Regular Session - March 30, 2004
1447
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 30, 2004
3:10 p.m.
REGULAR SESSION
SENATOR PATRICIA K. McGEE, Acting President
STEVEN M. BOGGESS, Secretary
1448
P R O C E E D I N G S
ACTING PRESIDENT McGEE: The
Senate will come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT McGEE: In the
absence of clergy, may we bow our heads in a
moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT McGEE: Reading
of the Journal.
THE SECRETARY: In Senate,
Monday, March 29, the Senate met pursuant to
adjournment. The Journal of Saturday,
March 27, was read and approved. On motion,
Senate adjourned.
ACTING PRESIDENT McGEE: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Senator Skelos.
1449
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Local Governments Committee in the Majority
Conference Room.
ACTING PRESIDENT McGEE:
Immediate meeting of the Local Governments
Committee in the Majority Conference Room.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Velella,
from the Committee on Labor, reports the
following bill:
Senate Print 6536, by Senator
Velella, an act to amend the Labor Law and the
Arts and Cultural Affairs Law.
Said bill ordered direct to third
reading.
ACTING PRESIDENT McGEE: Bill
reported direct to third reading.
Reports of select committees.
Communications and reports from
state officers.
1450
Motions and resolutions.
Senator Wright.
SENATOR WRIGHT: Thank you, Madam
President.
On page 36 I offer the following
amendments to Calendar Number 585, Senate
Print Number 6386A, and ask that said bill
retain its place on the Third Reading
Calendar.
ACTING PRESIDENT McGEE: The
amendments are received, and the bill will
retain its place on Third Reading Calendar.
SENATOR WRIGHT: Madam President,
on behalf of Senator Morahan, I move that the
following bills be discharged from their
respective committees and be recommitted with
instructions to strike the enacting clause:
Senate Numbers 676, 679, 681, 1349, 1767,
1769, 2106, 2113, and 2114.
ACTING PRESIDENT McGEE: So
ordered.
Senator Wright.
SENATOR WRIGHT: Thank you, Madam
President.
I wish to call up Calendar Number
1451
360, Assembly Print Number 2822.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
360, by Member of the Assembly Sidikman,
Assembly Print Number 2822, an act to amend
the Real Property Law.
SENATOR WRIGHT: I now move to
reconsider the vote by which this Assembly
bill was passed for Senate Print Number 1348
on March 3rd.
ACTING PRESIDENT McGEE: The
Secretary will call the roll on
reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 45.
SENATOR WRIGHT: I now move that
Assembly Bill Number 2822 be recommitted to
the Committee on Aging and my Senate bill be
recommitted to the Committee on Aging with
instructions to strike the enacting clause.
ACTING PRESIDENT McGEE: So
ordered.
SENATOR WRIGHT: Thank you, Madam
President.
1452
ACTING PRESIDENT McGEE: Thank
you, Senator Wright.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could adopt the Resolution Calendar at
this time.
ACTING PRESIDENT McGEE: All in
favor of adopting the Resolution Calendar
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
Resolution Calendar is adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
I believe there's a privileged resolution at
the desk by Senator Schneiderman. I ask that
the title be read and move for its immediate
adoption.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: By Senator
Schneiderman, Legislative Resolution Number
1453
4180, commemorating the 49th Anniversary of
Mitchell-Lama Housing.
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. I ask to be heard on the
resolution.
This is a resolution commemorating
the 49th anniversary of one of the most
successful housing programs in -- not just in
the history of New York, but in the history of
the United States.
In 1955, then-Governor Averill
Harriman signed into law a bill sponsored by
State Senator MacNeil Mitchell and Brooklyn
Assemblyman Alfred Lama to encourage the
development of moderate-income housing across
the state.
And to say that this legislation
succeeded is really to understate the issue.
Some 269 developments were created, with well
over 100,000 apartments, as a result of this
program.
This is the kind of program that
used to be emblematic of the broad vision of
1454
New York State's government to pioneer
programs -- not to follow, to be the
trailblazer that other states and even the
national government would follow in terms of
the protection of working people and the
improvement of their quality of life. In
labor law, in food and health safety
protection, and in housing, New York State led
the way.
And unfortunately, I would
respectfully submit that we have fallen from
that position of leadership. Today the
Mitchell-Lama program is under assault. There
are buildings that long-time residents can no
longer afford to live in. There is turmoil in
a confusing marketplace where buildings are
being bought out, and conflicts where we
should have unity among the residents of such
developments.
There are a variety of bills that
are brought forward in this house every year
to address these issues. Many of them are
passed in the Assembly. And I would urge that
we take a look at the success of this program
and not finish this year's legislative session
1455
without doing something to restore the
Mitchell-Lama program to its position of
prominence and to recommit ourselves, on
behalf of the State of New York, to the vision
that Governor Harriman and so many other great
New Yorkers had before him to make New York a
leader in making working people's lives
better, a leader in making this a great state
to live in even if you're not very wealthy, a
leader in addressing the critical issue of
housing.
We have that opportunity, and it's
appropriate that we pause to talk about this
great program and to look forward to renewing
our commitment to this program and to others
like it.
So I urge everyone to support this
resolution, not just with words today but with
our votes as the session goes forward.
Thank you, Madam President.
ACTING PRESIDENT McGEE: On the
resolution, all those in favor of adopting the
resolution will signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
1456
nay.
(No response.)
ACTING PRESIDENT McGEE: The
resolution is adopted.
Senator Morahan.
SENATOR MORAHAN: Madam
President, can we now move to the reading of
the noncontroversial calendar.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
15, by Senator Larkin, Senate Print 5659A, an
act to amend the Real Property Tax Law, in
relation to collection and disposition of
delinquent taxes.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 6. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
1457
THE SECRETARY: Calendar Number
23, by Senator LaValle, Senate Print 924D, an
act to amend the Highway Law, in relation to
designating the "North Fork Wine Trail," the
"Hamptons Wine Trail," and the "Long Island
Wine Region."
ACTING PRESIDENT McGEE: Could we
please have some quiet.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
118, by Senator Kuhl, Senate Print 3033A, an
act in relation to requiring the Commissioners
of Motor Vehicles, Transportation, and
Education.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
1458
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
181, by Senator Maziarz, Senate Print 5733, an
act to amend the Real Property Tax Law, in
relation to the definition of real property.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the same date and in
the same manner as Chapter 539 of the Laws of
2003.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
216, by Senator Balboni, Senate Print 514, an
1459
act to amend the Civil Practice Law and Rules,
in relation to prohibiting civil actions.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
254, by Senator Robach, Senate Print 1199, an
act to amend the Family Court Act, in relation
to the placement of youths at youth
facilities.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
THE SECRETARY: Calendar Number
302, by Senator DeFrancisco, Senate Print
5967, an act to amend the Public Authorities
Law, in relation to contracts.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
1460
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
402, by Senator Libous, Senate Print 2182, an
act to amend the Mental Hygiene Law, in
relation to directing the State Commission on
Quality of Care.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Excuse me. In
relation to Calendar Number 402: Ayes, 57.
Nays, 1. Senator DeFrancisco recorded in the
negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
446, by Senator Seward, Senate Print 5969, an
1461
act in relation in legalizing, validating,
ratifying and confirming certain acts and
proceedings.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
447, by Senator Saland, Senate Print 6200, an
act to authorize payment of transportation aid
to the Poughkeepsie City School District.
ACTING PRESIDENT McGEE: There is
a local finance note at the desk.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
1462
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
465, by Member of the Assembly Gromack,
Assembly Print Number 9660, an act to amend
the Racing, Pari-Mutuel Wagering and Breeding
Law, in relation to permanently authorizing
state breds.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
491, by Senator Golden, Senate Print 1504A, an
act to amend the Penal Law --
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
1463
THE SECRETARY: Calendar Number
526, by Senator Wright, Senate Print 5342, an
act to amend Chapter 519 of the Laws of 1999,
amending the Alcoholic Beverage Control Law.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
530, by Senator Farley, Senate Print 5894, an
act to amend the Tax Law, in relation to the
mortgage recording tax in the county of
Fulton.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
1464
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
553, by Senator Bonacic, Senate Print --
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT McGEE: The bill
is laid aside.
Senator Morahan, that completes the
noncontroversial reading of the calendar.
SENATOR MORAHAN: Thank you,
Madam President.
May we now start the reading of the
controversial calendar, and start with
Calendar 254.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
254, by Senator Robach, Senate Print 1199, an
act to amend the Family Court Act, in relation
to the placement of youths at a youth
facility.
ACTING PRESIDENT McGEE: Read the
last section.
1465
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT McGEE: Senator
Robach, an explanation has been requested.
SENATOR ROBACH: Through you,
Madam President. This bill permits a Family
Court judge to increase the period of
confinement for youths at a youth facility
from the present 18 months to 36 months. It
mandates that a minimum of half the sentence
be served and mandates a restrictive placement
where serious physical injury has been
inflicted in our more violent crimes.
ACTING PRESIDENT McGEE: Any
other Senator wishing to speak on the bill?
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect on the first of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58. Nays,
1. Senator Hassell-Thompson recorded in the
negative.
1466
ACTING PRESIDENT McGEE: The bill
is passed.
SENATOR MORAHAN: Madam
President.
ACTING PRESIDENT McGEE: Senator
Morahan.
SENATOR MORAHAN: Yes, could we
please go back to Calendar 216 and recognize
Senator Dilán and just have the last section
read.
ACTING PRESIDENT McGEE: Senator
Dilán, just one moment.
The Secretary will read.
THE SECRETARY: Calendar Number
216, by Senator Balboni, Senate Print 514, an
act to amend the Civil Practice Law and Rules.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Senator
Dilán.
1467
SENATOR DILAN: No.
ACTING PRESIDENT McGEE: Senator
Dilán will be recorded in the negative.
The Secretary will withdraw the
roll call.
Senator Morahan.
SENATOR MORAHAN: If we could
continue in the regular order, Madam
President.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
491, by Senator Golden, Senate Print 1504A, an
act to amend the Penal Law, in relation to
increasing penalties.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect on the first of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58. Nays,
1. Senator Hassell-Thompson recorded in the
1468
negative.
ACTING PRESIDENT McGEE: The bill
is passed.
THE SECRETARY: Calendar Number
553, by Senator Bonacic, Senate Print 5479A,
an act to amend the Vehicle and Traffic Law
and the Labor Law, in relation to
fingerprinting of ambulette drivers.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect on the 90th day.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Morahan.
SENATOR MORAHAN: Yes, Madam
President. If we could just stand at ease for
a few moments, please.
ACTING PRESIDENT McGEE: The
Senate will stand at ease for a few moments.
(Whereupon, the Senate stood at
1469
ease at 3:28 p.m.)
(Whereupon, the Senate reconvened
at 3:29 p.m.)
ACTING PRESIDENT McGEE: Senator
Morahan.
SENATOR MORAHAN: Madam
President, will you please recognize Senator
Montgomery and then Senator Parker.
ACTING PRESIDENT McGEE: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I would like unanimous consent to
change my vote on Calendar 491 to a no vote.
ACTING PRESIDENT McGEE: Without
objection.
SENATOR MONTGOMERY: And I would
like unanimous consent to be recorded in the
negative on Calendar 254.
ACTING PRESIDENT McGEE: Without
objection.
SENATOR MONTGOMERY: Thank you.
ACTING PRESIDENT McGEE: Senator
Parker.
SENATOR PARKER: Yes, Madam
President. I'd like unanimous consent to be
1470
recorded in the negative on Calendar Number
491.
ACTING PRESIDENT McGEE: Without
objection.
SENATOR PARKER: Thank you very
much.
ACTING PRESIDENT SEWARD: Senator
Morahan.
SENATOR MORAHAN: Senator Seward,
could we return to the controversial reading
of the calendar, please.
ACTING PRESIDENT SEWARD: The
Secretary will read.
THE SECRETARY: Calendar Number
216, by Senator Balboni, Senate Print 514, an
act to amend the Civil Practice Law and Rules,
in relation to prohibiting civil actions
against victims.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT McGEE: Senator
Balboni, an explanation has been requested.
SENATOR BALBONI: Yes, thank you,
Madam President.
This bill is a bill that has been
1471
around quite some time. As a matter of fact,
looking through my notes, I recall that I
first became involved with this issue,
prohibiting convicted felons from suing as a
result of injuries received during their
course of conduct, back in 1993.
And during that time it has been an
exercise in futility to even get the
introduction of this bill in the other house,
much less any constructive comments as to how
the bill could be improved. And of course
there seems to be a lot of that going around
these days. And I think that that's a poor
statement on the process.
But nonetheless, we have the bill
here today. And as the Senate has done since
1998, and even before that in other versions,
hopefully we're going to consider this bill
favorably today.
What this bill does, it amends the
laws as they relate to civil actions. And it
basically says that if you're going to come
into someone's home and commit a felony, if
you're going to go in and you're going to
stick a gun to somebody's head, steal their
1472
property, and then, as you're running out of
their house, you slip and fall on somebody's
toy for their child or slip down a flight of
stairs, you then can't turn around and sue the
property owner.
And again, as I give that set of
facts, there are people who perhaps sit back
and say: Oh, that's ridiculous, how could
that possibly be the case. And then of course
I point to the case in Ballston Spa several
years ago, where someone was walking on top of
the school building and the skylights were
painted over and the person walked on top of
the skylight, fell through, and then sued the
school district. What was he doing on top of
the school building? Well, he had burglar
tools in his hand. Nonetheless, he was able
to sue.
And throughout the years this
debate has devolved -- has revolved around
whether or not this should be about civil
rights or whether or not this should be about
the proper definition of what is committing a
crime. But at the end of the day, Madam
President, what this bill is really about is
1473
common sense, bringing confidence back to our
criminal justice and civil justice system and
not allowing anybody who has decided to step
outside the bounds of law to step back into it
to use our own courts against us.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. Through you, if the sponsor
would yield for some questions.
ACTING PRESIDENT McGEE: Senator
Balboni, will you yield?
SENATOR BALBONI: Yes, I do,
Madam President.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR SCHNEIDERMAN: I hear the
sponsor's frustration and his desire for
constructive criticism to make this a better
bill, and we will do what we can do to oblige.
This legislation would amend the
current law by changing the rule established
in the case of Barker v. Kallash; is that not
true?
1474
SENATOR BALBONI: Yes, that is
the intent, Mr. Schneiderman. Current law.
SENATOR SCHNEIDERMAN: And the
current law under Barker v. Kallash provides
as follows. It provides that a plaintiff in a
civil action whose injury is a direct result
of a criminal act that the plaintiff was
committing, and it's a serious act, that
plaintiff is barred from recovery.
I read now from the Court of
Appeals decision. And I would note that the
example you just gave appears in the Court of
Appeals decision in Barker v. Kallash
establishing the current law.
"When a plaintiff's injury is the
direct result of his knowing and intentional
participation in a criminal act, he cannot
seek compensation for the loss if the criminal
act is judged to be so serious an offense as
to warrant denial of recovery."
Then the court goes on to say:
"Thus a burglar who breaks his leg while
descending the cellar stairs due to the
failure of the owner to replace a missing step
cannot recover compensation from his victims."
1475
That's the law of the State of New York right
now.
Now, I would like to know how your
bill will change the rule set forth by the
Court of Appeals that when a plaintiff's
injury is a direct result of his knowing and
intentional participation in a criminal act,
he cannot seek compensation for the loss if
the criminal act is judged to be so serious an
offense as to warrant denial of recovery. How
will your bill change that rule of law?
SENATOR BALBONI: Madam
President, in response to the gentleman's
questions --
ACTING PRESIDENT McGEE: Senator
Balboni.
SENATOR BALBONI: -- I would
quibble with one aspect of his underlying
assumption. When he says that this is the law
of the State of New York, I disagree. It is
the common law of the State of New York. In
other words, it is only enunciated in case
law, not in statutory law.
Now, the effect of that is that we
have codified -- that is, legislatively
1476
mandated -- so many different aspects, so many
different court cases. And to not legislate
this particular court case because you have so
eloquently stated the reason why we should is
really an offense, an affront against all
those law-abiding, taxpaying, court
system-using individuals of the state.
In other words, you can't just have
a Court of Appeals decision because it doesn't
allow you to make motions for summary judgment
at the outset of court, it doesn't allow you
to say to everybody else here is the law of
the land.
And in fact, there are some courts
that do not want to follow Barker v. Kallash.
And this is not anecdotal, from another
person's perspective; this is actual
experience that I have had in the courtroom.
That notwithstanding the citation of Barker v.
Kallash and the law that someone who
participates in a criminal act should not be
able to sue later on, courts will say: No,
this is really a question of fact for the
jury. So let's put everybody through that,
because it is not enunciated in statute.
1477
And that is the point of this bill
today, to articulate and codify what the Court
of Appeals has already stated.
SENATOR SCHNEIDERMAN: Through
you, Madam President.
ACTING PRESIDENT McGEE: Senator
Schneiderman. On the bill?
SENATOR SCHNEIDERMAN: Wishful
thinking.
No, if the sponsor would yield for
another question.
ACTING PRESIDENT McGEE: Senator
Balboni, will you continue to yield?
SENATOR BALBONI: Nice try, Madam
President. I am happy to yield.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR SCHNEIDERMAN: So just to
clarify the situation, is it the intent of
this legislation to change the rule in Barker
v. Kallash, or is it the intent of this
legislation to codify precisely the rule
enunciated by the court in Barker v. Kallash?
SENATOR BALBONI: To codify.
SENATOR SCHNEIDERMAN: Thank you,
1478
Madam President. On the bill.
ACTING PRESIDENT McGEE: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I thank
the sponsor for his answers.
This is the seventh year this bill
has come before the Senate in its current
form. I would respectfully submit, in the
spirit of the request for constructive
criticism, that the defect in this legislation
is that in fact it would substantially change
the rule of Barker v. Kallash, and for the
worse.
This legislation states: "In an
action to recover damages, any culpable
conduct of the plaintiff resulting in a felony
conviction shall be a complete bar to
recovery."
What has changed in the current
law, which I think is far superior to this
particular drafting of an effort to codify the
law in this area, what's missing is two
things. One, the current law requires it to
be a serious violation of the law. And that's
just a matter of fact and enables a court or a
1479
jury to balance the relative culpability,
which I would respectfully submit is a good
thing.
The second is that unlike Barker v.
Kallash and all the cases following it, this
statute contains no requirement that the
culpable conduct have any particular
connection to the civil suit. All this states
is any culpable conduct resulting in a felony
conviction shall be a bar to recovery. It
doesn't say culpable conduct in the commission
of the act. It doesn't say culpable conduct
when.
Under this provision, someone could
steal something from a store -- say they stole
a watch -- and come out of the store, bump
into someone who then breaks their jaw, and be
barred from recovery, even if that person, the
third party, had nothing to do with an effort
to punish the victim or didn't have anything
to do with the crime, the crime scene, or the
victim of the crime.
This says any culpable conduct
shall be a complete bar. It doesn't tell you
when. The law as enunciated by the Court of
1480
Appeals says when a plaintiff's injury is a
direct result of his knowing and intentional
participation in a criminal act.
And again, in another section, it
says the courts will not entertain a suit if a
plaintiff's conduct constitutes a serious
violation of the law and the injuries for
which he seeks recovery were the direct result
of that violation.
There's nothing in this provision
that indicates that the plaintiff's injuries
should be the result of his culpable conduct.
There's no nexus here. And I do think I
raised this issue last year. I think this is
a drafting error that could be remedied.
But -- and I would urge the sponsor
if we want to try and move this forward, maybe
we could do something that came a little
closer to actually codifying the rule of
Barker v. Kallash if that is his intent.
It is absolutely clear that this
changes the rule in two separate ways. This
is bad law. This is bad public policy. There
is no question that the rule as enunciated by
the court that the courts should not be open
1481
to someone who commits a crime and whose
injuries that they're seeking to sue for in a
civil action are the direct result of the
commission of that crime -- that's the law
now. That's a good law. That's a good rule.
It's worked well.
Are there some judges who may have
erred on the side of favoring the plaintiff in
certain situations that some fight find
offensive? Yes. But the goal of this
Legislature should not be to take things away
from judges and juries when there are these
kinds of factual determinations to make.
This is an effort, through a very
strangely worded statute with no causal
connection between the culpable conduct and
the action for personal injuries, to take
things away from the judge and jury that
properly belong before a judge and jury.
I would argue that there is no
reason for us to impose this onerous a
restriction where any felony, no matter how
minor, would serve as a bar to any sort of
civil action by someone before the felony or
after the felony. This would mean that if
1482
someone -- once again, say someone steals
something from a store and walks out on the
street and some third party shoots him
12 times. There would be no action for
recovery against that third party.
That's bad law. Let's let this go
to the judge and jury as it has been going.
Let's let the law evolve as it has been
evolving. And if we're going to codify Barker
v. Kallash, let's put forward a statute that
actually would codify the rule now.
I'm going to vote no. I encourage
everyone to vote no. And I do believe that if
we want to sit down and draft a bill that does
codify Barker v. Kallash, we might actually
have a chance of getting a hearing in the
other house. But I see no reason for them to
put on the floor this bill with the confusing
and, frankly, inconsistent language that
doesn't connect up the culpable conduct in any
way, shape, or form, with no preposition, with
no modifier to the action for civil damages
that this would bar.
I vote no, Madam President, and I
respectfully suggest that everyone vote no.
1483
SENATOR BALBONI: Madam
President.
ACTING PRESIDENT McGEE: Senator
Balboni.
SENATOR BALBONI: Would the
gentleman yield for a question?
ACTING PRESIDENT McGEE: Senator
Schneiderman, will you yield for a question?
SENATOR SCHNEIDERMAN: Okay.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR BALBONI: Madam
President, does the gentleman believe in the
action and the rationale enunciated by the
Court of Appeals in Barker v. Kallash?
SENATOR SCHNEIDERMAN: Madam
President, I actually have some criticisms of
the doctrine as it's evolved there also.
What I was really pointing out was
that the sponsor stated this is an effort to
codify Barker v. Kallash. And I was just
pointing out the differences between his
statute and Barker v. Kallash.
I think there has been some room
for criticism. And I must admit that there
1484
are some individual cases in which the
application of the law strikes me as having
been improper.
Although I must say that not having
been there, I have to fall back on my
fundamental belief in the people of the State
of New York in juries and on the judges of the
State of New York to do justice in particular
cases based on the facts that are before them.
SENATOR BALBONI: Thank you,
Madam President.
ACTING PRESIDENT McGEE: Read the
last section.
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. If the sponsor would yield.
ACTING PRESIDENT McGEE: Senator
Balboni, will you yield for Senator Krueger?
SENATOR BALBONI: Yes, I will.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR BALBONI: I'll attempt to
answer a little bit more clearer than the last
answer.
SENATOR LIZ KRUEGER: We'll work
1485
on that.
Thank you, Madam President.
I'm listening to the debate, and
I'm admitting that, you know, I'm not an
attorney, as I've said before, and I've
certainly not practiced either criminal or
civil litigation in relation to your bill.
But my concern is it's such a broad arena.
You're talking anyone involved with any felony
could, by definition, never find fault with
something else that was done to them.
So I'm reading through the list of
felonies in New York State, so I just want to
ask you -- so, for example, since patronizing
a prostitute is a felony in New York State,
someone who was participating in the
patronizing of a prostitute and then anything
happened to them during that, they could --
because, by definition, they were caught in
the act, so to speak, of visiting a
prostitute, anything else that anyone else did
to them during that act or at that time could
never be used in a civil trial.
Is that your understanding of the
law?
1486
SENATOR BALBONI: Madam
President, to answer the Senator's question,
let's take your hypothetical. And as we all
know, bad cases make bad law. But
notwithstanding that admonition and concern,
if the individual who -- the john, as it were,
were engaged in a felony and then the
prostitute stabbed him in the heart, okay, but
he survived -- let's see, what would his
remedies be? He could put that person -- that
person would be put in jail. And yes, if in
fact it was found to be as a part of the act,
he would not be able to sue.
Now, if that really challenges your
sense of fairness, that's fine. But again,
you know, what we're talking about here -- and
the real problem is not so much whether or not
it's in the commission itself, it's whether or
not the police conduct that follows the case
and results in police brutality, that has
always been a focus of this bill. If in fact
that is a reason that we should not have this,
because what if the police commit police
brutality.
And my response in that regard has
1487
always been that you are, in fact, able to go
to the criminal courts, put the police officer
in jail. And you are able to use the Civil
Rights Law as against the offending police
officer and recover civil damages.
What we mustn't do here with this
bill is try to elevate a civil remedy beyond
what common sense would dictate should be the
proper remedy. You know, violence should be
jail. It's not necessarily about recovering
monetary damages. Monetary damages won't
bring back many of the things that you want.
And again, what is the message we
send to everybody else who hasn't committed a
felony, who hasn't stepped outside -- and, by
the way, I want to correct the gentleman's
characterization of Barker v. Kallash when he
talked about serious crimes. I can't consider
any more serious crime than a felony. We
specifically changed the bill not to have it
relate to misdemeanors. And that's in keeping
with the spirit of the Court of Appeals
decision.
And so the concern you raise is a
valid one when you try to find a somewhat
1488
benign course of conduct like the commission
of a felony involving prostitution. But of
course I don't find any felony to be benign.
Because, again, what this bill does is it
codifies common sense. And there should be a
place in our state where we say no, if you
commit a felony, you can't use the court
system for your own benefit. That's really
what this says.
SENATOR LIZ KRUEGER: Madam
President, thank you --
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR LIZ KRUEGER: -- if the
sponsor would yield, please.
ACTING PRESIDENT McGEE: Senator
Balboni, will you continue to yield?
SENATOR BALBONI: I continue to
yield.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR LIZ KRUEGER: Just for
clarification, I read your bill and I don't
see that it's explicitly or uniquely for cases
of police brutality or explicitly related to
1489
violence.
So are you -- perhaps I misread
your bill. I thought it was in any situation
of a felony being committed and the --
SENATOR BALBONI: That's correct.
SENATOR LIZ KRUEGER: Okay. So
in fact it's much broader than just the
scenario that you used as an example?
SENATOR BALBONI: I didn't say
otherwise. I didn't say otherwise.
SENATOR LIZ KRUEGER: Okay.
Thank you.
Madam President, on the bill.
ACTING PRESIDENT McGEE: Senator
Krueger, on the bill.
SENATOR LIZ KRUEGER: Thank you.
This bill is much broader than just
a question of police brutality or violence
committed in the process of a felony. And
it's why I would argue yet again that we
should leave this to the discretion of the
courts.
And while it is true that felonies
are more severe than misdemeanors, they are
not all violence-related. And there are
1490
innumerable numbers of felony charges -- I was
just reading through our laws as I was
listening to the debate -- that I think common
sense would argue that there might be
circumstances where somebody would justifiably
have a civil case even though they were in the
process of having committed and found guilty
of committing a felony.
And to, just for the record,
highlight a few issues that perhaps are
slightly different analyses than Senator
Balboni's in the examples he gave for his
bill: Falsifying business records is a
felony. Desecration of a cemetery -- a
terrible thing -- is a felony. I'm not sure
that if you were caught desecrating a cemetery
or if you were a young person involved with
some -- what you might think of as an
inappropriate prank and then found yourself
hurt or shot or attacked in response to that,
that you should be recognized as a violent
felon guilty of anything that happens to you.
Computer tampering is a felony.
Duplication of computer materials is a felony.
Criminal interference with religious
1491
worship -- certainly something we would all be
opposed to, but nonetheless not the same as a
murder. The crime of mischief, criminal
mischief can actually be a felony charge in
this state. Eavesdropping can be a felony in
this state. Filing a false instrument.
Forgery. Promotion of gambling. We in the
Legislature might have to explore that
question for ourselves. Patronizing a
prostitute, as I said. Rent-gouging.
That's just a simple list of some
of the issues that can be felonies and some of
the circumstances, not just the example given
by Senator Balboni, that lead me to understand
why it's a decade later and we still have not
passed this bill through both houses of the
Legislature, because it is not as simple and
clear-cut as he describes.
And in fact, when you make
broad-brush-stroke decisions that you're going
to take away people's legal rights and legal
protections, you need to think through the
fact that there could be an extraordinarily
diverse set of circumstances, even if you are
claiming it is only for people who have
1492
committed felonies.
So I will continue to vote no on
this bill and urge my other colleagues to.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Thank
you.
Senator Duane.
SENATOR DUANE: Thank you, Madam
President. If we could just have a little
order.
Thank you, Madam President.
ACTING PRESIDENT McGEE: You're
welcome, Senator.
SENATOR DUANE: Thank you, Madam
President.
Even though this is a one-house
bill, I would be remiss if I didn't comment
that a victim of police brutality would most
likely bring forward a federal civil rights
case.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Connor.
SENATOR CONNOR: Thank you, Madam
President. I've listened to the debate, and
1493
it's been interesting. But, you know, I think
I'm going to vote no against this bill,
because I think we're losing sight of basic
principles and I think the sponsor perhaps
has.
Every time you're injured, it
doesn't mean you can recover damages. There
are basic, fundamental principles of tort law.
You have to show, yes, that certain conduct
caused your injuries, but you have to show
that the person who caused -- who engaged in
that conduct was negligent, that they had a
duty toward the victim or the public and they
failed to carry out that duty or they violated
that duty in causing the injury.
You know, looking at the active
list today, it says that this bill prohibits
civil actions against crime victims in certain
instances. And I read the bill, and I don't
see where it is limited to crime victims.
It doesn't limit the exemption, so
to speak, from tort law to instances where the
convicted felon inflicts damage on the victim
of his or her crime. It just provides a
blanket bar to a claimant who has engaged or
1494
is convicted of a felony.
And I can think of instances where
the tortfeasor, so to speak, had a duty to --
even a felon, for example, as Senator Krueger
pointed out, the case of someone patronizing a
prostitute or, indeed, the prostitute who
rented the apartment from which she or he, I
suppose, are engaging in the felonious conduct
of prostitution.
What if that building exploded
because there was a faulty boiler installed?
Why can't they, no matter why they were in the
building, sue whomever one would sue in those
circumstances just as well as their neighbors
who were engaging in ordinary conduct?
The cause of the injury is totally
unrelated to the felony, yet by the language
of this bill, those victims would be told:
Oh, you can't, you were engaged in a felony
you were patronizing a prostitute, you were
engaging in prostitution.
The victim hasn't been damaged, the
victim of the felony. It is -- I think we all
acknowledge, well, it's debatable. But it's
one of those things usually viewed as a
1495
victimless crime because both participants
usually are consensually engaged. But I won't
debate that. There are other ways of
evaluating who is and who is not a victim and
what they are a victim of. They're clearly
not a victim of the kind of person who would
be protected -- or barred, certainly, from
suing.
There are other reasons why someone
could be in a premises. I mean, even a real
bad guy selling drugs from a room in an office
building where the building could collapse and
injure many, many people because of some, you
know, totally incompetent, negligent
architectural or engineering work -- what did
that felonious conduct have to do with the
injury or the incident?
And I'm not suggesting -- you know,
I point these out because Senator Balboni
cites situations that do tend to get your ire
up, like "that's not right." But forgetting
that of course in any court case you convince
a jury that when you're engaged in an armed
robbery and somehow or other get injured by
some means quite proximate to that robbery,
1496
that you're not going to recover anything.
Who are we kidding? No jury in their right
mind is going to give the armed robber money
because he stumbled and fell running out of
the candy store.
You know, you look at the one or
two what we used to call "sport cases"; they
seem to come out of nowhere. But I've cited
other examples where I don't think any
fair-minded person would say that that person,
albeit they're guilty of a felony, albeit that
in that collapse that injured person who is
selling drugs may be found with a lot of
drugs, charged and later convicted -- I think
we'd say but the injuries they sustained, the
same injuries as all their neighbors did in
the same building, caused by the same boiler
defect or architectural negligence, they
should have the same opportunity to be
compensated for their injuries, which includes
the medical care and other things they need.
So that's why I'm going to vote no.
I don't think this bill is drafted to be
limited. It's -- the description of it on the
active list I think is misleading. It's not
1497
only to bar recovery against crime victims,
it's to bar recovery against anybody.
ACTING PRESIDENT McGEE: Senator
Balboni.
SENATOR BALBONI: Madam Speaker,
just real quick. This is the last comment --
maybe -- on the bill. I've just got to
correct a couple of things.
I misunderstood Senator Krueger's
analogy or scenario. And of course I picked
up on it when Senator Connor spoke. There is
no felonious patronizing of a prostitute.
There's a felony for pimping. You could be a
pimp. But I don't think it -- that doesn't
rise to a felony. I don't know if that
changes the circumstance, but ...
And as far as Senator Connor's
concern that perhaps outrageous situations
don't really happen, well, then I would draw
his attention to the case of McCummings, the
McCummings case. Remember this one, Senator
Connor? This is the $4.3 million award to a
mugger stands after the appellate division
reviewed it. And you know what I got a chance
to do? I got a chance to talk to Jerome
1498
Sandusky. Do you know who Jerome Sandusky is?
He's the victim. He was the guy who this
creep McCummings threw on the ground and
banged his head off of the cement. In
New York City, by the way; I think it was
Brooklyn. And then he gets up and he sues
him, he sues the police and he wins
$4.3 million.
Now, I guess what we've
clarified -- we haven't codified the law, but
certainly we've codified a sentiment here.
Let's get the record straight. There's some
in this chamber who might believe that even a
drug pusher has rights. I disagree. I don't
think they have rights to use our civil
justice system.
And you know what? Maybe some
people who believe that should take a look at
the current law. Because you know what? We
have a law called civil death. If you're
convicted of a felony, you can't vote, you
can't get a federal job. There are lots of
jobs you can't get. Does that offend your
sense of fairness?
We also have an unworthy heir
1499
doctrine, Section 675 of the Banking Law, that
if you're convicted of a felony you can't
inherit from your estate. Maybe that offends
your sense of justice.
This is common sense, ladies and
gentlemen. Perhaps you trifle with the
language. Yes, maybe there can be a better
product. But come on, it's such common sense.
And what I want to do is I want to
get the Assembly engaged. Come on, guys. You
don't like it, give me better language.
Please don't hide behind the technicalities.
And I guess what really has become
clear today is that in an overlitigious
society, we're not going to change a thing.
We're not going to carve out any piece of the
litigation pie, God forbid.
ACTING PRESIDENT McGEE: Senator
Krueger.
SENATOR LIZ KRUEGER: Madam
President, just a clarification, if I might.
ACTING PRESIDENT McGEE: Are you
asking Senator Balboni for a clarification?
SENATOR LIZ KRUEGER: No, I'd
like to offer a clarification to his previous
1500
comment.
Patronizing prostitutes is a felony
D and E under Section 230.06 and 230.05 of the
Penal Law. But you are correct, promoting
prostitution is also a felony, a separate
felony. And that's under Sections 230.32, 30
and 25. So I stand that it is a felony.
Thank you, Madam President.
ACTING PRESIDENT McGEE: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Thank you --
ACTING PRESIDENT McGEE: Pardon
me, Senator Schneiderman?
SENATOR SCHNEIDERMAN: Okay. I'm
just trying to get order on the back bench.
(Laughter.)
SENATOR SCHNEIDERMAN: On the
bill again, Madam President.
ACTING PRESIDENT McGEE: Senator
Schneiderman, on the bill again.
SENATOR BALBONI: Twice?
SENATOR SCHNEIDERMAN: Yes,
twice. You did.
Let's clarify things and bring the
1501
tone of the rhetoric down. I appreciate the
sincerity of the sponsor in his efforts to
deal with what is perceived to be a problem in
the law. But let's talk about the facts as
they relate to -- and I respectfully submit
that the McCummings case he just cited is a
good example of why we should not enact his
statute.
Again, let's come back to the
facts. For all of his rhetorical flourishes
relating to the commentary by Senator Connor,
he's not addressed the fundamental point
raised by Senator Connor, that this is not
limited to actions against the victim of a
crime. This opens the door to third parties,
before or after the commission of a crime, to
commit torts and not face civil liability.
In the McCummings case, the
criminal did not sue the victim, the criminal
sued the MTA police who shot him in the back
after the crime had been committed. And it's
exactly the kind of complex scenario that
should go a judge and should go to a jury that
does under the present circumstances. He was
not shot by the victim, he was shot by police
1502
officer Manuel Rodriguez and, as a result as a
result of the shootings, McCummings, who was
paralyzed, sued the City of New York. Maybe
the judge and jury erred, but that's something
that should go to the judge and jury.
There's been no response to the
fact, as raised by Senator Connor, this opens
the door to actions barring recovery against
third parties. There's been no response,
frankly, to the fact that -- and this I find
personally frustrating, because I am trying to
offer some constructive advice -- that you
need to have some preposition providing causal
nexus between the culpable conduct and the
action for damages, which is not in this
statute. Which I assume is a drafting error
and not an intentional effort to mislead and
confuse the courts and the public.
But let's bring it down to what
this is. Either you believe in the civil
justice system or you don't. If someone is
paralyzed, they have a right to a jury. And
this is a system that has worked well, I would
submit, in our democracy for a very long time.
The tort system is a primary system of
1503
regulating social conduct. And when you study
torts, you study a complex series of
considerations as to who should bear the
burden in any particular circumstances.
I believe in the tort law. I
believe in the civil justice system. I think
that recovery of monetary damages against
tortfeasors is a good thing. If you don't
believe in that, then let's just say that and
try and get rid of the civil justice system.
But let's not criticize people who raise
objections to a questionably drafted statute
that does not codify the law in the case it
purports to codify. Let's respect
disagreements.
I think we should try and get
something on this issue into play if it's
necessary. I have not, other than a few
misleading recitations of facts from cases
that I don't think reflect the sponsor's
comments, heard a reason to do so. I'm
against the bill even more conclusively than I
was at the start of this debate.
So perhaps we can move on and try
and get something the other house will
1504
consider. But we're not going to get it by
passing the same bill seven years in a row.
And this is not a criticism of the sponsor,
who I know has made sincere efforts to come up
with innovative solutions.
We have been here since January.
This is the 25th -- 26th working day of our
session. So far this year we've gotten
11 bills signed into law. Three were local
tax and revenue bills. Three were chapter
amendments covering details in 2003 chapters.
Two bills authorized specific BOCES programs
to enter into leases setting the maximum
post-retirement earnings of public employees.
We're not getting a lot done with
the system of the Assembly passing the same
bills every year and us passing the same bills
every year. While we've only passed 11 laws,
the Senate has passed 235 one-house bills, and
the Assembly has passed 495 one-house bills.
Maybe less rhetoric, less attacking the other
house and a little more work on drafting and
negotiation would be in order if we want to
serve our constituents.
Thank you, Madam President.
1505
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Senator
DeFrancisco.
SENATOR DeFRANCISCO: I'm going
to vote no on this bill, and for several
reasons, many of them already discussed.
It seems whenever we have a blanket
rule, there's always a case that comes up that
shows that a blanket rule is not good. Look
at the Rockefeller Drug Laws that we're
struggling with 30 years after the fact where
we give judges no discretion to do anything
depending upon the specific circumstances of
the case.
That's true with the tort law as
well. You can't come up with every single
circumstance that has to be addressed, because
you're going to find situations where
unfairness takes place. That's exactly why we
1506
have the tort structure, we have the tort law,
to have a jury, a judge and appeals courts see
the facts and circumstances of each case and
dispense justice. Probably 99 percent of the
case where someone is injured in the course of
committing a felony, there's no recovery. But
there may be that 1 percent of the case that
makes sense.
And lastly, if somebody is
paralyzed, even if they happen to have
committed a crime, who should be paying that
expense? The people of the State of New York,
because they can't recover from the individual
who caused it, or the person who caused it,
under a body of law that's been in existence
for hundreds of years?
So I would vote against this bill
for those reasons.
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 216 are
Senators Andrews, Brown, Connor, DeFrancisco,
Dilán, Duane, Hassell-Thompson, L. Krueger,
Marchi, Montgomery, Parker, Paterson,
1507
Schneiderman, and Stavisky. Ayes, 47. Nays,
14.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Morahan.
SENATOR MORAHAN: Madam
President, would you recognize Senator Duane,
please.
ACTING PRESIDENT McGEE: Senator
Duane.
SENATOR DUANE: Thank you, Madam
President.
ACTING PRESIDENT McGEE: You're
welcome.
SENATOR DUANE: I'd like
unanimous consent to be recorded in the
negative on Calendar Numbers 254, 491, and
553.
ACTING PRESIDENT McGEE: Without
objection.
SENATOR DUANE: Thank you, Madam
President.
ACTING PRESIDENT McGEE: Senator
Morahan, that completes the controversial
reading of the calendar.
1508
Senator Ada Smith.
SENATOR ADA SMITH: Madam
President, I request unanimous consent to be
recorded in the negative on Calendar Number
553, Senate Print 5479A.
ACTING PRESIDENT McGEE: Without
objection.
SENATOR ADA SMITH: Thank you.
ACTING PRESIDENT McGEE: Senator
Morahan.
SENATOR MORAHAN: Madam
President, is there any housekeeping at the
desk?
ACTING PRESIDENT McGEE: Yes,
there is.
Senator Meier.
SENATOR MEIER: Thank you, Madam
President.
I wish to call up Calendar Number
285, Senator Maziarz's bill, Assembly Print
Number 9701.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
285, by Member of the Assembly Schimminger,
1509
Assembly Print Number 9701, an act to amend
the Alcoholic Beverage Control Law.
ACTING PRESIDENT McGEE: Senator
Meier.
SENATOR MEIER: Madam President,
I now move to reconsider the vote by which
this Assembly Bill was substituted for Senator
Maziarz's bill, Senate Print Number 5857, on
March 23rd.
ACTING PRESIDENT McGEE: The
Secretary will call the roll on
reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
SENATOR MEIER: Madam President,
I now move that Assembly Bill Number 9701 be
recommitted to the Committee on Commerce
Economic Development, and Small Business, and
that the Senate bill be restored to the order
of third reading.
ACTING PRESIDENT McGEE: So
ordered.
SENATOR MEIER: Madam President,
I now offer the following amendments.
ACTING PRESIDENT McGEE: The
1510
amendments are received and adopted.
SENATOR MEIER: Thank you, Madam
President.
ACTING PRESIDENT McGEE: Thank
you, Senator Meier.
Senator Morahan.
SENATOR MORAHAN: Madam
President, would you please recognize Senator
Diaz. I believe there's a petition at the
desk.
ACTING PRESIDENT McGEE: Motion
to petition out of committee.
The chair recognizes Senator Diaz.
SENATOR DIAZ: Thank you, Madam
President.
I just take this opportunity to
motion a petition for Bill Number 3826. And
this is a bill very important to me, very
important to the community that I represent.
This is a bill that would provide an alien who
is a defendant in a criminal justice system to
be advised that the acceptance of a guilty
plea might be grounds for deportation or
denial.
Number two, this bill further
1511
provides that if the courts fail to so advise
the defendant, he or she will have the right
to withdraw the guilty plea.
This is something, an injustice
that has been done, and we try to correct that
injustice. Many families has been divided
when an immigrant, believing that by pleading
guilty he would be done with the case,
sometimes that guilty plea might caught cause
him to be deported, he or she to be deported,
and families are divided.
I know that this bill won't go
anywhere here. I appreciate my fellow
Senators for listening. I appreciate your
time, the time that I'm taking to introduce
this bill. I know that I will not get the
support for this bill. But this is a bill
that is very important for the Hispanic
community, for immigrants, for the black
community, for all kind of immigrants in the
city and the state of New York.
People have been divided, families
have been divided. I think that many
individuals who are not citizens and are
accused of a crime under state law are not
1512
aware of the fact that acceptance of a guilty
plea could constitute grounds for deportation
or denial of naturalization.
This measure will ensure that such
injustice are avoided and that immigrants who
enter a guilty plea do so with full knowledge
of the consequences of that guilty plea. I
urge my colleagues to join with me in
supporting this important common-sense
measure.
I thank you, Madam President. I
thank all of you. I hope, I wish, I pray that
I could get support for this bill. If I could
only get your vote, Madam President.
ACTING PRESIDENT McGEE: Those in
favor of the canvass will raise their hands.
Thank you, Senator Diaz.
(Laughter.)
SENATOR DIAZ: Thank you, Madam
President.
I want your support. I need your
support.
ACTING PRESIDENT McGEE: Thank
you, Senator Diaz.
SENATOR DIAZ: Balboni?
1513
(Laughter.)
THE SECRETARY: Those recorded in
agreement are Senators Andrews, Connor, Diaz,
Duane, Gonzalez, Hassell-Thompson, L. Krueger,
Lachman, Montgomery, Onorato, Oppenheimer,
Parker, Paterson, Sabini, Schneiderman, A.
Smith, M. Smith, Stachowski, and Stavisky.
ACTING PRESIDENT McGEE: The
petition is lost.
SENATOR DIAZ: Madam President, I
stand before you defeated.
(Laughter.)
ACTING PRESIDENT McGEE: Senator
Morahan.
SENATOR MORAHAN: Is there any
more business at the desk, Madam President?
ACTING PRESIDENT McGEE: No,
there is not.
SENATOR MORAHAN: Okay.
Therefore, there being no further business
before the Senate, I make a motion that we
adjourn until Wednesday, March 31st, at
3:00 p.m.
ACTING PRESIDENT McGEE: On
motion, the Senate stands adjourned until
1514
Wednesday, March 31st, at 3:00 p.m.
(Whereupon, at 4:12 p.m., the
Senate adjourned.)