Regular Session - March 10, 2014
619
1 NEW YORK STATE SENATE
2
3
4 THE STENOGRAPHIC RECORD
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6
7
8
9 ALBANY, NEW YORK
10 March 10, 2014
11 3:30 p.m.
12
13
14 REGULAR SESSION
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16
17
18 SENATOR DAVID CARLUCCI, Acting President
19 FRANCIS W. PATIENCE, Secretary
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25
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1 P R O C E E D I N G S
2 ACTING PRESIDENT CARLUCCI: The
3 Senate will come to order.
4 I ask everyone present to please
5 rise and repeat with me the Pledge of Allegiance.
6 (Whereupon, the assemblage recited
7 the Pledge of Allegiance to the Flag.)
8 ACTING PRESIDENT CARLUCCI: In the
9 absence of clergy, may we please bow our heads in
10 a moment of silence.
11 (Whereupon, the assemblage respected
12 a moment of silence.)
13 ACTING PRESIDENT CARLUCCI: The
14 reading of the Journal.
15 THE SECRETARY: In Senate, Sunday,
16 March 9th, the Senate met pursuant to
17 adjournment. The Journal of Saturday, March 8th,
18 was read and approved. On motion, Senate
19 adjourned.
20 ACTING PRESIDENT CARLUCCI: Without
21 objection, the Journal stands approved as read.
22 Presentation of petitions.
23 Messages from the Assembly.
24 Senator Libous.
25 SENATOR LIBOUS: Is there a message
621
1 from the Assembly, Mr. President?
2 ACTING PRESIDENT CARLUCCI: There
3 is a message from the Assembly.
4 SENATOR LIBOUS: Could we have it
5 read, please.
6 ACTING PRESIDENT CARLUCCI: The
7 Secretary will read.
8 THE SECRETARY: Assembly Resolution
9 Number 906, advising the Members of the Senate of
10 the time and place of the joint session to cast a
11 joint ballot for the purpose of electing Regents
12 of The University of the State of New York
13 pursuant to Section 202 of the Education Law.
14 ACTING PRESIDENT CARLUCCI: Senator
15 Libous.
16 SENATOR LIBOUS: Mr. President, I
17 move we adopt the message from the Assembly.
18 ACTING PRESIDENT CARLUCCI: All in
19 favor of adopting the resolution signify by
20 saying aye.
21 (Response of "Aye.")
22 ACTING PRESIDENT CARLUCCI:
23 Opposed, nay.
24 (No response.)
25 ACTING PRESIDENT CARLUCCI: The
622
1 resolution is adopted.
2 Messages from the Assembly.
3 The Secretary will read.
4 THE SECRETARY: On page 17, Senator
5 Carlucci moves to discharge, from the Committee
6 on Health, Assembly Bill Number 5309A and
7 substitute it for the identical Senate Bill
8 Number 1207A, Third Reading Calendar 201.
9 ACTING PRESIDENT CARLUCCI:
10 Substitution so ordered.
11 Messages from the Governor.
12 Reports of standing committees.
13 Reports of select committees.
14 Communications and reports from
15 state officers.
16 Motions and resolutions.
17 Senator Libous.
18 SENATOR LIBOUS: Would you please
19 call on Senator Valesky at this time.
20 ACTING PRESIDENT CARLUCCI: Senator
21 Valesky.
22 SENATOR VALESKY: Mr. President, on
23 behalf of Senator Savino, on page 16 I offer the
24 following amendments to Calendar Number 188,
25 Senate Bill 6619, and ask that said bill retain
623
1 its place on the Third Reading Calendar.
2 And also on behalf of Senator
3 Savino, I move that the following bills be
4 discharged from their respective committees and
5 be recommitted with instructions to strike the
6 enacting clauses: Senate Bills 2454, 4168, 4432,
7 4433, 4787, 4789, 5397A and 6139.
8 ACTING PRESIDENT CARLUCCI: So
9 ordered.
10 Senator Libous.
11 SENATOR LIBOUS: Thank you,
12 Mr. President.
13 On behalf of Senator Maziarz, I move
14 that the following bill be discharged from its
15 respective committee and be recommitted with
16 instructions to strike the enacting clause. That
17 would be Senate Print Number 6325.
18 And on behalf of Senator Hannon, on
19 page 9 I offer the following amendments to
20 Calendar Number 104, Senate Print 6477, and ask
21 that said bill retain its place on the
22 Third Reading Calendar.
23 And, Mr. President, on behalf of
24 Senator Gallivan, on page 17 I offer the
25 following amendments to Calendar Number 199,
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1 Senate Print 4343, and ask that said bill retain
2 its place on the Third Reading Calendar.
3 ACTING PRESIDENT CARLUCCI: So
4 ordered.
5 Senator Libous.
6 SENATOR LIBOUS: Thank you,
7 Mr. President.
8 At this time I believe there's a
9 previously adopted resolution at the desk by
10 Senator Montgomery. It would be Resolution
11 Number 3330. Could we have the title read,
12 please, at this time, and I believe Senator
13 Montgomery wishes to speak on the resolution.
14 ACTING PRESIDENT CARLUCCI: The
15 Secretary will read.
16 THE SECRETARY: Legislative
17 Resolution Number 3330, by Senator Montgomery,
18 commending Marilyn Gelber upon the occasion of
19 being honored in conjunction with Women's History
20 Month 2014 in the State of New York.
21 ACTING PRESIDENT CARLUCCI: Senator
22 Montgomery.
23 SENATOR MONTGOMERY: Thank you,
24 Mr. President.
25 I rise again today to honor one of
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1 those women who I consider to be a phenomenal
2 woman and certainly most deserving of our
3 recognition during this special month recognizing
4 women in our state.
5 I honor Marilyn Gelber not just for
6 myself, but also for all of the residents and the
7 elected officials of the Borough of Brooklyn as
8 well as the State of New York.
9 Marilyn Gelber is the president or
10 immediate past president of the Brooklyn
11 Community Foundation, which was the first and
12 only community foundation focused exclusively on
13 organizations in Brooklyn. With the motto "Do
14 Good Right Here," the Brooklyn Community
15 Foundation provides a new philanthropic vehicle
16 for giving to Brooklyn organizations,
17 not-for-profit organizations who experience the
18 complex challenges in the neighborhoods in our
19 borough.
20 Prior to creating the Community
21 Foundation, Marilyn Gelber was the founding
22 executive director of the Independence Community
23 Bank Foundation, which was Brooklyn's largest
24 private charitable foundation and was created
25 through the endowment gift from the Independence
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1 Community Bank in 1998.
2 Ms. Gelber has built the Brooklyn
3 Community Foundation into a better-resourced and
4 broader-based philanthropic force for improving
5 the lives of people in Brooklyn.
6 Ms. Gelber, prior to developing the
7 Independence Community Foundation, served for
8 28 years in New York City's public sector as an
9 urban planner and administrator. She was the
10 first woman commissioner of the New York City
11 Department of Environmental Protection. She was
12 chief of staff to former Brooklyn Borough
13 President Howard Golden, and she was director of
14 neighborhood strategy planning for New York
15 City's Department of City Planning.
16 Ms. Gelber was awarded the
17 President's Medal of Brooklyn College and
18 received an honorary doctorate from St. Joseph's
19 College for her community service.
20 She is a lifelong New Yorker, a
21 graduate of Queens College, the City University
22 of New York, and a resident of the 25th Senate
23 District.
24 So on behalf of all of the
25 organizations and the citizens and the elected
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1 officials in the Borough of Brooklyn, we are
2 very, very pleased to honor this woman who has
3 served so many of our neighborhoods and our
4 citizens through her work as founder and
5 president of the Brooklyn Community Foundation.
6 Thank you, Mr. President, for
7 allowing me to honor Marilyn Gelber today.
8 ACTING PRESIDENT CARLUCCI: Thank
9 you, Senator Montgomery.
10 This resolution was previously
11 adopted.
12 Senator Libous.
13 SENATOR LIBOUS: Mr. President,
14 could we now take up the reading of the
15 noncontroversial calendar.
16 ACTING PRESIDENT CARLUCCI: The
17 Secretary will read.
18 THE SECRETARY: Calendar Number 10,
19 by Senator Bonacic, Senate Print 6247, an act to
20 amend Chapter 510 of the Laws of 2013.
21 ACTING PRESIDENT CARLUCCI: There
22 is a home-rule message at the desk.
23 Read the last section.
24 THE SECRETARY: Section 2. This
25 act shall take effect immediately.
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1 ACTING PRESIDENT CARLUCCI: Call
2 the roll.
3 (The Secretary called the roll.)
4 ACTING PRESIDENT CARLUCCI:
5 Announce the results.
6 THE SECRETARY: Ayes, 60.
7 ACTING PRESIDENT CARLUCCI: The
8 bill is passed.
9 THE SECRETARY: Calendar Number 86,
10 by Senator LaValle, Senate Print --
11 SENATOR LIBOUS: Please lay this
12 aside for the day, Mr. President.
13 ACTING PRESIDENT CARLUCCI: The
14 bill will be laid aside for the day.
15 THE SECRETARY: Calendar Number
16 142, by Senator Maziarz, Senate Print 3646A, an
17 act to amend the Arts and Cultural Affairs Law.
18 ACTING PRESIDENT CARLUCCI: Read
19 the last section.
20 THE SECRETARY: Section 4. This
21 act shall take effect immediately.
22 ACTING PRESIDENT CARLUCCI: Call
23 the roll.
24 (The Secretary called the roll.)
25 ACTING PRESIDENT CARLUCCI:
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1 Announce the results.
2 THE SECRETARY: Ayes, 60.
3 ACTING PRESIDENT CARLUCCI: The
4 bill is passed.
5 THE SECRETARY: Calendar Number
6 197, by Senator LaValle, Senate Print 3309, an
7 act to amend the Correction Law.
8 ACTING PRESIDENT CARLUCCI: Read
9 the last section.
10 THE SECRETARY: Section 3. This
11 act shall take effect immediately.
12 ACTING PRESIDENT CARLUCCI: Call
13 the roll.
14 (The Secretary called the roll.)
15 ACTING PRESIDENT CARLUCCI:
16 Announce the results.
17 THE SECRETARY: Ayes, 60.
18 ACTING PRESIDENT CARLUCCI: The
19 bill is passed.
20 THE SECRETARY: Calendar Number
21 201, substituted earlier today by Member of the
22 Assembly Skoufis, Assembly Print Number 5309A, an
23 act to amend the Public Health Law.
24 ACTING PRESIDENT CARLUCCI: Read
25 the last section.
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1 THE SECRETARY: Section 3. This
2 act shall take effect immediately.
3 ACTING PRESIDENT CARLUCCI: Call
4 the roll.
5 (The Secretary called the roll.)
6 ACTING PRESIDENT CARLUCCI:
7 Announce the results.
8 THE SECRETARY: Ayes, 60.
9 ACTING PRESIDENT CARLUCCI: The
10 bill is passed.
11 THE SECRETARY: Calendar Number
12 207, by Senator Marcellino, Senate Print 1513, an
13 act to amend the Criminal Procedure Law.
14 SENATOR GIANARIS: Lay it aside.
15 ACTING PRESIDENT CARLUCCI: Lay the
16 bill aside.
17 THE SECRETARY: Calendar Number
18 212, by Senator Klein, Senate Print 2431, an act
19 to amend the Penal Law.
20 ACTING PRESIDENT CARLUCCI: Read
21 the last section.
22 THE SECRETARY: Section 6. This
23 act shall take effect on the first of November.
24 ACTING PRESIDENT CARLUCCI: Call
25 the roll.
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1 (The Secretary called the roll.)
2 ACTING PRESIDENT CARLUCCI:
3 Announce the results.
4 THE SECRETARY: Ayes, 57. Nays, 3.
5 Senators Hassell-Thompson, Montgomery and Perkins
6 recorded in the negative.
7 ACTING PRESIDENT CARLUCCI: The
8 bill is passed.
9 THE SECRETARY: Calendar Number
10 214, by Senator Hannon, Senate Print 2941, an act
11 to amend the Penal Law.
12 ACTING PRESIDENT CARLUCCI: Read
13 the last section.
14 THE SECRETARY: Section 2. This
15 act shall take effect immediately.
16 ACTING PRESIDENT CARLUCCI: Call
17 the roll.
18 (The Secretary called the roll.)
19 ACTING PRESIDENT CARLUCCI:
20 Announce the results.
21 THE SECRETARY: Ayes, 58. Nays, 2.
22 Senators Montgomery and Peralta recorded in the
23 negative.
24 ACTING PRESIDENT CARLUCCI: The
25 bill is passed.
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1 Senator Libous, that completes the
2 reading of the noncontroversial calendar.
3 SENATOR LIBOUS: Thank you,
4 Mr. President. Could we now go to the
5 controversial reading of the calendar.
6 ACTING PRESIDENT CARLUCCI: The
7 Secretary will ring the bell.
8 The Secretary will read.
9 THE SECRETARY: Calendar Number
10 207, by Senator Marcellino, Senate Print 1513, an
11 act to amend the Criminal Procedure Law.
12 SENATOR SQUADRON: Explanation.
13 ACTING PRESIDENT CARLUCCI: Senator
14 Squadron has requested an explanation.
15 Senator Marcellino for an
16 explanation.
17 SENATOR MARCELLINO: Thank you,
18 Mr. President.
19 This bill was taken up by my office
20 because several attorneys practicing law and some
21 judges that we had talked to agreed that in
22 certain circumstances the disclosure of the
23 names, addresses and occupations of the potential
24 jurors, the jurors who may be impaneled in a
25 particular case, might expose them to physical
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1 harm, injury, harassment or whatever. So we put
2 the bill in to protect these jurors or potential
3 jurors.
4 The lawyers and the judges have
5 said that they found it very difficult in certain
6 circumstances and certain very high-profile
7 cases, that it was difficult to get a full jury
8 and to get a willing jury to participate. So we
9 put the bill in to make that problem go away and
10 to protect the health, safety and viability of
11 the jury system.
12 ACTING PRESIDENT CARLUCCI: Senator
13 Squadron.
14 SENATOR SQUADRON: If the sponsor
15 would yield for a couple of questions.
16 SENATOR MARCELLINO: Sure.
17 ACTING PRESIDENT CARLUCCI: The
18 sponsor yields.
19 SENATOR SQUADRON: Thank you.
20 Is the sponsor aware of which other
21 states have provisions such as this one?
22 SENATOR MARCELLINO: No, I'm not.
23 ACTING PRESIDENT CARLUCCI: Senator
24 Squadron.
25 SENATOR SQUADRON: If the sponsor
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1 would yield again.
2 SENATOR MARCELLINO: Sure.
3 ACTING PRESIDENT CARLUCCI: The
4 sponsor yields.
5 SENATOR SQUADRON: Is the sponsor
6 aware of any states in which a failure to have
7 anonymous juries comply with federal regulations
8 has actually led to convictions being thrown out
9 by higher courts?
10 ACTING PRESIDENT CARLUCCI: Senator
11 Marcellino.
12 SENATOR MARCELLINO: I am aware of
13 cases where the defendant or defense attorneys
14 have brought cases that this would be an
15 infringement upon their client's rights. These
16 cases have gone up to the Second Circuit Court of
17 Appeals and I believe even to the Supreme Court,
18 and they've been held constitutional.
19 ACTING PRESIDENT CARLUCCI: Senator
20 Squadron.
21 SENATOR SQUADRON: If the sponsor
22 would continue to yield.
23 SENATOR MARCELLINO: Yes.
24 ACTING PRESIDENT CARLUCCI: The
25 sponsor yields.
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1 SENATOR SQUADRON: Can the sponsor
2 describe the federal guidelines for impaneling of
3 jurors for anonymous juries and --
4 SENATOR MARCELLINO: Mr. President,
5 I am not a lawyer. I don't pretend to be a
6 lawyer. And I am not qualified to describe what
7 my colleague would like me to describe. So
8 therefore I'm going to simply say I can't answer
9 the question.
10 ACTING PRESIDENT CARLUCCI: Senator
11 Squadron.
12 SENATOR SQUADRON: If the sponsor
13 would continue to yield.
14 SENATOR MARCELLINO: Yes.
15 ACTING PRESIDENT CARLUCCI: The
16 sponsor yields.
17 SENATOR SQUADRON: The sponsor and
18 I share a lack of being lawyers.
19 SENATOR MARCELLINO: Then let's not
20 get into that.
21 SENATOR SQUADRON: That seems to be
22 an ongoing theme this year in this house.
23 SENATOR MARCELLINO: It works for
24 me.
25 SENATOR SQUADRON: But I do think,
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1 regardless of what degrees we hold, it's critical
2 that we do two things. One, we make sure that
3 we're not passing criminal procedure laws in this
4 state that's going to lead to convictions being
5 thrown out based on a failure to comply with --
6 ACTING PRESIDENT CARLUCCI: Senator
7 Squadron, are you on the bill?
8 SENATOR SQUADRON: No, I'm asking a
9 question, Mr. President.
10 ACTING PRESIDENT CARLUCCI: Okay.
11 Please.
12 SENATOR SQUADRON: Thank you.
13 I think that two things are
14 critical. The first is to ensure that we don't
15 pass laws in this state that lead to convictions
16 getting thrown out because of a failure to comply
17 with basic constitutional rights, with extensive
18 case law, federal and across the states.
19 And I also think it's critical that
20 we are very, very mindful of the details when it
21 comes to protecting folks' presumption of
22 innocence, which is a bedrock of our country.
23 And so I do worry a little bit about
24 sort of the difficulty in engaging some of these
25 questions.
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1 ACTING PRESIDENT CARLUCCI: Senator
2 Squadron, is there a question for the sponsor?
3 SENATOR SQUADRON: Yes. In that
4 context, would the sponsor talk a little bit
5 about the federal guidelines for when it's
6 appropriate to impanel a jury.
7 ACTING PRESIDENT CARLUCCI: Senator
8 Marcellino.
9 SENATOR MARCELLINO: I've been told
10 by many different lawyers that we've talked to
11 over the years -- this bill has been brought up
12 on multiple occasions, and they find it very
13 difficult to impanel a jury in certain cases,
14 certain high-profile drug cases, certain other
15 types of cases, international terrorism and so
16 forth, finding that it's very difficult to get
17 jurors to willingly join a panel for fear of
18 their own health and safety and for fear of the
19 safety of their families.
20 So that by itself would corrupt the
21 system that you're trying to protect and we're
22 all trying to protect.
23 The fact that you can have a
24 defendant appear in shackles, upon occasion. If
25 that's necessary and the court has said that this
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1 client can't be kept quiet or can't behave
2 himself, they will shackle that particular
3 person. They've put the defendant in other rooms
4 when their behavior is acting out and violent in
5 nature. They've moved them to different parts of
6 the courtroom and out of the chamber and out of
7 the sight of the jury when they scream out or
8 refuse to behave themselves.
9 The fact that there are cases where
10 clients come in in prison garb, as opposed to
11 that. So there are many cases when they don't
12 come in in a suit and tie, which one might say
13 that might influence the jury that this person is
14 guilty before the trial is even held.
15 And by the way, in the reading that
16 we did in preparation for this, the presumption
17 of innocence, I don't know that it's really the
18 right word to use. Perhaps the assumption that
19 you're guilty until proven innocent -- that
20 you're innocent until proven guilty, that might
21 be the case. But I don't know that I'd use the
22 word "presumption," that it's that you're
23 presumed to be innocent. You are assumed to be
24 innocent unless there's evidence that convinces
25 the jury that you are guilty in fact.
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1 So I think we have many different
2 places to go. I do know that this has been
3 brought to the 2nd Court of Appeals, it has been
4 found constitutional, it has been found okay to
5 do this, and it is done in other places. Again,
6 I'm not -- I just don't know offhand the
7 different states where it might be.
8 But there are infamous cases, the
9 Nicky Barnes trial, where Nicky Barnes, who
10 everybody knows was an infamous drug dealer, was
11 used as an informant for many years. It was
12 difficult to impanel a jury. The jury was made
13 anonymous in that case. The defendants -- they
14 tried the case, they appealed it, their case was
15 thrown out. Their appeals were thrown out
16 unanimously by the courts that their rights were
17 not violated.
18 So in this case we do believe that
19 this is an important thing to protect the jury
20 system. If a jury is -- if a juror is fearful,
21 fearful of his health and safety, if they can get
22 to him so easily because of his place of
23 employment or his home address or his last
24 name -- we can find your family, we can find your
25 children, we can harass you any which way we
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1 want -- that scares a lot of people and will
2 corrupt the system.
3 So therefore we feel that this is an
4 absolute necessity as a tool. Not in every case,
5 because the law clearly states that the
6 prosecutor must prove, must prove to the judge
7 that this is a necessity in this instance.
8 You just can't say "Judge, we would
9 like it to happen" and the judge will concur.
10 The judge has to agree that the prosecutor has
11 proven by a preponderance of the evidence that
12 this is an important step and it is necessary to
13 preserve the credibility of the jury and the
14 whole system.
15 ACTING PRESIDENT CARLUCCI: Senator
16 Squadron.
17 SENATOR SQUADRON: Thank you. If
18 the sponsor would continue to yield.
19 SENATOR MARCELLINO: Sure.
20 ACTING PRESIDENT CARLUCCI: The
21 sponsor yields.
22 SENATOR SQUADRON: Thank you.
23 And I thank the President for his
24 understanding as my question rambles a little
25 bit.
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1 Through you, Mr. President, in
2 paragraph 4 of the bill it says that only upon
3 request by a defendant, but not otherwise, should
4 a jury be informed that their anonymity should
5 not be prejudicial.
6 Is it the sponsor's intent that in
7 some cases a jury would be impaneled and would
8 not be advised at any point by the judge that
9 they shouldn't consider that to be a sign of
10 guilt?
11 ACTING PRESIDENT CARLUCCI: Senator
12 Marcellino.
13 SENATOR MARCELLINO: I think any
14 judge worth his or her salt would simply tell the
15 jury: Do not use this as an indication of a
16 presumption or an assumption of guilt.
17 And that is done in many cases. The
18 fact that a client might be -- a defendant might
19 be put in another room because of some outburst,
20 might be appearing in shackles because they've
21 threatened or attacked the guards on their way in
22 and the court is fearful that the action of the
23 defendant might cause harm to others, the judge
24 will simply state to the jury: Don't assume and
25 don't use this as an indication that we're saying
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1 this person is guilty. You have to take a
2 preponderance of the evidence and you have to
3 look at the evidence that is produced by the
4 prosecutor and determine on the basis of the
5 evidence, not this action but the basis of the
6 evidence that this person is guilty and deserving
7 to go to jail, and on no other case.
8 So I would assume the judge -- and
9 again, I believe in the old rule you never
10 assume, for the obvious reason. But it would be,
11 I think, dereliction of the judge's duty who
12 didn't make that declaration.
13 SENATOR SQUADRON: If the sponsor
14 would continue to yield.
15 SENATOR MARCELLINO: Sure.
16 ACTING PRESIDENT CARLUCCI: The
17 sponsor yields, Senator Squadron.
18 SENATOR SQUADRON: If that's the
19 sponsor's view about what any judge worth his or
20 her salt should do, not making any assumptions,
21 of course, but that's a basic quality of any
22 judge, why have this provision that suggests that
23 judges should only inform the jury that they
24 shouldn't be prejudiced by this fact if the
25 defense asks for it?
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1 ACTING PRESIDENT CARLUCCI: Senator
2 Marcellino.
3 SENATOR MARCELLINO: I'm sorry,
4 would you just repeat that again?
5 SENATOR SQUADRON: Absolutely.
6 ACTING PRESIDENT CARLUCCI: Senator
7 Squadron.
8 SENATOR SQUADRON: If it's the
9 sponsor's contention that any judge worth his or
10 her salt would inform a jury that they shouldn't
11 be prejudiced by its impaneling or its anonymity,
12 why put a provision in the sponsor's bill that
13 says that judges don't have any affirmative
14 obligation to inform a jury of that, and in fact
15 that the defense has to request it?
16 SENATOR MARCELLINO: The bill
17 leaves it up to the defendant. The defendant can
18 make that decision whether they feel that they
19 should have that statement made by the judge or
20 not. It's up to the defendant.
21 ACTING PRESIDENT CARLUCCI: Senator
22 Squadron.
23 SENATOR SQUADRON: If the sponsor
24 would continue to yield.
25 SENATOR MARCELLINO: Sure.
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1 ACTING PRESIDENT CARLUCCI: The
2 sponsor yields.
3 SENATOR SQUADRON: I noticed that
4 one of the factors to consider is the seriousness
5 of the charges against the defendant. What
6 standards for making juries anonymous in other
7 jurisdictions, either federally or in other
8 states, was that factor based on?
9 ACTING PRESIDENT CARLUCCI: Senator
10 Marcellino.
11 SENATOR MARCELLINO: I'm not sure
12 what's going on in the mind of other states or
13 what's occurred in other states.
14 But it would seem to me that in
15 various cases of extreme profile where you have
16 defendants that -- or gangs that have come out,
17 and friends or potential friends of the
18 defendant, or potential people who just act out
19 and make a statement that they're going to get
20 the jury -- this has happened before. We've seen
21 it before. It's been in the media where the
22 media is such a high-profile situation where
23 jurors are hounded constantly by the press or by
24 media and have no private lives, where their
25 families can't be allowed to live in peace and
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1 serenity.
2 These things do happen. And in this
3 case the prosecutor may say this whole thing is
4 becoming a difficult situation, we have jurors
5 who have declined and don't want to be sit in a
6 panel, don't want to be impaneled. Then you have
7 to force them to come in and be impaneled. And
8 that, to me, would be a bigger risk to the
9 defendant than having their names be anonymous.
10 SENATOR SQUADRON: If the sponsor
11 would continue to yield.
12 SENATOR MARCELLINO: Yeah, I will.
13 ACTING PRESIDENT CARLUCCI: The
14 sponsor yields.
15 Senator Squadron.
16 SENATOR SQUADRON: And I know the
17 issue about membership in gangs or in other
18 organized crime, that's a separate additional
19 factor in this bill. And the idea of publicity
20 around a trial, that's also a separate additional
21 factor in this bill.
22 The factor that I was asking about
23 was, to quote the bill, the seriousness of the
24 charges against the defendant. Is it the
25 sponsor's intent that in a more serious crime,
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1 the charges are more heinous and disturbing, that
2 it would be more likely that the court would make
3 the jury anonymous? Separate from the other
4 factors, is that the intent?
5 ACTING PRESIDENT CARLUCCI: Senator
6 Marcellino.
7 SENATOR MARCELLINO: If the
8 defendant is being arrested on pickpocket
9 charges, I would consider the case somewhat
10 light, serious no less. A case where a trial,
11 jail time might be warranted, a fine might be
12 warranted.
13 But if it's a case where the
14 defendant is accused of mass murder, throwing
15 bombs into crowded theaters, shooting up a school
16 building, I would consider those charges somewhat
17 more serious. I would think you would too.
18 SENATOR SQUADRON: Thank you. On
19 the bill, Mr. President.
20 ACTING PRESIDENT CARLUCCI: Senator
21 Squadron on the bill.
22 SENATOR SQUADRON: And I thank the
23 sponsor for the conversation on this bill. It's
24 one that has come before us before.
25 As I've looked more at it and
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1 understand the details more, I become more and
2 more concerned about this bill. Because this is
3 not new terrain that we're covering here in the
4 New York State Senate, it's terrain that's been
5 covered in other states, been covered extensively
6 by the federal courts.
7 There is in fact a standard for how
8 to do this. And it's an important thing, an
9 important tool in the toolbox certainly in
10 federal trials; also, on occasion, in other
11 states.
12 The federal test that exists is one
13 that has been developed over decades and is not
14 one that this bill maintains. The factor we were
15 just discussing, for example, doesn't even exist
16 in the federal test. In fact, the suggestion
17 that the more serious the crime charged, the more
18 likely the jury would be anonymous, is
19 inconsistent with federal law.
20 In federal law, when you have a
21 capital case, the most serious possible cases,
22 there's an additional standard before you do
23 this. Because in the most serious cases, being
24 able to know that you have a fair trial, being
25 able to know that the punishment, severe
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1 punishment -- which is often deserved in these
2 cases -- has in fact been come to through the
3 full due process, the full constitutional rights
4 afforded every defendant, is that much more
5 important. Which is sort of in conflict with
6 what we heard the sponsor say today.
7 We also heard the sponsor say that
8 all sorts of other activities happen -- shackles,
9 folks sometimes even been taken to other rooms,
10 all sorts of other behavior. As New York's
11 courts have pointed out, that happens subsequent
12 to behavior that leads to that sort of additional
13 measure that can be seen by the jury that might
14 have a prejudicial effect on the jury because of
15 something that's been proven and has happened.
16 What we're talking about here is
17 before a case starts. All that's happened is an
18 indictment. Which courts have been very clear,
19 indictment itself isn't a reason to do this,
20 isn't a reason to create an anonymous jury.
21 We're saying before the defendant
22 does anything that would suggest that they've
23 given up one of their rights, we're going to take
24 away their right to understand who's on the jury,
25 we're going to take away their ability to do a
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1 full questioning of jurors before they're
2 selected, we're going to take away the basic
3 ability to know that you are being judged by a
4 jury of your peers. It's completely a different
5 case than the one the sponsor used to justify
6 this.
7 Look, the truth is there are some
8 instances in which anonymous juries make sense.
9 There are some instances I believe in New York
10 State in which anonymous juries would make sense
11 where right now the courts have found that it's
12 difficult. The sponsor raised one of those
13 issues.
14 This bill doesn't do it. It creates
15 a factor that is likely to get thrown out.
16 You're going to have people convicted of crimes
17 who are going to have their convictions thrown
18 out if this becomes law.
19 And it's not nearly careful enough
20 and respectful enough of the right both of the
21 press -- the First Amendment right to
22 information -- and the right to a fair trial that
23 every defendant is afforded the presumption --
24 not assumption, but the presumption of innocence
25 that defendants go into their due process with
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1 fully.
2 So this is a bill that doesn't work
3 on either side. And, you know, I think that when
4 you're talking about this sort of basic right
5 that every single one of us has in this country,
6 you have to know what's happening in other
7 states. You have to know what's happening in the
8 federal government. You have to know that you're
9 doing it in the right way and you're doing it in
10 a way that's not going to put our state judicial
11 system at risk.
12 And so for that reason today,
13 unfortunately, though it is an issue that needs
14 to be solved by the state, I will vote no on the
15 bill.
16 Thank you, Mr. President.
17 ACTING PRESIDENT CARLUCCI: Thank
18 you, Senator Squadron.
19 Senator Hoylman.
20 SENATOR HOYLMAN: Thank you,
21 Mr. President. On the bill.
22 I wanted to thank my colleagues for
23 that spirited debate. As a lawyer, I learned a
24 lot. And I think we lawyers know that being a
25 lawyer is largely just a piece of paper. Anyone
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1 can read the law and understand it, as clearly my
2 colleagues do.
3 I wanted to concur with my colleague
4 Senator Squadron. You know, the Sixth Amendment
5 of the Constitution dates back, of course, to
6 1789. And it's founded on a principle of
7 openness and a right to a public trial by an
8 impartial jury.
9 And we've said for over 200 years
10 that the application of our laws is a matter of
11 public interest, one deserving of public
12 scrutiny. And I'm concerned, Mr. President, that
13 this legislation, by allowing criminal suspects
14 to be judged by anonymous individuals,
15 fundamentally undermines that principle.
16 We have a long history, as I
17 mentioned, of court proceedings that are open to
18 public scrutiny. I think we've heard of trials
19 of notorious criminals where jurors were public
20 and well-known. Al Capone, Lucky Luciano, they
21 were found guilty in public trials.
22 I'll add that the American Bar
23 Association has said that courts should limit the
24 use of anonymous juries to compelling
25 circumstances, such as when the safety of the
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1 jurors is at issue or when there's a finding by
2 the court that efforts are being made to
3 intimidate or influence the jury's decision.
4 I think that this bill,
5 Mr. President, goes way beyond those
6 recommendations by the American Bar Association,
7 allowing not just anonymity to be used where
8 there's a clear showing that the juror's safety
9 is endangered or that efforts have been made to
10 tamper with the jury. It's also based vaguely,
11 as my colleague has stated, on the seriousness of
12 the charges against the defendant.
13 But, Mr. President, I'd like to
14 focus on another aspect that was touched on, the
15 extent of pretrial publicity concerning the
16 criminal action or proceeding.
17 In Section 2 we read in the bill
18 that the people bear the burden of proving that
19 there's clear and convincing evidence that a
20 protective order is necessary to protect against
21 the likelihood of bribery, jury tampering or
22 physical injury to or harassment of the jurors or
23 prospective jurors.
24 And that's the part that concerns
25 me, because in the following section another
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1 factor is the extent of pretrial publicity
2 concerning the criminal action or proceeding.
3 Those can be the basis for impaneling an
4 anonymous jury.
5 I call it like the "US Weekly
6 clause." If there is a website like TMZ or
7 People Weekly interested in a criminal court
8 proceeding, according to this bill,
9 Mr. President, that would be the basis for a
10 prosecutor asking that the jury be impaneled in
11 an anonymous fashion. I don't think that's good
12 enough for our system of justice.
13 I think also that the anonymity can
14 be a perverse incentive for jury tampering by not
15 allowing the prosecution or the press to
16 investigate the jurors' backgrounds.
17 This happened here in New York back
18 in 1987 when John Gotti was being tried. One of
19 the anonymous jurors was later convicted of
20 selling his vote to acquit Gotti. Had the jury
21 not been anonymously selected, I contend that
22 it's likely that somebody in the media -- I don't
23 think it would be TMZ, but it might be a
24 reputable publication might have found that his
25 vote had been compromised during that trial.
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1 Now, trials of accused terrorists
2 and alleged mobsters, drug dealers, are really
3 exceptions in our criminal system. I'm
4 concerned, though, Mr. President, that the broad
5 language of this bill really swallows that
6 exception, and therefore I'll be voting in the
7 negative.
8 Thank you.
9 ACTING PRESIDENT CARLUCCI: Thank
10 you, Senator Hoylman.
11 Are there any other Senators wishing
12 to be heard?
13 Senator Marcellino.
14 SENATOR MARCELLINO: Just one
15 point.
16 The point is that this law is not
17 intended for every trial, it's only in very
18 limited use. The guidelines in this bill are a
19 compilation of all of the federal guidelines that
20 exist on these issues. Perhaps I didn't explain
21 it as clearly as I should have, but that is in
22 fact what I'm assured is the case from our
23 counsel.
24 And I'm also told that there hasn't
25 been a trial overturned anywhere, ever, when an
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1 anonymous jury was impaneled. Ever.
2 Thank you, Mr. President.
3 ACTING PRESIDENT CARLUCCI: Thank
4 you, Senator Marcellino.
5 Are there any other members wishing
6 to be heard?
7 Seeing none, the debate is closed.
8 The Secretary will ring the bell.
9 Read the last section.
10 THE SECRETARY: Section 4. This
11 act shall take effect immediately.
12 ACTING PRESIDENT CARLUCCI: Call
13 the roll.
14 (The Secretary called the roll.)
15 ACTING PRESIDENT CARLUCCI: Senator
16 DeFrancisco to explain his vote.
17 SENATOR DeFRANCISCO: Before you
18 vote no, I want to explain why this is a good
19 bill.
20 Seriously, Senator Marcellino did a
21 wonderful job explaining this bill. And as far
22 as due process is concerned, what this bill does
23 is actually just give the presiding judge the
24 opportunity to keep jurors' names and addresses
25 confidential to avoid influence or to avoid
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1 physical injury on any of those jurors.
2 He's absolutely right, in
3 high-profile cases jurors will often give any
4 reason they can possibly think of, like "I won't
5 be fair and impartial," to avoid jury duty. And
6 one of the reasons I've found that that happens
7 is they just are afraid, in a criminal case, to
8 sit there in judgment.
9 This satisfies due process because
10 it's not an automatic thing. Or it's not
11 something the judge can do alone or the
12 prosecutor can do alone, it's a procedure. A
13 hearing is held. And the hearing requires that
14 the prosecutor not only prove that one of these
15 things might happen or could happen, but by clear
16 and convincing evidence that there's a danger of
17 some of these problems occurring.
18 So I think it satisfies due process.
19 It will also help get jurors feeling comfortable
20 in high-profile cases. And it's at the
21 discretion of the presiding judge. And that's
22 what we pay them for, to make decisions like this
23 in cases, serious cases in the State of New York.
24 So I vote aye. And thank you for
25 the time, Mr. President.
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1 ACTING PRESIDENT CARLUCCI: Thank
2 you.
3 Senator DeFrancisco will be recorded
4 in the affirmative.
5 Senator Squadron to explain his
6 vote.
7 SENATOR SQUADRON: Thank you. Any
8 opportunity to follow Senator DeFrancisco.
9 Just a brief correction of the
10 sponsor's final comment. In 2011 the Oregon
11 Supreme Court threw out the conviction of a sex
12 offender because the judge hadn't sufficiently
13 told the jury not to be prejudiced by exactly the
14 sort of thing that this bill would allow.
15 Thank you. I vote no,
16 Mr. President.
17 ACTING PRESIDENT CARLUCCI: Senator
18 Squadron to be recorded in the negative.
19 Announce the results.
20 THE SECRETARY: Those recorded in
21 the negative on Calendar Number 207 are
22 Senators Hassell-Thompson, Hoylman, Krueger,
23 Montgomery, Perkins, Sanders, Serrano and
24 Squadron. Also Senator Espaillat.
25 Ayes, 52. Nays, 9.
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1 ACTING PRESIDENT CARLUCCI: The
2 bill is passed.
3 Senator Libous.
4 SENATOR LIBOUS: Mr. President, can
5 we go back to motions. I have a very important
6 motion before the house.
7 ACTING PRESIDENT CARLUCCI: Motions
8 and resolutions.
9 SENATOR LIBOUS: On behalf of
10 Senator Libous, I move that the following bill
11 be -- that was supposed to be funny.
12 (Laughter.)
13 SENATOR LIBOUS: Thank you.
14 I move that the following bill be
15 discharged from its respective committee and be
16 recommitted with instructions to strike the
17 enacting clause. That would be Senate Print
18 4001.
19 ACTING PRESIDENT CARLUCCI: So
20 ordered.
21 SENATOR LIBOUS: Thank you,
22 Mr. President.
23 Is there any further business at the
24 desk?
25 ACTING PRESIDENT CARLUCCI: There
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1 is no further business, Senator Libous.
2 SENATOR LIBOUS: There being no
3 further business, I would like to remind the
4 members of the house that there will be a joint
5 meeting with the Assembly tomorrow at noon, and
6 then we will have our own session following the
7 Assembly joint session at 3:00 p.m.
8 So the Senate will adjourn until
9 tomorrow, March 11th, at 3:00 p.m.
10 ACTING PRESIDENT CARLUCCI: There
11 being no further business before the Senate, on
12 motion, the Senate stands adjourned until
13 Tuesday, March 11th, at 3:00 p.m.
14 (Whereupon, at 4:12 p.m., the Senate
15 adjourned.)
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