Tuesday, March 22, 1994

1378 1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 March 22, 1994 11 4:27 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR HUGH T. FARLEY, Acting President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 1379 1 P R O C E E D I N G S 2 ACTING PRESIDENT FARLEY: Senate 3 will come to order. Senators will please find 4 their seats. 5 Please rise for the Pledge of 6 Allegiance to the Flag. 7 (Whereupon, the Senate joined in 8 the Pledge of Allegiance to the Flag.) 9 Today, in the absence of visiting 10 clergy, we will bow our heads for a moment of 11 silent prayer. 12 (Whereupon, there was a moment of 13 silence.) 14 Secretary will begin by reading 15 the Journal. 16 THE SECRETARY: In Senate, 17 Monday, March 21. The Senate met pursuant to 18 adjournment. Senator Farley in the chair upon 19 designation of the Temporary President. The 20 Journal of Sunday, March 20, was read and 21 approved. On motion, Senate adjourned. 22 ACTING PRESIDENT FARLEY: Hearing 23 no objection, the Journal will stand approved as 1380 1 read. 2 The order of business: 3 Presentation of petitions. 4 Messages from the Assembly. 5 Messages from the Governor. 6 Reports of standing committees. 7 Reports of select committees. 8 Communications and reports from 9 state officers. 10 Motions and resolutions. Are 11 there any motions on the floor? 12 Senator Spano. 13 SENATOR SPANO: Mr. President. 14 On behalf of Senator Johnson, would you please 15 star Calendar 363 and Calendar 381. 16 ACTING PRESIDENT FARLEY: The 17 bills are starred at the request of the sponsor. 18 SENATOR SPANO: Mr. President. 19 Move that the following bills be discharged from 20 their respective committees, be recommitted, and 21 strike the enacting clause: Senate Print 2280. 22 That is on behalf of Senator Cook. 23 ACTING PRESIDENT FARLEY: The 1381 1 enacting clause is stricken, and the bills are 2 recommitted to their respective committees. 3 SENATOR SPANO: On behalf of the 4 sponsor, can you remove the star on Calendar 5 116, Senate Bill 6523A. 6 ACTING PRESIDENT FARLEY: Star is 7 removed at the request of the sponsor. 8 SENATOR SPANO: On behalf of 9 Senator Daly, on page 18, I offer the following 10 amendments to Calendar 400, Senate Print 6794, 11 and ask that the bill retain its place on the 12 Third Reading Calendar. 13 ACTING PRESIDENT FARLEY: Without 14 objection, the bill will retain its place. 15 SENATOR SPANO: On behalf of 16 Senator Lack, on page 9, I offer the following 17 amendments to Calendar 277, Senate Print 1065, 18 ask that that bill retain its place on the Third 19 Reading Calendar. 20 ACTING PRESIDENT FARLEY: Is that 21 Senator Saland or Senator Lack? 22 SENATOR SPANO: Senator Lack. 23 Senator Lack's bill, page 9, Calendar 277. 1382 1 ACTING PRESIDENT FARLEY: Would 2 you change that to Senator Saland? 3 SENATOR SPANO: Okay. That last 4 one was on behalf of Senator Saland. 5 ACTING PRESIDENT FARLEY: 6 Correct. Without objection. 7 Senator Johnson. Are you just 8 standing? 9 Senator Holland. 10 SENATOR HOLLAND: Please star my 11 bill Calendar 406, Senate 4479A, please. 12 ACTING PRESIDENT FARLEY: The 13 bill is starred at the request of the sponsor. 14 Senator DiCarlo. 15 SENATOR DiCARLO: Mr. President. 16 On behalf of the sponsor, Senate Bill Number 75, 17 Senator Levy requests starring the bill. 18 ACTING PRESIDENT FARLEY: The 19 bill is starred at the request of the sponsor. 20 Senator Present. 21 SENATOR PRESENT: Mr. President. 22 I move that we adopt the Resolution Calendar. 23 ACTING PRESIDENT FARLEY: All in 1383 1 favor of adopting the Resolution Calendar, say 2 aye. 3 (Response of "Aye.") 4 Those opposed, nay. 5 (There was no response.) 6 The Resolution Calendar is 7 adopted. 8 270, the bill is starred. 9 Are there any other motions on 10 the floor? 11 (There was no response.) 12 Senator Present, what's your 13 pleasure? 14 SENATOR GOLD: Mr. President. 15 ACTING PRESIDENT FARLEY: Senator 16 Gold. 17 SENATOR GOLD: Yes, on behalf of 18 Senator Paterson, I believe he has a privileged 19 resolution at the desk. 20 ACTING PRESIDENT FARLEY: He has. 21 Would you like the title read? 22 SENATOR GOLD: Yes, just read the 23 title and then move. 1384 1 ACTING PRESIDENT FARLEY: 2 Secretary will read the title of Senator 3 Paterson's resolution. 4 THE SECRETARY: Legislative 5 Resolution, by Senator Paterson, commending 6 Johnny Medina upon the occasion of his 7 designation as the first place winner in the 8 United States Savings Bond Division Third Annual 9 National Student Poster Contest. 10 ACTING PRESIDENT FARLEY: On the 11 resolution, all those in favor, say aye. 12 (Response of "Aye.") 13 Those opposed, nay. 14 (There was no response.) 15 The resolution is adopted. 16 Senator Present. 17 SENATOR PRESENT: Let's take up 18 the noncontroversial calendar, please. 19 ACTING PRESIDENT FARLEY: The 20 Secretary will read the noncontroversial 21 calendar. 22 THE SECRETARY: On page 7, 23 Calendar Number 62, by Senator Velella, Senate 1385 1 Bill Number 6398A, an act to amend the Insurance 2 Law, in relation to dental risk management 3 programs. 4 ACTING PRESIDENT FARLEY: Read 5 the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT FARLEY: Call 9 the roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 40. 12 ACTING PRESIDENT FARLEY: The 13 bill is passed. 14 THE SECRETARY: Calendar Number 15 331, by Senator Kuhl. 16 SENATOR KUHL: Lay it aside for 17 the day, please. 18 ACTING PRESIDENT FARLEY: Lay it 19 aside for the day. 20 THE SECRETARY: Calendar Number 21 337, by Senator Larkin, Senate Bill Number 22 2233A, an act to amend the Election Law, in 23 relation to the hours for voting. 1386 1 SENATOR GOLD: Lay it aside. 2 ACTING PRESIDENT FARLEY: Lay it 3 aside. 4 THE SECRETARY: Calendar Number 5 342, by Senator Kuhl, Senate Bill Number 3182, 6 an act to amend the Agriculture and Markets Law. 7 ACTING PRESIDENT FARLEY: Read 8 the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 SENATOR GOLD: Lay it aside. 12 ACTING PRESIDENT FARLEY: Lay it 13 aside. 14 SENATOR KUHL: Lay it aside for 15 the day. 16 ACTING PRESIDENT FARLEY: Lay it 17 aside for the day. 18 SENATOR KUHL: Yes. Mr. 19 President. 20 ACTING PRESIDENT FARLEY: Senator 21 Kuhl. 22 SENATOR KUHL: Yes, I mistakenly 23 laid aside Calendar Number 331 for the day. 1387 1 That one should have been called up instead of 2 342. 342 I would like laid aside for the day, 3 but the other one I would like called up. The 4 second time around is fine. 5 ACTING PRESIDENT FARLEY: Without 6 objection, would the Secretary call up 331, 7 which we laid aside. 8 THE SECRETARY: Calendar Number 9 331, by Senator Kuhl, Senate Bill Number 3718A, 10 an act to amend the Public Officers Law. 11 ACTING PRESIDENT FARLEY: Read 12 the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT FARLEY: 331. 16 SENATOR GOLD: Party vote in the 17 affirmative. 18 ACTING PRESIDENT FARLEY: Read 19 the last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 ACTING PRESIDENT FARLEY: Call 23 the roll. 1388 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes 40. 3 ACTING PRESIDENT FARLEY: The 4 bill is passed. 5 THE SECRETARY: On page 13, 6 Calendar Number 355, by Senator Tully, Senate 7 Bill Number 4528B, an act to amend the Public 8 Health Law, in relation to insuring the patient 9 in making donations. 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 43. 18 ACTING PRESIDENT FARLEY: The 19 bill is passed. 20 THE SECRETARY: Calendar Number 21 356, by Senator Tully, Senate Bill Number 4997, 22 an act to amend the Public Health Law, the Penal 23 Law and the Domestic Relations Law. 1389 1 ACTING PRESIDENT FARLEY: Read 2 the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT FARLEY: Call 6 the roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 44. 9 ACTING PRESIDENT FARLEY: The 10 bill is passed. 11 THE SECRETARY: Calendar Number 12 357, by Senator Tully, Senate Bill Number 5605, 13 an act to amend the Public Health Law, in 14 relation to establishing a state council on 15 hospice care. 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 45. 1390 1 ACTING PRESIDENT FARLEY: The 2 bill is passed. 3 THE SECRETARY: Calendar Number 4 358, by Senator Hannon, Senate Bill Number - 5 SENATOR GOLD: Lay it aside. 6 ACTING PRESIDENT FARLEY: Lay it 7 aside. 8 THE SECRETARY: Calendar Number 9 359, by Senator Wright, Senate Bill Number 6861, 10 authorize the city of Ogdensburg School District 11 to finance the accumulated deficit. 12 ACTING PRESIDENT FARLEY: Read 13 the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 ACTING PRESIDENT FARLEY: Call 17 the roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 46. 20 ACTING PRESIDENT FARLEY: The 21 bill is passed. 22 THE SECRETARY: Calendar Number 23 360, by Senator Wright, Senate Bill Number 6862, 1391 1 in relation to authorizing the conveyance of 2 certain real property of the city of Ogdensburg. 3 ACTING PRESIDENT FARLEY: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT FARLEY: Call 8 the roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 48. 11 ACTING PRESIDENT FARLEY: The 12 bill is passed. 13 THE SECRETARY: Calendar Number 14 361, by Senator Kuhl, Senate Bill Number 2038, 15 an act to amend the Vehicle and Traffic Law, in 16 relation to requiring the Commissioner of Motor 17 Vehicles on annually issue a compilation of 18 laws. 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 1392 1 the roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 50. 4 ACTING PRESIDENT FARLEY: The 5 bill is passed. 6 THE SECRETARY: Calendar Number 7 362, by the Assembly Committee on Rules, 8 Assembly Bill Number 8918, Executive Law, in 9 relation to the publication of certain notices. 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 51. 18 ACTING PRESIDENT FARLEY: The 19 bill is passed. 20 THE SECRETARY: Calendar Number 21 366, by Senator Saland, Senate Bill Number 22 2363B, Social Services Law and the Public Health 23 Law. 1393 1 ACTING PRESIDENT FARLEY: Read 2 the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT FARLEY: Call 6 the roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 51. 9 ACTING PRESIDENT FARLEY: The 10 bill is passed. 11 THE SECRETARY: Calendar Number 12 367, by Senator Saland, Senate Bill Number 13 3428A, Family Court Act, in relation to fair 14 treatment of child witnesses. 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 51. 23 ACTING PRESIDENT FARLEY: The 1394 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 368, by Senator Saland, Senate Bill Number 4 4573A, Family Court Act, in relation to orders 5 directing provision of services. 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 52. 14 ACTING PRESIDENT FARLEY: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 369, by Senator Saland, Senate Bill Number 4866, 18 an act to amend the Family Court Act. 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 1395 1 the roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 52. 4 ACTING PRESIDENT FARLEY: The 5 bill is passed. 6 THE SECRETARY: Calendar Number 7 370, by Senator Cook, Senate Bill Number 2989A, 8 Uniform Justice Court Act. 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 52. 17 ACTING PRESIDENT FARLEY: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 373, by Senator Present, Senate Bill Number 21 6574, Judiciary Law, in relation to appointment 22 of grand jury stenographers. 23 ACTING PRESIDENT FARLEY: Read 1396 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 53. 8 ACTING PRESIDENT FARLEY: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 374, by Senator Johnson, Senate Bill Number 12 6665, Real Property Actions and Proceedings Law. 13 ACTING PRESIDENT FARLEY: Read 14 the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT FARLEY: Call 18 the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 53. 21 ACTING PRESIDENT FARLEY: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 1397 1 375, by Senator Volker, Senate Bill Number 67 - 2 SENATOR LEICHTER: Lay it aside. 3 ACTING PRESIDENT FARLEY: Lay 4 that bill aside. 5 THE SECRETARY: Calendar Number 6 376, by Senator Farley, Senate Bill Number 1181, 7 Education Law, in relation to the funding of 8 certain libraries. 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 53. 17 ACTING PRESIDENT FARLEY: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 377, by Senator Libous, Senate Bill Number 21 2293B, an act to amend the Education Law and the 22 State Finance Law. 23 ACTING PRESIDENT FARLEY: Read 1398 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 53. 8 ACTING PRESIDENT FARLEY: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 378, by Senator LaValle, Senate Bill Number 12 3755. 13 SENATOR GOLD: Lay it aside. 14 ACTING PRESIDENT FARLEY: Lay it 15 aside. 16 THE SECRETARY: Calendar Number 17 380, by Senator LaValle, Senate Bill Number 18 6130, authorizing an apportionment of state aid 19 for certain capital expenditures. 20 ACTING PRESIDENT FARLEY: There 21 is a local fiscal impact note here at the desk. 22 You can read the last section. 23 THE SECRETARY: Section 2. This 1399 1 act shall take effect immediately. 2 ACTING PRESIDENT FARLEY: Call 3 the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 53. 6 ACTING PRESIDENT FARLEY: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 382, by Senator Cook, Senate Bill Number 2288. 10 SENATOR GOLD: Lay it aside. 11 ACTING PRESIDENT FARLEY: Lay it 12 aside. 13 THE SECRETARY: Calendar Number 14 384, by Senator Maltese, Senate Bill Number 15 6388, an act to amend the Executive Law and the 16 Criminal Procedure 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.) 1400 1 THE SECRETARY: Ayes 53. 2 ACTING PRESIDENT FARLEY: The 3 bill is passed. 4 THE SECRETARY: Calendar Number 5 387, by Senator Present, Senate Bill Number 6 2063, Criminal Procedure Law, in relation to 7 eligibility for youthful offender status. 8 ACTING PRESIDENT FARLEY: Read 9 the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect immediately. 12 ACTING PRESIDENT FARLEY: Call 13 the roll. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes 53. 16 ACTING PRESIDENT FARLEY: The 17 bill is passed. 18 THE SECRETARY: Calendar Number 19 390, by Senator Sears, Senate Bill Number 3106, 20 an act to amend the Penal Law, in relation to 21 including the use of a firearm. 22 ACTING PRESIDENT FARLEY: Read 23 the last section. 1401 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 54. 7 ACTING PRESIDENT FARLEY: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 393, by Senator DiCarlo, Senate Bill Number 11 6379, an act to amend the Penal Law, in relation 12 to the sale of controlled substances on school 13 grounds. 14 ACTING PRESIDENT FARLEY: Read 15 the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT FARLEY: Call 19 the roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 54. 22 ACTING PRESIDENT FARLEY: The 23 bill is passed. 1402 1 THE SECRETARY: Calendar Number 2 395, by Senator Volker, Senate Bill Number 6912. 3 SENATOR GOLD: Lay it aside. 4 ACTING PRESIDENT FARLEY: Lay it 5 aside. 6 THE SECRETARY: Calendar Number 7 397, by Senator Cook, Senate Bill Number 3271A, 8 Environmental Conservation Law, extending the 9 shooting preserve season. 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 54. 18 ACTING PRESIDENT FARLEY: The 19 bill is passed. 20 THE SECRETARY: Calendar Number 21 398, by Senator Marchi, Senate Bill Number 6521, 22 an act to amend the Environmental Conservation 23 Law. 1403 1 ACTING PRESIDENT FARLEY: Read 2 the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT FARLEY: Call 6 the roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 55. 9 ACTING PRESIDENT FARLEY: The 10 bill is passed. 11 THE SECRETARY: Calendar Number 12 399, by Senator Sears, Senate Bill Number 6756, 13 Environmental Conservation Law. 14 ACTING PRESIDENT FARLEY: Read 15 the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT FARLEY: Call 19 the roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 55. 22 ACTING PRESIDENT FARLEY: The 23 bill is passed. 1404 1 THE SECRETARY: Calendar Number 2 401, by Senator Skelos, Senate Bill Number 66 - 3 SENATOR GOLD: Lay it aside. 4 ACTING PRESIDENT FARLEY: Lay it 5 aside. 6 THE SECRETARY: Calendar Number 7 407, by Senator Tully. 8 SENATOR GOLD: Lay it aside. 9 ACTING PRESIDENT FARLEY: Lay it 10 aside. 11 THE SECRETARY: Calendar Number 12 408, by Senator Tully, Senate Bill Number 6565, 13 an act to amend the Social Services Law and 14 Chapter 710 of the Laws of 1988. 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 56. 23 ACTING PRESIDENT FARLEY: The 1405 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 409, by Senator Holland, Senate Bill Number 4 6974, an act to amend Chapter 602 of the Laws of 5 1982 amending the Social Services 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 56. 14 ACTING PRESIDENT FARLEY: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 410, by Senator Holland, Senate Bill Number 18 6975, an act to amend Chapter 715 of the Laws of 19 1982. 20 ACTING PRESIDENT FARLEY: Read 21 the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 1406 1 ACTING PRESIDENT FARLEY: Call 2 the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 56. 5 ACTING PRESIDENT FARLEY: The 6 bill is passed. 7 THE SECRETARY: Calendar Number 8 411, by Senator Holland, Senate Bill Number 9 6976, an act to amend Chapter 535 of the Laws of 10 1983 amending the Social Services Law. 11 ACTING PRESIDENT FARLEY: Read 12 the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT FARLEY: Call 16 the roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 56. 19 ACTING PRESIDENT FARLEY: The 20 bill is passed. 21 THE SECRETARY: Calendar Number 22 421, by Senator LaValle, Senate Bill Number 23 7131, Education Law, in relation to the 1407 1 membership of the Board of Cooperative 2 Educational Services in certain instances. 3 ACTING PRESIDENT FARLEY: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT FARLEY: Call 8 the roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 56. 11 ACTING PRESIDENT FARLEY: The 12 bill is passed. 13 Senator Present, that's the first 14 time through. 15 SENATOR PRESENT: Would you 16 recognize Senator Sears, please. 17 ACTING PRESIDENT FARLEY: Yes, I 18 will. 19 Senator Sears. 20 (There was no response.) 21 He doesn't want to be recognized. 22 SENATOR PRESENT: Let's go to the 23 controversial calendar. 1408 1 ACTING PRESIDENT FARLEY: Are 2 there any other motions before we - 3 Controversial. 4 SENATOR PRESENT: Would you call 5 up 407 first. 6 ACTING PRESIDENT FARLEY: 407. 7 Secretary will read it, please. 8 THE SECRETARY: On page 19, 9 Calendar Number 407, by Senator Tully, Senate 10 Bill Number 6325A, an act to amend Chapter 906 11 of the Laws of 1984 amending the Social Services 12 Law. 13 ACTING PRESIDENT FARLEY: Read 14 the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT FARLEY: Call 18 the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 57. 21 ACTING PRESIDENT FARLEY: The 22 bill is passed. 23 Senator Present, controversial? 1409 1 SENATOR PRESENT: Controversial. 2 ACTING PRESIDENT FARLEY: 3 Secretary will read the controversial calendar. 4 THE SECRETARY: On page 11, 5 Calendar Number 337, by Senator Larkin, Senate 6 Bill Number 2233A, Election Law, in relation to 7 the hours for voting at primary elections within 8 the county of Orange or Ulster. 9 ACTING PRESIDENT FARLEY: 10 Explanation has been called for Senator Larkin. 11 SENATOR LARKIN: Mr. President. 12 This bill has been called for by the town clerks 13 in the towns of Orange and Ulster County. Over 14 an extended period of time, they have found out 15 that this law that was enacted in the mid '80s 16 to add these two counties has not done anything 17 to increase voter participation and the only 18 thing it has created is a cost factor to local 19 governments. 20 It has the support of local 21 government. 22 SENATOR GOLD: Where? 23 SENATOR LARKIN: In Orange and 1410 1 Ulster counties, the town clerks. 2 SENATOR CONNOR: Mr. President. 3 ACTING PRESIDENT FARLEY: Senator 4 Connor. 5 SENATOR CONNOR: Thank you, Mr. 6 President. Will the Senator yield for a 7 question. 8 ACTING PRESIDENT FARLEY: Would 9 you yield, Senator Larkin? 10 SENATOR LARKIN: Yes. 11 SENATOR CONNOR: Thank you 12 Senator. Senator, the memo and the people who 13 have proposed this say it will save money, and I 14 have a simple question. How much? 15 SENATOR LARKIN: I don't know, 16 Senator, but the numbers that we have been 17 watching in the balloting at primaries at our 18 two respective counties is so limited, it's 19 almost a -- it's a waste of time of not only the 20 taxpayers but of those who are sitting around 21 all day doing nothing. Primary for a 22 Conservative party year before last, in one 23 election district of over 500, five people 1411 1 voted. 2 SENATOR CONNOR: Thank you. 3 On the bill, Mr. President. 4 ACTING PRESIDENT FARLEY: On the 5 bill. Senator Connor. 6 SENATOR CONNOR: Thank you. 7 Senator Larkin points out one problem that we're 8 always going to have; and that is, when the very 9 small parties, the Liberal or Right to Life or 10 Conservatives, have a primary, of course not 11 very many people vote between 6:00 a.m. and noon 12 or whenever. Not very many people vote for the 13 whole day in those parties. 14 But we can't make the law with 15 hours geared to the party. The fact is when one 16 of the major parties has a hotly contested 17 primary, a lot of people do want to vote. 18 Particularly Orange County, much more than 19 Ulster, has become a bedroom county. People 20 commute to elsewhere in the metropolitan region 21 or to New York City, and they want to vote in 22 the primary. But if we have the short kind of 23 primary day that this bill would result in, they 1412 1 will lose their opportunity to vote. 2 I have some numbers here just for 3 instance. In the 1974 primary -- it was a 4 Democratic primary, statewide -- 5200 people in 5 Orange voted and 3800 in Ulster. Subsequent to 6 that, the law was changed in 1983 in the feeling 7 that more people would vote in the primary. And 8 we get results like in the '82 gubernatorial 9 primary, 24,000 people voted in Orange; 10,465 10 voted in Ulster. 11 As recently as the 1992 12 presidential primary 10,468 people voted in 13 Orange and 8200 voted in Ulster. 14 So, generally, when there were 15 hotly contested primaries, years like '74 and 16 '82 and '84 and '92, the turnout did go way up 17 from what it had been before this law was 18 enacted. Indeed, the law was prompted by the 19 very large turnout in '84 which really 20 inconvenienced people because there was a lot of 21 crowding. 22 The fact of the matter is, minor 23 parties aside, these are counties, particularly 1413 1 Orange County, that does have a commuter 2 component among its voters, and we really ought 3 to accommodate their desire to vote in a primary 4 election. 5 The sponsor can't put a number on 6 it. It will save money. Well, at what price 7 democracy? The fact of the matter is if it only 8 saves an itty-bitty amount of money, then we 9 ought to opt in favor of affording the voters 10 the widest possible opportunity to vote. 11 And I say to my colleagues on the 12 other side of the aisle who may see a hot 13 primary this year, more and more in our state 14 when there are real contests in major parties, 15 you get very large turnouts in a primary. 16 And bills like this, really - 17 because what we do, we, the State of New York, 18 run the party's primary for them -- ought to 19 accommodate the interest of the major parties 20 and the widest possible participation by their 21 members in a primary election. 22 This particular bill does not 23 have bipartisan support from the two major 1414 1 parties in the two counties, and that's my 2 principal political objection to it. 3 Apparently, the two Republican 4 chairs said it's okay and one of the Democratic 5 chairs, but the Democratic chair in Orange 6 County feels very, very strongly that within the 7 Democratic Party in Orange County there are a 8 large amount of commuters who are active in 9 party affairs and like to vote in the primaries, 10 and they require the extended voting hours which 11 the Legislature afforded that county back in 12 1983. 13 Under those circumstances, I 14 don't think we ought to move a bill, whether 15 town councils or whatever want it, that isn't 16 supported -- and that's been the history with 17 successful election changes -- that aren't 18 supported on a bipartisan basis by the 19 organizations concerned. 20 And I'm not going to say any more 21 because I think because there is not that 22 support, this is going to be, once again, a 23 one-house bill. 1415 1 SENATOR GOLD: Mr. President. 2 ACTING PRESIDENT FARLEY: Senator 3 Gold. 4 SENATOR GOLD: Yes, I appreciate 5 Senator Connor's remarks. As usual, he is right 6 on target. We've had this before, and number of 7 us have voted in the negative on it. 8 I just like to say for myself 9 that I certainly would have felt a lot better, 10 Senator Larkin, if you came to us with a bill 11 asking for money to advertise or to encourage or 12 do something to get the people out to vote, 13 because that's what it's about. Cutting the 14 voting hours isn't what elections are about. 15 Limiting the ballot access is not what elections 16 are about. 17 So I appreciate the comments by 18 Senator Connor, and I would certainly urge 19 everybody, certainly on this side of the aisle, 20 to vote in the negative. 21 Last section. 22 ACTING PRESIDENT FARLEY: Read 23 the last section. 1416 1 Senator Dollinger, do you wish to 2 speak? Senator Dollinger to explain his vote. 3 SENATOR DOLLINGER: Actually just 4 on the bill, Mr. President. 5 ACTING PRESIDENT FARLEY: On the 6 bill. I'm sorry. 7 SENATOR GOLD: Party vote in the 8 negative. 9 SENATOR DOLLINGER: To explain my 10 vote? 11 Mr. President. I voted against 12 this bill last time, and I intend to vote 13 against it again. 14 It seems to me that the comments 15 from Senator Connor and Senator Gold are 16 extremely well taken. I personally think that 17 we ought to be doing everything possible to 18 encourage participation in major parties, 19 smaller parties, whatever you want to call it. 20 The greater the participation of the public in 21 the party system, I think the greater vitality 22 it has, the more effective primaries will be. 23 I, frankly, think we ought to be 1417 1 looking at the possibility of extending voting 2 beyond a single day if we want to have greater 3 participation, at least in primaries. This 4 bill, it seems to me -- anything that rolls back 5 the amount of time people can vote in a primary 6 to figure out who the major party candidate 7 should be is a mistake. 8 We should be expanding the time 9 for voting, perhaps even including it to a 10 couple of days, to make sure that every 11 Republican gets to be heard, every Democrat gets 12 to be heard, and every member of a minor party 13 gets to be heard, as well. 14 This is taking a step in the 15 wrong direction when we need further election 16 reform. We should be expanding the time and 17 doing other things to get more people involved 18 in elections rather than fewer. 19 I'll vote no, Mr. President. 20 ACTING PRESIDENT FARLEY: Senator 21 Present, do you agree to a party vote? 22 SENATOR PRESENT: Yes, party 23 vote. 1418 1 ACTING PRESIDENT FARLEY: Read 2 the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT FARLEY: Call 6 the roll on a party vote. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 34. Nays 9 23. Party vote. 10 ACTING PRESIDENT FARLEY: The 11 bill is passed. 12 SENATOR GOODMAN: Mr. President. 13 ACTING PRESIDENT FARLEY: Senator 14 Goodman. 15 SENATOR GOODMAN: May I have 16 unanimous consent to be recorded in the negative 17 on Calendar Number 62, Senate Bill 6398. 18 ACTING PRESIDENT FARLEY: 62? 19 Without objection. 20 SENATOR GOODMAN: Thank you. 21 THE SECRETARY: On page 13, 22 Calendar Number 358, by Senator Hannon, Senate 23 Bill Number 280, an act to amend the Real 1419 1 Property Tax Law. 2 SENATOR GOLD: Explanation. 3 ACTING PRESIDENT FARLEY: 4 Explanation has been asked for. Lay it aside. 5 THE SECRETARY: Calendar Number 6 375, by Senator Volker, Senate Bill Number 6734. 7 SENATOR GOLD: Can we have one 8 day on this for Senator Galiber. 9 ACTING PRESIDENT FARLEY: Can you 10 have one day on this, Senator Volker? 11 SENATOR VOLKER: Lay it aside. 12 ACTING PRESIDENT FARLEY: Lay it 13 aside for the day. 14 THE SECRETARY: Calendar Number 15 378, by Senator LaValle, Senate Bill Number 16 3755, an act to amend the Education Law, in 17 relation to the transportation of students. 18 ACTING PRESIDENT FARLEY: Read 19 the last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 ACTING PRESIDENT FARLEY: Call 23 the roll. 1420 1 (The Secretary called the roll.) 2 ACTING PRESIDENT FARLEY: Senator 3 Jones to explain her vote. 4 SENATOR JONES: Yes. I'm, you 5 know, like everybody else certainly interested 6 in having children transported safely to school, 7 but I see this as another option that we're 8 taking away from school districts and another 9 mandate we're placing on them. 10 Unless we're prepared to give 11 them more money, this transportation seems to be 12 the only option that they have, and I'm very 13 concerned that we would take this away from 14 them. So as a result, I'm voting no. 15 ACTING PRESIDENT FARLEY: Senator 16 Jones in the negative. Results. 17 THE SECRETARY: Ayes 56. Nays 18 2. Senators Daly and Jones recorded in the 19 negative. 20 ACTING PRESIDENT FARLEY: Bill is 21 passed. 22 THE SECRETARY: Calendar Number 23 382, by Senator Cook, Senate Bill Number 2288, 1421 1 an act to amend the Correction Law, in relation 2 to payments in lieu of taxes. 3 SENATOR LEICHTER: Explanation. 4 ACTING PRESIDENT FARLEY: 5 Explanation has been asked for. Senator Cook. 6 SENATOR COOK: Mr. President. 7 The State of New York has seen fit, for a very 8 good reason, to place most of its correctional 9 facilities in relatively small communities. 10 That's all well and good, except that there are 11 certain services that those correctional 12 facilities require -- essentially fire service 13 and emergency ambulance service coverage - 14 which put a very heavy burden on those 15 communities. 16 The most recent contact that I 17 had on this subject was Otisville, which 18 happens, as a matter of fact, to have a federal 19 prison as well as a state prison with a few 20 hundred people providing all of the tax money 21 that is necessary to buy sophisticated fire 22 fighting equipment that would be adequate to 23 respond to an emergency of the type that could 1422 1 occur in that facility were there a fire; and, 2 of course, prisoners that are statewide 3 prisoners are being placed there, something that 4 all of us should share in the cost of. 5 And this bill in a very modest 6 way puts one dollar a year from each 7 correctional facility into the treasury of the 8 fire department and of the emergency medical 9 service to help cover some of those costs. And 10 as I said, a very modest bill because a thousand 11 dollars or so doesn't really go very far but at 12 least it's a recognition on the part of the 13 State of New York that we do have some 14 responsibility for sharing in those costs. 15 SENATOR LEICHTER: Mr. President. 16 ACTING PRESIDENT FARLEY: Senator 17 Leichter. 18 SENATOR LEICHTER: Yes. Mr. 19 President. I'm sorry to say this, Senator Cook, 20 but I think it's a myoptic bill and, frankly, 21 it's a bill where it shows a certain amount of 22 greediness, if I may say so. 23 First of all, a lot of these 1423 1 communities are very anxious to have a prison in 2 their localities because it brings terrific 3 revenue in terms of job and other economic 4 activities. 5 In fact, I remember some years 6 ago, it was in my mind a terrible budget that 7 was passed and one that was very difficult for 8 Republicans to support, but you had to pass the 9 budget and you did. And, afterwards, I saw 10 Senator McHugh, and we were in the -- in our 11 little hideaway there, and I said to him, "I 12 guess you are going to stay here over the 13 weekend." He said, "Why should I?" I said, 14 "Well, you don't want to go back and show 15 yourself in your community, having voted for 16 this budget with taxes and everything else." 17 He said, "I'm coming back a 18 hero." I said, "You're coming back a hero?" 19 He said, "Yes, I brought a prison 20 to my community. People are going to be 21 delighted." 22 So, Senator Cook, let's recognize 23 that there are many areas of the state that are 1424 1 very happy to have prisons located there because 2 of the economic benefit and value that they 3 bring to their communities. 4 Now, I think it's unfortunate 5 that there are many places in New York State 6 that are so dependent on prisons for economic 7 activity. I wish we could do more for those 8 communities, and we should be doing more for 9 them, and I'm sure those communities would like 10 to see other forms of economic activity other 11 than prisons. 12 But the fact is, at this moment, 13 it is a recognition of the economic value of 14 prisons. So at the same time that you are 15 fighting to get prisons in your communities, 16 that you see the value to the communities having 17 the prisons, then you come and you say, "Now 18 you've put all this money in our community, now 19 you got to pay us for providing volunteer fire 20 department service." 21 I really don't understand that. 22 But over and above that, what concerns me is the 23 way we fragmentize our tax laws and have 1425 1 different rules for this facility. There are 2 other state facilities. I don't know why you 3 just pick prisons. If this was a sensible 4 approach, then it ought to apply to all state 5 facilities; and if you applied it to all state 6 facilities, then how about for other services 7 that the state provides or rather that the 8 localities provide to these prisons? 9 You could make the argument there 10 is additional police presence that's required. 11 You got visitors who come there, so you need 12 local police officers to handle traffic and 13 other things of that sort. 14 Now, you remember that some years 15 ago we had a bill that I think first passed when 16 you and I were in the Assembly -- we probably 17 supported it -- which provided that the state 18 was going to pay to the localities for every one 19 of its facilities, a payment in lieu of taxes or 20 would be equal to taxes, would be a recognition 21 of the services the locality provides to the 22 state in servicing its facilities. And we found 23 out it was going to cost $400-500 million or 1426 1 even more, and every year there was a painful 2 vote as we extended the effective date. And 3 finally, in the middle of the one night when we 4 were all groggy, we finally killed that. 5 Because I think we recognized not only the cost 6 but also that there was an consistency in both 7 wanting state facilities, benefiting from state 8 facilities, and then saying to the State of New 9 York now you got to pay for it. 10 So I think the bill is not fair. 11 I think it's not reasonable, and I don't think 12 it's consistent with our tax laws. And for that 13 reason, I would urge my colleagues to vote 14 against it. 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 55. Nays 23 3. Senators Galiber, Leichter and Solomon 1427 1 recorded in the negative. 2 ACTING PRESIDENT FARLEY: The 3 bill is passed. 4 THE SECRETARY: Calendar Number 5 395, by Senator Volker, Senate Bill Number 6912, 6 an act to amend the Penal Law, in relation to 7 the criminal possession and criminal sale of a 8 controlled substance or marijuana. 9 ACTING PRESIDENT FARLEY: 10 Explanation has been asked for. 11 SENATOR VOLKER: Mr. President. 12 You know, I've heard it said before, you know, 13 sometimes we get up on the floor of the Senate 14 and we say this is one of the most important 15 bills to pass the Senate this year. 16 Admittedly, I say it with the 17 death penalty, and I mean it very sincerely. I 18 have to be honest with you, of all the criminal 19 justice bills that I have introduced this year 20 and hope to pass to come into law, this one is 21 probably the most important one we will do this 22 year. 23 One of the reasons why we have 1428 1 rushed this bill as soon as it's been ready to 2 go -- and I will tell you why it hasn't been 3 ready to go until now, why this is the first day 4 that we are able to pass it on this floor. If 5 this piece of legislation does not pass both 6 houses, be signed by the Governor, thousands of 7 people -- thousands of violent inmates -- and 8 let's stop the crap that's been going on over in 9 the Assembly about all of the people involved in 10 drugs in our prisons are nonviolent people. 11 That's the biggest crock of nonsense I've ever 12 heard in my life. 13 An awful lot of violent people 14 are going to walk out of our prison system. It 15 is a very dangerous situation created by a Court 16 of Appeals in this state that should take a real 17 look at itself and decide where it is in a 18 number of ways. 19 Some people have said that this 20 is the worst criminal justice decision made by a 21 Court of Appeals in this state in decades. This 22 is the People versus Ryan decision, that 23 basically says that a person who is charged in a 1429 1 drug case not only must be charged to have 2 knowingly committed the crime and has to know 3 that he or she is in possession of drugs but 4 also has to know the weight of the drugs, a 5 standard by the way that any law enforcement 6 officer and prosecutors and so forth realize is 7 almost a ridiculous standard, and it's a defense 8 attorney's dream, by the way. 9 Now, let me tell you where this 10 bill came from. 11 Can I finish just a second. 12 ACTING PRESIDENT FARLEY: I think 13 Senator Volker wants to finish his. 14 SENATOR VOLKER: This bill was 15 submitted to us by the District Attorneys 16 Association of New York or submitted to the 17 Governor's office, I'm sorry. It is a bill that 18 was submitted to us at the request of the 19 Governor and the Attorney General. It was 20 drafted by the District Attorneys Association. 21 It is supported by the Law Enforcement Council 22 and virtually, as far as I know, every reputable 23 law enforcement group in the State of New York. 1430 1 No one is exactly sure, very 2 honestly, and we discussed this -- Senator 3 Dollinger and myself and a number of us 4 discussed this in our committee meeting. No one 5 is exactly sure, even assuming we pass this 6 bill, what kind of havoc has already been 7 wreaked by the Court decision, because there 8 will be some tough decisions that some judges - 9 are going to have to be made as to what the 10 effect, already, of cases that have happened 11 prior to this; in other words, especially cases 12 that occurred between the time that this case 13 was decided and whenever the Governor signs this 14 bill into law. 15 So I think that this is something 16 extremely serious. It has been estimated that 17 if we do nothing with this People versus Ryan 18 decision that at least 4,000 cases will be put 19 at risk, and no one is sure how many cases are 20 in the pipeline that could be dealt with by 21 this. 22 It just seems to me that this is 23 something that we can't delay dealing with. And 1431 1 I know there are some people here who have not 2 been able to enact second felony offender 3 changes. And as somebody said, this is a nice 4 way of doing it. This is a nice way of emptying 5 out some of our prisons. 6 It may be nice, but it's 7 extremely dangerous. This will put at risk some 8 of the most dangerous prisoners in our system 9 because the possibility is there, the very 10 strong possibility, that many of those cases 11 will be overturned and, in fact, until we get 12 this righted, that future drug cases will be 13 brought almost to a halt. The New York City 14 Police Department is saying that all of their 15 cases, their drug cases could be put in 16 jeopardy. 17 So this is something that's an 18 extremely serious matter. 19 ACTING PRESIDENT FARLEY: Senator 20 Waldon. 21 SENATOR WALDON: Thank you very 22 much, Mr. President. Would the Senator suffer 23 one question, please? 1432 1 ACTING PRESIDENT FARLEY: Would 2 you yield? 3 SENATOR VOLKER: Certainly. 4 SENATOR WALDON: I may be 5 incorrect, Senator Volker, but I thought I heard 6 you say that thousands will walk out of jail. 7 SENATOR VOLKER: Could, yes. 8 SENATOR WALDON: There is no 9 retroactive clause in this bill, is there, in 10 regard to people who have already been 11 sentenced? 12 SENATOR VOLKER: There is no 13 retroactive clause. The question I think is - 14 and we don't know the exact answer to this 15 question. The question that has to be asked is, 16 is on writs of habeas corpus and things of that 17 nature, what would be the result? 18 There is one school of thought 19 that says it's a procedural matter and therefore 20 if it's reversed by a clarification of the 21 statute, so to speak, that judges can still rule 22 that the cases could stand, and there's another 23 school of thought that says that's not 1433 1 necessarily. 2 So what will probably happen is, 3 assuming that this bill becomes law, there will 4 be a lot of cases making decisions about what 5 are some very serious criminals -- either stay 6 in jail, go to jail and so forth -- even despite 7 this bill; but at least we will have protected 8 whatever we can and stopped the wreaking of the 9 havoc that this decision has made. 10 SENATOR WALDON: Mr. President. 11 ACTING PRESIDENT FARLEY: Senator 12 Waldon. 13 SENATOR WALDON: I'm going to 14 have to ask the seconds question. 15 ACTING PRESIDENT FARLEY: Sure. 16 SENATOR WALDON: If you would 17 permit. 18 SENATOR VOLKER: Sure. 19 SENATOR WALDON: You don't mean 20 that those in jails will, in fact, walk out. 21 This is more a prospective bill, is that not 22 correct, meaning that those who are sentenced in 23 futuro, under Ryan, may not be, in fact, 1434 1 sentenced to what you believe they are guilty 2 of; but if this legislation you are proposing is 3 passed, they would receive the appropriate 4 sentence as you view the law? 5 SENATOR VOLKER: Senator, I hope 6 you're right, but I'm not sure you're right. I 7 think there is the possibility that some people 8 who are already in jail could presumably walk 9 out. That is a possibility. I'm not saying 10 that would happen, but there are some in the law 11 enforcement community, in the District Attorneys 12 Association, who believe that the real 13 probability is that a number of the cases that 14 have already gone through the pipeline recently 15 could well be overturned if this statute isn't 16 put into place and if we don't straighten this 17 out. 18 SENATOR WALDON: Thank you very 19 much, Senator. 20 ACTING PRESIDENT FARLEY: Senator 21 Galiber. 22 SENATOR GALIBER: Usually in the 23 course of the debate, especially with my good 1435 1 friend, Dale Volker, I ask him to yield to some 2 questions but not in this case. 3 This piece of legislation needs 4 some time, and this is what is called political 5 hype. The decision in the Ryan case came down, 6 I believe, in December of 1993. Here we are a 7 few months later reacting, if you will, to a 8 decision which has not yet found its way really 9 into the court system. 10 Senator Volker and I were here, 11 and I don't recall how he voted on the 12 Rockefeller law back in 1970, whenever it was - 13 '73 -- and there are those of us who suggested 14 to the then governor of this great state of 15 ours, desirous of running for president of the 16 United States, desirous of taking off his mantle 17 of liberalism, desirous of putting on his cap of 18 conservatism, forced us -- forced some -- into 19 the harsh Rockefeller law, A-1, A-2, A-3. 20 Took us some time. And I'm not 21 sure, I think Senator Dale ultimately or from 22 the very outset saw something wrong there, but 23 it took us back to 1970-whatever-the-date-was to 1436 1 pass legislation. It happened to be Chapter 4 2 or 10. It was one that I remember and I usually 3 don't remember statutes, but it really changed 4 A-2 and A-3 categories because we felt that the 5 law was too harsh. And it gave us an 6 opportunity to review, if you will, the A-1 7 categories which called for life in prison. 8 What has happened here in this 9 particular case with the Ryan case, Judge Kaye 10 and five other judges -- and it depends on 11 whether they are favorable or not. It's like 12 being a lawyer. If you get your client off, 13 you're a great lawyer. If he or she goes to 14 jail, you're a lousy lawyer. 15 We have confirmed some very fine 16 judges in the Court of Appeals, without 17 opposition in most cases. And what Judge Kaye 18 is saying is simply that there are layers of 19 cases where the punishment is too severe. 20 We've talked about unloading our 21 jail systems; that half or a good portion 22 represent persons who have committed small 23 nonviolent drug arrests. They can make it sound 1437 1 bad by saying these are violent criminals in 2 there, and yet we have in the Bedford house of 3 detention some 98 women, 80 percent of their 4 population talked into being mules, if you 5 will. And that's what this bill is all about 6 and establishing the fact that they are mules; 7 but because of the weight, we find them serving 8 fifteen years to life. 9 And I don't want to make it 10 sound -- dramatize it by saying Bedford Hills, 11 because it's a women's institution. All our 12 prison institutions throughout the state, the 13 same thing applies. 14 What this bill is is a reaction 15 to a political year, not really knowing where 16 this is going. 17 I practice law on rare occasions. 18 I have two cases. Just got rid of one the other 19 day, and it happened to be in this category. 20 District attorney agreed that the defendant, my 21 client, was a mule. He had those Nike sneakers 22 coming back from one of the islands, and it 23 looked a little high without the jumping, and 1438 1 they asked him to stop. And as he ran, two 2 pounds of cocaine came out of the back of his 3 shoe. He said they gave me X number of dollars 4 to bring this back. 21 years of age, no prior 5 record. Without Ryan, we're sending him to jail 6 or her to jail for fifteen years. 7 And if we take it in a different 8 perspective and we talk about alternatives to 9 incarceration, if we read very carefully the 10 message that the Governor sent to us, shock 11 treatment which we all agree, or most of us do, 12 we will offer it to you again if the criteria 13 you meet is there plus if it's narcotics. 14 Predicate felon possibility? If 15 it is drugs, we will offer an opportunity by 16 giving to the judge a discretion to deal with 17 it. If you are arrested for a felony under the 18 message that was sent to us -- it may pass, and 19 I think it will because the package over in the 20 Assembly is based on changing the criminal 21 justice system -- give you an alternative to go 22 into a treatment program. 23 All these things that are 1439 1 mentioned are designed, because we have 2 recognized that we are putting people in jail 3 for drugs, violent if you want to call them that 4 -- that's nonsense in my judgment, and no 5 disrespect, and you know that -- where all these 6 folks who are in jail for this horrible length 7 of time merely because they have possessed a 8 certainly quantity of drugs. 9 Are they the big ones, the big 10 timers that we talk about? Are they the ones 11 shooting up the neighborhoods, if you will? 12 No. Because we never, Senator Volker, caught up 13 with those big ones in the first place. Even 14 the A-1 categories, we never got ahold of them. 15 They were so smart. They were able to give 16 15-year-olds the heavy part of the drugs. We 17 never caught up with them. 18 Judge Kaye by her decision five 19 other judges have suggested that this is the 20 first time, that we want to put some teeth in 21 the hands of those so that we will not be 22 packing our prisons with those persons who but 23 for the Rockefeller law might very well be on 1440 1 probation or serving lesser amounts of 2 sentences. 3 What the bill that Senator Volker 4 suggests offers strict liability. I'm not sure, 5 but I think it has something in terms of 6 possible affirmative defense in it or perhaps 7 that was one of the memos or amendments that was 8 going to be proposed, I'm not sure. But you 9 have to put the defendant on the stand in order 10 to do so. 11 We have a number of memos here, 12 some in opposition -- a lot in opposition. But, 13 Senator Volker, let me just share with you what 14 time does. Time has a way of solving so many 15 things. 16 In this short span of time from 17 December '93 to March '94, just a couple of 18 months, three months or so, the reaction to this 19 law as far as the district attorneys are 20 concerned, I made some inquiries and they told 21 me that there are now, Senator Volker, three 22 reported cases. One is People versus 23 Okehoffurum. In that case, the evidence of the 1441 1 price and the defendant's handling of the weight 2 is sufficient to establish knowledge of weight. 3 People versus Corang, held defendant's handling 4 of five ounces of cocaine was sufficient for a 5 class A felony indictment. And People versus 6 Lujan -- all these are recent cases since the 7 Ryan matter, so they're dealing with it, as I 8 said before -- held the size of the drug package 9 sufficient to circumstantially prove knowledge 10 of the weight. 11 I tried to use Ryan in that 12 sneaker case of mine. Judge says, "Counsel, two 13 pounds, two pounds is not the kind of case that 14 the Ryan decision meant," and I suspect that the 15 sponsor of the bill knows that as well as I do. 16 Maybe not as well as most of you know. 17 The districts attorneys in 18 Manhattan -- four or five judges refused to 19 dismiss these cases. Another judge says, "Well, 20 if it's pure weight." And when we say "pure 21 weight," we're not talking about the two pounds 22 again. We're talking about the section of the 23 law that it's brought under where it's a small 1442 1 few ounces, where they have reduced it to a 2 misdemeanor. But in the other cases, they 3 refused to indict -- or they do indict. They 4 refused to dismiss the cases, and there's a 5 number of judges who have followed that. 6 And I simply say that this matter 7 that we discuss today needs some time. And as I 8 said to you, before, we fought and I think 9 somewhere, Dale Volker, like most of the time, 10 Senator, we wind up on a part of the issue. 11 Maybe, sometimes, it's just a third of it, and 12 that's quite a bit as far as the two of us are 13 concerned. We did away with the Rockefeller law 14 because they're putting too many people in jail 15 who shouldn't be there. 16 Can you imagine someone who for 17 economic reasons -- and I'm not justifying any 18 of it -- for economic reasons takes a certain 19 quantity of drugs from here to there. There's 20 no culpability as far as the sale of that drug. 21 For economic purposes, he collects a fee for 22 doing it. Should that person serve fifteen 23 years? The proponent of this bill say yes, that 1443 1 the prosecution has put on additional burden 2 with the prosecution to show that he had 3 knowledge or she had knowledge. 4 And if you read a careful 5 reading, careful reading of the decision, Judge 6 Kaye and her colleagues went through certain 7 mitigating circumstances where this would not 8 apply; but to create this kind of political hype 9 at a time when this decision has not had an 10 opportunity to function, see how it works out, 11 and the sign posts are indicating that the 12 judges and the district attorneys are not having 13 a problem that you mentioned about. They 14 knee-jerked it on December 24, maybe Christmas 15 Eve, if that was the date that it came down, but 16 not March of 1994. 17 Again, back in the real world, I 18 know, Senator, that the votes are here, and it's 19 going to happen, but why should we go back to 20 the Rockefeller days. You opposed part of that 21 then, and you are going to close the door with 22 this piece of legislation. This piece of 23 legislation basically concerns itself with those 1444 1 persons who are not violent, with those persons 2 who are involved because they are mules, but 3 certainly not in that category that we read 4 about in the paper where persons are going 5 through the neighborhoods, shooting up the 6 neighborhoods, killing off little babies. This 7 is not the situation. 8 I say the bill needs more time, 9 and I was going to offer an amendment on it, but 10 the amendment takes away from where my position 11 would be, because then I'm asking for a 12 presumption. And your bill would befall on the 13 defendant and my amendment, and yours also, I 14 think, where we have to put the defendant on the 15 stand in order for him to say, "No, I didn't 16 have knowledge" or "No, I didn't have intent" 17 and then for the jury to make the decision. 18 So, colleagues, I had to put this 19 on the record. I like to function most of the 20 time in the real world. I don't like fighting 21 windmills too often. I do it too often as it 22 is. But this is one of those cases. 23 This bill solves a problem that 1445 1 has haunted us for years and years and years, 2 and that's the harsh Rockefeller law. This is 3 the first time that we had an opportunity to 4 deal with those persons who possibly, if we were 5 to poll this body, would say clearly that they 6 do not deserve to be in jail for the fifteen 7 years or so that the statute calls for. We need 8 some time. I'm not sure we're ever going to get 9 it. 10 I only hope, but I have very 11 little hope, that at least in the Assembly by 12 the time it gets on their calendar -- and I hope 13 they don't rush it, because it's such a short 14 time span. I dare say knowing your position, 15 Senator Volker, on this issue that if this were 16 to come up not at the wee hours of closing 17 session but if this bill were to come up 18 sometime near the end of this session, perhaps 19 you wouldn't even bring it up. Because by that 20 time, you would have seen that this bill doesn't 21 do the damage that you suspect it does. 22 Thank you, Mr. President. 23 ACTING PRESIDENT FARLEY: Senator 1446 1 Volker. Then I will go right to Senator 2 DeFrancisco. 3 SENATOR VOLKER: I will try to be 4 brief. Senator Galiber, normally I -- and I 5 must say to you that I understand what you are 6 saying very well, and I think you are well aware 7 that both of us in one way we're on the same 8 side, and maybe in degrees, on the Rockefeller 9 drug law. As a result my activities in the 10 Assembly on the Rockefeller drug law, I got the 11 longlasting and lifelong enmity of a governor 12 who -- I've never said publicly on the floor 13 here -- once drove his limousine across the 14 sidewalk in front of me, threatened me, pushed 15 me against a wall, and I pushed him back against 16 another wall, a few other things that happened 17 as a result of it. He was a real 18 confrontationalist. He also said that the 19 changes in that Rockefeller drug law -- he 20 privately told some of his friends -- were the 21 greatest defeat that he had in public life, not 22 well-known, and the result of it was that a 23 number of other things occurred after that which 1447 1 I can't get into here, but did occur. 2 Senator, I must disagree with 3 you. And I understand what you are saying to 4 me. You are right about one thing that the 5 impact of doing nothing in this, of not passing 6 this legislation and not signing into law, 7 would, I think, in the long-term have the effect 8 of negating a good deal of the tough drug laws 9 that we have passed over the last two decades. 10 Nonviolent as well violent people would be 11 impacted. That's almost a surety. 12 Ryan, by the way, was not a small 13 time possessor. If you look at who the People 14 versus Ryan case involved, it was not some small 15 time possessor. Quite obviously, when you think 16 about it, because it went all the way to the 17 Court of Appeals. And I suppose, normally, 18 small time people, very honestly, don't get to 19 the Court of Appeals. 20 In fact, what's really not 21 well-known is, here, we had a failure here a few 22 years ago of a first-felony defender diversion 23 program. The reason it failed is that every 1448 1 D.A. in New York City had been doing 2 first-felony offender diversion for years. You 3 really got to work at getting busted and going 4 to jail in New York City. Four, five times. 5 When you are talking about this 6 sort of thing, I mean, sure, there is I suppose 7 the occasional person who is supposedly the 8 small-time person. My definition of the normal 9 drug person who's nonviolent is the guy who 10 shoots over somebody's head, misses, and gets 11 convicted of possession of a lot of marijuana 12 that he carries out of a store, because if you 13 look at the history of people who are in jail 14 just on drug charges, virtually all of them - 15 virtually all of them -- have a long string of 16 felonies before that, at least a few of which 17 are violent felonies. Many times they were pled 18 down. That's the way it is. 19 The problem is -- and I don't 20 know, maybe you're right, Joe. All I know is 21 the New York City Police Department says they 22 have 3100 cases that if we don't do anything 23 about the People versus Ryan case they may have 1449 1 to throw it out the window, and those are only 2 possession cases. They have no idea on the sale 3 side exactly how many they may have to sack. 4 The rest of the state at this 5 point says 900. They're not sure, but it's a 6 lot. This is not just about small-time people, 7 not at all. It could be somebody with thousands 8 of pounds for that matter. 9 Yes, it is Joe. And not only 10 that, there is another factor here. If this 11 case remains unchallenged, what about the 12 larceny statute? You could apply this to other 13 areas of the law. 14 And you and I know, Senator, and 15 both of us, I assume, have been involved, and I 16 know of many people have been involved in cases 17 involving people who have drugs. Most of the 18 people that are involved in drugs, they have no 19 idea of the exact amount of the drugs that they 20 have. They don't know whether it's six pounds 21 or four pounds or three pounds. 22 This is, by the way, a standard 23 that every law enforcement person that I've 1450 1 talked to says is impossible to meet, 2 virtually. It's ridiculous, and it flies in the 3 face of the statute. What the Court of Appeals 4 did was to take a statute and take the meaning 5 of it as it was intended and said, "We're going 6 to interpret it in a different way." That's 7 what they said. 8 The trouble is and, once again, 9 the Legislature certainly never meant that we 10 were going to say that the criminal had to know 11 exactly how much drugs he had or she had. What 12 the Court of Appeals is saying is we don't 13 particularly care what the Legislature intended 14 we're going to put our imprimatur on it and make 15 an decision. Maybe that's the worst thing of 16 all, and Senator Marchi has pointed that out 17 over the years. It's a very disturbing kind of 18 thing that's occuring in the courts not only in 19 this state but in this country, where courts are 20 taking statutes that we and other legislatures 21 have passed and saying, "Well, we don't like the 22 way that they did that, not that they intended 23 anything else. We know what they intended, but 1451 1 we think it ought to have been different and, 2 therefore, we are going to say that this is what 3 they really intended to do." 4 I guess -- let me finish up by 5 saying, Senator, normally I would agree with you 6 that we could take some time to look at this. 7 This is like saying that there's a leak in the 8 Titanic, and we should take a little time and 9 hope that the thing doesn't sink. 10 The only issue here in this bill 11 of waiting is the issue of how many cases we're 12 going to jeopardize, and that's why I think, 13 Senator, I can't agree with you and why I ithink 14 we have to move ahead. 15 SENATOR GALIBER: Senator yield 16 to a question? 17 SENATOR VOLKER: Certainly. 18 ACTING PRESIDENT FARLEY: I do 19 have a list, incidentally, but I presume that 20 you would yield. I do have a list of people 21 that wanted to speak on this. 22 So Senator Galiber. 23 SENATOR GALIBER: Senator, are 1452 1 you aware that the three cases that I cited -- I 2 might not have pronounced that first name 3 probably, but all those cases were held because 4 they were able to show by circumstantial 5 evidence. That's why they didn't dismiss these 6 cases, either by the handling of them or in the 7 law enforcement category where they say, "Do you 8 want to buy a nickel bag or a dime bag?" So 9 that's the kind of knowledge. There were 10 convictions here. These cases were not 11 dismissed. You would have us believe that if 12 your bill passes -- or if the Ryan decision 13 stands, that the flood gates of our institutions 14 were opened up and 30-some-odd thousand, 15 whatever those cases that the police officers 16 who have no responsibility for prosecution in 17 the first place have written to you and said 18 31,000 of our cases - 19 SENATOR VOLKER: Hundred. 20 SENATOR GALIBER: -- are going to 21 go down the drain. I'll yield. 22 SENATOR VOLKER: Hundred, Joe. I 23 didn't say 31,000. 3100. 1453 1 SENATOR GALIBER: 3100? All 2 right, 3100. 3 SENATOR VOLKER: In New York 4 City. 5 SENATOR GALIBER: Okay. New York 6 City. Sounded -- New York City, sounded 7 reasonable for that amount, very frankly. 8 The fact of the matter is that 9 the Ryan case, they are closing the doors so 10 rapidly here that the only area of concern - 11 the areas of concern that you have won't 12 happen. The prosecutors are suffering no 13 serious misgivings about this decision itself, 14 very frankly. You haven't heard from them 15 recently, I'm sure. 16 And there is that distinction 17 between the statutes, and I'm not quite sure, 18 the maximum sentence and a number of other 19 categories which I really can't see here on the 20 notes. 21 The fact of the matter is that 22 this piece of legislation, as I pointed out to 23 you, they are not opening up the flood gates. 1454 1 District attorneys are not prosecuting these 2 cases -- they are prosecuting these cases, and 3 they are not dismissing them because the 4 knowledge that they need by circumstantial 5 evidence, the handling of the case, the amount 6 that you talk about, the two pounds that I 7 talked about. Judge Eng, right in Queens 8 County, said, "Come on, Counsel, that doesn't 9 fly," because defense attorneys try it. That's 10 not even close. What we're talking about in the 11 Ryan case are those small cases where they wind 12 up reducing them in the first instance. It's 13 just where we have a mule situation. They 14 charge them with an A-2 felony. They can't go 15 any further than the A-2 felony. When we 16 changed the Rockefeller law, it has to be the 17 best you can do is three years to life, best you 18 can do for someone whom we have established is 19 merely a mule, no culpability as far as the sale 20 or use of the drug is concerned. 21 Senator, I'm not trying to 22 convince you. I just wanted to draw a couple of 23 things to your attention, and there's a list of 1455 1 cases that we got this afternoon, and I won't 2 trouble you with them, where they've said the 3 same thing. Judge Roberts, not Burt Roberts, 4 his brother in Manhattan refuses -- denies them 5 all. They bring them in on a small amount with 6 a pure weight with crack. They threaten them, 7 say if you don't take the year and a half now, 8 we'll send it back up to the grand jury, who 9 will come out with a B felony conviction, 10 possibility. So the prosecutors are handling 11 this. They are handling this. 12 And when we compare their ability 13 to handle it -- I have a lot of confidence in 14 them, but I'm sure you have also -- as opposed 15 to the damage it does, closes the door in areas 16 where we're both concerned about those persons 17 who are spending an inordinate amount of time in 18 prison because of this tough law. 19 SENATOR VOLKER: Senator, I guess 20 I will have to reply to that. 21 ACTING PRESIDENT FARLEY: Senator 22 Volker. 23 SENATOR VOLKER: This is not 1456 1 about small timers. This is not about big 2 timers. This is about -- and this is not about 3 sentencing. This is about a basic issue of a 4 statute and a reinterpretation of a statute by 5 the Court of Appeals. Senator, those cases have 6 not reached the Court of Appeals. 7 Yes, there are judges. There's 8 no question there are judges who are saying we 9 don't want to follow that ridiculous decision, 10 and we're going to find a way to avoid it. The 11 problem is, though, that you and I know the 12 defense bar is running around -- this is one of 13 the biggest boons to the defense bar that 14 they've seen. We've had them in our office. 15 They are running all over the place. They think 16 this is the greatest thing since sliced bread. 17 This, by the way -- and I will be 18 the first to admit it. I'm an attorney. I 19 think this case is a great case for defense 20 attorneys. I'm an attorney. I mean they can 21 make a bundle if we don't change this case 22 because they are going to be able to appeal 23 umpteen cases to the higher courts, and probably 1457 1 some of these cases that you mentioned are going 2 to end up in the Court of Appeals. And what's 3 the Court of Appeals going to do? They already 4 made a decision that basically said you have to 5 prove the weight, and they are faced with that 6 decision. 7 By the way, I heard from some 8 friends of mine who know the judges in the Court 9 of Appeals. They are saying they have never 10 received so much flack from the public as they 11 have received because of this case; and, 12 frankly, I think they should have. 13 I'll be very honest with you, 14 normally I -- you and I are more in agreement, 15 very often, than in disagreement, but on this 16 one, Senator, I have to disagree with you. I 17 think it's important that we do this as quickly 18 as possible. 19 I think it's a double principle. 20 First, I think that the Court of Appeals made 21 this decision, I think, against what was clearly 22 the wishes of the Legislature when this was 23 passed. The issue of drug deals and the issue 1458 1 of second-felony offender reform, all that sort 2 of thing is a whole different issue. 3 This issue is the issue of 4 whether we can allow a decision to stand that 5 makes a ridiculous standard -- puts a ridiculous 6 standard not only on the prosecution but on law 7 enforcement officers. 8 ACTING PRESIDENT FARLEY: Senator 9 DeFrancisco. 10 SENATOR DeFRANCISCO: I think I 11 forgot what I was going to say. No. 12 I think Senator Volker mentioned 13 in his last remarks exactly what I was going to 14 point out earlier. It was mentioned by Senator 15 Galiber that this was the Court of Appeals way 16 to take care of the situation where the mule 17 gets too much of a sentence, and it gives the 18 opportunity to reduce the sentences in that 19 respect. 20 This is not a sentencing case. 21 It's a case that says that if you want to prove 22 that someone is guilty of one of the aggravated 23 possession of drug offenses, you not only have 1459 1 to show that they knowingly possess the drug but 2 they knowingly possess the quantity of drug that 3 aggravates it into a higher degree. 4 So although there may be some 5 lower court cases that say that we can prove it 6 by circumstantial evidence, quite honestly I 7 have no idea how you can prove by circumstantial 8 evidence whether or not what is being possessed 9 is .75 grams or 1.1 gram, and the one gram is 10 the area where you aggravate it to a higher 11 degree of possession. You may be able to prove 12 by circumstantial evidence that it is the 13 highest degree of felony, but in the 14 intermediary levels you can't do that. It's 15 virtually impossible. 16 And if someone knowingly 17 possesses a drug, I think it's good public 18 policy to punish them in accordance with how 19 much drugs they actually carry; and if there is 20 a risk by the mules of knowing whether or not 21 they are going to get an A felony or a D felony, 22 they might want to check to see how much they 23 are carrying. 1460 1 So I would suggest, basically, 2 that this is an important law, and it is very 3 important because all prosecutions from this 4 point forward are impaired by this impossible 5 burden to prove the aggravated offense -- not 6 the sentence we're talking about, to prove the 7 aggravated offense based upon the quantity of 8 drugs actually in the possession of the 9 individual. 10 ACTING PRESIDENT FARLEY: Senator 11 Dollinger. And Senator Padavan is next. 12 SENATOR DOLLINGER: Mr. 13 President. I rise to speak in favor of this 14 bill, although I have to -- I guess, as the 15 Supreme Court has often times done, I concur in 16 the result but disagree with the logic that 17 drives us there. 18 First of all, let me make it 19 clear. I don't think the Court of Appeals did 20 anything wrong in the Ryan decision. As I 21 understand that opinion, what they did is they 22 looked at a statute that had been drafted by 23 this Legislature, a law that had been approved 1461 1 by this Legislature, which contained the term 2 "knowing," "possesses for sale," and then 3 described an amount. And what they did is they 4 looked at a system of legislative judgments, and 5 we said, "The more you possess the greater the 6 penalty." 7 What actually happened then is 8 the Court said we're going to take that 9 "knowing" and we're going to apply it not only 10 to the "knowing possess" but knowing possess a 11 certain amount. 12 They took the inartful drafting, 13 what I believe was the inartful drafting of that 14 statute by this Legislature, and said, "We're 15 going to interpret it to benefit the defendant," 16 which, from my point of view, is exactly what 17 the Court of Appeals, which is the bastion of 18 protecting the rights of criminal defendants 19 should have done, and they should have applied a 20 very strict standard in analyzing the statutory 21 language and applying the term knowing to 22 require that there be a knowing possession of a 23 specific amount of the drug. 1462 1 So from my point of view the 2 Court of Appeals did what it was required to do 3 and as a court designed to protect individual 4 liberty, and that is to require this Legislature 5 to be more artful in the drafting of a statute 6 which had increasing penalties attached to the 7 differences in the amount drugs that were 8 possessed. 9 We are not in the position where 10 we can correct that, where in the system of 11 checks and balances in this state we have the 12 clear power, the clear opportunity to do that. 13 The system is working. 14 This bill, I believe, reflects an 15 instance in which the system will continue to 16 work. We draft a statute perhaps not as 17 artfully as we should. The Court of Appeals 18 looking to give the defendant the benefit of the 19 doubt applies a very strict reading of the 20 language of that statute, construes it in favor 21 of the defendant, and says there was a failure 22 to prove that they knew exactly how much of the 23 drug they possessed. Under those circumstances, 1463 1 they strike down the conviction as the 2 constitution compels them to do. We now are 3 faced with the situation where we can remediate 4 that inartful drafting of the statute to come to 5 a conclusion as to what the knowing provision of 6 that law ought to apply to. 7 So from my point of view, the 8 Court of Appeals didn't do anything wrong. The 9 Court of Appeals did exactly what the 10 constitution requires it to do, to interpret a 11 somewhat inartfully drafted statute in favor of 12 a defendant, and it comes back to our lap now to 13 choose to remediate it. 14 I'd also point out and I guess I 15 agree with one other factor I guess Senator 16 Volker said, and, again, I'm agreeing with the 17 conclusion here, but this bill will apply not 18 only to violent drug users. As I read it, the 19 bill reaches down to criminal possession of 20 marijuana in the fifth degree, which in my 21 judgment is a very relatively small offense in 22 our drug system. I don't believe it's a felony, 23 although I haven't had a chance to check the 1464 1 rule. So it applies to the offenses of criminal 2 possession of marijuana fifth through the first 3 degrees as well as the criminal sale of 4 marijuana in the third through the first 5 degrees. 6 I think the point that Senator 7 Galiber talked about, about the person who is 8 possessing the drug either for their own use or 9 may not know all the extent of the use, what we 10 have done in this state, what we've decided to 11 do, is increase the penalties as we decrease the 12 amount of drugs that we need to possess. The 13 consequence of that is that the kind of 14 statutory dispute that evolved in the Ryan case 15 is going to be more and more prevalent as we try 16 to push the penalties for smaller and smaller 17 amounts -- increase the penalties for smaller 18 and smaller amounts. But I think we are 19 affecting not only violent drug users, we are 20 affecting everyone when we include it down to 21 possessions, the simple possession of marijuana 22 in the fifth degree. 23 I also agree -- and this is where 1465 1 I agree with Senator Galiber. I think that in 2 those smaller drug uses, in possession for 3 personal consumption and use, we need a more 4 enlighten policy in this state. We don't need 5 far more severe penalties. What we need is an 6 approach that says, "We're going to look at drug 7 treatment first and try to deal with the problem 8 of addiction rather than the problem of criminal 9 offense." 10 But as we currently stand, unless 11 we're going to make that wholehearted change, if 12 we're going to continue down a road that says, 13 "We're going to use a system of attaching 14 greater penalties to lesser amounts," and we 15 need the clarification, I believe this bill goes 16 in the step of clarifying legislative intent 17 consistent with our constitutional obligations. 18 I think it does that. I think it will in the 19 greater penalties, in the more egregious drug 20 offenders create greater prosecutions, greater 21 chance for prosecution; and, therefore, I'm 22 going to support the bill. 23 But the system didn't break 1466 1 down. The system is functioning now as it 2 properly should. And I hope that we would turn 3 our attention to dealing with the problem of 4 possession and small sales and try to come up 5 with a more therapeutic way of dealing with 6 people whose only crime is that that they are 7 addicted to drugs. 8 ACTING PRESIDENT FARLEY: Senator 9 Padavan. 10 SENATOR PADAVAN: Thank you, Mr. 11 President. The comments that we just heard from 12 Senator Dollinger remind me of a similar problem 13 that we experienced in 1976. There aren't too 14 many people here today who were here then, but I 15 know Senator Galiber was, when we adopted 16 something known as the Marijuana Reform Act. 17 That bill and that law had many 18 things in it that I didn't approve of. One of 19 them, of course, was lessening the penalties for 20 possession, but it also at the same time dealt 21 with penalties for sale of various quantities of 22 marijuana, and the bill passed both houses, was 23 signed into law. 1467 1 Shortly, thereafter, a major 2 arrest of a large quantity, bales, actually, 3 which probably could be weighed in tons, took 4 place. When that case was brought before the 5 Court, a very clever defense attorney said, 6 "Your Honor, I have the law. It says weight of 7 marijuana. Now, in these bales of marijuana are 8 seeds, twigs, stems and all other things and the 9 prosecutor has not cited the actual weight of 10 the marijuana, the component." 11 And the prosecutor explained to 12 the Court that there was no way in the world 13 that they could take these bales of marijuana to 14 some laboratory without spending weeks and 15 actually eliminate all those components. So the 16 case was thrown out, and we were presented with 17 a major problem. The district attorneys came to 18 us as they are now, and the Governor came to us 19 as he is now, and said you have to correct this 20 issue, this problem, which may or may not have 21 been an error on your part but, nevertheless, is 22 a problem, and so we changed the law to 23 aggregate weight, and we dealt with the 1468 1 problem. 2 So now, here again, we have a 3 similar situation -- a little bit different but 4 quite similar -- and so we must change the law 5 to stay one step ahead of what, as Senator 6 Volker has properly stated, would be a bonanza 7 to defense attorneys reaching out to every one 8 of these convicted drug pushers based on what is 9 perceived by the Court today to be a flaw in our 10 statute. 11 And I see no other choice but to 12 act upon it expeditiously, both houses, get it 13 to the Governor's desk, and do what we are 14 supposed to do. 15 Thank you, Mr. President. 16 ACTING PRESIDENT FARLEY: Read 17 the last section. 18 THE SECRETARY: Section 11. This 19 act shall take effect immediately. 20 ACTING PRESIDENT FARLEY: Call 21 the roll. 22 (The Secretary called the roll.) 23 SENATOR GALIBER: Very briefly, 1469 1 Mr. President. May I have my name called? 2 ACTING PRESIDENT FARLEY: Senator 3 Galiber. 4 SENATOR GALIBER: Contrary to 5 what has been said, it is my firm belief that 6 the Ryan decision merely uses knowledge, if you 7 will, to determine whether one spends a year 8 mandated in jail or the rest of their life. So 9 I say the Ryan decision was carefully drafted. 10 It is needed in the climate that we have, and I 11 vote in opposition to the bill. 12 ACTING PRESIDENT FARLEY: Senator 13 Galiber -- Read the last section, I guess. 14 That's where - 15 THE SECRETARY: Section 11. This 16 act shall take effect immediately. 17 ACTING PRESIDENT FARLEY: Call 18 the roll. 19 (The Secretary called the roll.) 20 ACTING PRESIDENT FARLEY: He 21 voted in the negative, Senator Galiber did. 22 Senator Paterson. Senator Waldon. 23 THE SECRETARY: Ayes 57. Nays 1470 1 3. Senators Galiber, Paterson and Waldon 2 recorded in the negative. 3 ACTING PRESIDENT FARLEY: The 4 bill is passed. Senator Spano. 5 THE SECRETARY: Also Senator 6 Smith in the negative. Also Senator Santiago. 7 ACTING PRESIDENT FARLEY: The 8 bill is passed. 9 THE SECRETARY: Calendar number 10 401, by Senator Skelos, Senate Bill Number - 11 SENATOR PRESENT: Lay it aside. 12 ACTING PRESIDENT FARLEY: Lay it 13 aside. 14 We have a report of a standing 15 committee, Senator Present. 16 SENATOR PRESENT: Let's receive 17 it. 18 ACTING PRESIDENT FARLEY: 19 Secretary will read the report of a standing 20 committee. 21 THE SECRETARY: Senator Sears 22 from the Committee on Consumer Protection 23 reports the following bill directly for third 1471 1 reading: 2 Senate Bill Number 7068, an act 3 to amend Chapter 509 of the Laws of 1992, 4 amending the General Business Law, reported 5 directly for third reading. 6 ACTING PRESIDENT FARLEY: 7 Directly to third reading without objection. 8 Senator Present. 9 SENATOR PRESENT: Would you 10 recognize Senator Paterson. I believe he has a 11 privileged resolution. 12 ACTING PRESIDENT FARLEY: Senator 13 Paterson. 14 I think we did it. Did you wish 15 to speak to it, Senator Paterson? 16 SENATOR PATERSON: Thank you, Mr. 17 President, no. I just wanted to acknowledge the 18 person that the resolution was written for, but 19 the person has left. So I'd just like to thank 20 you, Mr. President, for being here today. 21 ACTING PRESIDENT FARLEY: Thank 22 you. The resolution passed unanimously. 23 Are there any housekeeping 1472 1 measures on the floor? 2 (There was no response.) 3 Senator present. 4 SENATOR PRESENT: Mr. President. 5 There being no further business, I move we 6 adjourn until tomorrow at 11:00 a.m. 7 ACTING PRESIDENT FARLEY: The 8 Senate will stand adjourned until tomorrow at 9 11:00 a.m. 10 (Whereupon, at 5:55 p.m., Senate 11 adjourned.) 12 13 14 15 16 17 18 19