Regular Session - March 22, 2004
1201
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 22, 2004
3:16 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.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Saturday, March 20, the Senate met pursuant to
adjournment. The Journal of Friday, March 19,
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.
1203
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Spano,
from the Committee on Investigations and
Government Operations, reports:
Senate Print 5342, by Senator
Wright, an act to amend Chapter 519 of the
Laws of 1999;
5736, by Senator Meier, an act to
amend the Tax Law;
5737, by Senator Meier, an act to
amend the Tax Law;
5738, by Senator Meier, an act to
amend the Tax Law;
5894, by Senator Farley, an act to
amend the Tax Law;
6115, by Senator Maltese, an act to
amend the Public Officers Law;
6162, by Senator McGee, an act to
amend the Tax Law;
6228, by Senator Alesi, an act to
amend the Alcoholic Beverage Control Law;
And Senate Print 6240, by Senator
McGee, an act to amend the Alcoholic Beverage
1204
Control Law.
All bills ordered direct to third
reading.
THE PRESIDENT: All bills
reported direct to third reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Madam President.
On page number 29 I offer the
following amendments to Calendar Number 477,
Senate Print Number 4988, and ask that said
bill retain its place on Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
SENATOR FUSCHILLO: On behalf of
Senator Maltese, on page number 13 I offer the
following amendments to Calendar Number 271,
Senate Print Number 93, and ask that said bill
retain its place on Third Reading Calendar.
1205
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
SENATOR FUSCHILLO: On behalf of
Senator Robach, on page number 25 I offer the
following amendments to Calendar Number 423,
Senate Print Number 6300, and ask that said
bill retain its place on Third Reading
Calendar.
THE PRESIDENT: Those amendments
are also received, and the bill will retain
its place on the Third Reading Calendar.
SENATOR FUSCHILLO: On behalf of
Senator McGee, on page number 28 I offer the
following amendments to Calendar Number 471,
Senate Print Number 2776B, and ask that said
bill retain its place on Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
SENATOR FUSCHILLO: On behalf of
Senator LaValle, I wish to call up Senate
Print Number 839, recalled from the Assembly,
which is now at the desk.
1206
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
6, by Senator LaValle, Senate Print 839, an
act to amend the Town Law.
SENATOR FUSCHILLO: 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, 44.
SENATOR FUSCHILLO: I now offer
the following amendments.
THE PRESIDENT: The amendments
are received.
Senator Skelos.
SENATOR SKELOS: Madam President,
we are about to go to the reading of the
noncontroversial calendar.
But before we do that, I would like
to, on behalf of the entire Senate, wish you a
happy birthday.
(Applause.)
THE PRESIDENT: Thank you very
1207
much. I appreciate that.
And does that mean a very short
session, Senator? Thank you.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Yes, I
might add that the color looks very good.
THE PRESIDENT: Thank you.
You're referring to my blazer, of course.
SENATOR SCHNEIDERMAN: No, you're
blushing.
THE PRESIDENT: Oh, not my tan.
Well, that's good.
Senator Skelos.
SENATOR SKELOS: Thank you, Madam
President. If we could go to the reading of
the noncontroversial calendar.
THE PRESIDENT: The Secretary,
please, will read.
THE SECRETARY: Calendar Number
26, by Senator Kuhl, Senate Print 1429, an act
to amend the Vehicle and Traffic Law, in
relation to exempting.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
1208
aside.
THE SECRETARY: Calendar Number
56, by Senator Leibell, Senate Print 4838, an
act to amend the Public Authorities Law, in
relation to the special powers of the New York
State Environmental Facilities Corporation.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
175, by Senator Larkin, Senate Print 5864, an
act to amend the Agriculture and Markets Law,
in relation to authorizing.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
1209
THE SECRETARY: Ayes, 51.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
283, by Senator Padavan, Senate Print 52, an
act to amend the State Administrative
Procedure Act, in relation to denial,
suspension and revocation.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
313, by Senator Spano, Senate Print 4228, an
act to amend the Tax Law, in relation to
adjudication of penalties assessed.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
THE PRESIDENT: The bill is
passed.
1210
THE SECRETARY: Calendar Number
440, by Senator Balboni, Senate Print 513, an
act to amend the Vehicle and Traffic Law, in
relation to aggravated unlicensed operation.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the 90th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 440 are
Senators Duane and Hassell-Thompson. Ayes,
51. Nays, 2.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
487, by Senator Saland, Senate Print 215, an
act to amend the Penal Law, in relation to
including school buses within the definition
of "school grounds."
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
1211
September.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
488, by Senator Volker, Senate Print 1109, an
act to amend the Criminal Procedure Law, in
relation to appeals from certain orders of
suppression.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
489, by Senator Volker, Senate Print 1384, an
act to amend the Criminal Procedure Law, in
relation to proof of the commission.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
Senator Morahan, do you wish to be
recognized?
1212
SENATOR MORAHAN: Thank you,
Madam President.
There will be an immediate meeting
of the Higher Education Committee in the
Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Higher Education
Committee in the Majority Conference Room.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
494, by Senator Flanagan, Senate Print 3582,
an --
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
509, by Senator Maziarz, Senate Print 930A --
SENATOR SCHNEIDERMAN: Oh,
definitely lay that aside.
(Laughter.)
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
1213
517, by Senator Meier, Senate Print 6357, an
act to amend Chapter 906 of the Laws of 1984
amending the Social Services Law.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
THE PRESIDENT: The bill is
passed.
Senator Morahan, that completes the
noncontroversial reading of the calendar.
SENATOR MORAHAN: Thank you,
Madam President. Can we now have the reading
of the controversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
26, by Senator Kuhl, Senate Print 1429, an act
to amend the Vehicle and Traffic Law.
SENATOR MONTGOMERY: Explanation.
THE PRESIDENT: Senator Kuhl, an
explanation has been requested.
1214
SENATOR KUHL: Thank you, Madam
President.
This bill is a very simple bill.
It's just that currently in the State of
New York there's a requirement that says that
people who ride bicycles are required to wear
a helmet. There are times in my district when
the religious tenets of Mennonites and Amish
people actually put them in a position where
they have to make a choice whether to comply
with their religious requirements or to wear a
helmet, because they can't do both.
This bill would essentially exempt
them from having to make that choice, but it
would allow them to continue to wear the hats
or the bonnets, which actually prohibit them
from wearing helmets.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I would like to know if Senator
Kuhl would yield for a question.
THE PRESIDENT: Senator Kuhl,
will you waive your time for a question?
SENATOR KUHL: Yes, I'd be happy
1215
to answer any questions Senator Montgomery
might have.
THE PRESIDENT: The Senator
yields, Senator Montgomery.
SENATOR MONTGOMERY: Thank you,
Senator Kuhl. I just wanted to know, this is
specifically applicable to children under the
age of 14?
SENATOR KUHL: I believe that's
what the law says, Senator.
SENATOR MONTGOMERY: Okay. Thank
you, Senator.
Madam President, I know I have
voted against this in the past. And I'm going
to continue to oppose this legislation
because, even though I fully respect the
religious tenets of all groups, I think that
we have a special obligation to protect the
interests of children, who really are not in
the position to be an independent agent and to
decide for themselves whether they want it
wear the helmet or not or how important it is
to their safety or whether they want to
respect a religious tenet that they or may not
even understand yet.
1216
So I'm going to oppose this because
I think that we should protect all children
equally, and that adults certainly should have
the option to make those decisions, but not
children.
Thank you.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Senator Lachman.
SENATOR LACHMAN: Yes, Madam
Chair. It's a pleasure to ask to be heard on
the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR LACHMAN: Thank you.
This bill has legal precedent going
back to 1973 in a court case known as Yoder v.
Wisconsin. It dealt with the Amish
community -- some call them Aim-ish -- the
Amish community, and the Amish community did
not want any of their children to attend
classes beyond the 8th grade. Now, the
Wisconsin state constitution said that every
child in the state of Wisconsin must attend
school until the age of 16 -- must attend
1217
school.
Now, the Supreme Court of Wisconsin
reviewed the Amish case, and they looked at
the First Amendment to the Constitution, which
I believe is America's greatest gift to
religion in the world. It's the separation of
church and state. At the same time, it also
states that there should not be anything that
would get in the way of freedom of religion,
that this must be expressed positively.
Now, that is why the Wisconsin
Supreme Court -- and I believe it was appealed
to the U.S. Supreme Court -- sided with the
Amish community. It would be a diminution of
their religious expression.
Now, therefore, in Wisconsin and in
other states Amish children leave school when
they're 12 or 13 -- before the age of 16,
which is mandatory for everyone else -- in
order to have this free expression of their
religion.
Now, this is another case, but it's
similar. It's similar in two ways. The Amish
community basically was an outgrowth of the
Mennonite community, which is a little bit
1218
more flexible than the Amish community. The
Amish community would not ride bicycles, it
would not ride motorcycles, whereas the
Mennonites would.
I think that Senator Kuhl is doing
a great service, not only to the Mennonite
community but to the whole concept of freedom
of religion. And since the Mennonites do not
even vote in his district, and I believe there
are about a thousand Mennonites who don't
vote, he gains nothing from them. Perhaps
their goodwill.
So in upholding the U.S.
Constitution and the First Amendment, I would
vote yes on this measure.
Thank you.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
1219
the negative on Calendar Number 26 are
Senators Montgomery and Stachowski. Ayes, 51.
Nays, 2.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
283, by Senator Padavan, Senate Print 52, an
act to amend the State Administrative
Procedure Act, in relation to denial,
suspension and revocation of a license.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Padavan,
an explanation has been requested.
SENATOR PADAVAN: This bill,
which has been considered by this house on
several prior occasions, would deny, suspend
or revoke a license permissively by any state
agency for a period of not greater than five
years, on the basis of two violations of
federal law dealing with the hiring of
unauthorized aliens.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
1220
Madam President. If the sponsor would yield
for a few questions.
SENATOR PADAVAN: Yes.
THE PRESIDENT: Senator Padavan
does yield. You may proceed, Senator
Schneiderman, with a question.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President, this
legislation appears to be permissive in that
it permits an agency to revoke a license. Are
there any standards of any kind set forth in
this bill or anywhere else that would guide
that discretion and determine when an agency
would revoke a license and when it would not,
under the circumstances contemplated in this
bill?
SENATOR PADAVAN: As I explained,
Senator, the standard that is applied here
would be, number one, for a period of not
greater than five years, and on the basis of
two violations occurring in a five-year
period. That's the standard.
The specifics of the federal law
are clear, and that is referred to in this
proposed bill. Having violated that federal
1221
statute, either section of it, twice in five
years, a given state agency could, could
consider the revocation of a license.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President.
My question, though, is about the
"could." This makes it permissive for an
agency to revoke a license if the licensee
violates the specified federal law twice in a
five-year period. But it doesn't require the
agency to revoke the license.
SENATOR PADAVAN: No, it does
not.
SENATOR SCHNEIDERMAN: And the
question is, what would be the standard or
what guidelines are given for whether or not
an agency would actually do the revocation?
SENATOR PADAVAN: Senator, there
are literally dozens and dozens of licenses
issued by various state agencies. Let me
suggest just one of them.
The Department of Transportation
licenses the transportation of hazardous
materials, which includes explosives. That
agency, if it found out the firm that they are
1222
licensing or the individual they are licensing
is in violation of federal law, having hired
unauthorized illegal aliens, they would
consider within their judgment whether or not
to revoke that license.
The standard is one of common
sense. It would have to be applied by every
agency that issues a state license.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President, if the sponsor
would continue to yield.
SENATOR PADAVAN: I yield.
THE PRESIDENT: The sponsor does
yield.
You may proceed, Senator
Schneiderman.
SENATOR SCHNEIDERMAN: And has
there been any study or research into the
effect this would have on businesses in the
state, whether this would have a negative
impact on businesses in this state as opposed
to other states where similar legislation was
not in place?
SENATOR PADAVAN: No such study
was ever done, to my knowledge, Senator.
1223
SENATOR SCHNEIDERMAN: Thank you.
I'd like to thank the sponsor for his answers
and speak on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR SCHNEIDERMAN: It's
interesting to watch the progression of our
national debate over immigration and over the
presence of many immigrants here who are not
properly documented. I note that the
President of the United States has proposed a
program that would essentially allow many
immigrants who are here without documentation
to remain here working for businesses such as
those that would be affected by this
legislation.
And my sense is that our national
debate is moving, really, in some respects
away from the position reflected in this
proposed bill. The fact is that we have many
millions of undocumented immigrants living
among us. They work with us, we know them,
they work in businesses here. And the answer
to the problems posed by their presence in
this country and the extraordinarily
1224
complicated series of issues that it raises --
given the fact that their children are
citizens and other things like that -- really,
I feel, is not best addressed by punitive
legislation that intervenes in a piecemeal way
and suggests that some businesses that have
undocumented aliens and are found to have them
working there may lose a license, some others
may not, without any sort of standard.
The fact of the matter is we have
to address this issue in a national way. And
while I'm all for the state doing everything
it can do to deal with difficult issues and
not leave the federal government responsible
for things where they lack resources -- which
is a point I believe the sponsor has made in
relation to immigration on other issues --
this is a case in which a state-by-state
approach just doesn't seem to make any sense.
The fact is we all know there are
many, many undocumented immigrants working in
businesses in New York State. Many of them do
good work. There would be a negative effect
on businesses in this state, I submit, if this
became law. But also this would have a
1225
chilling effect, I believe, on businesses'
willingness to hire anyone they thought might
be an undocumented immigrant. This could have
a chilling effect on their willingness to hire
people who maybe appear to be from some other
country or look different to some of the
business owners.
And I think that the answer to this
really has to come at the federal level. And
the answer has to incorporate an approach that
I believe, although I disagree with the
details of his proposal, is contemplated by
President Bush's proposal for immigration
reform, which is that we have to accept the
reality of the millions of undocumented
immigrants here, of our dependence on them
economically, and accept in the spirit in
which America was founded that we are a nation
of immigrants, we have a particular set of
problems unique to the situation that we face
today.
It's different than what we faced
with previous waves of immigrants. But the
solution has never been, the solution has
never been arbitrary revocation of licenses on
1226
what the sponsor calls a common-sense basis.
But that's to say that it's up to
the discretion of anyone who runs a state
agency. There might be someone who runs an
agency who is particularly tough on this
issue; there might be someone who runs a
different agency who's not. There can be
severely varying standards imposed by
different agencies or by the same agency. Say
someone who had a very strong anti-immigrant
animus was the head of an agency and was
revoking people's licenses left and right, and
then was replaced by someone who was more
sympathetic.
This is not something that I think
would work in a practical way. I believe it
would impose a penalty on businesses in
New York and disadvantage them relative to
other states. And I do think it would also
have a chilling effect on their willingness to
hire immigrants and hire people who they might
even suspect were immigrants.
So I have voted no on this. I will
vote no again, but with more of a sense that
the debate on the issues related to the
1227
presence of undocumented immigrants in this
country is shifting. We're moving towards
trying to develop a national consensus on how
to solve the problem. I think we -- I hope we
will, in the years to come, do that. But I
think that debate is shifting away from the
approach reflected in this bill, and I would
urge everyone to vote no.
Thank you, Madam President.
THE PRESIDENT: Senator Sabini.
SENATOR SABINI: Thank you, Madam
President. On the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR SABINI: I share the
sponsor's concern about people who have
entered the country illegally. However, two
of the items that Senator Schneiderman has
raised I want to echo.
I think that it's wrong to enforce
federal policy with state law. And I think
that that's what this bill seeks to do. And I
also think it would bring a situation where
people who are foreign-born or who may speak
with an accent would be at a disadvantage in
1228
seeking employment in the private sector
because employers would be fearful of any
penalties if the person was found to be
undocumented later on at a future time.
I represent a district where
probably three out of every four people are
foreign-born, and I would not want to see them
at a disadvantage when going on a job
interview and seeking employment, especially
if they weren't guilty of any violation but
that the judgment of the employer would be
toward cancelling out their qualifications and
putting someone ahead who may be American-born
but no more or no less a citizen than someone
who's foreign-born and a citizen and would
make employers, I fear, a little suspicious of
those who may not look or act or sound like
them.
So I'll be voting against with the
bill, with the understanding that the sponsor
has some legitimate concerns but that the net
effect may be wrong, and that I also really
don't believe we should be using state law to
enforce federal policy.
Thank you.
1229
THE PRESIDENT: Senator Padavan.
SENATOR PADAVAN: Madam
President, I should really just be quiet and
let the vote take place as it has on other
occasions. But, frankly, some of the things
that have been said by the previous two
speakers are disturbing to me.
Their suggestion that this is some
sort of an xenophobic approach to immigration
is totally wrong. If you look at the federal
statute that we're referring to in our bill,
the violation of that federal statute is a
criminal act, subject to imprisonment --
depending, of course, upon the conditions and
all of the other factors surrounding it. But
it is a criminal act.
Now, we're saying here that if
someone has committed a criminal act under
federal law -- not charged with a criminal
act, convicted of a criminal act, twice over a
five-year period, then one of our agencies may
consider revoking that license. Now, I don't
consider that either overbearing or overly
aggressive. I consider it reasonable.
We're not trying to be punitive.
1230
We're not trying to discourage the employment
of immigrants. But we do have a
responsibility as a state to issue myriad
licenses for all kinds of things. And I think
we have a responsibility to the people of this
state, who are subjected to the actions of
that licensee, to ensure that that licensee is
not in violation of federal law on a
repetitive basis. A criminal act on a federal
basis, more than once. I repeat it.
I think this is a reasonable
approach. Now, if we had mandated, which we
don't -- if we had said first offense, which
we don't -- you might have an argument. But
we're talking about an entity that knowingly
violated federal law twice. And we then are
therefore going to consider some action as a
state with its inherent responsibility to
protect its citizens.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. On the bill.
THE PRESIDENT: You may proceed,
Senator.
SENATOR LIZ KRUEGER: Thank you.
1231
I will continue to vote no on this
bill, as I did last year. And I do want to
reinforce some of the comments that my
previous colleagues talked about, the fact
that you are likely to open up people to
discrimination in attempting to apply for jobs
if in fact an employer feels that they are at
greater risk for hiring you because perhaps
English is not your first language or because
you have a foreign-sounding last name. And
there is a long history of that in this
country.
So whether or not they would ever
be found guilty, as Senator Padavan describes,
under federal law of a criminal act, if this
law serves to increase the possibility of
discrimination against people when they apply
for jobs, that is a law that we should think
very carefully and long and hard about before
we pass.
But in response to Senator
Padavan's most recent statement, my other
concern about this bill is in fact that you
leave it to the discretion of agencies. If
you had a bill that said we will do away with
1232
your license if you've been found guilty
twice, and we laid out what those licenses
were, I'd have less concern over the
alternative discrimination in this bill, which
is the possibility or the likelihood that a
state agency is going to be more likely to
pull the license of some small neighborhood
business found guilty than it is likely to
pull the license of a major corporation that
might employ 5,000 or 10,000 or 15,000 people
in the state of New York.
And I don't think we should be
passing laws that have the possibility of
being discriminatory against the size of the
business as well. Because, let's face it,
larger organizations, larger companies are in
a better position to advocate and negotiate
with state agencies than your small restaurant
or your small neighborhood store who might
have been found guilty under this charge.
And so I don't think that we in the
State of New York want to be passing bills
that on either end of the spectrum open up the
possibility of increased discrimination
against people when they apply to work at
1233
companies or can result in being discriminated
against, as the companies, by various state
agencies because we're leaving the discretion
so broadly which agency, which license, as
they see fit.
If in fact there is guilt by the
company in being found to have violated the
federal act twice, then there ought to be
equally specific standards in state law for
how we apply a determination at the state
level about whether they lose a license or
not.
So I'll be voting no on this bill
for multiple reasons.
Thank you, Madam President.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: Madam
President, on the bill.
THE PRESIDENT: You may proceed,
Senator.
SENATOR STAVISKY: It's extremely
hard for many people to get a job,
particularly in today's economy, no matter
what people say, particularly at the bottom
end of the economic ladder. It's hard for
1234
people to get a job, but it's even harder if
they don't look like you and me.
I have a great many constituents,
approximately over 100,000 people who have
come to the United States -- hopefully, most
them are here legally; perhaps not. But those
people who are here legally are having a very
difficult time finding a job.
And this legislation is going to
make it even harder, because the manufacturer
or the restaurant or whatever the type of
employment may be involved, it's going to be
harder for these people, even if they're here
legally, to get a job.
And for that reason, I think it
puts them at a severe disadvantage, and I will
be voting no.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
1235
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 283 are
Senators Andrews, Diaz, Dilán, Duane,
Hassell-Thompson, L. Krueger, Lachman, Mendez,
Montgomery, Parker, Paterson, Sabini,
Schneiderman, A. Smith, M. Smith, and
Stavisky. Ayes, 41. Nays, 16.
THE PRESIDENT: The bill is
passed.
Senator Libous.
SENATOR LIBOUS: Thank you, Madam
President. Could I ask for unanimous consent
to be recorded in the negative on Calendar
Number 26.
THE PRESIDENT: Hearing no
objection, you will be so recorded as voting
in the negative.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
488, by Senator Volker, Senate Print 1109, an
act to amend the Criminal Procedure Law, in
relation to appeals from certain orders of
suppression.
1236
SENATOR VOLKER: Madam President.
THE PRESIDENT: Senator Volker.
SENATOR VOLKER: This is a bill
that has passed this house for several years,
and we're hoping that it's passing for the
last time, because we'd like to get this done.
I realize that there are some
defense attorneys in the other house who
simply look at this and say, well, it gives
certain people some assistance. But what this
really is, it authorizes the people to appeal
an intermediate order from an appellate court
from an order excluding the introduction of
evidence.
Right now, you can appeal to an
intermediate court from an order suppressing
evidence. But because of the Myers case,
where I think the judge -- you know, I don't
know exactly what the judge was thinking, but
neither here nor there. You cannot appeal
from an order that precludes the introduction
of evidence.
And when you really think of it, I
guess the reason is because very often what
the preclusion of evidence will do is make the
1237
situation so that you can't move ahead. And
therefore, many of the cases then fall by the
wayside.
So what we are saying here is at
least give an opportunity to the people to
make a petition to an intermediate court to
further review the evidence where an order
precluding the introduction of evidence has
been made.
Any questions?
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR VOLKER: By the way,
Senator, you voted for this last year, I just
want you to know.
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. If the sponsor would yield,
please.
SENATOR VOLKER: Certainly.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: He got me
confused because he was jumping the gun.
1238
Yes, I did vote for this, Senator
Volker. And I do have one question.
SENATOR VOLKER: Sure.
SENATOR LIZ KRUEGER: On the
theory of, I don't know, equity, would this
bill also allow the defendant to appeal
preclusion of evidence in a case in a parallel
way? Or just the prosecutor?
SENATOR VOLKER: I think the
defendant can always appeal a preclusion of
evidence, one way or another. The problem is
it's the prosecution that can't.
The -- the -- what can happen is --
of course, most of the time you do it after
the case. But, you know, you can -- certainly
you can appeal if a judge who's asked to
preclude evidence refuses to do it, you can
appeal from that, eventually, and say that
judge should have precluded the evidence and
didn't and therefore I was prosecuted.
And therefore, on the appeal, and
if a judge looks at it and says he was wrong,
you can in fact throw out the case. In most
cases, you'd throw the whole case out because
you threw the evidence out.
1239
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR LIZ KRUEGER: Madam
President, quickly on the bill.
ACTING PRESIDENT McGEE: Senator
Krueger, on the bill.
SENATOR LIZ KRUEGER: Thank you.
Senator Volker has me at a
disadvantage because I have been neither a
prosecutor nor a defendant in a criminal case.
So I'm going to take him at his word that
there would be some equity and balance in
allowing prosecutors to have this ability to
appeal. And I will vote for his bill again
this year, hoping that before this becomes a
two-house bill -- because as I see, it is
still just a one-house bill -- we get a formal
answer on whether in fact there is equal
possibilities for both the prosecution and the
defendants to take advantage of this right if
it in fact goes into law.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
1240
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
489, by Senator Volker, Senate Print 1384, an
act to amend the Criminal Procedure Law --
SENATOR LIZ KRUEGER:
Explanation.
ACTING PRESIDENT McGEE: Senator
Volker, an explanation has been requested by
Senator Liz Krueger.
SENATOR VOLKER: As I said last
year, this bill almost passed unanimously
also, except for about 15 people.
(Laughter.)
SENATOR VOLKER: Actually, very
quickly, I was looking at the history of this
bill, and it was originally part of the Sexual
Assault Reform Act, which was drafted back in
1241
1997. And what actually is here is what we
were not able to get passed when we negotiated
the Sexual Assault Reform Act several years
ago. And there was another piece of this I
think we passed last year, as part of an
amendment to the Sexual Assault Reform Act.
This legislation really involves
three areas. And as usual, in my -- I try to
be candorous [sic] -- or I try to show candor.
"Candorous" is bad. The first part of the
bill, which is I think probably the main part
of the bill, although some would argue the
latter parts are very, very important also,
relates to the ability of the people to
provide evidence of prior bad acts.
Now, prior to the Molineaux rule --
and I happened to realize, as I was reading
last year's debate -- and I hesitate to tell
Senator Schneiderman, but he made an error
last year. And I didn't even catch it. And
the error was -- you know, when you can read
debates two or three times, you can figure
those things out. I made a lot of errors.
No, he said that prior to the
Molineaux case, you couldn't bring in evidence
1242
of bad acts. Actually, you could, because the
law provides for limited introduction of bad
acts. And the Molineaux rule said that you
couldn't do that.
There are still areas, by the way,
in the law, such as domestic violence and
places like that, where you can bring in
evidence of bad acts by statute. But the --
after the Molineaux case in New York, which
said you can't bring in evidence of prior bad
acts, the federal courts, or the Federal
Omnibus Court Act, whatever, allows it in
limited cases.
This provision, by the way, is more
limited than the Federal Omnibus Court Act, or
whatever it is. And what it says is that only
in sexual assault cases you can bring in
evidence of previous sexual assault bad acts,
but subject to the authority of the judge to
make a decision whether the -- I'll read the
language here, if I can get it here -- whether
the -- whether it's admissible, "it may be
considered on any relevant issue unless the
court determines that its potential to unduly
prejudice the defendant substantially
1243
outweighs its probative value."
Secondly, this statute provides for
the right of the people to appeal an unduly
lenient sentence. Now, in all candor -- and I
said last year this provision does not just
apply to sexual assault cases; this applies in
general. And there are those who have argued,
including myself, that we might at some point
agree to apply this directly to sexual assault
cases if the Assembly would agree to limit it
just to sexual assault cases.
Thirdly, the final provision
relates to the right to appeal, the
prosecution to appeal unduly lenient bail and
to have a hearing, what amounts to an appeal
hearing where the people believe that the bail
that was set by the judge was too light and
therefore there should be a review of the bail
to determine whether it really is out of line
with normal bail proceedings.
And that is basically the three
main provisions of this bill.
ACTING PRESIDENT McGEE: Senator
Liz Krueger.
SENATOR LIZ KRUEGER: Thank you,
1244
Madam President. If the sponsor would yield.
SENATOR VOLKER: Sure.
ACTING PRESIDENT McGEE: Senator
Volker yields.
SENATOR LIZ KRUEGER: Thank you.
Senator Volker, as you said
yourself, this bill has come up multiple
times. It isn't going anywhere in the
Assembly. And as you admit, there are really
three completely different sections of this
bill, the first one relating sexual assault
prosecution and the other two relating to any
criminal case, although they could apply to
sexual assault.
Why don't you just separate this
bill into at least two parts, your sexual
assault arguments and then your judicial
review of bail and recognizance? Rather than
continuing to put out there on the floor a
bill where I might agree and want to support
one part of this bill but certainly couldn't
support the other two, for example.
SENATOR VOLKER: Well, I guess
the answer to that is that this is what really
effectively is left, as I say, from the old
1245
Sexual Assault Reform Act that we had
proposed, I think it was back in 1997. These
are the provisions that were taken out because
we couldn't get the Assembly to agree.
Now, if you said to me and if the
Assembly says to me, look, we'll agree to part
of this bill if you will move that out, I
would certainly be happy to do that. In fact,
you know, we're kind of waiting -- we may do
that. We're trying to see if we can do that.
But I guess the answer is, what's
the sense of passing these in separate bills?
They all relate to prosecution issues. We
might just as well leave them together, pass
this bill, because there are a lot of people
who feel very strongly that all of these
provisions are provisions that should be
passed and that are in the best interests of
the people of this state, and therefore that's
why we left them together.
But I can assure you, if I could
get any kind of assurance that any of these
provisions could see better treatment in the
other house, I'd be happy to separate them
out.
1246
SENATOR LIZ KRUEGER: Thank you.
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR LIZ KRUEGER: Briefly on
the bill, Madam President.
ACTING PRESIDENT McGEE: Senator
Krueger, on the bill.
SENATOR LIZ KRUEGER: I
appreciate Senator Volker's answer to my
question, but it still leaves me in the
dilemma that I could not vote for this bill
because, on his logic that since they all
relate to prosecution we should keep them
together, we probably work on or even pass in
this house three, four, five bills a week
relating to prosecution cases. By the way,
bills that don't go through the Assembly and
are one-house bills. So on that theory, we
might as well do an omnibus act, which this is
not.
But this combines three separate
issues, some of which might come together in
some sexual assault cases. I recognize that,
and I've read the history of the particular
case that is referenced in the memo attached
1247
to the bill.
But the fact is when you're talking
about wanting to provide for a new process for
overriding judicial decisions about bail and
recognizance, a new opportunity for the
prosecution only to appeal what they define as
unduly lenient sentences, you are talking
about radical changes in our structure of our
court system today.
And I think, frankly, it is unfair
to try to blend these two fairly radical
proposals in with the argument -- that is
perhaps much more sensitive to many people --
about documentation of a history of sexual
assault in a sexual assault case.
So I do not share Senator Volker's
opinion that these three acts -- excuse me,
these three proposed changes are in one act
because they naturally go together, but I
rather think the concern should be that
legislators will feel, well, if they feel
strongly about one section of the three, they
have to vote for the bill even if they may
have significant uncomfort levels with two
completely unrelated sections of the bill.
1248
So I guess I have concerns about
the germaneness of the way these three
sections are brought together in one bill, and
I'm also very uncomfortable with our going
forward with several of the sections, as I
described. So I will be voting no and urge my
colleagues to at least think through the three
different sections of the bill and the fact
that their support for one may not reflect
their understanding of the implications of the
other two unrelated sections.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Senator Volker.
SENATOR VOLKER: Can I ask the
Senator a question, please?
ACTING PRESIDENT McGEE: Senator
Krueger, will you yield?
SENATOR LIZ KRUEGER: I will
yield. Thank you, Senator.
SENATOR VOLKER: You said you
might support this bill. What if I strike out
the last two sections of this bill and leave
the Molineaux provision in there? Would you
1249
vote for it?
SENATOR LIZ KRUEGER: You know, I
would have to evaluate that, Senator. Because
in fact -- again, partly because of my lack,
as I said earlier, of not being an attorney or
having work worked in criminal law -- I have a
feeling that several of my colleagues think
there are some dangers inherent in that also.
But I do agree that I share your
concern that a history on sexual assault not
being allowed to be brought into court can be
a very serious problem. And so I certainly
would be much more interested in exploring
your bill if it was just that section.
Thank you.
SENATOR VOLKER: Okay. Thank
you.
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President.
On the bill.
ACTING PRESIDENT McGEE: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: Or,
1250
actually, on Senator Krueger's comments.
(Laughter.)
ACTING PRESIDENT McGEE: On
Senator Krueger's comments on the bill.
SENATOR SCHNEIDERMAN: The
Molineaux rule, which -- and I appreciate
Senator Volker's correction that I did not
accurately recall the state of the law prior
to the Molineaux case. I in fact had not been
admitted to practice law in 1901 when it was
decided.
But the Molineaux rule is something
that I respectfully submit is an
extraordinarily articulate and elegant
balancing of the equities that has been put in
place by the New York State Court of Appeals
and repeatedly reaffirmed -- and not just
reaffirmed, but enthusiastically endorsed by
the courts of this state.
The concern I have with Senator
Volker's effort to make it easier to admit
evidence of a defendant's prior acts in the
context of a sexual assault proceeding is that
unlike the Molineaux rule, the proposed
legislation would allow the admission of
1251
evidence of the defendant's commission of an
offense even if the defendant was acquitted of
the offense. It would allow evidence even if
no charges were ever brought.
And whereas the Molineaux rule --
and I believe that, you know, to respond to
his candor, Senator Volker would be
hard-pressed to disagree -- the Molineaux rule
clearly states that when you're admitting this
type of prior conduct, the probative value has
to overcome the prejudicial effect. That's
the Molineaux standard.
Senator Volker's proposed standard
is that you have to admit this evidence even
if the sexual assault proceeding of the prior
conduct was never brought, even if the
defendant was acquitted; you have to admit it
unless the court determines its probative
value is substantially outweighed by the
danger of undue prejudice.
Now, what is the justice of saying,
you know, the prejudice of this really
outweighs its probative value, but it doesn't
substantially weigh it, so I'll let in
something that I acknowledge is prejudicial
1252
and prejudicial to the point that it outweighs
the probative value?
I think that this is an effort to
accomplish something which we all agree is an
issue. There is a different -- really, we're
into a different category of offenses. And
work done by psychologists and sociologists
and others in recent years has in fact
established -- and Senator Volker I know is
aware of this -- that sexual assaults are a
different kind of offense and that the
propensity to commit sexual violence is
somewhat different than the propensity to rob
banks or to commit other kinds of offenses.
We all recognize that.
But I think that altering a rule
that works extremely well and that is
substantially just -- and I'm referring to the
Molineaux rule -- that allows for the
admission of prior conduct if it's relevant,
establishes collateral issues, and if its
probative value overcomes the prejudicial
effect, that's a good rule, that's a
well-crafted rule. And to replace it with
something that allows the admission of
1253
evidence unless the probative value is
substantially outweighed, whatever that
standard is and however the court would
determine that, is really a mistake.
I think we have to come up with a
different approach to making it easier to
admit this type of evidence. And I certainly
would object very strongly to the notion that
someone can be acquitted on charges and yet
evidence of the commission of the crime would
still be admissible. Or someone could have
the charges in fact dropped, the prosecutor
even refuse to prosecute because they
determined that there's so little credible
evidence, and yet the evidence of the
commission of that crime could be admitted.
So I think we have to come up with
another approach. And I'm all for separating
out things that we can actually get done and
pass two-house bills on. But I would
respectfully suggest that Senator Krueger look
for another portion of this interesting piece
of legislation to separate out and support in
an effort to actually make this bill into a
law.
1254
I'm going to be voting no. I think
this is a bad change in a good law. We have a
lot of areas of the law in this state that
don't work very well. Let's not go screwing
around with one that has been proven to work
very well for a long time. I urge everyone to
vote no.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I just want to take the opposite
position of my colleague to my right. I would
be against Sections 2 and 3.
SENATOR SCHNEIDERMAN: Oh, I
didn't say I was for Sections 2 and 3.
SENATOR MONTGOMERY: Okay. I may
also be against Section 1 as well, but I
won't -- Section 2 and 3 to me are extremely
problematic, because Senator Paterson's staff
has just completed an extensive research on
the state of New York in comparison to all
other states in the nation, and to find that
New York has the most draconian laws as it
relates to certain offenses of the entire
1255
United States, including Louisiana
Mississippi, Alabama, and so forth and so on.
Texas, even.
And so now I thought that under the
current law in New York State, the prosecutor
in fact makes a proposal to the judge as to
what the sentencing should be, and the judge,
taking into consideration all factors, would
decide on the sentencing. And in addition,
there are many other people who participate in
supporting a particular sentence, one sentence
or other.
But now Senator Volker, in his
legislation, is proposing that the prosecutors
now, after all of that, and after the judge
finally makes a decision on the sentencing,
that the prosecutor may be allowed to come
back and appeal the sentencing that the judge
finally comes up with, as well as that the
prosecutor should be able to review the orders
of low bail or what the prosecutor considers
to be low bail.
And I just think that this flies in
the face of our attempts to look at reforming
our laws so that they are at least, as Senator
1256
Duane has said, in the mainstream, at least
they reflect more what the legal community and
the criminal justice community around the
country and the nation says that we should be
doing as it relates to the whole question of
sentencing and discretion and latitude that
judges have to make decisions and looking at
second-chance programs and approaches and all
of that.
So this seems to fly in the face of
that. And I don't think that Senator Volker
intends to take us in fact backwards, that we
are really looking while at the same time we
are all trying to come up with a consensus on
how do we move New York State forward along
these lines.
So I'm going to vote no on this
legislation. I think it's just the wrong
message to send to our citizens at this time.
ACTING PRESIDENT McGEE: Senator?
SENATOR DIAZ: Diaz.
ACTING PRESIDENT McGEE: Senator
Diaz.
SENATOR DIAZ: Thank you, Madam
President. On the bill.
1257
I used to be a member of the
Civilian Complaint Review Board in the City of
New York, representing the County of the
Bronx. And in the Civilian Complaint Review
Board, when a police officer is accused of
using excessive force, police brutality, or
he's accused of all those kinds of things,
many times those police officers are found
innocent. Sometimes they are found unproven,
the accusation.
But nonetheless, their record shows
a pattern of excessive force used before. So
even though before, they were found innocent,
it shows that the person has a track record of
being accused of something.
So if a person commits sexual abuse
or rapes someone, even though that person was
found innocent before, why not bring in that
incident now, to be sure that the jury and
everyone in the court knows that the person
has a track record of being accused of sexual
abuse, even though the person has been found
innocent.
So I think that this is a beautiful
bill, and I will support this bill.
1258
ACTING PRESIDENT McGEE: Senator
Volker, to close.
SENATOR VOLKER: Madam President,
let me first of all say, quickly, that I don't
know where this idea came that we have the
most draconian laws in the country. Somebody
is feeding somebody some very bad information.
If that were so, why is it that
California has 175,000 inmates and we only
have 60-some? And they have evened us up at
40/40 some years ago.
I don't know -- this idea came
because somebody did some sort of national
study and looked at the 500 or 600 people that
we have in jail under the old Rockefeller Drug
Laws -- we don't really have Rockefeller Drug
Laws anymore. I've tried to explain that to
people. They've been gone for years.
Otherwise, we wouldn't have as many violent
people in. We have seventy -- better than
75 percent of our prisons is now violent
people, compared to years ago when it was
probably 40 or 50. Or maybe less.
But all that aside, there's one
thing I want you to understand. And I heard
1259
what Senator Schneiderman said. There's one
group of victims where it seems to me this
Molineaux becomes especially important, and
that's children. People that are child
molesters. And, you know, I guess because I
came from one of the largest investigations
way back -- and I don't want to get into that,
in my police days. I came here in part
because I was so fed up with the fact that we
couldn't convict people of rape.
And we had such a time with child
molesters. In fact, it was outrageous. I
mean, I was one of those crazy people that
tried to charge a mother and father with
incest because they attacked their children.
And I was almost sort of pushed out of the
station because they said: You don't do that.
We don't talk about that. DAs wouldn't touch
it.
It's something I think we don't
really realize that this is something
altogether new, now, that we are really
beginning to understand that you've got to go
after sex offenders.
Well, one of the problems with the
1260
Molineaux rule, it is very difficult to prove
many of these child molestation cases, child
sex cases. And sexual assault, because of the
fact that so often it is a private kind of
thing -- and I'm not just talking about
children's sexual assault, but assault of
women -- it can be very difficult to provide
proof. And one of the issues is if the person
has prior bad acts, it is evidence, it should
be evidence that that person might be involved
in something -- in a case involving rape or
child molestation or whatever.
And I tend to agree that I think
you have to be extremely careful in these
areas. That's why you give the judge the
ability to look at the probative value of it
versus the potential for a problem, you know,
in the case.
And in all honesty, this bill --
and I want to just say this now, because
you've given us an idea. This bill is no
longer a Governor's program bill. Not that I
want to -- this was way back, sexual assault
reform, this was changed.
You're going to get a chance to
1261
vote on just the sexual assault part of this
bill, because we are going to separate it.
And it was a good idea. I think it's an
excellent idea. And we are going to separate
it out. And we'd like to pass this bill now,
but we are going to do that, and -- because I
think this issue is an important enough issue
to have it stand or fall on its own.
So we're going to move the bill
and -- it's unusual to say this on the floor,
but as you know, I very often -- in fact, we
have another bill you're going to see pretty
soon that Senator Paterson helped me decide
on, because he made a commitment to try to
help me with the Assembly if I would make the
amendments. And he's been very good about
that. So I just want you to know that.
So we are going to -- I'd like to
pass this bill now, and I'm sure a lot of you
will be excited about that. But we do intend
to move on with separating the issues that are
in this bill.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
1262
THE SECRETARY: Section 11. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 489 are
Senators Andrews, Breslin, Dilán, Duane,
Hassell-Thompson, L. Krueger, Montgomery,
Parker, Paterson, Schneiderman, and A. Smith.
Ayes, 47. Nays, 11.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
494, by Senator Flanagan, Senate Print 3582,
an act to amend the Penal Law, in relation to
definitions of criminal enterprise.
SENATOR DUANE: Explanation.
ACTING PRESIDENT McGEE: Senator
Flanagan, an explanation has been requested by
Senator Duane.
SENATOR FLANAGAN: Thank you,
Madam President.
This bill is an outgrowth of a case
from Suffolk County in 1998. Judge Vaughn at
1263
the time came down with a decision that we
think was too narrow of an enterprise of the
statute involving RICO.
And the language in this bill would
do, I believe, a couple of things. It would
clarify the intent of the statute; it would
provide the district attorneys with greater
flexibility and authority to properly charge
individuals with this type of crime; and it
would also, frankly, give us an opportunity to
go after some of the people who are involved
in criminal racketeering.
ACTING PRESIDENT McGEE: Senator
Duane.
SENATOR DUANE: Thank you, Madam
President. If the sponsor would yield.
ACTING PRESIDENT McGEE: Senator
Flanagan, will you yield?
SENATOR FLANAGAN: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR DUANE: My primary
question on this is that -- how can a single
act be construed to be a pattern?
SENATOR FLANAGAN: Well, two
1264
things, Senator Duane. You actually have -- I
checked, just because I was paying attention,
and you actually voted for this bill three
times before I even got here, having voted for
it five times. And I personally don't want to
ruin that percentage for you, so I want to
make sure I'm giving you the answers that you
need.
What I think this allows is for an
interpretation, so it's not overly -- so
narrowly construed as it was by Judge Vaughn.
This provides an opportunity to say how can we
look at this, can we look at each activity as
separate and distinct and come to a pattern.
I don't know if that -- I'm
probably not helping you in terms of what you
want.
SENATOR DUANE: No.
SENATOR FLANAGAN: I think it
provides the district attorney greater
flexibility, and it allows for our judiciary
to make a fairer interpretation of what the
statute was originally intended for.
ACTING PRESIDENT McGEE: Senator
Duane.
1265
SENATOR DUANE: Thank you. Thank
you, Madam President. On the bill.
ACTING PRESIDENT McGEE: Senator
Duane, on the bill.
SENATOR DUANE: And I do have to
take credit for forewarning the Senator that I
would be asking this question.
But it just struck me that there
might be a better way to get at what we're
trying to do here. I'm going to vote in the
affirmative, but it does -- I think that
there's a better way to get at what we're
trying to do here. And I'd be more than happy
to try to figure that out with the Senator if
he'd be gracious enough to allow me to do so.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
1266
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
509, by Senator Maziarz --
SENATOR MORAHAN: Lay it aside
for the day, please.
ACTING PRESIDENT McGEE: The bill
is laid aside for the day.
Senator Morahan.
SENATOR MORAHAN: May we return
to reports of standing committees.
I believe there's a report of the
Higher Education Committee at the desk.
ACTING PRESIDENT McGEE: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator LaValle,
from the Committee on Higher Education,
reports:
Senate Print 1222A, by Senator
Larkin, an act to amend the Education Law;
2073B, by Senator Padavan, an act
to amend the Education Law;
6241, by Senator Paterson, an act
1267
to amend the Education Law;
6334, by Senator LaValle, an act to
amend the Education Law;
6348, by Senator LaValle, an act to
amend the Education Law;
And Senate Print 6364, by Senator
LaValle, an act to amend Chapter 253 of the
Laws of 2002.
All bills ordered direct to third
reading.
ACTING PRESIDENT McGEE: All
bills reported direct to third reading.
Senator Morahan.
SENATOR MORAHAN: Yes, Madam
President, is there any housekeeping at the
desk?
ACTING PRESIDENT McGEE: One
motion.
Senator Larkin.
SENATOR LARKIN: Madam President,
on page 12 I offer the following amendments to
Calendar Number 249, Senate Print 1390, by
Senator Spano.
ACTING PRESIDENT McGEE: The
amendments are received, and the bill will
1268
retain its place on Third Reading Calendar.
Senator Morahan.
SENATOR MORAHAN: Petitions out
of committee, Madam President?
ACTING PRESIDENT McGEE: Senator
Duane.
SENATOR DUANE: Thank you, Madam
President. I believe I have a motion at the
desk. And I would love to have it called up
at this time.
ACTING PRESIDENT McGEE: The
reading is waived, and Senator Duane may speak
on the motion.
SENATOR DUANE: Without even
asking.
ACTING PRESIDENT McGEE: Without
even asking.
SENATOR DUANE: You read my mind.
Thank you, Madam President.
This amendment is generally known
as the Mental Health Parity Bill. Under
current law, unfortunately, mental health is
not treated equally to physical health issues.
Many New Yorkers of all ages have mental
health issues, and yet they are not getting
1269
the insurance coverage which they need in
order to get the -- am I --
ACTING PRESIDENT McGEE: No, I
just need to correct you, Senator Duane, for
one moment. This is not an amendment. This
is a petition.
SENATOR DUANE: It's a petition,
yes.
ACTING PRESIDENT McGEE: Thank
you very much.
SENATOR DUANE: You know, I'm
such an old-timer now, Madam President, I have
trouble keeping up with the new lingo. But
thank you.
ACTING PRESIDENT McGEE: You're
welcome, I'm sure.
SENATOR DUANE: So my petition
might be better known as a mental health
parity petition.
And the lack of coverage for mental
health in our state leads to, I would submit,
greatly increased costs across the board in a
whole host of ways: loss of worker
productivity, family problems, inability for
families to get substance abuse treatment for
1270
members of their family that might need that
substance abuse treatment. And mental illness
untreated in all of those cases leads to far
greater problems for our neighborhoods, our
families, and ultimately for our state.
I think that most of us have at
least one if not more members of their family
who have either profited because of access to
mental health care or, because they did not
have coverage for their mental health care,
were subjected to a tremendous financial
burden. And what this legislation seeks to do
is to reduce that burden for the individuals
and families in New York State.
The vast majority of members, in
fact, of this house as well as the other house
support parity for mental health services.
And yet for some reason we haven't been able
to see this proposal come to the floor.
And while I know that there is a
cost to consumers in New York State, I think
that New Yorkers would be more than happy to
bear that cost, particularly if they focus on
the cost that getting mental health services
for their family members is to their family.
1271
You know, in addition to the cost
issues -- and I would be willing to debate
with anyone the cost effectiveness of it -- I
think the other issue that we need to look at
is how much would parity for mental health
services cost if we compare it against those
who have died because we have not had access
to mental health. The number of families who
have not been able to get their children
health care because they couldn't afford it --
five minutes.
Madam Chair, I've used three out of
five, which means I am just lousy with time
still.
So just to repeat this point again,
that when you compare the cost of providing
mental health services for New Yorkers against
the tragic deaths of young people because
their families could not afford mental health
care for their children, or, for that matter,
the number of persons who perhaps have been
involved in an accident where there was
alcohol or a drug involved, there really is no
comparison. Why would we not incur the very
small cost of providing parity for mental
1272
health if it would prevent the deaths of
people in our state?
And I'm just going to come full
circle again. I think if you ask New Yorkers
if they would be willing to pay less than a
couple of dollars a month in order to be able
to provide mental health coverage for
themselves and their families, they would
overwhelmingly say yes.
So let's provide some leadership.
Obviously this kind of -- these facts and
opinions have been enough to sway the majority
of members of this house and the other house.
So let's for real bring mental health parity
to the floor and make all New Yorkers safe
from needless deaths because of not having
access to mental health parity, and let's make
all New Yorkers a little bit healthier because
they have access to mental health services.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Thank
you, Senator Duane.
All those Senators in favor of the
petition out of committee please signify by
raising your hand.
1273
THE SECRETARY: Those recorded in
agreement are Senators Andrews, Breslin,
Brown, Diaz, Dilán, Duane, Hassell-Thompson,
L. Krueger, C. Kruger, Lachman, Montgomery,
Onorato, Oppenheimer, Parker, Paterson,
Sabini, Schneiderman, A. Smith, M. Smith,
Stachowski, and Stavisky.
ACTING PRESIDENT McGEE: The
motion is defeated.
Senator Morahan.
SENATOR MORAHAN: Would you
please recognize Senator Ada Smith, please.
ACTING PRESIDENT McGEE: Senator
Ada Smith.
SENATOR ADA SMITH: Thank you,
Madam President. I request unanimous consent
to be recorded in the negative on Calendar
Number 26, Senate Print Number 1429.
ACTING PRESIDENT McGEE: Without
objection.
Senator Morahan.
SENATOR MORAHAN: Yes, Madam
President. There being no further business, I
move we adjourn until Tuesday, March 23rd, at
3:00 p.m.
1274
ACTING PRESIDENT McGEE: On
motion, the Senate stands adjourned until
Tuesday, March 23rd, at 3:00 p.m.
(Whereupon, at 4:35 p.m., the
Senate adjourned.)