Regular Session - May 10, 2004
2283
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
May 10, 2004
3:08 p.m.
REGULAR SESSION
SENATOR CHARLES J. FUSCHILLO, JR., Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT FUSCHILLO: 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.)
ACTING PRESIDENT FUSCHILLO: In
the absence of clergy, may we please bow our
heads in a moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT FUSCHILLO:
Reading of the Journal.
THE SECRETARY: In Senate,
Saturday, May 8, the Senate met pursuant to
adjournment. The Journal of Friday, May 7,
was read and approved. On motion, Senate
adjourned.
ACTING PRESIDENT FUSCHILLO:
Without objection, the Journal stands approved
as read.
Presentation of petitions.
Messages from the Assembly.
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Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Farley.
SENATOR FARLEY: Thank you, Mr.
President.
On behalf of Senator Johnson, Mr.
President, I move that the following bill be
discharged from its respective committee and
be recommitted with instructions to strike the
enacting clause: That's Senate Print 7177.
ACTING PRESIDENT FUSCHILLO: So
ordered.
SENATOR FARLEY: Mr. President.
ACTING PRESIDENT FUSCHILLO:
Senator Farley.
SENATOR FARLEY: I offer the
following amendments to the following Third
Reading Calendar bills:
By Senator Golden, on page 20,
Calendar Number 207, Senate Print 3372;
By Senator Flanagan, on page 21,
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Calendar 265, Senate Print 3581;
By Senator Robach, on page 30,
Calendar 450, Senate Print 2764;
For Senator Saland, on page 33,
Calendar 485, Senate Print 5940A;
And on behalf of Senator LaValle,
on page 59, Calendar Number 927, Senate Print
6811A.
I move that these bills all shall
retain their place on the Third Reading
Calendar.
ACTING PRESIDENT FUSCHILLO: The
amendments are received and adopted, and the
bills will retain their place on the order of
Third Reading Calendar.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could go to the noncontroversial reading
of the calendar.
ACTING PRESIDENT FUSCHILLO: The
Secretary will read.
THE SECRETARY: Calendar Number
157, by Senator Velella, Senate Print 5973B,
an act to amend the Labor Law, in relation to
the appointments to the Public Work Advisory
2287
Board.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
501, by Senator Volker, Senate Print 2773A, an
act --
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT FUSCHILLO: Lay
it aside.
THE SECRETARY: Calendar Number
531, by Senator Maltese, Senate Print 6115 --
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT FUSCHILLO: The
bill is laid aside.
2288
THE SECRETARY: Calendar Number
581, by Senator Flanagan, Senate Print 6158B,
an act to authorize the Congregation
Lubavitch-Chabad House of the North Shore at
Stony Brook, Inc.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50. Nays,
1. Senator Bonacic recorded in the negative.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
628, by Senator Volker, Senate Print 4814, an
act to amend the Penal Law, in relation to
causing the death of a peace officer.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 6. This
act shall take effect on the 90th day.
ACTING PRESIDENT FUSCHILLO: Call
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the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
645, by Senator Larkin, Senate --
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT FUSCHILLO: The
bill is laid aside.
THE SECRETARY: Calendar Number
654, by Senator Libous, Senate Print 6528A, an
act to authorize the Village of Endicott, in
the County of Broome.
ACTING PRESIDENT FUSCHILLO:
There is a home-rule message at the desk.
Read the last section.
THE SECRETARY: Section 8. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT FUSCHILLO: The
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bill is passed.
THE SECRETARY: Calendar Number
689, by Senator Little, Senate Print 4333, an
act to amend the Volunteer Firefighters
Benefit Law and the Volunteer Ambulance
Workers Benefit Law, in relation to waiver
agreements.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
704, by the Assembly Committee on Rules,
Assembly Print Number 8486, an act to amend
the Labor Law and the Public Officers Law, in
relation to public access.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 7. This
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act shall take effect on the 60th day.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
716, by Member of the Assembly Brodsky,
Assembly Print Number 7401, an act to amend
the Business Corporation Law, in relation to
amendment of certificates.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the 180th day.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
734, by Senator Saland, Senate Print 5389A, an
act to amend the Penal Law, in relation to
2292
obstructing telephonic or electronic
communication for assistance.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
736, by the Assembly Committee on Rules,
Assembly Print Number 8958A --
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT FUSCHILLO: The
bill is laid aside.
THE SECRETARY: Calendar Number
748, by Senator Kuhl, Senate Print 4914, an
act to amend the Highway Law, in relation to
establishment of dedicated project accounts.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
2293
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
785, by Senator Nozzolio, Senate Print 3216 --
SENATOR SCHNEIDERMAN: Lay it
aside.
ACTING PRESIDENT FUSCHILLO: The
bill is laid aside.
THE SECRETARY: Calendar Number
825, by Senator DeFrancisco, Senate Print
6988, an act to amend the Estates, Powers and
Trusts Law, in relation to the
disqualification of a parent.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first of January.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
2294
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
904, by Senator Rath, Senate Print 6632, an
act to amend the Town Law, in relation to
general powers of town boards.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
955, by Senator Seward, Senate Print 6314, an
act to amend the State Finance Law, in
relation to increasing the maximum amount of
funds.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
2295
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
Senator Skelos, that completes the
noncontroversial reading of the calendar.
SENATOR SKELOS: Mr. President,
if we could go to the controversial reading of
the calendar, please.
ACTING PRESIDENT FUSCHILLO: The
Secretary will read.
THE SECRETARY: Calendar Number
501, by Senator Volker, Senate Print 2773A, an
act to amend the Criminal Procedure Law.
SENATOR SCHNEIDERMAN:
Explanation.
SENATOR SKELOS: Lay it aside
temporarily.
ACTING PRESIDENT FUSCHILLO: Lay
it aside temporarily.
The Secretary will continue to
2296
read.
THE SECRETARY: Calendar Number
531, by Senator Maltese, Senate Print 6115, an
act to amend the Public Officers Law, in
relation to the residence of fire alarm
dispatchers employed.
SENATOR MONTGOMERY: Explanation.
ACTING PRESIDENT FUSCHILLO:
Senator Maltese, an explanation has been
requested.
SENATOR MALTESE: Mr. President,
this is an act to amend the Public Officers
Law in relation to the residence of fire alarm
dispatchers employed in the paid fire
department of the City of New York. It
exempts fire department dispatchers in
New York City from being a resident of the
political subdivision in which they are
employed.
The justification is that
approximately a year ago, pursuant --
approximately two years ago now, pursuant to
legislative enactment by the City Council,
fire alarm dispatchers and their supervisors
became members of the uniformed force of the
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New York City Fire Department.
Currently, firefighters, fire
officers, fire marshals, marine division
personnel, and emergency medical service
personnel are not required to live within the
confines of the City of New York. These
uniformed members of the department are
permitted to reside in several counties, as
spelled out in the Public Officers Law;
basically, the contiguous suburban counties.
The current residency requirement
is out of step with other parts of the
uniformed force of the fire department and
hampers the Bureau of Fire Communications in
its recruitment and retention efforts.
Basically, the position requires,
or would seem to have as an asset, prior
experience in volunteer fire departments.
There are very few, if any -- except one in my
own district, the Hamilton Beach Fire
Department, the City of New York has very few,
if any other, working and active volunteer
fire departments. Therefore, it would seem
advantageous to go into the suburbs, where
there are many volunteer fire departments.
2298
The Fire Alarm Dispatchers
Benevolent Association is not asking to be
treated any differently than any other portion
of the uniformed forces department. However,
they currently are treated differently. They
are the only uniformed fire department
personnel, including sanitation and police
personnel, that are required to reside within
the City of New York.
Under ordinary circumstances, Mr.
President, diversity is a laudable goal. In
this particular case with fire alarm
dispatchers, fully 50 percent are either
minority or women and therefore would seem to
come within the confines of achieving any
diversity goal that would be assisted by
requiring that they reside within the confines
of the City of New York.
ACTING PRESIDENT FUSCHILLO:
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President. I would just like to comment on
the legislation.
ACTING PRESIDENT FUSCHILLO: On
the bill.
2299
SENATOR MONTGOMERY: Yes.
First of all, Mr. President, I just
would like to point out to my colleagues that
we do have a memo in opposition from the City
of New York, so that obviously this
legislation is not being requested by or
endorsed by the mayor of the city.
Second of all, I note that in the
memo of opposition from the city there is an
indication that currently the fire department
is fully staffed for the positions of FADs
which this legislation addresses, as well as
supervisors. So there is really not a
compelling need, based on the inability of the
city to recruit people for these positions.
So the residency requirement is not a problem
in that respect.
And the other issue that I would
like to raise as it relates to the residency
requirements, even though, as the memo states
and Senator Maltese has indicated, that
currently firefighters, fire officers, fire
marshals, marine division personnel and
emergency medical service personnel are not
required to live within the confines of the
2300
City of New York, that is one of the issues
that a number of members of the Black, Puerto
Rican and Hispanic Caucus in particular, as
well as other members, take specific exception
to.
We have a position, we're on record
having a position that all uniformed personnel
working for the City of New York should be
required to reside in the city of New York.
And, Mr. President, since we have
this, you know, this extremely difficult if
not impossible situation in requiring people
who live outside of the city to even pay a
commuter tax, why would we, as city residents,
be looking to exempt even more people from
living in the city of New York so that they
could go outside of the city and not have to
pay a commuter tax to work in the city?
So I am opposed to this, and I
would certainly think and hope that the
members of this Legislature, especially those
of us who represent the City of New York,
should be voting against this bill.
Thank you, Mr. President.
ACTING PRESIDENT FUSCHILLO: Does
2301
any other Senator wish to be heard on the
bill?
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 531 are
Senators Andrews, Dilán, Hassell-Thompson,
Lachman, Montgomery, Onorato, Parker,
Paterson, Schneiderman, and A. Smith. Ayes,
45. Nays, 10.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
Senator Padavan.
SENATOR PADAVAN: Mr. President,
may we return to Senator Volker's bill,
Calendar 501.
ACTING PRESIDENT FUSCHILLO: The
Secretary will read.
THE SECRETARY: Calendar Number
501, by Senator Volker, Senate Print 2773A, an
act to amend the Criminal Procedure Law, in
2302
relation to the authority of police officers.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT FUSCHILLO: An
explanation has been requested, Senator
Volker.
SENATOR VOLKER: Mr. President,
this is a bill that has been around for a few
years. It is called the Police and Public
Protection Act.
It originally had some other
provisions in it, I believe one of which
became law, if I remember right, and another
provision that we omitted. And I can't find
my notes, but that's okay.
It basically has three provisions
in it. The first provision is something that
really relates to the issue of stopping a
person. It has nothing to do, frankly, as
I've pointed out before, with the ability of
police officers really to stop somebody.
There's always been the right to talk to
somebody.
But what this has to do with is
that our Court of Appeals probably is the most
2303
restrictive Court of Appeals in the country as
to what happens after a person is stopped and
talked to. Because our Court of Appeals has
seen fit to throw out all sorts of cases where
in some cases, I think -- and if you read the
cases, you'd realize they seem a little bit
ridiculous. But of course in a court, where
you're farther away from the street, it's easy
to make decisions, legal decisions, based on
what you consider to be something that maybe
we in a courtroom think differently of.
Out on the street, having been a
cop, I can tell you if I find a gun someplace,
and I don't care how I find it, I'm going to
grab it and I'm going to make sure that nobody
gets ahold of it, whether it ends up as
credible evidence or not. As somebody who had
several incidents where, let's just say, I had
to dive into cars to make sure that nobody was
able to use anything, you begin to realize.
Now, what this bill basically says
is -- it has three provisions. One provision
says that a police officer has the right to
question a person when he has an objective,
credible reason not necessarily indicative of
2304
criminality. And the reason is that the Court
of Appeals has used a much more restrictive
criteria relating to the potential commission
of a crime. It really has no effect on the
person you're talking to except if you should
uncover or find evidence; then it could lead
to a conviction.
This is, of course, a defense
lawyer's great deal for the Court of Appeals.
And our Court of Appeals has become notorious
for being extremely conducive to people who
are involved in criminal activity.
The second provision relates to the
issue of abandonment of property. A criminal
is running from the scene of possibly a
crime -- it depends on your indication of what
represents a crime -- throws a bag of drugs as
he's running, you grab the bag of drugs.
The Court of Appeals has thrown out
a number of those cases, saying that you
cannot directly prove that that person didn't
intend to abandon the property and therefore
it wasn't in his possession, and you can't
convict him of the crime. In one case it was
something like six pounds of cocaine, if I'm
2305
not mistaken.
And the final provision relates to
an issue that has kind of reverberated around
the country relating to the exclusionary rule
and the issue of how the law relates to
implements of crimes, evidence and so forth,
that then has been taken by law enforcement
people. And the question whether, if it was
not taken entirely correctly, whether that
evidence could be used in a trial.
It's called the exclusionary rule,
and it relates to the issue of whether the law
enforcement people were acting deliberately in
an unjust or incorrect way or whether it was,
in some cases, possibly an accidental mistake.
And if it did not get right to the
heart of the crime, the Supreme Court of the
United States has ruled that such evidence can
be offered at a hearing or a trial, and the
Court of Appeals of this state has taken a
much more restrictive position --
interestingly enough, using the exact same
language in the Constitution of the United
States and the Constitution of New York.
And even though the Supreme Court
2306
has said that the more liberal attitude can be
taken, the Court of Appeals of this state has
basically said that as long as -- has not
taken the bad faith rule, but has said that
the evidence can be excluded even if it
complies with the Supreme Court's opinion of
how this should be done, saying that
New York's Constitution, with the exact same
language, is more restrictive than the
Constitution of the United States.
And that's basically the three
provisions in here. And this has been debated
on many occasions.
Senator?
ACTING PRESIDENT FUSCHILLO:
Senator Sampson, why do you rise?
SENATOR SAMPSON: Would the
sponsor yield for a few questions?
ACTING PRESIDENT FUSCHILLO:
Senator Volker, do you yield for a question?
SENATOR VOLKER: Certainly.
ACTING PRESIDENT FUSCHILLO: The
sponsor yields.
SENATOR SAMPSON: Through you,
Mr. President. Senator Volker, when you talk
2307
about the objective reasons for a police
officer to question or stop, what are these
objective reasons based upon?
SENATOR VOLKER: Well, the reason
we're using this language, as you know, John,
very well, there's been a number of cases that
have said that you don't have to question --
you are able to question somebody -- in fact,
generally speaking, you're able to question
somebody -- he doesn't have to answer, by the
way, but you at least have the right to
challenge someone or to talk to someone.
The great, you know, for instance,
I guess, is somebody who's obviously drunk,
somebody is in an area where he or she doesn't
appear to be in a place where they should be.
I mean, I've used the example before of you
have a person wearing military clothes in a
residential neighborhood. There's a whole
series of ways in which it can be done. It
doesn't mean they committed any crime, but it
does mean it wouldn't be a bad idea to at
least question them.
And what this would say is if
nothing happens, then the guy of course
2308
wouldn't be arrested and nothing would happen.
The issue, though, is what happens after that.
The guy, for instance, has a machete on him,
as happened in one case, and you didn't see
the machete until you walked right up to him,
you're questioning him, and, you know, things
of that nature. So obviously you're going to
charge him with an illegal weapon.
And the courts in one case, I
believe, threw that case out because they said
there was no indication of a crime before they
actually went to question him.
SENATOR SAMPSON: Through you,
Mr. President, would the sponsor continue to
yield?
ACTING PRESIDENT FUSCHILLO:
Senator Volker, do you continue to yield?
SENATOR VOLKER: I certainly do.
ACTING PRESIDENT FUSCHILLO: The
Senator yields.
SENATOR SAMPSON: So, Senator,
basically what you're saying is based upon the
discretion of the officer, that is the reason
why he would stop these individuals and make
these inquiries.
2309
SENATOR VOLKER: Yeah. If there
was, as it says here, an objective, credible
reason not necessarily indicative of
criminality. What that all means is that it
doesn't necessarily mean that you have to have
suspicion of a crime.
The truth is, in our law for years
has been the right, if you want to say, of an
individual not to answer questions, by the
way, unless there's some crime involved. And
we don't change that. This doesn't change at
all.
The police officer in effect is
given almost a duty, under certain
circumstances, to find out what is going on.
And I've always pointed this out,
that one of the issues, for instance, of
racial profiling is if you see a white man in
a black neighborhood driving a car that was
suspected to be involved in a burglary, a car,
you'd better stop that car.
The same thing is true in reverse.
If you don't, you're probably violating the
principles of good police work. A lot of
people, I don't think, understand that.
2310
I caught a number of burglars, and
I really didn't -- all I knew was that there
was a suspicion that this kind of vehicle was
involved. And if you don't at least stop that
vehicle to at least check it out, you're
probably not being a good cop.
And, you know, sometimes it
conflicts with people's ideas of how things
work. And of course you always get a story
that's different from what it was really --
what really happened.
So that's really, you know, the --
what I'm saying. And, by the way, this would
indirectly involve police stops, could involve
police stops. You still are under the same
caveats, though, as -- if you don't have a
crime, you don't have a crime, so there's
nothing you can do.
SENATOR SAMPSON: So through you,
Mr. President, if the sponsor could continue
to yield.
ACTING PRESIDENT FUSCHILLO:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Sure.
ACTING PRESIDENT FUSCHILLO: The
2311
Senator yields.
SENATOR SAMPSON: So, Senator,
basically what you're saying is we're talking
about the difference between what you're
proposing and what presently is in existence
is the issue of criminality.
SENATOR VOLKER: Well, I think
what's happened is the courts have restricted
not the issue of stopping somebody; the issue
is what happens after that.
For instance, as I said -- I used
the machete as an example. The machete was
thrown out as evidence, if I remember right,
because there was no evidence before that that
this person had committed a crime. Now, the
fact that -- however, that under this, an
objective credible reason not necessarily
indicative of criminality, the fellow was
acting unusually. He was staggering and, you
know, moving around and so forth, and that's
why they went to get him. He was actually, I
think, high on something.
But that's an example. It wouldn't
matter, they would have done it anyways,
except that they were not able to charge him
2312
then or, well, convict him. This would give
the police at least the chance in court to get
a person convicted who obviously was up to no
good, with a machete on him.
SENATOR SAMPSON: Through you,
Mr. President, would the sponsor continue to
yield?
ACTING PRESIDENT FUSCHILLO:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Certainly.
ACTING PRESIDENT FUSCHILLO: The
sponsor yields.
SENATOR SAMPSON: Senator, you
talked about the cases in which evidence has
been suppressed. But what is the percentage
of those cases where the evidence has not been
suppressed with respect to the current
existence of the procedures now?
SENATOR VOLKER: Very honestly,
John, and I think you know why, I have no idea
what the percentage is.
All I'm saying to you is, though,
that in the society that we are in, most of
these cases, you're right, never get to the
Court of Appeals. And I'm well aware of that.
2313
In our society, frankly, as time
has gone on, fewer and fewer people are
getting confronted by police officers anyways.
And there's lots of reasons for it.
But what we're saying here is that
there are some rules that have creeped in not
from the streets, but have creeped in because
of overtechnicality in some of our courts,
that appear to have created a situation where
some pretty bad actors are able to dodge the
penalties of the criminal law.
You're probably going to say to me:
Yeah, but some people may get unjustly
charged. It's always possible. On the other
hand, they can get unjustly charged now.
The question is, can you convict
them? And the answer is if they're unjustly
charged, they're not going to be convicted
anyways. And -- so that's the argument that I
make.
SENATOR SAMPSON: Thank you.
ACTING PRESIDENT FUSCHILLO: Any
other Senator wish to be heard on the bill?
Read the last section.
Oh, Senator Schneiderman. Didn't
2314
see you.
SENATOR SCHNEIDERMAN: Thank you.
It's my camouflage gear.
On the bill.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I'm not
going to belabor what has been said many times
before. As Senator Volker indicated, this
bill has been around for a while, or the
various provisions that are before us today.
I think that what I find the most
frustrating about this year's legislative
session probably is the fact that we are
essentially down to debating the same
one-house bills over and over again, knowing
they're not going anywhere in the other house.
And it is always interesting to debate with my
colleagues. Sometimes people change their
minds about things.
But I don't think that this really
represents a serious effort to deal with the
complicated issues that have to do with
relations between the police and people in
communities. And I would urge the sponsor,
2315
who is a student of this business, that there
still are substantial problems about the way
police in certain areas deal with people. I
think there are problems related to race,
there are problems related to -- certainly to
ethnicity and people's status as immigrants.
And I would respectfully submit
that we have a set of laws in New York that do
not -- have not resulted in, as some would put
it, a jailbreak. We have a system of laws
that work pretty well. We have an
exclusionary rule that, you know, has not
resulted in an increase in crime which is
referred to in the bill memo supporting this
legislation. In fact, there's been a dramatic
decrease in crime in recent years.
The laws protecting people from
unreasonable actions by police officers,
attempting to set some boundaries on the
conduct of those in authority, have not
resulted in an increase in crime. Crime has
gone down anyway.
So there doesn't appear to be any
justification for weakening the laws that
protect people from abuses of authority. And
2316
we both know there are abuses of authority.
There are those in authority who abuse their
power. And it really does send the wrong
message, I believe, to tell law enforcement
officers as long as you can meet this sort of
very amorphous standard of good faith, or,
worse yet, put the burden of proving bad faith
on the other side, as long as you have -- and
I still, to this day, do not have an
explanation for exactly what this means -- as
long as you have an objective, credible reason
not necessarily indicative of criminality, you
may take such other actions as the officer
deems appropriate.
That takes away limitations that
have not resulted in thousands of criminals
running free. There's no study that says this
is a huge problem. Crime has gone down. And
I think that the issue of how the police deal
with the public and the standards for stop and
frisk, the standards for excluding evidence
wrongfully obtained should be addressed in a
more thoughtful way.
This legislation is not going
anywhere. I'm sorry to see it back in its
2317
present form again. I'm going to vote against
it.
And I also would suggest that, you
know, if we are going to try and do something
that deals with some of these issues, the
notion of the bad faith rule relating to
warrants, as presented in this bill, really
distorts the federal rule. The federal law
says that if you have a warrant and there was
a technical problem with it, then you have
a -- then you can provide some sort of a good
faith rule: Illinois v. Gates. This bill, as
I read it, doesn't have a requirement for a
warrant at all.
So maybe we could do something with
a more narrowly drawn statute. This one is a
an oldie but baddie, I'm afraid. And again,
it purports to address a dramatic increase in
violent crime that does not exist.
I think there are real issues in
this area. I hope we'll have a chance to deal
with them in a more serious way later in the
session. Thank you.
ACTING PRESIDENT FUSCHILLO:
Senator Volker.
2318
SENATOR VOLKER: I'll just be a
second. By the way, I just -- no, I'll be
very brief.
I don't agree, obviously -- well, I
agree to a certain extent. I would tell you,
though, I don't think that the Supreme Court
case is just on warrants. It's actually
specifically on warrants, but it also applies
to nonwarrant cases, the so-called bad faith
rule.
Let me just say, though, that
you're right about the memo. This memo is
from 1999. And thankfully, because of this
house and the Governor and so forth, and we've
done a lot of things, the crime rate is
falling. And we're not saying that this --
these bad faith -- and I call them bad faith.
They have somewhat discouraged police
officers.
If you're a police officer and you
have a known drug addict who starts running
away from you with a bag of drugs and throws
it, and a Court of Appeals says: Well, we
can't convict that person because he disposed
of his drugs and therefore he really abandoned
2319
them, and you can't charge him with possession
because you can't say absolutely that the
entire time he was in possession of those
drugs -- that seems a bit severe, I would
think.
And my point, I guess, is these are
the kinds of things that discourage law
enforcement from attacking people who prey on
our neighborhoods. And I agree with you that
this is probably not going to pass the
Assembly this year. It's a defense attorney's
nightmare to have this sort of stuff happen.
But maybe it would be good for us
to realize that sometime in the future, things
are going to change and it would be good for
us to have, it seems to me, a more reasonable
Court of Appeals when our Court of Appeals
decides to be even more restrictive than the
Supreme Court of the United States.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, why do you rise?
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. If the sponsor would yield for
one question.
ACTING PRESIDENT FUSCHILLO:
2320
Senator Volker, will you yield for a question?
SENATOR VOLKER: Sure. Sure.
ACTING PRESIDENT FUSCHILLO: The
Senator yields.
SENATOR SCHNEIDERMAN: Have any
of those Court of Appeals justices gotten on
the bench without confirmation in this house?
SENATOR VOLKER: Those Court of
Appeals justices, the new ones, have all got
on the bench with my consent. I admit that.
And I am not necessarily calling
these judges, by the way, incompetent or --
I'm just saying that these decisions, I think,
are areas that we should reconsider, and that
we should because the Court of Appeals made
these decisions based on the fact of the law
as it was. We can change that, and we have
the right to do that.
And so I'm saying to you, just as I
think that we are still here in May reaving
[ph] on the budget because the Court of
Appeals decided to do what I consider a
ridiculous decision on CFE and tie us up in
knots, it just seems to me that this is a
time -- as I told my wife, Judith Kaye and her
2321
people are responsible for my not getting
paid -- it seems to me this is a good time for
us to deal with the Court of Appeals.
SENATOR SCHNEIDERMAN: Thank you.
Mr. President, that comes in the
category of getting more than what you asked
for.
On the bill.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I look
forward to seeing new judges appointed to the
Court of Appeals. I look forward to new
judges under a new Governor who will meet some
of these requirements for standing up for
things.
But I would urge that this is a
Court of Appeals that is not dominated by
appointees, at this point, of any sort of
left-wing governors. And when this Court of
Appeals -- which is a pretty balanced group, I
would respectfully submit -- finds that
certain types of police conduct are so
egregious that it really is better to err on
the side of excluding evidence in a very small
2322
number of cases -- I mean, let's not
misconstrue this -- that that probably
represents a fairly balanced view. And there
are dissents in all of these cases, and it's
obviously argued.
And I would further suggest that
when this Court of Appeals rules on an issue
of tremendous importance to many of us who
have children in public schools and who
represent districts with severely delapidated
and inadequate public schools, it probably
reflects something dramatic in the record
rather than any sort of out-of-control court.
I enjoy debating the sponsor on
issues related to criminal justice. I think
that he is -- I appreciate his candor in
acknowledging that the increase in violent
crime in fact is a decrease in violent crime.
Maybe the balance that has been struck between
this house and the other house hasn't been so
awful. I certainly have not heard, in the
years I've been here, a good justification for
changing the existing law.
Once again, I urge everyone to vote
no on this bill. And we will revisit the
2323
issue of the Campaign for Fiscal Equity case,
I hope, soon. Thank you.
ACTING PRESIDENT FUSCHILLO:
Senator Montgomery, why do you rise?
SENATOR MONTGOMERY: Yes, Mr.
President, I rise to speak to one specific
aspect of the legislation. On the bill.
ACTING PRESIDENT FUSCHILLO:
Senator Montgomery, on the bill.
SENATOR MONTGOMERY: Okay, thank
you.
The current law, as I have here,
indicates that in order to make an arrest, the
police must have probable cause to believe
that a crime has been committed. To briefly
but forcibly stop and detain an individual,
the police must have reasonable suspicion to
believe a crime has been committed.
Now, this legislation, as I
understand it, seeks to expand the authority
of a police officer to stop, question, and
take any action against a person in a public
place that the police officer deems
appropriate, without the officer having any
reasonable suspicion that a crime has
2324
occurred, is occurring, or is about to occur.
Now, one of the problems that I
have with this proposal, Mr. President, is
that, first of all, in my district and in
districts across, certainly, the borough of
Brooklyn and the city of New York, we have
several different police operations.
We have Operation Impact going, we
have Operation Atlas going, we have various
other so-called special forces in our
precincts, the purpose being to crack down on
terrorism and to crack down on this crime and
that crime and so forth and so on.
What happens is, Mr. President,
that these operations require the police to
take action; i.e., make a certain number of
arrests. They carry with them a quota. They
target districts like mine. The precincts
that they target are in my district and
Senator Smith's district and your district,
Senator Sampson's district. So our districts
are targeted for these operations.
In order for the police officers to
meet their quota, they must do what? Go out
and arrest people. And they end up doing it
2325
whether or not there's any crime being
committed. They stop and frisk people just on
GP. It leads to profiling in my district.
And so there are huge numbers of
complaints lodged against police officers and
the police department because people have been
unduly harassed by the police. And the reason
that that happens is that these operations are
put in place, and they target certain areas
and they drive this behavior. How are we ever
going to address the issue of police brutality
and profiling if we don't stop proposing this
kind of outrageous legislation?
So I'm absolutely opposed to it. I
think that it is the wrong thing to do. It
creates havoc in our districts. I don't know
how many white people have been arrested
because they were in the wrong neighborhood
driving the wrong car, but I certainly can
tell you that there's plenty of
African-American and Latino young people who
have been thrown up against the wall and
frisked and even arrested, taken down to the
precinct, held overnight because they were
standing on the street corner waiting for
2326
their friends or just standing out, just
standing out on the street corner in a little
group, just doing their little thing. So I --
and no crime being committed; I want to make
that very clear.
This happens over and over. I get
hundreds of complaints. So, Mr. President,
this is absolutely a problem for people like
me. And there are a number of us in this
Legislature, both in the Assembly and the
Senate, who experience this problem on a daily
basis.
So I ask my constituents -- my
colleagues; my constituents are asking us -- I
ask my colleagues to join me in rejecting this
idea, rejecting this kind of legislation that
seeds these problems for us in our districts,
because our young people in particular are
being subjected to this aggressive policing at
the street level because people like Senator
Volker and others -- it's not only him --
continue to promote this kind of legislation.
Let's just reject this. And let's
talk about resources that support the
development of young people, so they have some
2327
hope and they don't have to be subjected to
this outrageous kind of legal process.
Thank you, Mr. President. I'm
voting no.
ACTING PRESIDENT FUSCHILLO:
Senator Padavan.
SENATOR PADAVAN: Read the last
section.
ACTING PRESIDENT FUSCHILLO: Does
any other Senator wish to be heard on the
bill?
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you.
Briefly on the bill, Mr. President.
So I listened to the debate, and
one of Senator Volker's comments was that this
would be a nightmare for a criminal defense
attorney. And I would argue that this bill
would be a nightmare for all of us.
And I was doing some homework
earlier today -- and I'm not a criminal
attorney, as I've mentioned before, but I
decided to go and read some of the positions
of conservative constitutional attorneys. And
they're also opposed to this legislation, and
2328
they highlight the understanding that an
impatient public can sometimes encourage law
enforcement officials to cut corners in their
quest to apprehend the guilty.
But one of the greatest challenges
for crime-fighting in a free society is to
develop and maintain legal procedures that
will make it possible to bring the guilty to
justice without subjecting innocent citizens
to unreasonable searches, unfounded
accusations, or even death.
When agents of the executive branch
of the government -- the police, in this
situation -- disregard the terms of search
warrants or attempt to bypass the warrant
issuance process altogether, it is the role of
the judicial branch to respond by checking
that misbehavior when it is able to do so.
And as it happens, the most
opportune time for the judicial branch to
check such unconstitutional behavior is when
executive branch lawyers -- prosecutors --
attempt to introduce illegally seized evidence
in court.
Because of the existence of the
2329
exclusionary rule, this is the only effective
tool the judiciary has for preserving the
integrity of its warrant-issuing process. And
any legislative attempt to abrogate this rule
should be declared null and void.
This is from the Cato Institute's
legal experts on the Constitution, and their
disapproval of this bill. And so I side with
my conservative friends when I argue against
this bill and hope my colleagues will vote
against it.
Thank you, Mr. President.
ACTING PRESIDENT FUSCHILLO: Does
any other Senator wish to be heard on the
bill?
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT FUSCHILLO:
Senator DeFrancisco, to explain his vote.
SENATOR DeFRANCISCO: Yes, I vote
no on the bill. And it's not because I'm
2330
coddling the criminals, or it's not because I
in some way don't feel the police need all the
tools that they get.
But I just can't understand, for
the life of me, if the stop is due to some
objective, credible reason not necessarily
indicative of criminality, what is the
standard? If there's no reasonable suspicion
that a crime has been committed, what's the
standard?
If there's no standard, that means
it's an open-ended stop for any reason, good
or bad. And you can always come up with some
credible reason, depending upon who it's
credible to.
And once again, the comment that
it's a defense attorney's field day -- you
know, we're all citizens in this community,
the State of New York. And to suggest that
this is -- the people that are against this
bill somehow are in favor of defense attorneys
finding so-called loopholes, I think is an
irresponsible comment.
But I really think that this bill
has many flaws, and I don't think any citizen
2331
should be subjected to a stop for a reason
that cannot be defined in a statute.
Thank you.
ACTING PRESIDENT FUSCHILLO:
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 501 are
Senators Andrews, Breslin, Brown, DeFrancisco,
Dilán, Duane, Hassell-Thompson, L. Krueger,
Montgomery, Onorato, Oppenheimer, Parker,
Paterson, Sabini, Schneiderman, A. Smith, and
Stavisky. Ayes, 43. Nays, 17.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
The Secretary will continue to
read.
Senator Skelos, why do you rise?
SENATOR SKELOS: Thank you for
recognizing me, Mr. President.
There will be an immediate meeting
of the Finance Committee in the Majority
Conference Room.
ACTING PRESIDENT FUSCHILLO:
There will be an immediate meeting of the
Finance Committee in the Majority Conference
2332
Room.
Senator Brown.
SENATOR BROWN: Thank you, Mr.
President. I'd like unanimous consent to be
recorded in the negative on Calendar 531.
ACTING PRESIDENT FUSCHILLO:
Without objection.
The Secretary will continue to
read.
Senator Sampson.
SENATOR SAMPSON: (Indicating a
no vote.)
ACTING PRESIDENT FUSCHILLO:
Without objection.
THE SECRETARY: In relation to
Calendar 501, Senator Sampson voting in the
negative also.
Calendar Number 645, by Senator
Larkin, Senate Print 5867A --
SENATOR LIZ KRUEGER:
Explanation.
ACTING PRESIDENT FUSCHILLO:
Senator Larkin, an explanation has been
requested.
SENATOR LARKIN: Mr. President,
2333
this is a bill that was generated as a result
of the agricultural community and their deep
concerns about the ability to obtain technical
and financial assistance. And we put this
together so that they can be a partner in the
growth.
Agriculture is the largest industry
in the state of New York. And all this bill
does is allow the IDAs to provide technical
and financial assistance or loans in order to
help the farm community.
Major communities where we have the
big agricultural processing houses and that
are already covered. But the farm community
itself, the ones that's doing all of the work,
are not counted.
And in a farm community meeting
that we've held with my colleague John Bonacic
over here and others in the Hudson Valley, the
number one issue was let the IDA be a partner.
ACTING PRESIDENT FUSCHILLO:
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Mr. President. If, through you, the sponsor
would yield.
2334
ACTING PRESIDENT FUSCHILLO:
Senator Larkin, do you yield for a question?
SENATOR LARKIN: Yes, Mr.
President.
ACTING PRESIDENT FUSCHILLO: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you,
Mr. President.
I certainly am empathetic to trying
to help support small farms in the state of
New York. But I'm concerned about are there
any safeguards in your proposed law to ensure
that family farms are protected from this bill
potentially giving even greater power to large
industrial producers with whom they already
find themselves not competing.
SENATOR LARKIN: Just the
opposite, Senator. This is to include those
small family farms who right now, if they
don't have the finances locally in their own
family, they're out of luck. But a major
grower or storer can go to the IDA.
This makes the family farm
inclusive to the rest of the agriculture
industry.
2335
SENATOR LIZ KRUEGER: Thank you.
Mr. President, if, through you, the
sponsor would continue to yield.
ACTING PRESIDENT FUSCHILLO:
Senator Larkin, do you continue to yield?
SENATOR LARKIN: Yes.
ACTING PRESIDENT FUSCHILLO: The
Senator yields.
SENATOR LIZ KRUEGER: Thank you,
Mr. President.
So if I heard you right, Senator
Larkin, you're clarifying that you believe
under existing law the larger agribusinesses,
and even things like concentrated animal
feeding operations, already have the ability
to go to IDAs; that this would specifically,
in your understanding, be opening it up to the
smaller family farms?
SENATOR LARKIN: Yes.
SENATOR LIZ KRUEGER: Thank you,
Mr. President. I have no objection to the
bill.
ACTING PRESIDENT FUSCHILLO: Does
any other Senator wish to be heard on the
bill?
2336
Read the last section.
THE SECRETARY: Section 5 --
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, why do you rise?
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. If the sponsor would yield for
a question.
ACTING PRESIDENT FUSCHILLO:
Senator Larkin, will you yield for a question?
SENATOR LARKIN: Yes.
ACTING PRESIDENT FUSCHILLO: The
Senator yields.
SENATOR SCHNEIDERMAN: And this
may just be a clarification of the colloquy
that went before. But I don't see in this
legislation anything that would require the
inclusion of smaller farms. And it does seem
that it would make these large concentrated
animal feeding operations and others eligible
for IDA support.
Is there some provision here that
directs the inclusion of smaller operations or
excludes these larger producers?
SENATOR LARKIN: The larger
producers are already included in it. And
2337
what we want to do is to open this up so those
other farm entities who are falling by the
wayside or selling all of their land because
they don't have the money to buy the equipment
that is essential to keep the farm up to
current status -- and this bill is exactly
what the farmers asked for, and this is what
we propose to give to the farmers.
SENATOR SCHNEIDERMAN: And
through you, Mr. President, if the sponsor
would yield for one more question.
ACTING PRESIDENT FUSCHILLO:
Senator Larkin, will you continue to yield?
SENATOR LARKIN: One more
question.
ACTING PRESIDENT FUSCHILLO: The
Senator yields for one more question.
SENATOR SCHNEIDERMAN: And the
question is, where in this bill or in the
current law is the provision that allows these
larger producers, particularly the
concentrated animal feeding operations or
other factory farms, to be eligible for
support from IDAs? I just don't see it
anywhere.
2338
SENATOR LARKIN: Senator, if you
look at it, big farms fall under the district
of commercial, which is taken into the IDA.
That's where they come on. And we're just
adding this.
They come under the commercial.
And it becomes an industrial operation when
they start the big silos for the storage of
onions, apples.
SENATOR SCHNEIDERMAN: Okay.
Thank you, Mr. President.
On the bill.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I think --
and this may -- I'm not sure if this is a
drafting error, but I don't really see -- I
don't really see that if -- for the addition
of agriculture, which this bill would add to
the statute that directs the operation or the
eligibility for IDA -- for aid from IDAs, I'm
not really sure I see where factory farms
would be included.
The current language refers to
recreation, economically sound commerce and
2339
industry, and does not include agriculture.
So I may be misreading this, but I
do think that some clarification of that would
be appropriate. If this is something that
really is geared to family farms, then I think
some of the opposition of the Sierra Club and
others are just -- may be mistaken. But the
language as it's written now to me doesn't
seem to clarify the issue enough, and I would
urge that we do so before we move forward.
Thank you.
ACTING PRESIDENT FUSCHILLO: Does
any other Senator wish to be heard on the
bill?
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59. Nays,
1. Senator Padavan recorded in the negative.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
The Secretary will continue to
2340
read.
THE SECRETARY: Calendar Number
736, by the Assembly Committee on Rules,
Assembly Print Number 8958A, an act --
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT FUSCHILLO:
Senator Skelos, an explanation has been
requested.
SENATOR SKELOS: Thank you, Mr.
President.
This bill will give peace officer
status to juvenile counselors employed by the
Department of Juvenile Justice for the City of
New York who are assigned to court services or
to a detention facility for juveniles.
This legislation is supported by DC
37, New York Police Department Sergeants
Benevolent Association.
ACTING PRESIDENT FUSCHILLO:
Senator Krueger, why do you rise?
SENATOR LIZ KRUEGER: Thank you.
I rise to speak on the bill, Mr. President.
ACTING PRESIDENT FUSCHILLO:
Senator Krueger, on the bill.
2341
SENATOR LIZ KRUEGER: Thank you.
As I have risen on many bills that
have come before this house related to adding
peace officer status, yet again to urge my
colleagues not to support this kind of bill.
What we continue to do, bill after
bill, in this house is to create a secondary
police force on college campuses, in
hospitals, now in the context of juvenile
detention.
The City of New York, the Mayor of
the City of New York has given us a memorandum
urging us not to support this legislation,
because I think his concerns are similar to
mine, that we should not be expanding a
secondary, nontrained, separately structured
police system in our city. That we actually
have a police department that's doing a very
good job at providing the services that we
need, that we don't want to even further
criminalize the status of youth in a detention
system by putting them under some kind of
additional, secondary police structure.
And so as I so often stand here and
urge my colleagues don't expand the model of
2342
peace officers where they're not needed in the
State of New York, I urge us to vote against
this bill today.
Thank you, Mr. President.
ACTING PRESIDENT FUSCHILLO:
Senator Hassell-Thompson, why do you rise?
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. I rise just to speak on
the bill.
ACTING PRESIDENT FUSCHILLO:
Senator Hassell-Thompson, on the bill.
SENATOR HASSELL-THOMPSON: Thank
you.
In looking at this bill and several
others, one of the concerns that I have asked
to be raised was whether or not peace officers
have to take a psychological test. And I've
been told that they do not.
And my concern is that there's a
young man -- who I think is a very fine young
man, I like him a great deal -- who took the
exam for the police department, and he failed
the psychological. He is now a peace officer.
And he is pushing my office to help to pass a
peace officer bill which will, in fact, give
2343
him permission to carry a weapon.
My greatest concern is that this
category, unlike the police department, does
not require that you have to have a
psychological in order to carry a weapon.
That would be a great concern to me.
And certainly, until such time as
we examine that and ensure that anyone
carrying a weapon is of the frame of mind --
or that we can be as assured as we can be that
they are of the frame of mind that should be
carrying a weapon, I will continue to vote no
on these peace officer bills.
Thank you, Mr. President.
ACTING PRESIDENT FUSCHILLO: Does
any other member wish to be heard on the bill?
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT FUSCHILLO:
Senator Montgomery, to explain your vote.
SENATOR MONTGOMERY: Yes, Mr.
2344
President, to explain my vote.
I just think this is another
instance where we're actually putting the
lives of young people in danger. I don't
think that we would like to see counselors and
personnel who are specifically assigned to
work with juveniles now equipped with a gun.
We don't even have the corrections officers
who work with inmates in the DOCS facilities
carrying guns.
So now we want to have these people
with weapons, and in a very volatile situation
with young people who are already on edge.
And it's just, I think, a recipe for total
disaster. We're going to have more deaths of
young people, and it's just going to breed all
kinds of problems in the areas where there are
numbers of people in charge of juveniles.
So I oppose this, and I hope my
colleagues will join me in voting against
this.
Thank you.
THE SECRETARY: Those recorded in
the negative on Calendar Number 736 are
Senators Dilán, Hassell-Thompson, L. Krueger,
2345
and Montgomery. Ayes, 56. Nays, 4.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
THE SECRETARY: Calendar Number
785, by Senator Nozzolio, Senate Print 3216,
an act to amend the Executive Law and others,
in relation to access to records.
SENATOR SCHNEIDERMAN:
Explanation.
SENATOR SKELOS: Lay it aside for
the day.
ACTING PRESIDENT FUSCHILLO: The
bill is laid aside for the day.
Senator Skelos, that completes the
controversial reading of the calendar.
SENATOR SKELOS: Is there any
housekeeping at the desk?
ACTING PRESIDENT FUSCHILLO: No,
there's not, Senator.
SENATOR SKELOS: Then if we could
stand at ease pending the return of the report
of the Finance Committee.
ACTING PRESIDENT FUSCHILLO: The
Senate stands at ease.
SENATOR SKELOS: Mr. President.
2346
ACTING PRESIDENT FUSCHILLO:
Senator Skelos.
SENATOR SKELOS: Thank you for
recognizing me. If you could recognize
Senator Montgomery.
ACTING PRESIDENT FUSCHILLO:
Senator Montgomery.
SENATOR MONTGOMERY: Thank you.
Mr. President, I would like unanimous consent
to be recorded in the negative on Calendar
628.
ACTING PRESIDENT FUSCHILLO:
Without objection, Senator.
SENATOR MONTGOMERY: Thank you.
ACTING PRESIDENT FUSCHILLO:
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could stand at ease, please.
ACTING PRESIDENT FUSCHILLO: The
Senate will stand at ease.
(Whereupon, the Senate stood at
ease at 4:10 p.m.)
(Whereupon, the Senate reconvened
at 4:12 p.m.)
ACTING PRESIDENT FUSCHILLO:
2347
Senator Skelos, why do you rise?
SENATOR SKELOS: Mr. President, I
rise so that I can be recognized by you.
ACTING PRESIDENT FUSCHILLO:
Senator Skelos.
SENATOR SKELOS: Thank you. If
you could recognize Senator Duane.
ACTING PRESIDENT FUSCHILLO:
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President. If I may have unanimous consent to
be recorded in the negative on Calendar
Numbers 645 and 736.
ACTING PRESIDENT FUSCHILLO:
Without objection.
SENATOR SKELOS: Does any other
member wish to change their vote or vote?
ACTING PRESIDENT FUSCHILLO:
Senator Andrews.
SENATOR ANDREWS: Mr. President,
I'd like to be recorded in the negative on
Calendar Number 736.
ACTING PRESIDENT FUSCHILLO:
Without objection.
SENATOR ANDREWS: Thank you.
2348
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT FUSCHILLO:
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to reports of standing
committees, I believe there is a report of the
Finance Committee at the desk. I ask that it
be read at this time.
ACTING PRESIDENT FUSCHILLO:
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Johnson,
from the Committee on Finance, reports the
following nominations.
As a member of the Workers'
Compensation Board, Mona A. Bargnesi, Esquire,
of Snyder.
ACTING PRESIDENT FUSCHILLO:
Senator Johnson.
SENATOR JOHNSON: Move the
nomination.
ACTING PRESIDENT FUSCHILLO: The
question is on the confirmation of the
reappointment of Mona A. Bargnesi as a member
of the Workers' Compensation Board. All those
2349
in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT FUSCHILLO:
Opposed, nay.
(No response.)
ACTING PRESIDENT FUSCHILLO: The
ayes have it. The confirmation is confirmed.
And she is here. Mona Bargnesi,
congratulations.
(Applause.)
ACTING PRESIDENT FUSCHILLO: The
Secretary will read.
THE SECRETARY: As members of the
Buffalo and Fort Erie Public Bridge
Authority-Peace Bridge, Paul J. Koessler, of
Buffalo, and Gerald J. Lewandowski, of
Clarence.
As a nonvoting member of the
Metropolitan Transportation Authority, Michael
J. Canino, of Babylon.
As a member of the Dormitory
Authority, Gail Hill Gordon, of Slingerlands.
As members of the Empire State
Plaza Art Commission, Joseph G. Perrella, of
Niskayuna, and Lynette M. Tucker, of Delmar.
2350
As a member of the Allegany State
Park, Recreation and Historic Preservation
Commission, Wayne R. Grossman, of Bemus Point.
As a member of the Genesee State
Park, Recreation and Historic Preservation
Commission, Frank X. Allkofer, of Rochester.
As members of the Veterans' Affairs
Commission, Harold G. Cronin, of Lake Luzerne,
and Herman G. Harrington, of Rensselaer.
As a member of the Council on Human
Blood and Transfusion Services, Alicia Elena
Gomensoro-Garcia, M.D., of Staten Island.
And as members of the State
Hospital Review and Planning Council, Michael
H. Barnett, Esquire, of New York City, and
Vincent James Calamia, Jr., M.D., of Staten
Island.
ACTING PRESIDENT FUSCHILLO:
Senator Johnson.
SENATOR JOHNSON: Move the
nominations.
ACTING PRESIDENT FUSCHILLO: The
question is on the confirmation of the
appointments as read by the Secretary. All in
favor signify by saying aye.
2351
(Response of "Aye.")
ACTING PRESIDENT FUSCHILLO:
Opposed, nay.
(No response.)
ACTING PRESIDENT FUSCHILLO: The
ayes have it. The confirmations are approved.
The Secretary will read.
THE SECRETARY: Senator Johnson,
from the Committee on Finance, reports the
following bills:
Senate Print 7260, by the Senate
Committee on Rules, an act making
appropriations for the support of government.
And Senate Print 7264, by the
Senate Committee on Rules, an act making
appropriations for the support of government.
Both bills ordered direct to third
reading.
ACTING PRESIDENT FUSCHILLO:
Without objection, the bills are ordered
direct to third reading.
Senator Skelos.
SENATOR SKELOS: Mr. President,
would you please call up Calendar Number 1063.
ACTING PRESIDENT FUSCHILLO: The
2352
Secretary will read.
THE SECRETARY: Calendar Number
1063, by the Senate Committee on Rules, Senate
Print Number 7260, an act making
appropriations for the support of government
and to amend Chapter 18 of the Laws of 2004.
ACTING PRESIDENT FUSCHILLO:
Senator Skelos.
SENATOR SKELOS: Is there a
message of necessity and appropriation at the
desk?
ACTING PRESIDENT FUSCHILLO: Yes,
there is.
SENATOR SKELOS: Move to accept.
ACTING PRESIDENT FUSCHILLO: All
in favor of accepting the message of necessity
and appropriation signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT FUSCHILLO:
Opposed, nay.
(Response of "Nay.")
ACTING PRESIDENT FUSCHILLO: The
message is accepted.
Read the last section.
THE SECRETARY: Section 30. This
2353
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT FUSCHILLO:
Senator Johnson, an explanation has been
requested.
SENATOR JOHNSON: This bill
appropriates $1.4 billion to various state
departments and agencies: $600 million for
Medicaid, $122 million for school aid
payments, $194 million for state payroll
requirements through May 19th.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the sponsor
would yield for a question.
ACTING PRESIDENT FUSCHILLO:
Senator Johnson?
SENATOR JOHNSON: Yes.
ACTING PRESIDENT FUSCHILLO: The
Senator yields.
2354
SENATOR SCHNEIDERMAN: Thank you.
I see here today we're doing a
one-week extender and then a separate bill
that provides for an additional budget
extender. My question is, why are we doing
two separate bills for two periods of time
instead of one bill just to get us through the
entire period of time?
SENATOR JOHNSON: Because this is
the way they were sent to us by the Governor.
Thank you.
(Laughter.)
SENATOR SCHNEIDERMAN: On the
bill.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: That is --
I think that I would like to thank the sponsor
for his answer.
I do -- it does sort of raise the
issue, though, of what is in the mind of the
sender to conduct business in such a way.
And I would respectfully suggest --
and this is not fault of any individual here,
but it is something I believe we have to take
2355
collective responsibility for -- that it may
well be that people involved in negotiating
the budget, or involved in not negotiating the
budget, would rather not do a two-week
extender because then we can say, Well, now
you're just going on and having longer and
longer extenders, so we're going to keep doing
one-week extenders but pass two of them at the
same time.
That's -- it's just a very strange
way to do business. But it underscores a
point that several of us have made here in
relation to past budget bills.
We have a better way. It's been
proposed by Senator Paterson to force us to
pass a budget. We should be staying here to
work on it. The ease with which the Governor
sends up bills, misuses messages of necessity,
and that we all are supposed to fall into line
and allow this process to go forward is not
serving the interests of the people of this
state.
This is the 40th working day of the
legislative session. We're supposed to have
60 working days, so we're now two-thirds of
2356
the way through. We have passed 405 one-house
bills; the Assembly has passed 619 one-house
bills. We have 45 bills that have become law,
but virtually every one of those is either a
budget extender, a local tax bill, a chapter
amendment, or a program extender.
I don't think it's a great mystery
to anyone here what's going on. What's going
on is that we are not making progress on the
budget. And in the absence of the budget,
we're not making progress on anything else. I
think this is not the way to proceed. I think
we should stay here and try and get this done.
And I think that if the Governor
wants to avoid the accusation that he's doing
two-week budget extenders by sending us two
one-week bills the same day, my daughter's
fifth-grade class, I think, can see through
that one.
I am going to vote no again, Mr.
President. I think we can do better than
this.
ACTING PRESIDENT FUSCHILLO:
Senator Sabini.
SENATOR SABINI: Mr. President,
2357
American industry has been accused of
instituting planned obsolescence to their
products. Now we have planned inaction. We
know we're not going to do anything for two
weeks, but let's make it look good by doing it
in one-week increments. It's -- only in
Albany does this happen.
There's enough guilt around to heap
on both parties and in both houses. You know,
this does not past the duck test. This is --
it quacks, it waddles, it's a duck. It's a
two-week extender if you take it -- if you
staple it together, it's a two-week extender.
I'm -- you know, in professional
wrestling people get bored every once in a
while because they get used to the same
tricks. So they change the tricks every
couple of years. They have the twin referees,
they have the foreign objects, they have the
sand in the face, and they change it to keep
people interested.
Maybe that's what we're doing here.
It's like maybe people will think we're
working harder if we pass two bills for two
different weeks and say, gee, we're doing
2358
double the work now.
You know, the public is going to
get wise to this one of these days and say:
This is not what we send you -- or don't pay
you to do. I was going to say pay you to do,
but we're not getting paid.
I am again amazed at the inaction
here, and I plan on voting no.
Thank you.
ACTING PRESIDENT FUSCHILLO:
Senator Johnson.
SENATOR JOHNSON: I'm just a bit
embarrassed to realize that our friends on the
other side of the aisle are unaware that they
have a convention on the 17th and we cannot be
here to pass the second week's budget. And
that's why we're doing two now. Otherwise, it
would have come up the following Monday.
So we are extending a courtesy to
them by closing the shop down; in order that
people can get paid on the 17th, the bills
have to both go at this time.
It has nothing to do with trying to
make two into one or anything else, or not
having the courage to do a two-week budget.
2359
Certainly the courage is there.
But we are hopeful always -- that's
why we go one week at a time -- that things
will materialize and progress is being made
with the budget, but very slowly. And you
know that; you can't take it out of the oven
until it's baked.
So we're doing our best, and it's
not a subterfuge to get two weeks. It's
simply one week now and one week the next
Monday when you will not be here to pass one
the second week.
Thank you.
ACTING PRESIDENT FUSCHILLO:
Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Mr. President. On the bill.
ACTING PRESIDENT FUSCHILLO:
Senator Krueger, on the bill.
SENATOR LIZ KRUEGER: Just in
response to Senator Johnson's clarification,
I'm sorry, I would still argue that one could
have done an eight-day extender bill if we
were not going to be back here on the 17th.
They argue that in recovery the
2360
first step to recovery is to admit you have a
problem. And I don't think we're prepared to
admit that we have a problem and that we're
not addressing it.
And so as I have voted against the
other extender bills, and as my colleagues
have already amply explained, we should not be
doing this today.
And we should particularly should
not be doing -- despite the Senator's analysis
of May 17th being a day that we're not in
session, we should not be approving a message
of necessity for a bill that wouldn't start
until next week.
Even if one wants to argue seven
days versus eight days, two weeks versus one
week, how do you justify an emergency action
on a message of necessity from the Governor
for a time period that doesn't start now? It
seems to me to defy the intention of the
purpose of the message of necessity in our
Constitution and under our rules.
So I'll vote against these
extenders as I have voted against the others,
for the same reasons, but I will add on the
2361
inappropriateness, particularly, of the
message of necessity on the second extender
bill today.
Thank you, Mr. President.
ACTING PRESIDENT FUSCHILLO:
Senator Stavisky.
SENATOR STAVISKY: I was under
the impression that one and one equals two.
But I guess we lost some more trees in trying
to print the two separate bills.
Mr. President, I accept Senator
Johnson's explanation, but I'm still not sure
that's the proper way to go, and I will vote
no also.
ACTING PRESIDENT FUSCHILLO:
Senator Lachman.
SENATOR LACHMAN: Yes. I feel
somewhat guilty in not having voted no before.
But one can always change one's negative steps
and paths, and I think we have gone far
enough.
I think that the editorial in
today's Times about a Legislature that does
nothing is becoming more and more appropriate
to this State Legislature. We are becoming
2362
more and more dysfunctional. I think it's
outrageous that we have to wait two weeks
after we did it for one week and then one week
and one week.
So from now on, I will be voting no
on these extenders.
Thank you.
ACTING PRESIDENT FUSCHILLO: Does
any other Senator wish to be heard?
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President, I'll be very brief.
I certainly have supported the --
making sure that the government continues to
work. But I'm less and less inclined to
continue to support this process because there
is no -- the Legislature is being left out of
every single budget, our own pay.
And certainly -- I don't know if
you know, but I realize that I'm not the one
who's holding up this budget, and I don't
think that most of us in this room are part of
this.
Certainly if I had -- if we had a
totally democratic legislature, I would be
2363
able to introduce legislation specifically
that would reverse an earlier bill that we
passed withholding our pay until the budget is
passed. I would reverse that, and I believe
that it would pass both houses.
I'm certain that the Governor would
veto it, but nonetheless I think that we might
even have enough votes to override. Because
why should we be left out of the budget while
we pay the Governor? He is not being
punished, and he is clearly one of the people
who negotiates the budget.
So I have supported this process up
until now, but today I'm going to vote no
because I think it is just blatantly unfair
and unreasonable to ask us, the working
legislators, to continue to have our pay
withheld while the Governor is paid and is
nowhere to be found in terms of sitting down
to negotiate honestly with this budget.
I'm voting no.
ACTING PRESIDENT FUSCHILLO: Does
any other Senator wish to be heard?
Call the roll.
THE SECRETARY: Section 30. This
2364
act shall take effect immediately.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 1063 are
Senators Breslin, Duane, Hassell-Thompson, L.
Krueger, Lachman, Montgomery, Onorato, Parker,
Paterson, Sabini, Schneiderman, A. Smith and
Stavisky. Ayes, 47. Nays, 13.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could stand at ease.
ACTING PRESIDENT FUSCHILLO: The
Senate will stand at ease.
(Whereupon, the Senate stood at
ease at 4:29 p.m.)
(Whereupon, the Senate reconvened
at 4:35 p.m.)
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT FUSCHILLO:
Senator Skelos.
SENATOR SKELOS: Would you please
call up Calendar Number 1064.
ACTING PRESIDENT FUSCHILLO: The
2365
Secretary will read.
THE SECRETARY: Calendar Number
1064, by the Senate Committee on Rules, Senate
Print Number 7264, an act making
appropriations for the support of government.
SENATOR SKELOS: Mr. President,
is there a message of necessity and
appropriation at the desk?
ACTING PRESIDENT FUSCHILLO: Yes,
there is.
SENATOR SKELOS: Move to accept.
ACTING PRESIDENT FUSCHILLO: All
in favor of accepting the message of necessity
and appropriation signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT FUSCHILLO:
Opposed, nay.
(Response of "Nay.")
ACTING PRESIDENT FUSCHILLO: The
message is accepted.
Read the last section.
THE SECRETARY: Section 21. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman.
2366
SENATOR SCHNEIDERMAN: Thank you
for recognizing me also, Mr. President.
On the bill.
My reference to my daughter's
fifth-grade class I think was a little bit
overly optimistic in terms of the possible
rationale for these two bills. I note that --
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT FUSCHILLO:
Senator Skelos.
SENATOR SKELOS: Would you please
lay the bill aside for the day.
ACTING PRESIDENT FUSCHILLO: Lay
the bill aside for the day.
SENATOR SKELOS: Is there any
housekeeping at the desk?
ACTING PRESIDENT FUSCHILLO: No,
Senator Skelos.
SENATOR SKELOS: Mr. President,
there being no further business to come before
the Senate, I move we stand adjourned until
Tuesday, May 11th, at 3:00 p.m.
ACTING PRESIDENT FUSCHILLO: On
motion, the Senate stands adjourned until
Tuesday, May 11th, at 3:00 p.m.
2367
(Whereupon, at 4:37 p.m., the
Senate adjourned.)