Regular Session - April 20, 2004
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NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 20, 2004
3:05 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: With us this
afternoon to give the invocation is Reverend
Alex True, pastor at Cornerstone Community
Church in Brockport, New York.
REVEREND TRUE: Let's pray.
Dear Lord God, we thank You this
afternoon for the opportunity to gather
together as Your servants. And Your word
tells us that we are Your servants. Those who
serve You in the office of government are
indeed Your servants, and we thank You for
each one here.
God, we thank You for the Lord
Jesus Christ, who is the only savior, the king
of kings and the lord of lords. And we thank
You for the great love and forgiveness that
You share and that You offer to each one of us
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through him.
And, God, we pray now today and ask
that You would please bless each and every
servant that's gathered here today. Have Your
will and way done in the issues and in the
legislation that's decided today. Guide and
direct with Your wisdom on the decisions that
need to be made, and bless and protect each
one of us as we go our separate ways.
Help each one of us to understand
and to know and to accept Your love and Your
forgiveness and Your salvation that's offered
to us free of charge. And we thank You for
going to the cross for us. We thank You for
dying for our sins. And we thank You for
rising the third day. And we give You all the
praise and thanks with all of our hearts.
In Jesus' name we pray, amen.
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, April 19, the Senate met pursuant to
adjournment. The Journal of Sunday, April 18,
was read and approved. On motion, Senate
adjourned.
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THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: Madam President,
are there any substitutions at the desk?
THE PRESIDENT: Yes, there are,
Senator.
SENATOR SKELOS: If we could make
them at this time, please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 14,
Senator Marcellino moves to discharge, from
the Committee on Environmental Conservation,
Assembly Bill Number 3073 and substitute it
for the identical Senate Bill Number 897,
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Third Reading Calendar 287.
On page 22, Senator Robach moves to
discharge, from the Committee on
Transportation, Assembly Bill Number 8237 and
substitute it for the identical Senate Bill
Number 1997, Third Reading Calendar 441.
And on page 28, Senator Hannon
moves to discharge, from the Committee on
Health, Assembly Bill Number 10163 and
substitute it for the identical Senate Bill
Number 6428, Third Reading Calendar 523.
THE PRESIDENT: Substitutions
ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
at this time could we adopt the Resolution
Calendar.
THE PRESIDENT: All in favor of
adopting the Resolution Calendar please
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is so adopted.
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Senator Skelos.
SENATOR SKELOS: Madam President,
I have three resolutions at the desk. If we
could have the titles read and move for their
immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Skelos, Legislative Resolution Number 4573,
commending Gerald Schlossberg upon the
occasion of his designation for special honor
by the Shomrim Society of Nassau County at its
38th Annual Breakfast on April 25, 2004.
By Senator Skelos, Legislative
Resolution Number 4574, commending Samuel
Livingston upon the occasion of his
designation for special honor by the Shomrim
Society of Nassau County at its 38th Annual
Breakfast on April 25, 2004.
And by Senator Skelos, Legislative
Resolution Number 4575, commending Robert
Glassman upon the occasion of his designation
for special honor by the Shomrim Society of
Nassau County at its 38th Annual Breakfast on
April 25, 2004.
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THE PRESIDENT: All in favor of
the resolutions please signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolutions
are adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could go to the noncontroversial reading
of the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
373, by Senator Volker, Senate Print 4170, an
act to amend the Penal Law, in relation to
payment of mandatory surcharges.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the 90th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 41. Nays,
1. Senator Duane recorded in the negative.
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THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
424, by Senator Skelos, Senate Print --
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
527, by Senator Meier, Senate Print 5736B, an
act to amend the Tax Law, in relation to
authorizing the County of Lewis.
THE PRESIDENT: There is a local
fiscal impact note at the desk.
Read the last section.
THE SECRETARY: Section 6. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 42.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
597, by Senator Little, Senate Print 6444, an
act to amend the Civil Service Law, in
relation to providing for binding arbitration.
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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, 42.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
612, by Senator Velella, Senate Print 6476, an
act to amend the Labor Law, in relation to
requiring prevailing wages to be paid.
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, 42.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
618, by Senator Volker, Senate Print 241, an
act to amend the Penal Law and the Criminal
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Procedure Law, in relation to term of
imprisonment.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
619, by Senator Volker, Senate Print 243, an
act to amend the Criminal Procedure Law, in
relation to expanding the number of a victim's
family members.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
623, by Senator DeFrancisco, Senate Print
1143, an act to amend the Penal Law, in
relation to the payment of reparation or
restitution in certain cases.
THE PRESIDENT: Read the last
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section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
631, by Senator Morahan, Senate Print 5388A,
an act to amend the Penal Law, in relation to
authorized depositions for certain
murder-in-the-second-degree offenders.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 43. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
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643, by Senator Little, Senate Print 4924, an
act to amend the Real Property Tax Law, in
relation to state aid for improved assessment
administration.
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, 44.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
649, by Senator Skelos, Senate Print 6177, an
act authorizing the assessor of the County of
Nassau to accept an application.
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, 46.
THE PRESIDENT: The bill is
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passed.
Senator Skelos, that completes the
noncontroversial reading of the calendar.
SENATOR SKELOS: Thank you, Madam
President. If we could go to the
controversial reading of the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
424, by Senator Skelos, Senate Print 557, an
act to amend the General Obligations Law, in
relation to exoneration of certain crime
victims.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Skelos,
an explanation has been requested.
SENATOR SKELOS: Thank you, Madam
President.
This legislation, which has passed
the Senate on numerous occasions, would amend
the General Obligations Law by bringing back
the assumption of risk doctrine in certain
civil lawsuits.
In order for the plaintiff to be
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barred from recovery, the defendant must
furnish proof by a preponderance of evidence
by showing that the plaintiff committed the
crime and that the defendant's actions were
justified. The criminal has assumed the risk
of injury by his intentional actions against
the victim.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. On the bill.
THE PRESIDENT: You may proceed,
Senator.
SENATOR SCHNEIDERMAN: This is a
bill that has been around in this house for a
long time. There are similar bills that we've
debated earlier this session. Senator
Balboni's bill -- I have to say I think this
is a more moderate and carefully crafted
approach than that one. However, in my view,
it suffers from the same fundamental flaw.
This is an effort to change a body
of law that actually is working very well. I
mean, we discussed this when we debated
Senator Balboni's bill, the Barker versus
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Kallash rule. There is a wrongful plaintiff
rule in this state. Criminals have their
cases thrown out if they're bringing a civil
action and the court determines that the
subject matter of the civil action is the same
as the criminal conduct that the plaintiff was
engaged in.
So we have a rule that's working
rather well. And I'm afraid that this is just
an effort to close the courthouse doors to a
group of people who should be entitled to a
hearing.
Again, we're talking about a bill
that states that crime victims and Good
Samaritans may be exonerated from certain tort
liabilities and refers to actions where the
injuries sustained by the plaintiff, where the
defendant shall furnish proof that the injury
arose during the commission or attempted
commission by the plaintiff of a crime,
referencing several crimes.
Again, this could be a situation
where someone is fleeing from having committed
a crime and a third party assaults them, and
this could prevent the court from, as the
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court is empowered to do now, considering all
the factors involved in determining whether or
not to apply New York's existing wrongful
plaintiff rule.
I would suggest that, again, this
bill is not going anywhere. We should -- if
we're going to make an effort to deal with
these issues, passing the same series of bills
over and over again does not further that
effort.
And I think that we also -- one
final point. And I fear that we may see this
bill again. And if we do, I think it does
need to be amended, because it still refers to
sodomy. And the law as it exists now, we've
taken references to sodomy out of the law.
And so I hope that we can at least
see some amendments. As I've encouraged my
colleagues in the past, it at least looks like
we're making an effort to pass two-house bills
and change the law here when we're updating
our legislation and changing typographical
errors as bills pass over and over again.
I vote no. I think we have a body
of law that works well here. There's no
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demonstration of the need for this change.
Let's keep the courthouse doors open to
everyone. Let's empower judges to use their
discretion to do justice. And I encourage
everyone to vote no.
THE PRESIDENT: Senator Diaz.
SENATOR DIAZ: Thank you, Madam
President. On the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR DIAZ: You know, I heard
my fellow Democrat Senator Schneiderman saying
it is -- that this bill ain't going nowhere.
And frankly, it is a shame. It is a shame to
hear that this bill ain't going nowhere.
Because if we're going to put an
end to crime, if we're going to put an end to
criminals committing crimes, and to protect
the victims, this is a bill that should go
somewhere. This is a bill that we should all
support.
Because if someone decides to go
and commit a crime and assault someone and in
the process of doing that the victim hurts the
person, the perpetrator, or a bystander,
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helping the victim, hurts the perpetrator --
and we are going to give the perpetrator the
ability and the will to be able to sue and to
recover some kind of benefit from the victim?
I mean, if we are going to put an
end to criminals and to crime in the State of
New York, again, this is a bill that we should
all support.
I think that once you decide to
commit a crime, once you decide that you are
going to go into a bodega or to a home or to
somewhere to commit a crime or to assault
someone, and in that process you get hurt,
that's your own doing. You should have no
right to sue anyone. You committed a crime;
you should go to prison. You should go to
jail, not -- you should not be given the right
to sue.
So, ladies and gentlemen, I am for
this bill. And I think it is a shame to hear
that this bill ain't going nowhere.
Thank you very much.
THE PRESIDENT: Does any other
member wish to be heard?
Then the debate is closed.
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Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 424 are
Senators Andrews, Dilán, Duane,
Hassell-Thompson, L. Krueger, Montgomery,
Paterson, Sampson, and Schneiderman. Ayes,
46. Nays, 9.
THE PRESIDENT: The bill is
passed.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time return to motions and
resolutions in the calendar.
I believe that there is a
privileged resolution at the desk sponsored by
myself and Senator Little. I would ask that
it be read in its entirety and move for its
immediate adoption.
THE PRESIDENT: The Secretary
will read.
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SENATOR BRUNO: Can we ask for
order in the chamber, please, Madam President.
THE SECRETARY: By Senators Bruno
and Little, Legislative Resolution Number
4570, paying tribute to the life and selfless
heroism of Private First Class Nathan Patrick
Brown, of South Glens Falls, New York.
"WHEREAS, It is with a heavy heart
that this Legislative Body pays tribute to
Private First Class Nathan Patrick Brown, a
21-year-old soldier serving with the National
Guard, who was killed on Sunday, April 11,
2004, when his armored Humvee was attacked
while on routine patrol in Samarra, Iraq; and
"WHEREAS, Private First Class
Nathan Patrick Brown was a member of a Glens
Falls-based Army National Guard unit, Company
C of the 2nd Battalion of the 108th Infantry,
attached to the United States Army's 1st
Armored Division in Iraq; and
"WHEREAS, Private First Class
Nathan Patrick Brown's job responsibilities as
a member of the National Guard was to guard,
search and secure transportation routes; and
"WHEREAS, Private First Class
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Nathan Patrick Brown was born on June 13,
1982, in Glens Falls, New York, the loving son
of Ricky L. and Kathy J. (Ryan) Brown; and
"WHEREAS, This Legislative Body
extends its deepest sympathy to the family of
this brave American, Private First Class
Nathan Patrick Brown; and
"WHEREAS, No one can fully
understand a tragedy such as this, but only
know that prayers help us through the day and
help us endure the night. There are prayers
of friends and strangers that give us all
strength, and there are prayers that yield our
will to a will greater than our own; and
"WHEREAS, Private First Class
Nathan Patrick Brown is survived by his
parents, Ricky and Kathy Brown; brother,
Christopher; two sisters, Megan and Victoria;
half-brother, Matthew Secor; half-sister,
Sarah Secor; his fiancee, Sara Grace Hill;
maternal grandmother, Beatrice I. Ryan;
grandfather and World War II veteran Paul H.
Ryan, Sr.; paternal grandparents, Raymond and
Josie Brown; great-grandmother, Lillian
Wooley; great-grandfather Amarante Chavez;
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several aunts, uncles, and cousins; and all of
his fellow soldiers who served with him in
Iraq; and
"WHEREAS, It is the sense of this
Legislative Body to convey its grateful
appreciation and heartfelt grief in
recognition of the loss of this courageous
individual, who dedicated his purposeful life
and career to serve his country as a member of
the National Guard; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to pay tribute
to the life and selfless heroism of Private
First Class Nathan Patrick Brown of South
Glens Falls, New York; and be it further
"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to the family of Private First Class Nathan
Patrick Brown."
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Thank you, Madam
President and colleagues.
This really is as sad as anything
can be when you hear this resolution
describing a fun-loving, caring, 21-year-old
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young man -- 21 years old -- dying tragically
on what has been, on Easter Sunday, described
as a routine patrol, if there can be such a
thing over there in a war zone. Routine
patrol. Four others were injured in that
attack.
You know, the Lieutenant Governor
and Senator Little attended, this morning, the
funeral. I understand there were hundreds,
maybe thousands of people there, just caring
and sharing in their grief.
You think about a 21-year-old and
how this comes home to us -- graduates from
high school, dedicates himself unselfishly to
a fight for freedom in wartime, in a time of
very great peril. His grandfather, as we
heard, served in World War Two; his father
served in the Marines in 1980. An uncle
served in the Air Force and Navy. This is a
committed, patriotic, dedicated family.
This young fellow, we read and
heard, was always asking his mom to send
candy. And the candy he shared with the Iraqi
children, and that's why he kept asking for
candy. Volunteered in orphanages there in
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Iraq, for young people. Just as a caring,
caring individual.
So it's so appropriate -- you
wonder what benefit do you see in something
like this. I guess if there's any benefit at
all, other than he's committed his life and
died fighting for freedom for us, people
around the world, and for those in Iraq, when
you think about a young man like this who
spent the time he had on this earth really
committed to relating to others, doing good --
think about it. He's a son, he's a grandson,
a fiance, soon to be married, as they were
planning.
So it's a sad time for us. But
it's a good time for us to think about all
those that are serving around the world, those
that are there in the troubled areas not
because they want to be but they feel
compelled that they have to be. And we can
all thank the good Lord there are people out
there like Nathan Patrick Brown, who was
willing to commit his young life to protecting
those people and their freedom a long ways
from home, and consequently defending us here
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in this chamber, in this state, and in this
country.
Thank you, Madam President.
THE PRESIDENT: Senator Little.
SENATOR LITTLE: Thank you, Madam
President. And thank you, Senator Bruno.
It truly is a sad day. It's truly
every military family's nightmare to have the
knock on the door to find out that your son or
daughter has made the ultimate sacrifice in
giving of one's life for their country.
And since our country began, we
have had the good fortune of having young men
and women who were willing to put themselves
in harm's way, knowing that at any time they
may have to make that ultimate sacrifice.
So we owe a great deal of gratitude
to Private First Class Nathan Brown and to all
of the men and women who are serving in Iraq
and in other places in this world, protecting
us and protect our freedom.
At today's funeral, you certainly
had to be impacted by the sadness of the
family, by the sadness of the other members of
the National Guard. This is the first time
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that a New York National Guard has been sent
to a foreign country since World War II. And
Nathan is the first of our National Guard to
lose his life in Iraq.
So you say, what can I say or what
can I do to mend the heartbreak of this
family? There certainly is nothing more
tragic than standing next to the coffin of one
of your children. What we're doing today in
our resolution, in recognizing the heroism of
Nathan and our gratitude to him, is what we
can do.
Today, hundreds and hundreds of
people lined the funeral path when they went
from the church past the Glens Falls Armory on
their way to the Saratoga National Cemetery,
where he will be buried with -- was buried
with full military honors.
So at a time when words seem very
inadequate, I think the only thing we can do
is through our presence and through our action
here today with this resolution, and through
our thoughts and prayers, express our sorrow,
our sympathy to the family, and our gratitude
to men and women in our country who make this
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sacrifice, and today to Private First Class
Nathan Brown.
And I also believe that we can
continue to show our support for all those men
and women who continue to serve in Iraq and to
offer a prayer for them each and every day and
for their safety, that they return home well.
Thank you.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President.
This is certainly a sobering
subject matter. I am very pleased that we're
at least able to pause for a moment to put
things in perspective, as the death of someone
this young under these circumstances has to do
for any caring, thinking person.
And obviously this is not an
ideological or partisan issue. This is a
human issue. And I think we all have to think
about working as hard as we can to support the
troops, to support all of the men and women in
our state who have loved ones abroad.
And I would thank Senator Little,
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Senator Bruno for taking a moment to make us
focus and get us a little more serious in an
atmosphere that occasionally gets a bit
frivolous on substantial issues.
And I would also just like to
mention that tomorrow is West Point Day. And
sometimes, you know, we're all wandering
around doing other things. I hope everyone
will be here tomorrow for West Point Day when
we bring the troops up. Let's remember what's
going on now. This is not a casual thing to
be in the military. And particularly for
those who serve in the Guard from New York
State, let's all remember them as we go
forward.
Thank you.
THE PRESIDENT: Senator Bonacic.
SENATOR BONACIC: Thank you,
Madam President.
I too stand in honor and gratitude
for Nathan Brown, and I want to tell you a
little story that happened today.
Simultaneously with that funeral
and burial, there was another individual where
there was a mass today in Sidney, New York --
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Delaware County -- a 20-year-old whose name
was Isaac Michael Nieves. And he died in
Baghdad.
And I went to the church to honor
this family, and they asked me to speak. And
when I got up to that pulpit and looked out,
there was his mom and dad and nine siblings,
six of which had uniforms on of Air Force,
Navy, and Army.
The whole church was crying. His
younger brother, a 19-year-old cadet from West
Point, got up to that podium and with the
strength and wisdom and passion and commitment
and love of this country, he talked of his
brother and his dedication to his family.
And when I left that place, I said
because of Nathan Brown and because of people
like Isaac Nieves, we are going to win the war
on terrorism, because our greatest resources
are our people.
Now, these were individuals I don't
know. And I'm sure many of us don't know
these heroes that are out there fighting for
our freedoms. But I am so proud of the Nathan
Browns of the world for their love of God,
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love of country, love of family. And some pay
a higher price of freedom, and their families,
than others.
But we are in this together, and we
should remember that always as we go down the
political campaigning and all of the rhetoric.
Thank you, Madam President.
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: Madam
President, on Friday of this week there will
be another funeral held, this time for a
Marine, Kevin Kolm, who died four days ago in
Fallujah.
And what we're seeing, obviously,
is that New York is paying a price in terms of
its National Guardsmen. And what Senator
Little said about this being the first
deployment is absolutely accurate.
And I am very heartened that we are
choosing to mention each of these young
soldiers' names here in this chamber, that we
are stopping to take the time to reflect upon
their lives and their sacrifice.
But I also want to make sure
everybody is reminded of that, different than
1859
nowhere war in this nation's history, every
man and woman who is serving in Iraq is a
volunteer. Every man and woman chose to enter
into the service.
It's a very unique time in our
history, in many different respects. And each
man and woman in the service that has died for
their country is indeed a hero. Let's offer
our prayers for all the families for these
volunteers.
Thank you, Madam President.
THE PRESIDENT: Does any other
Senator wish to be heard?
All in favor of the resolution
please signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we ask for an immediate meeting of the
Commerce Committee in the Majority Conference
Room.
1860
THE PRESIDENT: There will be an
immediate meeting of the Commerce Committee in
the Majority Conference Room.
SENATOR BRUNO: Madam President,
can we at this time return to the reading of
the controversial calendar.
THE PRESIDENT: The Secretary
will continue to read.
THE SECRETARY: Calendar Number
618, by Senator Volker, Senate Print 241, an
act to amend the Penal Law and the Criminal
Procedure Law, in relation to term of
imprisonment.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Volker,
an explanation has been requested.
SENATOR VOLKER: Madam President,
this is a bill which has passed this house on
a number of occasions.
And we have termed this the "three
times and you're out" bill, which says that
if -- on certain violent felony offenses, if
you have previously had two such violent
felony offenses, that the third must include
1861
at least a plea of guilty to a violent felony
offense. In other words, it can't be pled
down to less than a violent felony offense.
Now, these people probably have
been around for a while, because if they
already have two violent felony offenses on
their record and they end up with a third one,
quite clearly they have a pretty good criminal
background. This is not -- by no means are we
talking about anybody that could, by any
stretch of the imagination, be said to be
nonviolent. Under any circumstances, they
have to have a rather extensive rap sheet.
So I think under the
circumstances -- and by the way, this I think
was developed, if I'm not mistaken, because a
person -- and so many of these proposed
statutes have occurred because some judges or
a judge or whatever allowed someone to plead
down who had long criminal records.
If you look back, by the way,
what's fascinating is it caused tough drug
laws -- because I was there when the so-called
Rockefeller Drug Laws passed. You would
realize that there was a study done which
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showed that the same people or the same
sentences in different parts of the state were
considerably different. For instance, a
person charged under the violent felony
offense in New York City would get about a
third of what they would get in upstate
New York.
And in drug areas, by the way,
there were some judges in New York City who
refused to send anybody to jail on drug
charges. And that was particularly true in
several of the boroughs.
The only reason I mention that is a
lot of people say: Well, why do we go to
these mandatory sentences? It's because there
was so much irresponsibility going on in
certain places, that that's the real reason
that we went to mandatory minimum sentences.
And they were changed later on as the climate
changed. And I think a lot of people don't
realize that it happened.
Anyways, the bottom line is this is
one of those bills that basically says if
you're into a third -- if you have two
predicate felons -- violent felony
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convictions, on the third conviction you must
be sentenced to at least a plea of guilty to a
violent felony offense.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. On the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR SCHNEIDERMAN: I thank
the sponsor once again for his explanation.
Not quite as good as his explanation last
year, when he said, "We're moving fairly
quickly to do something here on sentencing
before this month is out," and predicted that
the Assembly and the Senate were going to
reform the sentencing laws. So I liked that
better. But perhaps a little more circumspect
this year.
The problem here is very simple.
It's not a matter of people believing that
violent felons who are dangers to society
shouldn't be in prison for a very long time.
The problem is that this legislation simply
states "where the indictment charges any
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violent felony offense." And Senator Volker
spoke eloquently about our effort to get rid
of judges who may abuse their discretion.
The problem is there still are
human beings with discretion in determinate
schemes. They're called district attorneys.
And indictments are not issued by some cabal
of wise men. They are not handed down from
Mount Sinai. Indictments are issued by human
beings who are as capable of abusing their
discretions as those who sit in black robes on
the bench.
The question here, quite simply, is
what are we going to do about the sentencing
laws in this state that I think virtually
everyone, on every side of the debate,
recognizes are badly flawed. We have to do
something.
Again, this is a bill that we've
seen many times. We still have the bill memo
on it that states that crimes of violence are
on the rise every day, which I hope we'll
update, along with Senator Skelos's bill on
sexual assault and Senator Balboni's bill with
the typographical errors that we see year
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after year.
But let's try and get serious about
the issue of sentencing. We're having a
hearing tomorrow morning in Hearing Room A
that Senator Duane and Senator Montgomery are
convening on the issue of sentencing in the
context of the Rockefeller Drug Laws,
10:00 a.m. tomorrow, to try and put some
further energy into the flagging effort to
reform a body of laws that are seriously
flawed.
What we have now under the
determinate sentencing rules is exactly what
Senator Volker described when he was
complaining about the abuse of discretion of
judges and the inconsistency of sentencings.
They have a virtual what's called a
Mason-Dixon line, of which north of the city
where district attorneys will charge much
heavier offenses and therefore get much
heavier sentences than below the Mason-Dixon
line.
Abuse can exist in either body.
Let's not just shift discretion from judges to
prosecutors; let's do something that
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comprehensively deals with the issue.
I'm voting no on this. I really do
sincerely wish that Senator Volker's
prediction of last year will come true this
year and that we will meet with the Assembly
and attempt to do something about the
sentencing laws. Because while we pass
one-house bills and the Assembly passes
one-house bills and prosecutors exercise their
unfettered discretion to charge people as they
see fit, there are a lot of people doing time
who shouldn't be doing time. And there are
laws that we can reform very easily by just
passing some simple bills.
I think that we've attempted, in
our conference, to advance a comprehensive
proposal to get the debate moving again.
We're having a hearing tomorrow. Let's try
and do something.
And I know that the sponsor would
be happy to actually see progress in this area
rather than us continually going through this
debate and the Assembly going through their
parallel debate, passing their one-house bill.
So I'm going to vote no, Madam
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President, but in the hope that Senator
Volker's prediction perhaps was a year early
but nonetheless accurate.
Thank you.
THE PRESIDENT: Does any other
member wish to be heard?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 618 are
Senators Duane, Hassell-Thompson, Montgomery,
Parker, Paterson, and Schneiderman. Ayes, 55.
Nays, 6.
THE PRESIDENT: The bill is
passed.
Senator DeFrancisco.
SENATOR DeFRANCISCO: I request
unanimous consent to be recorded in the
negative on Calendar 424, Senate Print 557.
THE PRESIDENT: Hearing no
objection, you will be so recorded as voting
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in the negative, Senator DeFrancisco.
Senator Skelos.
SENATOR SKELOS: Please recognize
Senator Parker.
THE PRESIDENT: Senator Parker.
SENATOR PARKER: Madam President,
I request unanimous consent to be recorded in
the negative on Calendar Number 424.
THE PRESIDENT: Hearing no
objection, you will be so recorded as voting
in the negative.
Senator Skelos.
SENATOR SKELOS: Madam President,
is there any housekeeping at the desk?
THE PRESIDENT: No, there isn't,
Senator.
SENATOR SKELOS: If I could just
remind the members that session will start at
11:00 tomorrow, and our cadets from West Point
will be here. So if we could all be in the
chamber at the appropriate time, it would be
appreciated by all.
And there being no further business
to come before the Senate, I move we stand
adjourned until Wednesday, April 21st, at
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11:00 a.m. sharp.
THE PRESIDENT: On motion, the
Senate now stands adjourned until Wednesday,
April 21st, at 11:00 a.m.
(Whereupon, at 3:47 p.m., the
Senate adjourned.)