Tuesday, January 26, 1993

1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 January 26, 1993 10 3:18 p.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR HUGH T. FARLEY, Acting President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 1 P R O C E E D I N G S 2 ACTING PRESIDENT FARLEY: The 3 Senate will come to order. If you will please 4 find your seats. 5 If you will rise with me for the 6 Pledge of Allegiance to the Flag. 7 (The assemblage repeated the 8 Pledge of Allegiance to the Flag.) 9 Today we have the Reverend Peter 10 G. Young, pastor of Blessed Sacrament Church in 11 Bolton Landing, to give us the opening prayer. 12 Father Young. 13 REVEREND PETER G. YOUNG: Let us 14 pray. 15 Dear God, as the sun increases 16 its warmth and the budget discussions are 17 prioritized, we call upon You to guide our 18 legislators in this Senate chamber to wisdom and 19 continuing dedication. The challenges this year 20 are numerous and we ask You for the blessing 21 that will give them the energy and the health to 22 again be important decision-makers in this 23 state. We ask You this now and forevermore. 1 Amen. 2 ACTING PRESIDENT FARLEY: Thank 3 you, Father. 4 The Secretary will begin by 5 reading the Journal. 6 THE SECRETARY: In Senate, 7 Monday, January 25th. The Senate met pursuant 8 to adjournment, Senator Farley in the Chair upon 9 designation of the Temporary President. The 10 Journal of Friday, January 22nd, was read and 11 approved. On motion, Senate adjourned. 12 ACTING PRESIDENT FARLEY: Hearing 13 no objection, the Journal will stand approved as 14 read. 15 The order of business: 16 Presentation of petitions. 17 Messages from the Assembly. 18 Messages from the Governor. 19 Reports of standing committees. 20 Reports of select committees. 21 Communications and reports from 22 state officers. 23 Motions and resolutions. Do we 1 have any? 2 Senator Present, we have a 3 quorum, and we're ready for the calendar. 4 What's your pleasure? 5 SENATOR PRESENT: Mr. President, 6 let's adopt the Senate Resolution Calendar. 7 ACTING PRESIDENT FARLEY: All 8 right. The Secretary will read the -- all in 9 favor of adopting the Resolution Calendar, 10 please say aye. 11 (Response of "Aye.") 12 Those opposed nay. 13 SENATOR GOLD: Mr. President. 14 (There was no other response.) 15 SENATOR GOLD: Mr. President. 16 ACTING PRESIDENT FARLEY: The 17 Resolution Calendar is adopted. 18 SENATOR GOLD: Mr. President. 19 ACTING PRESIDENT FARLEY: Yeah. 20 SENATOR GOLD: Could you just 21 hold 229 starred; Senator Ohrenstein would like 22 to be heard on it? It's his own. 23 ACTING PRESIDENT FARLEY: We'll 1 come back to that. The Resolution Calendar has 2 already been adopted, but Senator Ohrenstein 3 will be speaking to Resolution Number 229. Is 4 that all right? 5 Are there any motions on the 6 floor or anything? 7 Senator Present. 8 SENATOR PRESENT: Mr. President, 9 let's take up the non-controversial. 10 ACTING PRESIDENT FARLEY: 11 Non-controversial. The Secretary will read. 12 THE SECRETARY: On page 4, 13 Calendar Number 4, by Senator Kuhl. 14 SENATOR GOLD: Lay it aside. 15 ACTING PRESIDENT FARLEY: Laid 16 aside. 17 THE SECRETARY: Calendar Number 18 12, by Senator Halperin, Senate Bill Number 106, 19 an act to amend the Penal Law, in relation to 20 increasing the penalties for loitering. 21 ACTING PRESIDENT FARLEY: Read 22 the last section. 23 THE SECRETARY: Section 2. This 1 act shall take effect immediately. 2 ACTING PRESIDENT FARLEY: Call 3 the roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 33. 6 ACTING PRESIDENT FARLEY: That 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 19, by Senator Holland - 10 SENATOR GOLD: Lay aside for 11 Senator Solomon. 12 ACTING PRESIDENT FARLEY: Lay 13 that aside for Senator Solomon. 14 THE SECRETARY: Calendar Number 15 20, by Senator Bruno, Senate Bill Number 239, an 16 act to amend the Civil Rights Law. 17 ACTING PRESIDENT FARLEY: Read 18 the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect immediately. 21 ACTING PRESIDENT FARLEY: Call 22 the roll. 23 (The Secretary called the roll. ) 1 THE SECRETARY: Ayes 33. 2 ACTING PRESIDENT FARLEY: That 3 bill is passed. 4 THE SECRETARY: Calendar Number 5 21, by Senator Tully, Senate Bill Number 233, an 6 act to amend the Criminal Procedure Law. 7 ACTING PRESIDENT FARLEY: Read 8 the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 ACTING PRESIDENT FARLEY: Call 12 the roll. 13 (The Secretary called the roll. ) 14 THE SECRETARY: Ayes 33. 15 ACTING PRESIDENT FARLEY: That 16 bill is passed. 17 THE SECRETARY: Calendar Number 18 22, by Senator Volker, Senate Bill Number 247, 19 an act to amend the Criminal Procedure Law. 20 SENATOR GOLD: Lay aside, please. 21 ACTING PRESIDENT FARLEY: Lay 22 that bill aside. 23 THE SECRETARY: Calendar Number 1 23, by Senator Volker. 2 SENATOR GOLD: Star it? Lay it 3 aside. 4 ACTING PRESIDENT FARLEY: Laid 5 aside. 6 THE SECRETARY: Calendar Number 7 24, by Senator Volker, Senate Bill Number 406, 8 an act to amend the Criminal Procedure Law. 9 ACTING PRESIDENT FARLEY: Read 10 the last section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT FARLEY: Call 14 the roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Ayes 34. 17 ACTING PRESIDENT FARLEY: That 18 bill is passed. 19 Senator Present. 20 SENATOR PRESENT: Mr. President, 21 let's stand at ease for a few minutes. 22 ACTING PRESIDENT FARLEY: We'll 23 stand at ease. 1 SENATOR PRESENT: Mr. President. 2 ACTING PRESIDENT FARLEY: Senator 3 Present. 4 SENATOR PRESENT: Can you hit the 5 gavel. We're back in action. Call up Calendar 6 Number 19. 7 ACTING PRESIDENT FARLEY: The 8 Secretary will read Calendar Number 19. 9 THE SECRETARY: Calendar Number 10 19, by Senator Holland, Senate Bill Number 211, 11 an act to amend the Penal Law. 12 SENATOR GOLD: Senator Solomon, 13 you want to do anything? 14 ACTING PRESIDENT FARLEY: Senator 15 Solomon. 16 SENATOR SOLOMON: Yes, on 19, can 17 I have an explanation, please? 18 ACTING PRESIDENT FARLEY: 19 Explanation has been asked for. Senator 20 Holland. 21 SENATOR HOLLAND: Senator, as you 22 know, this is a bill that would allow auxiliary 23 police to use mace. Senator, as you know, this 1 is a bill that would allow auxiliary police to 2 use mace in a defense -- as a defensive weapon, 3 only if it was justified in a deadly force 4 situation, and if allowed by the local chief of 5 police or commissioner of police and with proper 6 training. 7 SENATOR SOLOMON: Senator Holland 8 yield? 9 SENATOR HOLLAND: Yes, sir. 10 SENATOR SOLOMON: Senator, the 11 only thing that confuses me about this bill is, 12 I have an understanding that a number of the 13 organized police departments around the country 14 have been against the use of mace by citizens in 15 many instances, and I'd like to know whether or 16 not they're supporting or opposing this bill or 17 have taken any position on this bill. 18 SENATOR HOLLAND: The Police 19 Conference, we have a verbal communication from 20 the police conference that they are opposed but 21 that's not -- not written. 22 SENATOR SOLOMON: Have you 23 contacted the New York City PBA? 1 SENATOR HOLLAND: The city of New 2 York came into the office and said that they 3 would support the bill if we allowed cities with 4 populations of over a million people to be 5 deleted from the bill, but we chose not to do 6 that. We feel it should be a statewide bill, 7 rather than a two-state bill again. 8 SENATOR SOLOMON: And the New 9 York City hasn't? 10 SENATOR HOLLAND: No, it was just 11 the representative of the city of New York, not 12 the PBA. 13 SENATOR SOLOMON: All right. 14 Thank you, Senator. On the bill. 15 I just think there's been some 16 confusion in terms of some of the local police 17 agencies and the police unions as to whether 18 they support this bill or not. I personally am 19 not opposed, in fact, to the change in the law 20 in this state on mace because I think coming 21 from the city of New York, a number of women, if 22 you've read some recent articles in the New York 23 Times in relation to car-jackings have been 1 carrying small bottles of mace on their key 2 chains. Whether or not it would be effective 3 against an attack is questionable. 4 But I think the issue of mace has 5 to be reviewed not as it just pertains to 6 auxiliary police officers, but I think the issue 7 of mace within this state should be reviewed 8 completely, and that's why I was asking the 9 questions regarding the particular police unions 10 in this -- on this particular piece of 11 legislation, and that's why I really oppose 12 this. 13 I think mace should really be 14 legalized so it could be available throughout 15 the entire state, including the city of New 16 York, to be used in defense of individuals, not 17 just police officers, in this situation. 18 SENATOR GOLD: Mr. President. 19 ACTING PRESIDENT FARLEY: Senator 20 Gold. 21 SENATOR GOLD: Yeah. We had this 22 bill last year, and it passed with only two 23 negatives, Senator Montgomery and Senator 1 Solomon, and, Senator Solomon, I'm glad you 2 brought it up again, and I've been reading this 3 and I'm really saying that you've changed my 4 mind. 5 Senator Holland says that the 6 City said it would not oppose it or would 7 support it if you took them out. I guess that's 8 a round-about way of saying that they oppose it 9 the way it is, and the City points out, and in 10 their memo they use this language, which I think 11 is really very very significant: 12 They're talking about auxiliary 13 police, and it says they're the eyes and ears of 14 the department by observing and reporting crimes 15 and conditions warranting police action. They 16 do not initiate arrests and, in fact, are 17 instructed to avoid personal confrontations 18 whenever possible, because the city of New York 19 could not indemnify them for their actions taken 20 outside the, quote, "drill", end quote, 21 concept. 22 Senator Holland, I don't know how 23 you teach someone on the auxiliary police 1 department that they're the eyes and the ears 2 and they shouldn't have confrontations and then 3 you start little by little to arm them and you 4 give them mace. If the police department wants 5 to have auxiliary police and they want to set it 6 up with certain limitations, I don't think it's 7 for us to tell them how to change the way the 8 auxiliary police department operates. 9 If your bill permitted, for 10 example, the various police departments to 11 authorize it themselves, then I probably 12 wouldn't care, because if your locality wanted 13 to do it, I don't think it would be offensive to 14 me. But by mandating it the way I read this, it 15 says upon local authorization and appropriate 16 instruction and whatever. All right, you've 17 got -- you've got that in there. 18 But the point -- the point is 19 when you're dealing with the City, you run into 20 a little bit of a different problem, because in 21 the City with the numbers involved, it tends to 22 get out of hand. The auxiliary, in other words 23 now, we're -- we have the auxiliary petition. I 1 don't see any of that in here. I don't see any 2 of that, and it seems to me that if the City has 3 set up this program with its own limitations on 4 it, that it's not for us to change it. 5 SENATOR HOLLAND: Senator, it's 6 -- this is not a mandate. It's up to the 7 individual police departments to allow it. It's 8 only to be used as a defensive weapon. There 9 will be education for the auxiliary policemen 10 before they go out there and only to be used in 11 a deadly force situation. I don't see where any 12 of the arguments you gave fits in here. 13 ACTING PRESIDENT FARLEY: Read 14 the last section. 15 Senator Volker. 16 SENATOR VOLKER: Mr. President, 17 very quickly, and this -- this bill, I think, 18 points up the kind of almost bizarre nature of 19 the situation we're in with certain -- certain 20 of our so-called defense weapons. 21 As Senator Padavan points out to 22 me, every mailman in New York State has a form 23 of mace. Probably it's estimated 20 to 25 1 percent of the people in some of the urban areas 2 are carrying mace, even though it's technically 3 illegal. We've been passing bills in this house 4 for several years trying to make mace legal in 5 part because half the population of the state of 6 New York is carrying mace. 7 I would like to point out also 8 that auxiliary police already are authorized to 9 use batons, which I think probably is more of 10 potentially an offensive weapon than mace. The 11 problem here is, and the reason I can tell you 12 why the police conferences and the police are 13 opposed to this, they're really not opposed to 14 it in principle. Their problem is that across 15 this state, some of the localities that have 16 been pinched for cash are beginning to try to 17 use auxiliary police in place of police 18 officers. That's a bad idea and a tough 19 problem, but the auxiliary police will say to 20 you, that's why what they're really asking for 21 is something like mace, which is really a 22 defensive -- a defensive weapon and not really 23 a-- they're not asking for guns or anything of 1 that nature. 2 The police, I think, simply are 3 opposed just on the basis that at this point 4 they just don't want to give anything to the 5 auxiliary police. A strange thing about the New 6 York City memo is, if you read it, it sort of 7 says that, yeah, we realize we don't have to do 8 it but we'd just as soon not have legislation 9 authorizing us to do it if we decide not to, and 10 the truth is this bill doesn't say they have to 11 do it and, if they decide to do it, it gives 12 them even more structure in law to allow them to 13 make determinations as to what should be done. 14 So I just think it's kind of a - 15 there's another issue involved here to say that 16 most of the people out there in the street or a 17 lot of them are using these things illegally, so 18 that now we don't want to make it legal for 19 police people who are connected with police to 20 carry them and, by the way, I hesitate to tell 21 you this, but I know a lot of auxiliary police 22 are carrying it right now and don't let anybody 23 kid you, because if everybody else is carrying 1 it, why shouldn't they carry it? And what we're 2 really trying to do here is make it legal and 3 give them some training. 4 ACTING PRESIDENT FARLEY: Senator 5 Jones. 6 SENATOR JONES: Yes, I would just 7 like to -- I am going to vote against this bill 8 and I would have to concur, I have spoken to the 9 police in my area, and I would concur with what 10 Senator Volker said. He's correct, it is a 11 bigger issue and in some of the towns I 12 represent, that's exactly what's happening: For 13 budget-cutting purposes, they're using auxiliary 14 police, and I think the issue is that the 15 police, and rightfully so in my opinion, feel as 16 though they put in many, many hours and effort 17 into training and that they're not willing to 18 give up things that are there. 19 I agree also with my colleague 20 who said we should investigate the whole mace 21 thing over and apart from this because as a 22 woman, I would like to carry it, but I will vote 23 no because I think our police are deserving of 1 our support on this issue. 2 SENATOR GOLD: Last section. 3 ACTING PRESIDENT FARLEY: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT FARLEY: Call 8 the roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Those recorded in 11 the negative on Calendar Number 19 are Senators 12 Dollinger, Espada, Galiber, Gold, Jones, 13 Markowitz, Mendez, Montgomery, Onorato, Smith, 14 and Solomon. Ayes 39 -- also Senator 15 Oppenheimer. Ayes 38, nays 12. 16 ACTING PRESIDENT FARLEY: The 17 bill is passed. 18 Senator Present. 19 SENATOR PRESENT: May we take up 20 Calendar 22 and follow it by Calendar 23. 21 ACTING PRESIDENT FARLEY: 22 Secretary will call up Calendar Number 22. 23 THE SECRETARY: Calendar Number 1 22, by Senator Volker, Senate Bill Number 247, 2 an act to amend the Criminal Procedure Law. 3 ACTING PRESIDENT FARLEY: Read 4 the last section. 5 SENATOR VOLKER: Mr. President, 6 this -- the bill has passed this house on 7 several occasions, and I'm -- I don't know, I am 8 hopeful that we can do something with it in the 9 Assembly. It's my own personal feeling that the 10 reason it hasn't passed is not because it has 11 any substantial effect on the rights of anybody 12 but because the -- in fact, I'm told this by 13 some of the Assembly people, that they -- in 14 principle, they have concern about passing a 15 bill such as this to get rid of some of the 16 technicalities that have been used in criminal 17 proceedings. 18 What happened here was that a 19 convicted rapist, the prime issue involved here, 20 a fellow by the name of Johnson, in a case in 21 Buffalo, signed a waiver of immunity. There's 22 no question of that. He admits that. He admits 23 that he intended to do that and was convicted. 1 The case -- the conviction was thrown out 2 because, under the statute, the statute says 3 that the waiver of immunity must occur in the 4 presence of the grand jury. The assistant D.A. 5 who handled this basically admitted that he 6 had -- probably that the grand jury was not 7 immediately present at the time of the signing 8 of the waiver. The attorneys, the defense 9 attorney, everybody admitted it and virtually 10 everybody admits that that whole concept of 11 waiver of immunity in today's climate where 12 people are tromping in and out of the grand jury 13 room, really doesn't mean very much to start 14 with. 15 The real issue always has been 16 the issue of whether the waiver of immunity was 17 done voluntarily and knowingly, and that is 18 still the law and would still remain the law 19 once this bill was passed. All this bill would 20 change would be -- is that it wouldn't necessar 21 ily have to be actually in the presence of the 22 grand jury itself which really means nothing 23 because the grand jury doesn't know what's going 1 on for the most part anyway, and the issue is 2 really the signing of the waiver of immunity. 3 ACTING PRESIDENT FARLEY: Senator 4 Gold. 5 SENATOR GOLD: Thank you, Mr. 6 President. 7 Mr. President, this is another 8 bill we've had before. Last year Senators 9 Connor, myself, and Senator Markowitz and 10 Mendez, Montgomery, Ohrenstein, Oppenheimer, 11 Smith, and Solomon voted in the negative. 12 The problem with the bill is 13 basically there was one case one time when an 14 assistant D.A. made a mistake and you, 15 therefore, want to change the law and affect 16 people's rights in a substantial way because of 17 one case; and you don't do that. 18 I gave an example before on 19 this. Someone who built a golf course played 20 with their friends and every time they saw where 21 their friend hit a ball, the next time they 22 played the guy put a sand trap there. 23 Well, you can't set up the penal 1 code and the criminal laws for one case every 2 time there's a difference. Prosecutors in this 3 state are very well trained, and young 4 prosecutors coming into the office should be 5 well trained, and you don't put an assistant 6 district attorney in charge of a grand jury 7 unless he knows what's happening, and the fact 8 is that, since Senator Volker brought this bill 9 to us, I don't know whether there's been any 10 other cases, but I haven't heard about them. He 11 says there are. 12 The bottom line is that, when 13 someone waives immunity in this country, that is 14 heavy stuff, and for Senator Volker to say it's 15 just a formality the way you do it, I don't 16 think is fair. Our system could be a lot simpler 17 if we didn't care so much about the rights of 18 innocent people and the rights of accuseds and, 19 yes, you don't walk in guilty like you do in 20 other countries. You walk in innocent, and they 21 have to prove you guilty and you can waive 22 immunity. You can. You have do it properly, 23 but, if you don't do it properly, the law 1 protects you, and to give away that protection 2 because of one case as horrible as it may be, 3 makes no sense. 4 So I would urge everyone to 5 defeat this. The grand jury works well. The 6 prosecutors that run it work well and because 7 one prosecutor made a mistake is the wrong 8 reason, I think, to change the law. 9 SENATOR VOLKER: Mr. President. 10 ACTING PRESIDENT FARLEY: Senator 11 Volker. 12 SENATOR VOLKER: Mr. President. 13 Senator Gold, I know, has been in a grand jury 14 room. I have been in a grand jury room too. 15 There have been other cases, by the way, that 16 involved this issue, but for the most part 17 nobody pays any attention to it because it 18 really is a technicality that has clearly out 19 lived its usefulness, virtually everyone 20 agrees. 21 The only people that, frankly, 22 don't seem to agree, because if you think about 23 it, the first thing a prosecutor has to do is 1 ask the question, Did you sign an immunity? Was 2 it knowingly, and so forth, to go through the 3 process. The fact of whether the grand jury saw 4 you sign it or not really makes no difference 5 and, in fact, if the prosecutor doesn't make it 6 clear that there's the immunity, then you got 7 the real problem and if it's not knowing and if 8 it's not clearly -- clearly done. 9 The truth is, this is not the 10 only case, although it's been pointed out to a 11 number of us who have looked at this issue that 12 this probably happens a lot because assistant 13 district attorneys really, when you've got 14 people coming in and out on a regular basis, the 15 question is did the grand jury ever see it any 16 way, and from what I understand, it's much more 17 prevalent in New York City than it would be in 18 upstate New York. 19 SENATOR GOLD: Mr. President. 20 Will the Senator yield to a question? 21 ACTING PRESIDENT FARLEY: Senator 22 Volker, will you yield? 23 SENATOR VOLKER: Yes. 1 SENATOR GOLD: Senator, when this 2 happened up in your area, there was a lot of 3 press on it, wasn't there? 4 SENATOR VOLKER: Quite a bit, 5 right. 6 SENATOR GOLD: Lot of public 7 outrage. 8 SENATOR VOLKER: Right. 9 SENATOR GOLD: Don't you think, 10 if this was happening all over the state, that 11 we would see this then in the papers, if it was 12 happening in Utica and in Albany? If it was 13 happening every day, isn't it obvious we'd see 14 some of it in the papers? 15 SENATOR VOLKER: I never said it 16 was happening every day. For the most part, 17 defense attorneys and prosecuting attorneys 18 don't pay any attention to this. But the 19 possibility of an outrageous situation like this 20 happening, and then we are told where there are 21 some other incidents where appeals have been 22 made based on this sort of happening, the 23 possibility when you think of it, when there is 1 no significant reason for doing this in the kind 2 of era that we're in, makes no sense and we 3 should just get rid of it. 4 SENATOR GOLD: Last section. 5 ACTING PRESIDENT FARLEY: Read 6 the last section. 7 Oh, Senator Halperin. 8 SENATOR HALPERIN: Yes. Would 9 Senator Volker yield to a question, please? 10 ACTING PRESIDENT FARLEY: I'm 11 confident he will. 12 SENATOR VOLKER: Sure. 13 ACTING PRESIDENT FARLEY: Senator 14 Volker. 15 SENATOR HALPERIN: Under your 16 legislation, how would the issue of whether or 17 not a waiver of immunity had been signed be 18 resolved? What would be -- who would determine 19 it; which court would determine it and what 20 would be the standard of proof? 21 SENATOR VOLKER: Well, that 22 wouldn't change at all, Senator. You know how 23 it's done now. You have -- in fact, one of the 1 things in the grand jury minutes has to be the 2 declaration and a statement from the -- the 3 person, the defendant himself, that he did sign 4 a -- a waiver of immunity and signed it 5 knowingly, and so forth. So that wouldn't 6 change, and that issue -- the issue, this issue, 7 came up on appeal after the trial was over with 8 when the attorney went back and said, Wait a 9 minute, you know. Someone said the assistant 10 district attorney probably could have said, "Oh, 11 well, I think I did it before the -- right 12 before the grand jury," but in whatever the 13 circumstances were, he was very candid and said, 14 "No, I guess I probably didn't." 15 SENATOR HALPERIN: So, in other 16 words, before the witness would testify, there 17 would have to be entered onto -- it would have 18 to be an acknowledgement that would be entered 19 onto the record that, in fact, he was waiving - 20 he or she was waiving immunity. 21 SENATOR VOLKER: Sure. 22 SENATOR HALPERIN: And that they 23 had signed something and that was his signature. 1 That's what would have to be done? 2 SENATOR VOLKER: Oh, sure, 3 certainly. 4 SENATOR HALPERIN: So the only 5 issue would be whether the actual signing of 6 that document occurred while the grand jury was 7 watching or was not watching. 8 SENATOR VOLKER: Exactly. 9 SENATOR GOLD: Last section. 10 SENATOR DOLLINGER: Mr. 11 President. 12 ACTING PRESIDENT FARLEY: Senator 13 Dollinger. 14 SENATOR DOLLINGER: It's my 15 understanding, Senator, that this legislation 16 does note affect the constitutional test of the 17 waiver of immunity, that the court would still 18 determine whether it was freely and voluntarily 19 given. 20 SENATOR VOLKER: Yes. 21 SENATOR DOLLINGER: And the court 22 would then decide whether it's a factor along 23 with the other matters that the court would 1 review in determining how it was granted. 2 SENATOR VOLKER: If there was 3 some question whether it was acknowledged and it 4 was done properly, it would seem to be an issue 5 for the court. 6 SENATOR DOLLINGER: Well, it 7 would certainly seem to me, Mr. President, that 8 if it was done in a district attorney's office 9 or on a cell block or some place, that would be 10 a factor to be considered by the court in 11 determining whether it was knowingly and 12 willingly granted. 13 SENATOR VOLKER: Certainly. 14 SENATOR DOLLINGER: And I think 15 that that has to be understood in the context of 16 the Senator's proposal. 17 ACTING PRESIDENT FARLEY: Read 18 the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect on the 1st day of 21 November. 22 ACTING PRESIDENT FARLEY: Call 23 the roll. 1 (The Secretary called the roll. ) 2 THE SECRETARY: Those recorded in 3 the negative on Calendar Number 22 are Senators 4 Connor, Espada, Galiber, Gold, Markowitz, 5 Mendez, Montgomery, Ohrenstein, Santiago, Smith, 6 and Solomon. Ayes 42, nays 11. 7 ACTING PRESIDENT FARLEY: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 23, by Senator Volker, Senate Bill Number 364, 11 an act to amend the Penal Law. 12 ACTING PRESIDENT FARLEY: 13 Explanation. 14 SENATOR VOLKER: Now that we got 15 through the previous legislation, this one is 16 much, much simpler. 17 All this bill would do, it would 18 add pornography to -- as a -- to the definitions 19 of the criminal or to those areas that are in 20 volved in the Organized Crime Control Act. In 21 other words, we would include the crime of por 22 nography under RICO, which is the racketeering 23 act that we passed some years ago, and it's been 1 used very successfully against organized crime 2 throughout this state. 3 SENATOR GOLD: Mr. President. 4 ACTING PRESIDENT FARLEY: Senator 5 Gold. 6 SENATOR GOLD: I think last year 7 we set the record for the shortest debate in 8 this area and maybe we can keep it that way. 9 Senator Babbush and myself and Senator Galiber 10 and Montgomery voted in the negative. 11 Everybody's against organized 12 crime; we're all against pornography. The only 13 issue is whether or not in handling pornography 14 we are going to take that and also put it under 15 the organized crime statute. If this bill does 16 not pass, pornography is still a crime in the 17 state of New York. It doesn't do anything in 18 that regard, and it's just a question of 19 philosophy. 20 Last section. 21 ACTING PRESIDENT FARLEY: Read 22 the last section. 23 THE SECRETARY: Section 2. This 1 act shall take effect on the 1st day of 2 November. 3 ACTING PRESIDENT FARLEY: Call 4 the roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Those recorded in 7 the negative on Calendar Number 23 are Senators 8 Connor, Espada, Galiber, Gold and Montgomery. 9 Ayes 50, nays 5. 10 ACTING PRESIDENT FARLEY: That 11 bill is passed. 12 SENATOR OPPENHEIMER: Mr. 13 President. 14 ACTING PRESIDENT FARLEY: Senator 15 Oppenheimer. 16 SENATOR OPPENHEIMER: I'd like 17 unanimous consent to be recorded in the negative 18 on Calendar Number 22, please. 19 ACTING PRESIDENT FARLEY: Senator 20 Oppenheimer will be in the negative on Calendar 21 Number 22. 22 Senator Holland. 23 SENATOR HOLLAND: Yes, Mr. 1 President, on page 4, I offer the following 2 amendments to my bill, Calendar Number 17, 3 Senate Print Number 205, and ask that said bill 4 retain its place on Third Reading Calendar. 5 ACTING PRESIDENT FARLEY: 6 Amendments are received. The bill will retain 7 its place. 8 Senator Present. 9 SENATOR PRESENT: I believe 10 Senator Galiber has a resolution which I wish 11 you would entertain at this time. 12 ACTING PRESIDENT FARLEY: Senator 13 Galiber. 14 SENATOR GALIBER: Yes. Thank 15 you, Mr. President. 16 I have a resolution, I believe, 17 that's at the desk. 18 ACTING PRESIDENT FARLEY: It is. 19 SENATOR GALIBER: Mr. President, 20 under normal circumstances, time is an important 21 factor, but we have lost in this great country 22 of ours one of the heroes of our nation. 23 Therefore, I would ask that you read the 1 resolution in toto of Thurgood Marshall, Justice 2 of the Supreme Court of the United States. 3 ACTING PRESIDENT FARLEY: The 4 Secretary would read the resolution for Justice 5 Marshall. 6 THE SECRETARY: Legislative 7 Resolution, by Senator Galiber, commemorating 8 the life and career of the Honorable Thurgood 9 Marshall, Justice of the Supreme Court, and 10 expressing sincerest sorrow upon the occasion of 11 his death. 12 WHEREAS, it is the sense of this 13 legislative body that the common and shared 14 responsibility of governance demands an 15 irrevocable commitment to the preservation and 16 enhancement of human dignity; 17 There is no substitute, no 18 alternative to the full implementation of that 19 prerogative; on the contrary, the safe, sure and 20 positive definition of civil liberties dictates 21 that the discretionary power inherent in govern 22 ance be weighted in favor of that commitment; 23 The very viability of democratic 1 procedure, the most characteristic attribute of 2 its sovereignty, remains an unswerving commit 3 ment to the pervasive and equitable extension of 4 civil liberties; 5 It is the intent of this 6 assembled body to address the significance of 7 the life and career of the Honorable Thurgood 8 Marshall, Justice of the Supreme Court; 9 The life and career of Justice 10 Thurgood Marshall represents an unyielding 11 commitment to the primacy of law, to those 12 prerogatives of justice and human dignity so 13 paradigmatic of our American manner; 14 Justice Marshall, the first 15 African-American ever to serve on the nation's 16 highest court and the great grandson of a slave, 17 rose to a position of greatness by advocating 18 civil rights that had long been wrongfully 19 denied African-Americans; 20 Having grown up in a society 21 pervaded by racism, he had the courage to seek 22 to create a radically different world where the 23 ideals of brotherhood and equality governed our 1 law; 2 Justice Marshall was the foremost 3 champion of the rights of all persons, regard 4 less of race or gender, to equal opportunity and 5 equal justice; he understood that our Constitu 6 tion had little meaning unless its protections 7 are extended to all citizens; 8 Justice Marshall was appointed to 9 the court in 1967 by President Lyndon B. Johnson 10 after serving as a federal appeals court judge 11 and as the Johnson administration solicitor 12 general in charge of arguing cases before the 13 high court; 14 Justice Marshall is the legal 15 architect of civil rights strategy pressing his 16 beliefs in equality for women, racial and 17 political minorities; his vision of liberty was 18 fixed and encompassed all people; his faith in 19 the Constitution led him to be a stalwart 20 defender of free speech, privacy and the rights 21 of the accused; 22 Justice Marshall designed the 23 brilliant legal strategy that outlawed racial 1 separation and successfully argued 29 out of 32 2 cases before the United States Supreme Court, 3 including Brown v. Board of Education, the 4 historic case removing the legal foundations 5 from the doctrine of segregation; 6 For nearly a quarter of a century 7 before his government service began, Thurgood 8 Marshall was the legal director of the National 9 Association for the Advancement of Colored 10 People and was a pioneering lawyer who became 11 America's most prominent civil rights attorney; 12 Through his sustained and long 13 standing commitment to the ideals and principles 14 upon which this nation was first founded, United 15 States Supreme Court Justice Thurgood Marshall 16 did so thoroughly advance that spirit of united 17 purpose and shared concern which is the unalter 18 able manifestation of our American experience; 19 NOW, THEREFORE, BE IT RESOLVED 20 that this legislative body pause in its 21 deliberation and commemorate the life and career 22 of Thurgood Marshall, Justice of the Supreme 23 Court, expressing, in turn, sincerest sorrow 1 upon the occasion of his death, and lasting 2 appreciation for his commitment and the changes 3 wrought by his career and life; and 4 BE IT FURTHER RESOLVED that a 5 copy of this resolution, suitably engrossed, be 6 transmitted to Mrs. Thurgood (Suyat) Marshall 7 and to Thurgood Marshall, Jr., and to John 8 Marshall. 9 ACTING PRESIDENT FARLEY: On the 10 resolution, Senator Galiber. 11 SENATOR GALIBER: Mr. President, 12 thank you for reading the resolution in toto. 13 There comes a time in this great 14 country of ours which all of us have or most of 15 us have a great deal of love for. Every now and 16 then, a giant steps forth in our nation, someone 17 who commands, if you will, the recognition of a 18 good American. 19 Justice Marshall is one of those 20 persons. He exemplifies what our system is all 21 about, what the potential of our system really 22 is, and Justice Marshall's life was not easy. 23 He came from a town or a state of Maryland, and 1 good stock came out of Maryland. There's the 2 Mitchell family, who fought for civil rights, 3 for issues of great concern. 4 There must be something in the 5 water there that's lacking in other places, 6 except one person. That was a justice by the 7 name of Taney, and some of you recall in your 8 history books he was the one who suggested 110 9 years prior to President Johnson designating 10 Justice Marshall as the first black to the 11 Supreme Court, he said 110 years prior to that, 12 that blacks in America had no constitutional 13 rights, they were not part of this great 14 country. So Maryland has not always been a 15 consistent place for civil rights. 16 But a strong advocate of civil 17 rights in Justice Marshall, and also Dr. Martin 18 Luther King, I think, perhaps a quote at this 19 time in history when next month we celebrate 20 Black History Week, that we take in context the 21 growth and the movement and what these great 22 people have offered to this great nation of 23 ours, and we've got to take it in the context. 1 It's not enough for some to introduce a 2 resolution on Dr. King or introduce a resolution 3 to Thurgood Marshall unless built into their 4 souls they have a commitment to this, that they 5 understand that it came about at a time, these 6 leaders of ours, when they were so sorely 7 needed. 8 Bear with me a moment. 29 years 9 after Dr. King died, and he came up at a time 10 like Thurgood Marshall came up at a time when 11 they experienced blacks not sitting in the front 12 of the bus, that lynchings took place almost on 13 a daily basis, that they hadn't -- could not sit 14 down at the counters and eat, could not drive 15 the buses, could not work the land, at a time 16 like that. 17 In our lifetime, Thurgood 18 Marshall experienced the same fate. He came up 19 as a practicing attorney. Father wanted him to 20 be a dentist, and he said, I became a lawyer 21 because my father insisted that I pay attention 22 and argue every point and have an answer for 23 every question that were asked of me. 1 He made application to a small 2 college in Maryland, law school. Turned down. 3 And revenge is sweet on occasion. Some of us 4 don't practice revenge because that's bad, takes 5 up too much time, and one of the first suits 6 that he brought after passing the bar, he sued 7 that law school and was successful in terms of 8 them entering or allowing blacks to enter law 9 school. 10 Both these great men, great 11 Americans, came up at a time when it was not 12 popular, if you will, to think in terms of being 13 part of a system. They came up at a time when 14 we were concerned about the growth of blacks in 15 America. There were some of us who argued that 16 the Constitution applied and Thurgood Marshall 17 was -- Thurgood Marshall was committed to a 18 Constitution that some of your forefathers had 19 written and did not apply to blacks in this 20 country. He said it does apply, that when we 21 say "we, the people" we really meant "we, the 22 people" and when we talked of equal opportunity 23 we're talking about equal opportunity for all, 1 and when we talk about liberty and justice and 2 fairness, we were talking about all the people. 3 This is what this great Baltimore lawyer meant 4 to us. 5 He was a giant too in his time 6 and, interestingly, he was asked the question 7 and it's all said in the resolution, he was 8 asked a very simple question and he said, 9 "Justice Marshall, what about your replacement? 10 Would you want to see another black man on the 11 Court of Appeals?" And he gave a very short, 12 cryptic and fair answer. He said, "It doesn't 13 make any difference except if that person be 14 fair and just and," he said, "my father" -- and 15 he quoted his father and grandfather quite often 16 -- "he said that black snakes bite you; white 17 snakes bite you. Still dead." And if we apply 18 that notion to what we have now, it leaves 19 something to be desired, in my best judgment. 20 Thurgood Marshall was chief 21 counsel for the NAACP, U. S. Appeals Court, the 22 nation's solicitor general, and the first black 23 to serve with background and experience in 1 racism in this country and civil rights and a 2 number of other things that we have mentioned in 3 the resolution. 4 Think about it, that here's a man 5 who had to go into the south to fight cases and 6 sit in caskets in a funeral home to avoid the Ku 7 Klux Klan from getting at him, and all these bad 8 and horrible experiences. They called him 9 "turkey" because he was poor and he was 10 somewhat arrogant, and he was a handsome man and 11 he spoke his mind, with peace of mind, rather, 12 and we were so proud of him. 13 America should be proud of this 14 man, because his work in civil rights, his work 15 with women, his work with people in general has 16 done so much to enhance this country in such a 17 short period of time. Can you imagine the 18 progress that we have made in this country when 19 we stop to consider in the 29 years of Dr. King 20 and the short life of Martin -- of Thurgood 21 Marshall, Justice of the Supreme Court. Look at 22 the growth in America during this short span of 23 time. Look at the accomplishments that have 1 happened in this short span of time in this 2 great nation of ours, with a lot of faults and a 3 few cracks, but certainly a great, great, great, 4 great country. 5 So I honor this man today as a 6 great American, for someone who has given so 7 much to us. I'm honored personally because of 8 the skin color, the skin color that I have worn 9 for over some 60 years, but more important I am 10 so proud that America had the opportunity to 11 share in the life of this great man. 12 Marshall was the only black ever 13 to serve on the nation's highest court. Justice 14 Marshall is one of the Titanics, if you will, of 15 American law, and a great grandson of a slave. 16 Justice Marshall rose to a position of greatness 17 and by winning civil rights cases that had long 18 been wrongfully denied African-Americans, and he 19 grew up in a society pervaded by a racism, but 20 he had the imagination and the courage to 21 imagine a radically different world where the 22 ideals of brotherhood and quality governance was 23 the law of the land, and Justice Marshall was 1 the foremost champion of the rights of 2 minorities to equal opportunity and affirmative 3 action that we hear so much about which has 4 taken on another context in what he really 5 meant. 6 He talked about justice, and he 7 understood that our Constitution had little 8 meaning unless its protections are extended to 9 all American citizens, to all the indigents, to 10 the death row inmates and those with politically 11 unpopular views. He was the only Supreme Court 12 Justice to have represented a defendant accused 13 of murder in the south. 14 So, Mr. Chairman, Mr. President, 15 I ask that those who are here today and those 16 who are desirous of joining with me as we 17 celebrate a great American, the loss to America, 18 the loss to a number of people, as we celebrate 19 his death and recognize what he has offered to 20 this great nation of ours in such a short span 21 of time, that he has reversed America, that he 22 has added to this great country. 23 He has given to us a different 1 perspective about basic human rights, and we in 2 this chamber argue from time to time whether 3 we're getting too tough or whether we're giving 4 up too much or whether we should go the extra 5 mile or whether we should give someone an equal 6 opportunity to participate. 7 Colleagues, we're not doing that 8 bad in America. We have a long, long way to go, 9 but if you listen very carefully as we celebrate 10 the death of Thurgood Marshall and as we 11 celebrate Dr. Martin Luther King's birthday and 12 as we celebrate Black History Week, we have made 13 giant steps in the right direction. A long way 14 to go, no question about it. 15 So I'd ask that those who are 16 desirous of doing so, join myself and Senator 17 Waldon, who is co-sponsor, prime co-sponsor of 18 this resolution, who could not be here today, to 19 join us with this resolution. But only join us, 20 do not put your name on this resolution unless 21 you feel a strong commitment to what this man 22 represented. I would rather you not put your 23 name on it if you do not have that kind of 1 commitment. 2 Thank you for your time. 3 ACTING PRESIDENT FARLEY: Senator 4 Ohrenstein. 5 SENATOR OHRENSTEIN: Mr. 6 President, I'm very pleased to rise to second 7 this resolution. 8 It's -- it's almost trite to say 9 that America has lost an enormous asset. 10 Thurgood Marshall became not just another 11 Justice of the Supreme Court. Thurgood Marshall 12 became an institution that represented so many 13 things that were important to the country that 14 it is very difficult to imagine this country 15 without him. 16 He was one of those people you 17 just relied on as being there and he was a - 18 he put a stamp on a certain part of this country 19 and the certain things which this country stood 20 for, so you expected him to be there because he, 21 in every day of his life and certainly every day 22 of his public life, reiterated and underlined 23 the things that he stood for and that he made 1 important for the United States of America. 2 There's a very interesting 3 observation one has to make about Thurgood 4 Marshall's life and his antecedents. Thurgood 5 Marshall was a revolutionary in every sense of 6 the word. He may not have fought a revolution 7 at the point of a gun or at the point of a sword 8 but he fought a revolution in words and in 9 actions and in deeds. He was at the cutting 10 edge of the civil rights revolution in this 11 country, and I don't think we should ever forget 12 that at the time that Thurgood Marshall - 13 Thurgood Marshall was active, it was, in fact, 14 during the middle of a civil rights revolution 15 in this country, because the changes that took 16 place as a result of that period of time in the 17 '50s and in the '60s, this country changed 18 fundamentally and in a revolutionary way. 19 Our new President quoted 20 President Jefferson in his inaugural address and 21 indicated that President Jefferson was a 22 revolutionary, because when you read Jefferson's 23 writings and you read his concept of what a 1 representative democracy is like, you understand 2 that here was a man who believed with all of his 3 heart and mind that this country, if it stood 4 for anything, it stood for the ability to change 5 and to learn and to adjust to new conditions and 6 new circumstances that we are met with from time 7 to time. 8 And I am not at all unabashed of 9 ranking Thurgood Marshall with Thomas Jefferson, 10 because just as Thomas Jefferson said that the 11 tree of liberty had to be watered with blood 12 every 20 years -- and that's what he said, so if 13 you want to talk about a revolutionary, there 14 was the revolutionary -- because not only did he 15 participate in the American Revolution, he 16 indicated that the American Revolution had to be 17 a constant thing, ever repeated, ever reborn, 18 and that's what Thurgood Marshall stood for. 19 He was at the front line of the 20 civil rights revolution, and that was a real 21 revolution. It was one of those 20-year 22 revolutions because that revolution was watered 23 in blood, and maybe Thurgood Marshall was not 1 out there drawing the blood, but he was there 2 and without him the blood could neither be drawn 3 nor spilled nor finally put to rest. 4 Most of us in my age group at 5 least grew up with Thurgood Marshall as a 6 symbol, both in his young manhood and his middle 7 manhood and then finally in the great, reaching 8 the great -- the greatness of being a member of 9 the Supreme Court and participating in every way 10 in shaping America. 11 Now, what is interesting to me is 12 that, as we change in this country, new people 13 come into government. New people come into 14 leadership and, when we go through these 15 changes, there is always the feeling how could 16 this particular person become a President? How 17 could that particular person become a Supreme 18 Court Justice? How could they be a United States 19 Senator? How could they be a governor? Look what 20 they did. This man is a radical or this woman 21 is a radical. This is an unreliable person. 22 This is someone who can't be counted on to 23 emphasize the verities for which this country 1 stands for, and you can go through the list, 2 whether it's the women's rights movement or the 3 civil rights movement, or the movement for -- as 4 recognizing Hispanics or Puerto Ricans or for 5 Jews or the Irish or the Italians. Every time 6 the leaders, as they are perceived and as they 7 rise from the ranks, how could you entrust the 8 future of the United States of America to people 9 like this? They're foreigners. They're aliens. 10 They don't represent what this country stands 11 for. They're not responsible. They cannot rise 12 to the mantle of leadership. 13 Well, look at the life of 14 Thurgood Marshall. Thirty years ago, he was a 15 revolutionary; 30 years ago, he was perceived as 16 someone who was close to being irresponsible. 17 How could you entrust the life of this country 18 to him? And here we are at the end of his life 19 knowing that he was a rock around which the 20 Supreme Court of the United States functioned 21 for the last 20 or so years; someone who took 22 his revolutionary principles and made them the 23 very bedrock of the United States Constitution 1 because when he was in the majority on the court 2 and then, now, when he was in the minority on 3 the court, you could count on Thurgood Marshall 4 to talk about what is important for this 5 country, not just in civil rights because that's 6 where he was an expert. But read his opinions 7 on anti-trust law or securities law or insurance 8 law. All of the esoteria with which -- and the 9 complexity which this country is made of and 10 which have to function, all of these have to 11 function together in order to continue our 12 prosperity and to continue our leadership in the 13 world and our leadership for ourselves. And 14 here was this revolutionary who grew to take his 15 principles to the very top of this nation and 16 plant them immutably into the Constitution of 17 the United States. 18 So what I take from this great 19 life is a lesson to this country that, as we 20 grow from era to era, from time to time, from 21 revolution to revolution, from change to change, 22 we have to take heed of the leaders that lead 23 these movements because they may be revolution 1 aries at the time and some people may think 2 they're going off the track and they're leading 3 this country to perdition when, in fact, they 4 are the leaders who lead this country to its 5 true self and to its fulfillment in their 6 particular time and their particular place. 7 I don't think there's any greater 8 tribute that we can pay to any man than to say 9 that he spent his life in bringing about change 10 which was needed, going that last mile to make 11 sure the change occurred, and then taking it and 12 making it part of the American way of life and 13 making America better than it was, and that's 14 what Thurgood Marshall did. 15 Finally, I simply want to say 16 this: I was in Washington, I had the privilege 17 of being in Washington last Wednesday and most 18 of us who sat there were expecting to see 19 Thurgood Marshall because he was listed as a - 20 as imparting the oath to our new vice-president, 21 Albert Gore, and it was very disappointing when, 22 without any notice, when it came to that moment 23 in time when Senator Gore was being sworn in as 1 vice-president, the name of Justice White was 2 announced instead of the name of Justice 3 Marshall. 4 We all knew that Justice Marshall 5 had not been well, but no one had any sense that 6 he was so close to leaving us, and it was a 7 great disappointment because that ceremony was 8 impressive. It was inspiring and it would have 9 been a wonderful end of a -- an unimaginably 10 important career to have seen him there. 11 So I just want to say for myself, 12 it was a very disappointing moment not to be 13 able to see him there as it would have turned 14 out in some of the last moments in his life. 15 So I agree with Joe Galiber, this 16 is the moment for sadness and disappointment 17 but, more importantly, it's a moment of 18 celebrating a very, very important life, a very 19 important life style, a very important landmark 20 in our history, and hopefully an important 21 lesson to all of us as to how great leaders are 22 born, how they become great leaders and how they 23 finally manage to lead not only their own 1 causes, but the greatest cause of all, which is 2 the greatness and the growth of this great 3 country. 4 ACTING PRESIDENT FARLEY: Senator 5 Marchi. 6 SENATOR MARCHI: Mr. President, 7 it's certainly appropriate and fitting that this 8 resolution be before us and it has great signif 9 icance. The road to recognition of human 10 dignity is a long and difficult one. I think 11 we're indebted to Senator Paterson at one point 12 who pointed out the presence, yes, in the 13 Constitution of the United States of the 14 vestigial remnant that is not applicable. 15 Thomas Jefferson himself was a 16 slave owner, but already he felt that -- that 17 this was not the right way to go. As a matter 18 of fact, when he developed his Articles of 19 Confederation and the Northwest Ordinance he 20 expressly ruled it out. He authored it and did 21 not want that as a part of the Northwest 22 Ordinance which led to the development of five 23 states north of the Ohio River, and it was by 1 fitting false jumps and starts that we reached 2 the time of the Civil War, the Emancipation 3 Proclamation, and the adoption of the Thir 4 teenth, Fourteenth and Fifteenth Amendments. 5 But still it was an enormous 6 territory to travel and, indeed, I think the 7 contribution of Thurgood Marshall and Dr. King 8 was not to structure a brutal reaction to all 9 this, but to win the hearts and minds of the men 10 and women of America and the echo that has 11 resounded around the world and in this that they 12 were eminently successful because these were the 13 efforts that were crowned with success. 14 Not that this was the end of the 15 road, but it established the premises upon which 16 a society could, in an orderly way, in a very 17 happy way really, interact with each other on 18 the basis of full acceptance and respect for the 19 dignity of every member of the human family. 20 And this was a -- this was a -- not only a legal 21 achievement, something that went into the 22 Constitution. 23 England has no constitution at 1 all. They don't have a supreme court, but it 2 grew out of the customs and usages of the people 3 and they too have a very fine open society. 4 But this -- this went to the root 5 of the spiritual, the spiritual -- spiritual 6 heritage of our country, and it became part of 7 our very being, and hopefully this is the path 8 that will also lead us into implementing that 9 respect that we have for every member of 10 humanity, and with that must also go a concern 11 for that person's existence, for his happiness 12 and her happiness which contributes really. It 13 helps everyone. It helps the one who -- who 14 recognizes this as much as the one who receives 15 this recognition. 16 So we all benefit. We all 17 benefit by the prodigious monumental efforts of 18 Thurgood Marshall and Dr. King. We all benefit 19 by it, and it establishes an even higher plateau 20 and a more auspicious one notwithstanding the 21 flaws that exist in a human society, but as we 22 lift our sights, as we lift those sights, it 23 gives us a better vision of what can be and will 1 be, if we want it to be. 2 ACTING PRESIDENT FARLEY: Senator 3 Galiber, is your resolution open for other 4 people? 5 SENATOR GALIBER: Oh, definitely. 6 ACTING PRESIDENT FARLEY: No, 7 they're coming up to the desk. The resolution 8 is open for anybody who wishes to co-sponsor. 9 Senator Daly -- raise your hand 10 or let the desk know if you want to be on it. 11 Senator Daly. 12 SENATOR DALY: I think it's 13 appropriate that we place in the record today 14 the words of a peer of Justice Marshall. 15 Justice Sandra Day O'Connor described Justice 16 Marshall as "a man who sees the world exactly as 17 it is and pushes on to make it what it can 18 become." And seldom have I heard one sentence 19 so completely and so admiringly describe an 20 individual, and I thought it would be 21 appropriate if these words were interred in the 22 document that will preserve his memory and 23 glorify his life. 1 ACTING PRESIDENT FARLEY: Senator 2 Dollinger, and then Senator Paterson. 3 SENATOR DOLLINGER: Mr. 4 President, I rise to just focus on one incident 5 that I think might provide a little guidance and 6 I hope provide some guidance for the future of 7 this chamber. 8 One of the episodes that Senator 9 Galiber mentioned was the advocacy of Justice 10 Marshall in the Brown v. Board of Education 11 case, and I think it's important that we look 12 back on what was at stake in that case and what 13 role he played in it. 14 For about 70 years before it, 15 this country had lived under the rule of Plessy 16 v. Ferguson which said that it was O.K. under 17 the Constitution to have a separate but equal 18 system in which we treated people differently, 19 but our Constitution did not compel everyone in 20 this country to work together, to live together 21 and to be educated together. 22 So the hurdle that he faced in 23 Brown v. Board of Education was a sizeable one. 1 Yet he performed his task admirably and, in 2 fact, convinced the entire United States Supreme 3 Court to strike down that rule of law and to 4 usher in a new era in which "separate but equal" 5 would no longer be a part. 6 Those of you who were alive then 7 -- I was just a young child -- I'm sure no 8 doubt recall what transpired after that. A 9 veritable constitutional crisis when certain 10 states decided that they were immune from the 11 new nationwide principle of integration of 12 opportunity. 13 Required President Eisenhower to 14 send troops into Arkansas. It required confron 15 tations between governors who were segregation 16 ists and a president and a government, a 17 national government, who were committed to the 18 principles of equality. 19 Now, as we look back 30 years 20 later, it seems that that's a constant struggle 21 that we have achieved a sense of integration, a 22 sense of our community of purpose with all the 23 people in this country. Yet, I think it's 1 important to recognize that the dream espoused 2 in Brown v. Board of Education, one that 3 Thurgood Marshall created, is not a reality 4 yet. 5 I concur with my colleague, 6 Senator Galiber, we are not down the road yet. 7 We can take some consolation in knowing that 8 those who took the first big step have made it 9 much easier for us who take the smaller step to 10 follow in their path, but we would do Thurgood 11 Marshall a disservice if we didn't commit our 12 selves in this state to making sure that the 13 principle of equal opportunity in education for 14 all our children is a part of our future. We in 15 this body hold the power to make that happen. 16 We owe it to Thurgood Marshall's legacy to make 17 sure that it does. 18 ACTING PRESIDENT FARLEY: Senator 19 Paterson. 20 SENATOR PATERSON: Thank you, Mr. 21 President. 22 Thurgood Marshall was not an 23 outstanding African-American Justice of the 1 Supreme Court. He was an outstanding Justice of 2 the Supreme Court, and I think that that rang 3 pretty clear from the remarks that Senator Daly 4 and Senator Marchi who pointed out that we are 5 all indebted to Justice Marshall, that the 6 struggles that Justice Marshall endured in his 7 legal career and then as a Justice of the 8 Supreme Court are symbolic of our struggle as 9 Americans to receive equality in justice. 10 Certainly when Senator Ohrenstein 11 pointed out the other areas of law that Justice 12 Marshall made great inroads in, the areas of 13 anti-trust law, the areas of securities law and 14 I was thinking of the decisions he made on 15 patents, we recognize this great talent. 16 But at the same time Justice 17 Marshall is a symbol; Justice Marshall was the 18 grandson of a slave. Well, our President 19 Benjamin Harrison was the grandson of our 20 President William Henry Harrison. Our President 21 John Quincy Adams was the son of President John 22 Adams, but no one in the Marshall family would 23 ever have had the opportunity to serve America 1 as Justice Marshall did, really by an accident 2 of birth, and so when we celebrate the career of 3 Justice Thurgood Marshall, we are also 4 celebrating those African-Americans, both the 5 living and the dead, who struggled throughout 6 the 19th and 20th centuries to build a viable 7 national movement that was aimed in the 8 direction of receiving economic, political and 9 social justice. 10 And so Justice Marshall is really 11 symbolic of many whose names we don't know who, 12 on the lower frequencies, offered America the 13 same opportunities for freedom and justice that 14 Justice Marshall was able to write in his 15 decisions, and when we think of Justice 16 Marshall's grandparents who were slaves, we 17 think of the Supreme Court decision of the Dred 18 Scott case in 1857. 19 This was the case that ruled, 20 some believed, that there could be slavery north 21 of the 36th parallel, and so that the Kansas 22 Nebraska Act and also the compromise of 1850 23 were valid, but actually the Dred Scott case did 1 not rule on that particular issue. That issue 2 was rendered by a Supreme Court verdict of 1852 3 in the case of Spada v. Graham. 4 The Dred Scott decision ruled 5 that Dred Scott, since he was considered to be a 6 slave and the property of other parties, did not 7 have the right to sue in a national court case 8 before the United States Supreme Court and so, 9 what we learn is that, when Justice Marshall was 10 growing up and he talked to his grandparents, 11 they couldn't talk about the institution of the 12 railroad or the greater than ever economic 13 development in the United States in the late 14 19th Century. All they could talk to him was 15 about herding the fields and picking cotton and 16 all of those jobs that were incumbent upon 17 slaves in this country. 18 So when we look at how far we've 19 come, we recognize that Justice Marshall's 20 decisions really are indemic of a problem that 21 this country continues to have and that is 22 simply that ever since the Brown v. Board of 23 Education decision of 1954, we have not been 1 able to create the type of economic and 2 political and social justice that we would like 3 to have despite the passage of the 1964 Civil 4 Rights Act or the -- or the 1965 Voting Rights 5 Act, and that those such as Justice Marshall are 6 really something that we as Americans have to 7 consider to be of -- of a valueless proportion 8 to our development as a country, and when you 9 pick up the newspaper, as I did last week and 10 read that Justice Marshall's predecessor voted 11 to abolish a 19... 1876 civil rights decision 12 that would have protected clinics that provide 13 abortions from the type of pressure and the type 14 of political organizing for which they have been 15 victim of, we recognize that maybe we shouldn't 16 be celebrating the passing of Justice Marshall, 17 but should be very sad. 18 So we have to read that Justice 19 Marshall's predecessor rendered a decision in a 20 case where the Reagan/Bush Justice Department 21 sued a city in Alabama because an African 22 American city councilman could not receive the 23 powers that were incumbent upon the office at 1 the time that this council member was a 2 candidate for office because the board of 3 governors of this city reassigned and realigned 4 the actual political powers that this office 5 conveyed, we recognize that in a 7 to 2 decision 6 in which the Justice Department prevailed, that 7 unfortunately Justice Marshall's predecessor 8 voted with Justice Scalia to delay what would be 9 equality in this country right now. 10 So I think that we certainly are 11 -- should pay a great debt of gratitude to 12 Senator Galiber and Senator Waldon who could not 13 be here today for having the foresight to 14 celebrate this time in American history which is 15 certainly one that we would want to reflect as 16 the passage of a great era in the United States 17 Supreme Court and the passing of a great man. 18 I'm only sorry that the same 19 foresight did not exist when Americans opposed 20 the nomination of Justice Marshall back in April 21 of 1967, not because they thought that his 22 decisions would be too liberal, not because they 23 disagreed with an ideological point of view that 1 Justice Marshall had, but because Justice 2 Marshall looked a little bit different than 3 those who sat on the court before him. 4 Through his effort and through 5 the efforts of President Johnson who nominated 6 him and all of those who spoke on this 7 resolution today, certainly he would be 8 remembered a lot more fondly by all Americans 9 than he was thought of when he was a nominee to 10 the Supreme Court. 11 ACTING PRESIDENT FARLEY: On the 12 resolution. Senator Nolan. Would you care to 13 speak as to the resolution? 14 SENATOR NOLAN: Like to speak 15 briefly to the resolution. It's a tough act to 16 follow Senator Paterson, Senator Dollinger, 17 Senator Marchi and so many of my colleagues. 18 But truly I think a lot of us 19 here realize that maybe the single biggest issue 20 facing this country over the next 10 to 20 years 21 is the whole issue of race relationships in this 22 country and, you know, we have certainly come a 23 long way since President Lincoln enunciated the 1 Emancipation Proclamation, since many things 2 that have happened over the years and certainly 3 the Brown v. Board of Education decision where 4 Thurgood Marshall so ably represented the 5 plaintiff and, as I say, we still have an awful 6 long way to go, but Thurgood Marshall certainly 7 was one of the people in this country that has 8 helped move our process forward so considerably. 9 When we think of the time that 10 Thurgood Marshall grew up, where when he wanted 11 to -- a brilliant student in college, when he 12 tried to enter the University of Maryland, was 13 turned down on the basis that -- of his race, 14 and who later sued, by the way, the University 15 of Maryland in order to allow minorities to be 16 able to enroll there, we look at his career, and 17 he certainly is one of the great human beings 18 and one of the great people in the history of 19 this country, not black or white or Hispanic or 20 whatever, but one of the great human beings, as 21 Senator Paterson talked about and Senator 22 Galiber, and it was the fact that he was an 23 African-American serving on the Supreme Court. 1 He was a great Supreme Court Justice. 2 He, very interesting, many of his 3 early decisions, when he was dissenting, later 4 became the majority opinions of that court. 5 I think he's certainly a man that 6 we all can admire very, very much, and certainly 7 it was a sad day when health necessitated that 8 he step down from the court. 9 He certainly left a great legacy. 10 He left a legacy of great intellect, great 11 compassion as a human being. I thought it was 12 very interesting that some people thought, in 13 his later years, he was a very taciturn, very 14 stern individual, but yet when I read stories 15 about what Judge Brennan said about him, that he 16 made that outward exterior, that he was one of 17 the great raconteurs and great storytellers that 18 he's ever met, a person who could weave stories 19 about his youth, his growing up, and so on, to 20 everyday situations and equate them to everyday 21 situations that happen in our lives, and by 22 telling a lot of these stories and many of them 23 humorous, and so on, he was able to make points 1 to people that might not easily bve recognized 2 if you were going in a confrontation or 3 one-on-one kind of situation. 4 A. So I am very happy and pleased to be able to 5 stand up here today and second this resolution. 6 Thank you, Mr. Chairman. 7 ACTING PRESIDENT FARLEY: On the 8 resolution, all in favor say aye. 9 (Response of "Aye.") 10 Those opposed nay. 11 (There was no response.) 12 The resolution is unanimously 13 adopted. 14 Senator Stachowski. 15 SENATOR STACHOWSKI: When we did 16 the package of resolutions, I was remiss in not 17 asking if anyone else besides on behalf of the 18 western New York guys, who weren't on, asked me 19 to put them on Resolution Number 258, which is 20 another Bills resolution - 21 SENATOR CONNOR: Another one? 22 SENATOR STACHOWSKI: Yes; this one 23 is marking the historic fact that the Bills are 1 going to the third -- three straight titles, the 2 only team in the history of the league that are 3 going to the Super Bowl the third straight 4 title, and anyone else that would like to get on 5 that, I'd like to open that up for them. 6 ACTING PRESIDENT FARLEY: Anyone 7 else that would like to get on New York's team 8 may join the resolution. 9 SENATOR GOLD: Mr. President. 10 ACTING PRESIDENT FARLEY: Yes, 11 Senator Gold. 12 SENATOR GOLD: Yes, if the 13 individuals who are raising their hands now 14 would also like to be on my victory resolution 15 for the Bills next week - 16 SENATOR PRESENT: Mr. President. 17 ACTING PRESIDENT FARLEY: Senator 18 Present. 19 SENATOR PRESENT: Can we return to 20 reports of standing committees? 21 ACTING PRESIDENT FARLEY: Yes, we 22 may. Secretary will return to the reports of 23 standing committees. 1 THE SECRETARY: Senator Maltese, 2 from the Committee on Crime Victims, Crime and 3 Correction, reports the following bills directly 4 for third reading: 5 Senate Bill Number 128, by 6 Senator Padavan, an act to amend the Executive 7 Law; and ALSO Senate Bill Number 577, by Senator 8 LaValle, an act to amend the Correction Law. 9 Senator Levy, from the Committee 10 on Transportation, reports the following bills 11 directly for third reading: 12 Senate Bill Number 67, by Senator 13 Levy, requiring the Department of Motor Vehicles 14 to inform the public of problems; 15 Senate Bill Number 70, by Senator 16 Levy, an act to amend the Vehicle and Traffic 17 Law, in relation to penalties; 18 Senate Bill Number 192, by 19 Senator Levy and others, an act to amend the 20 Highway Law, in relation to making the cost of 21 structural integrity evaluations; 22 Senate Bill Number 232, by 23 Senator Tully and others, an act to amend 1 the Vehicle and Traffic Law and the State 2 Finance Law. 3 All bills reported directly for 4 third reading. 5 ACTING PRESIDENT FARLEY: Without 6 objection, all bills reported directly to third 7 reading. 8 Senator Present. 9 SENATOR PRESENT: Mr. President, 10 there being no further business, I move we 11 adjourn until Monday, February 3rd, at 2:30 12 p.m., intervening days to be legislative days. 13 ACTING PRESIDENT FARLEY: The 14 Senate will stand adjourned until Monday at 2:30 15 p.m., prompt, intervening days to be legislative 16 days. 17 (Whereupon at 4:48 p.m., the 18 Senate adjourned.) 19 20 21 22 23