Tuesday, March 8, 1994

1 2 3 ALBANY, NEW YORK 4 March 8, 1994 5 3:25 p.m. 6 7 8 REGULAR SESSION 9 10 11 12 SENATOR HUGH T. FARLEY, Acting President 13 STEPHEN F. SLOAN, Secretary 14 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: Senate 3 will come to order. Senators please find their 4 places. 5 Please rise with me for the 6 Pledge of Allegiance to the flag. 7 (Whereupon, the Senate joined in 8 the Pledge of Allegiance to the Flag.) 9 Today, we're please to have with 10 us The Reverend Peter G. Young, Pastor of the 11 Blessed Sacrament Church of Bolton Landing, New 12 York. 13 Father Young. 14 THE REVEREND PETER G. YOUNG: Let 15 us pray. 16 Almighty and eternal God, may 17 Your grace enkindle in all of us a love for the 18 many unfortunate people whom poverty and misery 19 reduced to a condition of life unworthy of human 20 beings; arouse in the hearts of those who call 21 You Father a hunger and a thirst for social 22 justice, for fraternal charity in deeds and in 23 truth. 1 Grant, O Lord, peace in our days, 2 peace to all in this great State of New York and 3 peace among nations. 4 Amen. 5 ACTING PRESIDENT FARLEY: 6 Secretary will begin by reading the Journal. 7 THE SECRETARY: In Senate, 8 Monday, March 7. The Senate met pursuant to 9 adjournment. Senator Farley in the chair upon 10 designation of the Temporary President. Prayer 11 by the Reverend Finley Schaef of Brooklyn, New 12 York. The Journal of Friday, March 4, was read 13 and approved. On motion, the Senate adjourned. 14 ACTING PRESIDENT FARLEY: Hearing 15 no objection, the Journal will stand approved as 16 read. 17 The order of business: 18 Presentation of petitions. 19 Messages from the Assembly. 20 Messages from the Governor. 21 Reports of standing committees. 22 Reports of select committees. 23 Communications and reports from 1 state officers. 2 Motions and resolutions. 3 Senator Kuhl. 4 SENATOR KUHL: Yes, Mr. 5 President. On behalf of Senator Spano, I move 6 that the following bills be discharged from 7 their respective committees and be recommitted 8 with instructions to strike the enacting 9 clause. Those Senate Print Numbers are: 1005B, 10 1006, 1007, 1009, 1411, 1415, 3013A, 3381, 3382, 11 3922, 4466, 5512A and 5809. 12 ACTING PRESIDENT FARLEY: Without 13 objection. 14 SENATOR KUHL: Thank you. 15 ACTING PRESIDENT FARLEY: Senator 16 Mendez. 17 SENATOR MENDEZ: Mr. President. 18 A group of my constituents who are blind, have 19 formed a union of Spanish speaking blind 20 association, were adopted by the Lions Club of 21 Washington Heights, are here visiting us. I 22 would appreciate very much you welcoming them. 23 ACTING PRESIDENT FARLEY: On 1 behalf of the Senate, welcome to the Senate 2 chamber and come back and visit us again. 3 We have a substitution. 4 THE SECRETARY: On page 8 of 5 today's calendar, Senator Stafford moves to 6 discharge the Committee on Finance from Assembly 7 Bill Number 8651 and substitute it for the 8 identical Calendar Number 222. 9 ACTING PRESIDENT FARLEY: 10 Substitution is ordered. 11 THE SECRETARY: Also on page 8, 12 Senator Goodman moves to discharge the Committee 13 on Investigations, Taxation and Government 14 Operations from Assembly Bill Number 7736 and 15 substitute it for the identical Third Reading 16 241. 17 ACTING PRESIDENT FARLEY: 18 Substitution is ordered. 19 No more motions on the floor. 20 Senator Present. 21 SENATOR PRESENT: Mr. President. 22 I move that we adopt the Resolution Calendar 23 with the exception of Resolution 2813. 1 ACTING PRESIDENT FARLEY: All in 2 favor of adopting the Resolution Calendar, 3 please say aye. 4 (Response of "Aye.") 5 Those opposed, nay. 6 (There was no response.) 7 The Resolution Calendar is 8 adopted with exceptions. 9 Senator Present. 10 SENATOR PRESENT: Mr. President. 11 Would you recognize Senator DiCarlo. 12 ACTING PRESIDENT FARLEY: Senator 13 DiCarlo. 14 SENATOR DiCARLO: Mr. President. 15 At this time, I would like to request the 16 reading of Senate Resolution 2813. 17 ACTING PRESIDENT FARLEY: 18 Secretary will read it. 19 THE SECRETARY: By Senator 20 DiCarlo and others, Legislative Resolution 21 Number 2813, commending Dr. Vernon E. Lattin, 22 President of Brooklyn College. 23 Whereas, it is the sense of this 1 legislative body that those who give positive 2 definition to the profile and disposition of the 3 communities of the State of New York do so 4 profoundly strengthen our shared commitment to 5 the exercise of freedom. 6 Attendant to such concern and 7 fully in accord with its longstanding 8 traditions, it is the intent of this Legislative 9 Body to convey its compliments and felicitations 10 to Dr. Vernon E. Lattin, President of Brooklyn 11 College for his exceptional contributions to the 12 pursuit of higher learning. 13 Dr. Lattin has demonstrated his 14 commitment to public higher education and he 15 leads a fine institution of higher learning that 16 provides a model of ethnic and cultural 17 diversity for all to emulate. 18 Dr. Lattin has inaugurated at 19 Brooklyn College a planning process that would 20 meet the challenges and opportunities of the 21 21st century. 22 That process begun by Dr. Lattin 23 has culminated in an ambitious blueprint for the 1 future of Brooklyn College and it will make it a 2 model for urban higher education. 3 Under his guidance, the Brooklyn 4 College community is developing new strategies 5 for learning and research, emphasizing critical 6 thinking skills for students, and creating new 7 models for responding to the intellectual, 8 ethnic, gender, and generational diversity of 9 the cultures that make up our city and the 10 world. 11 The "Brooklyn College 2000" plan 12 will make the college a more active participant 13 in the neighborhoods of Flatbush and Midwood, 14 the Borough of Brooklyn, the City of New York, 15 and the State of New York. 16 Now, therefore, be it resolved, 17 that this Legislative Body pause in its 18 deliberations and most joyously commend Dr. 19 Vernon E. Lattin for his dedication to higher 20 learning and for his farsighted commitment to 21 the integration of Brooklyn College and its 22 surrounding communities; and be it further. 23 Resolved, that a copy of this 1 resolution, suitably engrossed, be transmitted 2 to Dr. Vernon E. Lattin, President of Brooklyn 3 College. 4 ACTING PRESIDENT FARLEY: On the 5 resolution. 6 Senator DiCarlo. 7 SENATOR DiCARLO: Yes. Thank 8 you, Mr. President. I would just like to 9 personally congratulate Dr. Lattin and Brooklyn 10 College for the great work that they do there, 11 and we commend them as a Senate. 12 I would also like to add, for my 13 Republican colleagues, for those who don't know, 14 to show you how great a school Brooklyn College 15 is, it was attended by a young military officer 16 who came back from World War II and who was 17 wounded overseas, and he went on to great 18 things, and that is our Republican Minority 19 Leader of the United States Senate, Bob Dole. 20 So congratulations. 21 ACTING PRESIDENT FARLEY: Senator 22 Markowitz. 23 SENATOR MARKOWITZ: Thank you 1 very much. I want to thank Brooklyn's newest 2 colleague, just about, Senator DiCarlo for 3 introducing this commendable resolution. 4 You know, Dr. Lattin, our beloved 5 President of Brooklyn College, represents the 6 best -- really the best in the country. Here's 7 a man of proud -- proud of his Mexican-American 8 heritage, who has that rich Mexican culture, and 9 then moves to Phoenix, Arizona, and does 10 something that we don't hear too often about. 11 We hear about people, 12 unfortunately, leaving New York as snowbirds 13 down in Florida or bicoastal out in California 14 or Phoenix. But we've got somebody that came 15 from Phoenix to the garden spot of New York 16 State -- Brooklyn, New York. 17 And so to Dr. Lattin, who is 18 leading Brooklyn College in a superb way -- and, 19 by the way, he joins us in the Senate chamber 20 today. 21 We are fortunate, because not 22 only has Brooklyn College made its mark for so 23 many years in every field of higher education 1 and professional standing but actually the 2 College has contributed throughout the country 3 in graduating the top scholars, top business 4 leaders. In every field, Brooklyn College has 5 been the incubator, the creator, and very often 6 the deliverer of some of the finest minds in 7 America today. Dr. Lattin continues that fine 8 tradition of educational excellence. 9 To you and your colleagues, I am 10 fortunate to say that I'm a graduate of Brooklyn 11 College and proud of it. Thank you for being 12 here with us today. 13 ACTING PRESIDENT FARLEY: Senator 14 Montgomery. 15 SENATOR MONTGOMERY: Thank you, 16 Mr. President. I would like to rise as a 17 Brooklyn representative to also commend Dr. 18 Lattin for his leadership at Brooklyn, Brooklyn 19 College. That is a school that has, under his 20 leadership, continued to plan and work toward a 21 school that is all-inclusive of all cultures and 22 that reaches out to people who are not 23 traditional students but who are very much 1 nontraditional students, and who -- that school 2 has embraced, in fact, the needs of women as 3 students, minority people as students. 4 It really represents what the 5 best institutions are in the State of New York; 6 and that is, it's an institution that seeks to 7 bring us as a people into the next century with 8 the knowledge and understanding that we are 9 right here and right now international in every 10 respect, and the school is responding 11 accordingly. 12 So I am very pleased to rise and 13 join my colleagues, Senator DiCarlo and Senator 14 Markowitz, in complimenting and commending and 15 celebrating this wonderful educational leader; 16 because if we're ever going to solve the 17 problems of elementary schools and junior high 18 schools and high schools, we're going to have to 19 look to people like Dr. Lattin, who will be 20 working to produce leaders at every single level 21 so that we can improve our educational system 22 from top to bottom. 23 So, Dr. Lattin, my compliments to 1 you. I appreciate the work that you are doing. 2 And though we may not be present with you on 3 many occasions, even when you invite us, you 4 should know that we fight for Brooklyn College. 5 We know how important it is, and we want to have 6 you assume that we are partners with you as you 7 seek to realize your vision of the blueprint of 8 the future. 9 Thank you, Mr. President. 10 ACTING PRESIDENT FARLEY: Senator 11 DiCarlo. 12 SENATOR DiCARLO: Mr. President, I 13 would like to make a motion to open up the 14 resolution for co-sponsorship. 15 ACTING PRESIDENT FARLEY: 16 Everyone will be on it. If you wish to be an 17 exception, please notify the desk; but, 18 otherwise, every Senator will be on the 19 resolution. 20 On the resolution. All in favor, 21 say aye. 22 (Response of "Aye.") 23 Those opposed, nay. 1 (There was no response.) 2 The resolution is adopted. 3 Dr. Lattin, we're pleased to have 4 you with us today. Welcome and 5 congratulations. We're very proud of you and 6 Brooklyn College. 7 (Applause.) 8 Senator Present, I think. 9 SENATOR PRESENT: I think Senator 10 Daly would like to be recognized. 11 ACTING PRESIDENT FARLEY: Senator 12 Daly. 13 SENATOR DALY: Mr. President. I 14 want to star Calendar Number 289, please. 15 ACTING PRESIDENT FARLEY: 289 is 16 starred at the request of the sponsor. 17 Senator Padavan. 18 SENATOR PADAVAN: Lay aside 19 Calendar Number 263 for the day subject to an 20 amendment. 21 ACTING PRESIDENT FARLEY: 263 is 22 laid aside for today subject to an amendment. 23 SENATOR VOLKER: Mr. President. 1 ACTING PRESIDENT FARLEY: Senator 2 Volker. 3 SENATOR VOLKER: Mr. President. 4 On page 9, Calendar Number 258, I want to lay 5 that aside also subject to -- for an amendment. 6 ACTING PRESIDENT FARLEY: 258? 7 SENATOR VOLKER: Yes. 8 ACTING PRESIDENT FARLEY: 258 on 9 page 9 will also be laid aside for the whole day 10 subject to an amendment. 11 Are there any other motions or 12 housekeeping on the floor? 13 (There was no response.) 14 Senator Present. 15 SENATOR PRESENT: Will you 16 recognize Senator Goodman. 17 ACTING PRESIDENT FARLEY: Senator 18 Goodman. 19 SENATOR GOODMAN: Mr. President. 20 A moment ago, while I was out of the chamber, 21 the Senate passed unanimously a resolution 22 honoring a very familiar and much beloved figure 23 in New York City and its region, Mr. Jim Jensen, 1 who is the anchorman of the CBS six o'clock 2 news. 3 This resolution recognizes the 4 fact that he has just celebrated a major 5 anniversary. He has been in this news business 6 probably longer than any other operating 7 anchorman in our area and has fulfilled his 8 responsibilities for honest and objective 9 reporting to the public in an exemplary manner. 10 Indeed, at various moments in hot 11 spots around the earth when lesser figures, less 12 courageous figures, would be willing to go for 13 on-the-spot reporting, whether it's an outbreak 14 of hostilities in the Middle East or various 15 other areas where we are all too familiar with 16 the tragic happenings and bombings and the like, 17 Jim Jensen has always been on the spot to give 18 us an eye witness account of what has occurred, 19 and he has done it with great fidelity to the 20 highest principles of journalism. 21 It's for that reason, Mr. 22 President, that its been my pleasure to sponsor 23 that resolution in this house and to share in 1 the warm salute both we and the Assembly have 2 paid to this unique asset for the City and the 3 State of New York. 4 ACTING PRESIDENT FARLEY: Thank 5 you, Senator Goodman. 6 Any other housekeeping motions? 7 Senator Present. 8 SENATOR PRESENT: Mr. President. 9 Can we take up the noncontroversial calendar, 10 please. 11 ACTING PRESIDENT FARLEY: The 12 Secretary will read the noncontroversial 13 calendar, starts on page 5. 14 THE SECRETARY: On page 5, 15 Calendar Number 48, by Senator Johnson. 16 SENATOR CONNOR: Lay it aside. 17 ACTING PRESIDENT FARLEY: Lay it 18 aside. 19 THE SECRETARY: Calendar Number 20 58, by Senator Velella, Senate Bill Number 21 2232B, an act to amend the Insurance Law. 22 ACTING PRESIDENT FARLEY: Read 23 the last section. 1 THE SECRETARY: Section 2. This 2 act shall take effect immediately. 3 ACTING PRESIDENT FARLEY: Call 4 the roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes 59. 7 ACTING PRESIDENT FARLEY: That 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 59, by Member of the Assembly Grannis, Assembly 11 Bill Number 6289B, an act to amend the Insurance 12 Law. 13 SENATOR CONNOR: Lay it aside. 14 ACTING PRESIDENT FARLEY: Lay 15 that bill aside. 16 THE SECRETARY: Calendar Number 17 82, by Senator Kuhl, Senate Bill Number 6215C, 18 Education Law, in relation to school building 19 aid for refunding bond issues. 20 ACTING PRESIDENT FARLEY: There 21 is a local fiscal impact note here at the desk. 22 Read 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 59. 6 ACTING PRESIDENT FARLEY: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 141, by Senator Stafford. 10 SENATOR CONNOR: Lay it aside. 11 ACTING PRESIDENT FARLEY: Lay 12 that bill aside. 13 THE SECRETARY: Calendar Number 14 157, by Senator Padavan. 15 SENATOR CONNOR: Lay it aside. 16 ACTING PRESIDENT FARLEY: Lay it 17 aside. 18 THE SECRETARY: Calendar Number 19 181, by Senator Volker. 20 SENATOR CONNOR: Lay it aside. 21 ACTING PRESIDENT FARLEY: Lay it 22 aside. 23 THE SECRETARY: Calendar Number 1 191, by Senator Volker. 2 SENATOR CONNOR: Lay it aside. 3 ACTING PRESIDENT FARLEY: Lay 4 itaside. 5 THE SECRETARY: Calendar Number 6 242, by Senator Larkin. 7 SENATOR CONNOR: Lay it aside. 8 ACTING PRESIDENT FARLEY: Lay it 9 aside. 10 THE SECRETARY: Calendar Number 11 247, by Senator Tully, Senate Bill Number 961A, 12 An act to amend the Public Health Law, in 13 relation to the establishment of a special care 14 program. 15 ACTING PRESIDENT FARLEY: Read the 16 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 59. 23 ACTING PRESIDENT FARLEY: The 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 250, by Senator Tully, Senate Bill Number 6771, 4 an act to amend the Public Health Law. 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: Ayes 59. 13 ACTING PRESIDENT FARLEY: The 14 bill is passed. 15 THE SECRETARY: Calendar Number 16 251, by Senator Farley, Senate Bill Number 997, 17 Executive Law, in relation to designation of 18 August 7 as Family Day. 19 ACTING PRESIDENT FARLEY: Read 20 the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT FARLEY: Call 1 the roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 59. 4 ACTING PRESIDENT FARLEY: The 5 bill is passed. 6 THE SECRETARY: Calendar Number 7 252, by Senator Hannon, Senate Bill Number 8 4907A, an act to amend the Public Officers 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 59. 17 ACTING PRESIDENT FARLEY: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 253, by Senator DeFrancisco, Senate Bill Number 21 6578, Executive Law, in relation to the 22 designation of certain days. 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 59. 8 ACTING PRESIDENT FARLEY: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 254, by the Assembly Committee on Rules, 12 Assembly Bill Number 9565, making an 13 appropriation to pay Sylvia Weprin, widow of the 14 late Saul Weprin. 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 59. 23 ACTING PRESIDENT FARLEY: The 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 255, by Senator Bruno, Senate Bill Number 240, 4 General Obligations Law, in relation to 5 additional liability of a drawer of a dishonored 6 check. 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 59. 15 ACTING PRESIDENT FARLEY: The 16 bill is passed. 17 THE SECRETARY: Calendar Number 18 256, by Senator LaValle, Senate Bill Number 600, 19 Domestic Relations Law. 20 ACTING PRESIDENT FARLEY: Read 21 the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 1 ACTING PRESIDENT FARLEY: Call 2 the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 59. 5 ACTING PRESIDENT FARLEY: The 6 bill is passed. 7 THE SECRETARY: Calendar Number 8 257, by Senator Levy, Senate Bill Number 999A, 9 General Obligations Law. 10 ACTING PRESIDENT FARLEY: Read 11 the last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 ACTING PRESIDENT FARLEY: Call 15 the roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes 59. 18 ACTING PRESIDENT FARLEY: The 19 bill is passed. 20 THE SECRETARY: Calendar Number 21 259, by Senator Saland. 22 SENATOR CONNOR: Lay it aside. 23 ACTING PRESIDENT FARLEY: Lay it 1 aside. 2 THE SECRETARY: Calendar Number 3 260, by Senator Farley, Senate Bill Number 1664, 4 Judiciary Law. 5 SENATOR CONNOR: Lay it aside. 6 ACTING PRESIDENT FARLEY: Lay 7 that bill aside. 8 THE SECRETARY: Calendar Number 9 261, by Senator Daly, Senate Bill Number 4583B. 10 SENATOR CONNOR: Lay it aside. 11 ACTING PRESIDENT FARLEY: Lay 12 that bill aside. 13 THE SECRETARY: Calendar Number 14 262, by Senator Farley, Senate Bill Number 4673, 15 an act to amend the Domestic Relations Law. 16 ACTING PRESIDENT FARLEY: Read 17 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 56. Ayes 1 55. Nays 4. Senators Jones, Libous, Pataki and 2 Rath recorded in the negative. 3 ACTING PRESIDENT FARLEY: The 4 bill is passed. 5 THE SECRETARY: Calendar Number 2 6 -- also recorded in the negative on Calendar 7 Number 262 are Senators Larkin and Saland. 8 ACTING PRESIDENT FARLEY: The 9 bill is still passed. 10 SENATOR HOLLAND: Mr. President. 11 ACTING PRESIDENT FARLEY: Senator 12 Holland. 13 SENATOR HOLLAND: With unanimous 14 consent, I would like to be recorded in the 15 negative on Calendar 257. 16 ACTING PRESIDENT FARLEY: 257, 17 Senator Holland will be in the negative. 18 SENATOR SALAND: Mr. President. 19 I too would request unanimous consent to be 20 recorded in the negative on Calendar 257. 21 ACTING PRESIDENT FARLEY: Without 22 objection, 257. 23 THE SECRETARY: Calendar Number 1 265, by Senator Levy, Senate Bill Number 1707, 2 an act in relation to requiring the Department 3 of Motor Vehicles to compile information. 4 SENATOR CONNOR: Lay it aside. 5 ACTING PRESIDENT FARLEY: Lay it 6 aside. 7 THE SECRETARY: Calendar Number 8 266, by Senator Skelos, Senate Bill Number 9 4183A, an act to amend the Public Health Law. 10 ACTING PRESIDENT FARLEY: Read the 11 last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 ACTING PRESIDENT FARLEY: Call 15 the roll. 16 (The Secretary called the roll. ) 17 THE SECRETARY: Ayes 59. 18 ACTING PRESIDENT FARLEY: The 19 bill is passed. 20 THE SECRETARY: 271, by Senator 21 Sears, Senate Bill Number 1911, an act to amend 22 the Vehicle and Traffic Law. 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 57. Nays 8 2. Senators DeFrancisco and Johnson recorded in 9 the negative. 10 ACTING PRESIDENT FARLEY: The 11 bill is passed. 12 THE SECRETARY: Calendar Number 13 272, by Senator Levy, Senate Bill Number 6603, 14 an act to amend the Vehicle and Traffic 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 60. 23 ACTING PRESIDENT FARLEY: The 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 273, by Senator Pataki, Senate Bill Number 4 1983A, an act to amend the Education Law and the 5 Transportation Law. 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 60. 14 ACTING PRESIDENT FARLEY: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 278, by Senator Saland, Senate Bill Number 2138, 18 an act to amend the Real Property Tax Law, in 19 relation to authorizing counties, cities and 20 towns and villages in certain school districts. 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 60. 6 ACTING PRESIDENT FARLEY: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 279, by Senator Wright. 10 SENATOR CONNOR: Lay it aside. 11 ACTING PRESIDENT FARLEY: Lay it 12 aside. 13 SENATOR PRESENT: Lay that one 14 aside for the day. 15 ACTING PRESIDENT FARLEY: 279 for 16 the day. 17 THE SECRETARY: Calendar Number 18 280, by Senator Marino. 19 SENATOR CONNOR: Lay it aside. 20 ACTING PRESIDENT FARLEY: Lay it 21 aside. 22 THE SECRETARY: Calendar Number 23 281, by Senator Larkin. 1 SENATOR CONNOR: Lay it aside. 2 ACTING PRESIDENT FARLEY: Lay it 3 aside. 4 THE SECRETARY: Calendar Number 5 283, by Senator Kuhl, Senate Bill Number 1190, 6 Environmental Conservation 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 58. Nays 15 2. Senators Leichter and Pataki recorded in the 16 negative. 17 ACTING PRESIDENT FARLEY: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 284, by Senator Johnson, Senate Bill Number 21 1844, an act to amend the Environmental 22 Conservation Law. 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 60. 8 ACTING PRESIDENT FARLEY: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 287, by Senator Stafford, Senate Bill Number 12 4853, Environmental Conservation Law. 13 SENATOR CONNOR: Lay it aside. 14 ACTING PRESIDENT FARLEY: Lay it 15 aside. 16 THE SECRETARY: Calendar Number 17 288, by Senator Saland, Senate Bill Number 5093, 18 Environmental Conservation Law. 19 ACTING PRESIDENT FARLEY: Read 20 the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT FARLEY: Call 1 the roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 60. 4 ACTING PRESIDENT FARLEY: The 5 bill is passed. 6 THE SECRETARY: Calendar Number 7 291, by Senator Skelos, Senate Bill Number 29B, 8 an act to amend the Penal Law, in relation to 9 carjacking. 10 ACTING PRESIDENT FARLEY: Read 11 the last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 ACTING PRESIDENT FARLEY: Call 15 the roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes 60. 18 ACTING PRESIDENT FARLEY: The 19 bill is passed. 20 THE SECRETARY: Calendar Number 21 293, by Senator Levy. 22 SENATOR CONNOR: Lay it aside. 23 ACTING PRESIDENT FARLEY: Lay it 1 aside. 2 THE SECRETARY: Calendar Number 3 294, by Senator Levy, Senate Bill Number 648, an 4 act to amend the Penal Law. 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: Senator 10 DeFrancisco to explain his vote? 11 SENATOR DeFRANCISCO: This is 12 294; correct? 13 ACTING PRESIDENT FARLEY: Yes, it 14 is. 15 SENATOR DeFRANCISCO: I'm going 16 to vote in the negative. And before the 17 teachers of the State of New York mount a 18 campaign against this vote, I want to explain 19 exactly what my position is. Presently, the 20 assault provisions in the State of New York 21 provide special protection for police officers; 22 in that, a normal assault upon anyone other than 23 on a police officer -- there may be one other 1 exception -- is generally a misdemeanor unless 2 there is physical injury. If it's a police 3 officer it's elevated to a felony. 4 Now this bill chooses to create 5 that same situation in the event that the victim 6 happens to be a teacher. And I believe, on 7 Calendar 300, we'll be dealing sometime with 8 another bill raising the punishment from a 9 misdemeanor to a felony to transit workers. 10 And I guess the point I'm trying 11 to make is victims are victims, and I can see 12 the special protection for a police officer who 13 is the last line of defense in many cases to the 14 common citizen for criminal activity on the 15 street; and when he is affecting an arrest or 16 she's affecting an arrest, special protection 17 might be needed to cause someone not to assault 18 a police officer; but when we are creating law 19 after law that provides special protection for 20 individuals depending upon what their occupation 21 may be, I think maybe the general rule is being 22 eaten up by all of the exceptions. 23 If it's important to raise an 1 assault third to an assault second, it should be 2 across the board and not pick away at various 3 categories in various occupations. 4 So as far as this bill is 5 concerned, I'm voting in the negative for those 6 reasons and hope to be consistent on other bills 7 that create special protections for individuals 8 based upon what their occupation may be. 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: Those recorded in 17 the negative on Calendar Number 294 are Senators 18 DeFrancisco, DiCarlo, Galiber, Leichter, Mendez 19 and Montgomery. Ayes 54. Nays 6. 20 ACTING PRESIDENT FARLEY: The 21 bill is passed. 22 THE SECRETARY: Calendar Number 23 295, by Senator Tully, Senate Bill Number 776, 1 an act to amend the Penal Law. 2 SENATOR CONNOR: Lay it aside. 3 ACTING PRESIDENT FARLEY: Lay it 4 aside. 5 THE SECRETARY: Calendar Number 6 296, by Senator Volker, Senate Bill Number 2173, 7 Penal Law, in relation to consecutive terms of 8 imprisonment. 9 ACTING PRESIDENT FARLEY: Read 10 the last section. 11 SENATOR CONNOR: Lay it aside. 12 ACTING PRESIDENT FARLEY: Lay it 13 aside. Don't read the last section. 14 THE SECRETARY: Calendar Number 15 297, by Senator Volker, Senate Bill Number 3323, 16 an act to amend the Penal 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 60. 2 ACTING PRESIDENT FARLEY: The 3 bill is passed. 4 THE SECRETARY: Calendar Number 5 299, by Senator Padavan, Senate Bill Number 6 4166, an act to amend the Penal 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 60. 15 ACTING PRESIDENT FARLEY: The 16 bill is passed. 17 THE SECRETARY: Excuse me. Ayes 18 59. Nays -- in relation to Calendar Number 19 299: Ayes 58. Nays 2. Senators Galiber and 20 Montgomery recorded in the negative. 21 THE SECRETARY: Calendar Number 22 306, by Senator Saland, Senate Bill Number 2242, 23 Domestic Relations Law and the Surrogate's Court 1 Procedure Act. 2 ACTING PRESIDENT FARLEY: Read 3 the last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 ACTING PRESIDENT FARLEY: Call 7 the roll. 8 (The Secretary called the roll.) 9 THE SECRETARY: Ayes 60. 10 ACTING PRESIDENT FARLEY: The 11 bill is passed. 12 Senator Present. 13 SENATOR PRESENT: Mr. President. 14 I think erroneously Calendar 296 was laid 15 aside. Can we try that one, then go to regular 16 order. 17 ACTING PRESIDENT FARLEY: Call up 18 296. 19 THE SECRETARY: Calendar Number 20 296, by Senator Volker, Senate Bill Number 2173, 21 an act to amend the Penal Law, in relation to 22 consecutive terms of imprisonment. 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 59. Nays 8 1. Senator Galiber recorded in the negative. 9 ACTING PRESIDENT FARLEY: The 10 bill is passed. 11 Controversial, Senator Present? 12 SENATOR PRESENT: Controversial 13 calendar, please. 14 ACTING PRESIDENT FARLEY: 15 Controversial calendar, page 5. 16 THE SECRETARY: On page 5, 17 Calendar Number 48, by Senator Johnson, Senate 18 Bill Number 3059, an act to amend the Penal Law, 19 in relation to chemical agents and chemical 20 agent weapons. 21 SENATOR GOLD: Explanation. 22 ACTING PRESIDENT FARLEY: 23 Explanation has been asked for. 1 Senator Johnson. 2 SENATOR JOHNSON: Mr. President. 3 This is our Mace bill which has been before this 4 body before and has been adopted overwhelmingly 5 on several instances. 6 I would like to explain this bill 7 by reading a short piece of testimony which was 8 delivered by a young lady in November '91 at a 9 hearing I had in New York City. She said here: 10 "I was recently, in early June, 11 a victim of a crime in which I used Mace in 12 order to save myself. I would like to tell you 13 my story. 14 "I was downtown in a parking 15 lot. I was with a gentleman friend who was 16 there for the sole purpose of walking me to my 17 car for my own safety. While we were talking 18 outside the car, we were approached by two men. 19 I saw them approaching; and as I did, I took my 20 can of Mace out of my purse and held it by my 21 side. 22 "At this point, I was still unsure 23 as to whether the men were going to approach us 1 or what their intentions were. The two men did 2 approach me. Within two feet of us, they pulled 3 out a gun. They demanded our money, our purse 4 -- my purse, his wallet. I was, of course, 5 still holding my Mace which they didn't see. 6 "I was turned around, placed 7 against the car, frisk for money and any 8 possible weapons that I might be carrying, I 9 suppose. So was my friend. At this point, the 10 gentlemen decided they would like to take me 11 along with them. They proceeded to make me get 12 down on my hands and knees. They put my 13 gentleman friend in the trunk of the car. This 14 whole time I still had my Mace with me. 15 "They put me inside the car. 16 They decided then that I was going to drive the 17 car. I was put in the driver's seat of the 18 car. Needless to say, they were not being very 19 gentle. They were being very forceful. They 20 were assaulting me. They were using a lot of 21 profanity. They were scaring me. The gentleman 22 sat beside me in the passenger seat." 23 The gentleman, I don't know why 1 she calls these people gentlemen she's a very 2 polite girl. 3 "The gentleman with the gun sat 4 behind me holding the gun to my head. At this 5 point in the car, I turned around. I still had 6 the Mace with me. I looked at the man. I 7 wanted to use it. I, of course, was very 8 scared. He was asking me what I wanted, 'Why 9 are you looking at me? Turn around and drive,' 10 in very profane terms. 11 "He told me to shut the door 12 completely. I had the door a little bit ajar. 13 I got my confidence up. Used my Mace, sprayed 14 him, temporarily incapacitated him. He had the 15 gun at his left. He was covering his face. He 16 was swearing at me. I got out of the car and I 17 ran. He pulled the gun. He shot at me. I hid 18 behind a dumpster. He shot at me again. I ran 19 and I got away. 20 "Had I not Maced the man, he 21 most likely would have hit me. I was definitely 22 within range when I heard the first shot. I was 23 no more than maybe ten feet from the car when he 1 proceeded to get out and shoot. He was shooting 2 blindly. Obviously, I'm not sure whether the 3 second shot came from him or the second man. 4 "I ended up escaping. The men 5 ended up leaving, and my friend was later taken 6 safely out of the trunk." 7 And she says, "I have come to 8 tell you my story in order that it might 9 persuade those that are not as of now in support 10 of this bill." She's talking about my bill. 11 "I believe that because of the 12 nonlethal nature of this device, it gives 13 citizens like myself who would be very hesitant 14 to be carrying a lethal weapon, a gun, a knife, 15 et cetera, it gives you a comfortable means of 16 defense. I think that the ramifications of this 17 type of defense mechanism are far less than that 18 of any other type of defense mechanism." 19 This young lady was from Ohio, 20 and she came to tell the story. Now, in this 21 state, that young lady would not have that 22 ability because of our laws. She would not be 23 permitted to possess Mace to defend herself. 1 Though in this state, a postman 2 can carry a can of pepper spray, which is 3 equivalent, to defend himself against a dog 4 bite. But a young lady in New York State can 5 not protect herself with a can of Mace. 6 If that's not a travesty, if 7 that's not an aberation of the law that cries 8 out for correction, I don't know what is. 9 And, you know, when I first 10 introduced this bill, there were three states in 11 the union which did not permit this ownership of 12 Mace to defend oneself. Now we're the only 13 state. The other states got the message. In 14 every state, you can have this to protect 15 yourself but not in New York State. 16 It's time for a change. That's 17 about all I have to say. This bill should be 18 adopted. 19 ACTING PRESIDENT FARLEY: Senator 20 Dollinger. 21 SENATOR DOLLINGER: Mr. 22 President. I believe there is an amendment at 23 the desk. 1 ACTING PRESIDENT FARLEY: Yes, 2 there is. 3 SENATOR DOLLINGER: I waive the 4 reading of the amendment and ask that it be 5 considered by the house. 6 ACTING PRESIDENT FARLEY: Senator 7 Present. 8 SENATOR PRESENT: Mr. President. 9 I would like a point of order. Senator 10 Dollinger's amendment, after review, his 11 amendment to Senator Johnson's bill is out of 12 order since it violates Rule 6, Section 4(b), in 13 that it is not germane to the original object or 14 purpose of Senator Johnson's bill. 15 Senator Johnson's bill is 16 concerned with the possession of Mace. Senator 17 Dollinger's amendment offers nothing on that 18 subject; however, it seeks to amend completely 19 different sections of the law than that 20 addressed by Senator Johnson's bill; therefore, 21 I ask that you rule Senator Dollinger's 22 amendment out of order. 23 ACTING PRESIDENT FARLEY: Senator 1 Dollinger. 2 SENATOR DOLLINGER: How do you so 3 rule, Mr. President? 4 ACTING PRESIDENT FARLEY: Senator 5 Dollinger, unfortunately for you, I rule that it 6 is out of order. 7 SENATOR DOLLINGER: Okay. I'd 8 like to appeal the order of chair, Mr. 9 President, and be heard on the issue. 10 ACTING PRESIDENT FARLEY: Senator 11 Dollinger moves to overrule the chair and to be 12 heard on the issue. 13 You can be heard. Go ahead. 14 SENATOR DOLLINGER: Mr. 15 President. I'll try again. I tried with 16 germaneness a couple of times, and I seem to be 17 failing. 18 Mr. President. I stand in 19 support of Senator Johnson's bill, which will 20 take a category of weapon which is currently 21 illegal in this state and make it legal. I 22 understand the underlying issues that Senator 23 Johnson talked about in his letter and the 1 importance of making this small weapon available 2 as a deterrent for those who feel that they need 3 Mace as a way of thwarting off attackers. 4 What I seek to do, however, Mr. 5 President, is to deal with another issue that 6 involves weapon, and those are weapons that are 7 generally known under the category as assault 8 weapons, and it seems to me that since we're 9 dealing with weapons -- what we're doing is 10 allowing a new weapon to become more available 11 -- we should also take one off the shelf, one 12 that is currently available, that currently can 13 be purchased without a permit, without any 14 authority whatsoever. Certainly if you've got 15 the money, you can do it. 16 If you got the money now in this 17 state, if Senator Johnson's bill is passed, you 18 can buy Mace to protect yourself. I'm simply 19 suggesting that we amended other portions of the 20 Penal Law to take one weapon which is currently 21 available and restrict access to it so that only 22 pistol permit holders can have it. 23 That's the Assault Weapon Bill 1 that passed the Assembly. That's what the 2 amendment seeks to do. It does deal with 3 weapons. It deals with access to weapons. It 4 deals with the public safety, the same germane 5 issues that are involved in the proposal from 6 Senator Johnson. 7 And it seems to me while the 8 message that comes out of today is that it's 9 okay for you to have Mace, but it's also okay 10 for you to continue to have the kinds of weapons 11 that have been used on the bus in New York City 12 -- on the van in New York City. If the Court 13 -- or if the President will recall, a review of 14 the weapons that were available in the cashe of 15 the assailant or the alleged assailant were all 16 kinds of assault weapons. 17 We should get those weapons off 18 the shelf. We should restrict access to those 19 weapons, while we're making another form of 20 weapon, the Mace, available to our constituents. 21 So this deals with public 22 safety. It's certainly germane to the issue of 23 public safety, and we ought to take this step, 1 amend the bill. Consider the bill in its 2 totality and deal with the problem of weapons in 3 this state in a rational way. 4 SENATOR GOLD: Mr. President. 5 ACTING PRESIDENT FARLEY: Senator 6 Gold. 7 SENATOR GOLD: Thank you very 8 much. 9 Mr. President. It is not new to 10 this chamber that Senator Dollinger has been 11 attempting, very, very diligently to bring 12 certain issues to the floor. And while I 13 understand the obligation of the chair to rule 14 in a manner that supports our rules, and I 15 appreciate the difficult job Senator Present has 16 in upholding the rules, I do sometimes get 17 perplexed. 18 There isn't an individual in this 19 chamber who didn't cringe a little bit when I 20 announced last week that two Lubavitcher youths 21 were in critical condition -- at this point, as 22 you know, one of them passed away -- and that 23 someone in a car sprayed bullets at a van 1 containing innocent students. 2 There is a story in today's Daily 3 News by Michael Daley, which traces the actual 4 weapon used in that particular crime, and I 5 commend the story to you. We talk about so many 6 things in the abstract that I think it's 7 important that sometimes we get away from the 8 abstract and we talk about something that has 9 touched our lives and that we know about in 10 recent days. 11 That particular gun had paperwork 12 filed at Glock, which as you know is a 13 manufacturer, in Georgia. It then was imported 14 by Glock from Austria and shipped to a dealer in 15 Jefferson, Indiana. That was October 8th of 16 '91. A week later it was sold to a gun shop in 17 Ohio. Ten days later, it was bought by a 18 firearms dealer in Florida. This is all in 19 October of '91. Then it turns up in New York 20 City on the streets of New York City on March 2 21 of 1994 and kills people. 22 I am one of the first to concede 23 that there is an obligation on the part of our 1 federal government. I'm one of the first to 2 concede that the Brady law meant nothing in New 3 York State. You can't get a handgun in New York 4 State in five days. It's an irrelevant law for 5 us. 6 But on the other hand, on the 7 other hand, the whole nature of violence has 8 really changed. There were those of us who made 9 speeches years ago about how murder was a 10 friendly crime. People killed their lovers, 11 their spouses. They killed their bosses. They 12 killed people whom they knew, and that was the 13 major part of murder. That is not the case any 14 more. 15 Now we have such random violence 16 that it is even worse from the point of view of 17 the mentality of the average citizen as it was 18 years ago, and we have to do something. Now, 19 this is not an anti-hunters speech. It is not 20 an anti-sportsmen speech. It is not an 21 anti-recreational shooters speech. It is, I 22 hope, a realistic statement of what we have to 23 do. 1 I know the politics of the NRA 2 and I respect the NRA, and I respect its 3 constituency, but they are wrong on this issue. 4 They are just wrong on this issue. It doesn't 5 make them bad. It doesn't make them evil. 6 SENATOR VELELLA: Mr. President. 7 Point of order. 8 ACTING PRESIDENT FARLEY: What's 9 your point of order, Senator? 10 SENATOR VELELLA: It is my 11 understanding that we are supposed to be 12 debating whether or not Senator Dollinger's 13 amendment was relevant to the proposed bill by 14 Senator Johnson. Now we have gotten into a 15 discussion on the NRA, the Brady bill, federal 16 legislation. I think the Senator is out of 17 order. The issue that we're supposed to be 18 discussing is whether or not Senator Dollinger's 19 amendment is relevant. 20 ACTING PRESIDENT FARLEY: Senator 21 Gold, the chair has been very patient, and I 22 think you realize that. We are on a motion to 23 overrule the chair as to whether Senator 1 Dollinger's amendment is germane to Senator 2 Johnson's Mace bill. 3 SENATOR GOLD: Yes. 4 ACTING PRESIDENT FARLEY: And I 5 would ask and - 6 SENATOR GOLD: I was getting to 7 the logical connection just at the point when 8 Senator Velella interrupted. 9 SENATOR VELELLA: I withdraw my 10 objection and wait for the logical connection. 11 SENATOR GOLD: Your timing was 12 extraordinary. 13 ACTING PRESIDENT FARLEY: We wait 14 with baited breath for the logical point. Go 15 ahead. 16 SENATOR GOLD: Good. Don't hold 17 your breath too long. 18 Mr. President. The point I'm 19 making is really a very, very, very simple 20 point; and that is, that I believe that we have 21 an obligation -- and I think Senator Dollinger 22 has been outstanding in bringing this out -- we 23 have an obligation. And the rules of our house 1 which are meant to conduct business in an 2 orderly way should not be a weapon to suppress 3 free and open debate on necessary and important 4 issues, and this issue is necessary and 5 important. 6 If, in fact, the anti-assault ban 7 lobby is right, or some of you think it is that 8 correct, then that's the way you will vote, and 9 I'm sure that the constituency which you reflect 10 will reward you properly, but it's a debate that 11 ought to take place. 12 And I suggest to you, Mr. 13 President, that under our rules that you could 14 very well have ruled that Senator Dollinger's 15 amendment is germane. We could have had a free 16 and open debate, and I would urge that people 17 vote against the ruling of the chair. 18 ACTING PRESIDENT FARLEY: Senator 19 Dollinger. 20 SENATOR DOLLINGER: Mr. 21 President. I have nothing to add to Senator 22 Gold's eloquent substance. I'm just interested 23 in some day knowing what germane means so that I 1 can inform my grandchildren. 2 I guess at some point I'd love to 3 see an amendment attached to a bill that is 4 considered germane, and then I will have some 5 guidance as to what it means. 6 I know what it doesn't mean, or 7 I'm learning what it doesn't mean, but I'd like 8 to know some day what it does mean. 9 ACTING PRESIDENT FARLEY: I'm 10 confident that Senator Present will discuss that 11 with you. 12 There is a motion on the floor to 13 overrule the chair. Those that are in favor of 14 overruling the chair, say aye. 15 (Response of "Aye.") 16 Those that are in favor of 17 sustaining the chair, say nay. 18 (Response of "Nay.") 19 I believe the nays have it. 20 Read the last section of Senator 21 Johnson's bill. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 1 SENATOR GOLD: Mr. President. 2 ACTING PRESIDENT FARLEY: Senator 3 Gold to explain his vote. 4 SENATOR GOLD: Yes, thank you. I 5 just wanted to point out that there were some 6 Senators who had opposition to this in the past 7 including Senator Connor and Montgomery and 8 Paterson, Smith, and Waldon. 9 I vote in the affirmative. 10 ACTING PRESIDENT FARLEY: Call 11 the roll. 12 (The Secretary called the roll.) 13 SENATOR GOLD: Sorry. I'm in the 14 negative. 15 SENATOR HOFFMANN: Mr. President. 16 ACTING PRESIDENT FARLEY: Senator 17 Hoffmann. 18 SENATOR HOFFMANN: Could I ask 19 the sponsor a question before you announce a 20 vote on this? 21 ACTING PRESIDENT FARLEY: Without 22 objection. Senator Johnson, Senator Hoffmann 23 has question for you as we're on the roll call. 1 SENATOR HOFFMANN: Perhaps you 2 can refresh my memory, Senator Johnson. As a 3 supporter of this bill for a number of years, I 4 believe that in the past it had been offered for 5 co-sponsorship to some members on this side of 6 the aisle. I thought that I had been a 7 co-sponsor at least once in previous years. I 8 remember speaking on it several times. And I'm 9 curious to see the list of sponsors today 10 includes only Republican members of the Senate. 11 I wonder if you would be so kind 12 as to add my name to that list, as well. I 13 would like to be a co-sponsor on the Mace bill. 14 SENATOR JOHNSON: Fine, Senator. 15 ACTING PRESIDENT FARLEY: 16 Results. 17 THE SECRETARY: Those recorded in 18 the negative on Calendar Number 48 are Senators 19 Connor, Espada, Galiber, Gold, Montgomery, 20 Ohrenstein, Smith and Waldon. Ayes 42. Nays 8. 21 (Whereupon, Senator Libous was in 22 the chair.) 23 ACTING PRESIDENT LIBOUS: Bill is 1 passed. 2 Senator Present. 3 SENATOR PRESENT: Mr. President. 4 Would you call up Calendar 191, have the last 5 section read, so Senator Solomon could cast his 6 vote, and then put it back on the calendar where 7 it is. 8 ACTING PRESIDENT LIBOUS: 9 Secretary will read Calendar 191. 10 THE SECRETARY: Calendar Number 11 191, by Senator Volker, Senate Bill Number 6350, 12 an act to amend the Penal Law, the Criminal 13 Procedure Law, and the Judiciary Law, in 14 relation to the imposition of the death penalty. 15 ACTING PRESIDENT LIBOUS: Read 16 the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT LIBOUS: Senator 20 Solomon, how to you vote? 21 SENATOR SOLOMON: Yes. 22 ACTING PRESIDENT LIBOUS: Lay the 23 bill aside. 1 SENATOR PRESENT: Regular order. 2 ACTING PRESIDENT LIBOUS: 3 Secretary will read. 4 THE SECRETARY: Calendar Number 5 59, by Member of the Assembly Grannis, Assembly 6 Bill Number 6289B, an act to amend the Insurance 7 Law. 8 ACTING PRESIDENT LIBOUS: Read 9 the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect immediately. 12 ACTING PRESIDENT LIBOUS: Call 13 the roll. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes 60. 16 ACTING PRESIDENT LIBOUS: The 17 bill is passed. 18 THE SECRETARY: Calendar Number 19 141, by Senator Stafford. 20 SENATOR GOLD: Lay it aside. 21 ACTING PRESIDENT LIBOUS: Lay 22 that bill aside. 23 SENATOR PRESENT: Temporarily. 1 ACTING PRESIDENT LIBOUS: 2 Temporarily. 3 THE SECRETARY: Calendar Number 4 157, by Senator Padavan, Senate Bill Number 5 3248, Education Law. 6 ACTING PRESIDENT LIBOUS: Read 7 the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT LIBOUS: Call 11 the roll. 12 (The Secretary called the roll.) 13 SENATOR GOLD: Hold on one 14 second, please. 15 Mr. President. 16 ACTING PRESIDENT LIBOUS: Senator 17 Gold. 18 SENATOR GOLD: Just to explain my 19 vote. 20 ACTING PRESIDENT LIBOUS: Senator 21 Gold to explain his vote. 22 SENATOR GOLD: I would like to 23 refresh the recollection of Senator DeFrancisco, 1 who joined with Senator Smith and Paterson, 2 Connor, Galiber, Leichter, Montgomery, in the 3 negative last year. 4 I'm in the affirmative. 5 ACTING PRESIDENT LIBOUS: 6 Results. 7 Senator Stachowski. Senator 8 Stachowski to explain his vote. 9 SENATOR STACHOWSKI: Mr. 10 President. I just wanted to thank Senator 11 Padavan for laying this aside for one day for 12 me, and that I spoke to my Mayor, and he gave me 13 no indication that his position has changed. So 14 since I voted "No" two years ago and then he 15 convinced me when he was the candidate for Mayor 16 to vote for this, and since he gave me no reason 17 to vote against it yet, I'm going to support my 18 Mayor and vote yes again, and I hope he is 19 happy. 20 ACTING PRESIDENT LIBOUS: Excuse 21 me, Senator Gold. Senator Gold, did you say you 22 were in the affirmative? 23 SENATOR GOLD: Yes. I'm with the 1 distinguished gentleman from Buffalo. 2 THE SECRETARY: Those recorded in 3 the negative on Calendar Number 157 are Senators 4 DeFrancisco, Galiber, Leichter, Montgomery, 5 Smith and Waldon. 6 SENATOR GALIBER: How was I 7 recorded on this vote. 8 THE SECRETARY: "No." 9 SENATOR GALIBER: Yes. 10 ACTING PRESIDENT LIBOUS: Senator 11 Montgomery is in the negative. Senator 12 Montgomery, how do you wish to be recorded? 13 SENATOR MONTGOMERY: I'm in the 14 affirmative. 15 ACTING PRESIDENT LIBOUS: Senator 16 Montgomery in the affirmative. 17 Senator Present. 18 SENATOR PRESENT: Mr. President. 19 Will you recognize Senator Saland, please. 20 ACTING PRESIDENT LIBOUS: Senator 21 Saland. 22 SENATOR SALAND: Thank you, Mr. 23 President. Unfortunately, when the session 1 began, I was detained, unable to be here on the 2 floor a bit earlier. What I would like to do is 3 very briefly interrupt the proceedings. 4 ACTING PRESIDENT LIBOUS: Senator 5 Saland, can we just finish the results on this 6 bill? Please. 7 SENATOR SALAND: Certainly, Mr. 8 President. 9 THE SECRETARY: Calendar Number 10 157, those recorded in the negative are Senators 11 DeFrancisco, Leichter, Smith and Waldon. Ayes 12 56. Nays 4. 13 ACTING PRESIDENT LIBOUS: The 14 bill is passed. 15 Senator Saland. 16 SENATOR SALAND: Thank you again, 17 Mr. President. As I had started to say, I 18 wasn't on the floor at the moment the session 19 began a bit earlier, and what I would have done 20 at that point, I would like to have the 21 opportunity to do now, which is recognize a 22 young woman who is "Miss Teen New York" who 23 resides in my Senate district. 1 She is here with her mother. The 2 young lady's name is Heather Mahar. Her mother 3 is Jan Mahar, who just happens to be the 4 president of my school district, Spakenkill 5 School District, and they are seated in the 6 chamber here to my rear. 7 I appreciate your recognizing 8 them. 9 ACTING PRESIDENT LIBOUS: Heather 10 and Jan, on behalf of my colleagues here, 11 members of the Senate, we certainly welcome you 12 to the chamber this afternoon. We hope you and 13 your mother have a very enjoyable visit, and we 14 congratulate you on being "Miss Teen New York," 15 and welcome to the chamber. 16 (Applause.) 17 THE SECRETARY: Calendar Number 18 181, by Senator Volker. 19 SENATOR PRESENT: Lay it aside 20 temporarily. 21 ACTING PRESIDENT LIBOUS: Lay 181 22 aside temporarily. 23 THE SECRETARY: Calendar 191, by 1 Senator Volker, Senate Bill Number 6350, an act 2 to amend the Penal Law, the Criminal Procedure 3 Law, the Judiciary Law, and the County Law, in 4 relation to the imposition of the death penalty. 5 ACTING PRESIDENT LIBOUS: Senator 6 Volker, explanation please. 7 SENATOR VOLKER: Mr. President. 8 Let me just start out by saying that this is the 9 -- unfortunately, the eighteenth time that I 10 have attempted this process since 1977. As I 11 said on many occasions, I would always hope that 12 this would be the end of this process, which I 13 am convinced, unfortunately, the lack of a death 14 penalty in this state has unquestionably created 15 part of the climate that we find ourselves faced 16 with. 17 For those of you that are new or 18 -- several people here, of course, are very 19 new. This process has gone on for a number of 20 years. The bill that we have here is basically 21 the same bill that we have had for a number of 22 years. There were some changes made in various 23 sections here several years ago, but it is 1 basically the same bill that was drafted a 2 number of years ago in response to a federal 3 court decision and state court decisions on the 4 issue of the death penalty. 5 It is a bifurcated jury system 6 bill which complies with the Supreme Court 7 restrictions. By that I mean the way the 8 process works is that first the person who is 9 involved would be convicted of -- convicted of 10 the crime -- in other words, murder -- and then, 11 assuming that there was one of the so-called 12 aggravating circumstances that are included in 13 this bill, then a second trial would commence on 14 the issue of the death penalty or a life term. 15 There are a number of protections 16 in this bill. At times, I think, that 17 unfortunately over the years because this debate 18 has gone on so long, there are not a lot of 19 people outside this chamber that ever read this 20 bill. In fact, I'm constantly questioned as to 21 the fact that I should add something in the bill 22 that would protect defendants. 23 For instance, we should do 1 something about counsel fees. That's in the 2 bill. This bill waives all restrictions on 3 counsel fees, enables a judge in a capital case 4 to award fees to not only the counsel but also 5 to investigators and so forth way over and above 6 anything that is in normal cases, and the reason 7 is obvious, because of the type of case. 8 It also says that people who 9 represent individuals in these capital cases 10 must have at least five years -- one of the 11 attorneys must have at least five years 12 experience in the trial of felony cases and five 13 years experience, if there should be appeals, on 14 the appeals side. 15 There is a provision in here for 16 a direct appeal to the Court of Appeals, and the 17 reason for that is -- and that's on the issue of 18 -- the various issues that are 19 characteristically the most controversial, such 20 as proportionality. That means whether the 21 sentence is proportionate to the crime and 22 whether other crimes are sentenced in the same 23 way, the issue of race, and emotional kinds of 1 issues of those kinds. 2 The reason for that is, is to 3 give that defendant a quick and immediate option 4 to reach the Court of Appeals and make decisions 5 should it turn out that there is something in 6 that trial that stands out as improper or 7 unnatural as far as the case is concerned. It 8 does not restrict the ability of that defendant, 9 obviously, to make further appeals. But many 10 people who are practiced in that kind of field 11 say that what that will do is, it will probably 12 will work two ways. One, it will give the 13 defendant an opportunity to make his case even 14 more quickly; but, in a second front, it will 15 also move death penalty cases along much more 16 quickly. And, presumably, should a person be 17 clearly guilty and the trial be done properly 18 and the decision be made, very honestly would 19 presumably allow executions on a much more rapid 20 basis. 21 Now, there has been a lot of talk 22 here. In fact, a lot of the emphasis in this 23 session on crime, unfortunately, has been on 1 guns. I say it's unfortunate because it fits 2 right in with what's happened in this country 3 and in the state. Instead of zeroing in on the 4 individuals, we blame everyone else. We blame 5 implements. We blame all sorts of things for 6 crime. 7 If you watch the spectacular 8 trials on television these days -- and by the 9 way, I must be honest with you as somebody, some 10 of you know here, who has had great misgivings 11 over the years on trials on television and the 12 use of television in courtrooms, I'm afraid I've 13 taken an extremely dim view of some of the 14 things that I've seen in some of these trials. 15 No one is going to tell me that 16 the Menendez trial wasn't affected by television 17 -- or a number of these other cases. But the 18 thing I think that was most disconcerting was 19 that the victims were on trial, and most of 20 these victims were dead. The victims were on 21 trial. It was almost as if what was being said 22 was, well, these were not nice people; and, 23 therefore, the people who killed them shouldn't 1 be brought to justice, shouldn't be made to pay, 2 because somehow these weren't particularly nice 3 people. 4 And, you know, I thought about 5 that. And, ladies and gentlemen of the Senate, 6 it fits right in, unfortunately, with what's 7 been happening in this country and this state; 8 and, unfortunately, it fits in with the decision 9 that other people made. And there is only one 10 person here in the Senate who was here when the 11 decision was made in 1965 to virtually abolish 12 the death penalty. It fits in with the 13 unfortunate part, and it was never meant to be 14 that way. 15 The abolition of the death 16 penalty was meant to be a decision -- at a time, 17 by the way, when the murder rate was low and 18 violent crime was fairly low. People thought 19 there ought to be another way. There ought to 20 be a better way to do it. 21 It was meant to send a message of 22 peace and of security and to say we really don't 23 want to do that. The state shouldn't do that. 1 "Unfortunately," people like my father and 2 other people said, "that's not the message you 3 are going to send." You mark my words. The 4 message you will send is that life is cheaper, 5 that we don't blame people for their actions, 6 that we don't make people accountable. 7 If you look at over the years 8 what's happened -- and that's the problem, by 9 the way, with gun laws. They don't make the 10 people accountable. They try to make the guns 11 accountable. The death penalty says to those 12 who would kill, "Look, if you take a life, you 13 better be prepared to face the strong 14 possibility that you may have to give yours." 15 By the way, people ask me all the 16 time, would the Long Island Rail Road shooting 17 be included under this bill? Absolutely. Would 18 the World Trade Center bombing be included under 19 this bill? And by that I mean would it be 20 subject to it? Naturally, it would be up to the 21 jury. Would the World Trade Center bombing? Of 22 course. Would the shooting on the Brooklyn 23 Bridge of the Hasidic students, would that be? 1 Absolutely. The bombing upstate, the bombings 2 of the same -- or family, the killings in that 3 family, would that have been included? 4 Absolutely. They would have all been included. 5 In fact, the interesting thing 6 about the World Trade Center bombing is that 7 those people technically could be tried under 8 either state or federal law, obviously; but, of 9 course, under federal law, they could be subject 10 potentially to the death penalty; but in this 11 state at this point, they could only be subject 12 to life terms. 13 I think that we have to face up 14 to something in our society, something that I 15 think maybe the press is unable to do. The 16 press is unable to face up to the fact that our 17 society has reached a crisis stage of 18 accountability. You can't say it's somebody 19 else's fault. You can't say that that killing 20 was not my fault. It's my parents' fault. It's 21 because I was an abused child. It's because I 22 was this or who I am or what I am. 23 Because what we're beginning to 1 realize I think in society is that wherever you 2 are or whoever you are, a strong possibility is 3 that you can be the subject of a violent crime, 4 and the person who commits that crime is not an 5 identifiable race, creed or whatever, because it 6 could be anybody. 7 You know, I listen sometimes to 8 people who want to blame all sorts of different 9 races and sexes and all sorts of things. It's 10 really foolish when you think about it. Because 11 what has happened is our disregard for human 12 life has descended to the point that we now have 13 the situation where universally -- universally, 14 wherever you live in this state -- it is true 15 that there are parts of this state that are more 16 dangerous than others, but the truth is that 17 wherever you live, the possibility is that you 18 could be subjected to a situation where your 19 life could be taken away from you. 20 I was talking to a gentleman here 21 a couple of weeks ago from india, and we were 22 talking about a completely different subject. 23 It was in regard to health care and, suddenly, 1 the issue turned to the death penalty. And he 2 said, "I know you people in Albany are not going 3 to do the death penalty because," he said, "you 4 don't have the courage or the understanding." 5 He said, "You still think that 6 somehow you can play around with these kinds of 7 people with this kind of issue." "You have to 8 live in a country like India," he said, "to 9 understand that you can't do that." 10 He made an interesting point. 11 His point was that we really haven't had the 12 courage in this country to deal straight up with 13 this kind of issue. 14 I said to him, you may be right. 15 I will say this. The majority of both houses of 16 the State Legislature, Senate and Assembly, have 17 had the courage. You can certainly argue that 18 maybe the Governor of this state hasn't had the 19 courage; and that, for various reasons, we have 20 not over the years been able to accumulate 21 enough people who have had the courage or just 22 enough people to override and to send that 23 message out to the street because wherever I go 1 -- I must tell you a story. 2 A very prominent law enforcement 3 officer -- this is right at the time when all 4 the frenzy was going on over guns -- said to me 5 privately -- he said, "Senator, you know, it 6 would be a shame if the only thing we did this 7 year is some restriction on guns, which you and 8 I know is not going to do much of anything. If 9 you don't do the death penalty or do some sort 10 of huge message out there to the criminal 11 element, it will be a tragedy." 12 Because the public is ready for 13 it. The public wants it. Because while we were 14 up here talking about esoteric criminal issues, 15 the public back there was saying, What's the 16 matter with you people? Why aren't you doing 17 the kinds of things that need to be done, 18 putting people in jail for long periods of 19 time? 20 And they say, "Well, we've heard 21 that this doesn't work." 22 "Well, we think it better work. 23 We think it has to work. Yeah, you can deal 1 with the ills of society, but with the issue of 2 killing," people have said to me, "look, 3 Senator" -- it's not even the issue of 4 deterrence, because I still argue -- because I 5 look at the numbers. I still argue on the issue 6 of deterrence. 7 But many people have said to me 8 this is an issue of justice. You are going to 9 tell me that some of these vicious killers 10 should be stored in our prison system, that we 11 should take another prisoner from another state 12 who killed two people, one of whom he choked to 13 death with a Christmas tree, with the wire from 14 a Christmas tree, that that killer should be in 15 our prison system who said he wants to be 16 executed? 17 Seems to me that we had better 18 evaluate our priorities. We try to protect 19 people wherever we can. Certainly there are 20 things we haven't done. But if we are going to 21 protect society -- and I was out there at one 22 time as a law enforcement officer, and I won't 23 get into that, but I will tell you this. I am 1 convinced of one thing. This Legislature, this 2 Governor -- and I'm talking about Senate and 3 Assembly and the Governor -- we can pass all the 4 legislation we want this year. And there is a 5 number of things that can be done and probably 6 should be done before this year is out that can 7 help the situation. There is a number of 8 things, and I have listened to people in this 9 chamber who I happen to agree with who say 10 things to me about changing society and families 11 and all that. We spend millions and millions 12 and millions of dollars on education and on 13 social welfare programs. No state in the union 14 spends as much as we do on those kinds of 15 programs. 16 But, ladies and gentlemen of the 17 Senate, there is one action we can take that 18 will send a message to those people out there 19 who would kill, more than any other message we 20 can send, and, in fact, more than that. I 21 happen to believe -- in looking at these 22 numbers, I happen to believe that it's the only 23 way, unfortunately, at this point, that we can 1 send a dramatic message to our constituents that 2 we're really ready to do something; and that 3 message is to pass this bill; and when the 4 governor vetoes it, as inevitably he will, to 5 override it. 6 That message will say to our 7 constituents that we are ready and have the 8 courage to stand up and say to those who will 9 kill, whether it's in the World Trade Center or 10 whether it's on the Long Island Rail Road or 11 whether it's at Buffalo and Rochester, wherever 12 it is, we're tired of it. And we're saying to 13 our constituents and, more so, to those people 14 who would kill, you better be ready to give your 15 own life if you take somebody's life. 16 ACTING PRESIDENT LIBOUS: Senator 17 Gold. 18 SENATOR GOLD: Thank you, Mr. 19 President. 20 Mr. President. "Twenty years 21 have passed since the Supreme Court declared 22 that the death penalty must be imposed fairly 23 and with reasonable consistency or not at all. 1 And despite the effort of the state -- the 2 states and the courts to devise legal formulas 3 and procedural rules to meet this challenge, the 4 death penalty remains fraught with 5 arbitrariness, caprice and mistake." 6 "Experience has taught us that the 7 constitutional goal of eliminating arbitrariness 8 and discrimination from the administration of 9 death can never be achieved without comprising 10 an equally essential component of fundamental 11 fairness - individualized sentencing." 12 Mr. President. I'm going to read 13 you some other things, but these are not my 14 words. These are the words of Justice Blackmun 15 in a dissenting opinion handed down, shocking 16 many people in this country, and it was handed 17 down on February 22nd of this year in the case 18 of Callins v. Collins. 19 Justice Blackmun had, for years, 20 supported the concept that there could be a 21 death penalty in America if A, B, C, D, et 22 cetera. And here is this distinguished jurist, 23 appointed in 1970, who served 23 years on the 1 Supreme Court, having the guts to say what he 2 said in this decision. 3 I say "guts" because there is too 4 much politics in government, as I always say, 5 but many of us feel that if we voted one way 6 once or if we said something once, that is now 7 in stone and everything we do must be somehow be 8 wrapped around that mistake, if it was a mistake 9 that we made, forever. 10 The man is a Supreme Court 11 justice, sworn to uphold the Constitution, and 12 stands up in front of America and says, Twenty 13 years have passed, and what we said and what we 14 thought could be done can't be done. 15 He goes on. The problem is the 16 inevitability of factual, legal, and moral 17 errors gives us a system that we must knowingly 18 kill some defendants wrongfully -- wrongfully 19 kill some, a system that fails to deliver the 20 fair, consistent and reliable sentences of death 21 required by the Constitution. 22 Here is a justice who said you 23 can have in an intellectual vacuum a death 1 penalty administered constitutionally, who then 2 says, When you get out of that intellectual 3 vacuum and into our real world, you can't do it. 4 "Although most of the public 5 seems to desire and the Constitution appears to 6 permit the penalty of death, it is surely beyond 7 dispute that if the death penalty cannot be 8 administered consistently and rationally, it may 9 not be administered at all." 10 "Experience has shown that the 11 consistency and rationality promised in Furman 12 are inversely related to the fairness owed the 13 individual when considering a sentence of 14 death. A step towards consistency is a step" 15 against -- "away from fairness." 16 He closed, "My belief that this 17 court would not enforce the death penalty (even 18 if it could) in accordance with the Constitution 19 is buttressed by the Court's 'obvious eagerness 20 to do away with any restrictions on States' 21 powers to execute whomever and however they 22 please.'" 23 This is just overwhelming. There 1 isn't a doubt in my mind that the death penalty, 2 as such, is not an issue in the New York State 3 Senate as to whether it will pass, whether or 4 not there are enough votes to override a veto 5 because, unfortunately, we're in an election 6 year. We are very close to a constituency 7 group. We are not United States Supreme Court 8 Justices who are a little bit aloof from that 9 kind of jeopardy that I have just described. 10 But it really is a shame. 11 It's a shame because while I have 12 pointed out to this body that in states such as 13 Florida and Texas, which execute more people 14 than anyone else in America, they have 15 horrifying homicide problems. Texas is a place 16 where I think more police officers get executed 17 than any place else. Florida has been all over 18 the newspapers in the last year. And as a 19 matter of fact, my wife and I went away in 20 December for our 35th wedding anniversary, went 21 to Nassau. It was flooded with tourists from 22 Europe who normally come to America and are 23 afraid to go to Florida now because of what 1 happened. Florida has the death penalty. 2 But no matter how much of that we 3 talk about -- there's statistics that say that 4 if you have the death penalty in a state murder 5 goes up in many places -- none of that seems to 6 break down the wall of resistance that people 7 who favor the death penalty have in hanging on 8 to that as the linchpin of their criminal 9 justice package. 10 Maybe -- maybe -- Justice 11 Blackmun can have an effect on some of you. 12 This is an extraordinary statement by a 13 respected judge. I mean can you imagine that? 14 Twenty-three years on the bench, and the judge 15 has the courage and the intestinal fortitude and 16 personal integrity to come out with the decision 17 that he did. 18 I want to make one other point, 19 and then I will sit down. I have expressed at 20 length -- and I won't this time -- on other 21 occasions how I can respect anybody's opinion on 22 this issue but that I resent it when we pointed 23 to the Almighty and blamed God for our votes on 1 capital punishment. "An eye for an eye"; "Thou 2 shalt not kill"; they point to everything. 3 In this last week when we had 4 this disgusting, disgusting incident in which 5 Aaron Halberstam lost his life, there was a call 6 from some people in the Jewish community for the 7 death penalty. 8 And while I enjoy reading Jewish 9 literature and Talmud and Torah and the like and 10 Jewish law, I do not pretend to have the 11 scholarship of some of the Hasidic rabbis, but I 12 will tell you it is my belief, my very firm 13 belief, that under Talmudic Jewish law the 14 killer of Aaron Halberstam could not be given a 15 death penalty. Could not be given a death 16 penalty. Because under Jewish law, before you 17 could get the death penalty, there was a whole 18 cadre of conditions. There had to be a certain 19 amount of witnesses. There had to be statements 20 made to the killer. Do you know that if you 21 kill you can get the death penalty? And there 22 was a saying that if a court sent one person to 23 death in 70 years, it was considered a strict - 1 a very strict and a very harsh court. 2 Under Jewish law, you could get 3 death penalty theoretically for not being - 4 disrespectful to your parent. I mean there were 5 all kinds of things, and you have to take this 6 into a proper perspective. 7 And I admire greatly the people 8 who spend their lives in the study of Jewish law 9 and in any kind of religious law and in any kind 10 of religious endeavor. But I urge upon you, if 11 you have come to an intellectual conclusion that 12 the death penalty is a deterrent, that the death 13 penalty is this, that, or the other thing, then 14 go with that conclusion. 15 But I urge upon you -- I have 16 seen memos from the Catholic Diocese and others 17 -- if we vote to kill people, we are not doing 18 the Lord's work in my humble opinion. And I - 19 and I -- I think we should just keep those 20 issues straight. 21 I also think I would be remiss, 22 and I'll say this in closing, if I didn't pay 23 some respect to a public official who I think in 1 this state has an enormous amount of courage. 2 The argument, the debate, over the death penalty 3 is a legitimate debate, but I will tell you 4 this. We have a governor who I think has 5 extraordinary courage, not because he has a 6 position and sticks with it but because it is 7 this particular issue with this heat and with 8 this political danger. And he says to the 9 people of this state, You elected me to do what 10 I think is right and in the best interests of 11 our population, and I am doing it. And he 12 realizes the political jeopardy, and he is 13 certainly to be respected and honored for that 14 degree of integrity. 15 But I suggest to you that he 16 doesn't leave it at that. And one of the sore 17 spots in the history of this house of the 18 legislature for the last eight, ten years is our 19 failure to pass life without parole; and it is 20 my opinion that it hasn't passed because, by 21 passing it, it would soften the political 22 pressure for the death penalty; and there are 23 people who don't want that softened. And I am 1 not in any way casting any dispersions upon my 2 colleague Senator Volker, whom I respect in 3 public and in private and who I know feels very, 4 very sincerely about this issue. 5 But the fact remains, that during 6 the past eight years or so, we did have the 7 capacity to put people away and throw away the 8 key -- throw away the key -- and we did not take 9 that opportunity, and that is a shame because 10 the fact is that this debate could have gone on 11 on capital punishment, and there would have been 12 people sentenced under a much harsher law. 13 So, Mr. President, you can't be 14 good at everything, but I think I'm good at 15 counting, and I know that this is a difficult 16 issue, and that the bill probably will prevail, 17 but I think it's a shame, and I would say to any 18 of my colleagues who are so inclined to change 19 their minds that if someone of the stature of 20 Justice Blackmun can do it in public and stand 21 up for what he believed is right even though it 22 was a change of position, I think certainly we 23 can do that, too. 1 ACTING PRESIDENT LIBOUS: Senator 2 Saland. 3 SENATOR SALAND: Thank you, Mr. 4 President. 5 My colleagues. Permit me, if I 6 might, a rhetorical question. This seems to 7 come up time and again in each of these debates, 8 and I've said to those who oppose this debate - 9 who oppose this bill, I certainly respect your 10 opinion. I've never denigrated it. And somehow 11 or other, I'm troubled and continued to be 12 troubled by the fact that those who oppose the 13 death penalty are people who should be honored, 14 people who have integrity and people who have 15 fortitude. I won't take that away from those 16 who -- who oppose the death penalty. But, 17 implicitly, it means that those of us who 18 support the death penalty are somehow or other 19 lesser people; somehow or other, we don't 20 believe as passionately or as fervently, and 21 somehow or other, there are no intellectual 22 bases for the manner by which we arrive at our 23 decision. 1 Now, with all due respects to 2 Justice Blackmun, who has presided for some 23 3 years in the United States Supreme Court, I 4 doubt that there's any of us who would agree 5 with each and every decision that he has either 6 written or each and every decision upon which he 7 has ruled, and I really don't view him as being 8 particularly relevant to this debate, other than 9 for purposes of buttressing annecdotally the 10 position of those who oppose. 11 Now, in Senator Gold's remarks, 12 he made reference to the states of Florida and 13 Texas and said, I think, something to the 14 effect, I believe, that they have more police 15 killings there or a disproportionately high rate 16 of police killings. I don't recall the exact 17 same thing. And I don't know if any of us has 18 heard from either the state of Florida or the 19 state of Texas or from any other police 20 organization that they are so concerned that 21 there is a connection between the death penalty 22 and the murder of police that they oppose the 23 death penalty. 1 The reality is that there is not 2 a police organization that I'm aware of that 3 doesn't support the death penalty, and they 4 believe that it's a very vital tool for them. 5 Let me start off by saying, if 6 there's anybody in this chamber who believes 7 that somehow or other the death penalty is a 8 panacea for the ills, the criminal ills of our 9 society, you're backing the wrong horse. It is 10 not a panacea for the criminal ills of our 11 society. But, nonetheless, it is an important 12 weapon in the arsenal against crime, because 13 there are some people who by their very conduct 14 do things that are so grossly beyond the pale of 15 anything that we would consider to be acceptable 16 that they, by their acts, have, in effect, taken 17 themselves so far out of the mainstream that by 18 their premedicated acts -- and we are talking 19 premeditation here. This isn't a case where 20 somebody gets drunk and hops up on the curb and 21 kills somebody in a car. This isn't a case 22 where someone comes rushing into a bedroom only 23 to find his lover in the embrace of somebody 1 else and, in a moment of blind passion, either 2 strangles that person or shoots that person. We 3 don't have the premedication there. 4 This bill is a carefully crafted 5 bill. I have read the bills of several other 6 states, including the Texas statute, including 7 the Florida statute. I believe I have read the 8 Georgia statute, as well. And if you look to 9 the evolution of what has occurred since the 10 Furman case and the Gregg case, you will see 11 that the Supreme Court, notwithstanding Justice 12 Blackmun's most recent comments, have charted a 13 course; and that course says that if you do 14 certain things, we will view your proposal or 15 your law as being constitutional. 16 Some 37 states have accomplished 17 that. I see no reason why we shouldn't be the 18 378. That's an issue that remains to be seen. 19 And, by the way, speaking of the 20 Governor and speaking of life without parole - 21 a very interesting issue -- the Governor, time 22 and again, talks about life without parole. The 23 Governor says that he offers life without parole 1 as an alternative. Always it's an 2 "alternative." "Alternative." "Alternative." 3 "Alternative." 4 Let's not be disingenuous, and 5 let's not play a semantic game. The Governor 6 offers it as a substitute. He doesn't say, I 7 will give you a bill that has life without 8 parole and has the death penalty. He says, Take 9 it or leave it. My substitute, not alternative, 10 is life without parole. So let's cut to the 11 quick on that one and not hide behind it. 12 Now, when you look at this bill, 13 you see a bill that meets every constitutional 14 test. You see a bill that provides for a 15 bifurcated trial. That's what the Supreme Court 16 said. You have 12 jurors who will determine 17 whether there's guilt or innocence. 18 And, by the way, it would pay to 19 read the bill because the bill will tell you a 20 lot. 21 Twelve jurors who determine the 22 question of guilt or innocence. If they are 23 guilty, there's another 12 jurors who will then 1 make the decision as to whether or not the death 2 penalty would apply. And if all 24 of those 3 jurors don't agree, there is no death penalty. 4 If on the sentencing part of the 5 equation, eleven of the jurors say yes and one 6 says no, still no death penalty. And unlike all 7 other cases, you can't even be retried. It's 8 just on the sentencing part of the trial. So 9 you don't get a second bite of the apple. No 10 mistrial. That's it. It's over. 11 There is no nation on the face of 12 this Earth that has bent over further to take 13 the right of individuals. Nobody. There's not 14 a society anywhere, even the society from which 15 we supposedly inherited our common law, the 16 English, they don't bend over as far backwards 17 to accommodate the rights of individuals as we 18 do. 19 Now, the Supreme Court in 20 addition to saying got to have a bifurcated 21 trial said you got to look at the mitigating and 22 aggravating circumstances. We do that in this 23 bill. We provide that those circumstances have 1 to substantial outweigh -- aggravating has to 2 substantially outweigh mitigating. 3 For those who say that the death 4 penalty is not a deterrent, and Senator Gold in 5 his comments made some reference to -- and let 6 me see if I can find his exact words. He said 7 in some states -- not all necessarily, but in 8 some states that have the death penalty, murder 9 goes up in many places. 10 Now, we can massage the 11 statistics all we want, but let me suggest to 12 you -- and I have here a copy of the January 23, 13 1994 issue of the Albany Times Union referring 14 to FBI statistics, and let me not say that they 15 are conclusive, but let me just read for you in 16 part. 17 "Since 1977, which is when we 18 get into the Gregg case," the year Gary Gilmore 19 was executed in Utah, the data shows New York's 20 rate has the fifth highest increase over a 21 fifteen-year period. The murder rate here in 22 1992 was 23 percent higher than it had been in 23 1977, while the national average was up 6 1 percent." 2 And then it goes on to cite, "In 3 those fifteen years, 37 states have enacted new 4 death penalty statutes. Murder rates have gone 5 down in 22 of those states but have risen in 6 another 14, and one state remained the same. 7 Among the 13 states without a death penalty, 8 murder rates have gone up in eight, down in 9 four." 10 And then they list the big 11 winners and the big losers. Murder rate 12 increases: Hawaii up 50 percent; no death 13 penalty. New Hampshire up 50 percent; has a 14 death penalty. Montana up 46 percent; has a 15 death penalty. Kentucky up 43 percent -- I'm 16 sorry. 17 Those are down. I apologize. 18 Hawaii down 50 percent; no death penalty. New 19 Hampshire down 50 percent; death penalty. 20 Montana down 46 percent; has a death penalty. 21 Kentucky down 43 percent; has a death penalty. 22 Idaho down 36 percent; has a death penalty. 23 Biggest murder rate increases: 1 North Dakota, no death penalty, up 111 percent. 2 Wisconsin, no death penalty, up 57 percent. 3 Maryland, up 51 percent, has a death penalty. 4 Vermont has a death penalty, up 50 percent. And 5 rated fifth, New York, no death penalty up 23 6 percent. 7 Now, the arguments dealing with 8 deterrents still fail to address the one issue 9 that this issue will never reach, nor will any 10 other issue reach. How do you measure a 11 negative? It's incapable of being measured. 12 How do you know about the 13 individual who premeditated a murder, planned 14 it, who went out and bought the poison, went out 15 and bought the weapon? By whatever instrument 16 he or she chose to kill and then for fear of the 17 death penalty said, "I'm not going to do it. 18 I'm going to pull the plug. I'm going to back 19 off." 20 I hate my partner. He's been 21 stealing me blind. 22 I hate my spouse. They've been 23 cheating on me left and right. 1000 1 But it's just not worth the 2 risk. 3 How do you measure that? 4 Let's assume that person goes to 5 their clergyman and confesses. Clergyman can't 6 tell anybody. And even if they could, it would 7 be inadmissible. 8 How do you measure the negative? 9 No way in the world you can measure a negative. 10 In no statistic anywhere can you determine who 11 backed off a premeditated murder. 12 Now, there are questions 13 involving the possibility of prejudice; that 14 some how or another, this penalty is fraught 15 with prejudice. Remember, we're in New York. 16 We're not in some backwater state. 17 Is there anybody here who 18 believes that our Court of Appeals, particularly 19 in criminal justice issues, certainly by 20 comparison to any other highest tribunal in the 21 49 other states is not if not the most liberal 22 in its interpretation of criminal laws then, if 23 not, it certainly is not surpassed by anybody? 1001 1 You only have to look at some of 2 the case decisions that have us dealing in the 3 criminal world in a fashion that most, if not 4 many, law enforcement officials would prefer 5 dealing in another forum on. 6 But on this issue, let's look at 7 the bill. You've got the right of an immediate 8 appeal. You go to the Court of Appeals; and, 9 guess what, the state foots the bill? You are 10 required to have experienced counsel? Counsel 11 has got to have at least five years of practice 12 experience and three years of trial experience. 13 But on the question of the 14 possibility of prejudice, when the Court of 15 Appeals looks at the bill, in order to determine 16 the validity of the sentence, it has to 17 determine whether it was imposed under the 18 influence of passion, prejudice or any other 19 arbitrary factors. And then it has to determine 20 whether the sentence of death is excessive or 21 disproportionate to the penalty imposed in 22 similar cases, if any. 23 I can tell you with certainty the 1002 1 statutes that I have looked at in the other 2 states contain no similar provision. I'm not 3 aware that their case law provides any similar 4 provision, although I can't tell you I have 5 looked at the case law. 6 What you are talking about, 7 ladies and gentlemen, is a very carefully 8 crafted bill. During the evolution of this bill 9 during the multiple debates we've had on this 10 bill, dealing with the subject of prejudice, 11 dealing with the subject of as some would say 12 the possibility of racism creeping into this, 13 there is a U.S. Supreme Court decision, probably 14 some three, four, five years ago now, the Batson 15 case, Batson against Kentucky. 16 Batson against Kentucky basically 17 set the world of jury selection upside down when 18 the Supreme Court in that case said if you are 19 going to exclude people based on race, the 20 defendant doesn't have to show a pattern; it's 21 enough that they feel you have done it in that 22 case. And if you do it in that case, you run 23 the risk of being bounced out. You run the risk 1003 1 even if your trial is over of effectively being 2 overruled. 3 And believe it or not, that's 4 happened here in New York. In People v. Peart 5 Appellate Division, 2nd Department, where there 6 were two -- according to the account two black 7 members of a jury panel who were denied that 8 panel by preemptory challenges of a district 9 attorney. The district attorney said -- the 10 prosecutor said that one of the two potential 11 black jurors were excluded because he did not 12 appear to be a strong prosecution juror and, 13 instead, was neutral. 14 The Appellate Division basically 15 said we don't buy that. That's not good enough 16 you can't hide behind that. The purpose of the 17 Batson ruling is to eliminate discrimination not 18 to minimize it, and the exclusion of any blacks 19 solely because of their race is constitutionally 20 forbidden. The prosecutor's bare assertion 21 unsupported by any facts was an insufficient 22 explanation. 23 This is New York, folks. There 1004 1 is nobody anywhere who is going to show one case 2 in the evolution of cases since 1977 in which 3 there has been a mistake. Not one single case. 4 That's even been admitted by the Civil Liberties 5 Union. Although I haven't seen their materials 6 in the past several years, they made that 7 admission a few years ago. No mistakes. 8 You can't point to things that 9 have happened under prior law. You can't point 10 to things that happened back in 1977, because 11 these people weren't tried under this statute. 12 They weren't tried in a situation where they had 13 ability to have 24 jurors. They weren't tried 14 in a situation in which the prosecution had to 15 establish beyond a reasonable doubt that the 16 aggravating circumstances outweighed the 17 mitigating circumstances. They weren't tried in 18 that environment. 19 I tend to doubt that there is 20 anybody in this chamber, anybody in this chamber 21 who if they were one of the twelve jurors who 22 had to consider whether Adolf Eichman would be 23 subjected to the death penalty would have hung 1005 1 that jury. I certainly wouldn't have been the 2 one to hold a jury, hang a jury. That man, if 3 you want to call him a man, committed the most 4 barbaric and inconceivable crimes upon 5 humanity. Millions and millions of people were 6 condemned to death by this evil, evil being. No 7 justification whatsoever for sustaining the life 8 of that person. 9 And then, for me, it becomes a 10 relatively easy quantum leap to get to a mass 11 murderer. It's a relatively easy thing for me 12 to say if somebody comes barreling into a house 13 of worship and because they don't like the way 14 you worship, they don't like the color of your 15 skin, they don't like your ethnic origin, they 16 indiscriminately start shooting up the place and 17 kill a number of people. I don't have a problem 18 with that person being subjected to the death 19 penalty. 20 I don't have a problem with the 21 person who breaks into a house, robs, perhaps 22 rapes, then kills the victim because they don't 23 want to leave a witness. I don't have that 1006 1 problem at all. 2 There are some carefully 3 enumerated categories here in which the death 4 penalty could be applied. I don't have a 5 problem with a one of them. A police officer is 6 killed in the line of duty, a police officer is 7 killed -- correction officer killed in the line 8 of duty. I don't have a problem. Or if a lifer 9 serving a life sentence kills, I don't have a 10 problem. And you remember the Lemuel Smith 11 case? That man was a prisoner in Green Haven 12 prison while sentenced there. You know, he 13 killed four people, by the way, not once, not 14 twice, not three, not four times, but we gave 15 him the opportunity to kill a fifth time. He 16 killed a female correction officer, Donna 17 Payant, for those who remember. The guy 18 shouldn't have had the opportunity. 19 We have the instance in which you 20 kill because somebody witnessed a crime, an 21 illegal witness. I don't have a problem. No 22 problem for me to say a contract killer should 23 be put to death upon conviction. No problem 1007 1 with a felony murder. No problem with somebody 2 who might want to torture his victim prior to 3 killing them for a while, with intention to 4 cause intense suffering, find the victim in a 5 parking lot, which is a part of the natural 6 consequences of a crime. Or how about somebody 7 who plants a bomb in a crowded terminal, bus 8 terminal, airport terminal? In the course of 9 the crime, the defendant knowingly or recklessly 10 created a substantial risk of death to many 11 persons. I don't have a problem with that. 12 Ladies and gentlemen, what I have 13 a problem with is somehow or other being told 14 that, because I support the death penalty, my 15 beliefs are less than your beliefs. I'm really 16 troubled by that. I don't want to be subjected 17 to some elitist rhetoric that says you can't 18 believe in the death penalty because it's not 19 the right thing to do. 20 Let me tell you I've lived 21 through an experience and I've long been a 22 proponent of the death penalty, long before I 23 had to endure this experience. Somebody robbed 1008 1 my son, tied him up, stole the things in his 2 room and around the house and then tried to beat 3 him to death so that they wouldn't leave a 4 witness. The man is serving a life sentence. 5 He had done it before. Perhaps I use the term 6 "man" indiscriminately, but perhaps I should 7 use the term "animal" as much as that might 8 offend some people. 9 But let me tell you, I felt then 10 and I feel now, if I could take that man's life 11 I would, and I feel no shame about it. He tried 12 to take away something that was very precious to 13 me and he did it with the vilest of intents, 14 just not to leave a witness. 15 So please let's disagree as we 16 must, but let's not question the motives that 17 get us to where we get, and let's not, simply 18 because you feel it's your right, say that I'm 19 wrong and those of us who support the death 20 penalty are wrong. We will, one day, have a 21 death penalty in New York. It's just a question 22 of time. I would hope that this would be the 23 time. It's the right time. It was the right 1009 1 time last year, it was the right time the year 2 before that. It's been the right time for the 3 past 15 or 16 years, but perhaps this will be 4 the time. 5 Thank you, Mr. President. 6 ACTING PRESIDENT LIBOUS: Senator 7 Marchi. 8 SENATOR MARCHI: Yes, Mr. 9 President. 10 I -- I'm not a newcomer to the 11 position that I will take here this evening. I 12 go back to college days when -- when the debate 13 was very active in our country. There were 14 about six states that did not have the death 15 penalty, and any statistical analysis did not 16 prove or disprove any or sustain any point of 17 view. Indeed, there were confrontations made, 18 for instance, between the state of Michigan and 19 the Canadian -- the other side of the Michigan 20 -- the city of Windsor where they had a death 21 penalty, and they had a higher homicide -- rate 22 of homicide than they did in the state of 23 Michigan, which was also an industrial and 1010 1 similar in every conceivable way in its make-up 2 and social attitudes. 3 It goes back to the days of 4 Thucydides, from Cesare Beccaria, the Italian 5 penologist, who gave it its fresh face, that 6 we're dealing with a problem of humanity. 7 Certainly this is not to depreciate anybody that 8 has -- holds the contrary point of view. We 9 have no right to assume any ascendancy based on 10 a conscientious and objective evaluation of what 11 this means in public policy, and most of all I 12 certainly have to say that there couldn't be a 13 better example of humanity and compassion and 14 good conscience and reason than my colleague, 15 Senator Volker. 16 But we are invited, I believe we 17 should be invited to consider this -- consider 18 our positions, consider what we are doing in 19 terms of public policy, in terms of eliciting 20 the best that may be in our society and then 21 making a determination whether this really 22 squares with the public good. 23 The arguments have been made in 1011 1 the past. Charles Dickens once put the argument 2 of deterrence under a jeweler's eye. He inter 3 viewed 267 people who were executed in London. 4 At that time, it was a public spectacle. 5 Thousands of people would assemble. 6 SENATOR GALIBER: Pardon me. 7 Would you suffer an interruption, Senator? Mr. 8 President, I -- I really can't hear, first of 9 all. It's an important debate. I'd like to 10 have some order. 11 ACTING PRESIDENT DALY: The 12 Senator has a good point. Please, can we have 13 order in the house. 14 Senator Marchi. 15 SENATOR MARCHI: Thank you, Mr. 16 President. Thank you, Senator. This is not a 17 light matter, and it should have our attention, 18 serious attention. He interviewed these 267 19 people who were being executed publicly with 20 thousands attending. 264 of them had witnessed 21 prior executions. What did they find out from 22 those 264 people? Did we bring out the best in 23 them? 1012 1 I submit, Mr. President, that if 2 there is a morbid propensity, you're going to 3 trigger it. You're going to trigger it, and 4 it's going to react and any trappings that 5 society puts on, they can bedeck themselves with 6 maces and wigs, medals, anything you want, 7 you're not impressing anybody. This is law, 8 this is the public speaking, and I'm not 9 speaking to the question of defense in a just 10 war and some of the tangential circumstances 11 that are not involved in this legislation. 12 We're dealing with a very basic 13 subject. Has anyone here ever heard -- you 14 know, we introduce an awful lot of resolutions. 15 Is there any history in this state of a 16 legislative body rewarding or giving a 17 testimonial dinner to an executer? We know it's 18 dirty business. The reason they stopped giving 19 death penalties in this country for a while was 20 very basic. People were not awarding death 21 penalties. In my county, I guess you get 101 22 out of 100 saying we ought to have a death 23 penalty, but the last one that they awarded was 1013 1 in 1921. The same person who might answer a 2 poll or might answer a question, say, yes, of 3 course, but it doesn't -- it doesn't really go 4 to the question whether that person would award 5 the penalty. 6 Our record is squalid compared to 7 the other nations of the world, not in terms of 8 our solicitude, our professed solicitude, but in 9 terms of impact. Life is cheap. Life is cheap 10 and we only make it cheaper when we assign it a 11 lower priority. These are not the better ways. 12 Can we determine this? Can we make a determina 13 tion based on an empirical statistical analysis? 14 I submit no. If State A doubles its homicide 15 rate because this last year they had one with 16 the death penalty, this year they had two with 17 without it, we're dealing with statistics and 18 economics. You can make all those kinds of 19 arguments but unless you put it under statistic 20 al analysis -- and statistical analyses don't 21 serve any useful purpose in this case. 22 We want to bring out the best in 23 people. Why do we have a heightened crime rate 1014 1 and so much disorder? We have drugs; we have so 2 many searing social problems, changing moral 3 attitudes, so things that have developed not 4 because of the absence or presence of a death 5 penalty, but because of mores that are under 6 very severe social stress, and those are the 7 items that we ought to be addressing, not 8 furnishing bad examples, not -- and I'm not 9 saying that this is done intentionally -- but 10 not creating those circumstances that are 11 conducive to a lesser respect for life. 12 Senator Gold mentioned the 13 Talmudic law. It's true, it's almost virtually 14 impossible under the circumstances in the 15 context which would have to be recited and 16 evaluated the way they took place. As a matter 17 of fact, a unanimous verdict wasn't good 18 enough. They said they wanted at least one 19 dissent under the old Talmudic law because that 20 one dissent was further evidence that perhaps 21 everything had been considered. Then, they had 22 other reasons. They had other reasons. 23 I -- I'm not -- I'm not assuming 1015 1 a bully pulpit or anything here. I'm just 2 inviting you -- inviting you to consider these 3 facts, to consider that that squalid ugly mask 4 of death presented by the public is not going to 5 enhance our morality. It's not going to enhance 6 our compassion. It only -- it could only 7 depress it, and those states which have indulged 8 in it very liberally have depressed it. It 9 happens in civil wars; it happens in any 10 circumstances where the taking of life becomes 11 an amoral act almost, and then we're showered 12 with those horrible examples of disrespect and 13 of bestiality towards our neighbor, and that is 14 supposed to move us. 15 We've got to let -- raise the 16 level of our own conscience, of our own 17 sensibility and our own feelings, and it's a 18 slow process. It's not an easy process 19 especially when we're undergoing a period of 20 great, great social turmoil. 21 I would hope that you take it in 22 the spirit in which I extend it to you. I 23 extend it to you on the basis that you're 1016 1 dealing with human beings. We're dealing with 2 human beings, and if we're going to -- if we're 3 going to go forward and display a greater 4 respect for life, we can not do it by presenting 5 a palpable example of really not appreciating 6 the fact of life, lessening that respect that we 7 ought to have for life, no matter how seriously 8 it is challenged, and there are responses - 9 there are responses that are available to a free 10 people. That same England that was going 11 through that great turmoil maybe ends with a 12 hundred -- with a hundred homicides a year. 13 Sights have been lifted. 14 For every -- for every homicide 15 that takes place in this country, you take all 16 of the surrounding countries. Do you know that, 17 for one in those countries that -- where life is 18 shed, we shed 88 in this country? Does that mean 19 we're all bad people? No, we're a young country. 20 Our institutions are developing. Our -- our 21 society is under greater stress in its develop 22 ment, but I would implore you to seriously 23 reflect on any escalation and encouragement 1017 1 which cannot -- it cannot address the basic 2 problem, the basic problem of individuals 3 interacting with other individuals, no matter 4 how fool-proof our laws are. 5 Can you punish? Of course, you 6 can punish. You can restrict, you can do those 7 things that a society has every right to 8 exercise. But I -- if anyone here feels that 9 I'm -- I'm talking that someone's wrong and 10 someone's right, I think we're all sincerely 11 concerned, and I respect the intelligence and 12 the conscience of every single member of this 13 house, and I only ask you, invite you to think 14 about this. Think about it seriously, because 15 it is a serious issue, and I would hope that 16 your determination is one other than taking of 17 life. 18 ACTING PRESIDENT DALY: Thank you 19 very much. 20 Senator Leichter. 21 SENATOR LEICHTER: Mr. President, 22 thank you. 23 My colleague, Senator Gold, 1018 1 certainly set forth in a very clear and rational 2 way many of the reasons why the death penalty 3 does not serve the people of the state of New 4 York. John Marchi expressed really the moral 5 issue involved here and he did it in a way that 6 shows not only the strong moral compass that he 7 has, but he brought to it an intelligence, a 8 passion and a conviction that, frankly, I think 9 anything that is said afterwards, lessens the 10 debate, because he brought it to a level of 11 eloquence that I found really one that one could 12 only admire and could only hold in awe, and in 13 some respects, I wish we could adjourn now and 14 do what John Marchi asked us to do, to think 15 about this issue, not to act instinctively 16 politically. And I appreciate there are people, 17 Senator Saland, who firmly believe in the death 18 penalty, but it does deserve to be considered 19 and thought about and not, Oh, well, I voted for 20 it last year. 21 Justice -- Justice Blackmun came 22 to the consideration of this issue and, after 23 20-some years where he had voted time and time 1019 1 again with the majority of the court, realized 2 that it was wrong. 3 I just, again, want to express my 4 admiration for John Marchi and to say what he 5 does and what he says is real courage. Senator 6 Volker, you talked about courage, and that we 7 wouldn't have the courage to enact a death 8 penalty. I don't know if it's courage to run 9 with the crowd. I think it's courage to come 10 from Staten Island where probably 89 or 94 11 percent of the voters are in favor of the death 12 penalty, and John Marchi says no, it is wrong. 13 You sent me up to Albany to vote my conviction 14 and my conviction is that I will not cheapen 15 life by voting for the death penalty, and people 16 of Staten Island are smart enough to appreciate 17 what a jewel they have in John Marchi. 18 By the way, just talking about 19 the politics of it, of course, we've seen time 20 and time again that, while the public supports 21 the death penalty, no question about it, but 22 that time and time again they don't make that 23 the key factor in deciding whether to vote for 1020 1 and against somebody and, of course, we had this 2 example in Democratic primaries, I believe two 3 years ago, where I think two people who had 4 voted against the death penalty changed their 5 votes or positions in the primary and were 6 defeated. But I don't want to get into the 7 politics of it, although I think it does hang 8 heavily over this bill, but I want to get into 9 some of the other issues that have been raised 10 and to try to see whether we can't understand 11 that our job is to affirm life, to hold up the 12 sanctity of life, and what I've never been able 13 to understand how we uphold that sanctity if we 14 take a life. 15 I think we all deride the old 16 Biblical statement of an eye for an eye and a 17 tooth for a tooth, and we interpret it as 18 meaning that, if you sin against society you 19 will be punished, but we realize that you can 20 not take that admonition literally, and yet 21 that's precisely what we're doing here with this 22 bill and saying, You take a life, it's 23 premeditated, we will take your life; and you've 1021 1 heard the statistics, and so on, about whether 2 or not this is a deterrence or not. In fact, I 3 thought it was interesting that Senator Saland's 4 readings showed very clearly that you could - 5 there was no correlation at all between whether 6 you have the death penalty and what your 7 homicide rate is. In fact, in New York State in 8 the last two years, the homicide rate has gone 9 down. So, so much for that argument. 10 It's clear that the death penalty 11 rests solely on the idea of revenge. It's not a 12 deterrence. It rests solely on revenge. 13 Clearly people who commit homicide must be 14 punished and punished severely. If they commit 15 the sort of homicide which would qualify for the 16 death penalty under the -- under this bill, 17 these are people that must be removed from 18 society, and we believe permanently for the rest 19 of their life. That certainly protects society, 20 and society has a right to be protected. 21 I think the reason that we find 22 this support among the voters, among the 23 citizens, for the death penalty is because they 1022 1 decry the failure on the part of government to 2 deal with violence in our society, and I don't 3 think that the answer that they really want is 4 more violence because that's what the death 5 penalty is, an eye for an eye, a tooth for a 6 tooth, a literal reading of something that we as 7 a civilized society have given up. 8 Yes, punishment, severe 9 punishment; but to impose a death penalty, to 10 impose a penalty which is irreversible and a 11 penalty which says a life can be taken, does not 12 decrease violence, and it does not decrease 13 crime, but it does create severe and serious 14 problems, the first which is inevitable that 15 innocent people will be killed. No matter how 16 careful you are, there are errors. We're 17 human. We're fallible. Juries make mistakes. 18 Judges make mistakes. Even the Court of Appeals 19 makes mistakes. 20 We know that there are 23 21 documented cases of innocent people who have 22 been killed. Eight of these were in New York 23 State. Hardly a month goes by that we don't 1023 1 read about some case, somebody who's languishing 2 in jail sometimes on death row, who was 3 convicted unjustly. Some of you may have seen 4 the movie, "The Thin Blue Line", which was one 5 of those cases. They're bound to happen, and 6 you can't, after you've executed somebody, say, 7 Well, we made a mistake. It's irreversible. 8 The other issue which really must 9 be considered is the inherently discriminatory 10 and, in this country, racial aspect of the way 11 the death penalty is imposed, and it was 12 interesting that Judge Blackmun in his -- in his 13 really very startling dissent, stated -- first, 14 let me just read something that he said about 15 the killing of innocents. This is a person who 16 has participated probably in hundreds of 17 decisions in death penalty cases. He knows what 18 he speaks of, and he says about the execution of 19 innocent: 20 "The problem is the 21 inevitability of factual, legal and moral error 22 gives to the system that we know must wrongly 23 kill some defendants, a system that fails to 1024 1 deliver the fair, consistent and reliable 2 sentences of death required by the 3 Constitution." And, of course, his conclusion 4 is that there is no way that that sentence of 5 death can be applied in a constitutional manner. 6 What he says about -- want to 7 read you the part where he speaks about the 8 racial inequality. Here it is, and I quote 9 again from his opinion: "The arbitrariness 10 inherent in the sentencer's discretion to afford 11 mercy is exacerbated by the problem of race. 12 Even under the most sophisticated death penalty 13 statute, race continues to play a major role in 14 determining who shall live and who shall die. 15 There's no doubt that in every society, 16 unfortunately, also in our society there are 17 those who are considered in some respects less 18 worthy, who tend to become the object of some 19 sort of derision or scorn." 20 And it certainly has been true 21 that blacks, African-Americans, if you will, and 22 Hispanics, have been sent to the death chamber 23 in disproportionate numbers. 1025 1 Senator Saland says, Well, we're 2 not a backwater state. Well, Senator Saland, 3 we're not a backwater state, but we do know that 4 discrimination exists also in this state. 5 Senator Saland says, But we got such a great 6 Court of Appeals. But the death penalty is 7 initially approved by a jury. Court of Appeals 8 deals with legal error. It doesn't deal with 9 the judgments that are made and, in fact, this 10 memorandum in opposition by, I believe the New 11 York State Bar Association, it states, Of the 12 last 19 people executed in New York's electric 13 chair, 14 were African-American, one Hispanic. 14 Continues, data is now undeniable that there is 15 a greater likelihood of being sentenced to death 16 if your victim is white than if your victim is 17 black. The likelihood of a death sentence also 18 increases if the defendant is black. This has 19 been the experience everywhere, including New 20 York State, in the United States where the 21 phenomenon has been reviewed. 22 I think our job is not to be 23 tough on crime, but to be effective. We've 1026 1 tried many approaches and most of them have been 2 to increase penalties, put more people in jail, 3 to pursue the death penalty. And where are we? 4 We have three times as many people in jail as 5 when Senator Volker and I first came to the 6 Legislature. We have a higher crime rate. 7 People feel less secure than they used to be. 8 To come and say, Well, we're going to cure this, 9 we're going to come up with a death penalty and 10 I realize, Senator Saland says, Well, we're not 11 saying it's a panacea, but it will make a 12 statement. 13 It will not make a statement. We 14 know from other states, we know from our own 15 experience, we know from what has happened in 16 the last 20 years that what is required to deal 17 with crime is to deal, yes, tough on criminals 18 but at the same time to deal with those social 19 conditions out of which crime gross, to deal 20 with the moral attitudes in this country and 21 that eventually I think is the most important 22 thing that we can do as law makers, is to lead a 23 moral concern and above all, as I said, to 1027 1 affirm life. 2 The death penalty cheapens life. 3 The death penalty says, life may be taken. The 4 death penalty says government may kill. That's 5 wrong. I just came on a visit to a country 6 where the death penalty was applied to people 7 because they were the wrong religion, because 8 they were Jewish and millions were killed, and I 9 don't want to draw any parallel between death 10 penalty and this darkest of periods in 11 civilization. Obviously not, but the point that 12 we must remember is that once you say that there 13 are some lives that government can take, yes, 14 even lives from people who have committed all 15 the horrible crimes, that it becomes harder and 16 harder to draw a line where government may not 17 kill and the only line that you can draw is to 18 say that government must never kill, that life 19 is too precious, even the life of a -- of a 20 person who has committed a horrible crime, and 21 it is not only his life, but it is the life of 22 all of us who will be -- the life of all of us 23 that will be damaged, that will be cheapened if 1028 1 we take that one life by government saying, we 2 have the right to kill. 3 The death penalty is wrong. It 4 doesn't do what it purports to do, but it will 5 lead to great harm and injury to our society. 6 ACTING PRESIDENT SEWARD: Senator 7 Espada. 8 SENATOR ESPADA: Thank you, Mr. 9 President. 10 Justice Blackmun has been quoted 11 several times here, and I'll indulge in that 12 myself, but just one line really, I think 13 encapsulates it all. He advised or he 14 proclaimed that "from this day forward that I 15 shall no longer tinker with the machine of 16 death." That's a line that has been 17 incorporated today, but unfortunately now that 18 it has we will pay attention. 19 He also has invited us to create 20 something of a public spectacle about this thing 21 that we consider here today the death penalty, 22 kind of get used to it, hold it as a thought, 23 you know. We get visited by children today. 1029 1 They want tuition assistance. They're knocking 2 on our -- on our doors and they were handing us 3 these but the answer, and if we're courageous 4 enough, if we're brave enough to pass this 5 today, why not invite them here and why not kind 6 of participate in that which we're going to 7 sanction in a little bit and pass here, and that 8 is we would all witness someone, as Justice 9 Blackmun so poignantly describes in his dissent, 10 a convicted murderer, intravenous tubes, toxic 11 fluid about to be injected, and we'd all be 12 watching this. We'd have sides. We would 13 choose up sides, who screams and cheers the 14 loudest. Would we be proud of ourselves? 15 I think, if we think of it in 16 that context, we may think a little more like 17 Senator Marchi advises us to do about the 18 sanctity of human life. But Justice Scalia, he 19 would think us soft. He said, you know, the 20 problem with this is that it leads to, he would 21 really prefer to cite different cases, brutal, 22 brutal cases. You watch them on TV; some people 23 personally experience them, and that's really 1030 1 tragic and unfortunate. 2 This guy Scalia says, take the 3 11-year-old girl raped by four men whose under 4 garment was -- she was made to swallow. If, God 5 forbid, that would be someone's daughter or son 6 in this house, we'd all feel like our colleague, 7 want to strike back, want to kill. Such was the 8 case with Kirk Bloodworth. Convicted in 1984 in 9 Maryland of the rape and murder of a young girl, 10 Mr. Bloodworth was sentenced to death. He was 11 granted a new trial and given a life sentence. 12 He was released in 1993, when DNA testing 13 definitely confirmed his innocence. 14 The same was true of Walter 15 McMillan. Mr. McMillan was freed after six 16 years on Alabama's death row when prosecutors 17 conceded that he had been convicted as a result 18 of perjured testimony and withheld evidence. 19 These are real. These are real 20 issues, and my colleague has spoken to that as 21 well. We do make mistakes. Some will say, 22 well, that's just the chance we have to take in 23 order to have a better society; we may have to 1031 1 kill some innocent people in the process. This 2 is not a courageous stance. You know, we talk 3 about the racial issue, and we try to make it 4 part of our history when, in fact, it's present, 5 it's a very part of America; it's unfortunate 6 but true. 7 In 1987, an African-American in 8 the McCloskey versus Kemp case in Georgia and 9 I'll submit to you that this is not just 10 indigenous to Georgia, in the Baltis study which 11 was produced as evidence at this trial, it was 12 demonstrated that blacks who kill whites are 13 sentenced to death at nearly 22 times the rate 14 of blacks who kill blacks and more than 7 times 15 the rate of whites who kill blacks. 16 Race is a factor. Low 17 socio-economic status is a factor. The death 18 penalty is applied in a discriminatory manner. 19 This has been demonstrated. This has been 20 documented, and among western democracies we 21 have the dubious distinction of being the only 22 one that wants to trade in our tradition of 23 fairness and equity to experience more of what I 1032 1 have shared with you. 2 Now, you know, who would we be 3 killing? It's noted some of the shortcomings 4 but from 1986 to 1991 murders committed by 5 teenagers, 14 to 17, grew by 124 percent. Yeah, 6 we'd be killing our children even if they were 7 murderers. You'd be killing our children. 8 That's who we would be killing. 9 Last year, when I first overheard 10 this debate, I had never been a part of a 11 governmental process, an official debate, but 12 something stuck to me and it was the sponsor of 13 this bill and I, too, have experienced his 14 humanity, his compassion in this year and a 15 half, but it was he who said that there are two 16 kind of key votes that we take in this season, 17 this six-month season, the death penalty and the 18 budget, and things have been said about how much 19 we spend. 20 Well, let me just tell you how 21 much you're going to spend if you enact this 22 legislation. You will spend millions and 23 millions to kill people. Put them away without 1033 1 parole, you spend $500,000, destine them to 2 death, and you will spend millions and millions. 3 So it becomes a fiscal issue. 4 Then why not invest in some of the communities, 5 in some of these killing fields that are 6 creating these problems in the first instance? 7 Some will say, well, we're already investing 8 enough without no return. Are we investing 9 enough when we -- when women and children on Aid 10 to Families with Dependent Children don't have 11 enough to pay their rent? 12 We have frozen welfare shelter 13 allowance here. There's talk about it being 14 renewed, but already we're years behind. Deny 15 children and women the down-trodden, shelter, 16 create a violent context in their communities. 17 Allow for the proliferation of guns. Don't 18 listen to Senator Dollinger's signs, day 51, day 19 52, year two, year three and we won't do it and 20 you're going to get more of the same. 21 You're going to get children 22 killing children, blacks killing blacks, 23 Hispanics killing each other, horrific crimes 1034 1 being reported on the news when, in my view, it 2 would be just as simple to do, as our good 3 Supreme Court justice advises us, and not tinker 4 with the death machine. In fact, I think it is 5 so simple to really just take a totally 6 different and radical view of this and go back 7 to the very beginning. 8 Preventive measures, the causal 9 effects that create the kinds of people out 10 there, the kinds of children that would not 11 hesitate to look you or I in the eye and put a 12 bullet through our head. That says a lot about 13 us. When we can just look to not deal with that 14 issue and that problem but only to, as I said 15 earlier, come back into a chamber, watch a 17 16 or 20- or 25-year-old squirm to death, and we 17 would have been a party to that. 18 Mr. President, I can't be a party 19 to that. I think there would be a better way 20 and I hope that we will find that, so that this 21 rhetorical routine of ours, as passionate as it 22 is, as righteous as some people think it is, 23 will end, and we'll start investing in human 1035 1 life instead of death. 2 Thank you so much. 3 ACTING PRESIDENT SEWARD: Senator 4 Dollinger. 5 SENATOR DOLLINGER: Thank you, 6 Mr. President. 7 My colleagues have all addressed 8 a number of these issues with great eloquence, 9 my colleague from the Bronx just a minute ago 10 talking about the death machine, my colleague 11 Senator Marchi presenting, I think, as Senator 12 Leichter described, the moral compass upon which 13 we as a civilization should approach the issues 14 that are broached by this debate. 15 I'd like to just touch on a 16 couple quick little parts of the bill, talk 17 about a couple quick little topics, things that 18 people haven't talked about before and then give 19 you what I think might be an appropriate 20 conclusion. 21 One, I guess I have read the bill 22 as I've been sitting here for the last hour, 23 Senator Volker, and I should add as a footnote, 1036 1 I don't question the motive of anyone who favors 2 the death penalty. Senator Saland's eloquent 3 comments about his motivation, I think, speak 4 for themselves, and I assume speak for others 5 who favor the death penalty with such passion. 6 My concern instead with the death 7 penalty debate is simply a matter of logic and a 8 matter of effectiveness that I think should 9 promote a vote against this bill. But I've read 10 the bill. One of the things that strikes me 11 about the bill is that there's a very quick 12 appeal from the Supreme Court or the superior 13 court to the Court of Appeals. 14 I would suggest that just the 15 opposite is what you need in death penalty 16 cases. What you need is time to transpire. You 17 need an opportunity to let that possibility for 18 perjured testimony to come forward, that 19 possibility for recanted testimony to come 20 forward, that possibility for new evidence to 21 come forward. It's coming forward all the time, 22 all the death penalty cases for which habeas 23 corpus was an appropriate remedy in the federal 1037 1 system. The reason why that happened is because 2 someone in prison three or four or five or six 3 years later, said, "You're right, I told a lie 4 under oath when I said I saw someone shoot 5 someone else. He wasn't there; I made it up 6 because I wanted to get a plea deal from the 7 prosecutor." 8 I submit that by accelerating the 9 rate of appeals from the superior courts to the 10 Court of Appeals, we may create the possibility 11 for a greater perversion of justice than we 12 currently have now if we allow the appeal to 13 work its way through the Appellate Division into 14 the Court of Appeals. 15 I'm also concerned, quite 16 frankly, by the reduction in the habeas corpus 17 procedure at the federal level because the 18 possibility that witnesses will recant later on 19 and come to the fore without the adequate remedy 20 of habeas corpus either through the state system 21 or through the federal system, we're not going 22 to be able to rectify a mistake and so have the 23 greater possibility that someone is innocent 1038 1 will die as a result of this bill. 2 The other issue I raise with 3 respect to this bill is that of cost. I don't 4 notice a cost estimate in the bill. I sort of 5 have leafed through, and I understand that there 6 are procedures in this bill that will allow the 7 courts to waive the fees for lawyers who are 8 going to defend those who are accused of capital 9 offenses and those who could be subjected to the 10 death penalty. 11 I submit that those are going to 12 prove to be extremely expensive cases. The 13 process will be extremely expensive. The 14 representation will be extremely expensive. If 15 there are 2,000 capital offenses, we apply the 16 death penalty to even 2- or 300 of those cases, 17 the effect on the criminal justice system will 18 be an enormous expense. 19 Who is going to pay? My 20 understanding, based on my experience in the 21 County Legislature and, if I'm mistaken, I'll 22 stand corrected, is that the counties pay the 23 cost for indigent fees, that they provide it 1039 1 through property taxes. This becomes another 2 form of mandate when we pass to the counties the 3 responsibility for prosecuting a death penalty 4 that the state imposes on them or gives them the 5 -- the prosecutors, the option to explore. My 6 suggestion is that that total cost is 25- to 50 7 to $100 million that we don't have in our 8 criminal justice system currently and that we're 9 not going to be able to find. 10 A couple other quick 11 observations. My colleague from the Bronx 12 mentioned a man named Walter McMillan. I'll 13 tell you what Walter McMillan's lawyer said when 14 Walter McMillan was freed of six years on death 15 row. His name was Brian Stevenson. He 16 represented him after four appeals to the 17 Alabama Supreme Court had been turned down, 18 after he had been told on four occasions that 19 the Supreme Court would not hear his appeal and 20 would not review the death sentence. 21 Brian Stevenson went to work, 22 found witnesses in the prison system who 23 recanted their testimony until finally on the 1040 1 fifth appeal he was freed, allowed to go free. 2 His lawyer said, "I think every one needs to 3 understand what happened because what happened 4 today could happen tomorrow if we don't learn 5 some important lessons from this. It was too 6 easy for one person to come into court and frame 7 a man for a murder he did not commit. It was 8 too easy for the state to convict him for that 9 crime and then have him sentenced to death and 10 it was too hard in light of the evidence of his 11 innocence to show this court that he should 12 never have been here in the first place." 13 Walter McMillan is not a single 14 example. Senator Leichter, Senator Espada have 15 pointed out that there are seven or eight people 16 who have been found innocent in this state after 17 they were on death row and after they were 18 executed. Who's going to issue the apology to 19 them when they've been convicted, tried, 20 sentenced to death and are killed by the state? 21 Who is going to apologize to their families that 22 they happen to be an innocent victim of our zeal 23 to prosecute and discontinue violent crime? 1041 1 Senator Volker said one or two 2 things that struck me and, again, I believe this 3 is from a man who is passionately convinced that 4 we have to attack our problem of crime. One is 5 he said we need to send a message to our 6 constituents, and I submit, ladies and 7 gentlemen, that that's exactly what we do by 8 passing a death penalty. We will send a message 9 to our constituent that says, You can feel a 10 little bit safer in your home tonight because 11 we, the members of the Legislature, have imposed 12 a draconian penalty on those who would take a 13 life. 14 The problem is, we don't send 15 that same message to those who would be deterred 16 from criminal conduct. The message is not one 17 that we send to the criminal and say, If you 18 take a life, you forfeit your own. That will 19 deter you from your crime. The evidence is 20 replete that it is not a deterrent. The states 21 that have the high death penalty, that have the 22 death penalty have high murder rates. 23 There's evidence that a 1042 1 prosecutor, I believe in the State of Texas, 2 interviewed 240 people on death row, said, Did 3 you know there was a death penalty? If you knew 4 that you would forego your life, would you stop 5 doing what you've been doing? And they said 6 almost unanimously, No, I wasn't aware of that 7 and, if it happened, I don't think it would have 8 deterred me. 9 It doesn't work. It doesn't 10 achieve that goal. The message that we send 11 here is, frankly, the wrong message. Senator 12 Volker and those who support this bill are 13 trying to send a message to those would-be 14 murderers to not do it. Instead, they're 15 sending a message to the people of this state, 16 you may think they're not going to do it. You 17 can go to bed tonight thinking you're a little 18 bit safer in your home, but the truth is that 19 that same thing will not happen. We will make 20 everyone feel a little bit more safe. 21 People will come to me and say, 22 I'm glad we finally got the death penalty. I'll 23 ask them, are you really any safer in your home 1043 1 tonight? I would guess that they would say, 2 "Yes, I feel a little bit safer." I will tell 3 them that the truth is, you are not, because the 4 death penalty doesn't work. It doesn't deter 5 those crimes. 6 Senator Volker also mentioned one 7 other thing when he talked about we need to give 8 a message that we will take your life if you 9 commit a capital offense. We have a way to take 10 their life. We have a way to put them in a 11 position where they will never commit a crime 12 again. It's called life imprisonment without 13 parole. We have a tool. It's been available. 14 It hasn't been debated in this house, but it's a 15 tool. It's readily available. It can be 16 enacted, in my opinion, and signed by the 17 governor of this state and become law and 18 achieve the same goal that Senator Volker wants 19 tomorrow if this body were to change its view 20 that they prefer the death penalty, the 21 draconian measure that's involved in that, 22 rather than opting for life imprisonment without 23 parole. 1044 1 We can achieve the goal you 2 seek. We've got a tool to do it. Why don't we 3 do it. 4 I close with one other comment, a 5 little example from literature that perhaps my 6 colleague, Senator Marchi, will appreciate. It 7 comes from the book THE ONCE AND FUTURE KING by 8 T.H. White, the foundation for the musical 9 CAMELOT. 10 There's a wonderful scene in 11 there where the king talks about the use of 12 might and right, and he debates what might 13 should be used for, might for right, might makes 14 right, right makes might. He concludes that the 15 thing that ought to happen is that might ought 16 to be used for right. He founds a whole 17 organization, builds a round table and it's the 18 mythical story of CAMELOT, convinces everyone 19 that the thing to do is to use the power of 20 might, the power of the state only for 21 righteousness. 22 And what happens? He sees his 23 entire dream go down the drain because of the 1045 1 fact he sees a crime committed for which he 2 cannot impose a penalty, for which he is afraid 3 of imposing a penalty against his own queen and, 4 in fact, the entire kingdom falls apart. The 5 troops go to war, all of his once Knights of the 6 Round Table. All they want to do is go to war 7 and he has a scene at the tail end of that book 8 where he meets with a young boy who comes to him 9 and says, I can't understand what happens and 10 why can't you now go out and preach to the 11 knights that they should fight for right and 12 that we should re-establish righteousness, and 13 he stands up and he says to the little boy, No, 14 no, no. What they want now is revenge, just 15 pure and simple revenge, and he describes it as 16 the most worthless of causes. 17 I submit that this bill is pure 18 and simple revenge. The logic that drives it is 19 flawed. The logic that drives it is overwhelmed 20 by the preponderance, if not evidence beyond a 21 reasonable doubt, that it will not deter crime, 22 it will not make people safer in their houses 23 and, in fact, this bill becomes a placebo to 1046 1 feed to our constituents and not accomplish the 2 goal of providing a safer place. 3 Let's get on with the more 4 diligent business of looking for ways to prevent 5 crime, of looking for ways to help children and 6 families in distress, of providing the stability 7 that people need to make the right choices in 8 life so that they can make their right choices, 9 avoid the dangers to society that are imposed 10 when people are out of control and lose control 11 and commit capital offenses. 12 I submit to you that revenge is 13 the most worthless of causes. We only ennoble 14 it today by passing the death penalty. Please, 15 let's move in the direction of a society that 16 understands these problems, will be effective 17 with its punishment through life imprisonment 18 without parole, will avoid a possibility that we 19 will ever have a Walter McMillan in the state of 20 New York and that no man will be innocently 21 punished for a crime that he did not commit. 22 Mr. President, I urge all my 23 colleagues to vote no. 1047 1 ACTING PRESIDENT DALY: Senator 2 Galiber. 3 SENATOR GALIBER: Yes, thank you, 4 Mr. President. 5 One of the disadvantages, of 6 course, of being on the tail end of this 7 discussion is that most of the pertinent matters 8 have been covered. I would like to just take 9 this opportunity to voice my simple views on 10 this issue. I can recall there was a time when 11 we wouldn't even discuss this matter because 12 folks were kind of set in their ways about how 13 they were going to vote. 14 18 years ago is a long time to 15 carry something. 20 years is even longer for a 16 justice of the Supreme Court who accidentally, 17 one of my colleagues called "irrelevant", and we 18 know that that word is a horrible thing, 19 irrelevant. We'd rather be charged with 20 anything else except irrelevance. 21 I say to my colleagues who bring 22 this bill to us each and every year that it's a 23 time now when we should just let loose, let it 1048 1 go. It no longer has any place in this 2 society. We heard a bit about courage, and I 3 don't have to live in the land of Oz and this is 4 not the land of Oz where I'm looking for a badge 5 of courage or any of my colleagues because they 6 do, in fact, have that courage, but oak leaf 7 clusters in some instances. 8 The mere simple fact is, and 9 Senator Volker knows this perhaps better than 10 all of us or at least equally as we know it, the 11 ends or the end of criminal law is a deterrent 12 factor, and if we do not have that deterrent 13 factor involved, then we should let it go as we 14 should now with this death penalty. 15 There was a study if we -- if you 16 will, some months ago, if we're really to attack 17 what Senator Marchi was mentioning to us, more 18 than just a moral issue, is that this great 19 young country of ours has the capacity to zoom 20 in on problem areas. Young man, old man now, 21 spends some 23, '-4 years incarcerated for a 22 homicide. He has submitted to us a study where 23 in 17 neighborhoods, 7 assembly districts, 75 1049 1 percent of our prison population comes out of 2 that area. Add Buffalo, it's about 80 percent 3 of our prison population. 4 If we are really interested in 5 doing something about the violence that occurs 6 in our neighborhoods and our communities, can't 7 we, will we, certainly we have the ability to 8 zoom in on that particular area. 9 We've heard statistics about 10 whether the death penalty is a deterrent. We've 11 heard some talk about the minorities being 12 punished more in our society. The statistics 13 were -- have been said, mentioned very candidly 14 by some but, when you look at people of color 15 constitute approximately half of the nation's 16 current death row population, white 1,180; 17 African-Americans 946; Hispanics, 156, Native 18 Americans, 42; Asians 15. 19 It's an indication that certainly 20 there is a factor here that racism does play a 21 role, and I've been around so long now that I'm 22 a firm believer that the term "racism" perhaps 23 is thrown around too much, but it does, in fact, 1050 1 exist and, as long as it does, we have a system 2 which is flawed. 3 So I say to my colleagues, those 4 of us who are opposed to it, we certainly 5 respect the Senators and colleagues who have a 6 position, but I have no less courage than 7 those. I feel that it's extremely important to 8 respect, and we do, the other person's opinion 9 about this very serious issue. 10 I used to tell people I had a 11 simple solution. We can solve Senator 12 Dollinger's problem, some problems with violence 13 in my community and yours very simply. Drugs is 14 an important factor in my community and yours. 15 If it isn't spread to yours yet, it's on its 16 way. But imagine if we had the capacity to hit 17 the real issue and that's what this is really 18 all about, outside of the inability to transfer 19 good solid feelings about this particular issue, 20 if we were to take the profit out of drugs for 21 example, if we could waive a magic wand and 22 tomorrow take the profit out, what we would do 23 is really to accomplish two things: One, the 1051 1 assault weapons and all the weapons that are 2 being used today would be off the streets 3 tomorrow, at least half of them would be. All 4 the violence that is -- occurs as a result of 5 this problem that we have would go away, and 6 this debate would certainly be academic, 7 certainly be academic. 8 But, Senator Volker and to 9 Senator Saland, I understand where you are 10 coming from, respect that position, but I happen 11 to be one person that vengence is not in my 12 heart and, if vengence is not there, then I 13 can't comply, I can't go along with or can't 14 believe that this is certainly the answer to 15 solve some of our problems in our society, and 16 that's what this is all about. It certainly is 17 not a deterrent factor, and it's been proved, 18 statistics have been given to you tonight to 19 indicate very -- certain very -- certain 20 jurisdictions within the United States where 21 there is a death penalty that those statistics 22 would indicate that certainly this is not a 23 deterrent as far as the bill is concerned. 1052 1 The safeguards that they have in 2 the piece of legislation are not bad. Just the 3 concept is wrong. I think there's another way 4 to approach this, and it's been mentioned as far 5 as life imprisonment, if you have that vengence 6 in your heart, if you believe so strongly that 7 you want an eye for an eye and a tooth for a 8 tooth, you believe that persons should be 9 punished, and certainly as we go through this 10 debate, we play on the emotions of the time. 11 We pick up a paper and here is 12 someone shooting up in the Long Island Rail Road 13 and I brace myself a bit and grit a little bit 14 and say, momentarily, I'm almost ready to change 15 my position on the death penalty or, if you hear 16 about the World Trade incident or if you hear 17 about the recent Brooklyn Bridge incident, 18 there's a built-in proclivity, a tendency, if 19 you will, to say, let me change my position and 20 if I thought, in fact, that it was a deterrent, 21 I would. 22 But there are people who are 23 changing. Views are changing, people are 1053 1 changing, and I understand when you get locked 2 into something, as Senator Volker is -- great 3 person; I'm not massaging him. He knows how I 4 personally feel about him. I just say that, 5 Senator, there's a time we've got to let it 6 loose. We've got to let it go, and we can't 7 keep over it and over it and over again bring 8 ing this issue to the floor because, singularly, 9 because we want an eye for an eye. 10 I've been here long enough to 11 watch these debates and listen to them very 12 carefully, and we've gone from the Scripture to 13 a racial issue to a number of other matters as 14 causal factors as to why, how we interpret the 15 Bible, where God said or Jesus said, this is the 16 right way to go, and we use the Bible or perhaps 17 misuse the Bible depending on where we are 18 coming from, and that's not correct. 19 Morality, the moral issue that 20 Senator Marchi speaks about is almost, when he 21 finished I looked at the clock and I was hoping 22 that the two hours were up so I could make a 23 motion that let's stop this at this very 1054 1 excellent point in time, because he said it 2 all. But I am -- had to get up, very frankly, 3 to say that, as we've watched this debate from 4 year to year and as it comes up this year, we 5 must recognize that this is not the way to go. 6 This is not a deterrent. We're not going to 7 stop by sending people to the chair. 8 One more example. I have someone 9 who I have been working with now for over 14 10 years charged with a homicide, almost got the 11 death penalty. Spent 23, 24 years in jail. At 12 a particular point in time now where that person 13 is going to be free because they found out that 14 he's not the person. 15 It's the old story. It's not 16 many persons, a handful. In the anxiety one day 17 one of the proponents of the death penalty 18 suggested it was in the debate that if we kill 19 one or two and there was a mistake, so what? 20 And that's how strongly that person felt. Still 21 respect his opinion or viewpoint, but the death 22 penalty, colleagues, is not the answer. 23 If we want to do something about 1055 1 assault weapons and take the badge off Senator 2 Dollinger's lapel, and if we want to do 3 something about the serious violence that's 4 touching all of our hamlets and villages 5 throughout the state of New York, then let's do 6 something about that. Let's do something about 7 that. 8 We know the areas of concern. 9 Let's zoom in on those areas and maybe get to 10 the point where this debate on capital 11 punishment will, by pure statistics, mean 12 absolutely nothing because the violence -- and 13 I'll close on this remark, this observation, Mr. 14 President. The violence that is occurring in 15 our cities, and in our hamlets and our towns, 16 the ride-by killings, the random shootings, is 17 all about narcotics. It's all about drugs. 18 It's all about people renting, if you will, 19 renting corners in my neighborhood on a daily 20 basis to sell drugs. 21 If we solve that problem, then 22 Senator Volker might very well be in a position 23 because that's where the crime -- that's where 1056 1 the deaths are, that's where the statistics are, 2 to be able to suggest, as I've suggested early 3 on, it's time to let this death penalty go. 4 Thank you, Mr. President. 5 ACTING PRESIDENT DALY: Senator 6 Waldon. 7 SENATOR WALDON: Thank you very 8 much, Mr. President. 9 Mr. President, my colleagues, I 10 have listened to the debates on the death 11 penalty both in the Assembly when I served there 12 and here in the Senate. First, let me say - 13 ACTING PRESIDENT DALY: Senator 14 Waldon, will you excuse us just a minute, 15 please. I see the Deputy Majority Leader. 16 SENATOR PRESENT: Mr. President, 17 may I have the last section of this bill called 18 and allow Senator Kuhl to vote? 19 THE SECRETARY: Section 16. This 20 act shall take effect -- take effect on the 21 first day of November next succeeding the date 22 on which it shall have become a law. 23 ACTING PRESIDENT DALY: Call the 1057 1 roll. Senator Kuhl. 2 SENATOR KUHL: I vote aye. 3 ACTING PRESIDENT DALY: Close the 4 roll and go back. 5 SENATOR PRESENT: Thank you, 6 Senator Waldon. 7 ACTING PRESIDENT DALY: The roll 8 is closed. Senator Waldon. 9 SENATOR WALDON: Thank you, Mr. 10 President. 11 As I was saying, I've debated 12 this, listened to the debates both in the 13 Assembly and here in the Senate and, first, let 14 me express my thanks to my colleagues who so 15 passionately have stated their positions in both 16 houses. I don't for a moment think that anyone 17 here is participating in an exercise in futility 18 or being frivolous in terms of what they say and 19 the positions they take. 20 However, this year, I looked 21 forward to this debate with some trepidation 22 because I have heard it all, at least I thought 23 I had, and as I knew the spring would come 1058 1 followed by the summer, I knew this debate would 2 arrive in our house, and I really just wanted to 3 get it over with, to avoid it, because we hear 4 the arguments time and again, but this year I 5 had a thought which I will share with you, and 6 that thought was, what would it take for me to 7 support this legislation? 8 I've never ever in my mind's eye 9 created such a thought before, and I said to 10 myself in response, well, perhaps if this bill 11 were not so inherently barbaric, and what do I 12 mean by barbaric? We no longer flog as a 13 punishment in this state or in this country. We 14 no longer mutilate those who are accused of 15 crimes in this state as punishment for crimes. 16 Yet for the crime of murder, this bill would 17 allow us to take a life. 18 From the year 1900 to 1985, there 19 were 350 cases of innocent persons who were 20 wrongfully convicted of capital crimes. 23 of 21 them, as said earlier, were executed. All 22 western nations have eliminated execution as a 23 form of punishment for capital crimes and, if we 1059 1 were to institute that in this state, we would 2 be similar to Iran and South Africa and, 3 personally, I find that juxtaposition a little 4 bit difficult to accept. 5 Al Waldon could perhaps support 6 this bill if it were truly a deterrent. Most 7 murders occur when people are totally out of 8 control, when all logical thinking has been 9 suspended unless they are a murderer for pay and 10 this calculated person figures that he or she 11 won't be caught and they are doing it for 12 normally significant sums of money, but all 13 other people or most of all of the other people 14 who commit murder do so as a crime of passion. 15 Yet, when we look at states like 16 Florida, where three years after the resumption 17 of the death penalty, the highest murder rate in 18 recent history as experienced by that state 19 occurred. Then I looked at some other 20 information in terms of deterrence. The states 21 of Virginia, Washington and Vermont are non 22 death penalty states, and they are juxtaposed 23 contiguous to the states of West Virginia, 1060 1 Oregon and Maine, which are death penalty states 2 and yet in those death penalty states the murder 3 rates were significantly higher in terms of 4 percentages than the non-death penalty states. 5 But I think when I thought about 6 what would it take for me to change my position 7 on this issue, what I focused on most was, if it 8 were only fair, and could it be fair in America? 9 In the year 1615 at a place that is known as 10 Jamestown, Virginia now, a boat landed with 20 11 indentured blacks upon the boat, and some people 12 characterize America's folly with racism 13 beginning at that time. 14 From that moment on, even in our 15 documents which created this nation, at the 16 moment of their creation and the creation of 17 this nation, people of color were not considered 18 full citizens, and so I wonder, with a history 19 like that, could, in 1994, anything we do 20 regarding the death penalty be fair. 21 When I look at what happened at 22 the time of the Civil War in this nation, when 23 many blacks made it possible as Union soldiers 1061 1 to win the war, though no one really won, but to 2 win the war on paper against the South, the 3 draft riots in New York City saw African 4 American blood run down the gutter like a mighty 5 stream. 6 We go to the first World War 7 where many of our soldiers fought overseas 8 valiantly, and yet lynchings were going on at 9 such a high rate in this country that the 10 Niagara movement was created and the NAACP was 11 founded, and it wasn't just then. In more 12 recent times in the second World War where, 13 again, in a segregated Army, American, African 14 American blacks paid the highest tribute to 15 freedom by giving their lives and fighting 16 valiantly on foreign shores; and yet we couldn't 17 vote. 18 If I had been old enough to be a 19 soldier at that time in many places in this 20 country, I could not have had a drink of water 21 at the same fountain as you. I could not have 22 gone to the bathroom the same as you, could not 23 have ridden on the front of the bus the same as 1062 1 you, could not have had a quality education the 2 same as you. And so I question with all of 3 that, can this bill allow equity even in the 4 terms of those who should be killed for violent 5 capital crimes? And I believe not. 6 I believe that the juries will 7 yet remain somewhat biased, so even the jury may 8 not be able to render a fair verdict because 9 someone comes to the jury setting with bias. It 10 has been proven in various data, and I won't 11 bore you by reading them, that in those cases 12 where blacks have killed whites, the prosecutors 13 asked for the death penalty 70 percent of the 14 time, but when it is reversed and where blacks 15 have been the victims of murders by whites, 16 prosecutors across this nation have asked for 17 the death penalty in about 17 percent of the 18 time. 19 So, for a whole host of reasons, 20 I cannot support this legislation, but primarily 21 because I believe that, in this country at this 22 time under our system, this law would be another 23 example of inherent unfairness towards those who 1063 1 are the down-trodden, who are the poor and who, 2 like me, had ancestors come here on a ship from 3 a place called Africa and paid some heavy dues 4 in this country, and yet are not free. 5 ACTING PRESIDENT DALY: Senator 6 Pataki. 7 SENATOR PATAKI: Thank you, Mr. 8 President. 9 I know the hour is late, the 10 debate has gone on over two hours, but I do feel 11 compelled to just add my comments in support of 12 this legislation. 13 Senator Waldon, I heard your 14 comments, your categorization of this 15 legislation as barbaric at one point earlier in 16 your comments, and let me say I couldn't 17 disagree more. 18 I think what is truly barbaric is 19 what is happening out on the streets in the 20 cities and communities and towns of this state. 21 You know, we do not have a legal death penalty 22 in New York State, but we do have a death 23 penalty. We have a death penalty imposed by a 1064 1 criminal element across this state. 2 It is the shopkeeper in Brooklyn 3 who faces the death penalty every day at the 4 hands of a robber. It is the cop out on the 5 beat trying to control crime and patrol our 6 streets and make us safe that faces the death 7 penalty every day at the hands of a killer. It 8 is the mother taking her kid to school who has 9 to realize that, given the depraved people out 10 on the streets of this state, her child might 11 face an extralegal death penalty every day. 12 There's one group that is immune 13 to that, the group that has been caught and 14 convicted in our criminal justice system of 15 capital crimes. They are immune. They do not 16 face the death penalty, because what I believe 17 is a misguided sense of justice. I'm not one of 18 those who stands here and says, Wouldn't it be 19 wonderful if we had the death penalty as the law 20 of this state? Isn't it tragic that we need the 21 death penalty to protect the honest people of 22 this state? But I truly believe that we do, and 23 I've heard the arguments that, well, it's not a 1065 1 deterrent. I heard the statistics that were 2 just referred to. 3 Well, the statistics show, I 4 believe, that it is a deterrent when you see 5 that the national homicide average went up 6 6 percent, but New York State's went up 23 7 percent. When you see in the states that did 8 not enact the death penalty after the Supreme 9 Court decision, two-thirds of them saw an 10 increase in homicide, but in the states that did 11 60 percent saw a decrease. 12 So I think you can make that 13 argument, but what really gets to me is when I 14 see Senator Dollinger sitting there saying with 15 absolute certainty, with complete conviction, 16 the death penalty is not a deterrent. Well, let 17 me ask you, Senator Dollinger, last year we had 18 48 cabbies, just to take one category, 48 19 cabbies in New York City murdered. 20 Can you tell me in all 48 of 21 those cases, that criminal who was holding a 22 cabby up for money and was in all likelihood not 23 resisting but was killing a witness to a crime, 1066 1 in every one of those cases it never dawned on 2 them that this state does not have the death 3 penalty? And can you tell me, with that 4 certainty, that there aren't cases where that 5 criminal would understand that the consequences 6 of taking a life could be so great that maybe 7 they wouldn't do it? 8 I can't sit here and say 9 absolutely, positively as no one can, that we 10 are going to deter this criminal or that 11 criminal by imposing the death penalty, but I 12 reject categorically the concept that the 13 murderer in this state, as again was said 14 earlier in this debate, is comprised of two 15 different groups; it's the irrational person 16 killing out of an insane impulse or a sense of 17 heat of passion, or it's the contract killer 18 killing because they are a hard-bitten murderer 19 doing it for pay. 20 I have to believe, and I believe 21 the statistics show, and I believe the people of 22 this state understand, that there has been an 23 explosion of the rational murder, the explosion 1067 1 of the criminal who understands that by killing 2 the witness, by killing the officer trying to 3 make arrests that they face less of a risk of 4 getting caught and no more in the way of a 5 criminal penalty than the absence of the death 6 penalty. 7 I believe enactment of the death 8 penalty will save lives; particularly it will 9 save the lives of the poor, the innocent resi 10 dents who can't move away from the high crime 11 areas, and I believe it is necessary for us to 12 have a fair and just system of criminal 13 justice. 14 Senator Gold referred to the 15 tragedy that we all abhor that happened on the 16 bridge in New York City a few days back. The 17 family of Aaron Halverstam has asked and is 18 looking for the prosecutors to find a way to 19 bring that criminal prosecution in the federal 20 court under the anti-terrorism statute because 21 the federal laws have the death penalty. They 22 believe that that -- that their family could 23 only get justice if the case is not brought in 1068 1 the state courts of New York but in the federal 2 court. 3 Isn't it time we had a system of 4 criminal justice where the victims and the 5 families and honest people felt that they could 6 get justice in the criminal justice courts of 7 New York State? I believe it is. I believe 8 passage of this measure is long overdue, and I 9 believe, as Senator Gold said early on, we 10 should all take another look. We should all be 11 willing to change our minds. We should all 12 listen to the argument on both sides, and I 13 think, if you do that, you will cast your vote 14 in favor of what I believe will save lives, in 15 favor of passing and adopting this law. 16 ACTING PRESIDENT DALY: Senator 17 Hoffmann. 18 SENATOR HOFFMANN: Thank you, Mr. 19 President. 20 We've heard a number of people 21 speak about the sanctity of human life and a 22 number of people talk about the -- excuse me, 23 Mr. President. 1069 1 ACTING PRESIDENT DALY: Senator 2 Hoffmann. 3 SENATOR HOFFMANN: We've heard a 4 number of people talk about the sanctity of 5 human life and their desire to spare lives and 6 regard as sacred human life in the issue of the 7 death penalty, but inevitably that sanctity 8 issue deals with the perpetrators of murders 9 whose lives would be spared by the continued 10 prohibition against the death penalty in this 11 state. Almost never do we hear the accounts of 12 the victims whose lives would have been spared 13 had the death penalty been in place in this 14 state. 15 I did a little bit of research 16 today to pull out the record on one of the most 17 heinous cases that has happened in our life 18 time, was referenced earlier by Senator Saland, 19 I believe; I think one or two others may have 20 mentioned it. But I want to take a few minutes 21 today to remind my colleagues because I haven't 22 spoken in about four years on this issue, but 23 it's always very fresh in my mind when we have 1070 1 the death penalty debate, that Donna Payant, a 2 rookie prison guard, was murdered in New York 3 State in 1981 by a man who was serving two life 4 sentences for murder and was indicted but never 5 tried for two additional murders of women in New 6 York State. In addition, he was serving a third 7 sentence for a kidnapping and rape. 8 His MO was particularly hideous. 9 He mutilated his victims by biting and then 10 murdered them. In fact, there was a great deal 11 of drama during the course of his trial because 12 the defense attorney worked very hard to try to 13 prevent the teeth imprint of Mr. Smith's being 14 admitted into evidence. They felt that it would 15 be an unfair invasion of his constitutional 16 freedoms to be subjected to that type of 17 scrutiny. 18 In fact, I read with interest the 19 court records at the time, and back on July 24th 20 of 1981, after the defendant had been arrested 21 for first degree murder, the prosecution moved 22 for an order authorizing the acquisition of 23 photographs and dental impressions of the 1071 1 defendant's lower teeth and bite. 2 The prosecution moved for an 3 order authorizing the acquisitions for the lower 4 teeth and bite, so that a noted forensic expert 5 would be able to analyze them in comparison to 6 some other previous murders in which Smith had 7 been convicted and also to analyze them in 8 relation to the body of Donna Payant which was 9 found mutilated in a landfill outside Green 10 Haven Correctional Facility where at that time 11 Lemuel Smith had been incarcerated. 12 But Mr. Smith resisted the motion 13 through his attorneys, resisted the motion 14 claiming that neither the court nor any other 15 court had legal authority to compel the seizure 16 of his dental records for indictment and that it 17 would be a violation of the defendant's 18 constitutional right to privacy, freedom from 19 self-incrimination, and would involve a seizure 20 without probable cause. 21 But the court -- the court at the 22 time in Dutchess County felt differently and 23 ultimately the records were admitted and, at the 1072 1 hearing -- I'm reading from the court records at 2 the time: At the hearing on June 12th, 1981, the 3 prosecution called New York State Police 4 Investigator Jack Fox, through whom a photo of 5 the body of the deceased, Donna Payant, was 6 introduced. The photograph depicts her as 7 mutilated by apparent bite marks. The proof at 8 the hearing further established that the medical 9 examiner, Dr. Michael Baden, upon observing 10 Donna Payant's body, contacted Dr. Lowell 11 Levine, a leading forensic odontologist, I 12 believe -- I hope I'm correct in the spelling. 13 Dr. Levine then testified that he 14 examined photographs of the deceased for 15 purposes of possible bite mark identification. 16 At the time of the examination, Dr. Levine was 17 acquainted with the defendant's dental 18 characteristics since he had, in September of 19 1977, acquired and examined a cast of the 20 defendant's teeth in an investigation of a 21 Schenectady County homicide and, on the basis of 22 his examination, had concluded that the 23 defendant, Lemuel Smith, had imposed the bite 1073 1 marks found on the victim, Marilee Wilson, in 2 that previous homicide. 3 Dr. Levine, on the basis of these 4 comparisons, concluded to a reasonable 5 scientific certainty that the same person 6 administered the bite marks to both Donna Payant 7 at Green Haven and Marilee Wilson in Schenectady 8 County. Dr. Levine added that he required the 9 cast of defendant's teeth at present to confirm 10 this opinion, whether the defendant's teeth were 11 in the same position now that they were in 1977, 12 and the point was made, Dr. Levine testified, 13 that the process of casting and photographing 14 the defendant's lower teeth is painless and 15 risk- free. 16 It seems the court went to 17 inordinate lengths to make sure that Lemuel 18 Smith's rights were well protected and that he 19 was not subjected to any undue pain. But what 20 Donna Payant went through was something entirely 21 different because Dr. Levine concluded after his 22 examination with the use of all of his 23 instruments, that the body of Donna Payant 1074 1 revealed torn nipples and mutilation of the 2 abdomen. 3 There was one distinctly 4 discernible bite mark which formed the basis of 5 his findings and proved beyond any question of a 6 doubt that Lemuel Smith had murdered Donna 7 Payant, mutilated her body and ultimately 8 allowed it to be disposed of in a landfill 9 outside the prison walls where he served time. 10 Had the death penalty been in 11 place in 1981 in this state, Donna Payant would 12 no doubt be alive today. She was a young woman 13 at the time with three children. They're all 14 now young adults. 15 I think the issue for us to 16 analyze is not whether we are protecting the 17 rights of every defendant. I believe that the 18 courts of this state have progressed dramat 19 ically. Of course, there have been times and 20 there can be clear statistical evidence cited to 21 show that there has been, in fact, unequal 22 justice in some cases. 23 Of course, we know that 1075 1 historically in the United States of America, 2 going back to the times before emancipation, 3 people of African-American and other minority 4 status were not given the same fair trials that 5 white Americans were given. Those are different 6 issues than the issue of justice when there is 7 indisputable evidence of first degree murder of 8 a premeditated nature. 9 Senator Volker has developed, 10 over the years, a narrowly drawn bill which 11 deals exclusively with a category of killers for 12 whom the death penalty is the only appropriate 13 form of justice. But that was not in place then 14 for Lemuel Smith, and no retroactive treatment 15 of the crime today will ever change things. 16 But I thought everybody might 17 like to hear the update on Lemuel Smith that ran 18 most recently in the paper. Back in 1990, two 19 months after prison authorities accused him of 20 possessing a hot joint of marijuana, multiple 21 murderer Lemuel Smith was transferred from Great 22 Meadow Correctional Facility in Washington 23 County to Attica, a move that enraged his 1076 1 fiancee. State Department of Correctional 2 Services spokeswoman characterized Smith's 3 transfer as just routine, saying that it had 4 nothing to do with his "pot" predicament. 5 Smith became notorious, et 6 cetera, but I thought this was kind of inter 7 esting. Smith wrote a letter while at Attica to 8 the Superintendent there, Superintendent Hall, 9 and Smith said in his letter to Hall, that his 10 marriage, quote, would be a stabilizing force 11 for me during my incarceration, though he 12 lamented, We would receive none of the benefits 13 of other married couples because of my Special 14 Housing Unit time. 15 Lemuel Smith also discussed in 16 his letter to the superintendent his artistic 17 pursuits and said that he inquired -- and he 18 inquired as to whether he could work on his ink 19 sketches, and said, "I am trying to get a 20 portfolio together so I can apply to an art 21 school and possibly get a correspondence grant 22 while I am in special housing unit." 23 Life goes on for Mr. Smith at 1077 1 Attica. The taxpayers of this state wonder 2 why. They wonder why there is no justice for 3 the Payant family. They wonder why we seem 4 preoccupied with the rights of the killers and 5 have overlooked the rights of the victims of 6 this state. 7 With adequate safeguards, with 8 the narrowly drawn bill that Senator Volker has, 9 we could prevent the type of killing in the 10 future that Donna Payant experienced. 11 I will vote aye, Mr. President. 12 ACTING PRESIDENT DALY: Senator 13 Connor. 14 SENATOR CONNOR: Thank you, Mr. 15 President. 16 It's many years now that we've 17 had this debate, and I have attempted from time 18 to time to revisit the issue in my own mind at 19 times when we're not debating the bill, 20 particularly at times after I read of some 21 pretty horrible, callous, brutal murders that do 22 occur all too frequently in our state and in our 23 city of New York. 1078 1 I have decided that I no longer 2 will engage in the statistical debate about 3 deterrence or non-deterrence because I think 4 that the statistics can be viewed from different 5 angles, can be manipulated, can be contrasted in 6 such a way to perhaps indicate, as some members 7 here have, that perhaps the death penalty is a 8 deterrent or has been in some states, and by 9 other members to just as fairly depict that the 10 death penalty is not a deterrent. 11 I don't think the stories and the 12 statistics, the story of the deterrence or non 13 deterrence is in what we know about people from 14 common sense and some members have alluded to 15 that. There are really only a few broad 16 categories of murder. There's the impassioned 17 murder, the murder that's the product of 18 emotion, that's the product of spur of the 19 moment passionate feelings, or perhaps the 20 consequence of a drunken fight or whatever. 21 I think we all -- all perhaps 22 recognize that the death penalty is not a 23 deterrent to that kind of murder. I think 1079 1 that's why you don't find that kind of murder 2 covered by the legislation proposed by Senator 3 Volker. We all recognize, whatever the penalty 4 for murder is, people who commit those kind of 5 homicides are not pausing for any due reflection 6 upon the consequences of their act. That may be 7 regrettable, but that's part of the human 8 condition, and it happens and we do recognize, 9 if you will, some sort of lessened moral 10 culpability on the part of those people at least 11 sufficiently so that on the justice side we 12 don't think they merit that and on the 13 deterrence side, I think we recognize that no 14 matter whether the penalty was death or not, it 15 would not deter that conduct. 16 Then you have the broader cate 17 gory of premeditated murder, a large portion of 18 that felony murder, and we have a legal doctrine 19 that says people in the course of a robbery who 20 kill someone are presumed, in effect, to premed 21 itate the possible consequences of their action 22 when they go into that store or whatever with a 23 gun. 1080 1 Yet I think we all recognize that 2 very few perhaps drug-addicted robbers who, hand 3 shaking, with a gun in their hands intended to 4 fire the gun when they walked into the store. 5 Not excusing what they do and it certainly is of 6 little -- their immediate intentions are of 7 little consolation to the victim or the victim's 8 family. 9 But as to deterrence, I don't 10 think the penalty is a deterrent to that conduct 11 unfortunately. As to the contract killer, the 12 cold, calculated, premeditated murderer that 13 Senator Dollinger pointed out, and I think we 14 all know it's true, those kind of depraved 15 people, depraved mentalities, they don't think 16 they're ever going to be caught. They think 17 they've hatched the perfect scheme or, in the 18 case of the professional killer, they think that 19 it's their job; they're so good at it they'll 20 never get caught. 21 Deterrent? No. We all know they 22 won't be deterred, no matter what the penalty 23 is. They don't think they're going to get 25 1081 1 years to life under present law. They don't 2 think they'll get a death penalty if there were 3 a death penalty. They don't think they're going 4 to be caught. So in my reflection upon this 5 issue, I've decided, and I think to some degree, 6 deterrence is not the issue. 7 But we've heard a lot about 8 justice here, and I make an admission to the 9 proponents of the death penalty, in the case of 10 the premeditated murderer, there is an esoteric 11 justice that says they deserve to forfeit their 12 lives by that conduct. I admit that. We have 13 all read of those crimes, and when you look at 14 the crime, you think, gee, the person who did 15 that, if they did that consciously, premeditat 16 edly, doesn't deserve to live. And I accept 17 that. I can accept that concept of justice, but 18 I have to look at what that means. 19 How do we apply this? Where do 20 we go with it? None of us are divine, Mr. 21 President. None of us have that ability to look 22 into the human mind or to look down upon past 23 events and, with a great degree of certainty, 1082 1 know what occurred. We have a system of justice 2 in this country and in this state which 3 certainly strives for perfection. It's probably 4 undoubtedly as good as or better, certainly in 5 the overwhelming majority of instances, than any 6 other justice system that human beings have 7 brought forth. 8 But nonetheless, it's human and 9 anything that's human is fallible, and it's 10 subject to making mistakes. It's subject to 11 convicting the innocent on evidence. I'm not 12 talking about, gee, there was no evidence, but 13 he got convicted, because then it's very easy 14 for Senator Volker or anyone else to say that's 15 why we have a Court of Appeals. Of course, 16 they're not going to let a conviction stand or 17 an execution go forward if there's no evidence. 18 But what is evidence? In our 19 legal system, the best form of evidence is 20 considered eye witness testimony. That's the 21 best form of evidence. It's direct evidence; 22 it's not circumstantial. Yet I have seen 23 repeatedly over and over again, psychological 1083 1 studies and tests run that show -- and do any of 2 you doubt it -- that in a stressful situation, 3 that amount of time, that eye witness identi 4 fication is extremely faulty, that at least as 5 many people I.D. the wrong person as the correct 6 person, and this is when they're being tested in 7 a theatre and they know they're about to be 8 tested, and they know the scene that's going to 9 flash before them in three or four or five 10 seconds is not a real shooting or a real murder 11 and their life is really in danger. 12 Regrettably the real eye witness 13 does feel their life is in danger and they're 14 right. Yet we turn around and in the court sys 15 tem say their identification, their testimony, 16 is the best form of evidence and upon that we 17 will convict. 18 Shall we abandon that rule of 19 law? No. But should we view it as infallible? 20 Should we view it as not subject to error in a 21 large number of instances? That would be 22 foolish. 23 Now, what's the point of this? 1084 1 The point is, therefore, that under the best 2 system of justice with the best safeguards, 3 there remains the distinct possibility that an 4 innocent person can be convicted and executed, 5 and it's happened before. Why? You know, I'm 6 not so worried about the prejudices of our Court 7 of Appeals. Someone said before, Oh, all this 8 stuff, Justice Blackmun's comments, and so on, 9 that indicate that racial prejudice or other 10 prejudices affect the outcome of these cases, 11 result in convictions or perhaps in guilty 12 people going free on occasion. Gee, we have a 13 Court of Appeals. I'm not worried about the 14 Court of Appeals. 15 The fact is we have a system of 16 jurors who are from the public. They bring 17 their everyday impressions. They bring their 18 life experience. They bring their, if not -- if 19 they suffer from no conscious or unconscious 20 racial or ethnic bias, they do bring certainly 21 understandably their own cultural bias, and we 22 now have a state that's increasingly multi 23 cultural. We certainly have that in the City, 1085 1 immigrants from many different cultures. 2 In some cultures, if a defendant 3 stands there or sits on a witness stand and 4 stares at their feet, that is viewed as 5 deceptive. An a juror could say, "He didn't 6 even look me in the eye when he denied he did 7 it. I don't believe him." Other people from 8 other cultures could regard that as extremely 9 respectful behavior as it is in some cultures 10 that it's considered disrespectful and defiant 11 to look jurors or judges straight in the eye. 12 We can't eliminate these cultural 13 biases. We're dimly aware of them. Yet we vest 14 in a jury made up of people from different 15 cultures and from different cultures from each 16 other and different cultures perhaps from 17 defendants or witnesses, we vest in them the 18 determination of things like credibility -- Gee, 19 does the witness seem truthful based on their 20 demeanor. It's for the jury to evaluate 21 demeanor. Obviously, it's inherently faulty 22 because of these different cultural biases. 23 Therefore, the risk that an 1086 1 innocent person could be convicted, perhaps 2 executed, remains. What has our Supreme Court 3 of the United States done about it? Recognizing 4 the public's understandable intolerance and the 5 somehow freakish fact that we were in some 6 states executing people 12 and 14 years after 7 their crime, long after accomplices were out on 8 parole, now, and the wheel man -- the shooter is 9 out on parole, he's out on parole, but the guy 10 who drives the get-away car is being executed 14 11 years later. We've had cases like that. 12 Does the public think that's 13 right? No. The courts don't either. No one 14 thinks that the swiftness of justice is that 15 important. So how has the Supreme Court been 16 dealing with it? Well, gee, we got to speed 17 this up, or, well, gee, if the guy's lawyer 18 didn't file the papers on time, too bad. Kill 19 him! Gee, if the state said you have 30 days to 20 find new evidence, if you don't find it, kill 21 him! So what if you find out a year later he's 22 innocent? 23 We had a case where they said, so 1087 1 the innocence of the person isn't what's 2 important. It's not legally relevant as to the 3 inquiry in the federal courts. How freakish! 4 In trying to address the clear injustice to all 5 concerned, victims, society, as well as the 6 criminal, the convict in a 12-year delay, they 7 tried to speed it up and, in my mind and I think 8 in any fair person's mind, thus increasing the 9 risk that the innocent person could be 10 executed. 11 Is this bleeding heart? No. My 12 premise, if you recall, my colleagues, was, 13 forget about deterrence. Who knows? Logically 14 there's probably not any deterrence. We 15 wouldn't have so many criminals. We wouldn't 16 have so many people doing things they could get 17 20 years for if they thought about the penalty 18 and could be deterred. 19 Justice though. Does the 20 calculated -- calculating murderer who commits a 21 premeditated, cold-blooded murder with no 22 mitigating factors whatsoever deserve to die as 23 a matter of justice? I submit yes, perhaps. 1088 1 I'm willing to accept that, but the risk, the 2 risk of error, the very high risk of the 3 innocent being convicted and executed, which 4 exists, belies that issue of justice. It 5 suggests an even greater injustice, and it 6 undercuts what, in my mind, is the only really 7 true philosophical justification for the death 8 penalty as a matter of justice. Not revenge, 9 justice. 10 Unfortunately, we simply don't 11 have nor perhaps can any humans implement a 12 system of criminal justice that's fool-proof, 13 that's not dependent on prejudices of the 14 players, of biases, conscious or unconscious, of 15 jurors and judges and courts, and of the 16 unreliability of forms of legal evidence. 17 Therefore, it can't stand on that foundation of 18 justice. 19 I can't support a penalty like 20 that. I can't see the rationale for it. It's 21 the ultimate penalty. It's a penalty that 22 cannot be corrected. It's a penalty that really 23 can only be, in pure justice, imposed if those 1089 1 imposing it are of divine origin, and I dare say 2 none of us are. 3 Therefore, Mr. President, I'm 4 still voting no on this bill: 5 ACTING PRESIDENT DALY: Senator 6 Smith. 7 SENATOR SMITH: Thank you, Mr. 8 President. 9 Some six years ago, I stood in 10 this very same position for the first time and 11 called this our annual day of death. It was a 12 day such as this, gloomy and overcast. 13 Mr. President, my position 14 remains the same. I, once again, rise in an 15 attempt to impart the mendacious context of this 16 proposed legislation. As a long-standing 17 advocate for the disabled and mentally retarded, 18 I am greatly concerned that under the provisions 19 of this bill, a jury could find that a defendant 20 is retarded and still impose a sentence. 21 Historically, juries have 22 sentenced the retarded to death. Do any of you 23 really want the retarded deprived of life, even 1090 1 though they themselves cannot quite grasp the 2 realities of their situation? Many of you have 3 heard of Evan Stanley, James Duprey Henry, 4 Morris Mason, James Terry Roach, and Jerome 5 Bowden. But if you haven't, for the record, 6 these are just five men who were mentally 7 retarded, yet executed. 8 Evidence has shown that a 9 substantial number of those sentenced to death 10 have a long history of severe mental illness. 11 Yet, their mental impairment was not detected 12 during their judicial proceedings. According to 13 the New York State Defendants' Association, as 14 of May 1989, there was a total of 8,376 mentally 15 retarded persons convicted under New York 16 State's sentencing statutes. 17 This statistic represents 18 18 percent of the Department of Corrections 19 population and as of March of '89, 58 percent of 20 males and 28 percent of females in the 21 department of youth facilities were classified 22 as developmentally disabled. 23 An 1989 Amnesty International 1091 1 poll which was conducted by a renowned pollster, 2 Patrick Caddell, indicated that 82 percent of 3 New Yorkers overwhelmingly opposed the execution 4 of the mentally retarded. 5 Well, here we are today, and 6 we're still debating a death penalty bill which 7 includes the mentally retarded. As long as 8 those provisions are included in this bill, Mr. 9 President, there is no way that I can possibly 10 vote in the affirmative. 11 ACTING PRESIDENT DALY: Senator 12 Volker to close. 13 SENATOR VOLKER: Mr. President, 14 and I will certainly try to be brief, although I 15 must say that this as usual, well, maybe not as 16 usual in the immediate past years, I think that 17 the length of the debate and the depth of the 18 debate, let me just say, I think indicates 19 something which all of us realize deep inside, 20 that this is not a normal year. The anti-death 21 penalty people realize very, very strongly that 22 the possibility of an override this year is 23 greater than it's been certainly in many, many 1092 1 years. We all sense it. We know it. The 2 public is incensed. The media has tried to turn 3 off on this issue as they so often do, but they 4 can't do it. It can't be done. 5 This is -- this is an issue that 6 I think has come to the fore front. It is a 7 dramatic issue. It is an issue that should be a 8 dramatic issue. Unfortunately, a lot of myth - 9 mythology has developed around it, and I guess 10 it's the nature of our business that mythology 11 develops, the mythology, for instance, in the 12 logic of the retarded, the mentally retarded. 13 Let me tell you why you cannot 14 eliminate the mentally retarded or the mentally 15 ill. Ted Bundy, a mass murderer, one of the 16 issues in one of his trials, and I say one of 17 his trials because he was dragged all over the 18 country and the reason he was dragged all over 19 the country, they were trying to find bodies. 20 They were literally and figuratively trying to 21 find bodies, he killed so many people. They 22 were trying him in different places and then not 23 sentencing him to what he was -- to death or 1093 1 whatever, on the basis of the fact that he would 2 pledge to find some more bodies, and one of the 3 trials they pointed out that he had a quirk, 4 whatever, that would technically classify him as 5 mentally retarded. This guy was brilliant in 6 most things. He was a bright guy. Obviously 7 sick. No one is sure to this day to say how 8 many people he killed. Some people estimate 75, 9 a hundred people. He was suspected in a killing 10 in my own town, of two people, and I won't get 11 into the details. It turned out that his buddy, 12 who was another mass murderer who spent time in 13 jail with him, apparently did the killing. My 14 own law partner, who was the chief of police, 15 investigated that case and found out, the reason 16 he found out that Bundy didn't do it is they 17 found out Bundy was in jail when the two people 18 were killed, and then they finally figured out 19 it was this other guy that did it. 20 I don't really think that anybody 21 would truly recommend that we exclude a whole 22 class of people that might include somebody like 23 Ted Bundy. 1094 1 You know, Senator Marchi, I must 2 say to you that -- and you and I have discussed 3 this ad infinitum because you are, since my - 4 some of the other good friends who were here are 5 gone, and you were a friend of my father's and 6 we've talked about this many times, and I 7 certainly, I appreciate, I want you to know, the 8 reference to the moral fiber of this state, and 9 I have -- and I happen to agree it's an issue. 10 I would point out to you several 11 things when we deal with this issue, however: 12 Number one, and we have looked at 13 this before, and it's something that the anti 14 death penalty people, especially from outside, 15 have told me that they are petrified of New York 16 about, one reason why we get umpteen people 17 here, and in the past we've had literally 18 thousands of people here attacking this state 19 because no state in the Union had a situation of 20 what happened here in New York when the death 21 penalty was abolished. No state in the Union 22 that I know of. 23 In 1965, 837 people were 1095 1 murdered. The next year it only went to 876; 2 the next year 1,009; the next year 1231; the 3 next year 1406; two years later 1832; two years 4 later or one year later, 2,057. The murder rate 5 in this state burgeoned dramatically when the 6 death penalty was abolished, and some people 7 said to me, Well, it was going up before that. 8 Yeah, it would go up like 10 here and maybe 15 9 there. It never, never approached the numbers 10 that occurred in this state when the death 11 penalty was abolished. 12 The average murder rate, the 13 murder rate in 1965 was 4.7 per 100,000. In 14 1992 it was 13.1 per 100,000. 1992, by the way, 15 2382 innocent people -- 2382 innocent people 16 were killed. When somebody said here we might 17 execute innocent people, we do it almost every 18 day in this state. 19 And somebody referred to those 20 two California professors who came in here and 21 did a study which I can only describe as a 22 shallow study that would have got them flunked 23 out of law school had they been tested on it. 1096 1 Their 23 people were researched by the U. S. 2 Justice Department in a Stanford Law article. 3 We did the research here; we gave up after about 4 four or five of them, because it was so 5 outrageous and so ridiculous, because it was 6 clear what they had done. If somebody said they 7 were innocent, they were innocent. Anyway, the 8 Stanford Law article just totally debunked every 9 one of those supposedly 23 innocent people. 10 I'm saying here today, and saying 11 what I said before, those two California law 12 professors came in here and did such a sloppy 13 job of investigating cases, there has never been 14 -- I believe it's something like 614 people 15 were executed in the state. To our knowledge, 16 there has never been even ample and solid proof 17 that anyone who was innocent was ever executed 18 in this state. No one has been able to produce 19 that kind of evidence. It's a fact. Nobody's 20 been able to do it. 21 If you want to look at some of 22 those cases, those eight cases they came up 23 with, two of them were in my home area. The 1097 1 families involved in it were absolutely 2 incensed. In one case they found -- they said 3 this guy is innocent because, as one of his 4 accomplices was being executed, he said, you 5 know, Joe was really -- he didn't really do it, 6 which is one of the tricks that some of these 7 people, by the way, do. 8 The only problem was there were 9 two independent eye witnesses and the other guy 10 who was involved in the killing said, Well, of 11 course, he did it. There was ample evidence, 12 way above that. 13 I only point that out because 14 somebody said that they interviewed some people 15 in prison. Let me give you my story. I was at 16 Attica one day here many years ago. There was a 17 life termer standing next to me, and a reporter 18 came up and the reporter turned to this guy and 19 said, "Joe, what" -- I forget what his name was; 20 I used to know who the guy was, he killed 21 somebody in downstate New York -- anyways, said 22 to him, "Joe, you're in for a life term. Would 23 you -- would you really have been upset if there 1098 1 was a death penalty in the state?" "Nah," he 2 said, "that's baloney," he said, "I really, I'm 3 much more soft now with this life term. I -- I 4 really don't want to stay in prison; I would 5 have been much happier with the death penalty." 6 The guy turned; he walked away. 7 I said to him, Joe... he says, 8 "Was I good; was I impressive?" I said, "Yeah, 9 you were pretty good." He said, "You don't 10 really believe that. I don't want to get 11 killed." He said, "That guy believed it and 12 he'll print it tomorrow probably in the New York 13 Times." 14 Now, I don't know much about the 15 Talmudic law. I don't know anything, in fact, 16 and I can't -- I don't get into that stuff. I 17 do know, however, that in the religions of the 18 world, executions were far more commonplace than 19 people would have us believe, and I don't want 20 to get into that. 21 But I will say another thing 22 about life without parole because, you know, 23 Senator Hoffmann read something about one of her 1099 1 other unfortunately famous killers. Now, let me 2 read you a little bit about another one who is 3 presently serving what amounts to a life term 4 without parole: Willie Bosket, serving an 5 original 25 years to life when he received an 6 additional 25 years to life from Judge Francis 7 Voight for the murder of a correction officer. 8 Voight, in sentencing, commented, "I know you're 9 going to kill somebody, so in sentencing you, 10 I'm sentencing an innocent man to death." 11 Baskin has vowed to flaunt the system and 12 repeatedly threatens to kill a correction 13 officer if the opportunity presents itself. At 14 sentencing, he stated, "I laugh at you, I laugh 15 at this court. I laugh at Mr. Prosecutor, I 16 laugh at this entire system. The sentence the 17 court can impose on me means nothing." 18 The real problem, my fellow 19 Senators, is that sometimes -- and we are all 20 guilty of it -- we all to a certain extent live 21 in our own little worlds and some of us live in 22 obviously different kinds of worlds. At one 23 time I lived in a more violent world. I told a 1100 1 story about the fellow who, well, without 2 telling the whole story, however, I rounded up a 3 fellow who had already killed somebody in Texas, 4 had a warrant for his arrest. I knew he had 5 said already that the next police officer that 6 tried to stop him, he was going to kill him, and 7 we knew he had a gun. To make a long story 8 short I ended up having to arrest him myself 9 and, as he spotted me as I came up to him, he, 10 of course, immediately leaped for what I thought 11 was the gun. It turned out it was the gun, and 12 I stuck my gun in his ear. There's always a 13 little bit of a deterrent to making sure that 14 somebody understands that you're telling them 15 the right thing. Under the seat was a .45, a 16 loaded .45 automatic and he kept saying to me, 17 "Dale, Dale, I wouldn't hurt you; I was going 18 to give you my gun." I said, "Yeah, sure you 19 were," probably bullet by bullet. 20 The rest of the story is, so that 21 you know, we arrested him on the warrant and I 22 charged him with -- oh, I don't remember exactly 23 what I charged him with. He was in for a while 1101 1 and he got bailed. Next thing I knew, about 2 three months later we found two bodies in our 3 own village behind a concrete place, and the 4 story I heard immediately was, he was the one. 5 He now spends 50 years to life in Attica Prison 6 or in the prison system, writes me every once in 7 a while letters asking me about changing the law 8 so he can get good time. 9 The thing I'm pointing out to you 10 is, here is a fellow who nearly killed me, 11 killed, I believe, his girl friend in Texas, 12 killed two people here in New York. He's still 13 alive, he's still writing letters to the 14 Legislature talking to us about good time, and 15 we are saying to ourselves here, Gee, you know, 16 you really shouldn't do anything about the death 17 penalty because maybe, maybe we'll make a 18 mistake. 19 My colleagues, let me just tell 20 you this: We may have an imperfect system here, 21 but there are people who can argue about us that 22 we are imperfect here in our view of humanity 23 and society. If we are truly, truly going to do 1102 1 anything about the crime in our streets and 2 particularly the crime of murder, we must -- we 3 must enact the most drastic of measures. Not 4 something we want to do, it's not; there ought 5 to be a better way. My father said it years 6 ago, all kinds of people have said it. The 7 problem is, nobody's found a better way. 8 So unfortunately, what we have to 9 do tonight and in the future when the Governor 10 vetoes this bill, is to send a message to those 11 that would kill and you could say all you want 12 that it's never going to be a deterrent, but you 13 have heard tonight in this chamber examples of 14 people who had there been a death penalty would 15 not have killed because they never would have 16 gotten the opportunity. 17 ACTING PRESIDENT DALY: Last 18 section. 19 SENATOR GOLD: Slow roll call. 20 ACTING PRESIDENT DALY: Slow roll 21 call. 22 THE SECRETARY: Section 16. This 23 act shall take effect on the first day of 1103 1 November next succeeding date on which it shall 2 have become law. 3 ACTING PRESIDENT DALY: Do we 4 have five Senators standing for a slow roll 5 call? Slow roll call. 6 THE SECRETARY: Senator Babbush. 7 SENATOR BABBUSH: No. 8 THE SECRETARY: Senator Bruno. 9 SENATOR BRUNO: Yes. 10 THE SECRETARY: Senator Connor. 11 SENATOR CONNOR: No. 12 THE SECRETARY: Senator Cook. 13 SENATOR COOK: Yes. 14 THE SECRETARY: Senator Daly. 15 SENATOR DALY: Yes. 16 THE SECRETARY: Senator 17 DeFrancisco. 18 SENATOR DeFRANCISCO: Yes. 19 THE SECRETARY: Senator DiCarlo. 20 SENATOR DiCARLO: Yes. 21 THE SECRETARY: Senator 22 Dollinger. 23 SENATOR DOLLINGER: Mr. 1104 1 President, I rise to explain my vote. 2 ACTING PRESIDENT DALY: Senator 3 Dollinger. 4 SENATOR DOLLINGER: Mr. 5 President, I commend Senator Volker for 6 triggering what I think is the most interesting 7 debate, I think, year after year; this is the 8 most interesting debate we have. I would only 9 encourage my foes from the other side of the 10 aisle, as I know we will lose this vote, but 11 there are a whole bunch of issues we could have 12 fascinating debates about, be they a gay rights 13 bill, bias crime bill, campaign finance reform 14 bill, Election Law reform bills, life 15 imprisonment without parole, assault weapons, 16 mail issues, there are all kinds of fascinating 17 debates we could have. 18 I commend Senator Volker, 19 although I disagree with him, I understand the 20 passion which brings this issue to the table. 21 Wish that the passion from the other side of the 22 aisle would bring those issues to the table as 23 well so we could have the same kind of fruitful 1105 1 intelligent debate about the future of this 2 state. If we did, we would make this Senate the 3 best Senate in this nation, bar none. 4 Mr. President, I vote no. 5 ACTING PRESIDENT DALY: Senator 6 Dollinger votes no. 7 THE SECRETARY: Senator Espada. 8 SENATOR ESPADA: No. 9 THE SECRETARY: Senator Farley. 10 SENATOR FARLEY: Aye. 11 THE SECRETARY: Senator Galiber. 12 SENATOR GALIBER: No. 13 THE SECRETARY: Senator Gold. 14 SENATOR GOLD: Mr. President, 15 I'll try and be brief to explain my vote. 16 ACTING PRESIDENT DALY: Senator 17 Gold. 18 SENATOR GOLD: Senator Volker 19 says that there may be a better way but no one's 20 found it. Senator, that's a credibility issue. 21 You want to believe that life imprisonment 22 without parole puts people away and makes us 23 safe, it is a better way. 1106 1 I've heard reference to the 2 Halverstam family; I've heard many people talk 3 about the fact that we've had a presidential 4 candidate from Massachusetts who lost. Maybe 5 one of the issues was this, because he couldn't 6 answer it correctly. 7 I've heard Senator Hoffmann refer 8 to whether or not you could use teeth prints; I 9 don't oppose that. 10 But the bottom line here is, I 11 want to thank some people for past conduct 12 because you deserve my thanks. Senator Bruno 13 and Cook and Daly and Goodman and Johnson and 14 Lack and Levy and Marchi, Marino, Padavan, 15 Stafford, Trunzo and Volker, together with a 16 number of Democrats, I want to thank you, 17 because in 1981 you voted yes and helped me pass 18 a bill that allowed Isadore Zimmerman to sue the 19 state for his 26 years of wrongful incarceration 20 for a conviction of murder. Thank God he 21 received a clemency the last minute before he 22 went to the chair, and then it was determined 23 that he was innocent, and you gentlemen along 1107 1 with others in this house voted to allow him to 2 sue the state for his damages. 3 I'm sure it distresses you as 4 much as it distresses me that he only lived 5 about six more months and, even though he 6 received some benefit from the state of New York 7 financially, you still took away -- we still 8 took away 26 years of his life improperly and 9 kept him in prison. 10 Ample and solid proof of 11 innocence for those executed you said, Senator 12 Volker. That is subjective. If somebody proves 13 something to you and you don't want to believe 14 it, all you have to say is, "I don't believe 15 it." This happens in religious arguments every 16 day of the week. You argue religion and then 17 finally somebody says, well, I believe it and 18 then that's the end of the argument and, if 19 somebody shows you proof of innocence of someone 20 who is executed and you don't want to believe 21 it, you say, "I don't want to believe it," 22 that's the end of the argument. 23 And the last thing you said, 1108 1 Senator Volker, is that we should vote for the 2 death penalty because there's someone sentenced 3 to 50 years who writes and asks for changes in 4 the law. Senator, he should write for changes 5 for as many years as he wants. What are we 6 talkin' about? We're not changing that law for 7 a man who was killed and who is in prison for 50 8 years. Who cares? 9 There's a maniac in California 10 who killed an actress and killed other people 11 and he became, as I'm ashamed to say it, even a 12 cult figure to some people, but he's in jail and 13 he comes up for parole, everybody says, "You see 14 that? He's up for parole. If we kill him he 15 wouldn't be up for parole." But he doesn't get 16 parole. It's a strawman argument. 17 The 2300 innocent people, Senator 18 Volker, should be alive. They should not be 19 killed, but whether their killers are executed 20 or put behind bars and never see the light of 21 day, we are still protecting society, except we 22 have proven that we know what humanity is all 23 about, and we know that we are more civilized 1109 1 than the barbarians that have murdered. 2 I vote no. 3 ACTING PRESIDENT DALY: Senator 4 Gold in the negative. 5 THE SECRETARY: Senator 6 Gonzalez. 7 SENATOR GONZALEZ: No. 8 THE SECRETARY: Senator Goodman. 9 SENATOR GOODMAN: Yes. 10 THE SECRETARY: Senator Hannon. 11 SENATOR HANNON: Yes. 12 THE SECRETARY: Senator 13 Hoffmann. 14 SENATOR HOFFMANN: Yes. 15 THE SECRETARY: Senator Holland. 16 SENATOR HOLLAND: Yes. 17 THE SECRETARY: Senator Johnson. 18 SENATOR JOHNSON: Aye. 19 THE SECRETARY: Senator Jones. 20 SENATOR JONES: To explain my 21 vote. 22 ACTING PRESIDENT DALY: Senator 23 Jones to explain her vote. 1110 1 SENATOR JONES: I suspect none of 2 us who came here today really looked forward to 3 this day. I've only had one other year where I 4 was able to participate in this, and I will say 5 the only thing I did look forward to was seeing 6 a magnificent display of courage and probably a 7 passion and caring for society as a whole that I 8 have really had the opportunity to see, and I 9 thank you for that, Senator Marchi. 10 If I were standing here today as 11 a mother of a child who had been killed, I 12 certainly -- there's nothing else that would 13 assuage the grief in my heart except for that 14 person to be killed. 15 If I were standing here today as 16 a wife of a man who had been killed in a store 17 by a robber, I certainly would feel the same 18 way, and I don't blame anyone for feeling that 19 way. 20 I guess if I were even 21 politically a great strategist, I would raise 22 both hands and say "yes" and sit down again. 23 But I'm not any of those things. I see myself 1111 1 as a legislator who has to look at society as a 2 whole and say to myself, What can I do or what 3 is it right for me to do to change the society 4 and make it the way Senator Marchi describes it, 5 or I should say envision it to be? And, for that 6 reason, I have had an opportunity to read and 7 study and analyze all the material and I can 8 assure you I've spent many hours doing that, 9 that has been shared with me on both sides of 10 this issue, and it still says to me my vote is 11 going to represent my best judgment. 12 I was willing last year to let 13 the voters have that provided and I believe that 14 that would happen if it were on the ballot that 15 they also had all this information that is at my 16 hands is make this decision today. 17 I don't want to be a part of a 18 violent society, and I certainly don't want to 19 be part of a society where the government also 20 takes part in the violence. I want to be part 21 of a seat free of that, and I don't think this 22 is the road to get there. 23 I have to vote no. 1112 1 ACTING PRESIDENT DALY: Senator 2 Jones in the negative. Continue the roll. 3 THE SECRETARY: Senator Kruger. 4 SENATOR KRUGER: Yes. 5 THE SECRETARY: Senator Kuhl 6 voting in the affirmative earlier today. 7 Senator Lack. 8 SENATOR LACK: Aye. 9 THE SECRETARY: Senator Larkin. 10 SENATOR LARKIN: Aye. 11 THE SECRETARY: Senator LaValle. 12 SENATOR LAVALLE: Aye. 13 THE SECRETARY: Senator 14 Leichter. 15 SENATOR LEICHTER: No. 16 THE SECRETARY: Senator Levy. 17 SENATOR LEVY: Aye. 18 THE SECRETARY: Senator Libous. 19 SENATOR LIBOUS: Aye. 20 THE SECRETARY: Senator Maltese. 21 SENATOR MALTESE: Aye. 22 THE SECRETARY: Senator Marchi. 23 SENATOR MARCHI: No. 1113 1 THE SECRETARY: Senator Marino, 2 aye. 3 Senator Markowitz. 4 SENATOR MARKOWITZ: Yes. 5 THE SECRETARY: Senator Mendez. 6 SENATOR MENDEZ: No. No. 7 THE SECRETARY: Senator 8 Montgomery. 9 SENATOR MONTGOMERY: No. 10 THE SECRETARY: Senator Nanula. 11 SENATOR NANULA: No. 12 THE SECRETARY: Senator Nolan. 13 (There was no response.) 14 Senator Nozzolio. 15 SENATOR NOZZOLIO: Aye. 16 THE SECRETARY: Senator 17 Ohrenstein. 18 SENATOR OHRENSTEIN: No. 19 THE SECRETARY: Senator Onorato. 20 SENATOR ONORATO: Aye. 21 THE SECRETARY: Senator 22 Oppenheimer. 23 SENATOR OPPENHEIMER: No. 1114 1 THE SECRETARY: Didn't hear you. 2 SENATOR OPPENHEIMER: No. 3 THE SECRETARY: Senator Padavan. 4 SENATOR PADAVAN: Yes. 5 THE SECRETARY: Senator Pataki. 6 SENATOR PATAKI: Yes. 7 THE SECRETARY: Senator 8 Paterson. 9 SENATOR PATERSON: Mr. 10 President. 11 ACTING PRESIDENT DALY: Senator 12 Paterson. 13 SENATOR PATERSON: This is my 14 ninth year of speaking on the death penalty and 15 each year I have argued in opposition to it and 16 yet, when I heard about the massacre on the Long 17 Island Rail Road, my instinctive reaction was 18 that I hope that those individuals who were 19 finally able to accost the individual who was 20 the perpetrator would have killed him. 21 When I heard about the 22 apprehension of the three suspects in the savage 23 attack on the Brooklyn Bridge last week, I 1115 1 really hoped that they would put them under the 2 jail. 3 In spite of my moral opposition 4 to the death penalty, that's how I felt. I 5 don't really know how to reconcile that other 6 than to say that those may have been my personal 7 reactions, but as a legislator, I am sworn and 8 have given an oath to try to make law and to 9 fashion that law which will best adjust to our 10 society; and so, for the reasons I think mostly 11 stated by Senator Espada and Senator Waldon 12 today, I want to vote no on this particular 13 issue. 14 But I do want to add just there 15 one point which is that a Marist poll that was 16 released in the past few days stated that only 17 2.6 percent of the residents of New York State 18 who were queried think that this is the most 19 serious issue, and yet it is the issue that we 20 seem to give the longest debate and it is the 21 issue that we seem to spend a great deal of time 22 and also challenge each other in the media. 23 I don't think that we can come to 1116 1 a decision as to which among us are right and 2 which are wrong. This is an issue of moral 3 conviction where we are bound to respect the 4 opinions and points of view of our debating 5 adversaries, but I would hope that at some point 6 in the rest of this session, we would turn our 7 attention and perhaps wonder what the other 97 8 percent of New York State residents think of the 9 critical issues in this time, particularly 10 related to trying to stop violence in this 11 state. 12 ACTING PRESIDENT DALY: How do 13 you vote, Senator? 14 SENATOR PATERSON: Oh, I said 15 that I was voting no. 16 ACTING PRESIDENT DALY: Senator 17 Paterson voting in the negative. 18 THE SECRETARY: Senator Present. 19 SENATOR PRESENT: Aye. 20 THE SECRETARY: Senator Rath. 21 SENATOR RATH: Aye. 22 THE SECRETARY: Senator Saland. 23 SENATOR SALAND: Aye. 1117 1 THE SECRETARY: Senator 2 Santiago. 3 SENATOR SANTIAGO: No. 4 THE SECRETARY: Senator Sears. 5 SENATOR SEARS: Aye. 6 THE SECRETARY: Senator Seward. 7 SENATOR SEWARD: Aye. 8 THE SECRETARY: Senator Skelos. 9 SENATOR SKELOS: Yes. 10 THE SECRETARY: Senator Smith. 11 SENATOR SMITH: No. 12 THE SECRETARY: Senator Solomon 13 voting in the affirmative earlier today. 14 THE SECRETARY: Senator Spano. 15 SENATOR SPANO: Aye. 16 THE SECRETARY: Senator 17 Stachowski. 18 SENATOR STACHOWSKI: Aye. 19 THE SECRETARY: Senator 20 Stafford. 21 SENATOR STAFFORD: Aye. 22 THE SECRETARY: Senator 23 Stavisky. 1118 1 SENATOR STAVISKY: No. 2 THE SECRETARY: Senator Trunzo. 3 SENATOR TRUNZO: Yes. 4 THE SECRETARY: Senator Tully. 5 SENATOR TULLY: Aye. 6 THE SECRETARY: Senator Velella. 7 SENATOR VELELLA: Yes. 8 THE SECRETARY: Senator Volker. 9 SENATOR VOLKER: Yes. 10 THE SECRETARY: Senator Waldon. 11 SENATOR WALDON: No. 12 THE SECRETARY: No. 13 Senator Wright. 14 SENATOR WRIGHT: Aye. 15 ACTING PRESIDENT DALY: 16 Absentees. 17 THE SECRETARY: Senator Nolan. 18 (There was no response. ) 19 ACTING PRESIDENT DALY: Results. 20 Ayes 40 -- the bill is passed. 21 THE SECRETARY: Ayes 40, nays 22 20. 23 ACTING PRESIDENT DALY: The bill 1119 1 is passed. 2 Senator Present. 3 ACTING PRESIDENT DALY: Senator 4 Maltese. 5 SENATOR MALTESE: Mr. President, 6 on Calendar Number 262, I ask unanimous consent 7 that I be recorded in the negative. 8 ACTING PRESIDENT DALY: Senator 9 Sears. Senator Sears. 10 SENATOR SEARS: Mr. President, 11 I'd like to ask unanimous consent to be recorded 12 in the negative on Calendar Number 257. 13 ACTING PRESIDENT DALY: Senator 14 Farley. 15 SENATOR FARLEY: Thank you, Mr. 16 President. 17 ACTING PRESIDENT DALY: Senator 18 Farley. 19 SENATOR FARLEY: Yeah, hold on. 20 I have a motion on behalf of Senator Bruno. He 21 wishes to call up his bill, Senate Print 6300-A, 22 which has been recalled from the Assembly which 23 is now at the desk. 1120 1 ACTING PRESIDENT DALY: Secretary 2 will read. 3 THE SECRETARY: By Senator Bruno, 4 Senate Bill Number 6700-A, an act to amend the 5 Highway Law. 6 SENATOR FARLEY: Mr. President, I 7 now move to reconsider the vote by which this 8 bill passed. 9 ACTING PRESIDENT DALY: Call the 10 roll. 11 (The Secretary called the roll on 12 reconsideration. ) 13 THE SECRETARY: Ayes 61. 14 SENATOR FARLEY: I now offer the 15 following amendments. 16 ACTING PRESIDENT DALY: 17 Amendments are received and accepted. Senator 18 Santiago. 19 SENATOR SANTIAGO: Ask unanimous 20 consent to be recorded in the negative on 21 Calendar Number 157. 22 ACTING PRESIDENT DALY: 157. 23 SENATOR SANTIAGO: And 289. 1121 1 ACTING PRESIDENT DALY: Senator 2 DiCarlo. 3 SENATOR DiCARLO: Unanimous 4 consent to be recorded in the negative on 5 Calendar Number 262. 6 ACTING PRESIDENT DALY: Is that 7 Bill Number 262? 8 THE SECRETARY: 262. 9 ACTING PRESIDENT DALY: Senator 10 Present. 11 SENATOR PRESENT: Hold it a 12 minute. 13 ACTING PRESIDENT DALY: Senator 14 Present. 15 SENATOR PRESENT: Mr. President, 16 there being no further business, I move we 17 adjourn until tomorrow at 11 a.m. 18 ACTING PRESIDENT DALY: Senate is 19 adjourned until tomorrow at 11:00 a.m. 20 (Whereupon at 7:27 p.m., the 21 Senate adjourned.) 22 23