Regular Session - April 12, 2005
2000
1 NEW YORK STATE SENATE
2
3
4 THE STENOGRAPHIC RECORD
5
6
7
8
9 ALBANY, NEW YORK
10 April 12, 2005
11 3:12 p.m.
12
13
14 REGULAR SESSION
15
16
17
18 LT. GOVERNOR MARY O. DONOHUE, President
19 STEVEN M. BOGGESS, Secretary
20
21
22
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25
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1 P R O C E E D I N G S
2 THE PRESIDENT: The Senate will
3 please come to order.
4 I ask everyone present to please
5 rise and repeat with me the Pledge of
6 Allegiance.
7 (Whereupon, the assemblage recited
8 the Pledge of Allegiance to the Flag.)
9 THE PRESIDENT: In the absence of
10 clergy, may we bow our heads in a moment of
11 silence, please.
12 (Whereupon, the assemblage
13 respected a moment of silence.)
14 THE PRESIDENT: Reading of the
15 Journal.
16 THE SECRETARY: In Senate,
17 Monday, April 11, the Senate met pursuant to
18 adjournment. The Journal of Sunday, April 10,
19 was read and approved. On motion, Senate
20 adjourned.
21 THE PRESIDENT: Without
22 objection, the Journal stands approved as
23 read.
24 Presentation of petitions.
25 Messages from the Assembly.
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1 Messages from the Governor.
2 Reports of standing committees.
3 The Secretary will read.
4 THE SECRETARY: Senator Johnson,
5 from the Committee on Finance, reports the
6 following nominations:
7 As a member of the State Board of
8 Parole, James B. Ferguson, Jr., Esquire, of
9 Pelham Manor.
10 THE PRESIDENT: Senator Johnson.
11 SENATOR JOHNSON: Move the
12 nomination.
13 THE PRESIDENT: Senator Golden.
14 SENATOR GOLDEN: I stand to
15 recommend the nomination of the new member,
16 James B. Ferguson, to the State Board of
17 Parole.
18 I had the privilege of working with
19 his father in the New York City Police
20 Department. The head of the Emerald Society,
21 he's done an outstanding job in his career in
22 the New York City Police Department.
23 I had the privilege of knowing his
24 son, an outstanding attorney who has done
25 great work in the area of workmen's comp and
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1 will truly be a great asset to the workmen's
2 comp and to the City and State of New York.
3 Thank you, and good luck.
4 THE PRESIDENT: Senator Nozzolio.
5 SENATOR NOZZOLIO: Thank you,
6 Madam President and my colleagues.
7 I rise to add my support for this
8 great nomination. That Mr. Ferguson came
9 before the Crime Victims, Crime and
10 Corrections Committee. The committee
11 thoroughly reviewed his qualifications and
12 were impressed significantly by his
13 in-the-field actions, his career in law
14 enforcement, and his roots, family roots in
15 law enforcement.
16 It's an excellent appointment, and
17 the committee was extremely impressed with his
18 qualifications.
19 Thank you, Madam President.
20 THE PRESIDENT: The question is
21 on the nomination of James B. Ferguson, Jr.,
22 to the New York State Board of Parole. All in
23 favor please signify by saying aye.
24 (Response of "Aye.")
25 THE PRESIDENT: Opposed, nay.
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1 (No response.)
2 THE PRESIDENT: The nominee is
3 hereby confirmed.
4 Congratulations, and best wishes to
5 you.
6 (Applause.)
7 THE PRESIDENT: Mr. Ferguson is
8 here this afternoon with his fiancee, Angie
9 Vushaj; Monica Camovic, his stepdaughter -- I
10 apologize, I'm sure, for the pronunciations --
11 Jean Ferguson, his mother; Barney Ferguson,
12 his father; Andrew Ferguson, his brother; and
13 Tracey Ferguson, his sister-in-law.
14 Have a great celebration.
15 The Secretary will read.
16 THE SECRETARY: As a member of
17 the Workers' Compensation Board, Donna
18 Ferrara, of Albany.
19 THE PRESIDENT: Senator Johnson.
20 SENATOR JOHNSON: Move the
21 nomination.
22 THE PRESIDENT: Senator
23 Fuschillo.
24 SENATOR FUSCHILLO: Please
25 recognize Senator Marcellino first.
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1 THE PRESIDENT: Senator
2 Marcellino.
3 SENATOR MARCELLINO: Thank you,
4 Madam President.
5 It is my pleasure to rise and
6 second the nomination of my good friend Donna
7 Ferrara to be nominated to the Workers'
8 Compensation Board.
9 I've known Donna for a number of
10 years, and I remember walking in an election
11 when she first ran for the Assembly, and she
12 was walking door-to-door and walking so
13 earnestly she forgot to watch where she
14 stepped and actually broke her leg and had to
15 finish the initial campaign on one leg -- and
16 did so, and won handily in that election.
17 She has represented our district
18 exceptionally well in the Assembly, lo these
19 many years. And I know that she leaves the
20 Assembly with mixed emotions. It is a part of
21 her life that she dealt with with great
22 intensity and great aplomb, and I think she
23 handled herself well under very difficult
24 circumstances, being in the minority in the
25 Assembly.
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1 However, she rose up as a ranking
2 member of the Insurance Committee and did very
3 well there and is well-known for her
4 legislative packages.
5 And I think she will serve and I
6 know she will serve with great dignity on the
7 Workmen's Comp Board and be a credit to our
8 Governor and to our state.
9 I wholeheartedly endorse her
10 candidacy and, again, am proud to second the
11 nomination. And with regards to her husband,
12 Bob, and their two lovely children.
13 THE PRESIDENT: Senator
14 Fuschillo.
15 SENATOR FUSCHILLO: Thank you,
16 Madam President.
17 That certainly taught her a lesson,
18 never to walk again with Senator Marcellino on
19 the campaign trail.
20 I rise to second the nomination as
21 well and compliment Governor Pataki on this.
22 And I think if I had to describe Assemblywoman
23 Ferrara, it would probably be class, dignity,
24 and professionalism in every facet of her
25 life.
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1 I've known her for many years.
2 She's with her two beautiful children and her
3 husband. Besides the distinguished career
4 she's had in the Assembly, and certainly a
5 champion of women's rights, Donna is a great
6 mother and a great human being. And I know
7 she'll carry all the traits in her personal
8 life and professional life to the Workers'
9 Compensation Board.
10 Donna, I wish you the best of luck,
11 and congratulations.
12 THE PRESIDENT: Senator Breslin.
13 SENATOR BRESLIN: Thank you,
14 Madam President.
15 I think when you read the
16 nomination you said Donna Ferrara from Albany.
17 So I think that she's probably moved from the
18 Island and now considers the Albany area her
19 home.
20 But I've had the pleasure over the
21 past six years to sit as the ranking Democrat
22 on Insurance while Donna has served as the
23 ranking member on Insurance in the Assembly.
24 And I have found her to be all the qualities
25 that have been expressed by Senators Fuschillo
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1 and Marcellino. She's bright, she's
2 sensitive, she's caring, she's thorough, and
3 she happens to be a wonderful person.
4 It's the Assembly's loss and
5 workmen's comp's gain by having her. She's
6 really a credit to this whole body, and I wish
7 she and Bob and their two children every
8 success in moving from my home district down
9 to, what was it, Long Island or someplace out
10 there.
11 Congratulations, Donna.
12 THE PRESIDENT: Senator LaValle.
13 SENATOR LaVALLE: Thank you,
14 Madam President.
15 I rise to support the nominee. I
16 think the Governor should be applauded for
17 this nomination.
18 Donna Ferrara has a terrific
19 background, having served as a staff member
20 here in the Senate, an Assembly member and
21 ranking member on the Insurance Committee. So
22 it gives her the tools that she needs to
23 really do a topnotch job. And we know that
24 when she gets spirited and focused on
25 something, the job gets done in a first-class
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1 way.
2 So I wish Donna much luck and
3 success. And she may have started her career
4 in Nassau, but she's going to finish her
5 career in the great county of Suffolk.
6 THE PRESIDENT: Senator Maltese.
7 SENATOR MALTESE: I rise, Madam
8 President, to second the nomination of Donna
9 Ferrara. I got to know her working together
10 with the Italian-American Legislators
11 Association, but was always impressed by her
12 ability and her expertise, her desire to do
13 that -- to take that extra step on behalf of
14 not only her constituents but
15 Italian-Americans.
16 And to see her, always smiling,
17 always pleasant, and especially when the two
18 children came, carrying the children, being an
19 expert not only at being a legislator, being
20 an expert representative of her constituents,
21 but at the same time a wife and mother. She
22 made it seem easy, although I'm sure it isn't
23 easy and I'm glad I never had to take her
24 place.
25 I am very proud to second the
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1 nomination, Madam President.
2 THE PRESIDENT: Senator Smith.
3 SENATOR ADA SMITH: Thank you,
4 Madam President.
5 I would like to commend the
6 Governor on this great nomination. I believe
7 that Donna Ferrara has the temperament, the
8 ability, and the will to serve in this
9 capacity. And it's only befitting that this
10 should happen today, on the birthday of her
11 daughter, Kathleen Lillian.
12 Donna has pulled together something
13 that many of us have attempted to do and did
14 not do well, and that was to both have a
15 career and to raise our families. I applaud
16 her for that. I applaud her for all that she
17 has done in the Assembly.
18 And I look forward to working with
19 her in her new capacity, because I know that
20 she will do it well.
21 THE PRESIDENT: Senator Nozzolio.
22 SENATOR NOZZOLIO: Thank you,
23 Madam President. On the nomination.
24 I rise with great pride and
25 enthusiasm to support this excellent
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1 nomination. Governor Pataki again has
2 provided the Legislature with a great
3 opportunity to support a great candidate, and
4 that's what we're doing here today in
5 supporting this nomination.
6 Donna Ferrara has served with
7 distinction in the Assembly. It was a
8 pleasure to work with her during those
9 legislative years. And that I know she will
10 serve with great distinction on the New York
11 State Board of Workers' Compensation.
12 Congratulations to the new
13 commissioner, and thank Governor Pataki for
14 providing this nomination for us to support.
15 Thank you, Madam President.
16 THE PRESIDENT: Senator
17 Stachowski.
18 SENATOR STACHOWSKI: Yes, Madam
19 President, I too rise to second the nomination
20 of Donna Ferrara.
21 As I said in the committee earlier
22 today, I had the good fortune of meeting her
23 when she was an intern for my predecessor, so
24 I saw the government person when we were first
25 starting out. And then years later, after she
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1 went to law school and served as a private
2 practice attorney, our paths crossed again
3 when I was here and she came to the Assembly.
4 So I think that her background as a
5 lawyer and a mother and a good legislator will
6 serve her well in this new job. And I think
7 the Governor did an outstanding choice in
8 picking Donna Ferrara for this position.
9 THE PRESIDENT: Senator Winner.
10 SENATOR WINNER: Thank you, Madam
11 President. I rise in support of my friend
12 Donna Ferrara.
13 Donna, you know we served together
14 for a long time, your entire career in the
15 Assembly. And you served with me for many,
16 many years on the Assembly Republican
17 Leadership Team. You obviously had a great
18 contribution to the Assembly Republican
19 Conference, and you've always been a great
20 friend.
21 And I know you'll do a great job in
22 your new position, and I wish you all the
23 best.
24 THE PRESIDENT: Senator Onorato.
25 SENATOR ONORATO: Madam
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1 President, I too join my colleagues in
2 seconding this nomination of Donna Ferrara.
3 She's done an outstanding job while she was an
4 Assemblywoman, an outstanding job as a mother.
5 And I want to really commend the
6 Governor. He makes some outstanding
7 appointments every once in a while, but this
8 one is exceptional.
9 And I congratulate him for that,
10 and I wish Donna and her family the very, very
11 best of luck in her new career.
12 THE PRESIDENT: Senator Seward.
13 SENATOR SEWARD: Thank you, Madam
14 President.
15 I'm very pleased, personally and
16 professionally, to rise in support of our
17 nominee, Donna Ferrara, to be a member of the
18 Workers' Compensation Board.
19 During the years that Assemblywoman
20 Ferrara was the ranking minority member on the
21 Insurance Committee in the Assembly, we had
22 occasion to be on panels together in front of
23 various insurance groups. And I've always
24 been impressed with Donna's command of the
25 facts and her knowledge of the law and the
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1 process here at the Capitol.
2 She's been an outstanding member of
3 the Assembly. She's proven herself there.
4 And with this new assignment, I am confident
5 that Donna will go on to even greater service
6 on behalf of the people of the State of
7 New York.
8 One of Donna's many outstanding
9 qualities is that she is a people person, very
10 warm and genuine. And as a member of the
11 Workers' Compensation Board, she will be
12 dealing with people at a very vulnerable time
13 in their life. And I know that that
14 combination of the command of the law and her
15 compassion for people and her ability to work
16 with people will be great qualities as she
17 goes on to this new service.
18 So I rise to congratulate, first of
19 all, the Governor for this outstanding
20 nomination, and to congratulate Donna and Bob
21 and their family on this very happy day for
22 them and for the people of the State of
23 New York.
24 THE PRESIDENT: Senator Marchi.
25 SENATOR MARCHI: Madam President,
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1 if your name were also up there -- you know, I
2 just want to be candid with you -- if she
3 pleaded with me with tears running down her
4 face and said, "Please, vote against me," I'm
5 still voting for her.
6 (Laughter.)
7 THE PRESIDENT: Senator
8 Oppenheimer.
9 SENATOR OPPENHEIMER: I think
10 this is a tribute to Donna Ferrara, that we
11 are having this extreme lovefest here, because
12 she's been a good friend to so many of us and
13 I've worked with her on the Legislative
14 Women's Caucus.
15 And I think the thing I find very,
16 very admirable is that she can multitask so
17 many different things and do them all well.
18 Maybe I'm envious. But when she was bringing
19 infants into the chamber and managing to be
20 still a wonderful Assemblywoman and just a
21 wonderful attribute with her constant smile
22 and her interest in you and in the things
23 around her, and the legislation, it's just
24 this is the type of woman that makes us all
25 proud.
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1 So congratulations, Donna.
2 THE PRESIDENT: Senator Volker.
3 SENATOR VOLKER: I just want to
4 say quickly that I've known Donna for many,
5 many years, and the gain of the Workers' Comp
6 Board is our loss, to tell you the truth. I
7 mean, one of the brightest, most pleasant
8 people, and also one of the -- a good friend.
9 But I have to tell you a quick
10 story, that she and I were linked in an
11 incident that happened some years ago. And
12 her husband knows about this, so I don't have
13 to -- it was one of these investigative
14 reporters who was running around looking at
15 our -- the times we were off. In other words,
16 they were saying a lot of legislators are not
17 paying attention.
18 So they listed the number of days
19 that Donna was off, and me, and they said we
20 were the two biggest with days off. And they
21 said that Senator Volker allegedly had cancer
22 surgery, and that Donna Ferrara allegedly had
23 a pregnancy and had a baby.
24 And I just want to tell you about
25 the allegation. The allegation is definitely
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1 a fact, but it was really kind of comical to
2 say "allegedly" -- they must be kidding us. I
3 mean, the point I'm trying to make is it just
4 goes to show you how those things can happen.
5 But there's no question the
6 allegation was correct and that Donna, by the
7 way, with a difficult time, the kids being
8 little and so forth, being here -- but she did
9 a great job. And as I said, their gain is our
10 loss.
11 Good luck to you, Donna. And I'm
12 sorry that you had to move to Suffolk County,
13 but everybody has to do something, and I
14 appreciate it.
15 Thank you.
16 THE PRESIDENT: Senator Alesi.
17 SENATOR ALESI: Thank you, Madam
18 President.
19 I first met Donna Ferrara 13 years
20 ago when we both came to Albany as newly
21 elected members of the Assembly. And I spent
22 three years there before I engineered my own
23 escape, and now I see after 13 years the
24 nominee has engineered her own escape as well.
25 But in the time that we spent
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1 together, I got to know Donna and we became
2 close classmates. We went around the state
3 and pitched reform and many of the things that
4 we're still struggling to do here in Albany.
5 But nobody was more fervent in that effort.
6 And with all of the issues that came before us
7 as members of the minority, nobody was more
8 adept at handling the issues and developing
9 issues as well.
10 I think that if you look at the way
11 Donna has mastered her life and balanced being
12 a mother, a member of the Assembly, and so
13 many other things, that we can trust without
14 any question that she's going to master this
15 job as well.
16 And I wish her well, and I'm so
17 happy to see that she has now escaped the
18 Assembly minority as well.
19 So good luck, Donna.
20 Congratulations.
21 THE PRESIDENT: Senator Maziarz.
22 SENATOR MAZIARZ: Thank you very
23 much, Madam President.
24 Donna, I don't think I've seen such
25 a lovefest in this chamber since we passed on
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1 "Rapp" Rappleyea as a member of the Power
2 Authority.
3 Donna, I just want to add my voice
4 to the chorus here. And I think for your
5 family you can see, by the members of the
6 minority, the members of the majority, the
7 great respect and love that we have for Donna.
8 I know she's going to do a great job on the
9 Workers' Comp Board.
10 Congratulations, Donna.
11 THE PRESIDENT: Senator Hannon.
12 SENATOR HANNON: Madam President,
13 I just want to add my congratulations.
14 Donna, Bob, having had the chance
15 to welcome you into the legislative family
16 originally many years ago, it's actually with
17 great regrets that you're not going to
18 continue in the legislative family.
19 But I know that government will be
20 all the better for your participation, and I
21 wish you Godspeed.
22 THE PRESIDENT: The question is
23 on the nomination of Donna Ferrara as a member
24 of the Workers' Compensation Board. All in
25 favor please signify by saying aye.
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1 (Response of "Aye.")
2 THE PRESIDENT: Opposed, nay.
3 (No response.)
4 THE PRESIDENT: The nominee is
5 confirmed.
6 And congratulations, may you have
7 similar success in your new job.
8 (Extended applause.)
9 THE PRESIDENT: I've been asked
10 also to acknowledge the presence of her
11 husband, obviously the gentleman sitting next
12 to her, Bob Gregory; her daughter, Kathleen;
13 her son, Brendan; and Carol Cardell, who's
14 also with her this afternoon.
15 Have a great celebration.
16 The Secretary will read.
17 THE SECRETARY: As director of
18 the Municipal Bond Bank Agency, Charles
19 Capetanakis, of Brooklyn.
20 As a member of the New York State
21 Housing Finance Agency, Jerome M. Becker,
22 Esquire, of New York City.
23 As a member of the Capital District
24 Transportation Authority, David M. Stackrow,
25 of Wynantskill.
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1 As a member of the Central New York
2 Regional Transportation Authority, H.J.
3 Hubert, Esquire, of Syracuse.
4 As a member of the Ogdensburg
5 Bridge and Port Authority, James Thew, of
6 Waddington.
7 As banking members of the State
8 Banking Board, E. Peter Forrestel, II, of
9 Akron, and Jens A. Westrick, of New York City.
10 As public member of the State
11 Banking Board, Mallory Factor, of New York
12 City.
13 As a member of the board of
14 directors of the Great Lakes Protection Fund,
15 Michael J. Elmendorf, II, of Latham.
16 As a member of the State Public
17 Transportation Safety Board, Daniel J.
18 Texeira, of Brooklyn.
19 As a member of the Finger Lakes
20 State Park, Recreation and Historic
21 Preservation Commission, Paul Hudson, of
22 Canandaigua.
23 As a member of the Palisades
24 Interstate Park Commission, Ann C. O'Sullivan,
25 of Stony Point.
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1 As a member of the Veterans'
2 Affairs Commission, Patrick Devine, of the
3 Bronx.
4 As commissioner of the State
5 Insurance Fund, Charles Scott Bowen, of
6 Binghamton.
7 As members of the Advisory Council
8 on Alcoholism and Substance Abuse Services,
9 Kenneth L. Oakley, Ph.D., of Batavia, and John
10 W. Russell, Jr., of Staten Island.
11 As members of the Citizens Policy
12 and Complaint Review Council, Thomas K. Cross,
13 of LaGrangeville, and Nicholas D. Labella, of
14 Utica.
15 As members of the State Hospital
16 Review and Planning Council, Frederick B.
17 Cohen, Esquire, of Buffalo, and James K. Reed,
18 M.D., of Cohoes.
19 As a member of the Board of
20 Visitors of the Broome Developmental
21 Disabilities Services Office, Nancy Mirabito,
22 of Norwich.
23 As members of the Central New York
24 Developmental Disabilities Services Office,
25 Anna Maria De Riemer-Gallay, of Ava, and Doris
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1 W. Latimer, of Rome.
2 As a member of the Board of
3 Visitors of the Central New York Psychiatric
4 Center, John J. Finn, of Clinton.
5 As a member of the Board of
6 Visitors of the Pilgrim Psychiatric Center,
7 Doris S. Wagner, of West Babylon.
8 As a member of the Board of
9 Visitors of the St. Lawrence Psychiatric
10 Center, Patrick R. Rourk, of Norwood.
11 And as a member of the Board of
12 Visitors of the Taconic Developmental
13 Disabilities Services Office, Cheryl Wilcox,
14 of Wassaic.
15 ACTING PRESIDENT ROBACH: Senator
16 Johnson.
17 SENATOR JOHNSON: Move the
18 nominations.
19 ACTING PRESIDENT ROBACH: The
20 question is on the confirmation of the
21 nominees as read by the Secretary. All in
22 favor signify by saying aye.
23 (Response of "Aye.")
24 ACTING PRESIDENT ROBACH: Any
25 opposed, nay.
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1 (No response.)
2 ACTING PRESIDENT ROBACH: The
3 nominees are hereby confirmed.
4 Senator Skelos.
5 SENATOR SKELOS: Continue in
6 regular order.
7 ACTING PRESIDENT ROBACH: The
8 Secretary will read.
9 SENATOR SKELOS: Communications
10 and reports from state officers, followed by
11 motions and resolutions, if I'm correct.
12 ACTING PRESIDENT ROBACH: Yes.
13 SENATOR SKELOS: Thank you, Mr.
14 President.
15 ACTING PRESIDENT ROBACH: Reports
16 of select committees.
17 Communications and reports from
18 state officers.
19 Motions and resolutions.
20 Senator Farley.
21 SENATOR FARLEY: Thank you, Mr.
22 President.
23 On behalf of Senator Maziarz, who's
24 sitting next to me, on page 23, Calendar
25 Number 390, Senate Print 1984, I ask that that
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1 bill retain its place on the Third Reading
2 Calendar, and I offer amendments to it.
3 On behalf of Senator Marcellino,
4 Mr. President, I offer the following
5 amendments to a bill on page 9, Calendar 113,
6 Senate Print 1771A, and I ask that that bill
7 retain its place on the Third Reading
8 Calendar.
9 On behalf of Senator Maziarz, on
10 page 23 I offer the following amendments to
11 Calendar 392, Senate Print 3102A, and I ask
12 that that bill retain its place on the Third
13 Reading Calendar.
14 ACTING PRESIDENT ROBACH: Thank
15 you, Senator Farley. The amendments are
16 received, and the bills will retain their
17 place on the calendar.
18 Senator Skelos.
19 SENATOR SKELOS: Mr. President, I
20 believe there are substitutions to be made at
21 this time.
22 ACTING PRESIDENT ROBACH: There
23 are.
24 The Secretary will read.
25 THE SECRETARY: On page 9,
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1 Senator Hannon moves to discharge, from the
2 Committee on Health, Assembly Bill Number 5349
3 and substitute it for the identical Senate
4 Bill Number 760, Third Reading Calendar 111.
5 And on page 25, Senator Flanagan
6 moves to discharge, from the Committee on
7 Elections, Assembly Bill Number 1221 and
8 substitute it for the identical Senate Bill
9 Number 2914, Third Reading Calendar 426.
10 ACTING PRESIDENT ROBACH:
11 Substitutions ordered.
12 SENATOR SKELOS: Mr. President,
13 if we could adopt the Resolution Calendar in
14 its entirety.
15 ACTING PRESIDENT ROBACH: All in
16 favor of adopting the Resolution Calendar
17 signify by saying aye.
18 (Response of "Aye.")
19 ACTING PRESIDENT ROBACH: All
20 those opposed, nay.
21 (No response.)
22 ACTING PRESIDENT ROBACH: The
23 Resolution Calendar is adopted.
24 Senator Skelos.
25 SENATOR SKELOS: Mr. President,
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1 if we could go to the noncontroversial reading
2 of the calendar.
3 ACTING PRESIDENT ROBACH: The
4 Secretary will read.
5 THE SECRETARY: Calendar Number
6 16, by Senator Volker, Senate Print 194, an
7 act to amend the Penal Law, in relation to
8 assaults.
9 ACTING PRESIDENT ROBACH: Read
10 the last section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 ACTING PRESIDENT ROBACH: Call
14 the roll.
15 (The Secretary called the roll.)
16 THE SECRETARY: Ayes, 59.
17 ACTING PRESIDENT ROBACH: The
18 bill is passed.
19 THE SECRETARY: Calendar Number
20 206, by Senator Saland, Senate Print 469, an
21 act to amend the Criminal Procedure Law, in
22 relation to authorizing.
23 ACTING PRESIDENT ROBACH: Read
24 the last section.
25 THE SECRETARY: Section 3. This
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1 act shall take effect immediately.
2 ACTING PRESIDENT ROBACH: Call
3 the roll.
4 (The Secretary called the roll.)
5 THE SECRETARY: Ayes, 58. Nays,
6 1. Senator DeFrancisco recorded in the
7 negative.
8 SENATOR DeFRANCISCO: No. May I
9 be recognized.
10 ACTING PRESIDENT ROBACH: Senator
11 DeFrancisco.
12 SENATOR DeFRANCISCO: Yes, to
13 explain my vote. I vote yes.
14 The confusion was I was attempting
15 to vote no on Calendar Number 16, and I didn't
16 jump quick enough.
17 And I would like to -- I don't know
18 if I could have unanimous consent to vote in
19 the negative on Calendar 16, since I've been
20 present all the way through the proceedings up
21 to this point in time. And I'm also short, so
22 you may not have seen me when I tried to rise
23 and raise my hand.
24 ACTING PRESIDENT ROBACH: Without
25 objection.
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1 SENATOR DeFRANCISCO: Apparently
2 there may be an objection to me doing that
3 under the new improved reform rules that don't
4 allow me to vote while I'm in session
5 continuously.
6 So what I'd like to say is that had
7 I been taller and been able to raise my hand
8 quicker, I would have voted in the negative on
9 Calendar 16.
10 ACTING PRESIDENT ROBACH: The
11 record will so reflect.
12 Read the last section on Calendar
13 206.
14 THE SECRETARY: In relation to
15 Calendar Number 206: Section 3. This act
16 shall take effect immediately.
17 ACTING PRESIDENT ROBACH: Call
18 the roll.
19 (The Secretary called the roll.)
20 THE SECRETARY: Ayes, 59.
21 ACTING PRESIDENT ROBACH: The
22 bill is passed.
23 SENATOR OPPENHEIMER: Mr.
24 President.
25 ACTING PRESIDENT ROBACH: Senator
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1 Oppenheimer.
2 SENATOR OPPENHEIMER: On behalf
3 of short people, I would like -- had I been
4 not excused, I would have voted against two
5 bills, and I would like to name them:
6 Calendar 192, that's Number 838; and Calendar
7 Number 415, that is Senate 1324.
8 ACTING PRESIDENT ROBACH: The
9 record will so reflect.
10 The Secretary will continue to
11 read.
12 THE SECRETARY: Calendar Number
13 207, by Senator Saland, Senate Print 470, an
14 act to amend the Criminal Procedure Law, in
15 relation to expanding the offenses.
16 ACTING PRESIDENT ROBACH: Read
17 the last section.
18 THE SECRETARY: Section 3. This
19 act shall take effect on the first day of the
20 calendar month next succeeding the 30th day.
21 ACTING PRESIDENT ROBACH: Call
22 the roll.
23 (The Secretary called the roll.)
24 THE SECRETARY: Ayes, 59.
25 ACTING PRESIDENT ROBACH: The
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1 bill is passed.
2 THE SECRETARY: Calendar Number
3 212, by Senator Balboni, Senate Print 930, an
4 act to amend the Civil Practice Law and Rules,
5 in relation to prohibiting.
6 SENATOR SCHNEIDERMAN: Lay it
7 aside.
8 ACTING PRESIDENT ROBACH: The
9 bill is laid aside.
10 THE SECRETARY: Calendar Number
11 219, by Senator LaValle, Senate Print 1626, an
12 act to amend the Criminal Procedure Law, in
13 relation to the commission of crimes.
14 ACTING PRESIDENT ROBACH: Read
15 the last section.
16 THE SECRETARY: Section 2. This
17 act shall take effect immediately.
18 ACTING PRESIDENT ROBACH: Call
19 the roll.
20 (The Secretary called the roll.)
21 THE SECRETARY: Ayes, 59.
22 ACTING PRESIDENT ROBACH: The
23 bill is passed.
24 THE SECRETARY: Calendar Number
25 334, by Senator Paterson, Senate Print 1313,
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1 an act to amend the Criminal Procedure Law, in
2 relation to admissibility.
3 ACTING PRESIDENT ROBACH: Read
4 the last section.
5 THE SECRETARY: Section 2. This
6 act shall take effect on the first of
7 November.
8 ACTING PRESIDENT ROBACH: Call
9 the roll.
10 (The Secretary called the roll.)
11 THE SECRETARY: Ayes, 59.
12 ACTING PRESIDENT ROBACH: The
13 bill is passed.
14 THE SECRETARY: Calendar Number
15 336, by Senator Padavan, Senate Print 2174, an
16 act to amend the Criminal Procedure Law, in
17 relation to statements.
18 ACTING PRESIDENT ROBACH: Read
19 the last section.
20 THE SECRETARY: Section 3. This
21 act shall take effect immediately.
22 ACTING PRESIDENT ROBACH: Call
23 the roll.
24 (The Secretary called the roll.)
25 THE SECRETARY: Ayes, 59.
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1 ACTING PRESIDENT ROBACH: The
2 bill is passed.
3 THE SECRETARY: Calendar Number
4 338, by Senator Libous, Senate Print 2499, an
5 act to amend the Penal Law, in relation to
6 increasing the penalties.
7 ACTING PRESIDENT ROBACH: Read
8 the last section.
9 THE SECRETARY: Section 5. This
10 act shall take effect on the first of
11 November.
12 ACTING PRESIDENT ROBACH: Call
13 the roll.
14 (The Secretary called the roll.)
15 THE SECRETARY: Ayes, 59.
16 ACTING PRESIDENT ROBACH: The
17 bill is passed.
18 THE SECRETARY: Calendar Number
19 349, by Senator DeFrancisco, Senate Print
20 3287, an act to amend the Criminal Procedure
21 Law, in relation to statements at sentencing.
22 ACTING PRESIDENT ROBACH: Read
23 the last section.
24 THE SECRETARY: Section 3. This
25 act shall take effect on the 90th day.
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1 ACTING PRESIDENT ROBACH: Call
2 the roll.
3 (The Secretary called the roll.)
4 THE SECRETARY: Ayes, 59. Nays,
5 1. Senator Montgomery recorded in the
6 negative.
7 ACTING PRESIDENT ROBACH: The
8 bill is passed.
9 THE SECRETARY: Calendar Number
10 451, by Senator Volker, Senate Print 1524, an
11 act to amend the Criminal Procedure Law, in
12 relation to expanding.
13 ACTING PRESIDENT ROBACH: Read
14 the last section.
15 THE SECRETARY: Section 3. This
16 act shall take effect immediately.
17 ACTING PRESIDENT ROBACH: Call
18 the roll.
19 (The Secretary called the roll.)
20 THE SECRETARY: Ayes, 59. Nays,
21 1. Senator Duane recorded in the negative.
22 ACTING PRESIDENT ROBACH: The
23 bill is passed.
24 THE SECRETARY: Calendar Number
25 518, by Member of the Assembly Destito,
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1 Assembly Print Number 6714, an act to amend
2 the Public Officers Law, in relation to the
3 date.
4 ACTING PRESIDENT ROBACH: Read
5 the last section.
6 THE SECRETARY: Section 2. This
7 act shall take effect immediately.
8 ACTING PRESIDENT ROBACH: Call
9 the roll.
10 (The Secretary called the roll.)
11 THE SECRETARY: Ayes, 60.
12 ACTING PRESIDENT ROBACH: The
13 bill is passed.
14 Senator Skelos, that completes the
15 noncontroversial reading of the calendar.
16 SENATOR SKELOS: Thank you. If
17 we could go to the controversial calendar.
18 But prior to taking up Senator
19 Balboni's bill, if we could have the bells
20 rung at this time.
21 ACTING PRESIDENT ROBACH: The
22 Secretary will ring the bell.
23 The Secretary will read.
24 THE SECRETARY: Calendar Number
25 212, by Senator Balboni, Senate Print 930, an
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1 act to amend the Civil Practice Law and Rules.
2 SENATOR SCHNEIDERMAN:
3 Explanation.
4 ACTING PRESIDENT ROBACH: Senator
5 Balboni, an explanation has been requested.
6 SENATOR BALBONI: Thank you, Mr.
7 President.
8 As everybody knows, this bill was
9 one of the first bills I introduced when I
10 came to the State Senate. Because when I was
11 in the Assembly, as Mr. Klein will remember, I
12 couldn't get this bill considered at all. So
13 I passed it back then, and we've passed every
14 year for seven years. This is the eighth year
15 we're considering this bill.
16 And at this point I feel like Henry
17 VIII's seventh wife, who remarked, "I know
18 what to do, I just don't know how to make it
19 interesting."
20 And that is in fact the case we
21 have today: How do we go through the basic
22 concepts of fairness that continue to defy
23 expectations?
24 Now, we've talked about the Bernard
25 McCummings case, or the subway mugger, when
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1 after the guy on the IRT subway robbed
2 someone, he got shot and sued and won, in the
3 Appellate Division, $4 million.
4 We talked about the Barker v.
5 Kallash case, which is a famous Court of
6 Appeals decision where they got one right,
7 where they essentially said that two kids who
8 made a pipe bomb, when the bomb blows up, the
9 one kid cannot sue the other kid. That was a
10 good decision. And that's the case law in
11 this state, but we've never put it into
12 statute.
13 And of course a year ago Thursday
14 the New York Sun published the following
15 article: "Drug Smuggler Sues Queens Hospital.
16 Queens doctors extracted heroin" -- now, I'm
17 going to read you this, because you just --
18 you can't believe this fact pattern, but it's
19 true.
20 "A convicted drug smuggler suing a
21 Queens hospital for operating on him to remove
22 some of the 51 condoms filled with heroin that
23 he had swallowed testified on videotape
24 yesterday that he was forced to undergo the
25 surgery.
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1 "Speaking on a video made from
2 federal prison, William Kanyi described
3 desperately pleading with doctors not to
4 operate. Then the Ghanaian native pulled up
5 his shirt to reveal the scar on his stomach,
6 lowered his head and cried.
7 "At the time of the operation in
8 March of 1998, Kanyi had just been caught at
9 Kennedy Airport smugging 51 condoms filled
10 with heroin that he had swallowed in Ghana.
11 At that time he was arrested and taken to a
12 Queens hospital, where doctors performed an
13 emergency operation to remove the heroin that
14 remained inside of him and that they feared
15 was leaking and going to kill him."
16 It says here that his urine tested
17 positive for heroin, a good indication that in
18 fact one of the condoms was leaking. And as
19 you know, heroin in somebody's stomach will
20 kill you.
21 So they performed the emergency
22 surgery, they saved his life, and he turns
23 around and he brings a $5 million lawsuit
24 against the hospital. There you go, folks.
25 That's our current justice system.
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1 And on the other side the argument
2 comes back: Well, wait a minute, why don't we
3 simply have the jury decide what's right and
4 what's wrong? The problem with that is,
5 again, process.
6 Before coming to this august body,
7 I was a defense attorney. I defended the
8 County of Nassau. And many times I had cases
9 in which, if we could have gotten summary
10 judgment, we wouldn't have had to have
11 witnesses testify, we wouldn't have had to
12 empanel a jury, we wouldn't have had to have
13 all the resources of the municipality go focus
14 on that first trial.
15 There is a cost associated with
16 trial work that could be avoided if you simply
17 shut the door of the courthouse to the
18 convicted felon. We're not talking about
19 misdemeanants here, we're not talking about
20 negligence here. We're talking about folks
21 who go out and intentionally commit a felony,
22 are convicted and then found to be culpable
23 and denied the ability to sue.
24 Now, there's also been raised, in
25 past years, the issue about police brutality.
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1 Well, what do you do if the individual victim
2 is the victim of police brutality?
3 I have always argued, and most
4 police officers I talk to tell me that the
5 threat of being sued is not what will deter
6 police brutality. What deters police
7 brutality is the thought of going to prison.
8 And that's what happens in police brutality.
9 In addition to which, the federal
10 civil rights violations are still available
11 and, frankly, are a lot more effective when
12 bringing a case against a municipality. You
13 get more money, you get attorneys' fees, it's
14 a lot better in terms of your recovery.
15 So this is holdover from the days
16 back in 19 -- I think it's 1975, when we
17 changed from the former system where we
18 considered if someone did something wrong that
19 they were barred, to a comparative negligence
20 system. And this is a holdover that just
21 frankly doesn't make sense.
22 And I'll make the case again -- and
23 John DeFrancisco, this is for you, because I
24 know that you agree with me on this point.
25 You've got to give people confidence in the
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1 judicial system. Because that's lacking,
2 frankly. And you've got to give people
3 confidence that the playground -- the playing
4 field is even for everyone. And that if you
5 step outside the bounds of society and commit
6 a crime, you can't step back in and use our
7 court system.
8 Thank you very much, Mr. President.
9 ACTING PRESIDENT ROBACH: Senator
10 Balboni, thank you for that brief explanation.
11 (Laughter.)
12 ACTING PRESIDENT ROBACH: Senator
13 DeFrancisco.
14 SENATOR DeFRANCISCO: Will the
15 sponsor yield to a question.
16 SENATOR BALBONI: With delight.
17 I went to law school, by the way.
18 SENATOR DeFRANCISCO: I was going
19 to ask you which law school, but no.
20 The question is, you think that
21 it's a good thing or all right or acceptable
22 for someone who is a victim of police
23 brutality to bring a lawsuit in federal court
24 and recover more, plus attorneys' fees and so
25 forth, like you just said?
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1 SENATOR BALBONI: Do I think that
2 is right and appropriate? Well, that's for
3 the federal judiciary and for the federal
4 Congress to consider.
5 SENATOR DeFRANCISCO: So
6 basically, knowing that the doors are already
7 open in the federal courts for this type of
8 lawsuit that you're trying to prevent in
9 New York State, you would close the doors in
10 the New York courts; is that correct?
11 SENATOR BALBONI: Mr. President,
12 if I may respond to the gentleman, actually in
13 the federal court, as you know, it's a
14 different cause of action than it is in the
15 civil court.
16 In the federal court, what will
17 happen is they say that you have conspired to
18 deprive someone of their civil rights. As
19 opposed to the civil case that's brought in
20 state court, which is basically negligence or
21 intentional acts.
22 SENATOR DeFRANCISCO: Okay. May
23 I ask the sponsor another question.
24 ACTING PRESIDENT ROBACH: Will
25 you continue to yield, Senator Balboni?
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1 SENATOR BALBONI: Yes, I do.
2 SENATOR DeFRANCISCO: I can't
3 remember what the threshold is for a felony in
4 a larceny case. Do you remember, Senator
5 Balboni? Is it a thousand dollars, $1,500?
6 What is it?
7 SENATOR BALBONI: I think it's a
8 thousand dollars. Whatever it is. For
9 purposes of your hypothetical, let's assume
10 it's a thousand dollars.
11 SENATOR DeFRANCISCO: In the same
12 instance that you just talked about, a larceny
13 situation where the person committing the
14 larceny is accosted by someone and injured,
15 does your statute apply to that situation?
16 SENATOR BALBONI: Well, if it
17 would be a situation like the following. You
18 break into someone's home, you take a thousand
19 dollars from their home, and on the way out
20 you trip on their kids' toys and you break
21 your leg.
22 Yes, you shouldn't be able to come
23 and use the courts to sue the homeowner, since
24 you committed the crime.
25 SENATOR DeFRANCISCO: If you --
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1 SENATOR BALBONI: Intentionally.
2 SENATOR DeFRANCISCO: I'm talking
3 about a larceny. Is a larceny one of the
4 crimes that, if convicted, you would be
5 precluded from suing if you were injured?
6 SENATOR BALBONI: As I said.
7 That's the crime I described.
8 SENATOR DeFRANCISCO: There's a
9 difference between a larceny and a burglary.
10 ACTING PRESIDENT ROBACH:
11 Senators, if you could come through the chair,
12 please.
13 SENATOR DeFRANCISCO: Okay. What
14 I'm trying to figure out, isn't it true that a
15 burglary is a different crime than a larceny?
16 SENATOR BALBONI: There were two
17 crimes in there. But it's still -- and the
18 point is, it's a conviction for a felony.
19 A felony is a bad thing, as you
20 know, Senator. And it is intentional actions
21 that we're taking a look at here.
22 SENATOR DeFRANCISCO: Let me give
23 you a specific example. I'm talking about a
24 larceny --
25 ACTING PRESIDENT ROBACH: Senator
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1 DeFrancisco, would you like Senator Balboni to
2 yield?
3 SENATOR DeFRANCISCO: I would
4 very much like for him to yield.
5 ACTING PRESIDENT ROBACH: Senator
6 Balboni, will you yield?
7 SENATOR BALBONI: Yes, I do.
8 SENATOR DeFRANCISCO: Senator
9 Balboni, let's talk about a larceny, not a
10 burglary. Because I think you will concede
11 that they're two different crimes.
12 SENATOR BALBONI: That's correct.
13 SENATOR DeFRANCISCO: All right.
14 So it's a felony larceny where you steal a
15 thousand dollars from somebody. And in
16 response, the person chases you to get their
17 thousand dollars back that you just stole, and
18 they beat the living daylights out of the
19 person and beat that person up to the point
20 where they're near death.
21 Does that person who's near death
22 as a result of the response by the person
23 committing -- by the person upon whom the
24 larceny was committed, is that person allowed
25 to sue under those circumstances?
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1 SENATOR BALBONI: The answer is,
2 under the bill it depends.
3 As you know, a motion for summary
4 judgment would be made to the court. The
5 court would decide whether or not the actions
6 of the individual were culpable, that they
7 were culpable -- that they were culpable in
8 their own injuries. If they weren't culpable,
9 they could still sue.
10 SENATOR DeFRANCISCO: Well, may I
11 ask another question.
12 ACTING PRESIDENT ROBACH: Senator
13 Balboni, will you continue to yield?
14 SENATOR BALBONI: Yes, I do.
15 SENATOR DeFRANCISCO: Can you
16 explain, under my fact pattern, where the
17 person committing the larceny would not have
18 been considered culpable for his injuries?
19 SENATOR BALBONI: Sure. They're
20 away from the scene and the act is no
21 longer -- it's not in response to the larceny,
22 it's simply a simple assault.
23 The court would then decide it's a
24 separate act. And in fact, the individual who
25 committed the assault is going to be
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1 responsible, and they can be sued and be held
2 criminally liable.
3 SENATOR DeFRANCISCO: May I ask
4 one last question.
5 ACTING PRESIDENT ROBACH: Senator
6 Balboni, do you continue to yield?
7 SENATOR BALBONI: Yes, I do.
8 ACTING PRESIDENT ROBACH:
9 Continue.
10 SENATOR DeFRANCISCO: Can you
11 conceive, Senator Balboni, of any felony where
12 the reaction by the individual who might harm
13 the felonious person, can you think of any
14 case where the reaction was such that it was
15 way in excess of the need, in that particular
16 crime, that would allow this person not to be
17 able to sue or to prevent the person from
18 suing?
19 SENATOR BALBONI: Mr. President,
20 through you, it is certainly the sponsor's
21 intent -- and, you know, there's a great Law
22 Review on this subject, by the way, that
23 explored a lot of different cases.
24 And by going through the case law,
25 what we found is that the courts have been
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1 pretty specific on this and that they're able
2 to decide what is culpable negligence and what
3 is not -- or culpable activity and what is
4 not.
5 And I believe that under the
6 standards in this bill itself that it would
7 give courts the ability to say, you know what,
8 that's such outrageous behavior on the part of
9 the felon that they've got to close the door.
10 But also, if there is a question as
11 to whether or not the person who was the
12 victim of the crime went over the top, that
13 the court could come back and say, you know
14 what, that is a question for the jury, there
15 is a question of fact involved. And therefore
16 it survives the motion for summary judgment.
17 SENATOR DeFRANCISCO: Will the
18 Senator yield to another question, because
19 that raised another question for me.
20 SENATOR BALBONI: Yes, I would.
21 ACTING PRESIDENT ROBACH: Will
22 you continue to yield, Senator Balboni?
23 He continues to yield.
24 SENATOR DeFRANCISCO: Senator
25 Balboni, if the courts have already drawn
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1 these lines in litigated cases so they could
2 determine on a case-by-case basis which is the
3 excessive culpability and which isn't, why the
4 need for the bill?
5 SENATOR BALBONI: Mr. President,
6 through you, in the cases that I did on behalf
7 of the County of Nassau, several of the judges
8 who presided over the trials said: You know,
9 this is so frustrating, here's a guy who's
10 convicted of a felony, shouldn't be in this
11 courtroom, but yet because there is a question
12 of fact, regardless of whether or not they
13 committed the crime -- in other words, they
14 wouldn't take, at the motion for summary
15 judgment point in the trial, the fact that
16 they were convicted of a crime and therefore
17 they were excluded from the courtroom.
18 We have not codified the holding of
19 the Court of Appeals in 1982 in Barker v.
20 Kallash. And that's really all we seek to do
21 here, is take the rule of law as expressed by
22 the Court of Appeals and apply it to statute.
23 And remember, this is not such a
24 huge departure for this state. Prior to 1975,
25 this was the law for all negligence actions.
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1 It was contributory negligence.
2 So all we do is revisit that period
3 of our jurisprudence which contemplated that
4 if you committed the felony, that you can't be
5 allowed into the courtroom.
6 SENATOR DeFRANCISCO: Would he
7 yield to another question.
8 SENATOR BALBONI: Yes, I would.
9 ACTING PRESIDENT ROBACH: Senator
10 Balboni will yield.
11 SENATOR DeFRANCISCO: You're
12 using the rules when we had contributory
13 negligence to justify this particular statute?
14 Is that what you're saying?
15 SENATOR BALBONI: Yes.
16 SENATOR DeFRANCISCO: You're
17 talking about when there was contributory
18 negligence -- it could be 1 percent
19 contributory negligence -- you were barred
20 from the court?
21 SENATOR BALBONI: At that point
22 in time, that's correct.
23 SENATOR DeFRANCISCO: And that
24 was -- are there any jurisdictions, any states
25 in this nation that have that strict
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1 contributory negligence any longer?
2 SENATOR BALBONI: Mr. President,
3 through you, I don't have the list here. But
4 when it comes to convicted felons, yes, there
5 are several states.
6 SENATOR DeFRANCISCO: Thank you,
7 Senator Balboni. I appreciate it.
8 On the bill.
9 ACTING PRESIDENT ROBACH: On the
10 bill, Senator DeFrancisco.
11 SENATOR DeFRANCISCO: Just very
12 briefly, my position is simply this. That if
13 you're a person that does a wrongful act that
14 is injured in the course of that wrongful act,
15 there's many different degrees of wrong. And
16 there's many different degrees -- each case is
17 a different case.
18 And that's the beauty of the court
19 system, that you plead your case and if a jury
20 believes that you're wrong or if, as a matter
21 of law, the court thinks that you should not
22 be allowed to go forward because of a failure
23 of proof, even giving your facts all credence,
24 that's the way the system should work. Not
25 barring somebody based upon a label.
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1 And if there's a Court of Appeals
2 decision that is already out there, there's no
3 need to codify that Court of Appeals decision,
4 because that's the law of the State of
5 New York.
6 But that decision I believe gives
7 much more flexibility to the courts than does
8 this rule that is being submitted in the form
9 of a bill by Senator Balboni, so I'm going to
10 vote against this bill.
11 ACTING PRESIDENT ROBACH: Senator
12 Volker.
13 SENATOR VOLKER: Mr. President, I
14 just want to say very quickly I agree with
15 Senator Balboni, and I don't agree with
16 Senator DeFrancisco.
17 So I'm going to vote for the bill.
18 (Laughter.)
19 ACTING PRESIDENT ROBACH: Senator
20 Schneiderman.
21 SENATOR SCHNEIDERMAN: I just
22 hope that we'll be able to memorialize that
23 portion of debate from Senator Volker. And
24 that's what I'd like him to sign when he
25 retires, as my souvenir of his debates here.
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1 That was brilliant and short.
2 Will the sponsor yield for a
3 question.
4 ACTING PRESIDENT ROBACH: Senator
5 Balboni, will you yield?
6 SENATOR BALBONI: Yes, I do.
7 ACTING PRESIDENT ROBACH:
8 Continue.
9 SENATOR SCHNEIDERMAN: In a
10 situation where someone committed a
11 white-collar crime and a third party, not the
12 victim of the crime, then injured the person,
13 the felon, would an action against that third
14 party also be barred under your bill?
15 SENATOR BALBONI: Maybe. Maybe.
16 SENATOR SCHNEIDERMAN: We can do
17 a specific hypothetical, but is there any --
18 let me rephrase the question, Your Honor.
19 (Laughter.)
20 SENATOR BALBONI: Move to strike.
21 ACTING PRESIDENT ROBACH: Are you
22 asking Senator Balboni to yield?
23 SENATOR SCHNEIDERMAN: He's
24 moving to strike me, Mr. President.
25 (Laughter.)
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1 SENATOR SCHNEIDERMAN: If the
2 sponsor would continue to yield.
3 ACTING PRESIDENT ROBACH: Senator
4 Balboni?
5 SENATOR BALBONI: Yes, I do.
6 SENATOR SCHNEIDERMAN: There is
7 no distinction in your legislation between an
8 effort to prevent a felon from recovering
9 against a victim of the felony or against a
10 third party that injures the felon in
11 connection with that felony; is that correct?
12 SENATOR BALBONI: As you'll see
13 by the language of the bill -- and since it's
14 so short, for everybody listening at home:
15 "In any action to recover damages for personal
16 injury, injury to property, or wrongful death,
17 any culpable conduct of the claimant or
18 decedent resulting in a felony conviction
19 shall be a complete bar to recovery in such
20 action."
21 So the language of the bill focuses
22 on what the perpetrator does, what the felon
23 does, not what the victim does, whether the
24 victim or a third party. It focuses on your
25 own actions, placing responsibility on the
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1 culpable party.
2 SENATOR SCHNEIDERMAN: Through
3 you, Mr. President, if the sponsor would
4 continue to yield.
5 SENATOR BALBONI: I do.
6 ACTING PRESIDENT ROBACH: Senator
7 Balboni yields.
8 SENATOR SCHNEIDERMAN: So in the
9 situation such as the McCummings case, where
10 Mr. McCummings was involved in mugging someone
11 in the subway but then, after the crime was
12 over and he was running away unarmed, as the
13 court found, a police officer shot him
14 repeatedly in the back, would Mr. McCummings
15 be barred, under your statute, from bringing
16 an action against the police officer?
17 SENATOR BALBONI: Mr. President,
18 through you, let's add some color here. You
19 know, Senator Schneiderman is very good at
20 giving a -- color commentary. Color
21 commentary.
22 (Laughter.)
23 SENATOR SCHNEIDERMAN: He's
24 making one of my points about McCummings right
25 now.
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1 SENATOR BALBONI: Senator
2 Schneiderman, as he is wont to do as an
3 effective trial attorney, kind of glosses over
4 the initial scene, and that is the actual
5 mugging.
6 Well, let me just -- if you hadn't
7 heard this before, allow me to tell you what
8 the victim told me. He was standing on an IRT
9 subway platform waiting for a train when
10 Bernard McCummings -- I can't think of enough
11 pejorative words to talk about Bernard
12 McCummings -- grabbed this guy, who was over
13 62 years old, threw him down on the subway
14 platform, bounced his head off of the cement
15 about seven or eight times, stole his money,
16 and, when the police arrived, fled.
17 Now, I don't know how many people
18 in this chamber are really that sympathetic to
19 Bernard McCummings. I mean, I'd love for him
20 to go away forever. He was preying upon a
21 senior citizen who was doing nothing but
22 standing waiting for a subway train.
23 But anyhow -- you know, and by the
24 way, when a police officer says to you "Stop,"
25 you're supposed to stop. And so he even
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1 assumed the risk of running away from a lawful
2 order of a police officer.
3 And, yes, he was shot and was
4 paralyzed. But then he comes and sues and
5 wins $4 million. That, to me, is wrong.
6 That's wrong. And why? Because you know
7 whose responsibility it was for the entire
8 incident? It wasn't the victim's. It wasn't
9 the police officer's. It was McCummings'.
10 He's the one who took the guy and threw him on
11 the ground.
12 And that's the point here. And
13 that's the message. You know, whether or not
14 Senator DeFrancisco's comments or concern
15 about the level of the felony -- it's a
16 felony. Whether it's a white-collar felony,
17 whether it's a larceny, it's a felony.
18 If we in this Legislature want to
19 make a policy where, when we enact a new
20 crime, we say it's a felony but it's not that
21 bad a felony, and so if you're involved in a
22 lawsuit, you can still sue -- if we want to do
23 that carve-out, that's one way to approach it.
24 I don't agree with that approach.
25 But just for a second, Senator
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1 Schneiderman, I would ask you to consider not
2 so much the rights of the criminal but the
3 right of the victim. And I assure you I could
4 come up with scenarios where you might say,
5 you know, it doesn't really quite sound fair.
6 But if we're going to err on the
7 side -- and as you know, law is imperfect. If
8 we're going to err on any side, let's err on
9 the side of the victim. Let's err on the side
10 of the integrity of the judicial system.
11 Let's not err on the side of the guy who went
12 and attacked somebody.
13 SENATOR SCHNEIDERMAN: Thank you,
14 Mr. President.
15 I will speak now on the bill, in
16 deference to some of my colleagues.
17 ACTING PRESIDENT ROBACH: Senator
18 Schneiderman, on the bill.
19 SENATOR SCHNEIDERMAN: I think
20 that the problem we have here, very simply, is
21 that inflammatory rhetoric and hard cases
22 often make bad law, in court and in a
23 legislature.
24 What we have here is a situation in
25 which, in spite of Senator Balboni's artful
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1 effort to evade my last question, this statute
2 would take a well-drafted, carefully
3 constructed rule of law that the Court of
4 Appeals established and replace it with an
5 incomprehensibly drafted, overbroad rule of
6 law to address a problem that, quite honestly,
7 I think is best settled in the courts.
8 Why do I say that? Very simply,
9 Senator Balboni I think conceded, without
10 saying so, that his statute doesn't just apply
11 to victims, it applies to third parties.
12 If there was a businessman
13 committing fraud, if there was a member of a
14 legislature in their office committing
15 fraud -- you know, shaking down a
16 contractor -- and then that contractor and
17 legislator walked to their front door and a
18 community activist said, "You guys are
19 committing fraud," and shot both of them and
20 paralyzed them for life, this bill would bar
21 any recovery against those people.
22 This is absolutely true. It's a
23 felon. Sotto voce. No, no, no. Let me read
24 the statute. And if the sponsor wants to
25 explain it later, he can.
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1 The word "culpable" in this statute
2 does not have any connecting phrase to the
3 conduct of the tortfeasor, the person who
4 injures the felon victim. This says "any
5 culpable conduct of the claimant resulting in
6 a felony conviction." That means culpability
7 for the felony, not culpability related to the
8 tort.
9 This is drafted in a way that it is
10 clear that "culpable" is related to the term
11 "felony." There is no time frame here. There
12 is no statement that culpable conduct has
13 anything to do with the tort.
14 If someone steals a thousand
15 dollars, as our distinguished chairman of the
16 Judiciary Committee pointed out, and then a
17 third-party vigilante shoots the person down
18 and they're paralyzed for life, you're not
19 allowed to have a recovery against that
20 third-party vigilante.
21 Now, let's -- you mentioned police
22 brutality. I'm sorry, Senator Balboni, maybe
23 your experience in Nassau County is different
24 than ours. You stated that what happens in
25 police brutality cases is they get -- police
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1 who abuse their powers get criminally
2 convicted.
3 Those of us in the City of New York
4 have the view that many police officers, in
5 fact, it's not so easy to get those
6 convictions; it's extremely difficult to get
7 those convictions. And the civil justice
8 system has an extremely important role in
9 ensuring proper conduct.
10 But let's think about what we're
11 saying here. We're saying that a rule of law,
12 as Senator DeFrancisco pointed out, that works
13 very well, that was established by the Court
14 of Appeals in the Barker v. Kallash case,
15 should be thrown out. That rule of law says
16 that virtually every case of the type that has
17 been discussed here would be -- in virtually
18 every case, the plaintiff, the felon, would be
19 barred from recovery.
20 This is the law that Senator
21 Balboni would replace: "The courts will not
22 entertain the suit if the plaintiff's conduct
23 constituted a serious violation of the law and
24 the injuries for which he seeks recovery were
25 the direct result of that violation." That is
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1 the law.
2 What's missing in Senator Balboni's
3 statute is that he has no requirement that the
4 injuries were the direct result of the
5 violation. This statute doesn't make any
6 connection between the felony and the tort.
7 You can be walking outside your
8 office after committing a white-collar crime,
9 someone shoots you, no action. You can be
10 walking down the street maybe an hour, two
11 hours later. There's no time frame. There's
12 no nexus between the felony and the tort.
13 This is a poorly drafted statute
14 that has one purpose, and that's to take away
15 issues of fact from a judge and jury so that
16 they can determine is this felon really
17 someone who is so bad that they should be
18 paralyzed for life.
19 If someone is a mule and is
20 smuggling drugs, a poor person, and they show
21 up at Kennedy Airport and someone beats them
22 to within an inch of their life because he
23 says, you know, "I don't like you because
24 you're from South America and I hate people
25 from South America," that there's no tort
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1 action against that person? That's what this
2 law would do.
3 And it would take away a rule of
4 law established by the Court of Appeals that
5 allows the court to dismiss the claims brought
6 by the felon if the plaintiff's conduct
7 constituted a serious violation of law and the
8 injuries for which he seeks recovery were the
9 direct result of that violation.
10 Let's not replace a reasonable rule
11 of law that works pretty well in this state --
12 as Senator Balboni points out, law is not
13 perfect -- with a rule of law that has
14 absolutely no parameters and is unprecedented,
15 in my view, in the lack of any limitation on
16 the connection between the felony and the
17 tort.
18 "Any culpable conduct of the
19 claimant or decedent resulting in a felony
20 conviction shall be a complete bar to
21 recovery." As Senator Balboni pointed out in
22 last year's debate, the Court of Appeals
23 decision, which Senator DeFrancisco and I
24 think is a pretty good decision, needs to be
25 changed because -- this is what Senator
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1 Balboni said last year -- "It doesn't allow
2 you to make motions for summary judgment at
3 the outset."
4 That's the only change that this
5 would make. This would bar anyone from making
6 their case to a court and letting the court
7 consider whether that felony should preclude
8 recovery. It would close the door to a whole
9 category of people, most of whom never recover
10 now under the current state of law, and it
11 would do so in a way that I really think
12 doesn't set enough parameters to limit these
13 sorts of actions.
14 Think about this before you do it.
15 Let's not take a rule of law that's working
16 pretty well and, because we can use
17 inflammatory rhetoric about how bad criminals
18 are, take away a system of civil justice that
19 helps restrain other citizens from committing
20 additional crimes.
21 I'm sorry, if someone is committing
22 a white-collar fraud and works out of their
23 office and then they're machine-gunned by a
24 third party, I don't think that they should be
25 precluded from going into court to seek
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1 recovery. I think the rule that is
2 established by the Court of Appeals works
3 well.
4 And I would urge, Senator Balboni,
5 that eight is enough. If we ever see this
6 statute again, let's at least try and have
7 some language in here, some sort of connective
8 tissue between the phrase about culpable
9 conduct and the tort. After all, that's what
10 this is about.
11 This is an absolute bar to recovery
12 with no definition of the limits. Presumably,
13 this could refer to a bar of recovery before
14 the felony even takes place, because there's
15 no time frame involved.
16 Again, the Court of Appeals limits
17 the situation with carefully drafted language.
18 Let's not throw out a good decision and
19 replace it with a bad statute.
20 I think that there are
21 situations -- you know, there's an expression
22 where, you know, even hypochondriacs get sick.
23 Well, sometimes you can frame a guilty man.
24 There could be two wrongs in one fact
25 scenario. And we shouldn't allow people to
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1 commit an independent wrong with no fear of
2 retribution just because there's another wrong
3 somehow involved in that fact situation.
4 I vote no, Mr. President, and urge
5 everyone to vote no.
6 ACTING PRESIDENT ROBACH: Senator
7 LaValle.
8 SENATOR LaVALLE: I think, Mr.
9 President, we've seen a very spirited debate.
10 Senator Balboni has presented his case here;
11 Senator DeFrancisco and Senator Schneiderman
12 retorted. But I honestly believe that Senator
13 Balboni has made his case for why we should
14 vote for this legislation.
15 I know as legislators and those of
16 us who are attorneys want to make sure that
17 people under our laws, our Constitution, have
18 their day in court. But if you look at -- and
19 I remember the subway case. I remember people
20 talking about how it was out of the realm of
21 common sense that someone who committed a
22 crime, a mugging, battering someone, who then
23 had the chutzpah to bring a suit against
24 someone. They were a criminal.
25 And, you know, as we walk around
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1 our Senate districts, we hear things from the
2 constituency that should inculcate in our
3 law-making some common sense. Some common
4 sense.
5 But in this case we also, as a
6 matter of public policy, say that a criminal
7 should not gain from the fruits of the crime.
8 So here we're going outside and
9 saying, Well, it's all right to burglarize
10 someone's home, beat someone up and then, if
11 you happen to injure yourself, it's okay to
12 gain under the tort system. It just doesn't
13 make sense. It is not common sense.
14 Now, Senator Schneiderman, you're
15 making points as an attorney. There may be a
16 comma left, there are things -- there's not a
17 nexus. Senator Balboni has been working on
18 this for eight years. And so in the eight
19 years, it would seem to me that colleagues
20 could come together and make, as both
21 attorneys and colleagues, some suggestions
22 that would bring this together.
23 But for me, I have to side with
24 Senator Balboni, because I think common sense
25 really has to prevail in the law-making
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1 process. And I hear this over and over again.
2 So when this comes for a vote, I am going to
3 vote in the affirmative.
4 ACTING PRESIDENT ROBACH: Are any
5 other Senators wishing to be heard?
6 Debate is closed.
7 The Secretary will ring the bell.
8 Read the last section.
9 THE SECRETARY: Section 4. This
10 act shall take effect immediately.
11 ACTING PRESIDENT ROBACH: Call
12 the roll.
13 (The Secretary called the roll.)
14 ACTING PRESIDENT ROBACH: The
15 Secretary will announce the results.
16 THE SECRETARY: Those recorded in
17 the negative on Calendar Number 212 are
18 Senators Andrews, Brown, Connor, DeFrancisco,
19 Dilan, Duane, Gonzalez, Hassell-Thompson,
20 L. Krueger, Montgomery, Parker, Paterson,
21 Schneiderman, Serrano, A. Smith and Stavisky.
22 Ayes, 45. Nays, 16.
23 ACTING PRESIDENT ROBACH: The
24 bill is passed.
25 Senator Skelos, that completes the
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1 controversial reading of the calendar.
2 SENATOR SKELOS: Thank you, Mr.
3 President. If we could just stand at ease.
4 ACTING PRESIDENT ROBACH: The
5 Senate will stand at ease.
6 (Whereupon, the Senate stood at
7 ease at 4:23 p.m.)
8 (Whereupon, the Senate reconvened
9 at 4:54 p.m.)
10 SENATOR SKELOS: Mr. President.
11 ACTING PRESIDENT ROBACH: Senator
12 Skelos.
13 SENATOR SKELOS: Please recognize
14 Senator Krueger.
15 ACTING PRESIDENT ROBACH: Senator
16 Krueger.
17 SENATOR LIZ KRUEGER: Thank you,
18 Mr. President. I believe I have a motion at
19 the desk. And I'd like to waive reading and
20 speak on it at this time.
21 ACTING PRESIDENT ROBACH: Senator
22 Krueger, on the motion.
23 SENATOR LIZ KRUEGER: Thank you,
24 Mr. President.
25 I'm hoping my colleagues will be
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1 joining me as I speak.
2 Today we are bringing a motion to
3 petition from the Committee on Housing
4 Construction and Community Development, Senate
5 Bill 2735, an act affecting the Local
6 Emergency Housing Rent Control Act in relation
7 to New York City housing policy.
8 In fact, what we are asking through
9 this bill is repeal of the Urstadt Law and
10 providing the City of New York with home-rule
11 authority over its own housing policies.
12 Why should we care about housing in
13 New York City? Why should we choose, in
14 Albany, to reverse a law that will give local
15 government in New York City the power to make
16 its own housing policies?
17 It's because we're in a housing
18 crisis in the City of New York, a set of
19 issues that I would argue most people
20 throughout the rest of the state cannot even
21 comprehend, and perhaps wouldn't want local
22 responsibility for, but our city is asking for
23 it.
24 Today the City Council speaker,
25 Gifford Miller, and many members of the City
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1 Council held a press conference calling for
2 the repeal of Urstadt and committing to
3 passing a home-rule message. I believe
4 that -- or I hope that New York City Mayor
5 Michael Bloomberg will follow through with his
6 statements that he supports repeal of Urstadt
7 and sign this home-rule message as well.
8 In the City of New York a report is
9 coming out, I believe today, showing that an
10 average of 57 percent of the income of
11 New Yorkers is being spent trying to pay their
12 rent, that approximately 200,000 low-income
13 households in New York City are paying more
14 than 65 percent of their income just to keep a
15 roof over their heads, which is more than
16 double what the federal government suggests
17 the maximum rent burden should be, of
18 30 percent.
19 I spent 20 years in New York City
20 as an advocate on behalf of people who could
21 not find the income to pay their rent or buy
22 food for their families or ended up in the
23 horrendous situation of using their food
24 dollars to pay rent and turning to emergency
25 food programs or using their rent money to pay
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1 for food and health care and losing their
2 homes. I ran eviction prevention programs. I
3 ran emergency food programs. I talked to
4 people every day for decades about the crises
5 that they were facing in their lives.
6 All the time, Albany had power and
7 control over New York City housing policy, and
8 we failed to take the actions we needed to.
9 We failed to come up with models for expanding
10 affordable housing. We failed to provide
11 New York City the tools to make its own
12 decisions over its own housing destiny.
13 New York City should have that
14 power to make its own decisions on local
15 issues such as housing and housing laws and
16 housing regulations. And in fact, they had
17 that power until a law called the Urstadt Law
18 was passed under Nelson Rockefeller, a law
19 that took the power away from New York City
20 elected officials and moved it to Albany.
21 When the Urstadt bill was passed in
22 1971, it was a controversial bill in this
23 house and in the Assembly. And in fact, it
24 was a package of other housing laws that were
25 so controversial that several of them were
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1 reversed long since then. And yet -- or long
2 since now. And yet today we are still living
3 with the Urstadt Law.
4 If we repeal the Urstadt Law, all
5 it means is that we, the State Legislature,
6 say the City of New York, the only city with
7 over a million people in the state of New
8 York -- hence, this law would only apply to
9 New York City -- that New York City would have
10 returned to itself the critical
11 decision-making powers over affordable housing
12 and options for what they would choose to do.
13 It would not be a magic pill to
14 solve the problems of affordable housing; it
15 would simply give the City Council and the
16 Mayor the power to make their own decisions
17 and have their own debates about how best to
18 address the question of expanded need for
19 affordable housing.
20 In the 33 years, 34 years since the
21 Urstadt Law has prohibited New York City from
22 enacting its own local policies on housing, we
23 have watched a serious housing problem become
24 an epidemic housing crisis. We are in a
25 situation today where the rental vacancy rate
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1 is under 3 percent and, for rents below $500 a
2 month, basically a zero vacancy rate.
3 We are in situation in New York
4 City with the highest number of homeless
5 people since the Depression, with ever-growing
6 demands on our emergency food providers
7 because people have used up all of their
8 income for rent.
9 We are in a situation in New York
10 City where not just the lowest-income
11 New Yorkers face housing crises but our
12 working people in New York, our middle class,
13 are losing their homes. Firefighters, nurses,
14 teachers, police officers, construction
15 workers, senior citizens, artists can no
16 longer afford to live in the City of New York.
17 I explain to the businesses in my
18 community why they have to care about
19 affordable housing, and they agree. They
20 recognize that if anyone who they hope will
21 work for them can't afford to live in New York
22 City, they have no future in business.
23 And when I explain to them what a
24 huge percentage of the annual income of our
25 citizens is going towards rent, they respond
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1 to me: If all their money goes to rent, how
2 will they be able to afford whatever I'm
3 trying to sell them? There will be no money
4 left.
5 So I ask for something very simple
6 from this Legislature. I ask for something
7 that in fact historically has been a
8 Republican Party hallmark, recognition of the
9 importance of home rule, of the rights of
10 localities to make their own decisions about
11 land-use issues and local policies.
12 New York City wants home rule.
13 They want to make their own decisions about
14 housing policy. I would argue many of my
15 colleagues here question why they are making
16 those decisions for New York City's issues of
17 affordable housing.
18 So I hope that my colleagues will
19 join me today in supporting my bill, which
20 would repeal the Urstadt Law. And I hope that
21 when we get a home-rule message from the City
22 of New York, which I expect before we leave
23 session this year, that my colleagues on both
24 sides of the aisle will respect the right of
25 New York City government and the 8.5 million
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1 people who live in the City of New York to
2 make their own decisions about housing
3 policies in the five boroughs.
4 If I were to say I wanted the power
5 to make the housing decisions for Senator
6 Johnson's district or Senator Little's
7 district or Senator Marcellino's district, I
8 can imagine the hue and cry in this room about
9 my right to make decisions about your local
10 land-use policies.
11 And I hope that my colleagues on
12 both sides of the aisle will recognize and
13 respect a parallel argument for the City of
14 New York to determine its own housing
15 policies, its own destiny for its future and
16 for the future of the New Yorkers who want to
17 remain living in the City of New York, who
18 want to work in the City of New York, who want
19 to continue to be taxpayers in the state of
20 New York, tax money that disproportionately
21 comes to us here in Albany.
22 And so I urge you all to join me in
23 taking a vote for the repeal of Urstadt and
24 for the recognition and respect of the
25 home-rule request.
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1 Thank you, Mr. President.
2 ACTING PRESIDENT ROBACH: Thank
3 you, Senator Krueger.
4 All those Senators -- I'm sorry,
5 Senator Diaz, the debate is closed.
6 All those Senators in favor of the
7 petition out of committee please signify by
8 raising their hands.
9 THE SECRETARY: Those in
10 agreement are Senators Andrews, Breslin,
11 Brown, Diaz, Dilan, Duane, Gonzalez,
12 Hassell-Thompson, L. Krueger, Montgomery,
13 Onorato, Parker, Paterson, Sabini, Sampson,
14 Savino, Schneiderman, Serrano, A. Smith,
15 M. Smith, and Stavisky.
16 ACTING PRESIDENT ROBACH: The
17 petition is not agreed to.
18 Senator Skelos.
19 SENATOR DIAZ: I need a point of
20 clarification on something. I need a point of
21 clarification.
22 ACTING PRESIDENT ROBACH: Senator
23 Diaz, do you have a point of order?
24 SENATOR DIAZ: Yes, point of
25 order, yes.
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1 My question is, okay, we're
2 supposed to be voting on something. We have
3 Senators present here, and I see all those
4 chairs empty. And we're supposed to have
5 everyone voting. Everyone that's supposed to
6 be voting, they're supposed to be in their
7 seats.
8 My question is, how come the motion
9 is defeated when nobody is voting?
10 ACTING PRESIDENT ROBACH: Senator
11 Diaz, because this is a canvass of agreement
12 on those who vote yes.
13 SENATOR DIAZ: And another
14 question, Mr. President. How come I wasn't
15 allowed to speak on the motion? Please.
16 Please.
17 ACTING PRESIDENT ROBACH: On
18 motions, the rules are that the sponsor of the
19 petition can speak for 10 minutes, no one
20 else.
21 No slight to you, Senator. Those
22 are the rules.
23 Senator Skelos.
24 SENATOR SKELOS: I believe the
25 canvass was defeated. And the Senate will
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1 stand at ease now.
2 And there will be an immediate
3 conference of the Majority in the Majority
4 Conference Room.
5 ACTING PRESIDENT ROBACH: The
6 Senate will stand at ease.
7 There will be an immediate
8 conference for the Majority.
9 Senator Gonzalez.
10 SENATOR GONZALEZ: There will be
11 an immediate meeting of the Minority
12 Conference in Room 314.
13 ACTING PRESIDENT ROBACH: There
14 will be a conference of the Minority in
15 Room 314 as well.
16 The Senate will stand at ease.
17 (Whereupon, the Senate stood at
18 ease at 5:06 p.m.)
19 (Whereupon, the Senate reconvened
20 at 8:50 p.m.)
21 ACTING PRESIDENT FUSCHILLO:
22 Senator Balboni.
23 SENATOR BALBONI: Mr. President,
24 I would like to call an immediate meeting of
25 the Senate Finance Committee in the Majority
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1 Conference Room at 8:55, in five minutes.
2 ACTING PRESIDENT FUSCHILLO:
3 There will be a meeting of the Finance
4 Committee in the Majority Conference Room at
5 8:55.
6 Thank you, Senator Balboni.
7 The Senate will stand at ease.
8 (Whereupon, the Senate stood at
9 ease at 8:51 p.m.)
10 (Whereupon, the Senate reconvened
11 at 9:14 p.m.)
12 ACTING PRESIDENT BALBONI:
13 Senator Skelos.
14 SENATOR SKELOS: Mr. President,
15 if we could return to reports of standing
16 committees, I believe there's a report of the
17 Finance Committee at the desk. I ask that it
18 be read at this time.
19 ACTING PRESIDENT BALBONI:
20 Reports of standing committees.
21 The Secretary will read.
22 THE SECRETARY: Senator Johnson,
23 from the Committee on Finance, reports the
24 following bill direct to third reading:
25 Senate Print 4270A, Senate Budget
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1 Bill, an act to amend a chapter of the Laws of
2 2005.
3 ACTING PRESIDENT BALBONI:
4 Senator Skelos.
5 SENATOR SKELOS: Mr. President, I
6 ask at this time if we could take up the
7 report of the Finance Committee,
8 noncontroversial.
9 ACTING PRESIDENT BALBONI: The
10 bill is reported directly to the floor without
11 objection.
12 The Secretary will read.
13 THE SECRETARY: Calendar Number
14 560, Senate Budget Bill, Senate Print 4270A,
15 an act to amend a chapter of the Laws of 2005.
16 ACTING PRESIDENT BALBONI:
17 Senator Skelos.
18 SENATOR SKELOS: Mr. President,
19 is there a message of necessity at the desk?
20 ACTING PRESIDENT BALBONI: Yes,
21 there is.
22 SENATOR SKELOS: Move to accept
23 the message.
24 ACTING PRESIDENT BALBONI: All in
25 favor signify by saying aye.
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1 (Response of "Aye.")
2 ACTING PRESIDENT BALBONI:
3 Opposed, nay.
4 (No response.)
5 ACTING PRESIDENT BALBONI: The
6 message is accepted.
7 Read the last section.
8 THE SECRETARY: Section 5. This
9 act shall take effect immediately.
10 ACTING PRESIDENT BALBONI: Call
11 the roll.
12 (The Secretary called the roll.)
13 ACTING PRESIDENT BALBONI:
14 Announce the results.
15 Senator Schneiderman, to explain
16 your vote.
17 SENATOR SCHNEIDERMAN: Thank you,
18 Mr. President.
19 This has been a remarkable process
20 this year for getting the budget through. And
21 I have to say that the -- I've heard Senator
22 Bruno's comments earlier today, not happy
23 about us being here tonight, not happy about
24 doing it with a message of necessity.
25 But I have to say that on the
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1 substance of this, in my view, most of what
2 the Legislature tried to do in the budget
3 bills that we passed earlier still seems to be
4 in here.
5 There are some things that I have
6 issues with. I am concerned still about a
7 lack of accountability in our state's economic
8 development programs. I think that is an
9 ongoing concern. I am still of the belief
10 that we have a long way to go to stabilize and
11 fund adequately our health care system for all
12 the people of this state.
13 But in the scheme of things, I
14 think the Legislature has had a very powerful
15 impact on the Governor's proposals and that
16 the bills we're doing tonight reflect that.
17 So I will be voting in support of this
18 legislation.
19 Thank you, Mr. President.
20 ACTING PRESIDENT BALBONI:
21 Senator Schneiderman will be recorded in the
22 affirmative.
23 Senator Liz Krueger, to explain her
24 vote.
25 SENATOR LIZ KRUEGER: Thank you,
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1 Mr. President.
2 I partially agree with my colleague
3 Senator Schneiderman. We have accomplished
4 some of our goals here. We have addressed
5 some of the issues we did not in the original
6 budget.
7 I just want to highlight a few
8 additional concerns. Again, for the record,
9 the tax cuts that we are making are badly
10 designed, targeted to those least in need of
11 the tax cuts, particularly the single sales
12 tax factor proposal.
13 While there have been some
14 revisions and, quote, unquote, reforms made to
15 Empire Zones, again, I believe the State of
16 New York makes a serious mistake expanding a
17 fatally flawed program for an extended period
18 of time without really asking the hard
19 questions of why are we doing this at all.
20 I want to reemphasize that we put
21 in, again, a hundred million dollars,
22 approximately, for the SURGE [sic] program,
23 which is a memorandum of understanding at this
24 point, where none of us understand what that
25 memo might do or where that money might
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1 actually be spent.
2 We put the $250 million back of
3 Governor Pataki's for a nonexplainable new
4 slush fund for, quote, unquote,
5 high-technology businesses. We call
6 everything a high-tech business claim it's
7 good to give them money. I don't think
8 there's evidence of that.
9 We do seem to have put back some of
10 the lined-out programs in the TANF block grant
11 monies, which I know will make individual
12 programs very happy at this moment in history.
13 But again, the entire idea of doing
14 a flexible funding block grant with TANF money
15 I believe was a very flawed proposal by the
16 Governor. I'm sorry that this Legislature,
17 both houses, ultimately have agreed at least
18 part of it.
19 So while I still would argue this
20 is not a good budget from my perspective, the
21 fact that we are moving forward tonight with
22 some of the improvements, some of the
23 negotiated agreements between both houses and
24 Governor, leaves me in the position where I
25 will vote for the bill but, again, want to
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1 highlight for ourselves we still have so much
2 work to do and we still have so many issues we
3 don't discuss in this budget that we just pass
4 on. And we pass on the costs to the voters in
5 our districts, and we owe them better.
6 So despite my voting yes for this,
7 I still have very serious problems with it.
8 Thank you, Mr. President.
9 ACTING PRESIDENT BALBONI:
10 Senator Liz Krueger will be recorded in the
11 affirmative.
12 Announce the results.
13 THE SECRETARY: Ayes, 61.
14 ACTING PRESIDENT BALBONI: The
15 bill is passed.
16 Senator Skelos.
17 SENATOR SKELOS: Mr. President,
18 if we could stand at ease.
19 ACTING PRESIDENT BALBONI: The
20 house will stand at ease.
21 (Whereupon, the Senate stood at
22 ease at 9:19 p.m.)
23 (Whereupon, the Senate reconvened
24 at 9:33 p.m.)
25 ACTING PRESIDENT BALBONI:
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1 Senator Skelos.
2 SENATOR SKELOS: Mr. President,
3 we're in the process of closing down and
4 printing of a bill. Unfortunately, we
5 probably will not be able to start up again
6 until about 10:30.
7 So if members wish to stay here and
8 chat, that's fine. If they wish to go back to
9 their offices and be productive, that's fine.
10 Whatever you wish to do. But please be back
11 at 10:30.
12 ACTING PRESIDENT BALBONI: The
13 house will stand in recess until 10:30.
14 (Whereupon, the Senate stood at
15 ease at 9:34 p.m.)
16 ACTING PRESIDENT FUSCHILLO:
17 Senator Skelos.
18 SENATOR SKELOS: Mr. President,
19 there will be an immediate meeting of the
20 Finance Committee in the Majority Conference
21 Room.
22 ACTING PRESIDENT FUSCHILLO:
23 There will be an immediate meeting of the
24 Finance Committee in the Majority Conference
25 Room.
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1 The Senate will continue to stand
2 at ease.
3 (Whereupon, the Senate reconvened
4 at 10:48 p.m.)
5 ACTING PRESIDENT BALBONI:
6 Senator Skelos.
7 SENATOR SKELOS: Mr. President,
8 if we could return to reports of standing
9 committees, I believe there's a report of the
10 Finance Committee at the desk.
11 ACTING PRESIDENT BALBONI: The
12 Secretary will read.
13 THE SECRETARY: Senator Johnson,
14 from the Committee on Finance, reports the
15 following bill direct to third reading:
16 Senate Print 4271, Senate Budget
17 Bill, an act to amend a chapter of the Laws of
18 2005.
19 ACTING PRESIDENT BALBONI: The
20 bill is reported directly to third reading.
21 Senator Skelos.
22 SENATOR SKELOS: If we could take
23 up Calendar Number 561.
24 ACTING PRESIDENT BALBONI: The
25 Secretary will read.
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1 THE SECRETARY: Calendar Number
2 561, Senate Budget Bill, Senate Print 4271, an
3 act to amend a chapter of the Laws of 2005.
4 ACTING PRESIDENT BALBONI:
5 Senator Skelos.
6 SENATOR SKELOS: Is there a
7 message of necessity at the desk?
8 ACTING PRESIDENT BALBONI: There
9 is a message.
10 SENATOR SKELOS: Move to accept
11 the message.
12 ACTING PRESIDENT BALBONI: All in
13 favor of accepting the message please signify
14 by saying aye.
15 (Response of "Aye.")
16 ACTING PRESIDENT BALBONI: All
17 those negative.
18 (No response.)
19 ACTING PRESIDENT BALBONI: The
20 message is accepted.
21 Read the last section.
22 THE SECRETARY: Section 2. This
23 act shall take effect immediately.
24 ACTING PRESIDENT BALBONI: Call
25 the roll.
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1 (The Secretary called the roll.)
2 THE SECRETARY: Ayes, 61.
3 ACTING PRESIDENT BALBONI: The
4 bill is passed.
5 Senator Skelos.
6 SENATOR SKELOS: Is there any
7 housekeeping at the desk?
8 ACTING PRESIDENT BALBONI: There
9 is no housekeeping at the desk, Senator.
10 SENATOR SKELOS: Mr. President,
11 there being no further business to --
12 ACTING PRESIDENT BALBONI: Come
13 on, this is important stuff.
14 SENATOR SKELOS: Mr. President,
15 just to remind you that you're supposed to
16 keep your comments short when you're
17 presiding.
18 (Laughter.)
19 SENATOR SCHNEIDERMAN: And
20 otherwise.
21 SENATOR SKELOS: There being no
22 further business to come before the Senate, I
23 move we stand adjourned until Wednesday,
24 April 13th, at 11:00 a.m.
25 ACTING PRESIDENT BALBONI: The
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1 house stands adjourned until Wednesday,
2 April 13th, at 11:00 a.m.
3 (Whereupon, at 10:51 p.m., the
4 Senate adjourned.)
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