Regular Session - May 12, 2004
2416
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
May 12, 2004
11:02 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
2417
P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we bow our heads in a moment of
silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Tuesday, May 11, the Senate met pursuant to
adjournment. The Journal of Monday, May 10,
was read approved. On motion, Senate
adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
2418
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: Good morning,
Madam President.
THE PRESIDENT: Good morning.
SENATOR FARLEY: On page 29, I
offer the following amendments to Calendar
Number 463, Senate Print Number 2603A. And
that's on behalf of Senator Maziarz.
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
SENATOR FARLEY: On behalf of
Senator Rath, Madam President, on page 42 I
offer the following amendments to Calendar
767, Senate Print 6742B, and I ask that that
bill retain its place on the Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, and the bill will retain its
2419
place on the Third Reading Calendar.
SENATOR FARLEY: On behalf of
Senator DeFrancisco, Madam President, on page
46 I offer the following amendments to
Calendar Number 823, Senate Print 6983, and I
ask that that bill retain its place.
THE PRESIDENT: The amendments
are received, and that bill will also retain
its place on the Third Reading Calendar.
SENATOR FARLEY: Madam President,
on behalf of Senator Hoffmann, on page 56 I
offer the following amendments to Calendar
945, Senate Print 3598A, and I ask that that
retain its place.
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
SENATOR FARLEY: Thank you.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
I believe there are substitutions at the desk,
if we could make them at this time.
THE PRESIDENT: Yes, there are,
Senator.
The Secretary will read.
2420
THE SECRETARY: On page 5,
Senator Padavan moves to discharge, from the
Committee on Consumer Protection, Assembly
Bill Number 7137B and substitute it for the
identical Senate Bill Number 3314B, First
Report Calendar 1079.
On page 5, Senator Fuschillo moves
to discharge, from the Committee on Consumer
Protection, Assembly Bill Number 8372 and
substitute it for the identical Senate Bill
Number 5012, First Report Calendar 1081.
On page 5, Senator Fuschillo moves
to discharge, from the Committee on Consumer
Protection, Assembly Bill Number 5084A and
substitute it for the identical Senate Bill
Number 6803, First Report Calendar 1084.
On page 5, Senator DeFrancisco
moves to discharge, from the Committee on
Judiciary, Assembly Bill Number 7883 and
substitute it for the identical Senate Bill
Number 2948, First Report Calendar 1089.
On page 6, Senator DeFrancisco
moves to discharge, from the Committee on
Judiciary, Assembly Bill Number 145B and
substitute it for the identical Senate Bill
2421
Number 5255, First Report Calendar 1091.
On page 6, Senator DeFrancisco
moves to discharge, from the Committee on
Judiciary, Assembly Bill Number 7518 and
substitute it for the identical Senate Bill
Number 7247, First Report Calendar 1095.
On page 6, Senator Hannon moves to
discharge, from the Committee on Health,
Assembly Bill Number 7938A and substitute it
for the identical Senate Bill Number 2250B,
First Report Calendar 1099.
On page 7, Senator Hannon moves to
discharge, from the Committee on Health,
Assembly Bill Number 527 and substitute it for
the identical Senate Bill Number 3777, First
Report Calendar 1101.
On page 7, Senator Hannon moves to
discharge, from the Committee on Health,
Assembly Bill Number 7854 and substitute it
for the identical Senate Bill Number 5014,
First Report Calendar 1102.
On page 7, Senator Little moves to
discharge, from the Committee on Health,
Assembly Bill Number 10920 and substitute it
for the identical Senate Bill Number 7169,
2422
First Report Calendar 1103.
On page 9, Senator Balboni moves to
discharge, from the Committee on Codes,
Assembly Bill Number 6820 and substitute it
for the identical Senate Bill Number 5298,
First Report Calendar 1123.
On page 9, Senator Balboni moves to
discharge, from the Committee on Codes,
Assembly Bill Number 9159 and substitute it
for the identical Senate Bill Number 5308A,
First Report Calendar 1124.
On page 9, Senator Saland moves to
discharge, from the Committee on Codes,
Assembly Bill Number 10103 and substitute it
for the identical Senate Bill Number 5522A,
First Report Calendar 1125.
On page 10, Senator Flanagan moves
to discharge, from the Committee on Codes,
Assembly Bill Number 10974 and substitute it
for the identical Senate Bill Number 7176,
First Report Calendar 1136.
And on page 10, Senator Alesi moves
to discharge, from the Committee on Crime
Victims, Crime and Correction, Assembly Bill
Number 9779 and substitute it for the
2423
identical Senate Bill Number 6154, First
Report Calendar 1143.
THE PRESIDENT: Substitutions
ordered.
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
595, by Senator Robach, Senate Print 6370, an
act to amend the Retirement and Social
Security Law, in relation to reemployment.
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, 38.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
710, by Senator Velella, Senate Print 6761, an
2424
act to amend Part E2 of Chapter 62 of the Laws
of 2003.
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, 37.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Excuse me. Ayes,
38.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
752, by Senator Kuhl, Senate Print 4948, an
act to amend the Public Authorities Law, in
relation to New York State Thruway Authority
fees.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
2425
(The Secretary called the roll.)
THE SECRETARY: Ayes, 38.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
835, by Senator Fuschillo, Senate Print 6159B,
an act to amend the Not-for-Profit Corporation
Law, in relation to burial plots.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the 30th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 37. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
843, by Senator DeFrancisco, Senate --
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
2426
846, by Senator Volker, Senate Print 1157, an
act to amend the Criminal Procedure Law, the
Public Health Law, and the Family Court Act,
in relation to authorized destruction.
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, 38.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
848, by Senator Maziarz, Senate Print 1512, an
act to amend the Criminal Procedure Law, in
relation to permitting a social worker.
THE PRESIDENT: 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.)
2427
THE SECRETARY: Ayes, 37. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
873, by Senator Spano, Senate Print 4858A, an
act to amend the Retirement and Social
Security Law, in relation to eligibility.
THE PRESIDENT: There is a
home-rule message at the desk.
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, 38.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
876, by Senator Robach, Senate Print 6768, an
act to amend the Retirement and Social
Security Law and the General Municipal Law, in
relation to extending.
THE PRESIDENT: Read the last
section.
2428
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 38.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
893, by Senator McGee, Senate Print 2782, an
act to amend the General Municipal Law, in
relation to municipal annexation.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 38.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
900, by Senator Little, Senate Print 6606, an
act to amend the General Municipal Law and
others, in relation to the appointment of
2429
alternate members.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 8. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 39.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
906, by Senator Stachowski, Senate Print
6732A, an act authorizing the creation of the
Lake Shore Volunteer Fire Company Exempts.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 8. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 39.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
924, by Senator LaValle, Senate Print 1560A,
2430
an act to amend the Education Law, in relation
to requirements for a license.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect on the 180th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 39.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
952, by Member of the Assembly Nolan, Assembly
Print Number 9580, an act to amend the
Executive Law.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the 180th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 39.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
2431
1007, by Senator Balboni, Senate Print
4156C --
SENATOR SKELOS: Lay it aside for
the day.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
1037, by Senator Morahan, Senate --
SENATOR SKELOS: Lay it aside for
the day.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
1043, by Senator Kuhl, Senate Print 6329, an
act to amend the Town Law and the Public
Officers Law, in relation to providing.
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, 39.
THE PRESIDENT: The bill is
passed.
2432
THE SECRETARY: Calendar Number
1064, by the Senate Committee on Rules, Senate
Print Number 7264, an act making
appropriations for the support of government.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Yes, Madam
President. Is there a message of necessity
and appropriation at the desk?
THE PRESIDENT: Yes, there is,
Senator.
SENATOR SKELOS: Move to accept.
THE PRESIDENT: All in favor of
accepting the message of necessity and
appropriation please signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The message is
accepted.
Read the last section.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
Senator Skelos, that completes the
2433
noncontroversial reading of the calendar.
SENATOR SKELOS: Madam President,
if we could go to the controversial reading of
the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
843, by Senator DeFrancisco, Senate Print 327,
an act to amend the Criminal Procedure Law.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator
DeFrancisco, an explanation has been
requested.
SENATOR DeFRANCISCO: This bill
allows for the release, upon court order and
upon application to the court, with notice to
the professional, for the records that were
sealed in a previous criminal proceeding to be
made available to an office of disciplinary
proceedings with respect to the discipline of
a professional.
The purpose of the bill is to allow
those who regulate whether people should be
practicing medicine, law, or any of the
2434
professions, whether that organization should
have full information concerning the
background of the individual. And this is the
purpose for it.
Under extraordinary circumstances,
a court could allow for the opening of a
sealed record and the information being
provided to the office that is disciplining
that particular profession.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. On the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR SCHNEIDERMAN: This is a
piece of legislation we have seen before and
discussed before, and the problems with it
remain. It has been here since, I think, 1995
as a one-house bill.
And the reasons many of us vote
against it and encourage its modification is
that it doesn't expressly limit or restrict
the scope of disclosure of the sealed records
here that it would allow an administrative or
2435
regulatory body to have access to. There's no
explicit provision requiring that they
maintain the secrecy after they are opened for
use by that regulatory body.
Second, there is no requirement
that the administrative hearings at which
this -- these sealed records are discussed or
are assessed or analyzed be closed.
And, finally, there's no
distinction here between different types of
favorable terminations. I guess favorable
termination is the term of art.
So this would allow the unsealing
of a criminal proceeding that resulted in a
verdict of not guilty. And it really is, I
believe, inconsistent with the whole purpose
of sealing records.
It is something that I do think
with some adjustment could result in the
alleviation of the most egregious situations
in which sealed records might be necessary for
a particular purpose. But as drafted now, it
is far too broad, it does not provide enough
protections.
And again, as was pointed out, I
2436
believe, in last year's debate, we're talking
about an area of regulatory process now, of
administrative proceedings in which the
standards for proof, in which the procedural
due process protections afforded a respondent
are not really comparable to that which they
receive in court.
There is no requirement in this
bill that if someone is having to deal with
the issues that are raised by the unsealed
records of a criminal proceeding, that they
have the right to counsel, that they have the
right to cross-examination. So we're talking
about something that really, I believe, is an
attempt to fit a square peg into a round hole.
You can't just provide for opening
of sealed records that were favorably
terminated without providing for additional
protections. They're not in this bill.
I'm going to vote no, and I would
encourage others to vote no. And once again,
I do suggest to the sponsor, who I think is
sincerely trying to resolve an issue that from
time to time does cause serious injustices,
that we should amend this bill and come up
2437
with something that actually could move the
issue forward.
Thank you.
THE PRESIDENT: Does any other
Senator wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 843 are
Senators Brown, Dilán, Duane,
Hassell-Thompson, L. Krueger, Montgomery,
Paterson, Sabini, Schneiderman, A. Smith,
M. Smith, and Stachowski. Ayes, 38. Nays,
12.
THE PRESIDENT: The bill is
passed.
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 SCHNEIDERMAN:
2438
Explanation.
THE PRESIDENT: Senator Johnson,
an explanation has been requested.
SENATOR JOHNSON: Madam
President, this bill will appropriate
approximately $1.4 billion to various state
departments and agencies to meet the scheduled
state payments for the period May 17th to
May 24th. Thank you.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. On the bill.
THE PRESIDENT: You may proceed
on the bill.
SENATOR SCHNEIDERMAN: Once
again, for reasons that have been stated with
regard to earlier budget extender bills, I'm
going to vote no on this.
It's now well into May, and I would
urge my colleagues that we have to take some
responsibility for the lack of progress on the
state budget.
Senator Paterson made a proposal
that didn't go a dollar over the Governor's
2439
Executive Budget on March 31st that would
provide enough money to deal with the Campaign
for Fiscal Equity decision to provide for fair
funding for high-need school districts, both
in New York City and in other parts of the
state.
I think that we have to do
something other than constantly ladling out
this legislative methadone and passing budget
extenders without a peep or without any sort
of effort to move forward.
I again refer to another proposal
of Senator Paterson's, that we should stay
here till the budget is finished. We are open
to any other discussions of other techniques.
But constantly voting quietly for extenders as
the year passes along is not getting the job
done.
I will be voting no again, Madam
President.
Thank you.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Senator Krueger.
SENATOR LIZ KRUEGER: I again
2440
rise to object to the fact that we continue to
do extenders when there are things we could be
doing.
We are clearly close on revenue
projections for the State of New York, despite
the differences between the two houses on
where we should go on the budget. We could be
having budget conference meetings to try to
resolve pieces of the budget that we know we
are close to an agreement on, or to establish
what it is that is holding us up from
completing the people's business and passing a
budget.
I want to reiterate that there is
pain being caused by our failure to pass a
budget. While the extender provides some
monies for some emergency categories, we are
now at the time, being so late in the year,
that many organizations, particularly
not-for-profit organizations that operate
under contracts with the State of New York,
are finding themselves in a situation where
they may be having to provide layoff notices
to staff and to cease programs that we all
agree are important and we want to continue in
2441
the State of New York.
But, absent any confirmation from
the State of New York that they can except to
continue funds in the new fiscal year, it is
past the point where they can just float
hoping that we take care of business, and
they're getting to the point where they are
actually having to make decisions to terminate
programs, terminate staffs.
And this ad hoc model of weekly
extender bills where somebody goes, in the
Governor's office, Oh, maybe we better throw
in money here for this one this week, or money
there, is clearly not in the best interest of
fiscal responsibility for the State of
New York.
So as the time clock ticks and we
fail to get a budget done, we should remember
that we are now actually harming real
New Yorkers, real organizations who are doing
programs that the State of New York wants to
have continue. And of course, need I say that
we have established a precedent now where
school districts all over the State of
New York are in total flux about what they do
2442
with their own education funding for the
coming year.
I too will be voting no.
Thank you, Madam President.
THE PRESIDENT: Senator Hoffmann.
SENATOR HOFFMANN: Madam
President, I've been in this chamber long
enough to remember in the early years of my
days here when we did not have the ability to
do extenders, every state employee felt the
pain every bit as much as we do. And I think
that increased the lobbying on individual
legislators. And it certainly had an impact
on the Assembly.
The problem today doesn't lie with
the Senate. We're prepared to pass a budget.
We've had a number of responsible proposals.
We also have a reform commitment that would
have a contingency budget in place.
And yet the Assembly balks at that.
And some Assembly members will even be so bold
as to say to us directly, and sometimes
publicly, that they look forward to the
April 1st deadline because they know that we
will feel the heat. Most of us who are
2443
upstaters are much more subject to public
scrutiny than are our Assembly counterparts,
who come largely from New York City.
So this has become a real Hobbesian
choice. Do we vote for it? Do we extend the
budget and postpone the ultimate day of
reckoning and allow another house to bargain
and increasingly change the line over which we
are negotiating?
I will vote for this extender
today. But I am of the opinion that we need
to start looking at new ways that we can put
the pressure not on this house but on the
Assembly, where their laxness in feeling the
deadline responsibility that the Senate feels
is the greatest single cause for a late budget
in New York State right now.
THE PRESIDENT: Does any other
member wish to be heard?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 21. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
2444
THE SECRETARY: Those recorded in
the negative on Calendar Number 1064 are
Senators Breslin, Dilán, Duane, L. Krueger,
Montgomery, Paterson, Sabini, Schneiderman, A.
Smith, and Stavisky. Ayes, 44. Nays, 10.
THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes the
controversial reading of the calendar.
SENATOR SKELOS: Thank you.
I believe a number of Senators wish
to change their votes, so if you could
recognize them.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: Madam
President, I was out of the chamber, and I
wish to be recorded in the negative on
Calendar 843, Senate 327.
THE PRESIDENT: Without
objection, you will be so recorded as voting
in the negative.
SENATOR STAVISKY: Thank you.
SENATOR CONNOR: Madam President.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Thank you. I'd
2445
like unanimous consent to be recorded in the
negative on Calendar Number 843.
THE PRESIDENT: You will be so
recorded as voting in the negative.
Senator Andrews.
SENATOR ANDREWS: Yes, Madam
President, I'd like to be recorded in the
negative on Calendar 843.
THE PRESIDENT: You will be so
recorded as voting in the negative.
Senator Skelos.
SENATOR SKELOS: Is there any
housekeeping at the desk?
THE PRESIDENT: No, there isn't,
Senator.
SENATOR SKELOS: There being no
further business to come before the Senate, I
move we adjourn until Tuesday, May 18th, at
3:00 p.m., intervening days being legislative
days.
THE PRESIDENT: On motion, the
Senate stands adjourned until Tuesday,
May 18th, 3:00 p.m., intervening days being
legislative days.
(Whereupon, at 11:28 a.m., the
2446
Senate adjourned.)