate in

                 substance abuse treatment.

                            Rather, under the proposed changes

                 that he makes in S1917, it becomes a risk for

                 parents to participate voluntarily in a

                 substance abuse treatment program, in my

                 opinion and experience discouraging parents

                 from reaching out and getting the help when

                 they need it, as they need it.

                            And in fact, people who voluntarily

                 submit for substance abuse treatment have the

                 highest outcomes for success, because they are

                 self-motivated to seek help and to start it

                 without a court order.

                            I am also concerned that this bill,

                 I believe, has been introduced almost ten



                                                        875



                 years, I was told -- I've only been here now

                 for two years -- and the Office of Court

                 Administration has never actually asked for

                 this legislation.

                            When I spoke with both substance

                 abuse treatment providers in the City of

                 New York and Family Court judges, I was told

                 by both of them that they opposed this change

                 in the law, and they actually thought it was

                 going to tie their hands and limit their

                 options under the existing model we have in

                 the City of New York.

                            I also feel that our job is to make

                 sure we protect children, that we get parents

                 the help they need, but to not make a

                 presumption that because you have a substance

                 abuse problem, we should immediately take your

                 children.

                            I don't think Senator Saland feels

                 that way either.  But I do believe that this

                 legislation would translate into a model

                 discouraging parents from participating in

                 getting the treatment they need, making it too

                 quick for the courts to pull children from

                 their homes when there are better alternatives



                                                        876



                 and supports and services that could be

                 offered.

                            And it will tie the hands of

                 judges, given both the very crowded schedules

                 we find in the Family Court system and the

                 drastic shortage of qualified attorneys to

                 represent particularly poor families in the

                 Family Court system.

                            So while I recognize that Senator

                 Saland proposes this bill in good faith, and I

                 believe that I work in good faith for the same

                 goals of protecting our children and improving

                 our Family Court system and our court system,

                 I would urge my colleagues not to vote for

                 this bill.  I don't think it will have the

                 intended consequences.

                            Thank you, Mr. President.

                            ACTING PRESIDENT MEIER:    Any

                 other Senator wish to be heard on the bill?

                            Senator Hassell-Thompson.  We've

                 got to move this lamp here, Senator

                 Hassell-Thompson.

                            Senator Hassell-Thompson.

                            SENATOR HASSELL-THOMPSON:    Thank

                 you.  I appreciate it.  I thought you were



                                                        877



                 overlooking me.

                            ACTING PRESIDENT MEIER:    Never.

                            SENATOR HASSELL-THOMPSON:    Thank

                 you.

                            Mr. President, just on the bill.

                            Last year I debated this bill

                 extensively with Senator Saland.  And I had

                 hoped that somewhere in the process of that

                 discussion, we would have had some changes in

                 the bill, which I don't see.

                            I still maintain the concern that,

                 as the legislation presently exists, that it

                 gives the kind of discretion to judges that

                 are important and are necessary in such cases.

                 And I would like not to have the

                 Legislature -- I wanted to use the word

                 "tamper," and that's not what's suggested --

                 but tinker with this, only from the

                 perspective that "voluntary" means exactly

                 what it says.

                            When you are dealing with persons

                 who are substance abusers, as well as those

                 with problems of alcoholism, the first thing

                 that you understand is that we are talking

                 about an illness.  And from an illness



                                                        878



                 perspective, people do not get well or do not

                 improve in their condition unless their

                 participation in their treatment is voluntary.

                 I think that anyone who does voluntarily

                 participate automatically is making the first

                 steps toward recovery.

                            And so until we begin to discuss

                 this bill with some hope of seeing the

                 families and the people that we are discussing

                 and legislating about, we understand them as

                 having normal human frailties compounded with

                 problems of alcoholism and substance abuse

                 that we have not begun to address from a

                 budgetary perspective in these chambers, and

                 certainly from a legal perspective.

                            And so therefore, I will continue

                 to vote no.  Thank you, Mr. President.

                            ACTING PRESIDENT MEIER:    Any

                 other Senator --

                            Senator Montgomery.

                            SENATOR MONTGOMERY:    Yes, Mr.

                 President.

                            I note that the current law

                 vis-a-vis the bill that we're considering

                 specifically states that the use of drugs and



                                                        879



                 alcoholic beverages and the voluntary

                 participation, voluntary and regular

                 participation in a recognized rehabilitative

                 program, can be used as prima facie evidence

                 that a person is not necessarily considered

                 neglecting their child unless that child is in

                 danger.

                            But what Senator Saland is doing is

                 removing the voluntary and regular

                 participation as evidence that a parent is

                 genuinely trying to be rehabilitated, and

                 there is -- in eliminating that language in

                 this legislation, the parent is automatically

                 assumed to be neglectful even though they are

                 participating regularly in a rehabilitative

                 program.

                            So I just think that I -- I'm

                 puzzled as to why Senator Saland is so intent

                 on removing this positive step on behalf of

                 parents as a way of saying "I am trying to get

                 my life together, I desperately want to keep

                 my family together," and that should be a

                 consideration up front before any disposition

                 is made.

                            So I am certainly, once again, as I



                                                        880



                 have in the past, going to vote no on this.

                 Because I think it's a step in the back

                 direction as opposed to really being to

                 protect children.  It seems to me to be taking

                 away an important aspect as it relates to

                 parents who are in treatment for drugs and

                 alcohol.

                            So I'm voting no, Mr. President.

                            ACTING PRESIDENT MEIER:    Senator

                 Schneiderman.

                            SENATOR SCHNEIDERMAN:    Thank you,

                 Mr. President.

                            I think that this is the tenth

                 anniversary of this piece of legislation.  And

                 I hope that when we see it next, we may be

                 able to see it in some modified form.

                            I think the problem that the

                 sponsor is seeking to address is quite

                 apparent.  But I think that the language of

                 this particular bill makes it equally apparent

                 that this would have severe negative

                 consequences.

                            And I'm reading from the first page

                 of the bill, Section 1, paragraph B, which

                 identifies a list of conduct that creates a



                                                        881



                 presumption of neglect, including unreasonably

                 inflicting or allowing to be inflicted harm or

                 a substantial risk thereof, corporal

                 punishment, or -- and this is the key

                 phrase -- or by misusing a drug or drugs.

                            Anything on that list creates a

                 presumption that there is neglect.  The

                 investigation goes forward, counsel has to be

                 there, parents are at risk of losing their

                 children.

                            The problem here is we want people

                 to go into drug treatment.  And you are

                 automatically admitting that you, in the

                 language of this statute, are misusing a drug

                 or drugs when you voluntarily enter drug

                 treatment.

                            So there's no clearer evidence, in

                 my mind, that this would create a disincentive

                 for anyone who had any knowledge at all about

                 the law in this area, or about the proceedings

                 in Family Court, to enter drug treatment

                 programs voluntarily.

                            I think there are ways that the

                 issue of people who enter drug treatment just

                 as a way of sort of avoiding things can be



                                                        882



                 addressed.  Although I must say from my own

                 experience, I think that -- and, you know,

                 including working in a drug treatment

                 program -- if you get people in the door,

                 that's a lot of the struggle.  And so I'm not

                 sure how much work we should do to discourage

                 anyone for any reason from entering into a

                 drug treatment program and going to a meeting

                 that might at some point help them on the road

                 to recovery.

                            This bill, however, clearly creates

                 a disincentive.  It tells people if you enter

                 a drug treatment program, you're essentially

                 admitting to the type of conduct that creates

                 a presumption of neglect.

                            These proceedings will go forward.

                 We know the problem of counsel.  We know the

                 problem that most of these families can't

                 afford counsel.  And it is a severe burden to

                 go through the proceeding as well as

                 ultimately to face the disposition.

                            The proceeding is not something

                 that should be treated as something that

                 people can handle easily in the course of

                 their lives.  They are very troubled families,



                                                        883



                 by definition, many of them at severe

                 financial risk as well as emotional or

                 physical risk.

                            This legislation, well-intended as

                 it is, clearly would have the effect of

                 discouraging people from entering drug

                 treatment.  I vote no.  I encourage everyone

                 to vote no.

                            I would be happy, as I think many

                 of my colleagues would be, to try and work

                 with the sponsor so maybe we can start the

                 next decade with a new and improved version of

                 this bill that we could actually pass.

                            Thank you, Mr. President.

                            ACTING PRESIDENT MEIER:    Any

                 other Senator wish to be heard on the bill?

                            Debate is closed, then.

                            Read the last section.

                            THE SECRETARY:    Section 4.  This

                 act shall take effect on the 120th day.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            THE SECRETARY:    Those recorded in

                 the negative on Calendar Number 150 are



                                                        884



                 Senators Andrews, Dilan, Duane,

                 Hassell-Thompson, L. Krueger, Montgomery,

                 Parker, Paterson, Schneiderman, and M. Smith.

                 Ayes, 52.  Nays, 10.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            Senator Duane, why do you rise?

                            SENATOR DUANE:    Mr. President, if

                 I could have unanimous consent to be recorded

                 in the negative on Calendar Number 20 and

                 Calendar Number 108.

                            ACTING PRESIDENT MEIER:    Without

                 objection, Senator Duane will be recorded

                 negative on Calendars 20 and 108.

                            The Secretary will continue to

                 read.

                            THE SECRETARY:    Calendar Number

                 213, by Senator Alesi, Senate Print 59, an act

                 to amend the Penal Law, in relation to the

                 crime of false personation.

                            SENATOR MONTGOMERY:    Explanation.

                            ACTING PRESIDENT MEIER:    Senator

                 Alesi, Senator Montgomery has requested an

                 explanation of Calendar 213.

                            SENATOR ALESI:    Thank you, Mr.



                                                        885



                 President.

                            This bill takes the requirement to

                 give correct information to a police officer

                 or peace officer when he or she asks someone

                 for their identity, it removes the requirement

                 that the police officer or peace officer

                 inform the person being asked that if they

                 give a false answer that there is a penalty

                 for that, and it increases the penalty from a

                 B misdemeanor to an A misdemeanor.

                            ACTING PRESIDENT MEIER:    Senator

                 Montgomery.

                            SENATOR MONTGOMERY:    Yes, Mr.

                 President, if Senator Alesi would yield.

                            ACTING PRESIDENT MEIER:    Senator

                 Alesi, do you yield for a question?

                            SENATOR ALESI:    Yes, I do.

                            ACTING PRESIDENT MEIER:    The

                 sponsor yields.

                            SENATOR MONTGOMERY:    Senator

                 Alesi, I think that we've had similar issues

                 around the Miranda act.  And I was just

                 wondering why you feel that it is necessary to

                 just remove this from the law, that a police

                 officer simply has to say to one that they've



                                                        886



                 stopped or that they have come in contact

                 with, "If you give me the wrong information,

                 this is the penalty."

                            Is there a burden?  Is that too

                 burdensome for the police to do that?  Or was

                 there a particular reason why we needed to do

                 this?

                            SENATOR ALESI:    Well, in the

                 first place, to remove the requirement, it

                 doesn't necessarily mean that the police

                 officer can't give a warning.  It simply says

                 that the police officer doesn't have to give

                 the warning.

                            And in most instances, a situation

                 like this, usually you'll find it's a

                 one-on-one situation.  And so you don't want

                 to put the police officer or peace officer in

                 a position where, later on, somebody uses the

                 excuse that they weren't warned just to get

                 out of a situation that they created for

                 themselves by giving false information.

                            So you don't want to put the police

                 officer in a situation of having someone lie

                 as to whether or not he or she gave the truth.

                            SENATOR MONTGOMERY:    Mr.



                                                        887



                 President --

                            ACTING PRESIDENT MEIER:    Senator

                 Montgomery.

                            SENATOR MONTGOMERY:    If Senator

                 Alesi would continue to yield.

                            ACTING PRESIDENT MEIER:    Senator,

                 do you continue to yield?

                            SENATOR ALESI:    Sure.

                            ACTING PRESIDENT MEIER:    The

                 sponsor yields.

                            SENATOR MONTGOMERY:    Senator

                 Alesi, what is the implication in that you're

                 changing from a B to an A misdemeanor?  What

                 does that mean in terms of the severity of the

                 punishment related to that?

                            SENATOR ALESI:    It stiffens it by

                 bringing it to an A misdemeanor, at up to a

                 year in jail and a $1,000 fine.

                            SENATOR MONTGOMERY:    Okay.  All

                 right.  Thank you, Senator Alesi.

                            SENATOR ALESI:    Thank you.

                            SENATOR MONTGOMERY:    Mr.

                 President, just briefly on the bill.

                            ACTING PRESIDENT MEIER:    Senator

                 Montgomery, on the bill.



                                                        888



                            SENATOR MONTGOMERY:    Yes.  I have

                 voted against this in the past, and I will

                 continue to oppose this just because of the

                 implications of who would be likely to be

                 charged and sentenced under this particular

                 bill.

                            And I note that Senator Alesi

                 refers to the issue of identity theft.  But I

                 don't believe this bill is related to identity

                 theft.  The bill is related to a situation

                 where a police officer comes in contact with a

                 person, for whatever reason, and under current

                 law the police officer is required to say to

                 that person:  This is what can happen if

                 you -- this is what you can be charged with if

                 you give me false information.

                            Senator Alesi wants to remove that

                 requirement and, furthermore, increase the

                 penalty.  And this is going to impact,

                 especially on teenagers, who probably are the

                 most likely people that would be in this

                 situation where you are doing something and

                 the police officer stops you and there's not

                 really a crime, necessarily, involved, but you

                 give the wrong information.  Because that's



                                                        889



                 what teenagers do.

                            And if the police can say to them

                 or is required to say to that young person --

                 or that person, whoever it is -- that "If you

                 give me the wrong information, this is the

                 penalty," that person, young or old, but

                 especially if they're a teenager, and they

                 realize that if they lie to the police, they

                 are going to be charged, they're less likely

                 to do it.

                            I see nothing wrong with that.

                 It's not a burden on anybody.  And it takes a

                 fraction of a second and a little breath for

                 the police to give that warning to that

                 person.

                            So I -- and I think that certainly

                 I would not want to see teenagers in my

                 district penalized just because the police

                 officer does not have to tell them anything,

                 and once they say something that is not

                 truthful, the police can charge them with a

                 misdemeanor -- an A misdemeanor, no less --

                 and they can receive a year in jail and have

                 to pay a $1,000 fine because the police

                 officer didn't warn them, and now the police



                                                        890



                 officer is immune because he doesn't have to

                 warn them.

                            So I am going to continue to oppose

                 this legislation because I think it represents

                 a potential problem for people in my district.

                            Thank you, Mr. President.

                            SENATOR ALESI:    Mr. President.

                            ACTING PRESIDENT MEIER:    Senator

                 Alesi.

                            SENATOR ALESI:    I can think of

                 any number of cases where someone who is lying

                 to the police, regardless of their age, poses

                 an imminent threat to that police officer when

                 he has confronted the person.

                            It could be a teenager, yes.  It

                 could be a teenager who just burglarized a

                 place.  It could be a teenager who has

                 warrants out for his arrest or her arrest.

                 And when the police officer doesn't get the

                 correct information, that police officer's

                 life could be imperiled.  It's vitally

                 important to recognize that.

                            It's vitally important to recognize

                 that there probably is a reason that the

                 police officer stopped that person in the



                                                        891



                 first place.  They just don't stop people in

                 America on the streets.  There's usually

                 something that leads up to that.

                            And without that knowledge, without

                 knowing that maybe there is a warrant out,

                 without knowing that this is someone who might

                 possibly have just left the scene of some

                 other crime, then the police officer's life is

                 imperiled.

                            And I think if you're going to make

                 a judgment call on that, then you have to make

                 a judgment call on behalf of those people that

                 day in and day out put their lives at risk to

                 protect our society, especially in a day when

                 knowing who someone is is so vitally

                 important, when we're at war with terrorism

                 all across the world.

                            And without regard to the person's

                 age, let me just say that there already is a

                 penalty for misinforming a police officer of

                 your identity.

                            So I would urge the rest of my

                 colleagues, at least, to understand that this

                 is an important piece of legislation that

                 protects society and, most immediately, the



                                                        892



                 police officer when he or she is doing their

                 duty.

                            ACTING PRESIDENT MEIER:    Read the

                 last section.

                            THE SECRETARY:    Section 2.  This

                 act shall take effect on the first of

                 November.

                            ACTING PRESIDENT MEIER:    Call the

                 roll.

                            (The Secretary called the roll.)

                            ACTING PRESIDENT MEIER:    Senator

                 Montgomery, to explain her vote.

                            SENATOR MONTGOMERY:    Yes, Mr.

                 President, just briefly to explain my vote.

                            I certainly understand all of the

                 points that Senator Alesi has made.  However,

                 this legislation doesn't address any of that

                 that he has just talked about, terror and

                 terrorism and all of this other stuff.

                            What it simply does is removes the

                 requirement that the police notify a person of

                 what he's being charged of.  And it also, in

                 addition to that, increases the penalty.

                            So I will continue to oppose this

                 legislation.



                                                        893



                            ACTING PRESIDENT MEIER:    Senator

                 Montgomery will be recorded in the negative.

                            The Secretary will announce the

                 results.

                            THE SECRETARY:    Ayes, 60.  Nays,

                 2.  Senators Duane and Montgomery recorded in

                 the negative.

                            ACTING PRESIDENT MEIER:    The bill

                 is passed.

                            Senator Larkin, that completes the

                 noncontroversial reading of the calendar.

                            SENATOR LARKIN:    Mr. President,

                 can we return to reports of standing

                 committees.

                            ACTING PRESIDENT MEIER:    Reports

                 of standing committees.

                            The Secretary will read.

                            THE SECRETARY:    Senator Robach,

                 from the Committee on Civil Service and

                 Pensions, reports:

                            Senate Print 1057B, by Senator

                 Spano, an act in relation to allowing;

                            2429A, by Senator Wright, an act in

                 relation to granting;

                            6189, by Senator Maltese, an act to



                                                        894



                 amend the Civil Service Law;

                            And Senate Print 6300, by Senator

                 Robach, an act to amend the Retirement and

                 Social Security Law.

                            All bills ordered direct to third

                 reading.

                            ACTING PRESIDENT MEIER:    All

                 bills directly to third reading.

                            Senator Larkin.

                            SENATOR LARKIN:    Is there any

                 housekeeping at the desk?

                            ACTING PRESIDENT MEIER:    There is

                 no housekeeping, Senator.

                            SENATOR LARKIN:    Please let's

                 stand at ease for a couple of minutes.

                            ACTING PRESIDENT MEIER:    The

                 Senate will stand at ease.

                            (Whereupon, the Senate stood at

                 ease at 4:16 p.m.)

                            (Whereupon, the Senate reconvened

                 at 4:17 p.m.)

                            SENATOR LARKIN:    Mr. President,

                 would you recognize Senator Ada Smith.

                            ACTING PRESIDENT MEIER:    Senator

                 Ada Smith.



                                                        895



                            SENATOR ADA SMITH:    Thank you,

                 Mr. President.  I request unanimous consent to

                 be recorded in the negative on Calendar Number

                 150.

                            ACTING PRESIDENT MEIER:    Without

                 objection, Senator Ada Smith will be recorded

                 in the negative on Calendar 150.

                            SENATOR ADA SMITH:    Thank you.

                            ACTING PRESIDENT MEIER:    Senator

                 Larkin.

                            SENATOR LARKIN:    Mr. President,

                 there being no further business, I move we

                 adjourn until Tuesday, March 9th, at 3:00 p.m.

                 sharp.

                            ACTING PRESIDENT MEIER:    On

                 motion, the Senate stands adjourned until

                 Tuesday, March 9th, at 3:00 p.m.

                            (Whereupon, at 4:18 p.m., the

                 Senate adjourned.)