Thursday, March 24, 1994

1642 1 ALBANY, NEW YORK 2 March 24, 1994 3 12:01 p.m. 4 5 6 REGULAR SESSION 7 8 9 10 SENATOR MICHAEL F. NOZZOLIO, Acting President 11 STEPHEN F. SLOAN, Secretary 12 13 14 15 16 17 18 19 20 21 22 23 1643 1 P R O C E E D I N G S 2 ACTING PRESIDENT NOZZOLIO: The 3 Senate will come to order. 4 Please join me in saying the 5 Pledge of Allegiance. 6 (The assemblage repeated the 7 Pledge of Allegiance to the Flag. ) 8 Reverend Peter G. Young, from the 9 Blessed Sacrament Church in Bolton Landing, will 10 give the benediction. 11 REVEREND PETER G. YOUNG: Thank 12 you, Senator. 13 As a point of personal privilege, 14 I received a letter in yesterday's mail from 15 former Senator Thomas Laverne, and Thomas, a man 16 I spent night after night going out to dinner 17 with and being close to, did ask me if I would 18 ask the Senate to pray for him. He has, now, 19 terminal cancer; so if I could just ask you to 20 join with me in this prayer. 21 Almighty and eternal God, may 22 your grace enkindle in all of us a love for the 23 many unfortunate people whom poverty and misery 1644 1 reduce to a condition of life unworthy of human 2 beings. Arouse in the hearts of those who call 3 You "Father" a hunger and a thirst for social 4 justice and for fraternal charity in deeds and 5 in truth. Grant, O Lord, peace in our days, 6 peace to all of those souls and peace to Thomas 7 Laverne, who is with us in our prayer. 8 We ask You this now and forever. 9 Amen. 10 ACTING PRESIDENT NOZZOLIO: Thank 11 you, Father. 12 FATHER YOUNG: Thank you, 13 Senator, very much. 14 ACTING PRESIDENT NOZZOLIO: 15 Reading of the Journal. 16 THE SECRETARY: In Senate 17 Wednesday, March 23rd. The Senate met pursuant 18 to adjournment, Senator Farley in the Chair upon 19 designation of the Temporary President. The 20 Journal of Tuesday, March 22nd, was read and 21 approved. On motion, Senate adjourned. 22 ACTING PRESIDENT NOZZOLIO: 23 Hearing no objection, the Journal stands 1645 1 approved as read. 2 Order of business: Presentation 3 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 Senate officers. 10 Motions and resolutions. Senator 11 Present. 12 SENATOR PRESENT: Would you 13 recognize Senator Daly, please. 14 ACTING PRESIDENT NOZZOLIO: 15 Senator Daly. 16 SENATOR DALY: There's a 17 resolution at the desk. Would the clerk read, 18 Mr. President, please, the entire resolution, 19 please. 20 ACTING PRESIDENT NOZZOLIO: 21 Secretary will read. 22 THE SECRETARY: By Senator Daly, 23 Legislative Resolution commending the Lockport 1646 1 Lady Lions basketball team upon the occasion of 2 winning the New York Public High School Athletic 3 Association Class A Title Championship. 4 WHEREAS, it is the sense of this 5 assembled body that those who give positive 6 definition to the profile and disposition of the 7 communities of the state of New York do so 8 profoundly strengthen our shared commitment to 9 the exercise of freedom; 10 Attendant to such concern and 11 fully in accord with its long-standing 12 traditions, it is the intent of this assembled 13 body to commend the Lockport Lady Lions 14 basketball team upon the occasion of winning the 15 New York Public High School Athletic Association 16 Class A Title Championship; 17 On Saturday, March 19, 1994, the 18 Lockport Lady Lions captured the New York Public 19 High School Athletic Association's Class A title 20 this past week end with a 53-50 victory over the 21 Mahopac Indians at Queensbury High School; 22 The Lady Lions have so clearly 23 endowed and yet enhanced that commitment to 1647 1 excellence in all endeavors which is the daily 2 manifestation of the student body, faculty and 3 administrative staff of Lockport High School; 4 The Lockport Lady Lions 5 basketball team, under head coach William Shaw, 6 assistant coaches Greg Bronson and Jim Owens, 7 the athletic director Robert Ames, mirror those 8 prerogatives of personal initiative and 9 accountability so paradigmatic of our American 10 manner. Team members are Seniors: Colleen 11 Cleary, Heather Hughes, Megan Pollow, Kristi 12 Amyotte, Maria Pita, Caryn Beshaw; Juniors: 13 Luciann Kelley, Kelly Stevens, Johanna Grimes, 14 Tina Henne-bohl, Summer States, Christina 15 Jenkins, Jacqueline Rohde; Sophomores: Geraldine 16 White, Kristin Jordan. 17 Through their long and sustained 18 commitment to excellence in scholastic 19 basketball, the Lockport Lady Lions have so 20 unselfishly advanced the spirit of united 21 purpose and shared concern which is the 22 unalterable manifestation of our American 23 experience; 1648 1 NOW, THEREFORE, BE IT RESOLVED, 2 that this legislative body pause in its 3 deliberations and most joyously commend the 4 Lockport Lady Lions basketball team upon the 5 occasion of the winning of the New York Public 6 High School Athletic Association Class A Title 7 Championship, fully confident that such 8 procedure mirrors our shared commitment to 9 preserve, to enhance and to yet effect the 10 patrimony of freedom which is our American 11 heritage; and 12 BE IT FURTHER RESOLVED that 13 copies of this resolution, suitably engrossed, 14 be transmitted to Dr. Russell Dever, 15 superintendent of schools, to John E. Essler, 16 principal, to Robert Ames, athletic director and 17 to William Shaw, head coach, Lockport High 18 School, Lockport, New York. 19 ACTING PRESIDENT NOZZOLIO: On 20 the resolution, Senator Daly. 21 SENATOR DALY: Mr. President, I 22 have the distinct honor today of introducing to 23 my colleagues a group of young ladies of whom 1649 1 Niagara county is indeed very proud. I'd like 2 to point out that, in addition to their great 3 success this basketball season, their present 4 record is 26 and zero and, with the exception of 5 Senator Pataki, I'm sure all of us are very 6 happy to have them with us today, Mahopac High 7 School being located in Senator Pataki's 8 district. 9 I would like to point out that, 10 in this -- among this group of ladies who have 11 done so well on the basketball court, are ladies 12 who have also become members of the New York 13 State Scholar Athlete team, with averages of 90 14 percent or above, and I thought I would like to 15 bring that to the attention of my colleagues and 16 I'm sure you'll all join me in saying hello and 17 congratulations to a group of fine young ladies 18 along with their coach and their assistant 19 coach. It's great to have you with us. 20 Thank you, Mr. President. 21 ACTING PRESIDENT NOZZOLIO: Thank 22 you, Senator Daly. 23 On behalf of the Senate, wish to 1650 1 welcome and congratulate the Lockport Lady Lions 2 basketball team upon the occasion of their 3 victories this season. 4 Question is on the resolution. 5 All those in favor? 6 (Response of "Aye." ) 7 The resolution is carried. 8 The Calendar. Senator Present. 9 SENATOR PRESENT: Take up the 10 non-controversial calendar, please. 11 ACTING PRESIDENT NOZZOLIO: The 12 clerk will call the non-controversial calendar. 13 THE SECRETARY: On page 12, 14 Calendar Number 241, by the Assembly Committee 15 on Rules, Assembly Bill Number 7736, an act to 16 amend the Tax Law, in relation to criminal 17 liability of certain persons interested in tax 18 sales. 19 ACTING PRESIDENT NOZZOLIO: Last 20 section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT NOZZOLIO: Call 1651 1 the roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 40. 4 ACTING PRESIDENT NOZZOLIO: The 5 bill is passed. 6 THE SECRETARY: Calendar Number 7 265, by Senator Levy. 8 SENATOR PRESENT: Lay it aside, 9 please, for the day. 10 ACTING PRESIDENT NOZZOLIO: Bill 11 is laid aside for the day. 12 THE SECRETARY: Calendar Number 13 298, by Senator Volker, Senate Bill Number 3385, 14 an act to amend the Penal Law and the Criminal 15 Procedure Law. 16 SENATOR GOLD: Lay it aside, 17 please. 18 ACTING PRESIDENT NOZZOLIO: Bill 19 is laid aside. 20 THE SECRETARY: Calendar Number 21 365, by Senator Skelos, Senate Bill Number 950, 22 an act to amend the Family Court Act and the 23 Criminal Procedure Law. 1652 1 ACTING PRESIDENT NOZZOLIO: Last 2 section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT NOZZOLIO: Call 6 the roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Ayes 40. 9 ACTING PRESIDENT NOZZOLIO: The 10 bill is passed. 11 THE SECRETARY: Calendar Number 12 372, by member of the Assembly Stringer, 13 Assembly Bill Number 9266. 14 SENATOR GOLD: Lay aside, please. 15 ACTING PRESIDENT NOZZOLIO: Bill 16 is laid aside. 17 THE SECRETARY: Calendar Number 18 400, by - 19 SENATOR DALY: Lay aside. 20 ACTING PRESIDENT NOZZOLIO: 400 21 is laid aside. 22 SENATOR DALY: For the day. 23 ACTING PRESIDENT NOZZOLIO: For 1653 1 the day. 2 SENATOR DALY: Lay it aside for 3 the day. 4 ACTING PRESIDENT NOZZOLIO: Bill 5 is laid aside for the day. 6 THE SECRETARY: Calendar Number 7 413, by Senator Marino, Senate - 8 SENATOR GOLD: Lay aside. 9 ACTING PRESIDENT NOZZOLIO: Bill 10 is laid aside. 11 THE SECRETARY: Calendar Number 12 417, by Senator Present, Senate Bill Number 13 3104-A, State Administrative Procedure Act and 14 the Executive Law. 15 ACTING PRESIDENT NOZZOLIO: Read 16 the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT NOZZOLIO: Call 20 the roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 46. 23 ACTING PRESIDENT NOZZOLIO: The 1654 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 418, by Senator Bruno. 4 SENATOR PRESENT: Lay aside for 5 the day, please. 6 ACTING PRESIDENT NOZZOLIO: Bill 7 is laid aside for the day. 8 THE SECRETARY: Calendar Number 9 419, by Senator Bruno, Senate Bill Number 6871, 10 requiring for the development of a plan and 11 schedule. 12 ACTING PRESIDENT NOZZOLIO: Read 13 the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 SENATOR LEICHTER: Lay it aside. 17 SENATOR GOLD: Lay it aside for 18 Senator Leichter. 19 ACTING PRESIDENT NOZZOLIO: Bill 20 is laid aside. 21 THE SECRETARY: Calendar Number 22 420, by Senator Wright, Senate Bill Number 7013. 23 SENATOR GOLD: Lay aside. 1655 1 ACTING PRESIDENT NOZZOLIO: Bill 2 is laid aside. 3 Senator Present. 4 SENATOR PRESENT: Let's take the 5 controversial calendar, please. 6 SENATOR JOHNSON: Mr. President. 7 ACTING PRESIDENT NOZZOLIO: 8 Senator Johnson. 9 SENATOR JOHNSON: Without 10 objection, could we just return to motions and 11 resolutions? I have a resolution I'd like to 12 make concerning one of my bills. 13 ACTING PRESIDENT NOZZOLIO: 14 Senator Johnson on a resolution. 15 SENATOR JOHNSON: Calendar Number 16 286, on page 13, Senate Bill 4798, please put a 17 sponsor's star on that bill. 18 ACTING PRESIDENT NOZZOLIO: Bill 19 is starred. Secretary will read. 20 THE SECRETARY: On page 13, 21 Calendar Number 298, by Senator Volker. 22 SENATOR GOLD: Explanation. 23 THE SECRETARY: Senate Bill 1656 1 Number 3385, an act to amend the Penal Law. 2 SENATOR PRESENT: Lay it aside 3 temporarily. 4 ACTING PRESIDENT NOZZOLIO: Bill 5 is laid aside temporarily. 6 THE SECRETARY: Calendar 372, by 7 member of the Assembly Stringer, Assembly Bill 8 Number 9266, Family Court Act, in relation to 9 service of temporary orders of protection. 10 SENATOR GOLD: Mr. President. 11 ACTING PRESIDENT NOZZOLIO: 12 Senator Gold. 13 SENATOR GOLD: Would the 14 distinguished gentleman from Westchester yield 15 to a question? 16 SENATOR SPANO: Certainly. 17 ACTING PRESIDENT NOZZOLIO: 18 Senator Spano yields. 19 SENATOR GOLD: Senator, this was 20 the subject of a veto last year, and I believe 21 you have made some amendments which take care of 22 part of the Governor's veto, but, if I'm reading 23 it correctly, it still doesn't take care of the 1657 1 criticism it contained that it was an unfunded 2 mandate. Am I correct about that? 3 SENATOR SPANO: The Governor last 4 year said it was an unfunded mandate which 5 strained police efforts, and that's why we added 6 the "unreasonable effort" at the end of the 7 amended bill which we feel goes a long way to 8 ameliorating the Governor's problem with the 9 bill. 10 SENATOR GOLD: Would Senator Lack 11 yield to a question? 12 ACTING PRESIDENT NOZZOLIO: Would 13 Senator Lack yield? 14 SENATOR GOLD: You want to go 15 home? 16 SENATOR LACK: Hey, if he can say 17 "ameliorate". 18 SENATOR GOLD: Last section. Oh, 19 Senator Dollinger. 20 SENATOR DOLLINGER: Would the 21 Senator yield to just one other question? 22 SENATOR SPANO: Yes. 23 SENATOR DOLLINGER: Senator. 1658 1 ACTING PRESIDENT NOZZOLIO: 2 Senator yields. 3 SENATOR DOLLINGER: Senator, who 4 will pay the cost of the services; is it still 5 going to be paid as it would if there were a 6 private process server or will there be no cost 7 associated with it at all? 8 SENATOR SPANO: Well, right now 9 the costs would be paid by the individual. Now, 10 if a process server is used, the same will apply 11 or if a police officer is used that would be the 12 mandate the Governor referred to. 13 SENATOR DOLLINGER: But is there 14 any contingency in this bill for private -- the 15 beneficiary of this order to pay some costs for 16 the service, or is that going to be just picked 17 up by the - 18 SENATOR SPANO: No, there isn't. 19 There's nothing to preclude an individual from 20 using a private service, but, no, there are no 21 contingencies in there to pick up the cost. 22 SENATOR DOLLINGER: On the bill, 23 Mr. President. 1659 1 ACTING PRESIDENT NOZZOLIO: 2 Senator Dollinger on the bill. 3 SENATOR DOLLINGER: I think this 4 is a bill that has many good qualities, and I'm 5 going to vote for it. I do, however, think the 6 Governor has a very good point when he talks 7 about the cost of service, and my hope would be 8 that the sponsor might look to some provision 9 that would require some payment for service by 10 the police officers. Otherwise, I can see that 11 we're going to be hiring additional police 12 officers in the city of Rochester to do nothing 13 but serve Family Court orders and orders of 14 protection, because they're voluminous. There 15 are lots of them that go out. It's going to be 16 very time-consuming, and my hope is that the 17 sponsor would look at some amendment for 18 attaching some provision for payment by the 19 private party at some point in the future. 20 Thank you. 21 ACTING PRESIDENT NOZZOLIO: 22 Senator Dollinger. Read the last section. 23 THE SECRETARY: Section 2. This 1660 1 act shall take effect immediately. 2 ACTING PRESIDENT NOZZOLIO: Call 3 the roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 46. 6 ACTING PRESIDENT NOZZOLIO: The 7 bill is passed. 8 THE SECRETARY: Going back to 9 Calendar Number 298, by Senator Volker, Senate 10 Bill Number 3385, an act to amend the Penal Law 11 and the Criminal Procedure Law. 12 ACTING PRESIDENT NOZZOLIO: Some 13 order in the house. 14 SENATOR VOLKER: I've been asked 15 for a short explanation, so I'm - 16 ACTING PRESIDENT NOZZOLIO: 17 Senator Volker. 18 SENATOR VOLKER: This is a 19 modified version of the "three and you're in" or 20 "three and you're out", whatever you want to 21 call it. But the difference, I think, is -- and 22 by the way, there are two other bills on the 23 calendar right now that are genuine "three and 1661 1 you're in, three and you're out" you might call 2 them, by other members. 3 The Governor, although we have 4 asked him for his three and you're in or out 5 bill, we have not yet seen it, although I'm told 6 by his people that we will. 7 What this bill basically does is, 8 we think there's a lot of confusion by members 9 of the press on this issue, because they really 10 don't understand it. One of the reasons, we 11 already have in New York second felony offender 12 or persistent violator statutes that already 13 provide very lengthy penalties for second felony 14 offenses. What this does, it builds on the 15 second felony offender statute, and when you 16 have a third felony in those kinds of classes, 17 the maximum term would be 25 years to life. 18 Basically it's the same term as a 19 life term now for murder. It does not -- let me 20 say it does not provide the life without parole 21 that several of the other bills do, but provides 22 an enhanced sentence of 25 years to life 23 building on the second felony offender statute 1662 1 and persistent violator statute. 2 ACTING PRESIDENT NOZZOLIO: Last 3 section. 4 SENATOR GALIBER: Oh, no. 5 ACTING PRESIDENT NOZZOLIO: 6 Senator Galiber. 7 SENATOR GALIBER: Don't want to 8 confuse a short explanation. That was just for 9 his benefit, not mine. 10 Senator, I still can't give you 11 my back. Senator, you have been involved in law 12 enforcement for so many years now, and you keep 13 telling us what you would like to show, and I 14 say that respectfully. You know that back some 15 years ago, we had the fourth offender category; 16 that's when we revised things in 1965 or '67, we 17 through in this persistent category. 18 So now we have a situation where 19 there is a predicate felon, where there is ab 20 solutely no discretion at all by the sentencing 21 judge. We have gotten to the point where we are 22 seriously, at least some of us, talking in terms 23 of changing the persistent -- the predicate 1663 1 felony category. In fact, the Governor had a 2 piece of legislation last year, and he had 3 indicated to us or sent the bill up to us. It 4 didn't get too far. 5 In between the resentencing 6 structure in 1967 and up to the present day, we 7 have a number of mandated sentences that we 8 never had before and we have created a category 9 of violent offender, felony, PFO category, which 10 were not there early on. All this is with a 11 view toward getting tough on crime, and it's 12 been clear to us by statistics that what we have 13 done is not to deter anyone and that our 14 mandatory sentences have not served us as we 15 would like to have seen them serve us, and that 16 includes myself. 17 Therefore, to add another layer 18 onto something which is "three strikes and 19 you're out" because in an election year it 20 sounds like a baseball kind of thing and 21 everybody has captured this phrase, if you will, 22 and then we as responsible legislators go about 23 the business of trying to fit in a piece of 1664 1 legislation to the "three strikes and you're 2 out" or in. 3 Senator, I think you will agree 4 with me that what we have on the books today 5 certainly has served us well and will continue 6 to do so. The categories that you mentioned, in 7 each instance we can find a possibility of 25 8 years to life. The persistent category and the 9 person that we are talking about are young folks 10 historically, and none of this is to be 11 interpreted as being soft on crime. It's just 12 that we don't need it, and we find that crimes 13 that are categorized in the major felony 14 category of offenses range from minor robberies 15 -- and you say "minor robberies," Senator, how 16 can it be a minor robbery -- pick-pocketing, 17 pushing someone, the slightest force at all, 18 could very well be in that category. 19 Should they be punished? Yes. 20 Should they be punished a second time? No 21 question about it. Should they go to life 22 imprisonment for the rest of their life? No. 23 Without parole? Not in your bill, Senator. I'm 1665 1 not sure. I think the judge and the district 2 attorney, they have that opportunity under the 3 law as it is today. 4 This may satisfy a political 5 year. It may satisfy filling in a gap to 6 justify that expression "three strikes and 7 you're in" or out, whether it comes from a 8 federal -- the federal government or state 9 government. The greatest impact, and you've 10 heard all of these arguments mainly because 11 they're in the memos in opposition and memos in 12 favor, and what we're talking about is a factor 13 later on down the line where those persons 14 historically end up by statistics it's proven 15 that the younger folks are the ones who get 16 themselves involved in these kinds of incidents 17 which we are concerned about on a predicate 18 felon category, and those felonies can be minor 19 felonies, get them to the point where they're 20 persistent as long as they come in that 21 category, and I've said over and over and over 22 again, because they are so minor in some 23 instances that we find the persons who would 1666 1 actually be impacted on, and I think, Senator 2 Daly -- Senator Volker, to your credit, you have 3 told us that you assume about 300 people 4 possibly, or it's been predicted very small 5 amount of people who are being put into our 6 institutions and that this piece of legislation 7 would work with that kind of numbers; and I say 8 no. 9 I think there's -- under the 10 present law, that we can do the same thing 11 without adding another layer. And then we've 12 always had this argument, those of us who come 13 from a different ethnic base. We haven't 14 figured out, there's got to be something wrong 15 in most of our prisons. 75 percent of our 16 prison population comes from areas of the urban 17 centers that impact on a ratio of minorities, 18 Hispanics and blacks, Latinos; disproportionate 19 to the number is the inference that we commit 20 more crime than others. That's not so. 21 What happens in our institutional 22 racism, which is still part of this system of 23 ours until we deal with it, that the sentencing 1667 1 process is just a part of it, if you will, in 2 those categories, a factor to be taken into 3 consideration. 4 So, Senator, those long-time - 5 and I'd like to close on this note, those 6 long-timers in our institutions, whether they're 7 in the persistent predicate felony category or 8 whether they have committed crimes and been 9 there for a long while, are the backbone of our 10 institutions. They're the ones who, when they 11 finally do get out, the recidivism rate is 12 slight. They run the institution. 13 We're having someone come in 14 hopefully from, I think, Cleveland or one of the 15 other states where they have a program to deal 16 with alternatives to incarcerating the folks 17 that are in there now, the older person, to see 18 whether or not we're spending too much money in 19 the category of persons who cannot even step 20 over a barbed wire, nevertheless climb over it. 21 So what this bill does is add 22 another layer, another possibility which is 23 really not needed. The judge is, at the present 1668 1 time, given the flexibility but, unfortunately, 2 we have gotten to the point where we no longer 3 trust judges, and that's not really fair or 4 justifiable because the opportunity -- giving 5 the judge an opportunity in any one of these 6 categories where the serious crimes are 7 concerned and the memo would have robberies, you 8 say, and rape we say, and the violence that 9 occurs in the street. Those things sound 10 horrible to us and they are, in fact, horrible, 11 but giving the discretion to the judge if we do 12 that, they can send that person to jail the 13 second go-round with the possibility. 14 The violence, of course, is a 15 subject matter for another discussion. Most of 16 you know my position, why we have this violence 17 in the streets. It has to do with one thing, 18 one thing alone, and that's the question of 19 drugs in the streets of our great cities. If we 20 would solve that problem, we wouldn't have all 21 the violence that we see in the last five or ten 22 years. We wouldn't have the guns on the streets 23 that create the violence. Overnight, we would 1669 1 take profits out of drugs. We would find, very 2 frankly, that most of or a large portion of 3 those guns would be off the street. 4 I ran off on a tangent because of 5 the causal factor for why and partially a moti 6 vator brings this kind ever legislation to the 7 floor. I think we can accomplish, Senator 8 Volker, what we want to accomplish and I say we, 9 by the way, assume you want to accomplish with 10 what we have on the books now. Consistent 11 category, once it's established, will do the 12 same thing that this bill will do. 13 So, Mr. President, I think that 14 we should vote against this bill and, if I can 15 look into the crystal ball, there's a couple on 16 the calendar and you want to debate it and 17 record it and say the same reason those bills 18 shouldn't pass, and whether they flow up from 19 the second floor or across the hall, the floor 20 here, they're inherently bad pieces of 21 legislation, not needed, would not solve a lot 22 of this, both sides of the aisle are concerned 23 with, and that is the crime that is running 1670 1 rampant in our villages, in our towns and 2 hamlets. 3 Thank you, Mr. President. 4 ACTING PRESIDENT NOZZOLIO: 5 Senator Waldon. 6 SENATOR WALDON: Thank you, Mr. 7 President. 8 Would the sponsor yield to a 9 question? 10 ACTING PRESIDENT NOZZOLIO: 11 Senator Volker yield? 12 SENATOR VOLKER: Yes. 13 ACTING PRESIDENT NOZZOLIO: 14 Senator Volker yields. 15 SENATOR WALDON: Thank you very 16 much, Mr. President. Thank you, Senator 17 Volker. 18 Senator, can you tell us which 19 class of people would be most affected by this 20 legislation? By that, I mean what age category 21 of people would be most covered? 22 SENATOR VOLKER: The most likely 23 -- the one thing I think I kind of disagree 1671 1 with Senator Galiber on, these would not be 2 young people. The reason is presumably, 3 assuming that the second felony offender and 4 persistent violator worked, they should have 5 been in jail for 15 or 20 years before they 6 commit their crime, and that's one of the 7 reasons, by the way, for the comparatively 8 restricted pool. 9 What we're saying is, of course, 10 somebody pointed out to me you could have a 11 crime in prison, I suppose, and there is some 12 latitude so that some of these people might be 13 only in prison for 10 to 12 years or so, but for 14 the most part they would be -- they would be 15 somewhat older because they would have been in 16 prison for quite a while under the second felony 17 offender and persistent violator statutes, that 18 is when they get to this category. 19 SENATOR WALDON: You're aware, 20 Senator Volker, that most serious crimes are 21 committed by those who are 15 to 24 years of age 22 in the state? 23 SENATOR VOLKER: Correct. 1672 1 SENATOR WALDON: Can you tell us, 2 if you have an idea, of how many persons each 3 year would come under the aegis of this 4 particular legislation in terms of a second and 5 persistent violent felony sentencing in New 6 York? Does history have a figure of those who 7 would qualify to be so sentenced? 8 SENATOR VOLKER: You talking 9 about under this bill on the third offense? 10 SENATOR WALDON: No, I'm talking 11 about what's current law. 12 SENATOR VOLKER: I'm really not 13 sure any more. I used to know the figures. I 14 would also point out that you are right about 15 one thing that there is more young -- younger 16 criminals that are appearing under this 17 category, although there always has been a 18 considerable body of older criminals, for the 19 simple reason that most of the people that are 20 sentenced under second felony offender probably 21 committed 8 or 10 or 15 or maybe 30 felonies, 22 and they were all worked out or whatever over 23 the years. You rarely get a case where these 1673 1 people commit several felonies. They have, 2 generally speaking, some of the people we've 3 looked at in the system have as many as 30 4 felonies that they were originally charged with 5 in some of these cases, and they were pled down 6 or they were forced out or whatever, because the 7 system rarely, especially in New York City - 8 and, Senator, keep in mind the reason we went to 9 the second felony offender and persistent 10 violator because the abysmal record in New York 11 City, very honestly, of sentencing. 12 The difference in sentencing in 13 New York City and upstate was -- I believe it 14 was like the difference of three to one. In 15 other words, the same person, same charge, was 16 sentenced three times what they were sentenced 17 in New York City. That was many years ago when 18 we changed the law. 19 So I think -- I really don't know 20 the exact amount, and it would be hard to give 21 it to you. I will say this to you: Given the 22 precipitous drop in arrests in New York City 23 over the last three, four years, it has dropped 1674 1 dramatically and because now we are getting as 2 many parole violators in this system now as new 3 inmates. I think -- believe that's the first 4 time that's happened in any of our memories 5 since the '80s. 6 SENATOR WALDON: May I continue, 7 Mr. President? 8 ACTING PRESIDENT NOZZOLIO: Will 9 the Senator - 10 SENATOR WALDON: A question. 11 ACTING PRESIDENT NOZZOLIO: 12 Senator Volker, will you yield? 13 SENATOR WALDON: Thank you, Mr. 14 President. 15 First of all, let me share with 16 you this information. According to the 17 Department of Corrections in New York State 18 under the proposed legislation, "three strikes 19 and you're in", we would have about 300 20 offenders so sentenced each year. Isn't there 21 law on the books, now in effect, which 22 accomplishes what you're trying to do? 23 SENATOR VOLKER: No, there really 1675 1 isn't because the second felony offender and 2 persistent violator statutes really don't cover 3 this kind of a situation. This would, in 4 effect, escalate the sentence for people who, 5 clearly, if they had committed the kinds of 6 offenses that were needed to get them 7 incarcerated under the original statute have to 8 be considered to be pretty -- most likely pretty 9 dangerous people, because they would have been 10 long-termers to start with or reasonably 11 long-termers and now commit a serious crime 12 again, so this is not just your ordinary -- your 13 ordinary criminals. 14 SENATOR WALDON: Thank you very 15 much, Senator Volker. 16 Mr. President, on the bill. 17 ACTING PRESIDENT NOZZOLIO: 18 Senator Waldon on the bill. 19 SENATOR WALDON: I believe I 20 understand what Senator Volker is attempting to 21 accomplish. However, there is adequate 22 legislative capability to do that right now. In 23 fact, one can, for burglary, a "B" felony, as a 1676 1 first offense, receive as a minimum two to six 2 years as a sentence, maximum 12-1/2 to 25; 3 second offense 6 to 12 years, maximum 12 to 25 4 and on the third offense of such a crime, the 5 person has to do 10 to life or receive a 6 sentence of 10 to life or 25 to life. So, in 7 effect, it accomplishes what this bill predicts 8 it will achieve. 9 However, I'm concerned on another 10 level similar to my learned colleague, Senator 11 Galiber. There's a federal study which shows 12 something that each of you are aware of. It's a 13 1992 study by the Joint Legislative Management 14 Committee. Let me correct that. It's a 15 nationwide study by the National Judicial Center 16 which says that, despite one being arrested for 17 the same crime under similar circumstances, if 18 the person be black, he is subject to be more 19 severely prosecuted and sentenced in 21 percent 20 of the time above those who are white. For my 21 Hispanic brothers, it is 28 percent of the 22 time. 23 This is even more shocking that 1677 1 they will receive a stiffer sentence than whites 2 who have also committed the same crime, and my 3 theory that we are warehousing people now in our 4 prison system and we will begin to warehouse 5 geriatric persons under this legislation with 6 another mandatory minimum, is what this really 7 is. 8 My concern is what happens to 9 these people who are disproportionately 10 represented from my community when they have 11 sicknesses and illnesses in their twilight 12 years. I'm not condoning criminal behavior. My 13 concern is, are we spinning our wheels in the 14 wrong direction? 15 We waste a lot of energy here. 16 Maybe it is not wasted; maybe that's an improper 17 term. We spend a lot of energy here trying to 18 determine better and more effective ways to put 19 people away. I think that it is time that we 20 begin to spend our energy finding better and 21 more effective ways to prepare children before 22 they even reach school so that the options to 23 them down the road will not be a life of crime. 1678 1 I think that we should be spending more time and 2 energy ensuring that schools have adequate 3 after-school programs and recreational programs 4 so that healthy children will not opt for the 5 "pusher" man. 6 I think that the laws on the 7 books now are far more than adequate, will 8 accomplish all that Senator Volker wants to do 9 and will, if we place this piece of legislation 10 on the books, will interfere more with whatever 11 limited judicial discretion is left. I oppose 12 in any form or fashion limiting judicial 13 discretion. I think that's something that the 14 state has done far too much and, as a result of 15 all of these concerns, Mr. President, when you 16 call the roll, I will have to vote in the 17 negative. 18 ACTING PRESIDENT NOZZOLIO: 19 Senator Volker. 20 SENATOR VOLKER: Very quickly, if 21 I might just answer, Franz, because I don't want 22 my silence to -- I, frankly, feel a little 23 uncomfortable getting into some of the race 1679 1 issues. But, Senator, let me point out to you, 2 that study does not -- is not New York. The 3 study on disproportionate minorities was the 4 United States of America. That is not New 5 York. I don't know of any study that I've ever 6 seen that showed disproportionately in New York 7 State prisons. I am not aware of it, and I 8 don't think there is any. 9 Secondly, the only thing I would 10 correct you is, I don't know of any other 11 sentence other than murder that's 25 years to 12 life. In fact, this bill actually came from the 13 Office of Court Administration, and apparently 14 they, along with some other in the 15 administration, looked into this issue and 16 that's what the maximum penalty that we have in 17 this state at present is obviously 25 years to 18 life for murder. 19 What really this is doing is, 20 this is taking the third felony offender and 21 giving it a sentence that I'm told that, 22 although you could total up certainly as much 23 because obviously if it's 15 years to life, the 1680 1 fellow could spend a long time in the prison 2 system, but the minimum sentence under this 3 statute would be greater than any other minimum 4 statute affordable under the system except for 5 the crime of murder. So I think that's the 6 basic difference. 7 Let me just say that, in -- in 8 finishing up by saying this, let me point out to 9 you something about minorities and prisons. The 10 vast, vast majority of those crimes committed by 11 minorities are committed against minorities. In 12 fact, there are very few, comparatively -- as we 13 know, most crimes that are committed, contrary 14 to even some of these fallacious beliefs, are 15 committed by people of the same race and same 16 creed even in many cases; in other words, whites 17 on whites, blacks on black, and so forth. The 18 vast majority of them is that. 19 So that the one point I would try 20 to make out to you, and I think it's something 21 that we should never forget, is that although 22 minorities certainly are disproportionately in 23 our prison system, minorities also dispropor 1681 1 tionately are victims of violent crime. 2 ACTING PRESIDENT NOZZOLIO: 3 Senator Leichter. 4 SENATOR LEICHTER: Mr. President, 5 it seems sort of like a listless session and, 6 frankly, as I look around, I don't see so many 7 members here or that much attention. I think 8 that's unfortunate, because this is really a 9 very significant, important bill, and I do hope 10 that everybody heard very clearly and very 11 carefully what I think was the very important 12 reasons set forth against this bill by our 13 colleagues, Senator Galiber and Senator Waldon. 14 I just want to point to this one 15 fact, and that is that, since I've been here in 16 this Legislature and particularly in the last 17 ten years or so, we have increased penalties for 18 so many crimes; we even created new crimes. 19 We've seen the prison population go from where 20 it was about 15,000 some 10, 15 years ago where 21 it's now over 60,000 in state institutions and 22 yet, we all know that the problem of crime in 23 our society is worse than ever. 1682 1 I don't know at what point we're 2 going to say, Wait a second, maybe what we're 3 doing isn't working, doesn't make sense, when 4 people are going to say, Hey, let's listen to 5 Senator Galiber. Let's listen to Senator 6 Waldon, people, by the way, who come from 7 communities where they know what it is to live 8 with crime, and I don't think anybody is more 9 concerned about this issue than these two 10 colleagues of ours and when are we going to say 11 we need a new approach? 12 And yet, session after session, 13 you come here and barely a week passes that 14 there isn't a bill that increases penalties. 15 It's as if we had sort of a mindless rigid 16 commitment to a penal approach irrespective of 17 whether it works or not. Certainly nobody can 18 argue and say, Oh, but look, we've made this a 19 safer society. It isn't a safer society. It's 20 true that, in the last year or so, crime has 21 somewhat declined in New York City, crime that 22 we're talking about, violent crime and so on, 23 but I think that there are other reasons for the 1683 1 community policing and other approaches. 2 But in addition, if you take a 3 look at who you're reaching, and I think Senator 4 Waldon very effectively pointed out that the 5 person that we need to be concerned about are 6 those young people prone to violence and they're 7 not reached by this bill. All we're doing is 8 putting in jail for long periods people who are 9 so elderly and probably will become so infirm 10 that they're absolutely no threat to society. 11 The only threat they're to is to the taxpayers 12 as they linger in jail at $25,000 a year. It 13 just makes no sense. May be good politics, and 14 I'm sorry that the Governor of my party and the 15 president of my party have embraced this "three 16 strikes you're out" or "three strikes you're 17 in", a little semantical difference between 18 them, but the basic approach is still the same 19 and I think what the people of this state and 20 the people of the country want us to do is to 21 deal with the level of violence, to create safer 22 communities. Granted, they're in favor of these 23 bills because of the belief that this is going 1684 1 to do it. I think we know better. I think the 2 statistics show that this sort of policy is 3 doomed to failure. 4 I just finally want to add 5 something that Senator Waldon pointed out, and 6 that is mandatory sentences can create such 7 injustices and to deny judges the ability to 8 take a look at the individual in the context of 9 his acts and to make some decisions, that to my 10 mind has been one of the important factors of a 11 truly just criminal justice system, and it's 12 interesting that a number of federal judges have 13 -- those who are in senior status and in a 14 position to do so, have refused to take drug 15 cases because they are so limited under the new 16 federal sentencing guidelines of exercising what 17 they feel is proper and fair discretion. 18 So in this respect too, this bill 19 and this approach just robs the judicial system 20 of the ability of dealing effectively, but also 21 dealing justly with persons who have committed 22 crimes. All of us obviously are against crime. 23 There's nobody here who is for crime or wants to 1685 1 get up and say crime is good. All of us are 2 concerned about it. All of us want to deal with 3 it, but I just implore you to take a look at 4 other alternatives than just the continuous 5 penal approach and, by the way, we made it very 6 clear that these people who commit felonies - 7 felonies -- must be punished. Many must be sent 8 to jail, many must be sent to jail for a long 9 time, but what we're saying is that to require, 10 in every instance, irrespective of the age of 11 the individual, the circumstance of the crime, 12 that that penalty must be 25 years to life or if 13 the Governor ever comes out with his bill that 14 it will be life without parole, just makes no 15 sense whatsoever. 16 It's not going to create for a 17 safer society. It may create better campaign 18 slogans, but not a safer society. 19 ACTING PRESIDENT NOZZOLIO: 20 Senator Gold. 21 SENATOR GOLD: Thank you, Mr. 22 President. Would Senator Volker yield? 23 First of - 1686 1 ACTING PRESIDENT NOZZOLIO: 2 Senator yields. 3 SENATOR GOLD: Yes, and you'll 4 excuse me if I don't look at you but I keep 5 saying the microphone is here. 6 Senator, you indicated that there 7 were other bills in this area. 8 SENATOR VOLKER: Yes. 9 SENATOR GOLD: And I was 10 wondering if you could tell us what -- what is, 11 for example, the difference between your bill 12 and the Governor's bill or some other bills. 13 Why is your version a better one and why are we 14 doing this now rather than negotiating? 15 SENATOR VOLKER: As I think, 16 Senator, since you're aware, I'm not really 17 aware of what the Governor's bill is. We 18 haven't ever gotten it. If you remember, when 19 we had a meeting here about two weeks ago, maybe 20 it's two or three weeks ago, I had previous to 21 that held even reporting any of these bills out 22 and sent a letter to the Governor and suggested 23 that we would wait for the Governor's bill if he 1687 1 would contact us. If he told us, if he wanted 2 us to wait, we would wait. Frankly, I didn't 3 get a response to that, although I have been 4 told by some of the staff people that there will 5 be a bill later on this session. But, very 6 honestly, we have not seen the bill. 7 The other two bills that are on 8 the calendar, one by Senator Holland and the 9 other by Senator Saland, there are several 10 nuances to them, but one of the biggest 11 differences is that both of them have, I 12 believe, life without parole as the -- as the 13 ultimate sentence, rather than 25 years to life 14 as this bill does. 15 SENATOR GOLD: Would the Senator 16 yield to a question? 17 SENATOR VOLKER: Certainly. 18 ACTING PRESIDENT NOZZOLIO: 19 Senator -- Senator yields. 20 SENATOR GOLD: Senator, we have 21 -- we have a process. There's a legislative 22 process, and very often when legislation which 23 is more than -- than just technical or -- or I 1688 1 hate to use the word "minor" but minor -- I'll 2 use the word -- we have a process and we have 3 hearings on legislation. 4 Wouldn't this bill, Senator, or 5 this subject generally be an appropriate one 6 since it's still early in the session for a 7 hearing where people could bring forth the 8 information and arguments, as Senator Waldon and 9 Senator Galiber, some of the statistical 10 information, we could have some of the people 11 from the prison system themselves testify, and 12 et cetera, and then get a feel whether or not 13 your bill in each of its words is the most 14 perfect law in the area, if we were going with 15 that philosophy, or whether or not we shouldn't 16 have some of the amendments which take care of 17 some other concerns? 18 Wouldn't it be an appropriate 19 bill for a hearing? 20 SENATOR VOLKER: Senator, the 21 problem with that is we just had hearings and 22 we've had them several times in the last few 23 years on the issue of second felony offender and 1689 1 on the issue of changing the statutes as regards 2 sentencing. 3 Really, what -- all we're doing 4 here is building on the second felony offender 5 statute, the persistent violator statute, the 6 so-called PFO statute, and I guess those issues 7 have certainly been articulated. I mean we have 8 the -- the people come in and say we shouldn't 9 have so many people in prison, and the Assembly 10 is now trying to make a case that all these 11 people who we thought were so violent for so 12 many years and committed all these crimes are 13 really not violent any more. 14 We're not exactly sure how that 15 happened, but that's the contention and those 16 people had their chance to air this out last 17 year, by the way, in New York City and in other 18 parts of the state, so I guess my -- my feeling 19 on that is that I know the position and we know 20 the position of a number in this house and 21 certainly there has been a lot of discussion on 22 this issue. 23 I just don't know what good 1690 1 additional hearings on this kind of issue would 2 accomplish. It's pretty obvious what we're 3 talking about here. We're talking about a 4 fairly small pool of people who have committed a 5 great number of crimes, serious crimes, when 6 they are finished with the prior law end up 7 being sentenced because they commit another 8 serious crime, to a very long period of time, 9 and I think that's pretty clear, and some people 10 think that's a good idea and others don't. 11 SENATOR GOLD: Well, if the 12 Senator will yield to a question. 13 SENATOR VOLKER: Certainly. 14 ACTING PRESIDENT NOZZOLIO: 15 Senator continues to yield. 16 SENATOR GOLD: Senator, I make an 17 argument all the time, and I think that you as 18 an honorable man will agree that, when we use 19 the terrible labels, "liberal", "conservative", 20 and all of that, I define having a liberal 21 approach to criminal justice as meaning that you 22 respect people's rights in the system. 23 We don't violate the laws in 1691 1 gathering evidence, et cetera, et cetera, but if 2 somebody is convicted of a crime, and they're 3 supposed to go to jail, they go to jail. That 4 doesn't bother me at all, all right? 5 But Senator, the -- the penalty 6 for murder, which I have supported, life 7 imprisonment without any possibility of parole 8 would have obviously, at some point, very 9 elderly people in jail and I must tell you that 10 doesn't bother me. But, Senator, when we're 11 talking about some of the examples that are set 12 forth by the defenders and others of someone 13 whose third crime may be a purse snatching and 14 now the person is given years by the Almighty 15 and the person is 78 years old, I mean maybe a 16 law like yours is a good idea, but there should 17 be an escape clause past age 80 or something. 18 I don't know, but those ideas, I 19 think, could be talked out and worked out and 20 that a hearing might, in fact, be significant 21 when you're talking about, you know, this kind 22 of a change in the law. 23 SENATOR VOLKER: The Defenders 1692 1 Association should really be ashamed of 2 themselves. They know very well the only way 3 that a purse snatching could possibly be hooked 4 under this bill would be if you use a club or 5 something of that nature or a weapon as part of 6 the purse snatching. Purse snatches are not, by 7 their nature, felonies to start with unless, of 8 course, you assault someone or something of that 9 nature. 10 One of the things, I think, 11 that's really - 12 ACTING PRESIDENT NOZZOLIO: 13 Senator Galiber, why do you rise? 14 SENATOR GALIBER: Would you yield 15 for a question? 16 SENATOR VOLKER: Certainly. 17 ACTING PRESIDENT NOZZOLIO: 18 Senator Volker continues to yield. 19 SENATOR GALIBER: Isn't it a fact 20 that - 21 SENATOR GOLD: So do I to my 22 distinguished colleague. 23 ACTING PRESIDENT NOZZOLIO: 1693 1 Senator Gold does as well. 2 SENATOR GALIBER: Isn't it a fact 3 that the difference between a grand larceny and 4 a robbery is whether a woman has a pocketbook 5 under her arm or a strap and force is used to 6 snap just the band which makes it a robbery as 7 opposed to a larceny? 8 SENATOR VOLKER: That's very 9 questionable, Senator. 10 SENATOR GALIBER: Questionable? 11 SENATOR VOLKER: And I'll be very 12 honest, but the question that any D. A. in New 13 York City would ever indict anybody under that 14 is virtually nil. 15 ACTING PRESIDENT NOZZOLIO: 16 Senator Tully, why do you rise? 17 SENATOR TULLY: Mr. President, 18 will Senator Volker yield to a question from the 19 other side, allow me to ask a question? 20 SENATOR GOLD: You mean will the 21 Senator - 22 ACTING PRESIDENT NOZZOLIO: 23 Senator Gold, you are actually the one who has 1694 1 the floor; you yielded to Senator Galiber. 2 Senator Gold has the floor. 3 SENATOR GOLD: Well, I certainly 4 would not mind interrupting for my distinguished 5 colleague. 6 ACTING PRESIDENT NOZZOLIO: 7 Senator Tully. 8 SENATOR VOLKER: I was going to 9 ask the court reporter to read that back. 10 SENATOR TULLY: Isn't it the 11 fact, Senator Volker, that to have a robbery you 12 have to have force and fear? 13 SENATOR VOLKER: That's right. 14 SENATOR TULLY: Thank you. 15 ACTING PRESIDENT NOZZOLIO: 16 Senator Gold. 17 SENATOR GOLD: Maybe we can 18 accomplish two things. If we read the last 19 section for Senator Farley and then continue. 20 Senator Volker yield to another 21 question? 22 SENATOR VOLKER: Certainly. 23 ACTING PRESIDENT NOZZOLIO: 1695 1 Senator Volker yield? Senator Volker continues 2 to yield. 3 SENATOR GOLD: Senator, one of 4 the reasons I always hear discussed when we 5 discuss issues like this is the individual out 6 there with a rap sheet of 30 arrests, 15 7 felonies, this, that and the other thing and, 8 Senator, I know I get upset just like you get 9 upset. 10 Matter of fact, there was one day 11 and I mentioned this before, where I was in a 12 court in New York listening to a sentencing and 13 I got up and walked out because I was ready to 14 slug the judge because I said to myself, if we 15 get all the criticism, what's in these people's 16 minds? That's not what we voted to do. 17 But Senator, again, if we had 18 some hearings on this subject and if the problem 19 is the sentencing structure, why don't we deal 20 with that as an entire matter rather than just 21 throw out a coined expression, you know, and I 22 don't blame any coined expression on you. In 23 other words, if I can expand a little more, the 1696 1 federal system which Senator Leichter referred 2 to that some federal judges doesn't like - 3 don't like, is basically a grid system. And are 4 there inequities? I guess there are, but there's 5 also inequities today if somebody can have a rap 6 sheet of 30 crimes and they're obviously not 7 being sent away. That's an inequity situation 8 also. 9 But we have had at least two 10 commissions created by two governors to study a 11 guideline sentencing system. Recommendations 12 were made and the Legislature basically ignored 13 those recommendations and didn't go for it. 14 What I'm concerned about, Senator, and this is 15 back to my question, why don't we get more into 16 the issue of what judges are doing with 17 sentencing on the first, second, third, fourth 18 arrest than worry about a situation where people 19 get into the 40s and 50s and now may commit a 20 third felony which is far less serious than the 21 teen-ager committing that first or second 22 situation of real violence which might be more 23 serious to the victim? 1697 1 SENATOR VOLKER: I think, 2 Senator, I guess we have a basic disagreement 3 about what constitutes that third -- that third 4 arrest. 5 Senator, I think the difficulty 6 is, we are and we have had hearings over the 7 years. I don't know how many we have had over 8 the years on a number of these issues of 9 sentencing, and you're right, Senator, I went 10 through the guideline hearings. I was part of 11 them, both as chairman of the committee and 12 before that, and I think you're well aware, I 13 know you're well aware of the problems that we 14 all ran into with those, and there was -- and 15 you don't like the word "liberal" and 16 "conservative" and I don't either. Some people 17 say I'm a big liberal in some ways. You know 18 the definition of procedural liberal is you give 19 the person every chance to prove the case and 20 then you throw the book at him. That's what Joe 21 Pisani used to say was a procedural liberal, but 22 what the reports did say, they did two things, 23 one is you got to have absolutely consistent 1698 1 sentencing which means that every time a person 2 was sentenced, you had virtually the same 3 sentence for everybody in the state and 4 virtually nobody wanted that, or you had the 5 ultimate flexibility, so much flexibility, in 6 fact, that the other side didn't want that. 7 Even with some guidelines, the other side didn't 8 want that, so the problem was we were faced with 9 a situation where we could not come up with a 10 compromise that would fit the needs of all the 11 people even in this chamber, very honestly, and 12 that's honest, and I think you will agree with 13 me that that's what happened here. 14 I personally do not object to the 15 fact that we may have to start this process, I 16 think we will by the way, we'll be looking into 17 this process again, and I don't disagree with 18 that. My disagreement with you on the issue of 19 having hearings this year is that I just don't 20 think, with all the criminal justice issues that 21 are here -- and there are many, even other than 22 this issue -- that when you're talking about 23 basically 3- or 400 people and on an issue that 1699 1 we have already gone through a series of 2 hearings relating to sentencing, that this 3 justifies at this point in a very busy session 4 having hearings on these kinds of issues, 5 especially since we don't even have the 6 Governor's bill yet by the way, and although the 7 Assembly is already saying they're not going to 8 do it, but we'll see, we'll see what happens. 9 SENATOR GOLD: Mr. President. 10 ACTING PRESIDENT NOZZOLIO: 11 Senator Gold. 12 SENATOR GOLD: Let me make some 13 comments. 14 First of all, Senator Volker, 15 when you say in the course of a very busy 16 session, if I were to ask my constituents and I 17 went and asked your constituents and everybody 18 else's constituents, what do they want to come 19 out of this session, everybody's constituents 20 are going to say the same thing. They want 21 safety; they want some intelligent approach to 22 crime so, if I said to them that we couldn't 23 hold hearings on a subject this important 1700 1 because we had a busy session, they'd ask me to 2 stop smoking what they would think I'm smoking 3 or stop drinking what they think I'm drinking 4 because they would say, What else am I sending 5 you there for, and I think the environment is 6 important, but this is more important. I think 7 this is important, but this is more important. 8 So, in all fairness to you, Senator Volker, 9 busyness is not the issue. 10 Secondly, I don't want to be 11 snide about it. Busyness is not the issue 12 during the first three months of this session 13 when we do really nothing. Come on. Let's face 14 it, we're in the end of March and we're debating 15 Calendar Number 298, and I'll bet you 290 -- 290 16 of those were redigested bills that we got rid 17 of last year and whatever. 18 So we're not overly busy, and I 19 know we all spend a lot of time walking around 20 with our hands to our heads thinking about the 21 budget issues, but we could sit in some of the 22 time. 23 I believe, Senator Volker, that 1701 1 it is time to do something very seriously in 2 this area and that to me means getting away from 3 slogans, all right? This voting for your bill, 4 Senator Volker, is probably politically the 5 easiest vote anybody can ever cast. You know, 6 you have three strikes you're in. Yeah, I voted 7 for that, and then a year from now when nothing 8 is changed and people are still getting beaten 9 up by our youngsters and there are still all the 10 guns in the street and the drug problem is 11 involved, people are going to say, I don't 12 understand something. What went wrong here? 13 Now, we've had that experience. 14 It's called the Rockefeller drug laws. Now, 15 when those laws came up, and I think it was in 16 the '60s, am I correct, Senator? '70s, all 17 right. It couldn't have been too far in the 18 '70s because he was out in the early '70s, but 19 that was the end. As a matter of fact, to 20 refresh your recollection, the reason we have a 21 problem with the overcrowding in prison is 22 because Rockefeller would not concede that the 23 drug laws were going to do nothing, his drug 1702 1 laws and, therefore, his attitude was, I can't 2 pass my drug laws and build prisons because then 3 I'm actually saying that, by these harsh drug 4 laws, I'm not going to accomplish anything and 5 the bottom line is, the harshest sentencing drug 6 laws, and we've accomplished nothing when it 7 comes to containing drugs. 8 So I believe, Senator Volker, we 9 owe the people this year certainly a lot more 10 than the -- than the slogans and the -- and I 11 know this slogan is grabbed on, we hear it 12 coming out of Washington, all over the place. 13 The fact of the matter is that, if somebody 14 commits a violent crime, when they are 18 or 19, 15 even in New York City, Senator Volker, they 16 shouldn't get a slap on the wrist and go no 17 place. 18 There should be a punishment once 19 they're in prison. If we can rehabilitate, I'm 20 all for serious rehabilitation if it can be 21 done, but punishment is something that ought to 22 -- someone who ought to understand when they 23 commit a violent crime and if that person does 1703 1 it a second time under the existing laws, a 2 judge is supposed to make sure it's not only a 3 slap on the wrist, it's a hit in the head and 4 that they go to jail, and it means something and 5 under existing law, Senator, if that jerk does 6 it a third time, he is going to be old when he 7 gets out as it is. 8 That's what is supposed to 9 happen. Now, if it is not happening, then I 10 think as much as I respect our judiciary, that's 11 where we have to be looking. I don't condone, 12 Senator Volker, sentences where the one I was 13 talking about, a young man who had been in 14 trouble time and time again stole a purse from 15 an old lady, knocked her over and, through no 16 fault of the criminal, she lived and a judge 17 gave the kid six months. I was ready to pull my 18 hair out. I mean that's no message in there, 19 but I think it's a serious, serious area, and 20 the -- the people that I would like to get at 21 are those young people who we ought to be 22 putting onto some decent road either by way of 23 punishment, rehabilitation or by -- by some 1704 1 warning in a sentencing system that takes care 2 of that. 3 I've got one bill in that would 4 change the youthful offender program so that, if 5 they mess up when they get the youthful 6 offender, they might even lose that because 7 society has to be serious about this. 8 But, Senator, I think we are here 9 prematurely. We really are. I think that under 10 your leadership, under your leadership, we could 11 really take a significant look at this problem 12 and deal with the Governor and maybe get some 13 place. 14 So, Mr. President, I would, at 15 this point, move to table this bill and ask 16 Senator Volker either agree to it, do it 17 voluntarily or support the motion and after the 18 budget passes within the next three or four 19 weeks, we can sit down and direct our attention 20 to the one thing people really sent us here for 21 and some plan that will help us in the crime 22 area. 23 So, Mr. President, I do so move. 1705 1 I move that the bill at this time be tabled. 2 ACTING PRESIDENT NOZZOLIO: The 3 Chair rules Senator Gold's motion out of order. 4 SENATOR GOLD: May I ask why, 5 Senator? 6 ACTING PRESIDENT NOZZOLIO: It is 7 not proper to table a bill, Senator, until a 8 vote has - 9 SENATOR GOLD: I'm sorry. I 10 didn't hear what you said. 11 ACTING PRESIDENT NOZZOLIO: It is 12 not proper to table a bill, Senator, until a 13 vote is taken on such bill or upon a veto of 14 such bill. 15 SENATOR GOLD: Well, Mr. 16 President, if I may: I know that when a bill is 17 defeated it's offered -- a motion is often made 18 to reconsider the vote and we table that motion 19 until such time as a member may or may not want 20 to bring it up, but under parliamentary 21 procedure, I'm not aware that you cannot at any 22 time move to table an item that is before the 23 house. 1706 1 ACTING PRESIDENT NOZZOLIO: 2 Senator, you may ask the sponsor to lay a bill 3 aside. However, a motion to table is out of 4 order. 5 SENATOR GOLD: Well, I'd like to 6 -- Mr. President, I would like to know under 7 what section of your rules you are referring so 8 that I may educate myself? I always like to 9 learn. 10 ACTING PRESIDENT NOZZOLIO: 11 Counsel is reviewing the section for you, 12 Senator. 13 SENATOR GOLD: I appreciate 14 that. 15 SENATOR GOLD: Mr. President. 16 ACTING PRESIDENT NOZZOLIO: 17 Senator Gold. 18 SENATOR GOLD: If I may, I'm 19 looking at some rules here, and I notice that 20 under Rule VIII, which says "Reconsideration", 21 there's a reference to adjourning and to lay 22 upon the table. This obviously is not a motion 23 for reconsideration. Under Rule VII it says 1707 1 "Motions", and motion number 3 says "to lay on 2 the table". 3 I don't -- I don't see where I 4 don't have a right to make such a motion. It's 5 a motion that's specifically referred to in our 6 rules as one of our motions and it's always - 7 it's always in order. 8 SENATOR VOLKER: Mr. President. 9 Mr. President. 10 ACTING PRESIDENT NOZZOLIO: 11 Senator Volker. 12 SENATOR GOLD: As a matter of 13 fact, with apologies to Senator Volker for just 14 one moment. The way I get it, it says: A motion 15 to adjourn or call of Senate or to lay on the 16 table shall be decided without debate and shall 17 always be in order except as provided by Rules 18 V, VII and IX, and I don't see anything in those 19 that rules me out of order. 20 I'm sorry, Senator Volker. 21 ACTING PRESIDENT NOZZOLIO: 22 Senator Volker. 23 SENATOR VOLKER: Mr. President, 1708 1 if I may say, and I think that you and I have 2 been here, you've been here a little longer than 3 I have, and we've been here a long time, and 4 I've never heard of a motion to lay on the table 5 in the midst of a debate, and I believe that 6 there -- the rules and tradition of this house 7 is, the sponsor has control of his bill. 8 Motions to lay on the table have been as far as 9 overrides and also when a bill is defeated, we 10 have reconsidered it and laid it on the table 11 pending a further vote, but I don't think I've 12 ever heard, and I don't believe there is, I 13 think the rules provide that the sponsor has the 14 right to control his own bill. If you want to 15 oppose it, you have the right to oppose it and 16 try to defeat it if you so want to, but I think 17 we should proceed to a vote on the bill. 18 SENATOR GOLD: Yes, Mr. 19 President. 20 ACTING PRESIDENT NOZZOLIO: 21 Senator Gold, let me repeat the ruling on your 22 motion. The Chair rules your motion out of 23 order at this time as being untimely on a motion 1709 1 to table a bill which is only proper when the 2 bill has been voted on or has been vetoed. 3 The sponsor of each bill of this 4 house controls that bill. Senator Volker has 5 the bill properly before the house. It's been 6 debated. The Senator has the authority to lay 7 his bill aside. No other member has the 8 authority at this time. So I must regretfully 9 rule your motion as untimely and out of order. 10 SENATOR GOLD: Thank you, Mr. 11 President. 12 I want to appeal the ruling of 13 the Chair and explaining my position if I may. 14 I think it's particularly important that we have 15 a gallery filled with young people so they can 16 get a real - 17 ACTING PRESIDENT NOZZOLIO: 18 Senator, if you will excuse me, Senator. The 19 Senator appeals the ruling of the Chair. 20 SENATOR GOLD: Yes. Now, Mr. 21 President. 22 ACTING PRESIDENT NOZZOLIO: You 23 wish to be heard on the ruling, Mr. Senator? 1710 1 SENATOR GOLD: Yes. Thank you so 2 much. 3 ACTING PRESIDENT NOZZOLIO: On 4 the appeal, Senator Gold. 5 SENATOR GOLD: We have -- we have 6 rules the way everybody has rules, except it's 7 very interesting, because these rules are 8 provided by the Majority and they are voted for 9 and enacted by the Majority and then one would 10 begin to say that, even though the Majority 11 can't make the rules, once the rules are there, 12 they are the rules for everybody. 13 That doesn't work around here 14 because while we happen to have a very 15 distinguished Senator, not the Lieutenant 16 Governor right now but a distinguished Senator 17 acting as our presiding officer, he's a member 18 of the Majority party, the rule which I have 19 here and be glad to show everybody, says, and I 20 quote: "Motions. On questions before the Senate 21 only the following motions shall be made by a 22 Senator, and such motion shall have precedence," 23 and it says: 1. For an adjournment; 2. For a 1711 1 call of the Senate, and number 3 is to lay on 2 the table. 3 It then says: "Under VII (b) the 4 motion to adjourn or for a call of the Senate or 5 to lay on the table shall be decided without 6 debate and shall always be in order except as 7 provided in Rule V, VII and IX," and I haven't 8 heard anybody point to those sections to tell me 9 I'm out of order. 10 So, Mr. President, I won't 11 belabor the point, it's enough to say that while 12 I always recognize the right of the Majority to 13 vote as a Majority and create the rules, I will 14 never recognize the right of the Majority to 15 spit in the face of the Minority when it relies 16 upon a rule that you created and you will not 17 deal with that rule. 18 Now, Senator Volker says that 19 he's been here a while, and he doesn't remember 20 anybody making the motion, and I will say to 21 you, Senator, that with all due respect -- and 22 I've got the greatest respect for you, never 23 question that -- but that comment isn't relevant 1712 1 because the rule provides - 2 ACTING PRESIDENT NOZZOLIO: 3 Senator Gold, if you would suffer an 4 interruption. Senator Farley, why do you rise? 5 SENATOR FARLEY: Senator Gold, if 6 I may, not to ask you a question but on this 7 issue, I don't think there's any more 8 significant rule for this house than for every 9 Senator that a Senator controls his own 10 legislation. 11 SENATOR GOLD: Mr. President. 12 SENATOR FARLEY: He can lay it 13 aside. 14 SENATOR GOLD: Mr. President. 15 SENATOR GALIBER: A point of 16 order. Point of order, Mr. President. 17 ACTING PRESIDENT NOZZOLIO: 18 Senator Farley - 19 SENATOR GOLD: The Senator is out 20 of order. 21 ACTING PRESIDENT NOZZOLIO: 22 Senator Gold, you were asked by Senator Farley 23 to yield. You refuse to yield? 1713 1 SENATOR GOLD: I refuse to yield 2 to a statement by Senator Farley. 3 ACTING PRESIDENT NOZZOLIO: 4 Senator Farley, Senator Gold refuses to yield. 5 Now, Senator Gold. 6 SENATOR GOLD: Now, I have, as 7 much as I heard from Senator Farley, I heard 8 that it's very significant that a Senator 9 control his own legislation. Senator, what's 10 significant is that we do the people's work. 11 That's what's significant and, if somebody wants 12 to, we once had this with amendments, so we 13 changed the rules. We pointed out to you that 14 it took a motion to amend a bill, and you didn't 15 like that because, if it's a motion, I could 16 debate that motion, so you went in the other 17 room, you changed the rule and I said, Fine, 18 you're the Majority. You have changed the 19 rule. 20 Now, do you want to call a recess 21 and go change the rule and eliminate the motion 22 to lay aside? I guess I can't stop you from 23 doin' that either, but the point is the rule is 1714 1 there and, when you say it's so important for a 2 Senator to control a bill, I say to you, Senator 3 Farley, that's hogwash. 4 In the United States Congress, a 5 Senator or an Assemblyman puts a piece of 6 legislation on the floor, they talk about it, 7 they amend it, they allow amendments, they will 8 go back and forth. In this place it is absurd 9 when it comes to that as a legislative body. 10 We happen to have a junior 11 Senator from the state of New York who, if he 12 was treated in Congress the way you treat the 13 Minority in this house, he wouldn't be able to 14 find a men's room, but they tell me that that is 15 a legislative body and every once in a while you 16 will hear that Senator Alphonse D'Amato passes a 17 resolution and Senator D'Amato does this or does 18 that. Why? Because Democrats in the United 19 States Congress treat him with dignity as a 20 legislative body, and they survive. 21 I got news for you. The 22 Democratic majority survived down there and they 23 still treat it like a legislative body. 1715 1 Now, this is an issue which I 2 think is the most important issue in Albany. 3 What do we do to stop crime in our districts? 4 And it deserves more than cavalier treatment. 5 It deserves serious consideration, not 6 back-of-the-hand answers like three times you're 7 in, three times you're out, and nobody has to 8 think about it. 9 It seems to me, Mr. President, 10 that there is nothing in these rules that for 11 bids us from thinking particularly about an 12 important issue and I would suggest, Senator 13 Volker, that based upon your background you have 14 a lot to contribute to this issue and you bring 15 great credibility to the table on this issue, 16 but there are other people who could come to 17 that table with points of view and credibility 18 and the bottom line of which would be perhaps a 19 breakthrough in the area. And that's what I'm 20 asking to do. 21 Is there -- if your bill passes 22 today, Senator Volker, you and I know it's going 23 nowhere. The Assembly, Senator Lack, is not 1716 1 going to deal with it right away. The Governor 2 certainly isn't going to deal with it until his 3 bill is on the table, so we go through this all 4 the time; all the time we go through this. 5 Well, we want the Senate position 6 out there in front. That's nonsense. You put 7 in your bill. Your position is out there. It's 8 on the calendar. Your position is out there. 9 It will be respected and handled and dealt with, 10 but to do what we do in this bulldog, bulldozer 11 way is just juvenile and it -- in my opinion, it 12 cuts the dignity of this house. 13 But I want to say this, Senator 14 Volker: If you want to go through with it and 15 you believe you should go ahead, I respect that 16 too and let you and your colleagues and maybe 17 some of my colleagues on this side vote not to 18 table and to take the bill up and that's 19 something I can respect, but I think, Senator 20 Volker, that maybe you should tell our 21 distinguished presiding officer that you don't 22 need his protection and you don't have to bend 23 and twist and walk the rules to protect you 1717 1 because you are very, very competent, Senator 2 Volker, and don't need protection from me, and 3 if you want to go ahead and take a vote on this 4 bill, I'm sure you have a majority on your side 5 that will do it and, therefore, to disrupt the 6 rules, to missread the rules in a situation 7 where in the last analysis you don't have to do 8 it, means you degrade the rules and degrade us 9 for no reason and that's something I will never 10 understand, and I would urge my colleagues on 11 both sides of the aisle if you respect this 12 institution, at least let's vote to uphold the 13 rule and let the chips fall where they may. 14 Thank you. 15 SENATOR VOLKER: Mr. President. 16 ACTING PRESIDENT NOZZOLIO: 17 Senator Daly. 18 SENATOR DALY: I yield to Senator 19 Volker. 20 ACTING PRESIDENT NOZZOLIO: 21 Senator Volker, why do you rise? 22 SENATOR VOLKER: Let me, first of 23 all, say that no one is hiding behind anything 1718 1 and, Senator, I really, I didn't realize how 2 sensitive this issue must be to you, very 3 honestly. I realize this is a heavily charged 4 political year but I had no idea that this was 5 such a heavily charged political issue. 6 But all that aside, no one has to 7 tell me about the seriousnessness necessary of 8 the crime issue and, Senator, let me tell you 9 something what my constituents are saying. They 10 don't want hearings; they don't want all this 11 kind of stuff. They want some action and merely 12 running around doing some more hearings, I don't 13 know if any of my constituents are really going 14 to consider to be any real action, particularly 15 when I tell them we've had hearings ad nauseum 16 on the same sort of issues over the years. 17 Now, let me just make a 18 suggestion. Personally, I think, Senator, that 19 you have what you're attempted to do, I know is 20 seized on the possibility of some wrinkle in the 21 rules that maybe you could use, and I guess I 22 understand that. I don't think, by the way, 23 that the rules are intended to allow for this 1719 1 sort of thing. I happen to agree with Senator 2 Farley that the right of a Senator, whether he's 3 a Democrat or -- he or she, or Republican or 4 whoever, to control their bills has been 5 something that we have maintained here. 6 Let me just suggest to the Chair, 7 however, in the interests of resolving this 8 issue, that we have a vote on the issue of the 9 ruling of the Chair and get -- on the motion to 10 table and get this issue resolved and then go on 11 and vote on the bill. 12 ACTING PRESIDENT NOZZOLIO: 13 Senator Volker? 14 Senator Stavisky. 15 SENATOR STAVISKY: In the last 16 analysis, Mr. President, I may decide to vote 17 with Senator Volker rather than Senator Gold on 18 the substance of the issue, but not on the rules 19 of procedure. Nowhere in the rules, as Senator 20 Gold articulated them, is there a limitation 21 placed upon any member of the Senate precluding 22 any member of the Senate from offering a motion 23 to table. I heard no such language. We do not 1720 1 limit the motion to table only to the sponsor. 2 Secondly, and I heard Senator 3 Gold repeat the rules of this Senate -- not any 4 other Senate, this Senate -- and there was no 5 limitation as to the time that a motion to table 6 may be made. There was nothing that said it may 7 be made only during the first minutes of 8 consideration or the last 30 seconds. If anyone 9 can find any such limitation, then Senator Gold 10 is incorrect, but hearing no limitation as to 11 the individual who may offer such a motion to 12 table or the timeliness or lack of timeliness, I 13 believe, Mr. President, that you should do the 14 unexpected and perhaps be extremely fair and 15 rule that Senator Gold's objection is 16 appropriate pursuant to our rules, and that 17 really ought to be dealt with in an objective 18 manner. 19 Sometimes consultation across the 20 aisle is worth doing and worth noting, and I 21 would hope that we would not leave this issue of 22 our rules up in the air with a misconception 23 interpreted in a way that is not to be found in 1721 1 the language of our own rules and, for that 2 reason, I hope, Mr. President, that you perhaps 3 would reconsider your interpretation of Senator 4 Gold's remarks and the rules of our chamber. 5 ACTING PRESIDENT NOZZOLIO: 6 Senator Daly. 7 SENATOR DALY: Mr. President, I 8 would like to take exception to some of the 9 comments made by my colleagues on the other 10 side. 11 I take the reverse -- the 12 opposite approach and that the fact that we are 13 even discussing this issue at this time is - 14 this procedural issue is clearly indicative of 15 the respect that the Majority in this house has 16 for the Minority and particularly for the 17 institution. We could have closed down this 18 dialogue 15 minutes ago. It's a non-debatable 19 issue. We could have asked for a vote of the 20 appeal of the Chair, so I will take strong 21 exception to the comments made by Minority 22 colleagues that the Majority shows a disrespect 23 for them and for the rules. We do not. 1722 1 Let me say to you, if this was in 2 the Assembly where the Democratic Party is in 3 control, we wouldn't even have been discussing 4 it. It would have been shut off 15 minutes 5 ago. 6 ACTING PRESIDENT NOZZOLIO: Thank 7 you, Senator Daly. 8 The vote is on Senator Gold's 9 motion to appeal the ruling of the Chair, ruling 10 Senator Gold's motion to table Senator Volker's 11 bill out of order. All those in favor of 12 upholding the rule of the Chair, signify by 13 saying aye. 14 (Response of "Aye.") 15 All those opposed say nay. 16 (Response of "Nay." ) 17 In the ruling, it appears the 18 ayes have it. The Chair's ruling is upheld. 19 Senator Volker. 20 SENATOR VOLKER: Last section. 21 ACTING PRESIDENT NOZZOLIO: Read 22 the last section. 23 THE SECRETARY: Section 4. This 1723 1 act shall take effect immediately. 2 ACTING PRESIDENT NOZZOLIO: Call 3 the roll. 4 SENATOR WALDON: To explain my 5 vote, Mr. President. 6 (The Secretary called the roll. ) 7 ACTING PRESIDENT NOZZOLIO: 8 Senator Waldon to explain his vote. 9 SENATOR WALDON: I wish to 10 respond to something that was said earlier by 11 Senator Volker to make the record rather clear. 12 He stated that the majority of the crimes 13 committed in the black community is by blacks 14 against blacks. That is true, and it is a 15 worrisome truth for anyone who serves a 16 community that has African-Americans, 17 Cuban-Americans and other minorities in that 18 community. 19 When I was a young police off icer 20 working the streets of Manhattan, Brooklyn and 21 Queens, I was rather efficient and yet, some 22 evenings when I went home from work -- and we 23 normally worked with a task force from 6:00 p.m. 1724 1 to 2:00 a.m., my heart was heavy because I saw 2 officers empowered as I was who stretched what 3 they did in terms of the enforcement, and what I 4 specifically want to respond to in the 5 explanation of my vote is, when Senator Volker 6 said that there's a disproportionate 7 representation of African-Americans in the 8 prison system and alluded to the fact that it 9 was -- there was no injustice in the numbers 10 which are in the prisons, that is not quite 11 true. 12 Regrettably when you have an 13 arresting officer who may have a racist tendency 14 and a prosecutor who may have a racist tendency, 15 sometimes even a judge who has a racist tenden 16 cy, there will be a disproportionate representa 17 tion of blacks in the prison system, which is 18 not caused by the fact that they may have had a 19 tendency to commit crime. 20 I'll close on this note: Just 21 this past week in my district, police officers 22 were rightfully chasing a man with a gun from 23 off the premises of Beach Channel High School, 1725 1 chased him into the area of Beach Channel High 2 School and made a lawful arrest. Some students, 3 numbers of them being black, decided to take a 4 picture of what happened with a camera. 5 The officers laughed at the pris 6 oners, came back, separated the white kids from 7 the black kids, pummeled the black children, 8 breaking the ankle of one, punching a young lady 9 in her chest and injuring another young black 10 student; and I did not get this from the 11 students. I received this information from the 12 teachers and the principal and the white 13 students who were so enraged by what happened 14 that they demonstrated and marched from the 15 school to the precinct to protest the actions of 16 the police officers. 17 I support the police. I am one 18 of those who is proud to call himself a former 19 member of the police department, but what 20 happens sometimes, my brothers and sisters, is 21 that racism does creep into the criminal justice 22 system and we ought to be talking about how to 23 prevent people from ever considering crime as an 1726 1 opportunity instead of always considering better 2 and more efficient ways to incarcerate those who 3 have committed crimes, sometimes unfortunately 4 those who have not, in fact, committed a crime 5 warranting that they be apart of the criminal 6 justice system. 7 I thank you, Mr. President, for 8 listening. I thank my colleagues for under 9 standing the passion with which I speak about 10 this issue, and I must vote in the no. 11 ACTING PRESIDENT NOZZOLIO: 12 Senator Waldon in the negative. 13 The Secretary will announce the 14 results. 15 SENATOR GOLD: Mr. President. 16 ACTING PRESIDENT NOZZOLIO: 17 Senator Gold. 18 SENATOR GOLD: Explain my vote. 19 ACTING PRESIDENT NOZZOLIO: 20 Senator Gold to explain his vote. 21 SENATOR GOLD: Mr. President, I 22 am in a perhaps little different position than 23 some of my colleagues, because I'm out there on 1727 1 the record. I was a member of the Morgenthau 2 Commission. I was a member of the second 3 commission appointed by a second governor, and 4 my name is on the report asking for intelligent 5 sentencing; so I don't have to deal with this as 6 a political issue. 7 I wish that we would all look at 8 it seriously, and Senator Volker said he didn't 9 know I was so sensitive, and I say, Senator 10 Volker, I am sensitive. You know, the fact that 11 I'm a Senator doesn't give me any special 12 protection. When the fellow grabbed my wife's 13 purse off her shoulder, her bag off her 14 shoulder, there wasn't a sign she could pull out 15 and say, "Wait a minute. You can't make me a 16 crime victim; I'm a Senator's wife." 17 This is ridiculous. We all live 18 in this community, but I'm going to tell you, 19 Senator Volker, I believe there should be 20 hearings and, if you as a Majority, don't want 21 to do it, then we as a Minority are going to do 22 it. I asked you to table it. Don't want to 23 table it? Fine. Don't want to deal with that. 1728 1 The governor has suggested this. The President 2 has talked about it, and I think it's something 3 that should be talked out. It's something that 4 if we had a bill in final form, I might even be 5 able to vote for, but right now today, while the 6 Governor's bill is not even out here, there's no 7 reason for me to have to say that I will vote 8 for anything that has a slogan attached to it 9 and I won't do it. 10 So, Senator, I am going to vote 11 in the negative today. I am going to tell you 12 that there are members on this side of the aisle 13 who will, in fact, put together hearings on the 14 issue of sentencing, on the three strikes you're 15 in or out, on other guideline sentencing. We 16 will invite judges; we will invite district 17 attorneys, defenders and others to come to this 18 hearing and we will take the matter seriously 19 and not as a tag line. 20 So I may, in fact, by the end of 21 this session, find a bill that deals with this 22 issue that I can support, and it may even turn 23 out, Senator Volker, that you're on the right 1729 1 track, but I think the seriousness of crime in 2 this state requires a serious look at the issue 3 and not a tag line. 4 I vote no. 5 ACTING PRESIDENT NOZZOLIO: 6 Senator Gold in the negative. 7 The Secretary will announce the 8 results. 9 THE SECRETARY: Those recorded in 10 the negative on Calendar Number 298 are Senators 11 Galiber, Gold, Leichter, Montgomery, Ohrenstein, 12 Santiago, Smith and Waldon. Ayes 49, nays 8. 13 ACTING PRESIDENT NOZZOLIO: The 14 bill is passed. 15 The Secretary -- Secretary will 16 read. 17 THE SECRETARY: Calendar Number 18 413, by Senator Marino, Senate Bill Number 19 3828-A, an act to amend Chapter 576 of the Laws 20 of 1975. 21 SENATOR GOLD: Explanation. 22 ACTING PRESIDENT NOZZOLIO: 23 Explanation is asked for. 1730 1 SENATOR PRESENT: Senator LaValle 2 will explain it. 3 ACTING PRESIDENT NOZZOLIO: 4 Senator LaValle. 5 SENATOR LAVALLE: Mr. President, 6 on behalf of Senator Marino, this bill would 7 authorize the Commissioner to -- Commissioner of 8 Education to contract on a -- for students who 9 are interested in pursuing a medical education, 10 that the state of New York would make contracts 11 for up to 40 students with three different 12 medical schools that are outside of our country, 13 the University of Padua, the Royal College of 14 Surgeons and St. George's University School of 15 Medicine. 16 ACTING PRESIDENT NOZZOLIO: Last 17 section. 18 THE SECRETARY: Section 2. 19 ACTING PRESIDENT NOZZOLIO: 20 Senator Stavisky. 21 SENATOR STAVISKY: Senator 22 LaValle, would you yield? 23 ACTING PRESIDENT NOZZOLIO: 1731 1 Senator LaValle yields. 2 SENATOR LAVALLE: Yes. 3 ACTING PRESIDENT NOZZOLIO: 4 Senator yields. 5 SENATOR STAVISKY: In the absence 6 of this legislation, is there anything under law 7 that prohibits the Commissioner of Education 8 from recommending to us or on his own volition, 9 the addition of contracts with foreign medical 10 schools? 11 SENATOR LAVALLE: Senator, as you 12 know, what we are doing is adding to schools 13 that statutorily we have delineated specifically 14 that the Commissioner contract with specific 15 medical schools, whether it be Saclica, Mahary 16 or other medical schools. 17 SENATOR STAVISKY: That was not 18 my question. 19 SENATOR LAVALLE: Yes. 20 SENATOR STAVISKY: Is there 21 anything that prohibits the Commissioner of 22 Education by statute or by administration action 23 on his own volition from entering into 1732 1 additional contracts with foreign medical 2 schools? 3 SENATOR LAVALLE: I would have to 4 say, Senator, based on the legislation that I'm 5 holding in my hand that amends existing law, 6 that it appears that the contracts that the 7 Commissioner can make on behalf of New York 8 State is with specific medical schools and 9 that's delineated by statute. 10 SENATOR STAVISKY: Isn't it true, 11 Senator LaValle -- if he will continue yielding. 12 ACTING PRESIDENT NOZZOLIO: 13 Senator LaValle continue to yield? 14 SENATOR LAVALLE: No. 15 ACTING PRESIDENT NOZZOLIO: 16 Senator refuses to yield. 17 SENATOR STAVISKY: I happen to 18 know that the state of New York enters into - 19 ACTING PRESIDENT NOZZOLIO: 20 Senator Stavisky, on the bill. 21 SENATOR STAVISKY: I'm continuing 22 now -- enters into agreements with institutions 23 at all levels in the elementary and secondary 1733 1 field with regard to special education, the 2 education of disabled and handicapped children, 3 that the state of New York regularly and the 4 state Education Department regularly, without 5 any statute by the Legislature, the Commissioner 6 of Education already has the power to do this 7 and does it with regard to recognizing fine 8 programs at educational institutions that are 9 not here in the state of New York. 10 I wish that we had more fine 11 educational institutions, including medical 12 schools, in the state of New York. I wish that 13 Queens County, a county of 2 million people, had 14 a medical school of its own, not an affiliation 15 with a medical school in Manhattan over on the 16 island, but Queens County doesn't have a medical 17 school. 18 Is there anything wrong with 19 these institutions? The Commissioner of 20 Education hasn't told us that there's anything 21 right with these institutions. I have visited 22 one of the institutions and I'm not going to say 23 that I am qualified to pass upon the programs, 1734 1 but I could tell you that one of these places 2 beach barbecue seems to be the main order of the 3 day; they have marvelous beach barbecue stands. 4 I did not see an extensive clinical facility. I 5 did not see a report from the Commissioner of 6 Education of the state of New York recommending 7 the clinical facilities which I did not see, or 8 the beach barbecue which I did see. 9 There may be compelling reasons 10 why legislation like this is introduced, but 11 that doesn't mean that it's a sound educational 12 reason, and I think that the time may be near 13 for the Legislature not to intrude upon medical 14 and health decisions that should be made by 15 those who are far more qualified to evaluate - 16 to evaluate medical and health quality than the 17 members of this Legislature, notwithstanding the 18 superbly qualified sponsor of this bill or the 19 superbly qualified advocate for this bill on the 20 floor. 21 I think it's an unsound 22 practice. We're picking out institutions 23 perhaps with a waiting game, perhaps with order, 1735 1 to show that we give some recognition to 2 different parts of the world. That's not the 3 way to evaluate the soundness of an educational 4 program, and we should not do that until we have 5 sound medical recommendations from the agency to 6 which we turn for educational evaluations and, 7 for this reason, I would hope that we do not add 8 to this list until we see sound educational and 9 medical evaluations for any institution that we 10 add. 11 I do not wish to offend any of 12 the institutions or their advocates. I simply 13 want to see an objective report given to us 14 before we vote. 15 ACTING PRESIDENT NOZZOLIO: 16 Senator Galiber. 17 SENATOR GALIBER: Mr. President, 18 if Senator LaValle will yield. 19 ACTING PRESIDENT NOZZOLIO: Will 20 Senator LaValle yield? Senator LaValle yields. 21 SENATOR GALIBER: Mr. President, 22 last year on the calendar this question of 23 accreditation came up, and I'm glad to see you 1736 1 carrying the bill because if you can recall - 2 excuse my back -- that some years ago we had a 3 similar debate on why some of New York's resi 4 dents had to go to Mexico, foreign places, to be 5 admitted into their medical school and then come 6 back to New York after some two years in Mexico, 7 keep it a secret to the Mexican medical school 8 that they were making application to get back 9 into or get into a school here in New York 10 State. 11 And now we find a situation 12 where, on this piece of legislation that we're 13 asking to perhaps extend to a school or schools 14 which may or may not have accreditation, and 15 this is why I'm asking you, is -- will these 16 schools or are these schools accredited schools 17 or is it just a contract that we have to go for 18 a couple of years in those schools and come back 19 and run into the same stumbling blocks that we 20 did when those who made application to foreign 21 schools like Mexico, we had this debate I guess 22 maybe ten years ago? 23 SENATOR LAVALLE: Yes, we did. 1737 1 SENATOR GALIBER: Maybe even 2 longer, and you assured me that to converse with 3 us along these lines, we were able to get a 4 biomedical program started to relieve some of 5 the problems that we had. But is this an 6 accredited -- will these schools be accredited? 7 SENATOR LAVALLE: Senator, the - 8 and we have had numerous debates over the years, 9 both on this bill before us and others, and the 10 question, of course, comes up on accreditation. 11 The process in terms of the state Education 12 Department and our laws, many times the 13 department will require of these institutions 14 before it receives its approval and the students 15 being capable of taking that medical education 16 and then going to a clinical site, many times 17 there are bridges that need to be built. 18 It is my feeling from what I 19 know, to answer your question directly, that 20 these programs are accredited. The component 21 that is -- is the turning issue that we 22 shouldn't confuse it with, is the clinical piece 23 and that piece the students move from many times 1738 1 the foreign institution to a clinical site here 2 in the United States, but before they can do 3 that, the student has to go through several 4 steps. 5 This is a problem. It's an 6 unfortunate problem, by the way, that students 7 in your country who apply to medical colleges 8 and are the cream -- the cream of our under 9 graduate programs but get turned down two and 10 three and four times, but because of their 11 desire to be a physician, they're not going to 12 let rejection step between them and getting that 13 medical degree and practicing that they go 14 outside the country, they go outside the country 15 and it's a long and arduous course, but one that 16 we in this state have requirements, and that the 17 student has to go through that along with the 18 colleges in which they come from in order to 19 meet the clinical requirements. 20 So it's kind of a long answer, 21 but it's not a simple process. It's not a 22 simple process, and it's a shame that we don't 23 have more seats for the students in our state 1739 1 and our country. 2 ACTING PRESIDENT NOZZOLIO: Read 3 the last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 ACTING PRESIDENT NOZZOLIO: The 7 Secretary will call the roll. 8 (The Secretary called the roll. ) 9 THE SECRETARY: Those recorded in 10 the negative on Calendar Number 413 are Senators 11 Connor, Galiber, Gold, Leichter, Mendez, 12 Montgomery, Ohrenstein, Onorato, Santiago, 13 Stachowski and Stavisky. Ayes 46, nays 11. 14 ACTING PRESIDENT NOZZOLIO: The 15 bill is passed. 16 Senator Connor. 17 SENATOR CONNOR: Thank you, Mr. 18 President. 19 May I have unanimous consent to 20 be recorded in the negative on Calendar Number 21 298? 22 ACTING PRESIDENT NOZZOLIO: 23 Without objection. 1740 1 THE SECRETARY: Calendar Number 2 419, by Senator Bruno, Senate Bill Number 6871 3 in - 4 SENATOR LEICHTER: Explanation. 5 THE SECRETARY: In relation to 6 the development of a plan and schedule. 7 SENATOR LEICHTER: Mr. President, 8 I wonder if - 9 ACTING PRESIDENT NOZZOLIO: 10 Senator Leichter, why do you rise? 11 SENATOR LEICHTER: To debate this 12 bill and to ask a question of my good friend, 13 Senator Bruno, if he would yield. 14 ACTING PRESIDENT NOZZOLIO: 15 Senator Bruno, will you yield? 16 SENATOR BRUNO: Yes, Mr. 17 President. 18 ACTING PRESIDENT NOZZOLIO: Yes, 19 the Senator yields. 20 SENATOR LEICHTER: Senator, first 21 let me point out what caught my attention in 22 this bill. There were two things. One is its 23 erudition, because I saw that we had a bill that 1741 1 used the word collocate, and I thought that it's 2 an unusual word; I hadn't seen it. I was a bit 3 concerned that people reading the bill would 4 understand and appreciate it and, of course, I 5 very much was impressed by the learning that you 6 show, Senator, in the drafting of this bill, but 7 I did not think that there was a word such as 8 "collocated", and I went to the dictionary and 9 indeed it is there, Senator, and I wanted to 10 acknowledge that publicly, and I am concerned, 11 however, Senator that this bill, if passed and 12 becomes law, we're going to to have all these 13 state officials that are going to be running to 14 the dictionary to find out precisely what it is 15 they're supposed to be doing. But I guess we'll 16 -- we'll just have to have them attain the high 17 level of learning and erudition that we have in 18 this chamber. 19 SENATOR BRUNO: Hopefully. 20 SENATOR LEICHTER: But, Senator, 21 there is one thing that does raise some concern 22 in my mind as I read this bill, and I believe 23 that would be new law. Is it you're going to 1742 1 provide at least one employee of various state 2 agencies to be in the regional offices? 3 I think the idea of a regional 4 office is good, and maybe each of these agencies 5 ought to have somebody in the regional office 6 although I could see some instances where a 7 representative of one agency could very well 8 also do the -- the work of another agency, but 9 the question I really have for you is that if 10 we're going to have these employees, one from 11 each of the named agencies working in ten 12 offices, we're going to need some additional 13 employees, and I don't see any appropriation 14 tied into your bill. 15 Now, Senator, I know that you're 16 somebody who speaks out very often about waste 17 and cutting government expenditures, although I 18 must, in all fairness, point out and with some 19 chagrin, that I often see bills on your part 20 asking government to do this and that and 21 mandating this activity, and so on, to the state 22 agency. Here you're going to have these 23 additional employees. How are we going to pay 1743 1 for it, Senator? 2 ACTING PRESIDENT NOZZOLIO: 3 Senator Bruno. 4 SENATOR BRUNO: Mr. President, 5 that is a good question, and Senator, I'm very 6 pleased that you did seek a dictionary because 7 just in case anyone should have had on their 8 mind whether there is such a word, I also have 9 the Webster dictionary here, and I will not 10 relate it since you are comfortable, and what I 11 thought was, if this bill becomes law that we 12 would put this page from Webster's right along 13 as part of the memorandum of explanation. 14 But as to employees, Senator, 15 this bill very specifically calls for the 16 Commissioner of the Department of Economic 17 Development to prepare a plan to collocate 18 within their ten regional offices the help that 19 is available to the business community. Science 20 and Technology Foundation, Urban Development 21 Corp., Job Development Authority, SUNY and CUNY, 22 would be located in one of the sites within the 23 ten regional offices that already exist. 1744 1 So, Senator, this bill calls for 2 a plan to be submitted by the Commissioner and 3 the Commissioner would outline whatever they 4 determine to be the need to meet the 5 requirements of this law, and then I would guess 6 in the year '95, because this calls for a report 7 by December 31, '94, that in '95, we in our 8 wisdom would then meet whatever financial 9 requirement that there might be if we thought 10 they were appropriate. 11 We have a feeling that there are 12 enough employees now within Science and 13 Technology, UDC, JDA, that would be assigned the 14 task of informing the business community on how 15 help is available. 16 The bottom line is there's a lot 17 of help available to people in this state and 18 they don't know it and, if you in business want 19 to go to find out what help is available, you 20 have to go to eight, ten, twenty different 21 places, and small business people especially 22 don't have the time or the inclination. So what 23 we're saying is, let's get them all together in 1745 1 one office. They already exist; these ten 2 offices exist, put the people there and then you 3 as a business person go in and you talk to 4 whomever it is there that can help you. 5 We think it's reasonable. We 6 think it's the kind of thing that's needed to 7 help stimulate small business and job 8 development in this state. But it doesn't 9 appropriate money because, first, we need the 10 plan, and the plan is called for by December 11 31st, '94 and as a result of all of this good 12 planning, we will collocate throughout the state 13 in the ten regional offices. 14 SENATOR LEICHTER: Mr. President. 15 ACTING PRESIDENT NOZZOLIO: 16 Senator Leichter. 17 SENATOR LEICHTER: Very, very 18 briefly, having in mind that the time, that this 19 is such a significant bill, as Senator Bruno 20 pointed out to me, and I didn't want, therefore, 21 that it would just, you know, pass quickly 22 without anybody noticing it, but the fact is 23 that this bill provides that -- the bill man 1746 1 dates on these state agencies to come up with a 2 plan that requires to have at least one employee 3 at each of the regional centers. It says "shall 4 provide". 5 It further provides that one of 6 the agencies is the City University of New 7 York. Now, I don't know where all of these ten 8 regional offices are, but I assume some of them 9 are way up in the North Country and other places 10 and, while City University may have something to 11 offer, to say that an employee of the City 12 University has got to sit up in Warrensburg, if 13 you're lucky to sit up there -- it's a beautiful 14 place -- or in Watertown, New York, another 15 beautiful place, frankly doesn't make sense, 16 Senator Bruno, and I think to require a plan, I 17 think that's fine, but to require a plan as your 18 bill does that must have ten -- that must have 19 employees of all of these agencies, including 20 the state -- the City University of New York 21 really just doesn't make sense and, of course, 22 as usual, you never put money in back of these 23 proposals. 1747 1 For that reason, I'm going to 2 vote against it. Thank you. 3 ACTING PRESIDENT NOZZOLIO: Last 4 section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT NOZZOLIO: Call 8 the roll. 9 (The Secretary called the roll. ) 10 ACTING PRESIDENT NOZZOLIO: 11 Announce the results. 12 THE SECRETARY: Ayes 56, nays 13 one, Senator Leichter recorded in the negative. 14 ACTING PRESIDENT NOZZOLIO: 15 Senator Mendez. 16 SENATOR MENDEZ: Mr. President. 17 ACTING PRESIDENT NOZZOLIO: The 18 bill is passed. 19 Senator Mendez. 20 SENATOR MENDEZ: Thank you, Mr. 21 President. 22 The vote on Bill Number 298 23 occurred when I was out of the chamber, and 1748 1 could I please be recorded in the negative, to 2 have unanimous consent to be recorded in the 3 negative. Also on 413, I request it yes. 298, 4 no. 5 ACTING PRESIDENT NOZZOLIO: 6 Without objection. 7 SENATOR MENDEZ: 413, yes. 8 THE SECRETARY: You want 413 to 9 be yes? 10 ACTING PRESIDENT NOZZOLIO: 11 Without objection, the Secretary will so 12 indicate. Secretary will read. 13 THE SECRETARY: Calendar Number 14 420, by Senator Wright, Senate Bill Number 7013, 15 an act to amend the State Administrative 16 Procedure Act. 17 SENATOR PRESENT: Lay it aside. 18 ACTING PRESIDENT NOZZOLIO: The 19 bill is laid aside. 20 Senator Present. 21 SENATOR PRESENT: Mr. President, 22 on behalf of Senator Marino, I offer up the 23 following committee assignment changes and ask 1749 1 that they be recorded in the Journal. 2 ACTING PRESIDENT NOZZOLIO: To be 3 filed in the Journal. 4 Senator Present. 5 SENATOR PRESENT: Now, any more 6 housekeeping or nothing? 7 ACTING PRESIDENT NOZZOLIO: No 8 housekeeping. 9 SENATOR PRESENT: On behalf of 10 Senator Levy, I'd like to announce a brief 11 conference of the Majority in Room 332 12 immediately following this session. 13 And, Mr. President, there being 14 no further business, I move that we adjourn 15 until Tuesday, March 29th, 3:00 p. m., 16 intervening days to be legislative days. 17 ACTING PRESIDENT NOZZOLIO: The 18 Senate stands adjourned until Tuesday, March 19 29th. 20 (Whereupon at 1:58 p.m., the 21 Senate adjourned. ) 22 23