Monday, February 22, 1993

1 2 3 4 ALBANY, NEW YORK 5 February 22, 1993 6 3:01 p.m. 7 8 9 REGULAR SESSION 10 11 12 13 SENATOR HUGH T. FARLEY, Acting President 14 STEPHEN F. SLOAN, Secretary 15 16 17 18 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. Senators will find 4 their seats. 5 If you will please rise with me 6 for the Pledge of Allegiance. 7 (The assemblage repeated the 8 Pledge of Allegiance to the Flag. ) 9 Today we're pleased to have the 10 Reverend Robert Bey, Pastor of the New Hope 11 A.M.E. Church of Brooklyn, New York, Senator 12 Markowitz'. 13 Reverend Bey. 14 REVEREND ROBERT BEY: Gracious 15 Master and my God, assist me to proclaim, to 16 cover throughout this universe which is of Thy 17 keeping. Master, we ask that You will come into 18 this Senate today. Speak to the hearts and the 19 minds that the wisdom and knowledge that be 20 portrayed here in this session will be as a 21 light to the lamp to the pathway of many. Let 22 them do not in muttering and mumbling but speak 23 out in the great devoutness of a surety and 1 solidarity to the purpose of which they have 2 taken their oath. 3 Lord, be with them, guide them, 4 keep them under Your protection. Then Lord, 5 remember as they sit in judgment today of many 6 bills that need to be passed, many bills that 7 need overhauling, many bills that need up 8 lifting, build a light in them that it will 9 spread throughout the universe casting no 10 dispersion upon none. Help them to remember 11 that when and why they're working to remember 12 the health care workers of this state of New 13 York, for Lord, I am one of those persons who 14 stands on the threshold of many. Remember, O 15 Lord, their families as they go forth. Unite 16 them in the spirit and truth and in grace. Let 17 their endowment be empowered from on high, not 18 from within themselves, but, O Lord, let them 19 lift up the countenance from which Thy light 20 shall shine; and then give them peace in this, 21 our prayer. Amen. 22 ACTING PRESIDENT FARLEY: Thank 23 you, Reverend Bey. 1 The Secretary will begin by 2 reading the Journal. 3 THE SECRETARY: In Senate, 4 Friday, February 19th. The Senate met pursuant 5 to adjournment, Senator Bruno in the Chair upon 6 designation of the Temporary President. The 7 Journal of Thursday, February 18th, was read and 8 approved. On motion, Senate adjourned. 9 ACTING PRESIDENT FARLEY: Hearing 10 no objection, the Journal will stand approved as 11 read. 12 The order of business: 13 Presentation of petitions. 14 Messages from the Assembly. 15 Messages from the Governor. 16 Reports of standing committees. 17 Secretary will read a report of a 18 standing committee. 19 THE SECRETARY: Senator Goodman, 20 from the Committee on Investigations, Taxation 21 and Government Operations, reports the following 22 bill directly for third reading: Senate Bill 23 Number 2185, by Senator Volker, an act to amend 1 Chapter 3 of the Laws of 1993, amending the Tax 2 Law, relating to the imposition of sales and use 3 taxes by the county of Erie; reported directly 4 for third reading. 5 ACTING PRESIDENT FARLEY: Without 6 objection, it's reported directly to third 7 reading. 8 Reports of select committees. 9 Communications and reports from 10 state officers. 11 Motions and resolutions. 12 Senator Mega. 13 SENATOR MEGA: Senator, Mr. 14 President, on page 5, I offer the following 15 amendments to Calendar Number 6, Senate Print 16 Number 177, and ask that said bill retain its 17 place on Third Reading Calendar. 18 ACTING PRESIDENT FARLEY: 19 Amendments received; the bill will retain its 20 place. 21 SENATOR MEGA: Senator Holland, 22 on page 5, I offer the following amendments to 23 Calendar Number 37, Senate Print 463, and ask 1 that said bill retain its place on the Third 2 Reading Calendar. 3 ACTING PRESIDENT FARLEY: Without 4 objection. 5 SENATOR MEGA: Behalf of Senator 6 Tully, page 5, I offer the following amendments 7 to Calendar Number 30, Senate Print Number 232, 8 and ask that said bill retain its place on Third 9 Reading Calendar. 10 ACTING PRESIDENT FARLEY: Without 11 objection, bill will retain its place. 12 SENATOR MEGA: On behalf of 13 Senator Saland, I move the following bill be 14 discharged from its respective committee and be 15 recommitted with instructions to strike the 16 enacting clause: Senate Print Number 1409. 17 ACTING PRESIDENT FARLEY: Without 18 objection. 19 Do we have any other motions on 20 the floor? 21 Senator Present, we have a 22 quorum. We're ready to go. What's your 23 pleasure. 1 SENATOR PRESENT: Let us take up 2 the non-controversial calendar. 3 ACTING PRESIDENT FARLEY: 4 Non-controversial, Secretary will read. 5 THE SECRETARY: On page 5, 6 Calendar Number 36, by Senator Cook, Senate Bill 7 Number 573, an act to amend the Lien Law, in 8 relation to fees for filing a building loan 9 contract. 10 ACTING PRESIDENT FARLEY: There's 11 a local fiscal impact note here at the desk. 12 You can read the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT FARLEY: Call 16 the roll. 17 (The Secretary called the roll. ) 18 THE SECRETARY: Ayes 35. 19 ACTING PRESIDENT FARLEY: That 20 bill is passed. 21 THE SECRETARY: Calendar Number 22 43, by Senator Stafford. 23 SENATOR GOLD: Lay aside, please. 1 ACTING PRESIDENT FARLEY: Lay 2 that bill aside. 3 THE SECRETARY: Calendar Number 4 58, by Senator LaValle, Senate Bill Number 241, 5 authorizing the approval of certain building aid 6 for the William Floyd Union Free School 7 District. 8 ACTING PRESIDENT FARLEY: There's 9 a local fiscal impact note here at the desk. 10 You can read 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 35. 17 ACTING PRESIDENT FARLEY: That 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 59, by Senator Hannon, Senate Bill Number 279, 21 authorize payments in lieu of taxes by the 22 county of Nassau. 23 ACTING PRESIDENT FARLEY: Read 1 the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT FARLEY: Call 5 the roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 35. 8 ACTING PRESIDENT FARLEY: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 60, by Senator Saland, Senate Bill Number 943, 12 an act to amend the Education Law, in relation 13 to requiring boards of education to provide 14 transportation for all children. 15 ACTING PRESIDENT FARLEY: There's 16 a local fiscal impact note here at the desk. 17 You can read the last section. 18 THE SECRETARY: Section 2. This 19 act shall take effect immediately. 20 ACTING PRESIDENT FARLEY: Call 21 the roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes - 1 ACTING PRESIDENT FARLEY: Lay 2 that bill aside temporarily. Lay that aside 3 temporarily. 4 THE SECRETARY: Calendar Number 5 61, by Senator Hannon, Senate Bill Number 280, 6 an act to amend the Real Property Tax Law. 7 SENATOR PRESENT: Lay aside. 8 ACTING PRESIDENT FARLEY: Lay 9 that bill aside. 10 THE SECRETARY: Calendar Number 11 62, by Senator Levy, Senate Bill Number 80, an 12 act in relation to requiring the Commissioner of 13 Transportation to conduct a review. 14 SENATOR GOLD: Lay aside. 15 ACTING PRESIDENT FARLEY: Lay 16 that bill aside. 17 THE SECRETARY: Calendar Number 18 63, by Senator Levy, Senate Bill Number 191, 19 Vehicle and Traffic Law, in relation to criminal 20 history checks on school bus attendance. 21 SENATOR GOLD: Lay it aside, 22 please. 23 ACTING PRESIDENT FARLEY: Lay 1 that bill aside. 2 THE SECRETARY: Calendar Number 3 65, by Senator Padavan, Senate Bill Number 546, 4 Criminal Procedure Law, in relation to 5 permitting the people to appeal an unduly 6 lenient sentence. 7 SENATOR GOLD: Lay aside, please. 8 ACTING PRESIDENT FARLEY: Lay 9 that bill aside also. 10 THE SECRETARY: Calendar Number 11 66, by Senator Skelos, Senate Bill Number 564, 12 an act to amend the Penal Law. 13 ACTING PRESIDENT FARLEY: Read 14 the last section. 15 SENATOR GOLD: Lay aside. 16 ACTING PRESIDENT FARLEY: Lay 17 that one aside. 18 THE SECRETARY: Calendar Number 19 67, by Senator Volker, Senate Bill Number 583, 20 Criminal Procedure Law, in relation to the 21 period of time which must be excluded. 22 SENATOR GOLD: Last section. 23 ACTING PRESIDENT FARLEY: Read 1 the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT FARLEY: Call 5 the roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 39. 8 ACTING PRESIDENT FARLEY: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 68, by Senator Levy, Senate Bill Number 648, an 12 act to amend the Penal Law, in relation to the 13 offense of assault in the second degree. 14 ACTING PRESIDENT FARLEY: Read 15 the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT FARLEY: Call 19 the roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 40, nays 1; 22 Senator DeFrancisco in the negative. 23 ACTING PRESIDENT FARLEY: The 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 69, by Senator Tully, Senate Bill Number 776, an 4 act to amend the Penal Law. 5 SENATOR GOLD: Lay aside for 6 Senator Halperin. 7 ACTING PRESIDENT FARLEY: Lay it 8 aside. 9 THE SECRETARY: Calendar Number 10 70, by Senator Tully, Senate Bill Number 779, an 11 act to amend the Civil Practice Law and Rules. 12 ACTING PRESIDENT FARLEY: Read 13 the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 ACTING PRESIDENT FARLEY: Call 17 the roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 40, nays 20 one; Senator Wright recorded in the negative. 21 ACTING PRESIDENT FARLEY: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 1 71, by Senator Volker, Senate Bill Number 931, 2 an act to amend the Penal Law, in relation to 3 increasing penalties for crimes. 4 ACTING PRESIDENT FARLEY: Read 5 the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT FARLEY: Call 9 the roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 41. 12 ACTING PRESIDENT FARLEY: The 13 bill is passed. 14 THE SECRETARY: Calendar Number 15 72, by Senator Skelos, Senate Bill Number 949, 16 Civil Practice Law and Rules and the Public 17 Health Law. 18 ACTING PRESIDENT FARLEY: Read 19 the last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 ACTING PRESIDENT FARLEY: Call 23 the roll. 1 (The Secretary called the roll. ) 2 THE SECRETARY: Ayes 41. 3 ACTING PRESIDENT FARLEY: That 4 bill is passed. 5 THE SECRETARY: Calendar Number 6 73, by Senator Volker, Senate Bill Number 919-A, 7 an act to amend the Penal Law, in relation to 8 resisting arrest. 9 SENATOR GOLD: Lay it aside. 10 ACTING PRESIDENT FARLEY: Lay 11 that bill aside. 12 THE SECRETARY: Calendar Number 13 74, by Senator Spano, Senate Bill Number 1006, 14 Mental Hygiene Law. 15 ACTING PRESIDENT FARLEY: Read 16 the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT FARLEY: Call 20 the roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 41. 23 ACTING PRESIDENT FARLEY: That 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 75, by Senator Spano, Senate Bill Number 1009, 4 an act to amend the Mental Hygiene Law, in 5 relation to identity disclosure of individuals. 6 ACTING PRESIDENT FARLEY: Read 7 the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT FARLEY: Call 11 the roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 41. 14 ACTING PRESIDENT FARLEY: The 15 bill is passed. The bill is passed. 16 Senator Present, that concludes 17 the non-controversial. 18 SENATOR PRESENT: Mr. President, 19 we call up Calendar 62. 20 ACTING PRESIDENT FARLEY: 21 Secretary will read Calendar Number 62. 22 SENATOR GOLD: Explanation. 23 THE SECRETARY: Calendar Number 1 62, by Senator Levy, Senate Bill Number 80, an 2 act in relation to requiring the Commissioner of 3 Transportation to conduct a review of transpor 4 tation of disabled children. 5 ACTING PRESIDENT FARLEY: Read 6 the last section. 7 SENATOR GOLD: I asked an 8 explanation. 9 ACTING PRESIDENT FARLEY: I 10 didn't hear you. 11 SENATOR GOLD: I apologize. 12 SENATOR PRESENT: Lay it aside, 13 please. 14 ACTING PRESIDENT FARLEY: Lay 15 that bill aside. 16 SENATOR PRESENT: Mr. President. 17 ACTING PRESIDENT FARLEY: Would 18 you like to call up Number 60, Senator Present. 19 SENATOR PRESENT: Please call up 20 Calendar Number 60. 21 ACTING PRESIDENT FARLEY: 22 Secretary will please read Calendar 60. 23 THE SECRETARY: Calendar Number 1 60, by Senator Saland, an act to amend the 2 Education Law, in relation to requiring boards 3 of education to provide transportation for all 4 children. 5 ACTING PRESIDENT FARLEY: There's 6 a local fiscal impact note here at the desk. 7 You can read the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT FARLEY: Call 11 the roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Those recorded in 14 the negative on Calendar Number 60 are Senators 15 Daly, Holland, Jones and Kuhl. Ayes 40, nays 16 4. 17 ACTING PRESIDENT FARLEY: The 18 bill is passed. 19 SENATOR PRESENT: Mr. President. 20 ACTING PRESIDENT FARLEY: Senator 21 Present. 22 SENATOR PRESENT: Can you call up 23 Calendar 65, please. 1 ACTING PRESIDENT FARLEY: 2 Secretary will read Calendar Number 65, Senator 3 Padavan's bill. 4 THE SECRETARY: Calendar Number 5 65, by Senator Padavan, Senate Bill Number 546, 6 an act to amend the Criminal Procedure Law, in 7 relation to permitting the people to appeal an 8 unduly lenient sentence. 9 SENATOR GOLD: Explanation. 10 ACTING PRESIDENT FARLEY: 11 Explanation has been asked for. Senator 12 Padavan. 13 SENATOR PADAVAN: Mr. President, 14 currently the law allows that a defendant have 15 the right to appeal a sentence which he or she 16 feels is unduly harsh and that right, of course, 17 is important and it's an appellate court right 18 and we have no quarrel with that at all. 19 However, currently the prosecut 20 or, the people's attorney, has only the right to 21 appeal a sentence on a matter of technical 22 violation of law or misapplication of law, and 23 what this bill simply does is provides an 1 opportunity for the prosecutor to also be able 2 to challenge or question the sentencing judge's 3 decision based on whether or not the penalty was 4 harsh enough. 5 ACTING PRESIDENT FARLEY: Read 6 the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT FARLEY: Call 10 the roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 65 are Senators 14 DeFrancisco, Dollinger, Espada, Galiber, Gold, 15 Marchi, Montgomery, Ohrenstein and Smith. Ayes 16 35, nays 9. 17 ACTING PRESIDENT FARLEY: That 18 bill is passed. 19 SENATOR PRESENT: Mr. President, 20 Calendar 69, please. 21 ACTING PRESIDENT FARLEY: 22 Secretary will read Calendar 69, by Senator 23 Tully. 1 THE SECRETARY: Calendar Number 2 69, by Senator Tully, Senate Bill Number 776, an 3 act to amend the Penal Law. 4 SENATOR GOLD: Explanation. 5 ACTING PRESIDENT FARLEY: 6 Explanation has been asked, for Senator Tully. 7 SENATOR TULLY: Yes, Mr. 8 President. This bill deals with individual 9 defendants who are convicted of multiple 10 unrelated felonies and it removes the current 11 cap on sentencing in regard to them. 12 ACTING PRESIDENT FARLEY: Read 13 the last section. 14 SENATOR GALIBER: No, no, hold 15 on, Senator. 16 ACTING PRESIDENT FARLEY: Senator 17 Galiber. 18 SENATOR GALIBER: If you will 19 yield for a question. 20 SENATOR TULLY: Yes, Senator. 21 SENATOR GALIBER: And I don't 22 usually do this. Why do we need this bill? Do 23 we recognize that on consecutive sentences we 1 can run these things -- I voted against it in 2 committee -- we can run these things so far, a 3 hundred to a hundred a hundred. I don't think 4 -- no one's complaining about the amount of 5 time people get. 6 Some of us are concerned that 7 they have so much time that they're -- some of 8 them 60, 70, 80 years old in jail, no risk to 9 anybody. We're paying 24-, $30,000 a year, some 10 so old they don't even want to appear before a 11 parole board, because even if they were to let 12 them out there's no family out there. They 13 don't want to be in the streets. 14 And then we come with a piece of 15 legislation saying that's not far enough. We 16 want to go a little further. And nobody except 17 how it sounds, you know, every now and then we 18 have one of these heinous crimes which you and I 19 have no problem with sending he or she away who 20 commits this crime for the rest of their lives, 21 hopefully never, never to return to society. 22 But you have a situation here 23 where you're putting -- taking off a cap on the 1 consecutive. I don't know why do we really need 2 it, and I ask that question from you because we 3 talk about things from time to time. Why do we 4 need the thing? 5 SENATOR TULLY: That's a good 6 question, Senator Galiber. I'm pleased to 7 explain it. 8 I'm sure you recall back in 1983 9 in my community in the village of Westbury, 10 there was that famous Westbury diner incident 11 where a gang of bad guys, if you will, went into 12 the diner, and they committed every type of 13 crime from rape to robbery to assault on a 14 number of people, and there were frequently 15 situations where individual defendants were 16 guilty of several very, very serious felonies. 17 The law as it presently stands in 18 a situation like that would allow that 19 individual to be sentenced to a maximum if he 20 had an underlying "A" felony to a maximum of 35 21 years. The law as it currently stands is at 20, 22 but if there was an underlying Class A, it could 23 be 35 years. 1 In that particular type of 2 situation, there's no question in my mind or the 3 mind of any right-thinking individual that that 4 type of person should not be allowed on the 5 streets and if they are found guilty, there 6 should be an opportunity to keep them 7 incarcerated for as long as possible. 8 This statute allows that to take 9 effect, and it's not something that's 10 inconsequential in today's day and age when you 11 see people who are minding their own business, 12 if you will, sleeping on a subway and having 13 groups come upon them and assault them, rob 14 them, set them on fire and perhaps even kill 15 them. 16 If they don't kill them but if 17 they do all the other things, then they're 18 subject to the current cap. I don't think that 19 should be the case. This bill provides an 20 opportunity for full maximum sentencing for the 21 rest of their viable lives to take place, but 22 leaves an opening, an opening, for the 23 sentencing judge, if he determines based on the 1 material that's before him, that this should not 2 take place, then he has the ability to bring it 3 back to what it is today. 4 SENATOR GALIBER: Yield for one 5 other question. 6 SENATOR TULLY: Yes, Senator. 7 SENATOR GALIBER: At the present 8 time, you know, does that judge, the sentencing 9 judge, have the opportunity to decide whether 10 the sentence runs concurrent or whether it runs 11 consecutive? 12 SENATOR TULLY: He does. 13 SENATOR GALIBER: He does. He 14 does have that discretion? 15 SENATOR TULLY: Yes. 16 SENATOR GALIBER: In the real 17 world, there is something you have let us know 18 about, and we all know about it. It has that 19 sense of notoriety. There are some things that 20 have happened in our community, which is part of 21 your total neighborhood but our community, and I 22 feel the same way about it but it's a knee-jerk 23 reaction to really say we're going to give them 1 life in prison without parole. 2 You know, we have can't even get 3 that off in terms of how we deal with capital 4 punishment, but yet because we have a few 5 isolated situations -- horrible isolated 6 situations -- we are now taking away from the 7 judge even more discretion. 8 Voted no against Senator 9 Padavan's bill just before because what we're 10 doing is at the present time what we've 11 historically done here in the last 10 to 12 12 years that we've taken every discretion almost 13 away from sitting judges in terms of sentenc 14 ing. They become automatons up there. They 15 stand there or sit there and they are there at 16 the will of the prosecutor. If the prosecutor 17 doesn't go along with so and so based on what 18 we've passed, the judge can't do anything about 19 it. 20 But here we have a situation, 21 we're taking a little bit away again where if 22 the judge wants to run the sentences concurrent 23 ly, he can do it. That's the other branch of 1 government that we talk about, the three 2 branches. And why do we have to have and that's 3 a rhetorical because you've explained, why would 4 we want to add a cap on to take someone out of 5 society because forever and ever and ever and 6 not leave it up to the judge to make that 7 discretion or decision as to whether or not a 8 person -- and I think judges are as sensitized 9 to things that are happening in our community, 10 perhaps more so than we are or equally as we are 11 and in the course of their sentence, they 12 certainly can do just that. 13 So it's difficult to talk to you 14 about it because it won't change anything, but 15 we keep doing this, Senator. We do a little bit 16 with Senator Padavan's bill and a little bit 17 with your bill and a little bit of mandate over 18 here, a little bit of shovin' over here some 19 place, and we're really not solving anything. 20 All we're really doing is packing and packing 21 and packing our penal institutions to the point 22 where we're going to have to, some day in the 23 very near future, Senator, decide whether or not 1 we want to educate our youngsters or keep people 2 in prison, and we're getting pretty close to 3 that. 4 So I don't see that this kind of 5 legislation, certainly isn't progressive. It's 6 regressive; it's not needed, but it's interest 7 ing that this is your view and if, in fact, we 8 ever get to the point where we have a bill on 9 this floor in lieu of the death penalty saying 10 that we want to have a life imprisonment with no 11 parole, at least this piece of legislation and 12 for those who voted for it, we can assume that 13 they would vote for a life in prison without any 14 parole also. 15 SENATOR TULLY: Yes, Mr. 16 President. If I gather from that last statement 17 that there was a question in there somewhere 18 that says something to the effect of why do we 19 wish to take this discretion away from the 20 judge, Senator, I wish you would carefully read 21 the bill, because we don't take the discretion 22 away from the judge. In fact, we give him more 23 discretion than he now has. 1 And you did mention life without 2 parole. There you're dealing with homicides. 3 You're not dealing with things that some people 4 think today should be the subject of life 5 without parole or should be the subject of a 6 death penalty, for instance, the crime of rape a 7 la the one that I described in Westbury. 8 So there are many, many instances 9 where there are many, many violent crimes 10 committed by the same individual at the same 11 time on a number of different victims, and I 12 think this type of sentencing provision will 13 definitely work as a deterrent and, as a former 14 prosecutor, as you know that I have been, and 15 also have been on the other side as a criminal 16 defense attorney, I know both sides of the 17 issue, Senator, and I fully understand where 18 you're coming from, but I believe that this type 19 of legislation, if enacted, would be a benefit 20 to the citizens of this state. 21 SENATOR GALIBER: Oh, just let me 22 clear up something. If I did talk in terms of 23 judges, it was an emotional portion of my - 1 just getting tied up into it. I -- what my 2 original point was, very frankly, and I think 3 you grabbed it early on and that's where I -- my 4 position, the springboard came up -- the judges 5 have the discretion to do it now. They have it 6 to do it and in the course of just being 7 frustrated about not having enough votes to 8 defeat your bill, I might have said that they 9 did not have the discretion. O.K.? 10 ACTING PRESIDENT SPANO: Read the 11 last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 ACTING PRESIDENT SPANO: Call the 15 roll. 16 (The Secretary called the roll. ) 17 THE SECRETARY: Those recorded in 18 the negative on Calendar Number 69 are Senators 19 Espada, Galiber, Gold, Montgomery, Ohrenstein 20 and Smith. Ayes 44, nays 6. 21 ACTING PRESIDENT SPANO: The bill 22 is passed. 23 SENATOR PRESENT: Mr. President, 1 could we call up Calendar 66, please. 2 ACTING PRESIDENT SPANO: Calendar 3 66, Secretary will read. 4 THE SECRETARY: Calendar Number 5 66, by Senator Skelos, Senate Bill Number 564, 6 an act to amend the Penal Law, in relation to 7 restructuring computer crimes. 8 SENATOR GOLD: Explanation. 9 SENATOR SKELOS: Yes, Senator 10 Gold. 11 This bill upgrades our current 12 computer tampering statutes in the state of New 13 York by increasing the penalties where an 14 individual alters or destroys computer programs 15 and causes monetary damage. If an individual 16 causes more than $3,000 in damages, he or she 17 could be charged with a Class D felony. If an 18 individual causes more than $50,000 in damages 19 could be a Class C felony. 20 Presently, the maximum sentence 21 is a Class E felony. 22 SENATOR GOLD: Senator Skelos 23 yield? Yes, is this the same bill we had last 1 year when Senator Connor and Leichter and 2 Markowitz, Ohrenstein and Smith and Waldon voted 3 in the negative? 4 ACTING PRESIDENT SPANO: Read the 5 last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT SPANO: Call the 9 roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Those recorded in 12 the negative on Calendar Number 66 are Senators 13 Espada, Galiber, Markowitz, Montgomery and 14 Ohrenstein. Also Senator Smith, Senator 15 Santiago. Ayes 43, nays 7. 16 ACTING PRESIDENT SPANO: The bill 17 is passed. 18 SENATOR PRESENT: Mr. President, 19 could we now call Calendar 73. 20 ACTING PRESIDENT SPANO: Calendar 21 Number 73, Senator Volker's bill. 22 THE SECRETARY: Calendar Number 23 73, by Senator Volker, Calendar Number 919-A, an 1 act to amend the Penal Law, in relation to 2 resisting arrest. 3 SENATOR GOLD: Explanation. 4 ACTING PRESIDENT SPANO: Senator 5 Volker. 6 SENATOR VOLKER: Mr. President, 7 this is a bill that would differentiate between 8 the varying methods of resisting arrest and 9 would attempt to -- these are resisting arrests, 10 by the way, obviously against a police officer, 11 would attempt to differentiate between what is 12 called the passive form of resisting arrest and 13 the use of physical force, and with the use of 14 physical force would mean that there would be a 15 higher offense. 16 One of the problems has been that 17 in the resisting arrest area, that as a result 18 of the way in which various statutes have 19 fallen, that there has been assaults on police 20 officers which is short of assault second which 21 is a felony, and when the resisting arrest 22 charge is brought, the maximum charge that you 23 can bring is a misdemeanor. 1 What this attempts to do is to 2 differentiate between those cases where someone 3 just says no, and sits down or whatever, refuses 4 to -- refuses to react to a command or whatever, 5 and in those cases where that person uses 6 physical force to avoid the arrest. If that 7 person does, then it is assault, it is a 8 resisting arrest second, which is a class E 9 felony instead of a Class A misdemeanor. 10 ACTING PRESIDENT SPANO: Read the 11 last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 ACTING PRESIDENT SPANO: Call the 15 roll. 16 (The Secretary called the roll. ) 17 THE SECRETARY: Those recorded in 18 the negative on Calendar Number 73 are Senators 19 Espada, Galiber, Markowitz, Montgomery and 20 Smith. Ayes 47, nays 5. 21 ACTING PRESIDENT SPANO: The bill 22 is passed. 23 SENATOR PRESENT: Can we stand at 1 ease for a few minutes. 2 ACTING PRESIDENT SPANO: Senate 3 will stand at ease. 4 SENATOR GOLD: Mr. President. 5 ACTING PRESIDENT SPANO: Senator 6 Gold. 7 SENATOR GOLD: Yes, while we have 8 a moment, could I ask you to recognize Senator 9 Connor. 10 ACTING PRESIDENT SPANO: Senator 11 Connor. 12 SENATOR CONNOR: Thank you, Mr. 13 President. 14 Could I have unanimous consent to 15 be recorded in the negative on Calendars Number 16 65, 66 and 73. 17 ACTING PRESIDENT SPANO: Without 18 objection. 19 Senator Mendez. 20 SENATOR MENDEZ: May I have 21 unanimous consent to be recorded in the negative 22 on Calendar Number - 23 ACTING PRESIDENT SPANO: Senator, 1 we can't hear you. You have to remove your 2 pocketbook from the microphone. 3 SENATOR MENDEZ: Incredible! 4 ACTING PRESIDENT SPANO: I know 5 you got all the cash in there. 6 SENATOR MENDEZ: I do request 7 unanimous consent to be recorded in the negative 8 on Calendar Number 73, seventy-three, a big no. 9 ACTING PRESIDENT SPANO: Without 10 objection. 11 SENATOR MENDEZ: Thank you, Mr. 12 President. 13 ACTING PRESIDENT SPANO: Senator 14 Mendez. 15 SENATOR MENDEZ: Mr. President, I 16 would like to advise the members of the Minority 17 that we are going to have a conference right 18 after session. 19 ACTING PRESIDENT SPANO: Minority 20 Conference after session. 21 SENATOR MENDEZ: Thank you. 22 SENATOR PRESENT: Mr. President. 23 ACTING PRESIDENT SPANO: Senator 1 Present. 2 SENATOR PRESENT: There will be 3 an immediate Conference of the Majority in Room 4 332. The Senate will stand in recess until we 5 complete that conference. 6 ACTING PRESIDENT SPANO: Senate 7 will stand in recess. Immediate Majority 8 Conference, Room 332. 9 SENATOR GOLD: Mr. President. 10 ACTING PRESIDENT SPANO: Senator 11 Gold. 12 SENATOR GOLD: I just think it's 13 -- it's there and I think Senator Present would 14 agree that, when we come back, I believe there 15 was an intention to do the Erie County bill, so 16 people should just know that. Now, they know 17 that. Now they can leave or whatever you want. 18 Whatever the members would say. 19 ACTING PRESIDENT SPANO: Senate 20 will stand in recess. 21 (The Senate stood in recess from 22 3:45 p.m., until 5:57 p.m.) 23 ACTING PRESIDENT FARLEY: The 1 Senate will come to order. 2 Senator Present. 3 SENATOR PRESENT: Now that we've 4 called the chamber to order, would you call up 5 76, please. 6 ACTING PRESIDENT FARLEY: The 7 Secretary will read Number 76. 8 THE SECRETARY: Senator Volker 9 moves to discharge the Committee on investiga 10 tions, Taxation and Government Operations from 11 Assembly Bill 3835 and substitute it for the 12 identical Third Reading 76. 13 ACTING PRESIDENT FARLEY: 14 Substitution is ordered. 15 SENATOR PRESENT: Mr. President, 16 is there a message from the Governor? 17 ACTING PRESIDENT FARLEY: Yes, 18 there is a message from the Governor. 19 SENATOR PRESENT: I move we 20 accept the message. 21 ACTING PRESIDENT FARLEY: All in 22 favor of accepting the message, say aye. 23 (Response of "Aye.") 1 Those opposed, nay. 2 (There was no response.) 3 The message is accepted. 4 Read 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: Ayes 58. 11 ACTING PRESIDENT FARLEY: The 12 bill is passed. 13 Senator Leichter. 14 SENATOR LEICHTER: Yes, Mr. 15 President. Could I have unanimous consent to be 16 recorded in the negative on Calendar 66 and 73, 17 please. 18 ACTING PRESIDENT FARLEY: Senator 19 Leichter will be in the negative on Calendar 66 20 and 73. 21 Senator Present. 22 SENATOR PRESENT: Mr. President, 23 there being no further business, I move we 1 adjourn until tomorrow at 3:00 p.m. 2 ACTING PRESIDENT FARLEY: The 3 Senate will stand adjourned until tomorrow at 4 3:00 p.m. 5 (Whereupon at 5: 59 p.m., the 6 Senate adjourned.) 7 8 9 10 11 12 13 14