Regular Session - March 10, 2004
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NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 10, 2004
11:16 a.m.
REGULAR SESSION
SENATOR PATRICIA K. McGEE, Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT McGEE: 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 McGEE: In the
absence of clergy, may we bow our heads in a
moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT McGEE: Reading
of the Journal.
THE SECRETARY: In Senate,
Tuesday, March 9, the Senate met pursuant to
adjournment. The Journal of Monday, March 8,
was read and approved. On motion, Senate
adjourned.
ACTING PRESIDENT McGEE: 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.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: I believe
there's a substitution at the desk, if we
could make it at this time.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: On page 28,
Senator Hannon moves to discharge, from the
Committee on Judiciary, Assembly Bill Number
5805 and substitute it for the identical
Senate Bill Number 1099, Third Reading
Calendar 426.
ACTING PRESIDENT McGEE:
Substitution ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution, 3811, by
Senator DeFrancisco. I ask that it be read in
its entirety, that you recognize Senator
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DeFrancisco, and then move for its passage.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
DeFrancisco, Legislative Resolution Number
3811, congratulating the Marcellus Central
High School Lady Mustangs Girls Soccer Team
and Coach Laura Updike upon the occasion of
capturing the 2003 New York State Class B
Championship.
"WHEREAS, Excellence and success in
competitive sports can be achieved only
through strenuous practice, team play, and
team spirit, nurtured by dedicated coaching
and strategic planning; and
"WHEREAS, Athletic competition
enhances the moral and physical development of
the young people of this State, preparing them
for the future by instilling in them the value
of teamwork, encouraging a standard of healthy
living, imparting a desire for success, and
developing a sense of fair play and
competition; and
"WHEREAS, It is the sense of this
Legislative Body to recognize and pay tribute
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to those young people within the State of
New York who, achieving outstanding success in
athletic competition, have inspired and
brought pride to their school; and
"WHEREAS, This Legislative Body is
justly proud to congratulate the Marcellus
Central High School Lady Mustangs Girls Soccer
Team and Coach Laura Updike upon the occasion
of capturing the 2003 New York State Public
High School Athletic Association Class B
Championship; and
"WHEREAS, The Marcellus Lady
Mustangs enjoyed a truly outstanding season.
They compiled an overall record of 16 wins,
just one loss, and a single tie. In league
play, the Marcellus Girls Soccer Team had a
most impressive record of eight victories, one
loss, and one tie; and
"WHEREAS, Moving on to the
postseason, the Lady Mustangs defeated
Skaneateles, South Jefferson, and Ilion to
earn the Section III title. They then went on
to defeat both Chatham and Potsdam to win
regionals; and
"WHEREAS, The Marcellus Girls
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Soccer Team then faced tough competition and
emerged with a victory against Alden in the
New York State Semifinals, thereby earning a
place to compete in the New York State Class B
Championship Game against Oneonta on
November 15, 2003; and
"WHEREAS, the Marcellus High School
Girls Soccer Team was well aware of the
challenge to be faced in the season's final
game. Their opponent in the New York State
Class B Championship Game was the undefeated
Oneonta Yellow Jackets; and
"WHEREAS, The Lady Mustangs took to
the Webster Soccer Association Fields, where
they rose to the challenge and gave their
hearts and souls for 98 scoreless minutes.
Finally, with less than two minutes remaining
in double overtime, Marcellus was able to
score the only goal of the game to capture the
2003 New York State Class B Championship; and
"WHEREAS, The athletic talent
displayed by this team is due in great part to
the efforts of Head Coach Laura Updike and her
assistant coaches, Ryan Mooney and Lisa
MacLachlan, as well as the never-ending
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encouragement and support of friends, family,
and the entire Marcellus Central School
community; and
"WHEREAS, This most exceptional
team was proud to have among them three
All-State honorees, five All-League First Team
players, five All-League Second Team players,
two members who were named to the All-Central
New York First Team, three players who were
named to the All-Section III Team, and four
individuals who achieved Honorable Mention for
All-League; and
"WHEREAS, No team, no matter how
gifted one or even a handful of individuals
may be, can accomplish all that has been
achieved by the Marcellus Central Lady
Mustangs without exceptional skills teamwide.
The 2003 New York State Class B Champion Lady
Mustangs had talented team members throughout
its player roster that included: Captains
Jenna Farneti, Katie O'Laughlin, Amy Ware, and
Sarah Vulcano; Sami Boyle, Maureen Dooley,
Kelly Hanlon, Candy Hofmann, Jocie Jankowski,
Alyssa MacLachlan, Megan Mannion, Alyse
O'Brien, Sara Potter, Jessi Reynolds, Amanda
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Stessen, Hannah Vaughn, Katie Walter, Jennifer
Young, Katie Young, and Katie Zimmerman; and
"WHEREAS, The Marcellus High School
Girls Soccer Team received a Certificate of
Academic Achievement from the New York State
Public High School Athletic Association. This
honor is accorded to only those teams who
achieve athletic excellence while actively
participating in varsity-level interscholastic
athletics; and
"WHEREAS, The 2003 Lady Mustangs
shared noteworthy attributes off the field as
well as in competition. Individually and
collectively, they constantly exhibited good
sportsmanship and scholarship, thereby
demonstrating to themselves and to others that
they have an enviable combination of talent
and character which reflects favorably upon
their school and their community; now,
therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to
congratulate the Marcellus Central High School
Girls Soccer Team and Coach Laura Updike on
their successful season, overall team record,
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and capturing the New York State Class B
Championship; and be it further
"RESOLVED, that copies of this
resolution, suitably engrossed, be transmitted
to the members of the Marcellus High School
Girls Soccer team and to Coach Laura Updike."
ACTING PRESIDENT McGEE: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Thank you,
Madam President.
I rise to congratulate these young
ladies from Marcellus who have excelled and
become state champions.
You know, during your lifetime
you're going to look back to this as clearly
one of the highlights. If you look at each
other that are sitting together today, you'll
be friends forever. You have a common bond
that very few people will have in life,
because of a championship such as this,
especially when it was won in double overtime
by one goal. I mean, that's something that's
very rarely done by anyone.
Senator Farley said, when he walked
in the room -- he's from Schenectady -- he
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said, "It must be one of Senator DeFrancisco's
resolutions." He's getting so used to
champions coming from Central New York that he
expected that it would be you.
Last year, we had the National
Champions Syracuse University Basketball Team.
But your accomplishment is just as strong as
that.
Two things I want to emphasize.
There was a lot of whereases, but two things I
want to emphasize. The team play is what did
it. Obviously you can't win as individuals.
You were much greater as a team than all of
the parts individually. And that's true in
life as well. And hopefully you will follow
those principles in whatever you do.
And, lastly, this part of the
resolution is not usually in resolutions, and
that is that you also achieved a Certificate
of Academic Achievement from the State of
New York, which shows that you have balance in
your life, that the academics is just as
important as the sports.
So I'm happy you're here, I'll be
happy to have lunch with you this afternoon,
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and best of luck in everything you do in the
future.
ACTING PRESIDENT McGEE: Senator
Volker.
SENATOR VOLKER: I just want to
rise, if I might, to congratulate this
wonderful bunch of young girls and
congratulate Senator DeFrancisco for having
all these great teams.
I just want to say one of the teams
that was mentioned that was defeated happened
to be a school from my district. And I want
to congratulate you, on behalf of those girls,
for winning. You were a very worthy opponent
and much deserving of the victory that you
got.
ACTING PRESIDENT McGEE: The
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
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Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution, 3812, by
Senator Nozzolio. I ask that the title be
read and move for its immediate adoption.
ACTING PRESIDENT McGEE: May we
please have some quiet to read the resolution.
The Secretary will read.
THE SECRETARY: By Senator
Nozzolio, Legislative Resolution Number 3812,
recognizing March 10, 2004, as the inaugural
day of commemoration for an annual Harriet
Tubman Day in New York State.
ACTING PRESIDENT McGEE: Senator
Nozzolio.
SENATOR NOZZOLIO: Thank you,
Madam President, my colleagues. On the
resolution.
That this is, March 10th, the very
first day of commemoration of Harriet Tubman,
a true American heroine.
And I think it's important for this
body to note, as Senator DeFrancisco is
hosting this wonderful group from Marcellus,
today we have a number of men from Auburn who
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are here that are bringing a guest from Italy,
who is Gioacchino Marinpiepri, who is former
assistant to the president of Italy.
What these gentlemen from Auburn
and from the Auburn region and from Italy need
to know here in New York State, hailing from
Auburn, New York, was that Harriet Tubman was
a great American heroine who did much to
enhance the cause of freedom and liberty in
this nation.
And that I am very pleased to be
the sponsor of the day of commemoration and
urge all my colleagues who wish to sign on to
this resolution, in so recognizing someone
with great courage who is a genuine American
heroine hailing from New York State.
Thank you, Madam President.
SENATOR VELELLA: Madam
President.
ACTING PRESIDENT McGEE: Senator
Velella.
SENATOR VELELLA: Since Senator
Nozzolio has opened the resolution to all
members, anyone not wishing to be on the
resolution should notify the desk.
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ACTING PRESIDENT McGEE: The
resolution is open for cosponsorship. If you
do not wish to cosponsor, please notify the
desk.
Senator Hoffmann.
SENATOR HOFFMANN: Yes, on the
resolution.
ACTING PRESIDENT McGEE: Senator
Hoffmann, on the resolution.
SENATOR HOFFMANN: Madam
President, I want to compliment our colleague
Senator Nozzolio in his leadership in
commemorating Harriet Tubman in this very
special way.
This is a very significant part of
this state's and indeed this nation's
abolitionist history. We have an historic
trail and an opportunity to invite people from
all over the country and, indeed, all over the
world to visit with us to see this wonderful
part of our nation's historical freedom
activities.
I've had the pleasure of being able
to discuss Harriet Tubman and the Jerry Rescue
and other abolitionist activities -- Gerrit
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Smith, from the middle of Madison County --
during my annual visits to Mississippi. And I
find that people who are interested in
exploring the civil rights movement are
equally interested in exploring the
abolitionist history that had so much of its
energy driven from Central New York and the
rest of New York State as well.
So I applaud Senator Nozzolio. I'm
delighted that we're going to be having an
important event hosted by the Governor at the
State Museum today.
And I encourage all of my
colleagues in their travels, wherever they may
be, to remind people of Harriet Tubman and of
the great historical locations that are
available here in New York State for our
students and for other visitors who would like
to come and learn more about this nation's
rich history in the area of freedom.
ACTING PRESIDENT McGEE: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I would also like to echo my
colleague Senator Hoffmann in commending
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Senator Nozzolio for this resolution.
And I might add that today, at this
very moment, there is a celebration, if you
will, going on in my district of the renaming
of one of the major thoroughfares through the
district. Fulton Street is being renamed by
Councilman Al Vann in the name of Harriet
Tubman Boulevard.
We have, in my district, sites that
were part of the Underground Railroad. It was
the southern part of the New York State route
into the northern part of the state,
ultimately leading to Canada, where slaves
found freedom across the river.
The fact that we are a very
important part of the movement for suffrage
for black people in this country, for women in
this country, and that a lot of the activity
took place in Senator Nozzolio's district, I
think is of note. And we should celebrate it,
we should celebrate ourselves, and we should
not allow this part of our history to go
unrecognized.
So I thank him for this resolution,
and I hope that it is open to all of the
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members to be on that resolution because this
is an issue that belongs to all of us equally.
Thank you.
ACTING PRESIDENT McGEE: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President.
I too would like to commend Senator
Nozzolio on this resolution. Two years ago, I
had the distinct honor of being the Harriet
Tubman Recipient of this award. And on Sunday
of this week, the Greater Centennial Church
will be honoring me again with this award.
So she is a woman who is someone
that all of us could look to for virtues. And
also I think that -- I would like to hope that
at some point we will bring out of Judiciary
the efforts that have been made to make a
holiday in the name of Harriet Tubman.
Thank you, Madam President.
ACTING PRESIDENT McGEE: You're
welcome.
Senator Montgomery, for your
information, the resolution has been opened up
by Senator Nozzolio for all cosponsorship.
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Thank you very much.
The question is on the resolution.
All in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
Senator Morahan.
SENATOR MORAHAN: Yes, Madam
President. Can we please now have the reading
of the noncontroversial calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
9, by Senator LaValle, Senate Print 2066A, an
act to amend the General Municipal Law, in
relation to emergency rescue and first aid
squads.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
972
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
83, by Senator Balboni, Senate Print 517A, an
act to amend the Family Court Act and the
Domestic Relations Law, in relation to the
issuance of orders of protection.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 10. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
113, by Senator Marcellino, Senate Print 788,
an act to amend the Vehicle and Traffic Law,
in relation to aggravated unlicensed
operation.
973
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
148, by Senator Skelos, Senate Print 1023B, an
act to amend the Domestic Relations Law, in
relation to parents or other persons.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act --
ACTING PRESIDENT McGEE: Senator
Krueger, I'm sorry.
SENATOR LIZ KRUEGER: To explain
my vote.
ACTING PRESIDENT McGEE: Read the
last section.
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THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Senator
Liz Krueger, to explain her vote.
SENATOR LIZ KRUEGER: Thank you,
Madam President.
I just rise to -- I support the
bill and have voted for it, but also to show
my appreciation for Senator Skelos for having
amended the bill based on some discussions we
had and some concerns that I had about how the
bill might be interpreted in its previous
form.
So I just wanted to show my
appreciation for our working together in
changing that bill and making it a better
bill.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Thank
you.
Announce the results.
THE SECRETARY: Ayes, 59. Nays,
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1. Senator Duane recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
257, by Senator Rath, Senate Print 5078, an
act to amend the Social Services Law and the
Executive Law, in relation to county planning
and facilitation.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect on the 120th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
309, by Senator Little, Senate Print 3930, an
act to amend the Tax Law, in relation to the
timing of distribution of mortgage recording
tax revenues.
ACTING PRESIDENT McGEE: Read the
last section.
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THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
336, by Senator Robach, Senate Print 4101A, an
act to amend the Civil Service Law, in
relation to suspension of pension.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
342, by Senator Bonacic, Senate Print 4443, an
act to amend the Tax Law, in relation to
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issuance of lottery sales agent licenses.
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
355, by Senator Farley, Senate Print --
SENATOR SKELOS: Lay it aside for
the day, please.
ACTING PRESIDENT McGEE: The bill
is laid aside for the day.
THE SECRETARY: Calendar Number
364, by Senator Alesi, Senate Print 4497, an
act to amend the General Business Law, in
relation to prohibiting the use of predictive
dialers.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect on the first of the
calendar month next succeeding.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
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ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
384, by Senator Volker --
SENATOR HASSELL-THOMPSON: Lay it
aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
411, by Senator Maltese, Senate Print 5488, an
act to amend the Education Law, in relation to
the property of certain museums.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the 60th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Thank you, Madam
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President. If we could now go to the reading
of the controversial calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
342, by Senator Bonacic, Senate Print 4443, an
act to amend the Tax Law, in relation to the
issuance of lottery sales agent licenses.
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. On the bill.
ACTING PRESIDENT McGEE: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: Last year
I joined with Senator Padavan and Senator Liz
Krueger in voting against this bill because it
is an extraordinary broadening, I felt, of the
provisions for legalized gambling in our
state.
And the concern that was expressed
is that even though maybe the details of this
bill are not particularly offensive to many of
our colleagues, this was putting us on a
slippery slope towards overreliance on
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gambling to fund critical services.
Unfortunately, the Governor seems
to have made those of who voted against this
bill prophets, because of the extraordinary
explosion in the proposed budget of the
reliance on gambling revenues to fund critical
programs for our state.
The Executive Budget relies on
revenues generated through three racinos,
opening this month and next month. More
troubling, by far, is the fact that our
children's education is now being linked, if
the Executive branch has its way, to gambling
activity.
The notion that over $300 million
in projected revenue from gambling should be
put into a fund that is the only proposed fund
to guarantee a sound basic education for all
the children of this state I think is -- to
say that it's offensive understates it. It
borders on the bizarre.
I mean, what the Governor seems to
be saying is that if Gamblers Anonymous has a
good year and a lot of people kick the habit,
the quality of our children's education is
981
going to go down.
We shouldn't be tying critical
services to gambling revenues. And I must
admit, when we spoke last year about the
slippery slope, I didn't think the slope would
get this slippery, and this steep, this fast.
Gambling is a bad way to raise
public funds. It's something that a lot of us
hold our nose and vote for from time to time.
But we are headed very rapidly in the wrong
direction in this state. I'm going to vote no
against this bill. I urge my colleagues to
vote no.
But let's also keep our eyes open
and be honest with our constituents about the
expansion of gambling activities and the
desire of some in our government to tie
critical services to gambling revenues. It's
bad public policy. And unfortunately, we're
moving towards even worse public policy at a
rapid rate.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Liz Krueger.
SENATOR LIZ KRUEGER: Thank you,
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Madam President. If the sponsor would yield.
ACTING PRESIDENT McGEE: Senator
Bonacic, will you yield?
SENATOR BONACIC: Yes, I will.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you.
I voted against this bill also last
year. And I was convinced, in fact, by
Senator Padavan's arguments about why this was
bad public policy.
But my question today, Senator, is
I know that you have great concern about the
expansion of not-for-profit and charitable
organizations in this state translating to a
lowering of tax revenue for localities and for
the state. And you have spoken quite
eloquently about those concerns.
And I'm wondering if there's a
reason to also be concerned that with this law
somehow we are actually doing harm to other
small businesses who would then, quote,
unquote, be competing with these benevolent
associations.
So that people would be going to
983
their charitable club, so to speak, for their
lotteries, as opposed to other locations that
are taxable businesses in the State of
New York, and therefore they would be
decreasing their purchases in taxable
facilities because they would have shifted
their time, their activities, and their
consumer spending to these not-for-profit
organizations.
I was wondering whether you had
looked into that or done any analysis of that
side impact of allowing lottery sales through
these types of clubs.
SENATOR BONACIC: Thank you,
Senator.
Madam President, on the issue of
the benevolent order, let me just talk a
little bit about what this legislation tries
to do. Lottery -- the lottery is here, the
ticket sales to play the lottery exist now.
And what we're dealing with is to allow the
benevolent orders to participate in what is
going on throughout the state of New York.
So it may not necessarily be
competing with a customer who is participating
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in a taxpaying entity or a private sector; it
may be a new player that visits these
benevolent orders and doesn't play the
lottery. So perhaps we may recapture some --
or enhance the lottery pot, which goes for
education, as you know.
There are 60 different benevolent
orders that are not participating in the
lottery. And I'll just give you a few of
them, so you know who we're talking about --
the Knights of Columbus, the Eastern Star, the
Catholic War Veterans, the Disabled American
Veterans.
And what our Lottery Division is
saying is the reason we're hesitant to allow
licenses in those places, they may not be
publicly accessible. And the answer to that
is there are places now that may not
technically be publicly accessible and have
lotteries. What am I talking about? A
nightclub, where you may have to pay a cover
charge to gain access. Certain restaurants
where you have to wear shoes and shirts and be
presentable before you have access.
So the Division of Lottery is
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cautioning, they're cautionary. They say we
want clarity in the law. And these worthwhile
organizations have come to us to say, Let us
put these Quick Draws and everything else in
here, so our organizations can enhance not
only for education but for the very worthwhile
organizations.
I have not done an analysis between
whether or not the private sector is going to
be hurt or we're capturing new customers and
then it would be a noneffect.
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR LIZ KRUEGER: Thank you.
Madam President, if the sponsor would continue
to yield.
ACTING PRESIDENT McGEE: Senator
Bonacic, do you continue to yield?
SENATOR BONACIC: I do. I do.
ACTING PRESIDENT McGEE: The
Senator continues to yield.
SENATOR LIZ KRUEGER: Thank you.
And I'm sorry, I don't know the
answer to this, but that is why I'm asking
you. At these benevolent associations I know
986
they sell liquor, they sell food. You do have
to be a member, but they operate not unlike a
bar or restaurant.
Do they pay taxes on those parts of
their business, their sales of liquor or their
sales of food? Are they tax-exempt for those
purposes?
SENATOR BONACIC: I think --
they're solely tax-exempt on real property
taxes. They come under Section 420B of the
Real Property Tax Law. And they're exempt at
local option, which means the municipality
where they're located have to consent to
giving of the exemption.
I do believe that they do pay taxes
on the activities that you describe.
SENATOR LIZ KRUEGER: Okay.
Thank you.
Madam President, on the bill.
ACTING PRESIDENT McGEE: Senator
Krueger, on the bill.
SENATOR LIZ KRUEGER: Thank you.
I appreciate the Senator responding
to my questions. And it does leave me some
pause about the economics of it.
987
But I would still argue this is not
a law we should be passing, both because while
I hear his argument that new people will now
buy lottery tickets when otherwise they
wouldn't, I'm not convinced that that would be
the pattern, but rather, in fact, we would be
shifting people who are currently buying
lottery tickets in other nonexempt locations
in their area to an exempt charitable or,
excuse me, benevolent association facility.
I'm also equally concerned, with
Senator Schneiderman and the points that
Senator Padavan made last year, that we
continue to expand and encourage the use of
lottery gambling.
In fact, now we say we will pay for
education in the future, or expanded payments
for education in the future through lottery
gambling, and that there are serious concerns
that we should have about our expanded access
to lotteries and other forms of gambling in
the state of New York, because in fact those
are real costs to communities and to people.
Especially if, in fact, we are actively
encouraging a greater number of New Yorkers to
988
participate in lottery gambling and to
encourage them, through broader access, to
continue to spend their money in this way.
So I'll be voting against this bill
again this year, I think both on two different
sets of premises -- the concerns about the
expansion of the lottery games in general, but
also the concern about our, in our own way,
perhaps pitting benevolent associations
against small businesses for the outcomes of
income. And I worry about that for our
communities as well.
Thank you, Madam President. I'll
be voting no.
ACTING PRESIDENT McGEE: Senator
Sabini.
SENATOR SABINI: Madam President,
on the bill.
ACTING PRESIDENT McGEE: Senator
Sabini, on the bill.
SENATOR SABINI: You know, last
year we also passed a bill in both houses of
the Legislature that's now the law, which in
effect eliminated smoking from the
headquarters of these benevolent
989
organizations, because the law specifically
states any remuneration for personnel makes
the smoking law apply there.
So now you have these posts and
these Knights of Columbus halls and others
where now smoking is banned. And if you go
around to them, they'll tell you that their
membership is hurting, that the value of their
land is now worth more to them by selling it
than by staying afloat.
And in many communities these
organizations -- urban communities, rural
communities -- these organizations are centers
for the community, places where people have
gone for generations. And now they're hurting
because of government action.
And I think the effect of this bill
would be to at least throw them a small bone
at a time when they are hurting.
With regard to cannibalizing other
businesses, I believe there's already
something in the law that states that Quick
Draw can't be sold within a certain number of
feet of other Quick Draw vendors. So that
would already be covered.
990
And people's habits on Quick Draw
tend to be that they play where they are at
the moment they're there, if they're foolish
enough to play -- because, frankly, the game
is a sucker game. But people still play it.
But I believe that -- going around
to VFW conventions and Catholic War Veterans
meetings, I have heard lots of people
complaining about people just not going
anymore, especially in light of last year's
action on smoking. And if this gets a few
more people back into these real centers for
the community and makes those organizations
feel a little closer to whole, I don't think
it's such a bad thing.
I'll be voting aye. Thank you.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
991
the negative on Calendar Number 342 are
Senators Duane, L. Krueger, Padavan, and
Schneiderman. Ayes, 57. Nays, 4.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
384, by Senator Volker, Senate Print 6117, an
act to amend the Criminal Procedure Law, in
relation to police officer statements.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT McGEE: Senator
Volker, an explanation has been requested.
SENATOR VOLKER: Madam President,
this is a bill that provides that police
officers are permitted to provide sworn
written or oral statements be offered into
evidence at grand jury proceedings without
actually being there.
And, by the way, it's "may." So
that in many circumstances they still would
have to give their testimony. But this allows
it to occur.
And the other part of this bill
says that the admission of business records
992
into evidence before a grand jury can be done
by way of sworn affidavits instead of by live
testimony.
I think -- frankly, this bill was
pulled right out of the budget. And what we
decided to do this year was to do a few of
these that are not that well known and put
them in bill form so that they can be
discussed.
I think, frankly, there can be a
savings here. The Budget Bureau estimates a
savings of $150,000 by the fact that police
officers wouldn't have to testify at grand
jury proceedings.
There's actually another provision
in the budget, I might add, that goes even
farther than this that talks about allowing
testimony in at traffic court and places like
that, to avoid police officers or especially
state troopers from appearing in many of the
local traffic courts.
That occurred because there were
some major problems, particularly upstate,
with some troopers who were adjourning cases
and so forth and were able to get overtime in
993
certain of these proceedings.
But this is a fairly simple bill.
I think probably the piece on business records
is pretty well accepted. I think the issue of
police officers giving sworn statements in
grand juries is a little more difficult.
But I would point out that this
does not say that a person -- or a trooper or
a police officer would not still be able to
give his testimony if the testimony was
necessary to be given because of prior
statements or something of that nature.
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. If the sponsor would yield
for a few questions.
SENATOR VOLKER: Sure.
ACTING PRESIDENT McGEE: Senator
Volker, will you yield for a few questions?
The Senator yields.
SENATOR SCHNEIDERMAN: Just to
clarify things, the Governor has already
taken -- essentially, used the projected
savings from this change in criminal
994
procedure, the projected savings of $150,000
in the budget, but has not put forward a bill,
as you have, specifically identifying that the
source of the savings would be the fact that
police officers would no longer be required to
testify in person in grand juries?
SENATOR VOLKER: Yeah, that's
true. This is actually lifted from Senate
6056, Part D, which is an Article VII bill
that is before us right now. And the language
is essentially identical to what's in the
budget bill.
SENATOR SCHNEIDERMAN: So again,
to -- if the sponsor would continue to yield.
SENATOR VOLKER: Yes. Sure.
SENATOR SCHNEIDERMAN: The bill,
then, the Article VII bill that the Governor
has proposed, has this provision buried in it,
and you've just broken it out as a separate
piece of legislation so that the issue can be
addressed and the savings can be weighed
separate from the rest of the considerations
affecting the state budget?
SENATOR VOLKER: Yeah, that's
correct.
995
In fact, we did that with a few of
these things. Because one of the interesting
issues is that sometimes these comparatively
smaller issues don't really get noticed. And
we just want to make sure that everybody
understands that we notice them and we're
looking at them.
And frankly, there's a number of
things in the budget -- and I don't, you know,
want to get into detailed discussion about the
budget itself. But there are some things in
this budget about, you know, cameras at work
zones and a different concept of how to do
justice court proceedings, which we think are
a little bit tough to accept, is the best way
I could explain it.
SENATOR SCHNEIDERMAN: Thank you.
And one final question.
ACTING PRESIDENT McGEE: Senator
Volker, will you continue to yield?
SENATOR VOLKER: Certainly.
Certainly.
ACTING PRESIDENT McGEE: The
Senator continues to yield.
SENATOR SCHNEIDERMAN: Have any
996
of the police organizations or police unions
expressed their support for this legislation?
SENATOR VOLKER: No, not support.
I did discuss this with several, and they were
not as concerned about this, grand jury
proceedings, as they were about some of the
other proceedings.
But it is -- it could become a
little bit problematic for them. We have not
heard decided opposition, but we haven't heard
any overwhelming support either.
SENATOR SCHNEIDERMAN: Thank you.
Thank the sponsor for his answers.
On the bill.
ACTING PRESIDENT McGEE: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I think
that, first of all, I have to commend the
sponsor for bringing this issue to light. I
think it is rather astonishing that the
Governor, in order to scrape together $150,000
for balancing the state budget, has slipped
into the Article VII bills that go along with
the budget a fundamental change in the
criminal procedure of the State of New York
997
without calling any attention to it.
I think that those of us who have
been involved in grand jury proceedings
understand that there's a lot of criticism of
the process. But the criticism of the process
is that it's too easy, many people feel, to
secure an indictment through a grand jury,
that the standards are not high enough.
So for us for undermine the
standards of the grand jury process even
further by taking what in many, many cases are
the most critical witnesses, police officers,
and saying you don't have to come testify, you
don't have to be confronted, you don't have to
face the grand jury and look them in the eye
and give your testimony, you can just submit
an affidavit -- while not making that
exception for any other witness -- is really
an extraordinary step.
And, you know, the criminal justice
system, these inconveniences of things like
trials by jury and right to counsel, do cost
money. But it's money very, very well spent.
And I don't think anyone in this house would
suggest that we go to a system of criminal
998
justice based solely on cost considerations.
We could find models for that in some
dictatorships and fundamentalist republics,
but that's not what the United States is
about.
To save $150,000 by making such a
fundamental change, by removing a critical
element of defense in a critical stage of our
proceedings, the determination of whether or
not someone is indicted, is, after all, as
important as any other stage -- as important
as trial, as important as sentencing. There's
no excuse for trying to close a budget gap
created by imprudent tax cuts and wasteful
spending in other areas by undermining the
grand jury system.
I feel very strongly that the
business records portion of this bill is
actually a very good thing. And I hope that
Senator Volker will come back to us with
something that makes it easier to transmit
records without requiring the testimony of
witnesses when they're kept in the ordinary
course of business.
But the first part of this bill
999
that takes away a fundamental constitutional
right, in my view, that provides that police
officers can testify by affidavit instead of
in person, just can't be allowed to pass.
And I note that the police unions
and the police organizations, they're not
supporting this legislation.
And as the Senator has, with his
usual candor, acknowledged, this again is --
appears to be the Executive branch's attempt
to get us on a slippery slope where first
we're eliminating the requirement of testimony
in grand juries, then we're eliminating the
requirement of live testimony in traffic
court.
This is fundamentally in conflict
with the values of the Founding Fathers and
Mothers, what was enshrined in the
Constitution, the notice that you have a right
to confront your accuser, that you have a
right to a grand jury and a petit jury,
carried over from English common law, embodied
in the most fundamental documents of the
republic, shouldn't be undermined in an effort
to scrape together $150,000 so the Governor
1000
can balance his budget.
I vote no. I urge everyone to vote
no.
ACTING PRESIDENT McGEE: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President.
My colleague has probably stated
much better than I some of the major issues
that I have with this particular bill.
But I just want to reiterate, I
think that -- unless I'm mistaken, Senator
Volker -- that what this bill does not allow
for is for cross-examination. And I always
become very concerned that any element of the
police report cannot be questioned if in fact
the person does not appear in court.
And that just stands out, to me, as
being a major, major issue for me. Therefore,
I cannot support this bill. I will be voting
no.
ACTING PRESIDENT McGEE: Senator
Liz Krueger.
SENATOR LIZ KRUEGER: Thank you.
On the bill, Madam President.
1001
ACTING PRESIDENT McGEE: Senator
Krueger, on the bill.
SENATOR LIZ KRUEGER: Thank you.
I think both of my colleagues were
quite eloquent in their concerns. Again, for
me, can the price tag on justice in this state
be valued at $150,000? No, it is not a good
savings in the state budget.
But I'd also argue it's not a
savings. Because, in fact, a purpose of a
grand jury with proper opportunity to have the
information presented -- and I believe very
strongly the police must be present for their
testimony at a grand jury. If grand juries
don't get the correct information, then it's
very different to read an affidavit versus
hear it from someone's mouth. They will be
making judgment decisions that will result in
court cases that never should have become
court cases.
And in fact, those court cases,
even a small number, would translate into a
far greater cost to the Office of Court
Administration and to police departments in
this state than the estimated $150,000
1002
savings.
And I speak from some experience
with that. I was on a jury in Manhattan a few
years ago -- yes, we had grand juries where
police had to testify, obviously. But in this
case, as is sometimes the case, this case
never should have come to the jury. It was a
five-day trial. In fact, the police
contradicted themselves consistently in court.
And after a five-day trial, it took this jury
15 minutes to find the defendant innocent
because the case was so weak.
If we have that kind of risk -- and
we do. We know we make mistakes. That's why
we have trial by juries in this country.
Since we know we make mistakes, since we know
this is not perfect, taking away that one step
that is so important in a grand jury
proceeding of having police come and testify,
I would argue, will actually result in many
more cases coming to trial that should not
have come to trial in the first place.
So it's both a question of how much
do we value justice in the state of New York,
but also, to do the math more accurately, it
1003
won't be a savings, it will be a cost.
Thank you, Madam President. I vote
no.
ACTING PRESIDENT McGEE: Senator
Connor.
SENATOR CONNOR: Thank you, Madam
President.
Note, for the record, my microphone
still doesn't work and it's now the third
month of session.
ACTING PRESIDENT McGEE: Do you
wish to speak on the bill, or do you wish to
have --
SENATOR CONNOR: I wish to speak
on the bill.
ACTING PRESIDENT McGEE: Senator
Connor, on the bill.
SENATOR CONNOR: I think we've
heard some misconceptions here. I think we've
heard some speakers who don't know the
difference between a grand jury and a petit
jury.
A petit jury tries cases, hears
testimony and cross-examination in public.
And it is as to the trial jury or petit jury
1004
which the constitutional guarantees to
confront one's accusers appertain.
A grand jury meets in secret. The
defendant or target or potential defendant
and/or his or her lawyers have no right to
even be there, much less cross-examine any
witness. There is no cross-examination in a
grand jury.
The DA brings in the witnesses the
DA chooses to bring in. They can even hear
some hearsay in a grand jury. Now, it will
later on not be admissible in a trial, but
they can get an indictment based on -- partly
on hearsay evidence, something you can't do at
a trial. But it's in secret.
They can introduce newspaper
articles in grand juries. And a grand jury
can indict somebody based on a newspaper
article, because the defendant or potential
defendant doesn't know they did this before
the indictment. His or her lawyer aren't
allowed in there. They don't get to hear it.
Indeed, a defendant has a right to appear
before a grand jury if they choose. They
don't have a right to bring their lawyer with
1005
them.
When you read or hear about a
defendant who -- and it's very rare -- who
says -- who waives his rights and requests
appearance before the grand jury, that
defendant is going in there and the only
lawyer that's going to ask that defendant any
questions is the DA. And that defendant isn't
going to have his lawyer with him. He's not
going to have his lawyer with him to make
objections, to instruct him to refuse to
answer the question.
That's what a grand jury is. It's
a relic. It operates in secrecy. Frankly --
and other states have done it; California has
done it -- I would be in favor of abolishing
the grand jury.
A former chief judge of this state
recommended that most strongly and pointed out
what's now a famous saying, that any DA worth
anything can get a grand jury to indict a ham
sandwich.
And it's obvious why that's true.
There's no defense presence there. There's no
cross-examination. There's no confronting the
1006
witness.
So I would -- as we all want to
save money and improve criminal justice, we
should adopt one of the systems those other
states have where we get rid of the grand
jury, where we get rid of the secrecy, the
secret proceedings.
You know, you can only speculate
afterwards: Gee, why did they indict that
person? It was such a flimsy case. Or, in
some cases, why did they let that person walk?
We had one that was quite controversial
recently in Brooklyn.
And I think the public would be
better served if all this testimony, the
preliminary testimony to see if there is
probable cause, sufficient evidence to hold
someone for a full trial, were done in public
at a preliminary hearing. I believe that's
what they do in California. And the DA has to
put his evidence up, and it's in public, and
the defendant gets to hear it, and his or her
lawyer gets to ask some questions of these
police witnesses, other witnesses.
But I think we're now -- some of my
1007
colleagues are rushing to protect this system
as if it protects our sacred rights. I think
the grand jury system as it exists in New York
potentially and in just as many cases probably
tramples on people's rights as much as in some
cases it may uphold them.
And I am suspicious of any
system -- and I warn my colleagues, anybody
who says, Oh, we have to preserve this because
this is -- oh, this is a guardian of our
sacred constitutional rights, I really
question anybody believing that that could be
so, where witnesses appear with only the DA
present in a secret proceeding with no defense
presence and no defense lawyer. So I am not a
great defender of the grand jury.
What does this bill do? This bill
says certain routine evidence, and most of the
stuff a police officer -- unless the police
officer were an actual eyewitness to the
crime. But in most cases, that's not the
case. In most cases, what is the police
officer testifying to? "I got a search
warrant. Somebody else arrested the guy. I
had the search warrant and I'm a detective and
1008
I went to the apartment pursuant to the search
warrant, and we went in, the guy's already
been arrested, and we searched and I found
this gun that's in the plastic bag or this --
these drugs that are in the plastic bag, and I
properly vouchered them and I took them in the
police voucher room and I handed them in
there."
It's what lawyers call chain of
custody testimony. You have to show where you
got the stuff and that in fact, before it got
before the court or grand jury or whatever,
that, you know, it wasn't left sitting around
in a diner, it wasn't handed to a messenger
who did whatever with it.
That's very routine stuff. And I
really don't have a problem with police
officers submitting an affidavit on that stuff
at that stage. Later on, I would have a
problem if they weren't to appear at a trial
and be subjected to cross-examination even
about such routine actions.
And, Madam President, I really
believe that in any case where the police
officer is actually an eyewitness -- "I saw
1009
her shoot him" -- of course the DA is going to
want to produce the police officer, or else
there's going to be no evidence that the crime
was committed or it was committed by that
defendant.
So I don't think we're going way
overboard here. But I think and I would urge
Senator Volker that what we ought to do is we
ought to revisit -- you know, it's been a long
time, long time since this Legislature has
initiated any major reform in any area. Oh,
yeah, we get big changes buried in a big
budget deal that three men in a room hash out
in the middle of the night. But we don't have
hearings about them. We don't actually reform
the law.
And some significant legislation
that we've passed -- for example, bias crimes,
et cetera, et cetera -- are things that were
around forever and the political momentum
built so much that, lo and behold, they
happened. The pressure was unbearable. The
controversy went away because it had been so
acceptable, it had been around so long.
I suggest, Madam President, most
1010
respectfully to Senator Volker and my
colleagues that perhaps this area of grand
jury reform might be something that we should
undertake in a real legislative way, with
hearings, with experts testifying. Let's look
at what other states do, and let's do
something about it.
But to defend the grand jury the
way it is now is a joke. It's not worth
defending. I'm going to vote yes, because to
me what's being done here doesn't make it any
worse than it already is.
ACTING PRESIDENT McGEE: Senator
Volker.
SENATOR VOLKER: May I just say
for a minute -- and I'm not going to deny some
of the things that Senator Connor has said,
except to say that we had hearings years ago
on grand jury reform. We had hearings on
sentencing reform.
In fact, I remember we went across
the state -- and I would also point out that
we had hearings and one of those hearings was
at Senator Paterson's request in Harlem on
child sex abuse.
1011
And you know, we all talk around
here that we blame people for covering up. I
was one of the idiots, if you'll excuse me,
who arrested a mother and father for incest
when I was a cop. I want to tell you
something. Until just a few years ago, you
couldn't get a DA to arrest somebody for child
sex abuse unless it was an outsider or
something of that nature. The media didn't
even want to talk about it. And clergy abuse?
My God, nobody wanted to deal with it.
Society wasn't ready to deal with it, in my
own personal opinion.
You know, I have some problems --
and of course, as you know, the guy that made
that statement about the ham sandwich was
somebody that went to jail. Which, you know,
is -- and it's true.
I mean, I guess the problem,
though, is when you start thinking about this,
how do we change a system that is as old as
our system and make it at least as fair?
We all know some people who have
been indicted. There's a guy here who just
died recently who was indicted by a grand
1012
jury -- in fact, I happen to know all the
details of it -- because a certain person
wanted him indicted to get him out of the
governor's race.
And as my late father said, "No
reasonable grand jury would ever indict
anybody under those circumstances." And after
they were indicted, my father said, "I repeat,
no reasonable grand jury will ever indict
anybody under those circumstances."
And the first hearing, which was
about three months later, it was thrown out.
But it did create a situation --
for me, it was a little personal because I'm
in the Senate today in part because of that,
because that particular person came after me
also. Couldn't find anything to get me on,
but got me out of the Assembly, in many ways.
And I don't usually talk about it, but
everybody is dead now that was involved, so --
but -- except me. Excuse me.
(Laughter.)
SENATOR VOLKER: But you make a
good point. And I just wanted to say that
this is a very interesting -- and the reason
1013
this bill is here, and I -- you know,
sometimes we do, and I happen to agree with
you, we do have a tendency to maybe pass off a
lot of this stuff. It took us how many years
to do sexual assault reform? And we did
hearings on that. The problem was that it was
like five or six years until we were able to
really do anything. And the funny thing is
everybody was saying, well, let's not do this
piecemeal. I've always -- I don't want to do
this stuff piecemeal either.
But the difficulty is the way the
system is, and the -- we have this
interesting -- when we did sentencing reform,
I'll only point this out, we had liberals who
wanted longer sentences, conservatives who
wanted short sentences on some things and the
exact reverse on other things.
And the problem is society right
now is really kind of divided on all this
stuff. And you made a good point about
reading something in the paper. I mean,
it's -- I can't believe any DA would read
something in the paper today -- I mean, he
might well read something like one newspaper
1014
that just committed a crime by announcing
grand jury minutes, announcing stuff that
was -- that's a crime.
Another newspaper in New York City
a year ago printed the picture of one of our
Senators in there on a sealed indictment.
That's a crime. I mean, technically a crime.
And when I challenged the DA, he said, Well,
his staff must have did it. Oh, sure. I
mean, your staff is going to want to put your
boss's picture in -- that doesn't even make a
little bit of sense.
The point I'm making is you do make
a point. And I don't want to go on except to
say that this is really not quite as
significant, unless you're some of the police
that go in to testify and so forth, and then
it's more significant.
But there are many fundamental
things in some of these budgets that we should
really look at more closely. And you're going
to see some bills here that have some of those
tricky little bits in there, because we're
putting them out just to look at them and so
everybody has a chance to say something about
1015
them. I just want you to know that.
ACTING PRESIDENT McGEE: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President, moving from Senator Volker's
admission that he has outlived all of his
enemies --
ACTING PRESIDENT McGEE: Do you
wish to speak --
SENATOR MONTGOMERY: And I'm very
happy that he has. And to --
ACTING PRESIDENT McGEE: Do you
want to speak on the bill, Senator?
SENATOR MONTGOMERY: I'm speaking
on the bill.
ACTING PRESIDENT McGEE: Senator
Montgomery, on the bill.
SENATOR MONTGOMERY: And
listening to my colleague Senator Connor --
and I'm always very interested in how he
explains the law in a way that I can
understand, so I appreciate that.
But I just do want to say that this
bill has a lot to do with the perception of
what happens with police officers and whether
1016
or not they are held to the same standard of
law as every other citizen.
And for some of us who have this
ongoing conflict in our districts and
communities in various parts of the state
where we have situations where police --
there's an action by police that is a criminal
act, and that police officer goes into the
grand jury, and it -- since no one knows what
happens in the grand jury, there is always
this speculation that the police have some
sort of special position and consideration
that other citizens don't have.
So I think what this bill does, the
problem here is that if we now are going to
say that they don't even have to appear in the
grand jury, that they can just submit a
statement, that there will not be an
opportunity even to question the police
officer, not an opportunity to see and observe
what that officer -- how the officer responds
to questions that are raised, then there is
just an added problem with the perception that
we do not hold police officers to the same
standard, especially when there is an incident
1017
where an officer inflicts undue harm on a
citizen.
So I'm going to oppose this. I
agree that maybe we should be talking about
eliminating the grand jury, certainly as
Senator Connor has indicated. I'm not opposed
to his position on that. But I do think, as
long as we have this process, we should
require, especially require that the police
officer who is being charged must appear in
that grand jury and answer any and all
questions him- or herself, rather than having
an added level of secrecy in the process.
So I'm going to be voting no on
this legislation, Madam President.
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Briefly
again on the bill, Madam President.
ACTING PRESIDENT McGEE: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: We have a
lot going on here today, and I just wanted to
try and bring us back into focus on this
legislation.
1018
First of all, I think everyone
commends Senator Volker for revealing the
truth about what's buried in the Governor's
budget bills.
Second of all, I think -- I would
be surprised if there was not a general
consensus that some fundamental reform of the
system by which indictments are issued in this
state is long overdue. That is something that
we should talk about.
And I think, you know, it's easy to
get tired of this process. But I think even
if we held hearings a long time ago, you know,
another round of hearings wouldn't hurt. But
I think getting the issue out in the open and
trying to address it, particularly given
public concerns with some indictments that
have come down recently or indictments that
did not issue recently, I think that would be
appropriate.
But this bill, very simply, to the
extent we're concerned about the weaknesses of
the grand jury system, to the extent we're
concerned about the need to reform it to
provide for a fuller and fairer opportunity
1019
for a hearing, there's no argument that this
bill helps. This bill takes a system that is
bad and maybe it makes it only a little worse,
but it makes it worse.
What goes on in a grand jury -- and
Senator Connor has clarified the fact that the
defense lawyer is not present, there's no
cross-examination. But the grand jurors get a
chance to look the witness in the eye and
grand jurors are allowed to ask questions.
And I've represented quite a few people who
have been witnesses in grand juries -- and,
unfortunately, people who have come out of
grand juries on the wrong side of the vote --
and grand jurors do sometimes ask questions.
The key here is that we have the
most fundamental accuser, in many cases -- and
this bill is not restricted to any particular
testimony by police officers. It's perfectly
possible, under this bill, that the police
officer who made the arrest would testify by
affidavit instead of in person. The
fundamental accuser should have to look the
grand jurors in the eyes and be subject to
their questions.
1020
And if you say, well, why wouldn't
the DA want the police officer who made the
arrest to show up there, the obvious answer is
you've got a police officer who's such a bad
witness and is so incredible that you don't
want him to have to be in front of the grand
jury to answer a question.
So I think that this is a system
that, as several people have pointed out, is a
very badly flawed system. I think Senator
Connor is absolutely right that even though
we've made some forays into this in the past,
it's time to revisit the overall system.
But this bill would take an
admittedly bad system and further weaken one
fundamental mechanism by which the accused has
the ability to see that the grand jury, when
it takes its vote, at least really has every
opportunity to assess the credibility of the
accuser and ask questions if need be.
So I am going to vote no for this.
And I look forward to more of these
budget-busting bills from Senator Volker. And
I hope that we also will take up the
fundamental issues that have been raised here
1021
today down the road.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect on the first of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Senator
DeFrancisco, to explain his vote.
SENATOR DeFRANCISCO: I'm going
to vote no.
And since we're having a lesson on
grand juries today, I thought I might mention
I did vote against this in committee.
And a defense attorney can be
present during the defendant's testimony.
That's the only time. But he's got to keep
quiet like a potted plant. So there's no
actual cross-examination.
However, as Senator Schneiderman
had mentioned, grand juries -- having been an
assistant DA for a very short period of
1022
time -- have the opportunity and do in fact
ask questions in controversial cases.
And the bill, as Senator
Schneiderman mentioned, does not in any way
limit the type of testimony that can be given
by affidavit. Eyewitness testimony can be
given by affidavit. And that's the most
crucial testimony. And you've got to have an
opportunity to see that person presently.
I'm not so sure you can indict
somebody by a newspaper article, because a
judge always has a right to review the grand
jury minutes and to determine whether there's
legal sufficiency.
But be that as it may, business
records make sense. Live testimony of a
police officer who may be a witness to a crime
certainly is worth $150,000.
ACTING PRESIDENT McGEE: Senator
Parker.
SENATOR PARKER: Madam President,
to explain my vote.
ACTING PRESIDENT McGEE: Senator
Parker, to explain his vote.
SENATOR PARKER: I'm voting no on
1023
this bill for many of the reasons that many of
my colleagues have mentioned. And I too
believe that police officers ought to be
present during grand jury proceedings.
But I also wanted to applaud
Senator Volker's attempt to really do two
things, in terms of reforming the criminal
justice system but also finding important ways
to save money for this budget. As you know,
that's really critically important.
And while we're on that subject, we
attempted here to save $150,000 dollars. If
we reform the Rockefeller Drug Laws, we have
an opportunity to do the same kind of thing,
Senator Volker. And a really meaningful
change would probably save us about
$130 million, maybe, the first year, roughly.
Maybe more.
And so I really urge my colleagues
to come forward with a meaningful change in
the Rockefeller Drug Laws. My colleague Tom
Duane happens to have a bill that might do
that. I would urge us to take up that bill on
our first opportunity. Monday, Tuesday would
be fine.
1024
Thank you.
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 384 are
Senators Andrews, Breslin, DeFrancisco, Duane,
Hassell-Thompson, L. Krueger, Montgomery,
Parker, Paterson, and A. Smith. Ayes, 52.
Nays, 10.
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Was I
recorded in the negative?
THE SECRETARY: Also Senator
Schneiderman. Ayes, 51. Nays, 11.
ACTING PRESIDENT McGEE: You are
recorded in the negative, Senator
Schneiderman.
The bill is passed.
Senator Kuhl, that completes the
controversial reading of the calendar.
SENATOR KUHL: Thank you, Madam
President. Is there any housekeeping at the
desk?
ACTING PRESIDENT McGEE: Yes,
1025
there is.
SENATOR KUHL: May we take care
of that right now, please.
ACTING PRESIDENT McGEE: Senator
Farley.
SENATOR FARLEY: Thank you, Madam
President.
On behalf of Senator Maltese, on
page 30 I offer the following amendments to
Calendar Number 439, Senate Print 155A, and I
ask that that bill retain its place on the
Third Reading Calendar.
ACTING PRESIDENT McGEE: The
amendments are received, and the bill will
retain its place on Third Reading Calendar.
SENATOR FARLEY: On behalf of a
legend in the Senate, Senator Marchi, on
page 7 I offer the following amendments to
Calendar Number 104, Senate Print 1970, and I
ask that that bill retain its place.
ACTING PRESIDENT McGEE: The
amendments are received, and the bill will
retain its place on Third Reading Calendar.
Senator Kuhl.
SENATOR KUHL: Yes, Madam
1026
President. There being no further business to
come before the house, I move that we adjourn
until Monday, March 15th, at 3:00 p.m.,
intervening days to be legislative days.
ACTING PRESIDENT McGEE: On
motion, the Senate stands adjourned until
Monday, March 15th, at 3:00 p.m., intervening
days being legislative days.
(Whereupon, at 12:27 p.m., the
Senate adjourned.)