Regular Session - March 16, 2004
1052
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 16, 2004
3:11 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we bow our heads in a moment of
silence, please.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, March 15, the Senate met pursuant to
adjournment. The Journal of Saturday,
March 13, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
1054
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time adopt the Resolution
Calendar, with the exception of Resolution
3926.
THE PRESIDENT: All in favor of
adopting the Resolution Calendar, with the
exception of Resolution 3926, please signify
by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is so adopted.
Senator Bruno.
SENATOR BRUNO: And, Madam
President, can we at this time take up the
privileged resolution numbered 3926, by
Senator DeFrancisco, have it read in its
1055
entirety, and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
DeFrancisco, Legislative Resolution Number
3926, congratulating Fred Hale of
Baldwinsville, New York, upon being recognized
as the oldest living man in the world.
"WHEREAS, It is the intent of this
Legislative Body to publicly recognize those
among us who have attained such a remarkable
age that they alone are then recognized for
their longevity; and
"WHEREAS, This Legislative Body is
justly proud to honor one of our citizens who
has attained the distinction of being the
world's oldest man; and
"WHEREAS, Fred Hale, of
Baldwinsville, New York, has been so named.
Fred Hale was born on December 12, 1890, in
New Sharon, Maine, and therefore today is 113
years of age; and
"WHEREAS, Heretofore, Fred Hale had
been identified as the world's second oldest
living man. He became the oldest living man
1056
on March 5, 2004, succeeding Joan Riudavets
Moll, of Spain. Moll had been recognized by
the Guinness Book of Records as the world's
oldest man until his passing; and
"WHEREAS, Concurrent with attaining
his status as the world's oldest living man,
Fred Hale became the ninth oldest person in
the world, taking his place behind eight women
his senior; and
"WHEREAS, Today, Fred Hale is
believed to be the 81st on the list of all
known individuals with the greatest longevity
throughout history; and
"WHEREAS, To help underscore this
remarkable achievement, it shall be noted that
among the highlights of Fred Hale's birth year
of 1890 were: the creation of the Oklahoma
Territory; the admission of Idaho and Wyoming
to the United States of America as the 43rd
and 44th states; the designation and opening
of Ellis Island as an immigration station; the
stage premiere of 'Beau Brummel' in New York
City; Cy Young's first victory as he pitched
his first baseball game; the occasion of the
first professional baseball game, which was
1057
played at the Polo Grounds in New York City
and where the New York Metropolitans defeated
the Washington Nationals; and the Census
Bureau estimated the population of the United
States to have grown to almost 63 million
people; and
"WHEREAS, This distinguished man
has witnessed a great deal of history during
an exciting time for our nation. His years
coincidence with a time span that includes the
introduction of the first gasoline-powered
engine in 1893, the Spanish-American War, the
turn of not one but two centuries, two world
wars, and technological advancements too
numerous to mention but which include manned
space travel, two man-made rovers on the
planet Mars, the dawning of the computer era,
and countless advances in science and
technology; and
"WHEREAS, During his working
lifetime, Fred Hale was a railroad postal
clerk for 50 years, a position from which he
retired; and
"WHEREAS, Following his formal
retirement, Fred Hale was employed by his
1058
daughter at Lord's Lobster Pound, where he
shelled lobsters and steamed clams; and
"WHEREAS, This remarkable man
traveled Japan at age 95, was a tourist in
Germany at age 96, and celebrated his
centenarian year, in part, by taking a deer
while hunting in Kentucky; and
"WHEREAS, Today, Fred Hale resides
at the Syracuse Home Association in
Baldwinsville. Each day his son Fred, Jr.,
who is a mere 82 years of age, stops by to
join his father for lunch. Fred, Jr., is one
of five children who were all born to Fred and
the late Flora Mooers Hale; and
"WHEREAS, Today, Fred Hale is the
patriarch of a family that includes nine
grandchildren, nine great-grandchildren, and
11 great-great-grandchildren; now, therefore,
be it
"RESOLVED, That this Legislative
Body pause in its deliberations to honor Fred
Hale, an exceptional individual who has lived
in all or parts of three centuries, has
enjoyed a full life and continues to do so,
and who is an inspiration to others; and be it
1059
further
"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to Fred Hale, Baldwinsville, New York."
THE PRESIDENT: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Thank you,
Madam President.
It's truly an honor for me to stand
up for a resident of the 50th Senate District.
I know we do many remarkable things in the
50th Senate District; we bring many
individuals before this body who have done
remarkable things. But I don't think we've
heard anything as amazing as this resolution
about Fred Hale, 113 years old. Absolutely
amazing.
In fact, due to the advances in
technology, while this is being transmitted
live over the Internet, Mr. Hale is in
Baldwinsville watching this program right now,
and we're honoring him on his 113th birthday.
What's amazing is when you look,
it's not only the longevity but also the fact
of the things that he's done over his years.
1060
And to think that he's a tourist at age 95 and
96, and he actually downed a deer at age 100,
while hunting, is truly an inspiration to
everybody as to how vital an individual can be
in their senior years.
And I've been told that at age 103,
he was actually on the roof of a building
shovelling snow off the roof. I wouldn't
advise that for anybody half his age. But in
any event, it shows the vitality of the man.
So I'm very pleased and proud to be
here on this historic moment to honor Fred
Hale, who's being honored as the oldest man in
the world. And also he's 81st-oldest of all
the oldest men in history, the history of the
world, which is also pretty remarkable.
So we wish Mr. Hale many, many more
years, hopefully good years of good health.
And we honor you. And we hope you are
watching us honor you today back in
Baldwinsville.
Thank you.
THE PRESIDENT: The question is
on the resolution. All in favor please
signify by saying aye.
1061
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
(Standing ovation.)
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time ask for an immediate
meeting of the Rules Committee in the Majority
Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Rules Committee in
the Majority Conference Room.
Senator Bruno.
SENATOR BRUNO: Madam President,
I believe I have a privileged resolution at
the desk. I would ask at this time that it be
read in its entirety and move for its
immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator Bruno,
Legislative Resolution Number 3927,
commemorating Good Joes Day, 2004.
1062
"WHEREAS, St. Joseph is everyone's
patron saint, not just the patron saint of
those who are fortunate to bear his name; and
"WHEREAS, The New York State
Legislature is appreciative of the vital
contributions of those good members known as
Joseph; and
"WHEREAS, the Society of Good Joes
is celebrating its 46th year in memory of the
late Joseph Addonizio, and its members have
banded together under a common name in the
spirit of camaraderie and good fellowship; and
"WHEREAS, Tradition holds that
St. Joseph is the patron saint of the working
person, of all those who labor with the
dignity that only true humility imparts; and
"WHEREAS, on St. Joseph's Day in
March, the swallows return to Capistrano,
heralding the conclusion of a long, cold
winter and the advent of a new spring; now,
therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations and recognize
this great day, Friday, March 19, 2004, in
commemoration and deliberation of all Good
1063
Joes in the State of New York, to be
celebrated on Tuesday, March 16, 2004, in
honor of all Good Joes of this Empire State."
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Madam President,
thank you.
And I simply want to recognize all
of the Good Joes in the chamber and in the
world -- and the Josephines are also
included -- because, as we just heard, there's
a long history. And Senator Velella and I
were just remarking in that 46 years have
passed since this had been celebrated. And it
truly just seems like yesterday.
But when you think about the name
Joe, there's something very special about it.
Like Joe Robach. Where is Senator Joe Robach?
Well, it's not very special at the moment.
(Laughter.)
SENATOR BRUNO: But St. Joseph,
the patron saint, hardworking, diligent,
looking after a family, all the right
messages.
And there are so many good Joe --
you know, cuppa Joe. What do you know, Joe?
1064
G.I. Joe. Everywhere you go, there's
something that relates to Joe in a very
positive way.
So I welcome all of you here, and
in memory of Joe Addonizio, who had the
foresight to recognize that he had a very
special name. And I can remember, being older
than most of you, Joe Louis. And then, later,
Joe Namath. And now Joe Torre. Some great
Joes out there.
So when I say that you are all
welcome as a Good Joe today, I think, Madam
President, this will probably be one of most
productive sessions we've had so far this
year.
Thank you very much.
(Laughter; applause.)
THE PRESIDENT: All in favor of
the resolution please signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed?
(Response of "No.")
(Laughter.)
SENATOR BRUNO: Can we open up
this resolution to all the Good Joes, and the
1065
previous resolution for Fred Hale on his 113th
year celebration -- who is also contemplating
changing his name, by the way, to Fred Joe
Hale at this stage.
(Laughter.)
SENATOR BRUNO: So anyone that
would not want to be on this resolution,
either one, would you please let the desk
know.
And thank you, Madam President.
THE PRESIDENT: Anyone please so
notify the desk if you do not wish to be on
this resolution or Senator DeFrancisco's
previous resolution that he spoke on.
The resolution is adopted.
Senator Bruno.
SENATOR BRUNO: And, Madam
President, I believe that there is another
privileged resolution, by Senator Fuschillo.
And it had been previously adopted, but I
would like to at this time ask that it be read
in its entirety and we move again for its
passage.
THE PRESIDENT: The Secretary
will read.
1066
THE SECRETARY: By Senator
Fuschillo, Legislative Resolution Number 2316,
honoring Marie Murray Mango upon the occasion
of being crowned Ms. Senior New York State.
"WHEREAS, Senior citizens bring a
wealth of experience and knowledge to the
increasingly active roles they play in today's
society. Their past contributions and future
participation are a vital part of, and
valuable asset to, the fabric of community
life and activity; and
"WHEREAS, This Legislative Body is
justly proud to honor Marie Murray Mango upon
the occasion of being crowned Ms. Senior New
York State at Suffolk Community College; and
"WHEREAS, A resident of Massapequa
Park, New York, for 36 years, Marie Murray
Mango is married to Jim Mango, and a mother of
three and a grandmother of one; and
"WHEREAS, Marie Murray Mango is a
member of Ms. Senior America, devoted to women
who have reached their age of 'elegance,'
honoring their dignity and maturity; and
"WHEREAS, In addition, Marie Murray
Mango is a volunteer at local hospitals and a
1067
featured vocalist at churches, nursing homes,
civic events, and musical variety shows all
over Long Island; and
"WHEREAS, Marie Murray Mango's
personal philosophy is to inspire women of all
ages to have a positive attitude, reach out to
the community, and 'remember, you're not
getting older, you're getting better!'; and
"WHEREAS, Marie Murray Mango, a
very active and industrious woman, has
inspired and enriched the lives of her family
and friends through her love and respect for
others, generously sharing the wisdom gained
over years of experiencing life to its
fullest; and
"WHEREAS, It is the intent of this
Legislative Body to publicly recognize and
commend those who have witnessed and
contributed to the developments and
achievements of our nation, state, and
communities over the course of their
noteworthy lives; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to honor Marie
Murray Mango upon the occasion of being
1068
crowned Ms. Senior New York State, and be it
further
"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to Marie Murray Mango."
THE PRESIDENT: Senator
Fuschillo.
SENATOR FUSCHILLO: Thank you,
Madam President.
I am honored to rise and talk to my
colleagues a little bit about the Ms. Senior
America Pageant. The Ms. Senior America
Pageant is the world's first and foremost
pageant to recognize and give honor to women
who have reached the age of elegance. It is a
search for the gracious lady who best
exemplifies the dignity, maturity, and inner
beauty of all seniors.
The Ms. Senior America Pageant
philosophy is based upon the belief that
seniors are the foundation of America and our
most valuable treasure. It is upon their
knowledge, experience, and resources that
younger generations have the opportunity to
build a better society.
1069
Madam President, Ms. Senior New
York America had the honor of a visit with the
Majority Leader of the Senate, Senator Bruno;
she had the honor of meeting you personally in
your chambers; she toured the Capitol of the
state and said to me it was a wonderful
experience.
And it is my honor to present to my
colleagues and all those in attendance Ms. New
York Senior America, Marie -- you can stand
up -- Murray Mango.
(Applause.)
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Can I just add my
words to congratulate Marie, but especially to
congratulate Senator Fuschillo to be so
fortunate as to have someone like Marie in his
Senate district.
And she is a very distinguished
lady, a very elegant lady, a worthy --
certainly, we are -- we really appreciate the
fact that you would be representative of so
many good things that take place here in New
York State.
And when Marie saw this chamber,
1070
she said it's beautiful enough to live in.
Well, we live here sometimes, Marie, longer
than we want.
And you are welcome, with Senator
Fuschillo, to visit as many times as you like.
And we appreciate the fact that you're
bringing him along and making him look so
good. Thank you.
(Laughter.)
MS. MANGO: Thank you. Thank
you.
THE PRESIDENT: All in favor of
the resolution please signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
duly adopted.
Congratulations. Continued best
wishes. And we want your list of vitamins
before you leave.
(Laughter.)
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Madam President,
could we at this time recognize Senator
1071
Fuschillo for a motion.
THE PRESIDENT: Senator
Fuschillo.
SENATOR FUSCHILLO: I have to
gather my breath after that, Madam President.
On behalf of Senator LaValle, I
wish to call up Senate Print Number 924C,
recalled from the Assembly, which is now at
the desk.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
23, by Senator LaValle, Senate Print 924C, an
act to amend the Highway Law.
THE PRESIDENT: Senator
Fuschillo.
SENATOR FUSCHILLO: Madam
President, I now move to reconsider the vote
by which the bill was passed.
THE PRESIDENT: The Secretary
will call the roll upon reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
SENATOR FUSCHILLO: I now offer
the following amendments.
1072
THE PRESIDENT: The amendments
are received.
Senator Bruno.
SENATOR BRUNO: Madam President,
are there any substitutions at the desk?
THE PRESIDENT: Yes, Senator,
there are.
SENATOR BRUNO: Can we make them
at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 4,
Senator DeFrancisco moves to discharge, from
the Committee on Investigations and Government
Operations, Assembly Bill Number 1937A and
substitute it for the identical Senate Bill
Number 1144A, Third Reading Calendar 1.
THE PRESIDENT: Substitution
ordered.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we return to reports of standing
committees.
I believe there are some reports at
the desk. I ask that they be read.
1073
THE PRESIDENT: Reports of
standing committees.
The Secretary will read.
THE SECRETARY: Senator Larkin,
from the Committee on Racing, Gaming and
Wagering, reports:
Senate Print 1935, by Senator
Larkin, an act to amend the General Municipal
Law;
2085A, by Senator Larkin, an act to
amend the Racing, Pari-Mutuel Wagering and
Breeding Law;
2088, by Senator Larkin, an act to
amend the Racing, Pari-Mutuel Wagering and
Breeding Law;
2603A, by Senator Maziarz, an act
to amend the General Municipal Law;
5942, by Senator Alesi, an act to
amend the Tax Law;
And Senate Print 6035, by Senator
Nozzolio an act to amend the Racing,
Pari-Mutuel Wagering and Breeding Law.
Senator McGee, from the Committee
on Alcoholism and Drug Abuse, reports:
Senate Print 42A, by Senator Alesi,
1074
an act to amend the Vehicle and Traffic Law;
433, by Senator Nozzolio, an act to
amend the Vehicle and Traffic Law;
953A, by Senator Larkin, an act to
amend the Education Law;
1028, by Senator Fuschillo, an act
to amend the Vehicle and Traffic Law;
2576, by Senator Larkin, an act to
amend the Alcoholic Beverage Control Law;
2776B, by Senator McGee, an act to
amend the Vehicle and Traffic Law;
2858, by Senator McGee, an act to
amend the Alcoholic Beverage Control Law;
2861, by Senator McGee, an act to
amend the Vehicle and Traffic Law;
2866, by Senator McGee, an act to
amend the Alcoholic Beverage Control Law;
3772, by Senator Maziarz, an act to
amend the Vehicle and Traffic Law;
4733, by Senator McGee, an act to
amend the Alcoholic Beverage Control Law;
And Senate Print 4988, by Senator
Fuschillo, an act to amend the Vehicle and
Traffic Law.
Senator Velella, from the Committee
1075
on Labor reports:
Senate Print 1779, by Senator
Fuschillo, an act to amend the Labor Law;
5403, by Senator Flanagan, an act
to amend the Workers' Compensation Law;
6273, by Senator Velella, an act to
amend the Labor Law;
6338, by Senator Velella, an act
directing the Commissioner of Labor;
And Senate Print 6375, by Senator
Maltese, an act to amend Labor Law.
Senator Volker, from the Committee
on Codes, reports:
Senate Print 37, by Senator
Padavan, an act to amend the Penal Law;
215, by Senator Saland, an act to
amend the Penal Law;
1109, by Senator Volker, an act to
amend the Criminal Procedure Law;
1384, by Senator Volker, an act to
amend the Criminal Procedure Law;
1441, by Senator Volker, an act to
amend the Penal Law;
1504, by Senator Golden, an act to
amend the Penal Law;
1076
2773A, by Senator Volker, an act to
amend the Criminal Procedure Law;
3134, by Senator Velella, an act to
amend the Penal Law;
3423, by Senator Wright, an act to
amend the Penal Law;
And Senate Print 3582, by Senator
Flanagan, an act to amend the Penal Law.
Senator Alesi, from the Committee
on Commerce, Economic Development and Small
Business, reports:
Senate Print 2806A, by Senator
McGee, an act to amend the Executive Law;
3786, by Senator Kuhl, an act to
amend the Alcoholic Beverage Control Law;
And Senate Print 5940, by Senator
Saland, an act to amend the Alcoholic Beverage
Control Law.
Senator Balboni, from the Committee
on Veterans, Homeland Security and Military
Affairs, reports:
Senate Print 578, by Senator
Johnson, an act to amend the Public
Authorities Law;
1967, by Senator Larkin, an act to
1077
amend the Vehicle and Traffic Law;
And Senate Print 4294, by Senator
Robach, an act to amend the Public Officers
Law.
Senator Marcellino, from the
Committee on Environmental Conservation,
reports:
Senate Print 930A, by Senator
Maziarz, an act to amend the Environmental
Conservation Law;
1662A, by Senator LaValle, an act
to amend the Environmental Conservation Law;
2428A, by Senator Wright, an act to
amend the Environmental Conservation Law;
4524A, by Senator Marcellino, an
act to amend the Environmental Conservation
Law;
4779, by Senator Farley, an act to
amend the Environmental Conservation Law;
5861, by Senator Marcellino, an act
to amend the Environmental Conservation Law;
And Senate Print 6160, by Senator
Marchi, an act to amend Chapter 84 of the Laws
of 2003.
Senator Meier, from the Committee
1078
on Social Services, reports:
Senate Print 6124, by Senator
Little, an act to amend the Social Services
Law;
6357, by Senator Meier, an act to
amend Chapter 906 of the Laws of 1984;
And Senate Print 6358, by Senator
Meier, an act to amend Chapter 534 of the Laws
of 2000.
All bills ordered direct to third
reading.
ACTING PRESIDENT KUHL: Without
objection, all bills are ordered directly to
third reading.
Senator Morahan.
SENATOR MORAHAN: Thank you, Mr.
President. Could we please have the reading
of the noncontroversial calendar -- the
noncontroversial reading of the calendar.
ACTING PRESIDENT KUHL: We'll
have the noncontroversial reading of the
calendar.
The Secretary will read.
THE SECRETARY: Calendar Number
87, by Senator DeFrancisco, Senate Print
1079
5711A, an act to amend the Social Services
Law, in relation to protection of children.
ACTING PRESIDENT KUHL: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT KUHL: The
Secretary will call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
137, by Senator Nozzolio, Senate Print 432, an
act to amend the Penal Law, in relation to
making it a crime to steal or possess stolen
anhydrous ammonia.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 3. This
act shall take effect on the first of
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
1080
THE SECRETARY: Ayes, 57.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
223, by Senator Leibell, Senate Print 1653, an
act to amend the Penal Law, in relation to
unlawful defilement of a water supply.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
225, by Senator Golden, Senate Print --
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT KUHL: Lay the
bill aside.
THE SECRETARY: Calendar Number
1081
277, by Senator Rath, Senate Print 1711 --
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT KUHL: Lay the
bill aside.
THE SECRETARY: Calendar Number
279, by Senator Balboni, Senate Print 4744, an
act to amend the Executive Law, in relation to
requiring the Disaster Preparedness
Commission.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
280, by Senator Balboni, Senate Print 4749, an
act to amend the Executive Law, in relation to
local disaster preparedness plans.
ACTING PRESIDENT KUHL: The
1082
Secretary will read the last section.
THE SECRETARY: Section 3. This
act shall take effect on the first of June.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
282, by Senator Balboni, Senate Print 5439A,
an act to amend Chapter 15 of the Laws of 1998
relating to authorizing the extension.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
311, by Senator Spano, Senate Print 4226, an
1083
act to amend the Executive Law, in relation to
authorizing the Commissioner of General
Services.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act --
SENATOR MONTGOMERY: Lay it
aside.
ACTING PRESIDENT KUHL: Lay the
bill aside.
THE SECRETARY: Calendar Number
365, by Senator Fuschillo, Senate Print 5088,
an act --
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT KUHL: Lay the
bill aside.
Senator Morahan, that completes the
noncontroversial reading of the calendar.
SENATOR MORAHAN: Thank you, Mr.
President.
Would you recognize Senator
Maziarz.
ACTING PRESIDENT KUHL: The chair
1084
recognizes Senator Maziarz.
SENATOR MAZIARZ: Thank you very
much, Mr. President.
I'd like unanimous consent to be
recorded in the negative on Calendar Number
87, Senate Bill 5711A, please.
ACTING PRESIDENT KUHL: Without
objection, hearing no objection, Senator
Maziarz will be recorded in the negative on
Calendar Number 87, Senate Print 5711A.
Senator Morahan.
SENATOR MORAHAN: Thank you, Mr.
President. I too would like to be recorded in
the negative on Calendar Number 87, if there's
no objections.
ACTING PRESIDENT KUHL: Without
objection, hearing no objection, Senator
Morahan will be recorded in the negative on
Calendar Number 87, Senate Print 5711A.
Senator Morahan.
SENATOR MORAHAN: Can we return
to reports of standing committees. I believe
there's a report from the Rules Committee at
the desk.
ACTING PRESIDENT KUHL: There is
1085
a report of the Rules Committee at the desk.
We'll return to the order of
reports of standing committees. I'll ask the
Secretary to read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bills:
Senate Print 3A, by Senator
Balboni, an act to amend the Criminal
Procedure Law and others;
180, by Senator Hoffmann, an act to
amend the Penal Law;
1712A, by Senator Rath, an act to
amend the Penal Law;
4434, by Senator Fuschillo, an act
to amend the Penal Law;
4435, by Senator Fuschillo, an act
to amend the Penal Law;
4436, by Senator Fuschillo, an act
to amend the Penal Law;
4584, by Senator Fuschillo, an act
to amend the Penal Law;
5031, by Senator Balboni, an act to
amend the Executive Law;
5561, by Senator Skelos, an act to
1086
amend the Penal Law;
And Senate Print 5749A, by Senator
Balboni, an act to amend the Penal Law.
All bills ordered direct to third
reading.
ACTING PRESIDENT KUHL: Senator
Morahan.
SENATOR MORAHAN: Move to accept
the report of the Rules Committee, Mr.
President.
ACTING PRESIDENT KUHL: The
motion is to accept the report of Rules
Committee. All those in favor signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT KUHL: Opposed,
nay.
(No response.)
ACTING PRESIDENT KUHL: The
motion is granted. The bills are ordered
directly to third reading.
Senator Morahan.
SENATOR MORAHAN: If we could
have the noncontroversial reading of the Rules
report, Mr. President.
1087
ACTING PRESIDENT KUHL: We will
have the noncontroversial reading of the Rules
report, which for the members is on
Supplemental Calendar 19A on your desks.
The Secretary will read.
THE SECRETARY: Calendar Number
498, by Senator Balboni, Senate Print 3A --
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT KUHL: Lay the
bill aside at the request of the Acting
Minority Leader.
THE SECRETARY: Calendar Number
499, by Senator Hoffmann, Senate Print 180, an
act to amend the Penal Law, in relation to
creating the crime of agri-bioterrorism.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Senator
Montgomery, why do you rise?
1088
SENATOR MONTGOMERY: Mr.
President, I rise to explain my vote.
ACTING PRESIDENT KUHL: Senator
Montgomery, to explain her vote.
SENATOR MONTGOMERY: Yes, I
recognize that I have voted in the past on
this bioterrorism legislation, but -- and this
is agri-terrorism. But as I look at the
legislation, I am going to change my vote from
a no to a yes.
So I'm voting yes on this
legislation.
ACTING PRESIDENT KUHL: Senator
Montgomery will be recorded in the
affirmative.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT KUHL: The bill
is passed.
The Secretary will continue to read
the noncontroversial reading of Supplemental
Calendar 19A.
THE SECRETARY: Calendar Number
500, by Senator Rath, Senate Print 1712A, an
1089
act to amend the Penal Law, in relation to
civil liability.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the same date as a
chapter of the Laws of 2004.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negatives and announce the results.
THE SECRETARY: Ayes, 57. Nays,
2. Senators Duane and Montgomery recorded in
the negative.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
502, by Senator Fuschillo, Senate Print 4434,
an act to amend the Penal Law, in relation to
criminal impersonation.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
1090
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
503, by Senator Fuschillo, Senate Print 4435,
an act to amend the Penal Law, in relation to
including an official law enforcement.
ACTING PRESIDENT KUHL: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
504, by Senator Fuschillo, Senate Print 4436,
an act to amend the Penal Law, in relation to
1091
identification.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negatives and announce the results.
THE SECRETARY: Ayes, 58. Nays,
1. Senator Montgomery recorded in the
negative.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
505, by Senator Fuschillo, Senate Print 4584,
an act to amend the Penal Law, in relation to
false personation.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 4. This
act shall take effect on the first of
November.
1092
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negatives and announce the results.
THE SECRETARY: Ayes, 57. Nays,
2. Senators Hassell-Thompson and Montgomery
recorded in the negative.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
506, by Senator Balboni, Senate Print 5031, an
act to amend the Executive Law, in relation to
the New York State Office of Public Security.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
1093
507, by Senator Skelos, Senate Print 5561, an
act to amend the Penal Law, in relation to the
possession of disguised knives.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 3. This
act shall take effect on the first of
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negatives and announce the results.
THE SECRETARY: Ayes, 58. Nays,
2. Senators Duane and Montgomery recorded in
the negative.
ACTING PRESIDENT KUHL: The bill
is passed.
THE SECRETARY: Calendar Number
508, by Senator Balboni, Senate Print 5749A,
an act to amend the Penal Law, in relation to
establishing definitions pertaining to
offenses involving computers.
SENATOR LIZ KRUEGER: Lay it
aside.
1094
ACTING PRESIDENT KUHL: Lay the
bill aside.
Senator Morahan, that completes the
noncontroversial reading of Supplemental
Calendar 19A.
SENATOR MORAHAN: Thank you, Mr.
President. Could we have the controversial
reading of the original active list.
ACTING PRESIDENT KUHL: The
Secretary will read the controversial reading
of the original calendar, beginning with
Calendar Number 225.
THE SECRETARY: Calendar Number
225, by Senator Golden, Senate Print 3962, an
act to amend the Penal Law, in relation to
criminal use of public records.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT KUHL: Senator
Golden, an explanation by the Acting Minority
Leader has been requested.
SENATOR GOLDEN: Thank you, Mr.
President.
This is a bill that was introduced
for Section 1 to amend the Penal Law to
1095
provide for the use of public records for the
purpose of committing a crime, which shall be
an E felony.
This was created for the Freedom of
Information Act, the FOIL, which is important
for people that need to be able to access to
find out what's going on in government and
have a right to be able to use FOIL, the
Freedom of Information Act, to get information
that they may need to find out about a
government enterprise or something that may
have been done against them and they'd like to
take it to a lawsuit. Or to find out if it
was done correctly.
Unfortunately, we find people
committing crimes by taking FOIL, the Freedom
of Information Act -- we've seen it with two
correction officers in Long Island, where
their information was taken by the Freedom of
Information Act and their credit was raided
and felonies were committed, and grand
larceny, against them by inmates that they had
supervised.
We see it today, if you look at the
Google.com, you will see that using the --
1096
"Use public records for gain in Google
search," 1,690,000 hits.
That's the type of issues that we
have facing us today, people using the Freedom
of Information Act to go after police
officers, correction officers, probation
officers, and to commit crimes against them.
And we believe that this law will
hopefully put an end to that.
ACTING PRESIDENT KUHL: Senator
Schneiderman, why do you rise?
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor would yield
for a question few questions.
ACTING PRESIDENT KUHL: Senator
Golden, do you yield to a question from
Senator Schneiderman?
SENATOR GOLDEN: I do.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR SCHNEIDERMAN: Thank you.
The definition of "record" for the
purpose of this bill limits -- is limited to
FOILed records; is that not correct?
SENATOR GOLDEN: Correct.
1097
SENATOR SCHNEIDERMAN: Through
you, Mr. President, is there anything in this
bill that requires that the person who uses
the public record and is subject to this
criminal penalty be the person who actually
FOILed the record or obtained it through the
Freedom of Information Law?
SENATOR GOLDEN: No, there isn't.
SENATOR SCHNEIDERMAN: Is there
any requirement anywhere in this bill that the
person who is guilty of criminal use of public
records knows that this record was obtained
through the Freedom of Information Law?
SENATOR GOLDEN: No. And it
wouldn't matter. If they were going to commit
a crime with it, they -- one would intend that
the person committing that crime would be
charged with this crime and therefore would
eliminate that process.
SENATOR SCHNEIDERMAN: And with
regard to --
ACTING PRESIDENT KUHL: Senator
Schneiderman, are you asking Senator Golden to
yield?
SENATOR SCHNEIDERMAN: Yes, Mr.
1098
President. Through you, if the sponsor would
yield.
ACTING PRESIDENT KUHL: Senator
Golden, do you continue to yield to a question
from Senator Schneiderman?
SENATOR GOLDEN: I do.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR SCHNEIDERMAN: Clearly,
because subsection -- Section 1A contemplates
the fact that this law only comes into play if
this record, which is necessary for creating
this additional criminal act of crime of the
use of public records, this -- it requires
that the record be used in the furtherance or
commission of a crime.
But we're creating here a second
crime, the use of public records; is that not
correct?
SENATOR GOLDEN: Yes, sir.
SENATOR SCHNEIDERMAN: And
through you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Golden, do you continue to yield?
SENATOR GOLDEN: I do.
1099
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR SCHNEIDERMAN: So my
question is, we know when someone is
committing a crime or acting in furtherance of
the commission of a crime. But is there any
requirement in this bill that the person who
is committing the underlying crime have any
knowledge whatsoever where the record was
obtained, that it is a public record, that it
was improperly obtained, that it was obtained
through FOIL?
SENATOR GOLDEN: No. But again,
if the individual took a document and used
that document to create a crime or commit a
crime, that person would be found guilty under
this legislation.
SENATOR SCHNEIDERMAN: Thank you.
I'd like to thank the sponsor for his answers.
Mr. President, on the bill.
ACTING PRESIDENT KUHL: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I think
that the -- there are several problems with
this legislation. But what we just, I think,
1100
brought out in our colloquy is the fact that
under this bill, one person could use FOIL to
obtain a record and someone else, having no
idea that it was FOILed or where the record
came from, could use it and be subject to this
additional penalty.
The purpose of the law, I gather,
is supposedly to try and prevent people from
improperly using public records. The
difficulty is it provides absolutely no
boundaries.
It has no scienter requirement. It
has no requirement of knowledge. It doesn't
provide that if you go and FOIL and get some
information and then misuse it, you're
guilty -- it says anyone who uses it, even if
they don't know where it came from. This is
as overly broad a statute as you could
possibly draft.
And I also respectfully submit that
the problem -- you know, if the public record
is available to the public, it's in the flow
of ideas and commentary that, you know, we
have to suffer in this country by virtue of
the First Amendment. The solution to the
1101
problem of people obtaining records to use
them against police officers and corrections
officers is to put those records under the
Civil Rights Law. Let's take them out of
FOIL.
You can't have a system that's
designed for open government, which is what
the Freedom of Information Law is about, and
then impose a penalty with no requirement of
knowledge, no requirement of scienter, no
requirement of intent, and create an
additional crime just for using those records.
I understand the issue that we're
attempting to address here. But I
respectfully submit that this bill does not
address the issue and opens up a whole series
of problems. And, frankly, I think that
this -- it might even rise to the level of a
constitutional infirmity.
I would suggest that rather than
creating new criminal offenses, we direct our
energies towards limiting the amount and type
of information that the government and the
private sector can collect on individuals, and
that we restrict access to records of law
1102
enforcement officers.
Those are the kinds of approaches
that would solve the problem. This would not.
I vote no, and I urge everyone to vote no.
ACTING PRESIDENT KUHL: Is there
any other member wishing to debate the bill?
Hearing none, the Secretary will
read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negatives and announce the results.
Keep your hands up, please, so the
Secretary can record your votes.
THE SECRETARY: Those recorded in
the negative on Calendar Number 225 are
Senators Breslin, Brown, Connor, Dilán, Duane,
Gonzalez, Hassell-Thompson, L. Krueger,
Lachman, Montgomery, Onorato, Parker,
Paterson, Sabini, Schneiderman, M. Smith,
Stavisky. Also Senator A. Smith. Ayes, 43.
1103
Nays, 18.
ACTING PRESIDENT KUHL: The bill
is passed.
The Secretary will continue to read
the controversial reading of the regular
calendar.
THE SECRETARY: Calendar Number
277, by Senator Rath, Senate Print 1711, an
act to amend the Penal Law, in relation to the
placement of devices and objects.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negatives and announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 277 are
Senators Duane, Montgomery, and Schneiderman.
Ayes, 58. Nays, 3.
ACTING PRESIDENT KUHL: The bill
is passed.
1104
THE SECRETARY: Calendar Number
311, by Senator Spano, Senate Print 4226, an
act to amend the Executive Law, in relation to
authorizing the Commissioner of General
Services.
SENATOR MONTGOMERY: Explanation.
ACTING PRESIDENT KUHL: Senator
Spano, an explanation has been requested by
Senator Montgomery.
SENATOR SPANO: Thank you, Mr.
President.
This bill is introduced at the
request of the Office of General Services.
And it would authorize OGS to fingerprint and
process criminal history checks on employees
of contractors who are performing services on
state property.
ACTING PRESIDENT KUHL: Senator
Montgomery, why do you rise?
SENATOR MONTGOMERY: Yes, Mr.
President, I'm just going to speak briefly on
this bill.
ACTING PRESIDENT KUHL: Senator
Montgomery, on the bill.
SENATOR MONTGOMERY: Yes. As I
1105
read this legislation, I see that Senator
Spano, in the interests of security, I
believe, is going to require fingerprinting of
any person who is contracted by a contractor
that is employed by OGS. So subcontractors
and all of their employees also have to be
fingerprinted.
I believe that this really is very
far-reaching and may have negative
consequences -- as a matter of fact, probably
will have negative consequences, especially on
some of those projects that are outside of the
state capital, maybe out there in the parts of
the state that are not even close to the
capital, on some far-removed state campus of
some facility or other where there is a
subcontractor, maybe a little painter or
someone who is doing some minor job, but
because they're working, they're contracted
by -- as a third party to the contractor who's
contracted with the state, they can't do a job
because they have to be fingerprinted.
And I just think that a lot of jobs
that may be available otherwise to people
who -- certainly some of them may be in my
1106
district, some of them even in Senator Spano's
district -- but won't be able to work because
of this legislation.
So I think that we need to be a
little bit more careful that we don't end up
with, as one of my colleagues said earlier,
unintended consequences that this bill could
create.
So I'm going vote no on this
legislation, because I think that it's not in
the interest of security. And it's certainly
not in the interest of there being possibly
some jobs somewhere where people in my
district may qualify but, under this
legislation, they would not.
ACTING PRESIDENT KUHL: Any other
Senator wishing to speak on the bill?
Senator Brown, why do you rise?
SENATOR BROWN: Thank you, Mr.
President. Through you, Mr. President, if the
sponsor would yield for a question.
ACTING PRESIDENT KUHL: Senator
Spano, do you yield to a question from Senator
Brown?
SENATOR SPANO: Yes.
1107
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR BROWN: Senator
Montgomery's question raises a question in my
mind, and that is the question of fiscal
impact. What would the actual fiscal impact
of this legislation be on the state?
SENATOR SPANO: The cost would be
paid by the OGS contractors, not by the state.
SENATOR BROWN: Okay. So the
costs would be passed on to the contractor.
SENATOR SPANO: Yes.
SENATOR BROWN: Okay. Thank you,
Senator.
SENATOR SPANO: Thank you.
ACTING PRESIDENT KUHL: Any other
Senator wishing to speak on the bill?
Hearing none, the Secretary will
read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
1108
the negative and announce the results.
THE SECRETARY: Ayes, 60. Nays,
1. Senator Montgomery recorded in the
negative.
ACTING PRESIDENT KUHL: The bill
is passed.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
365, by Senator Fuschillo, Senate Print 5088,
an act to amend the General Business Law, in
relation to the employment of security guards.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 5. This
act shall take effect on the 365th day.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negative and announce the results.
THE SECRETARY: Ayes, 60. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT KUHL: The bill
is passed.
1109
Senator Morahan, that completes the
controversial reading of Calendar Number 19.
SENATOR MORAHAN: Thank you, Mr.
President. Could we now have the
controversial reading of the Supplemental
Calendar Number 19A.
ACTING PRESIDENT KUHL: The
Secretary will read the controversial reading
of Supplemental Calendar 19A, beginning with
Calendar Number 498, by Senator Balboni.
THE SECRETARY: Calendar Number
498, by Senator Balboni, Senate Print 3A, an
act to amend the Criminal Procedure Law, in
relation to creating crimes of criminal
possession.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT KUHL: Senator
Balboni, an explanation has been requested by
the Acting Minority Leader, Senator
Schneiderman.
SENATOR BALBONI: Thank you, Mr.
President.
We have considered the measure
before us on two separate occasions. The
1110
first time I believe we had just experienced
our set of change of alerts for the nation.
And again, we consider this measure against
the backdrop of the tragedy in Madrid, Spain.
Those events continue to raise up our darkest
fears as to the continuing threat of terrorism
and our vulnerabilities as a society.
This measure before us would
create, for the first time in New York State,
what in my opinion are way overdue changes
that would essentially create new crimes to
attack terrorism, not only in terms of the
utilization or possession of the worst weapons
imaginable -- chemical and biological
weapons -- but also to give law enforcement
tools to permit the aggressive enforcement,
the aggressive prosecution and detection of
terrorists, those being the crimes of money
laundering, structuring, conspiracy.
And, lastly, it would also allow
for law enforcement to utilize every tool
possible, including roving wiretaps, which
maintain the protections of judicial oversight
but recognize changing technologies that
certainly the 9/11 terrorists utilized. And
1111
they never used a landline, they only used
cellphones.
Mr. President, I hope and pray that
measures like this would be obsolete as quick
as possible. Unfortunately, we need to
continue to focus on this issue and get these
measures signed into law.
My last comment, Mr. President, is
that yesterday I was at the White House
meeting with Homeland Security. The President
is very focused on terrorism; so is Homeland
Security. The Senate is very focused. The
Governor of the State of New York, George
Pataki, is very focused. But the Assembly is
not.
So I hope that once again we can
pass this measure and we can have a partner in
the State Assembly and make these provisions
law.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, why do you rise?
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President.
I rise, as the chair of the Senate
1112
Minority Task Force on Terrorism and Emergency
Preparedness, to state for the record my
concern that the federal government has not
supported New York City in its effort to
prepare for the next terrorist attack.
Before the attacks of September the
11th, the United States had no comprehensive
plan to defend its highways, railways and
waterways. Since 9/11's terrorist attacks,
the federal government has begun to address
many security needs but has completed few of
them, and has often not provided the money
needed to fully shore up security.
Governments across New York,
including New York City and suburban upstate
towns, cities, and counties have been hampered
by a lack of federal funding and, in most
areas of homeland security, they confront a
lack of focus and financial support from our
federal government.
New York City deserves more money
mainly because it has to protect targets that
prompted such terrorist attacks in 1993 and
again in 2001. Despite being a target before,
New York City, however, continues to be
1113
shortchanged by our federal government for
homeland security funding relative to other
cities.
I am troubled that federal
antiterrorism money specifically intended for
the nation's most vulnerable cities is still
being spent in parts of the country that do
not have the same urgent security needs. The
federal government is doling out money to a
growing list of cities that face no apparent
threat, thus shortchanging New York City and
other obvious targets for terrorism.
In 2002, President Bush and the
Congress established a fund for urban areas
believed to be at high risk for attack. The
fund was created in response to concerns that
millions of dollars in federal homeland
security money was being given to every state
regardless of its vulnerability.
Initially, the money for high-risk
areas was distributed among seven cities. In
May 2003, the list expanded to 30 cities. Now
it has been increased to 50 cities, including
St. Paul, Minnesota, Fresno, California, and
Louisville, Kentucky. These are all fine
1114
cities, but they do not have the track record
of other cities with respect to targeting by
terrorists such as New York and Washington,
D.C.
The disappointing end result was
the drastic reduction in the share of money
that New York City and other major cities need
to support their first responders and cover
the increased security costs.
New York City was initially awarded
$125 million out of a total of $500 million in
federal grants through the Department of
Homeland Security. In November, after more
cities were added, New York's share was cut to
$47 million out of $675 million that was
disbursed.
The need for increased funding
assistance in high-threat cities was once
again made clear over the holidays when the
threat level was raised to Code Orange.
Let's keep in mind that, in the
wake of the horrible Madrid bombings, that the
cities we are talking about here are also the
cities with the most extensive commuter rail
systems.
1115
Even though $100 million has been
spent in upgrading security in New York City's
Pennsylvania Station, $350 million more in
upgrades is needed to protect the 400,000
people who use Penn Station every day.
The men and women serving in our
military in Iraq have been granted some
$87 billion more to fight the war over there.
They got the money because they needed it in
order to get the job done. But the men and
women serving in law enforcement here at home
are still getting shortchanged. We need them
to get the job done right here as well.
I hope my colleagues in this house
will join me in urging our federal government
to allocate money for our high-threat areas.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Any other
Senator wishing to speak on the bill?
Hearing none, the Secretary will
read the last section.
Oh, Senator, excuse me. Senator
Krueger, why do you rise?
SENATOR LIZ KRUEGER: I rise to
speak on the bill.
1116
ACTING PRESIDENT KUHL: Senator
Krueger, on the bill.
SENATOR LIZ KRUEGER: Thank you.
SENATOR MORAHAN: Mr. President.
ACTING PRESIDENT KUHL: Excuse
me, Senator Krueger.
Senator Morahan, why do you rise?
SENATOR MORAHAN: Yes, there will
be an immediate meeting of the Health
Committee in the Majority Conference Room.
ACTING PRESIDENT KUHL: Immediate
meeting of the Health Committee, immediate
meeting of the Health Committee in Room 332,
the Majority Conference Room.
Senator Krueger, on the bill.
SENATOR LIZ KRUEGER: Thank you,
Mr. President.
We debated this bill last year, and
I had serious concerns and I raised them. And
I raise them again, although I won't raise
them in debate today, because I think we've
had the dialogue with Senator Balboni.
There are parts of this bill that I
support and agree with, and there are parts of
this bill that are too worrisome to be allowed
1117
to become law in this state.
First off, choosing to make an
exception for the Fourth Amendment and those
protections therein is a very dangerous road
for this state to be going down. And I would
urge us to rethink the concept of giving up
our constitutional protections through this
law.
Equally concerning to me is the
concept of roving wiretaps. Even though in
this bill the provision expires in two years,
again, what decisions are we making in
choosing to do away with fundamental
constitutional protections?
This bill would also allow for the
distribution of tax records and the
implication that other private information
would be made available for government
sources.
Just earlier today we heard a
debate around Senator Golden's bill to
actually penalize people for using government
information inappropriately. And I have to
say the government going into that same
business of potentially taking private
1118
citizens' information and distributing it to
others -- to other law enforcement, to other
even private companies -- on the claim that
this would only be used for sorting through
the potential of terrorism, is an issue that
should concern us.
And it is an issue that is timely
in Albany today, even outside the context of
Senator Balboni's bill. And that was the
announcement by the State Police that New York
State was pulling out of the Matrix system, a
data-mining system that New York State Police
had gone into in an agreement with the private
company and other state law enforcement
agencies without even bringing the information
to the Legislature.
Was this a decision that the State
Legislature would want on behalf of our
citizens, the idea that under the Matrix
system, private databases and public databases
of information, including your DMV records,
your court records, your tax records, your
school records -- frankly, any information
that was available to government -- would be
shared through a centralized Matrix computer
1119
system controlled by a private corporation who
would then, in theory, use it only for
specific purposes?
But in fact, this information could
have been used for many, many purposes, and it
could have been accessible to many, many
others beyond the role of law enforcement.
And so when I think about this bill
and the pluses and the minuses of it, I went
back to take a look at some of the
constitutional questions. To quote Benjamin
Franklin, who said that people who trade their
fundamental liberty for a little temporary
security deserve neither.
And it's a tough issue for us to
discuss at this point in time. Obviously we
have lived through our own terrorist attacks
here at home, and continue to see these types
of attacks around the world.
But it still raises, for me, the
fundamental constitutional question of how far
do we allow the government to have control
over and take power away from the privacy
rights and the civil liberties of individuals.
And the dangers, even in good intentions, of
1120
expanding those limits of government power, as
this bill would do through, quote, good-faith
exceptions to the Fourth Amendment, roving
wiretaps, and distribution of government
records such as tax records for exploratory
purposes.
There's been any number of times in
the history of this country, both at the
federal level and at individual state levels,
where we've asked these questions and
different decisions have been made. But I
have to tell you that that history shows that
in many circumstances when we veer too far
away from constitutional protections, from the
recognition of privacy rights and civil
liberties in this country, even with the best
intentions, we saw that the harm that was done
to our citizens was greater than the win.
Again, even under good intentions.
And I have no doubt that the
sponsors of this bill have good intentions.
But I fear that the risk to ourselves and to
the people of our state if we were to move
hastily in passing these new rules would
result potentially in a scenario not unlike
1121
what we saw at the federal level in the 1950s,
when a Wisconsin senator openly judged the
guilt of citizens of this country based on
their associations and their beliefs and
hearsay.
And I would argue that we have not
come far enough along in our understanding of
how you both protect your citizens and protect
their constitutional rights to open up the
door so wide for law enforcement to not have
to follow the existing constitutional
protections and rights that we live by.
And so I would urge my colleagues
to vote against this legislation, even if they
understand the goals are good and parts of
this are much less dangerous than others. The
dangerous parts are too serious for us to
ignore.
I'll be voting no. Thank you, Mr.
President.
ACTING PRESIDENT KUHL: Senator
Fuschillo, why do you rise?
SENATOR FUSCHILLO: Mr.
President, will the sponsor yield for a
question?
1122
ACTING PRESIDENT KUHL: Senator
Balboni, do you yield to a question from
Senator Fuschillo?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR FUSCHILLO: Thank you,
Mr. President.
First of all, Senator Balboni, my
compliments to you. I remember a few years
ago nobody would listen to you when you raised
the issue of water security and protecting our
reservoirs here in the state and throughout
the nation. And yesterday you were in
Washington, and my compliments to you for
being appointed by Tom Ridge to a committee on
homeland security.
We've heard statements read and
comments today about the lack of support from
the federal government. Where are we as a
state with receiving federal funds, and what
is our current relationship with the federal
government on homeland security?
SENATOR BALBONI: Mr. President,
1123
through you. Thank you very much, Senator,
for your question.
And thank you, Senator
Hassell-Thompson, for your participation in
the Joint Task Force on Emergency
Preparedness. And your question is a very
good, and so is the Senator's.
I've had a unique opportunity, my
colleagues. It's a 20-person task force,
essentially consisting of governors and mayors
from around the nation. And the point of the
task force is to examine the logjams of
federal funding and how the money has not
gotten from Washington to Main Street. And
we've participated already in about 10 to 11
hours of discussions with principals, and
we're going to be continuing this for several
months.
And the amazing thing that we found
out is that though $6 billion to $7 billion
has been appropriated through the Office of
Domestic Preparedness, two startling facts
about that. Number one, it's not nearly
enough money, even though it's a huge amount.
And, number two, only 15 percent of it has
1124
actually been spent.
Now, what we found out yesterday is
that much of the problem, believe it or not,
is the fact that money alone is not the
answer. The point of the program is
equipment, training, and planning.
But here's the problem. If you
check with your fire departments and your
police departments and you go around the state
and talk with different people as to what they
need, they don't know. There's no
comprehensive plan yet as to what will make us
safer in this nation when it comes to homeland
security at the local level.
Now, before anybody gets critical
necessarily of the administration or of the
federal legislature, let me point this out to
you. We were attacked two and a half years
ago. In that period of time we've gone
through the largest realignment of the federal
agencies in the history of our nation.
They're still making it up, ladies and
gentlemen, because there are no books on this.
It used to be all about the
military and the defense and us versus them.
1125
Now it is about not soldiers and the military,
but rather about firemen, police officers, EMS
workers. And it is very difficult to get that
money into the fire department and have them
be consistent, have them be prepared, and have
them be trained.
And like I said before, it's just
simply not enough money. People have been
very critical about this. And I will say that
New York State could absolutely use more
money. But the point of the matter is even if
you don't get more money, you're still going
to defend the sites that need to be defended.
But the point that we need to focus
on here is that we need laws like we're
addressing today, because we're not sending
the right message by not passing it. Law
enforcement needs to see that we are committed
to the principles we enunciate in today's
bill.
Senator Krueger, you will be happy
to know that on March 9th the New York State
Police sent a letter withdrawing from the
Matrix program. And I think that was an
acknowledgment that, yeah, Matrix probably has
1126
gone too far. But it doesn't mean you don't
need something like that. You know, ask the
people in Spain if they wouldn't have wanted
to know better about what people were doing or
if there wasn't anything that they would have
suspended in a time of crisis.
Your concerns about the roving
wiretaps and about the good-faith exception of
this bill are valid. But, I would submit, not
in a time of terrorism.
And the other thing I'd like to
point out to anybody listening to the debate
is that the changes that are advocated here
are not without control or protection. Before
you get a roving wiretap, a judge must sign
off. Before you get a good-faith exception,
there must be a hearing with the police
officer and they must prove to the judge that
in fact good faith was demonstrated.
And again, in the exigent
circumstances of a terrorist act, particularly
if it comes to the point of prevention --
which is the key to everything -- I think
these are reasonable, reasonable measures.
Mr. President, to answer my
1127
colleague and good friend's question, New York
has not gotten all the money it needs. But
this is not the only time in which we're going
to be funding. Unfortunately, terrorism is
going to be an issue for this state and for
this nation for years to come. The key is to
get it right. And I think hopefully through
the next couple of months and years we're
going to get that chance -- if we continue to
focus on this.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Volker, why do you rise?
SENATOR VOLKER: Mr. President, I
just want to, first of all, say that I want to
compliment Senator Balboni for the enormous
job that he has done.
I think part of the problem here
is -- and I'll be perfectly candid. I sort of
oversee the financial part of or helped to
oversee the financial part of it. It wasn't
until very recently that we were able to get a
real handle.
First of all, Senator
Hassell-Thompson, I must tell you New York
1128
City has got a lot more money than has been
said. Because when you go to orange and all
that, a lot of that money does come from
Homeland Security.
There's a lot of things about this.
And the problem that I found was -- and as
Senator Balboni found, both of us -- is that
the demand in this state alone -- for
instance, we could take every dollar we have
from the 911 fund, the wireless fund, and push
it into New York City to fix their system.
Remember one thing people don't realize, their
entire system went down, their 911 wireless
system just died during the attack. I mean,
there's so much that has not been said by the
media about the tremendous hit that was made
on this country.
I could tell you this -- and we're
really not supposed to talk about it. But if
every dollar that was assigned to New York was
spent, it still wouldn't be enough, as Michael
said. The demand -- and Mr. Kallstrom is a
nice man. He's a former FBI agent. He went
around pledging all kinds of money to all
kinds of people. The problem is, you know,
1129
FBI people don't have any money. I mean, they
don't have to worry. They got an open budget.
This is New York. We have a
budget. We've put a lot -- the amount of
money that has gone into security in this
state is unbelievable -- and you don't hear
about that, but it's enormous, I'll tell you
right now -- to helping police New York City
and police this state.
But I happen to agree with Senator
Balboni. And, you know, Norm Siegel is a very
nice guy. I've known him for years. But he
thinks and many of us continue to think in
terms of domestic law enforcement. We have
forgotten that a big reason -- and they can do
all the investigating in Washington they want
about 9/11. People know what happened. We
don't have to investigate it. All this
nonsense about, you know, suing phone
companies and all this stuff. What happened
is we were not prepared because we didn't have
either the manpower or the technology to find
out about this sort of thing.
You can blame George Bush if you
want. You can blame Bill Clinton. You can
1130
blame all kinds of people. The truth is,
we're all at fault.
And one of the things we absolutely
need to do is give our people the same
opportunity as the terrorists. And if there's
violations and mistakes made, then we have to
deal with that. Because if we don't, I'll
guarantee you, we're going to have another
hit. And it probably won't be in New York
City this time. It could be. But my guess is
it will be someplace else in this state, for
lots of reasons.
I can only say to you that we have
some information that this place has been
cased. In fact, rumor has it -- we know they
have. We know they've looked at this place.
And the people around here, everybody is
annoyed by the security. You'll be a lot less
annoyed if something happens, God forbid.
But I can only say that we must
deal with these kinds of issues. Because one
of the things that Mike and I have said about
this, I'll tell you, if we get another hit,
this bill will pass in about 20 seconds. And
that's too bad, in a way, because we have to
1131
be prepared to deal with a bunch of vicious
beasts -- that's what they are -- that are not
part of our civilization. People that kill
themselves in the name of religion, they're
not part of our civilization. That's
ridiculous. Think about it. They're not part
of our -- I mean, you can't play with them.
The media seems to think you can
write stories about -- the reason the guy got
off in Europe, by the way, because we wouldn't
give the information, is, as I understand it,
is because we were not about to give up our
sources and all that just to get him
convicted. And somebody said: Well, the
guy's innocent. Well -- yeah, right. He's
innocent under the law. But we can't afford
to let the enemy know who's who, because
they'll use our people.
And I only say this because, you
know, I -- I'll only tell you one story, or
I'll forget it. Joe McCarthy. Everybody
criticizes him, terrible guy, his methods were
wrong. Do you realize when they got the KGB
files in Russia, they found out thousands of
people that he accused were Communists? They
1132
actually had sent information to Stalin. They
even gave our code. And Stalin fortunately
was too dumb to realize it was true. But
somehow that story never really got out.
Nobody is saying that McCarthy was
a great guy. But in all honesty, there were a
lot of people that were Communists. And a lot
of those people were pretty bad people,
because they were cooperating with a foreign
nation against our country. And I mean, you
know, it's nice to live in a nice and quiet
world. And as I call the Court of Appeals in
this state the "tea and crumpets" Court of
Appeals. That's very nice. Except it gets
people killed. And unfortunately, it makes
our civilization vulnerable to the other
people.
ACTING PRESIDENT KUHL: Senator
Parker, did you wish to be recognized?
SENATOR PARKER: Yes, please, Mr.
President. On the bill.
ACTING PRESIDENT KUHL: Senator
Parker, on the bill.
SENATOR PARKER: I want to begin
by again, as my colleagues have, thanking
1133
Senator Balboni for his tremendous work on not
just this bill but on the subject matter. And
I think there's a great deal about this bill
to be commended, and things that I think would
be helpful. But there are some things that I
think that I have some concerns about.
On September 11th, 2001, I wasn't
yet elected to the State Senate. I actually
was a candidate for the City Council. And I
remember standing at the train station,
meeting people in my community, and somebody
driving up to me and saying to me that the
World Trade Center was on fire. And I looked
at him; I was kind of like in disbelief. I
was like, no, no, no, today's Election Day.
They're like, no, the World Trade Center is on
fire.
And I went back to my campaign
office and watched on NY1 as a second plane
hit the World Trade Center. And unlike many
of my colleagues upstate, my first thoughts
were of people that I knew who worked in that
building. And particularly my neighbors and
my friends. And in fact, my niece, who had
taken the day off to help me on my election,
1134
actually worked in the Trade Center and would
have been in the Trade Center had it not been
Election Day.
So I say that to say -- and having
a brother who unfortunately has passed away,
but spent 16 years in the Marines, I do have
some understanding of what folks are talking
about when they talk about homeland security.
So I don't -- this is not some
faraway thing or something that -- you know,
all of us in this room were highly affected by
this and watched as those buildings burned
down. In my district later that night, I
stood on my front porch as literally papers,
some of them burnt, that littered the street
in front of my house in Brooklyn probably, you
know, three or four miles away, were coming
down in the street in front of my house, from
the building.
This is, I mean, dramatic. And the
effect that it has had on my community and me
and all the people in this room is undoubtedly
serious.
However, I also believe that
homeland security starts at home. And I
1135
remember that the president came out and said
he was going to give us $16 billion, much of
which we haven't seen yet. I do know that at
this point, right now, we are about 4500 cops
less in New York City than we were on the
morning of September 11th. And in two years
we have not gotten back to that number.
And I am appalled by the impudence
of our, you know, Republican mayor and
Republican governor to get to the Republican
president to get us, you know, a few more
dollars to give police. At the same time, you
know, $87 billion goes to Iraq, and I
understand that and we have to support the
effort, and fine. But if you can find
$87 billion for Iraq, how dare you stand here
and tell me you cannot find money for New York
City after it's been attacked and someplace
that continues to be a target?
I have people who, you know,
honestly, they're no longer concerned about
the terrorists, because they're getting mugged
walking down Avenue D and 41st Street, right
around the corner from my house, because
simply in the 67th precinct, that covers my
1136
district where my office is, we do not have
enough police.
And although, you know, the mayor
has talked about 15 percent down all over the
city, when you look at individual police
districts, that is not in fact the case. In
fact, murders are over doubled in my district.
In the 70th precinct, the commanders are never
going to say this, but they're understaffed.
And why? Simply because we have no more
money.
And, you know, we have a -- you
know, we're looking at a $9 billion deficit
here on the state level after you add in CFE
and you add in some of the other things that
need to be dealt with this year. You know,
and so we can't get money from the federal
government to deal with homeland security
after we say that we're, you know, concerned
about homeland security -- I'm not sure what
we're supposed to do.
And so I'm concerned about how we
in fact implement the things that are in
Senator Balboni's bill if in fact we can't
find the requisite funding to do the things
1137
that at base level need to be done; that is,
fire, police, emergency services.
Lastly, my major concern in this
bill, and I said this last year when the bill
came to the floor, is that when we start
tinkering around and making exceptions to
amendments, particularly the Fourth Amendment,
you know, we create a slippery slope that I'm
not sure how we put the brakes on. So today
is the Fourth Amendment, tomorrow the Fifth.
And again, when we get to the 13th, 14th, and
15th Amendments, you know, I then wind up in a
very significant problem.
And so I'm voting no today not
because I think this is a bad bill; I think
this is a good attempt. But I really would
love to see some significant changes that
would really safeguard the protections that we
as Americans believe in and we hold so near
and dear to our hearts.
ACTING PRESIDENT KUHL: Senator
Marcellino, do you wish to be recognized?
SENATOR MARCELLINO: Yes, Mr.
President. On the bill, briefly.
ACTING PRESIDENT KUHL: Senator
1138
Marcellino, on the bill.
SENATOR MARCELLINO: I want to
thank my colleague and congratulate my
colleague Senator Balboni for working
tirelessly and diligently on this very
important issue. It isn't easy, and I know
he's taken some ribbing from a lot of us and
some kidding around. But the issue he's
addressing with this legislation and the
things that he's doing are of the utmost
importance.
This is a serious matter. This is
not a matter for rhetoric. This is not a
matter for a political campaign or political
speeches. This is serious business. People
can die, people are dying, people will die if
we don't do the right thing here in this
house, in the U.S. Congress, and in
statehouses all over this country.
$87 billion wasn't sent to Iraq for
Iraq. It was sent and it was delivered by the
federal government to help our forces, our
troops, in support of them, to purchase fuel,
gasoline, ammunition, weapons, clothing,
armor, you name it, whatever they need, so
1139
that they can carry on the task of taking the
fight to the enemy on the streets of Baghdad
rather than the streets of Brooklyn.
I do not understand how that can be
misunderstood. It is an imperative that we
take care of it over there because if we don't
take care of it over there, we're going to
have to do it over here. And frankly, after
9/11, I don't want to do it here again, and I
don't think anybody does.
And I'm not laying that on anybody.
And I'm not accusing anybody of being soft on
anything. All I'm saying is we have a
tendency to forget in this country. We have a
tendency to let things go for a while. If it
isn't on our front doorstep immediately, we
have a tendency to say, well, you know, let it
slide a little bit. You know, we've got more
important things to deal with. We've got
problems in the local community. We can let
that slide.
We had a blackout recently. I met
with some of my first responders. And the
response around Long Island was great. Fire
departments, police departments reacted. And
1140
I met with the county representatives in
Nassau and Suffolk County for these people
that were supposed to centralize our response.
You know something? There was no
centralization. There was no communication
from those centralized authorities in both
Nassau and Suffolk County to local fire and
police departments. No word went down. These
people responded on their own and did their
own thing, in their own communities, to
protect their neighbors. Without
coordination.
We need a lot of work. We have to
do a lot here. To point fingers at Washington
and say it's money -- it doesn't require money
to make plans. It requires people to sit down
and do it and stop thinking about what's
happening in my neighborhood, to think about
what could happen if we don't do the right
thing.
Senator Balboni's bill is a first
step. And we've got to take this. This is a
new world and this is a new kind of fight and
this is a new kind of battle. And by God, if
we don't win it, our children are going to
1141
have one hell of a time to deal with. And our
grandchildren might not have a country to come
back to.
So we've got work to do here,
ladies and gentlemen. Let's pass this bill
and let's get on with it.
ACTING PRESIDENT KUHL: Senator
Lachman, do you wish to be recognized?
SENATOR LACHMAN: Yes, I do, Mr.
President.
I wasn't going to speak, but I
listened to the debate. I'm ambivalent about
the bill, I have to be very candid about that.
But I do feel that this
international war on terrorism is the greatest
war that our nation has fought since World War
II. And we do not know what will happen next
week or next month. I personally feel that
the October surprise that might occur will not
come from the White House, or my party, but
will come from international terrorists, as
they did three or four days before the Spanish
election.
However, I deeply regret that one
of my distinguished colleagues raised the
1142
issue of Senator McCarthy, which is totally
irrelevant to this bill. And we have to be
very careful about this. Senator McCarthy
destroyed civil liberties in this nation. He
destroyed the reputation of the U.S. Army,
some of its greatest generals, such as General
George Catlett Marshall.
At the same time, weighing the pros
and the cons, I would say we are in a major
war that we must win without taking our civil
liberties away. I vote yes on the bill.
ACTING PRESIDENT KUHL: Senator
Krueger, why do you rise?
SENATOR LIZ KRUEGER: I rise to
speak on the bill again, in response to some
statements.
ACTING PRESIDENT KUHL: Senator
Krueger, for a second time on the bill.
SENATOR LIZ KRUEGER: Thank you.
I thank Senator Lachman for
bringing up my equal concern about revisionist
history of Senator McCarthy. Despite the fact
that it is Good Joes Day, I'm not sure we
ought to be including Senator Joe McCarthy in
the Good Joes story.
1143
And clearly the lesson -- thank
you. I think the lesson there, even if
Senator Volker is correct and history shows
that some of the people Senator McCarthy
accused of doing bad things in fact did bad
things, I actually think that Senator Volker
agrees with me that our civil liberties and
our civil protections overall as a country are
a greater and more important good, since that
time future, than the failure to recognize
some number of people who were doing bad
things.
I'd even argue that if Senator
Volker was in the U.S. Senate at the time, he
would have figured out how to catch the bad
guys without taking the approach that Senator
McCarthy did so wrongly in the fifties.
But we also just heard that -- and
we know this -- we are in uncertain times. We
are in times of crisis, we are in times of
international terrorism. Again, my concerns
with this bill, the reason I think we must
think much more seriously before we vote for
this bill, is history from terrorism.
In 1974, when the IRA started its
1144
bombings in London, the British government
passed the Prevention of Terrorism Temporary
Provisions Bill. It was supposed to be a
one-year bill. It has, in fact, been renewed
every year since and is still in effect in
Great Britain. It allows suspected terrorists
to be searched without a warrant. It allows
the government to label organizations as
illegal and make it illegal for an individual
to even wear clothing indicating that they
support such an organization.
You no longer have the right to
remain silent in Great Britain when you're
accused of a crime because of this law. If
you remain silent, your silence can and will
be used against you in court. That provision
was originally introduced solely as an
antiterrorism measure, but like so many other
measures in that original bill, it quickly
spread and infected the entire criminal
justice system of Great Britain.
In fact, today, law enforcement
agents in Great Britain can break into
somebody's house, do whatever they want, even
steal property, and they can do wiretaps they
1145
want without judicial approval, without
warrants, without judicial approval.
It is twenty years later. Great
Britain has cut away at their civil liberties.
And unfortunately, I don't think the people of
Great Britain would tell you that they are
safer from international terrorism today than
they were twenty years ago.
I hope this is not a twenty-year
fight in this country. I hope we are not
facing twenty years of potential internal
attacks on civilians. But if we hope to have
a country that we still believe in and believe
in our liberties in twenty years from now, we
must be very, very careful about the way we
change our laws today.
So again, I urge my colleagues to
vote no. Thank you, Mr. President.
ACTING PRESIDENT KUHL: Any other
Senator wishing to speak on the bill?
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. Through you, if the sponsor
would yield for a question.
ACTING PRESIDENT KUHL: Senator
1146
Balboni, do you yield to a question from
Senator Schneiderman?
The Senator yields.
SENATOR SCHNEIDERMAN: Thank you.
I want to come back to the comments
that Senator Ruth Hassell-Thompson made and
that was followed up, I think, by Senator
Fuschillo, and ask you -- since you were at
the White House yesterday and had a chance to
take the temperature of those in power in
Washington in the wake of the Madrid
bombing -- the issue that Senator
Hassell-Thompson was raising really hasn't
been addressed, and that's the fact that New
York City was initially awarded $125 million
out of a total of $500 million in federal
grants, and then in November, after more
cities were added, New York's share was cut to
$47 million out of $675 million that was
disbursed.
The billions that were promised for
our city after 9/11 have not been coming from
Washington. We got some money; we didn't get
what we need. And we're dealing with a
situation in which, in your new role on this
1147
task force, you may have an opportunity to
address it.
But the fact of the matter is we
took a hit for the whole country, we lost tens
of thousands of jobs. In my district, we lost
many, many, many, many jobs. And Washington
promised us help, and it really didn't come.
We've raised property taxes, we've raised
sales taxes. Senator Parker pointed out we've
had to cut the number of police officers.
Can you give us a sense of what, if
anything, we can do to ensure that New York
gets its fair share of funding for this and
that the tragedy of September 11th is not just
used for political purposes but that the
people who actually paid the price for that
are taken care of by the federal government?
SENATOR BALBONI: Mr. President,
through you, I thank the gentleman for his
inquiry.
This is probably the most important
issue that we're going deal with in the next
couple of months, particularly as the
Republican National Convention comes to the
city of New York. That is uppermost on so
1148
many minds from a security perspective, and
the ability of the city to deal safely with
what we already know is a very target-rich
environment and how to make sure that the
convention comes to a city that is safe.
What is important, when considering
federal dollars, is to consider the fact that,
one, that there is no one source of dollars.
That is a part of the very frustrating
complexity. The Office of Domestic
Preparedness is but one pot of money that the
federal government has sought to fund the
activities of prevention and emergency
response. Added to that are the pots that
come from the Centers for Disease Control, the
Health and Human Services Department, the
Department of Transportation, as well as the
NSA that also has developed programs in this
state.
And so when you cobble all those
dollars together, what you find out that is
that New York State is probably the place
where the most money has been spent. That's
the good news. The bad news is it's not
enough.
1149
And in terms of what we can do to
get Washington to send us more money, I think
a key component is for all of us to lobby, to
make the case to Washington -- but not just to
the Republican governor, to the Republican
president, to the Republican mayor, but to the
Democrat U.S. senators. The two names that
haven't been mentioned here today are Clinton
and Schumer. They are very powerful people in
Washington, and they must be enlisted in this
battle because, frankly, they haven't brought
enough money back either.
The same with the Congressmen and
women, both sides of the aisle. This is not a
Democrat or Republican issue, it's a New York
State issue. And we have to have the dollars
to facilitate the programs.
But at the same time, we have got
to work with our local governments,
particularly in the City of New York, and try
to help focus their attention on developing
the kind of programs that will truly make us
safer.
Let me ask you a basic question,
Senator Schneiderman, in response to your
1150
question. I'll ask this rhetorically. If you
were a firefighter and you were told that
there are four or five different hazmat suits
to purchase that would make you safer, how
would you respond as to which one to select?
There's no certifications, no standards as to
what equipment works and what doesn't. Now,
whose fault is that? I don't know whose fault
it is, but it's a problem that's got to be
fixed.
Same thing with our detection
equipment, both chemical and radiological.
These are new instrumentalities, new
technologies that are still being developed
and yet are so essential to our continued
protection.
And, lastly, we have a culture of
me, me, me, me, me. I had a fascinating
discussion with representatives from a
national legislative organization yesterday
who said, "You know, Senator Balboni,
unfortunately, our views are divergent on the
issue of whether or not we should adopt a
risk-based approach to funding." And I said,
"Well, what do you mean?" They said, "Well,
1151
we represent all the states in the nation.
You're also representing all the states in the
nation. But it's our position every state
should get something." And I responded by
saying, "Well, you know, that's just so
antithetical, so contrary to what should be
the basic funding response and logic."
So I think that, to answer your
question, we need to engage more with
Washington and we also need to engage more
with the localities. Because we're not really
in the process. And I'll tell you what. This
is a message to all of us in the chamber
nationally -- and this is not their faults,
but the Governor's Association, the White
House and the Congress, they don't see us as a
part of this issue. They don't see
legislative oversight as being a benefit.
They see it as a burden.
Take a look at the funding
timelines. You're supposed to obligate money
within 60 days. Well, that doesn't include
the consideration of a body like this, of how
the money is being appropriated. Whether it's
by a Republican governor or by a Democratic
1152
governor, it doesn't take that into account.
So the legislatures are not a part of this
oversight from the national perspective.
But we must be. But we must also
be the ambassadors and the representatives to
our own districts to work with our
municipalities to help them understand what's
doable, what's accessible, and what's
realistic.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the
sponsor would continue to yield.
ACTING PRESIDENT KUHL: Senator
Balboni, do you yield?
SENATOR BALBONI: I do, Mr.
President.
ACTING PRESIDENT KUHL: And the
chair would just simply, for the record,
remind the members that, you know, the rules
of the Senate really do contain questions and
answers to the content within the bill.
Now, I know that there's a great
propensity on behalf of most -- of the two
members that are now on the floor and speaking
and entering into dialogue to recognize that
1153
it's snowing outside and this is spring coming
on very soon, and that there's an attempt to
try to warm up the atmosphere.
But I would just remind the members
that we're not here to really discuss global
solutions, we're here to discuss the bill.
And so if you could continue to have your
conversations about the elements of the bill,
that would be, I think, pertinent, and I think
the appropriate word is germane to the
discussion here before us today.
So with that, Senator Schneiderman,
I think Senator Balboni has in fact yielded to
a question.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. I think trips to the White
House sometimes can take what was once
statewide and make it nationwide, so we have
gotten a bit global.
My question on the bill at this
point is directed to the section on page 2,
line 32. And this paragraph appears to
eliminate the requirement in New York law that
you can't be convicted upon the testimony of
an accomplice unsupported by corroborative
1154
evidence. Is that correct, that that
requirement is being eliminated by this
paragraph?
SENATOR BALBONI: That is
correct.
SENATOR SCHNEIDERMAN: And
through you, Mr. President, is that something
that the sponsor supports for all crimes, or
is this something that you only think should
be applicable in this particular situation?
SENATOR BALBONI: Through you,
Mr. President, on the substance of the bill,
this particular section refers to Section
125.27 of the Penal Law specifically.
SENATOR SCHNEIDERMAN: Yes. And
it --
SENATOR BALBONI: There are no
other crimes contemplated.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, and --
ACTING PRESIDENT KUHL: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT KUHL: The
1155
Senator continues to yield.
SENATOR SCHNEIDERMAN: And I'm
not sure I got an answer to my question. Is
the sponsor saying that he does not support
repealing this requirement for other crimes,
or that he does support repealing this
requirement for other crimes?
SENATOR BALBONI: Mr. President,
through you, the section specifically refers
to crimes of terrorism. None other. And that
is the only crime of which I would support
such a waiver.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the sponsor
would continue to yield.
ACTING PRESIDENT KUHL: Senator
Balboni, do you continue to yield?
SENATOR BALBONI: Yes, Mr.
President.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR SCHNEIDERMAN: Turning to
the provision relating to the exclusionary
rule on page 11 of the proposed legislation,
an issue that was raised last year but not
1156
really addressed, in my view, is the
following.
This bill states that the court may
not suppress evidence or order that evidence
be excluded on account of a violation of any
right accorded by the Fourth Amendment to the
Constitution of the United States or Section
12, Article 1 of the constitution of this
state, if the court finds after a hearing that
the law enforcement officer or officers acted
in good faith.
So this section tells the courts of
our state that they are not allowed to follow
the precedents of the United States Supreme
Court with regard to the Fourth Amendment to
the federal Constitution. And my question to
the sponsor is, isn't that an unlawful act if
we attempt to direct courts not to follow
binding precedent on the federal Constitution
from the United States Supreme Court?
SENATOR BALBONI: Mr. President,
through you, the language is specific. First
off, the evidence would only be permitted
after a court has ruled that the officers
acted with good faith.
1157
And now, so that we can flesh this
out just a little bit within the parameters of
germaneness, what I mean by "good faith" is
that if you torture a victim in order to get a
confession out of them, that would not be good
faith. If you planted evidence in someone's
apartment, that would not be good faith. In
other words, the actions of the police
officers were lawful, but perhaps under
existing laws of evidence would not be
admissible.
And remember, again, what we're
talking about here. We're not talking about
exclusions from liability on behalf of the
actions of police officers during the course
of their investigation. We are talking about
the admission of evidence into court in a
court case. It does not mean conviction, it
means consideration by the jury.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. Thank the sponsor for his
answers. And I would like to speak on the
bill.
SENATOR BALBONI: Thank you, Mr.
President.
1158
ACTING PRESIDENT KUHL: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I think
that the problem some of us have with this
legislation -- and I think everyone recognizes
that Senator Balboni's commitment to the issue
of trying to move our state forward in the
battle against terrorism is a commitment that
preceded September 11th.
The problem a lot of us have with
this legislation is it reflects a
fundamentally flawed approach to combatting
not just terrorism but crime. The Fourth
Amendment to the Constitution, which states
that the right of the people to be secure in
their persons, houses, papers, and effects
against unreasonable searches and seizures
shall not be violated, and no warrant shall
issue but on probable cause supported by oath
or affirmation, and particularly describing
the place to be searched and the persons or
things to be seized -- the Fourth Amendment
requires a warrant for a search.
Under federal law, there is a
good-faith exception to this requirement only
1159
if there was a mistake or an error and a
police officer obtained a warrant, it wasn't a
proper warrant, but acted in good faith
believing there was a warrant. But there is a
requirement for a warrant.
And I would respectfully submit,
for all of the discussion of how we are in new
territory here, in 1789 when the Fourth
Amendment was enacted into law, we had just
come out of a much worse domestic crisis than
what we're facing now, and espionage and death
in the streets in our own country were fresh
in people's minds. We used to celebrate
Evacuation Day when we had to evacuate from
the British in this state.
Now, the flawed approach that is in
this legislation -- and believe me, I believe
there are some very good things in this
legislation. The provisions relating to money
laundering I think are good. But the flawed
approach that's going to prevent this from
ever becoming law -- because I don't think
it's going to ever pass in the other house,
and it should not -- is that you don't fight
terrorism by reducing the standards required
1160
to convict someone. You don't take away the
constitutional rights that guarantee as best
we can that innocent people don't go to
prison. Because that's not an effective way
to fight terrorism. That's an effective way
to lock up innocent people.
And it is clear to me that this
provision relating to attempting to expand the
good-faith requirement relating to the
exclusionary rule without requiring a warrant
goes beyond federal law. I think this would
be an unlawful section of law if we enacted
it, and it would be struck down by the courts.
My concern, though, is we've seen
this bill before. And I don't want to end
this session with us saying, Well, we passed
these tough bills, and the Assembly doesn't do
it and, you know, if they weren't wimps, we
would be able to fight terrorism better. The
point here is not to posture, the point is to
actual pass something that becomes a law.
And you do not strengthen our
country in our efforts to fight terrorism by
making it easier to convict innocent people,
by reducing a rule, the exclusionary rule,
1161
that has worked for many, many years to deter
bad conduct by the authorities.
In fact, I would respectfully
suggest to Senator Balboni, as he makes his
travels around the country and the world in
his effort to work on these issues, that it is
in fact our constitutional protections that
are what -- that are the essence of the United
States. It's the essence of what makes us
different from the countries that terrorists
would like us to emulate.
I mean, we have a country where
pluralism is supported, where authorities are
subject to limitation. The people who we're
fighting with now would like us to live in a
theocracy where there are no limitations on
authority.
Let's not get rid of the very thing
that creates the country, that provides a
framework for the nation, that has dominated
the world because of our success of a system
that works with checks and balances. Limits
on authority are a good thing. A high
standard before you convict someone of a crime
is a good thing.
1162
We have been through many crises.
We didn't eliminate the Fourth Amendment
during World War II. We didn't eliminate the
Fourth Amendment during the period of the Cold
War, when, as Senator Volker points out, there
was a lot more espionage activity going on.
Let's draft a bill that we can pass
into law that includes the money laundering
provisions, that provides the strengthening
that our police officers need. And let's not
get carried away with all of this high-tech
talk. What makes people safe? More police on
the streets, better-paid police officers,
better cooperation between police and the
community. Let's not get hung up on issues
that don't actually make people safer.
I would like to pass a bill that
includes some of these provisions this
session. We know this bill is not going to
pass. And I would respectfully suggest to the
sponsor, who I know is extremely sincere in
his efforts to deal with this issue, that if
we take away the elements that suggest we
fight crime better by making it easier to
convict innocent people, then we might be able
1163
to craft legislation that could pass both
houses and become a law. That's not this
bill.
I look forward to seeing something
better before this session is out. But as it
is, I will vote no and I urge everyone to vote
no.
Thank you.
ACTING PRESIDENT KUHL: Any other
Senator wishing to speak on the bill?
Hearing none, the Secretary will
read the last section.
THE SECRETARY: Section 34. This
act shall take effect immediately.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, why do you rise?
SENATOR HASSELL-THOMPSON: Mr.
President, I just rise to --
ACTING PRESIDENT KUHL: Explain
your vote?
SENATOR HASSELL-THOMPSON: -- to
explain my vote.
1164
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, to explain her vote.
SENATOR HASSELL-THOMPSON: Thank
you.
ACTING PRESIDENT KUHL: Keep your
hands up so the Secretary can record your
votes.
SENATOR HASSELL-THOMPSON: Mr.
President, for many weeks I sat with Senator
Balboni -- and I forgot to commend him, by the
way, for doing an extraordinary job with his
joint committee. And I sat with him and our
committee for several weeks as we listened to
testimony after testimony. And certainly,
having done so, it would appear that I should
find it impossible to vote against this bill.
But I cannot.
I do not find it impossible to vote
against the bill for two reasons. Clearly,
this proposal fails to reasonably balance
individuals' privacy interests in an attempt
for law enforcement. The other concern that I
have about this bill is that the good-faith
exemption and warrantless searches and
seizures would render our Fourth Amendment
1165
virtually worthless.
The goals of terrorism, as I see
it, is to destroy the ideals for which this
country stands. In our desire to protect
ourselves, let us be careful that we do not
erode these ideals and constitutional freedoms
and do a better job than terrorists would ever
do.
I vote no.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson will be recorded in the
negative.
Senator Montgomery, why do you
rise?
SENATOR MONTGOMERY: Yes, Mr.
President, just briefly to explain my vote.
ACTING PRESIDENT KUHL: Senator
Montgomery, to explain her vote.
SENATOR MONTGOMERY: Thank you.
There are a couple of areas in this
legislation that concern me greatly.
Certainly the good-faith exception to the
Fourth Amendment and to Article 1, Section 12,
of our State Constitution I think is a real
problem that's been proposed in other
1166
legislation. And I certainly oppose that. I
think it's extremely problematic to be
thinking along those lines.
And I also am concerned about the
need to divulge information on an individual's
personal tax information and so forth and so
on.
But I was in Senator -- I was in
Queens, Far Rockaway, last Friday. Watch it.
Whose district is that? And I noted that the
planes flying over, I could read the lettering
on the belly of the plane. And I thought,
gee, this is very, very interesting. The
vulnerabilities are very serious for us,
specifically in New York City. Particularly
in New York City.
And I have given up so much of my
freedom. I left my -- I forgot my ID card
yesterday and I couldn't go to the cafeteria
because I could not have gotten back in
without being searched. And I didn't watch
want to have my person searched.
So I've given up a lot of freedom.
We all have, already, in the name of terrorism
and security and homeland security and all of
1167
those things. So I'm going vote yes on this
bill, because I think that I understand
Senator Balboni's sense of nervousness.
I would caution him, however, that
I don't see anything in this bill that would
protect us from an attack in the first place.
He is going punish the terrorists severely,
but he still is not protecting us. Nor is the
federal homeland security agency protecting
us. I just want to remind him of that point.
So I'm going to vote yes, because I
think his heart is in the right place. He's
trying to do the right thing, and I appreciate
that.
Thank you.
ACTING PRESIDENT KUHL: Senator
Montgomery will be recorded in the
affirmative. Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 498 are
Senators Connor, Dilán, Duane, Gonzalez,
Hassell-Thompson, L. Krueger, Parker,
Paterson, Schneiderman, and A. Smith. Ayes,
51. Nays, 10.
ACTING PRESIDENT KUHL: The bill
1168
is passed.
The Secretary will continue the
controversial reading.
THE SECRETARY: Calendar Number
508, by Senator Balboni, Senate Print 5749A,
an act to amend the Penal Law, in relation to
establishing definitions.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 12. This
act shall take effect on the first of
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negative and announce the results.
THE SECRETARY: Ayes, 60. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT KUHL: The bill
is passed.
Senator Morahan, that completes the
controversial reading of Supplemental Calendar
19A.
SENATOR MORAHAN: Thank you, Mr.
1169
President. Can we return to reports of
committees. I believe there's a Health
Committee report at the desk.
ACTING PRESIDENT KUHL: There is
a report of the Health Committee at the desk.
We'll return to the order of
reports of standing committees. I ask the
Secretary to read.
THE SECRETARY: Senator Hannon,
from the Committee on Health, reports the
following bills:
Senate Print 3899, by Senator
Hannon, an act to create a task force;
5446B, by Senator Robach, an act to
amend the Public Health Law;
6097, by Senator Johnson, an act to
amend Chapter 572 of the Laws of 1994;
6174, by Senator Hannon, an act to
amend Chapter 884 of the Laws of 1990;
And Senate Print 6428, by Senator
Hannon, an act to amend Chapter 904 of the
Laws of 1984.
All bills ordered direct to third
reading.
ACTING PRESIDENT KUHL: Without
1170
objection, all bills are ordered directly to
third reading.
Senator Morahan.
SENATOR MORAHAN: Mr. President,
is there any housekeeping at the desk?
ACTING PRESIDENT KUHL: We do.
The chair recognizes Senator
Marcellino.
SENATOR MARCELLINO: Mr.
President, on page number 11 I offer the
following amendments to Calendar Number 209,
Senate Print Number 6007A, and ask that the
bill retain its place on the Third Reading
Calendar.
ACTING PRESIDENT KUHL: The
amendments to Calendar Number 209 are received
and accepted, and the bill will retain its
place on the Third Reading Calendar.
Senator Morahan.
SENATOR MORAHAN: There being no
further business before the Senate, I move
that we adjourn and that we stand in recess
until tomorrow morning at 11:00 a.m.,
March 17th.
ACTING PRESIDENT KUHL: On
1171
motion, the Senate stands adjourned until
tomorrow, Wednesday, 11:00 a.m.
(Whereupon, at 5:09 p.m., the
Senate adjourned.)