Monday, May 2, 1994

2974 1 2 3 4 5 ALBANY, NEW YORK 6 May 2, 1994 7 10:00 a.m. 8 9 10 REGULAR SESSION 11 12 13 14 SENATOR NICHOLAS A. SPANO, Acting President 15 STEPHEN F. SLOAN, Secretary 16 17 18 19 20 21 22 23 2975 1 P R O C E E D I N G S 2 ACTING PRESIDENT SPANO: Senate 3 will come to order. All please rise for the 4 Pledge of Allegiance to the Flag. 5 (Whereupon, the Senate joined in 6 the Pledge of Allegiance to the Flag.) 7 In the absence of clergy, please 8 bow our heads for a moment of silence. 9 (Whereupon, there was a moment of 10 silence.) 11 Reading of the Journal. 12 THE SECRETARY: In Senate, 13 Sunday, May 1. The Senate met pursuant to 14 adjournment. Senator Bruno in the chair upon 15 designation of the Temporary President. The 16 Journal of Saturday, April 30, was read and 17 approved. On motion, Senate adjourned. 18 ACTING PRESIDENT FARLEY: Hearing 19 no objection, the Journal stands approved as 20 read. 21 The order of business: 22 Messages from the Assembly. 23 Messages from the Governor. 2976 1 Reports of standing committees. 2 Motions and resolutions. 3 Senator Wright. 4 SENATOR WRIGHT: Mr. President. 5 On behalf of Senator Sears, I wish to call up 6 Bill Number 6756, recalled from the Assembly, 7 which is now at the desk. 8 ACTING PRESIDENT SPANO: 9 Secretary will read it. 10 THE SECRETARY: By Senator Sears, 11 Senate Bill Number 6756, an act to amend the 12 Environmental Conservation Law. 13 ACTING PRESIDENT SPANO: The bill 14 is before the house. 15 SENATOR WRIGHT: Mr. President. 16 I now move to reconsider the vote by which the 17 bill was passed. 18 ACTING PRESIDENT SPANO: The 19 Secretary will call the roll on reconsideration. 20 (The Secretary called the roll on 21 reconsideration.) 22 THE SECRETARY: Ayes 36. 23 ACTING PRESIDENT SPANO: The bill 2977 1 is before the house. 2 SENATOR WRIGHT: Mr. President. 3 I now offer the following amendments. 4 ACTING PRESIDENT SPANO: So 5 ordered. 6 SENATOR WRIGHT: Mr. President. 7 ACTING PRESIDENT SPANO: Senator 8 Wright. 9 SENATOR WRIGHT: On behalf of 10 Senator Lack, I wish to call up Calendar Number 11 561, Assembly Print 10481. 12 ACTING PRESIDENT SPANO: 13 Secretary will read it. 14 THE SECRETARY: By Senator Lack, 15 Senate Bill Number 7213, an act to amend the 16 Uniform Commercial Code. 17 SENATOR WRIGHT: I now move to 18 reconsider the vote by which this Assembly Bill 19 was substituted for my bill Senate Print Number 20 2713 on April 25. 21 ACTING PRESIDENT SPANO: Without 22 objection. 23 SENATOR WRIGHT: I now move that 2978 1 Assembly Bill Number 10481 be recommitted to the 2 Committee on Judiciary and my Senate bill be 3 restored to the order of Third Reading Calendar. 4 ACTING PRESIDENT SPANO: So 5 ordered. 6 SENATOR WRIGHT: Mr. President. 7 I now offer the following amendments. 8 ACTING PRESIDENT SPANO: 9 Amendments are received. 10 SENATOR WRIGHT: Mr. President. 11 On behalf of Senator Cook, on page 32, I offer 12 the following amendments to Calendar Number 613, 13 Senate Print Number 3202, and ask that said bill 14 retain its place on the Third Reading Calendar. 15 ACTING PRESIDENT SPANO: So 16 ordered. 17 SENATOR WRIGHT: Mr. President. 18 On behalf of Senator Bruno, request we place a 19 star on Calendar Number 418. 20 ACTING PRESIDENT SPANO: So 21 ordered. Senator Johnson. 22 SENATOR JOHNSON: Mr. President. 23 On page 29, I offer the following amendments to 2979 1 Calendar Number 285, Senate Print Number 4369A, 2 and ask that said bill retain its place on the 3 Third Reading Calendar. 4 ACTING PRESIDENT SPANO: So 5 ordered. 6 Secretary will read the 7 substitutions. 8 SENATOR STAFFORD: Mr. 9 President. 10 ACTING PRESIDENT SPANO: Senator 11 Stafford. 12 SENATOR STAFFORD: Excuse me, 13 please. I respectfully call an immediate 14 meeting of the Committee on Finance in Room 332. 15 ACTING PRESIDENT SPANO: 16 Immediate meeting of the Finance Committee in 17 Room 332. 18 Secretary will now read the 19 substitutions. 20 THE SECRETARY: On page 4 of 21 today's calendar, Senator Farley moves to 22 discharge the Committee on Banks from Assembly 23 Bill Number 10684 and substitute it for the 2980 1 identical Calendar Number 730. 2 Also on page 4, Senator Farley 3 moves to discharge the Committee on Banks from 4 Assembly Bill Number 11340 and substitute it for 5 the identical Calendar Number 732. 6 ACTING PRESIDENT SPANO: 7 Substitutions ordered. 8 Senator Present. 9 SENATOR PRESENT: Mr. President. 10 Would you recognize Senator Skelos, please. 11 ACTING PRESIDENT SPANO: Senator 12 Skelos. 13 SENATOR SKELOS: Mr. President. 14 I believe there is a resolution concerning 15 Senior Citizens Day at the desk. If we could 16 have the title read, please. 17 ACTING PRESIDENT SPANO: 18 Secretary will read the title of the resolution. 19 THE SECRETARY: Legislative 20 Resolution, by Senator Skelos and LaValle, 21 congratulating Henry C. Pheiffer Jr. upon the 22 occasion of his having been selected as 23 recipient of the 1994 New York State Legislative 2981 1 Award for Senior Citizen of the Year on May 3, 2 1994. 3 ACTING PRESIDENT SPANO: Question 4 on the resolution. All those in favor, signify 5 by saying aye. 6 (Response of "Aye.") 7 Opposed, nay. 8 (There was no response.) 9 The resolution is adopted. 10 Senator Present. 11 SENATOR PRESENT: Senator 12 Stafford, I understand you have a privileged 13 resolution. 14 SENATOR STAFFORD: Thank you, Mr. 15 President. I understand we have a resolution at 16 the desk. Could I have the title read, please. 17 ACTING PRESIDENT SPANO: 18 Secretary will read the title of the resolution. 19 THE SECRETARY: Legislative 20 Resolution, by Senator Stafford, proclaiming the 21 week of May 15 through the 21st, 1994, as 22 Medical Transcriptionists Week in the State of 23 New York. 2982 1 ACTING PRESIDENT SPANO: All 2 those in favor of the resolutions, signify by 3 saying aye. 4 (Response of "Aye.") 5 Opposed, nay. 6 (There was no response.) 7 The resolution is adopted. 8 Senator Present. 9 SENATOR PRESENT: Mr. President. 10 Can we take up the noncontroversial calendar 11 please. 12 ACTING PRESIDENT SPANO: 13 Secretary will read the noncontroversial 14 calendar. 15 THE SECRETARY: On page 17 of 16 today's calendar, Calendar Number 432, by 17 Senator Levy - 18 SENATOR PRESENT: Lay it aside 19 for the day please. 20 ACTING PRESIDENT SPANO: Lay it 21 aside for the day. 22 THE SECRETARY: Calendar Number 23 558, by Senator Hannon, Senate Bill Number 2983 1 5206A, an act to amend the Real Property Actions 2 and Proceedings Law, in relation to payment of 3 rent in certain summary proceedings. 4 ACTING PRESIDENT SPANO: Read the 5 last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT SPANO: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 38. 12 ACTING PRESIDENT SPANO: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 607, by Senator Levy. 16 SENATOR PRESENT: Lay Calendar 17 607 on the side for the day please. 18 ACTING PRESIDENT SPANO: Lay it 19 aside for the day. 20 THE SECRETARY: Calendar Number 21 619, by Senator Skelos, Senate Bill Number 22 1296A, an act to amend the Vehicle and Traffic 23 Law, in relation to distinctive license plate 2984 1 for Gold Star Mothers. 2 ACTING PRESIDENT SPANO: Read the 3 last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 ACTING PRESIDENT SPANO: Call the 7 roll. 8 (The Secretary called the roll.) 9 THE SECRETARY: Ayes 38. 10 ACTING PRESIDENT SPANO: The bill 11 is passed. 12 THE SECRETARY: Calendar Number 13 627, by Senator Saland, Senate Bill Number 14 3759A, an act to amend the Domestic Relations 15 Law, in relation to orders for child custody and 16 support. 17 ACTING PRESIDENT SPANO: Read the 18 last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect immediately. 21 ACTING PRESIDENT SPANO: Call the 22 roll. 23 (The Secretary called the roll.) 2985 1 THE SECRETARY: Ayes 38. 2 ACTING PRESIDENT SPANO: The bill 3 is passed. 4 THE SECRETARY: Calendar Number 5 630, by Senator Rath, Senate Bill Number 7225A, 6 an act to amend the Family Court Act, in 7 relation to the return of children who have run 8 away. 9 ACTING PRESIDENT SPANO: Read the 10 last section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT SPANO: Call the 14 roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 38. 17 ACTING PRESIDENT SPANO: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 636, by Senator Padavan. 21 SENATOR GOLD: Lay it aside. 22 ACTING PRESIDENT SPANO: Lay it 23 aside. 2986 1 THE SECRETARY: Calendar Number 2 654, by Senator Hannon. 3 SENATOR GOLD: Lay it aside. 4 ACTING PRESIDENT SPANO: Lay it 5 aside. 6 THE SECRETARY: Calendar Number 7 659, by Senator Seward. 8 SENATOR GOLD: Lay it aside. 9 ACTING PRESIDENT SPANO: Lay it 10 aside. 11 That completes the 12 noncontroversial calendar. 13 SENATOR PRESENT: Mr. President. 14 May the Senate stand at ease for a few moments. 15 ACTING PRESIDENT SPANO: Senate 16 will stand at ease. 17 (Whereupon, at 3:00 p.m., Senate 18 was at ease.) 19 (Whereupon, at 3:44 p.m., Senate 20 reconvened with Senator Kuhl in the chair.) 21 ACTING PRESIDENT KUHL: Senate 22 will come to order. 23 Senator Present. 2987 1 SENATOR PRESENT: Mr. President. 2 Can we return to reports of standing 3 committees? 4 ACTING PRESIDENT KUHL: Clerk 5 will read. 6 THE SECRETARY: Senator Stafford 7 from the Committee on Finance reports the 8 following three bills directly for third 9 reading: 10 Senate Bill Number 7962, by the 11 Senate Committee on Rules, provide payments to 12 municipalities. 13 Senate Bill Number 7963, by the 14 Committee on Rules, making an appropriation for 15 the support of government. 16 Senate Bill Number 7964, by the 17 Committee on Rules, making appropriation for the 18 support of government. 19 All bills reported directly for 20 third reading. 21 ACTING PRESIDENT KUHL: Without 22 objection, directly for third reading. 23 Senator Present. 2988 1 SENATOR PRESENT: Mr. President. 2 Can we have the third reading on those bills 3 right now? 4 ACTING PRESIDENT KUHL: Clerk 5 will read. 6 THE SECRETARY: Calendar Number 7 742, by the Senate Committee on Rules, Senate 8 Bill Number 7962, an act on provide for payments 9 to municipalities. 10 SENATOR PRESENT: Mr. President. 11 Is there a message of necessity and message of 12 appropriation at the desk? 13 ACTING PRESIDENT KUHL: Yes, 14 there is, Senator Present. 15 SENATOR PRESENT: I move we 16 accept the messages. 17 ACTING PRESIDENT KUHL: All those 18 in favor, signify by saying aye. 19 (Response of "Aye.") 20 Opposed, nay. 21 (There was no response.) 22 The message is accepted. 23 Read the last section. 2989 1 THE SECRETARY: Section 2. This 2 act shall take effect immediately. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll.) 6 SENATOR GOLD: Mr. President. 7 ACTING PRESIDENT KUHL: Senator 8 Gold. 9 SENATOR GOLD: To explain my 10 vote. 11 ACTING PRESIDENT KUHL: To 12 explain his vote. 13 SENATOR GOLD: I have considered 14 these bills and the impact on the people of the 15 state, and I have spoken to the highest 16 authority available, and the Comptroller of the 17 City of New York said I should vote yes. 18 ACTING PRESIDENT KUHL: Senator 19 Gold will be recorded in the affirmative. 20 Announce the results. 21 THE SECRETARY: Ayes 48. Nays 22 2. Senators Holland and Maltese recorded in the 23 negative. 2990 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 743, by the Senate Committee on Rules, Senate 5 Bill Number 7963, an act making an appropriation 6 for the support of government. 7 ACTING PRESIDENT KUHL: Senator 8 Present. 9 SENATOR PRESENT: Mr. President. 10 Is there a message of necessity and message of 11 appropriation at the desk? 12 ACTING PRESIDENT KUHL: Yes, 13 there is, Senator Present. 14 SENATOR PRESENT: I move we 15 accept the messages. 16 ACTING PRESIDENT KUHL: All those 17 in favor, signify by saying aye. 18 (Response of "Aye.") 19 Opposed, nay. 20 (There was no response.) 21 The message is accepted. 22 SENATOR PRESENT: Last section. 23 ACTING PRESIDENT KUHL: Last 2991 1 section. 2 THE SECRETARY: Section - 3 SENATOR DOLLINGER: Mr. 4 President. Mr. President, just one question on 5 the bill please. 6 ACTING PRESIDENT KUHL: Senator 7 Dollinger. 8 Senator Stafford, do you yield 9 for a question? 10 SENATOR STAFFORD: Yes. 11 ACTING PRESIDENT KUHL: Senator 12 does. 13 SENATOR DOLLINGER: Thank you, 14 Senator Stafford, for yielding. It is my 15 understanding that this only applies to 16 employees of the judicial and not any other 17 state agencies. Is that correct? 18 SENATOR STAFFORD: That's 19 correct. 20 SENATOR DOLLINGER: That's all I 21 need to know. 22 Thank you, Mr. President. 23 ACTING PRESIDENT KUHL: Read the 2992 1 last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT KUHL: Call the 5 roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 50. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 744, by the Senate Committee on Rules, Senate 12 Bill Number 7964, an act making appropriation 13 for the support of government. 14 ACTING PRESIDENT KUHL: Senator 15 Present. 16 SENATOR PRESENT: Mr. President. 17 Is there a message of necessity and a message of 18 appropriation at the desk? 19 ACTING PRESIDENT KUHL: There is. 20 SENATOR PRESENT: I move we 21 accept the message. 22 ACTING PRESIDENT KUHL: All those 23 in favor, signify by saying aye. 2993 1 (Response of "Aye.") 2 Opposed, nay. 3 (There was no response.) 4 The messages are accepted. 5 SENATOR DOLLINGER: Mr. 6 President. I vote against the acceptance of the 7 message of necessity on this bill. 8 ACTING PRESIDENT KUHL: Senator 9 Dollinger recorded in the negative. 10 Senator Jones. 11 SENATOR JONES: Yes, I would also 12 like to vote in the negative, please. 13 ACTING PRESIDENT KUHL: Senator 14 Jones recorded in the negative. 15 Message is accepted. 16 Clerk will read the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes 49. Nays 23 2. Senators Dollinger and Jones recorded in the 2994 1 negative. 2 ACTING PRESIDENT KUHL: The bill 3 is passed. 4 SENATOR PRESENT: Mr. President. 5 ACTING PRESIDENT KUHL: Senator 6 Present. 7 SENATOR PRESENT: I ask that we 8 reconsider the vote on Calendar 742. 9 ACTING PRESIDENT KUHL: The 10 Secretary will call the roll on reconsideration 11 on Calendar Number 742. 12 (The Secretary called the roll on 13 reconsideration.) 14 THE SECRETARY: Ayes 51. 15 ACTING PRESIDENT KUHL: The bill 16 is before the house. 17 SENATOR PRESENT: I understand 18 that a substitution would be in order. 19 ACTING PRESIDENT KUHL: You are 20 correct, Senator Present. 21 Secretary will read substitution. 22 THE SECRETARY: Senator Stafford 23 from the Committee on Finance moves to 2995 1 substitute Assembly Bill Number 11469 for Senate 2 Bill Number 7962. 3 ACTING PRESIDENT KUHL: 4 Substitution is ordered. 5 Read the last section. 6 THE SECRETARY: Section 2. 7 SENATOR DOLLINGER: Mr. 8 President. 9 ACTING PRESIDENT KUHL: Senator 10 Dollinger. 11 SENATOR DOLLINGER: Will Senator 12 Stafford yield to just one question, so I make 13 sure I know what is going on? 14 ACTING PRESIDENT KUHL: Senator 15 Stafford, you are asked to yield. 16 Senator yields. 17 Senator Dollinger. 18 SENATOR DOLLINGER: Again, thank 19 you, Senator Stafford for yielding. This is the 20 Assembly version of the bill for the Medicaid 21 payment; is that correct? 22 SENATOR STAFFORD: That's 23 correct. 2996 1 SENATOR DOLLINGER: Simply does 2 what we did in the prior bill, except - 3 SENATOR STAFFORD: That's 4 correct. 5 SENATOR DOLLINGER: Okay. Thank 6 you, Mr. President. 7 ACTING PRESIDENT KUHL: Clerk 8 will read the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 ACTING PRESIDENT KUHL: Call the 12 roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes 49. Nays 15 2. Senators Holland and Maltese recorded in the 16 negative. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 Senator Goodman. 20 SENATOR GOODMAN: Would you be 21 good enough, please, to record me in the 22 negative on Calendar Number 558, without 23 objection. 2997 1 ACTING PRESIDENT KUHL: Without 2 objection, Senator Goodman recorded in the 3 negative on Calendar Number 558. 4 Senator Present. 5 SENATOR PRESENT: Can we return 6 to the controversial calendar? 7 ACTING PRESIDENT KUHL: Clerk 8 will call the controversial calendar. 9 THE SECRETARY: On page 24, 10 Calendar Number 636, by Senator Padavan, Senate 11 Bill Number 3154A, an act to amend the Criminal 12 Procedure Law, in relation to the defense of 13 "guilty but mentally ill". 14 SENATOR GOLD: Explanation. 15 ACTING PRESIDENT KUHL: Senator 16 Padavan, an explanation has been asked for. 17 Senator Padavan. 18 SENATOR PADAVAN: Thank you, Mr. 19 President. 20 The issue of the insanity defense 21 has been one that over a period of decades, if 22 not over a century, has preoccupied - 23 SENATOR PRESENT: May I interrupt 2998 1 you? 2 SENATOR PADAVAN: Certainly. 3 SENATOR PRESENT: Mr. President. 4 ACTING PRESIDENT KUHL: Senator 5 Present. 6 SENATOR PRESENT: May I have the 7 last section of this bill called and allow 8 Senator Spano to vote. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 (The Secretary called the roll.) 12 ACTING PRESIDENT KUHL: Senator 13 Spano. 14 SENATOR SPANO: Aye. 15 ACTING PRESIDENT KUHL: Senator 16 Spano is recorded in the affirmative. 17 Roll call is withdrawn. 18 Senator Padavan. 19 SENATOR PADAVAN: Thank you, Mr. 20 President. 21 I indicated, Mr. President, this 22 issue of the insanity defense has preoccupied 23 legal scholars and jurists for decades if not 2999 1 for over a century. 2 ACTING PRESIDENT KUHL: Senator 3 Padavan, excuse me just a minute. 4 I don't know whether you were 5 having a difficult time hearing, but I certainly 6 am. I think there is a lot of unnecessary noise 7 and conversation in the chamber. Can we please 8 settle down? Members take their seats. Staff 9 take their seats. Show the Senator some 10 respect. 11 Senator Padavan. 12 SENATOR PADAVAN: The first time 13 that the issue of insanity as a defense in a 14 criminal trial surfaced was in 1834 in England 15 in the famous M'Naughten case, which then became 16 referred to as the M'Naughten rule. Simply 17 stated, insanity was indicated as a reason for 18 that person being acquitted of the crime, in 19 that case a violent crime, and, therefore, not 20 incarcerated and in a brief period of time let 21 free. 22 The laws of this state, indeed of 23 every state in the nation, have provided an 3000 1 insanity defense as a matter of law as well as a 2 defense referred to as "incompetent to stand 3 trial." The bill before us does not -- and I 4 say this very early in our discussion -- does 5 not repeal either of those statutes. An 6 insanity defense would continue as would a 7 pleading of "incompetent to stand trial." 8 In a successful outcome of such 9 an appeal, a person would be remanded to a state 10 mental facility for care and treatment for some 11 indeterminate period of time. 12 What has happened, however, as 13 the psychiatric community over a period of many 14 years has matured, as the science of psychiatry 15 -- though some would say it's more of an art 16 than a science -- has matured, there have in the 17 mind of many developed a sense of 18 dissatisfaction with the manner and methods by 19 which insanity defenses had been raised. 20 I first brought this concept, 21 this bill, before this house a number of years 22 ago, and it has been before you on four other 23 occasions and on every occasion you voted for it 3001 1 in terms of it being passed. The last time, in 2 1985, I advised you that seven states in this 3 country had adopted an alternative verdict, 4 "guilty but mentally ill." Since then, ten 5 other states have done likewise. At this point 6 in time, there are seventeen states that have 7 that as an alternative verdict. 8 In addition, I might add 9 parenthetically, three states have voided the 10 insanity defense entirely. But that's not the 11 issue before us. 12 In hearings and in discussions we 13 have had over a period of years with judges, 14 psychiatrists, they tell us quite candidly that 15 there are juries that are torn between deciding 16 whether or not a person is innocent by reason of 17 insanity or guilty as charged. Those are the 18 alternatives in such a pleading. They are 19 undecided as to what way to go. They 20 acknowledge to themselves that the person did a 21 terrible thing, guilty of a violent crime or 22 violent act; at the same time, they acknowledge 23 there is a degree of mental instability. But 3002 1 they have to decide whether to go one way or the 2 other. 3 We now provide in this proposal 4 -- this bill, a middle ground, where a jury or 5 a judge may determine that the person is 6 mentally ill but at the same time was not so 7 incapacitated that he or she did not know the 8 consequences of the act involved; and by so 9 doing, that person would go to a prison and 10 serve a sentence commensurate with the act 11 involved, as similar to any other defendant in a 12 similar case. 13 However, there are differences. 14 First, that person would be placed in an 15 institution, in a Department of Correction 16 facility, and we have seven of them in New York 17 State, that provide mental health care, that are 18 associated with mental health clinics. 19 Secondly, when that person, 20 assuming that he or she would be eligible for 21 probation -- parole, rather -- the condition of 22 parole would be that during that period of 23 parole the individual would be required as an 3003 1 outpatient to undergo ongoing psychiatric care. 2 Now, in a crime or in an 3 incidence where probation -- five years, which 4 is quite common -- would be given is the 5 sentence, during that period of probation, this 6 bill mandates that psychiatric care be part of 7 that person's regimen during that five-year 8 period. 9 And so the difference are quite 10 clear. We think that this would add a far 11 greater degree of common sense to what has 12 become in too many instances a matter of 13 confusion, a matter where the public has 14 demonstrated -- and sometimes with, in my view, 15 good reason -- dissatisfaction with how the law 16 is being applied. 17 It would facilitate many 18 pleadings, avoid many trials. It would give 19 juries and judges an opportunity of doing what 20 they would rather do. That, in essence, is the 21 bill. 22 ACTING PRESIDENT KUHL: Senator 23 Leichter. 3004 1 SENATOR LEICHTER: Would Senator 2 Padavan yield, please? 3 SENATOR PADAVAN: Yes. 4 ACTING PRESIDENT KUHL: Senator 5 Padavan yield? Senator does. 6 SENATOR LEICHTER: Yes, Senator. 7 Thank you for a very complete explanation. 8 I'm not clear what happens to 9 those cases where presently the judge finds that 10 the defendant charged with a crime is incapable 11 of actually standing trial. Does your bill 12 address that situation? 13 SENATOR PADAVAN: No. As I said 14 at the very outset, Senator, neither the 15 incompetency determination, which is usually a 16 recommendation to a judge prior to anything 17 having taken place, nor is the insanity defense 18 violated by this bill. We do not eliminate 19 either. So those two potential results still 20 remain on our books. 21 SENATOR LEICHTER: In other 22 words, if I understand what you are saying is 23 that you are adding a new defense? 3005 1 SENATOR PADAVAN: That's correct. 2 SENATOR LEICHTER: Somebody who 3 may to some degree or extent understand the 4 nature of his or her acts but nevertheless, was 5 acting under, let's say, a compulsion or some 6 other recognized ground of mental defect, that 7 you are -- for that person, you are setting up 8 this defense? 9 SENATOR PADAVAN: Right. 10 SENATOR LEICHTER: But you would 11 still have the insanity defense for somebody who 12 is totally bereft of all their senses and 13 incapable of understanding the charges and so 14 on? 15 SENATOR PADAVAN: Yes. That is, 16 in my view, the more appropriate way to go on 17 this issue. I think you would accept the fact 18 that there are people whose degree of mental 19 incompetence makes them totally incapable of 20 knowing what their act is all about. 21 There have been, obviously, 22 stories written on this, the most famous being 23 Steinbech's "Of Mice and Men," where you recall 3006 1 Lenny held that rabbit in his hand, squeezing 2 it, not knowing that he was killing it. Later 3 on, he did that to a young girl. 4 Those kind of situations still 5 will exist, still should be provided for in 6 law. And our proposal here in this bill does 7 not in any way, shape or form eliminate that 8 potential. 9 SENATOR LEICHTER: Senator, if 10 you would yield to another question, please? 11 ACTING PRESIDENT KUHL: Senator 12 continues to yield. 13 SENATOR LEICHTER: In the event 14 where somebody pleads insanity in the 15 traditional sense as it can be done now, could 16 the judge then charge that the jury could 17 consider that they could find him "not guilty by 18 reason of insanity" or could find him "guilty 19 but mentally ill"? 20 SENATOR PADAVAN: That's 21 correct. 22 SENATOR LEICHTER: Thank you. 23 SENATOR PADAVAN: And while I'm 3007 1 up, Mr. President, let me also indicate to those 2 here that this legislation was supported by the 3 former Attorney General Robert Abrams, who cited 4 the need to make changes in the insanity defense 5 and, as he stated, "to restore the balance 6 between the State's obligation to protect its 7 citizens, the rights of an individual defendant 8 and society's moral obligation to ensure that 9 those who are truly inflicted by mental 10 disorders are not unjustly blamed and punished 11 for their criminal conduct." I think that 12 responds in part to your questions. 13 It is also supported by the New 14 York State Law Enforcement Council, which, as 15 you know, is comprised of the district attorneys 16 here in New York State, and the District 17 Attorneys Association, the New York State 18 Association of Chiefs of police, the New York 19 State Sheriffs Association, the Criminal Justice 20 Coordinator of New York City, and the Citizens' 21 Crime Commission, all of whom support this 22 legislation. 23 ACTING PRESIDENT KUHL: Is there 3008 1 any other Senator wishing to speak on this 2 bill? 3 Senator Dollinger. 4 SENATOR DOLLINGER: Mr. 5 President. Will the sponsor yield to a 6 question? 7 SENATOR PADAVAN: Yes. 8 ACTING PRESIDENT KUHL: Senator 9 Padavan van, do you yield? Senator does. 10 SENATOR DOLLINGER: Thank you, 11 Senator. 12 This bill, because it tinkers 13 with, to some extent, for want of a better term 14 the means rea component of our criminal law 15 system, raises some issues for me. 16 Could you tell me, if you know, 17 how often is the insanity defense invoked in New 18 York State, and how often do you anticipate that 19 this defense would actually be used or this 20 option would be selected by a jury in this 21 state? Is there any way to predict that, 22 Senator? 23 SENATOR PADAVAN: Senator, I 3009 1 cannot give you off the top of my head, although 2 I'm sure this is available, statistics on how 3 often the insanity defense is raised. 4 But we have two cases right now 5 that I read about, one a man out on Long Island 6 -- I think his name is Rifken -- who supposedly 7 killed 18 women. We have another individual on 8 Long Island, as you know, was involved in the 9 Long Island Rail Road shooting. In both 10 instances, if I read the papers correctly, their 11 defense will be insanity. 12 So, obviously, it's not something 13 that happens with great rapidity, but it does 14 happen; and when it does happen, it gets a great 15 deal of attention; and in so doing, if not 16 handled properly, can undermine, I think, the 17 public's confidence in our criminal justice 18 system. I think this measure would do an awful 19 lot to help that, to prevent that from 20 happening. 21 ACTING PRESIDENT KUHL: Senator 22 Dollinger. 23 SENATOR DOLLINGER: Yes, Mr. 3010 1 President. Just one other question, if the 2 sponsor will yield. 3 I note, Senator, that I guess the 4 Department of Mental Health -- the Office of 5 Mental Health and the Alliance for the Mentally 6 Ill of New York State have opposed this bill, 7 and at least there is a suggestion in the Office 8 of Mental Health memo that this would create an 9 entitlement to psychiatric assistance as part of 10 the Department of Corrections or through OMH. 11 I just would be interested in the 12 sponsor's response to that. 13 SENATOR PADAVAN: Senator, over a 14 period of years, particularly when I chaired the 15 Senate Committee on Mental health, there were 16 commissioners who I spoke to who were in support 17 of this legislation, and there were 18 commissioners who were opposed to it. So, I 19 don't have that particular memo in front of me, 20 but I accept what you say as a matter of fact. 21 I've talked to psychiatrists some 22 of whose entire practice centers about this 23 issue and, in the main, most of them if not all 3011 1 of them support this measure. 2 I really can't respond to your 3 question. Obviously, this is something that's 4 always been at issue. As I indicated earlier, I 5 brought this bill up many years ago, four times, 6 and the last time was 1985. But seventeen other 7 states now have this -- the benefit of this 8 statute. The Supreme Court in the Montana case, 9 reviewed to the extent of allowing the state to 10 eliminate the insanity defense entirely, which I 11 again repeat, we were not doing nor would I want 12 to do it. 13 So, obviously, an awful lot has 14 happened in the last decade or so on this issue 15 that brings us to the point we're at today and, 16 hopefully, we will pass it, and it will become 17 law in New York State. I think it's long 18 overdue. 19 ACTING PRESIDENT KUHL: Senator 20 DeFrancisco. 21 SENATOR DeFRANCISCO: This is 22 probably the first time I've risen in the 23 chambers where I really don't know how I'm going 3012 1 to vote, but I do want to mention a couple of 2 things that I think are relevant in people's 3 determination in how to vote on this particular 4 bill, and maybe I can clear up my own mind as I 5 go through this process. 6 That additional option that a 7 jury would have is not another defense; it's 8 another option. It's not a defense raised by 9 someone. Insofar as if you are found "guilty 10 but mentally ill," you are still guilty and 11 subject to the same prison term, but the first 12 part of the prison term is served with mental 13 health treatment being provided. 14 Now, I've tried a lot of cases on 15 both sides in the criminal justice system as 16 well as the civil courts, and it seems to me, 17 although practically it makes a lot of sense 18 when you hear the logic behind it -- seems to me 19 this is another way to eliminate in practical 20 terms the insanity defense. And the reason I 21 say that is if someone plead "not guilty by 22 reason of insanity," it's going to be a very 23 difficult task for a jury to say "not guilty by 3013 1 reason of insanity" when there is another option 2 which will satisfy their mental process that, 3 "Well, we really are giving mental health 4 treatment to this individual but while he or she 5 serves the entire sentence." 6 And that's to me a real problem, 7 because once the jury has that option it's a 8 good compromise that really puts the person away 9 for the same time as if the person was guilty 10 completely without this situation, where there's 11 this not guilty by reason of insanity. 12 So, I've got a feeling - 13 although logically this makes sense, I just have 14 a feeling and this should be considered by those 15 on this vote that as a practical matter it's 16 going to eliminate or virtually eliminate the 17 practical finding of "not guilty by reason of 18 insanity," in those marginal cases, rather than 19 giving the benefit of the reasonable doubt to 20 the defendant is going to give benefit of 21 reasonable doubt to the compromise; and, thereby 22 putting the person in jail for the full length 23 of time, maybe the first part of which is 3014 1 getting medical treatment. 2 And what bothers me about that in 3 light of the Lenny example, Lenny under those 4 circumstances, from "Mice and of Men" would be 5 in jail his entire life; and maybe the first few 6 years might be some mental treatment, but that's 7 the likely result of any case where you have 8 this option. 9 And I would like to see, quite 10 frankly, before voting on this what the 11 empirical data shows in those seventeen states, 12 whether what I suspect is true actually became 13 true as that statute was being implemented. 14 So I just wanted to discuss that, 15 and I'll figure out how to vote after I hear the 16 rest of the debate. 17 ACTING PRESIDENT KUHL: Senator 18 Waldon. 19 SENATOR WALDON: Thank you very 20 much, Mr. President. Would the sponsor yield 21 for a question or two? 22 ACTING PRESIDENT KUHL: Senator 23 Padavan, do you yield? 3015 1 Senator does. 2 SENATOR PADAVAN: Pardon me? 3 SENATOR WALDON: Would you yield 4 for a question? 5 SENATOR PADAVAN: Yes. 6 SENATOR WALDON: Senator, you 7 said earlier that seventeen states have adopted 8 similar legislation. 9 SENATOR PADAVAN: Yes. 10 SENATOR WALDON: Can you tell us 11 the last year that this legislation or 12 legislation of a similar nature was passed in 13 another state? 14 SENATOR PADAVAN: 1985. 15 SENATOR WALDON: '85? My records 16 show '84, but I'll accept that. 17 SENATOR PADAVAN: The last year 18 it was passed in this house? 19 SENATOR WALDON: No. The last 20 year it passed and became law in another state. 21 SENATOR PADAVAN: I have a list 22 here in front of me, Senator. If you give me a 23 moment, I will read down the dates. Alaska 3016 1 1982. California 1984. Delaware 1982. Indiana 2 1983. I guess the last state that adopted this 3 was 1985 of the seventeen that I've got listed. 4 SENATOR WALDON: Thanks, 5 Senator. 6 May I ask another question, Mr. 7 President? 8 ACTING PRESIDENT KUHL: Senator 9 Padavan, do you continue to yield? 10 SENATOR PADAVAN: Yes. 11 ACTING PRESIDENT KUHL: Senator 12 does. 13 SENATOR WALDON: Senator, are we 14 not asking the jury to make the decision with 15 this legislation as to when someone is in need 16 of psychiatric assistance? Doesn't this happen 17 with this legislation that that decision is made 18 by the jury as opposed to being made by medical 19 professionals? 20 SENATOR PADAVAN: In every case 21 involving a defendant's use of the insanity 22 plea, psychiatric testimony, pretrial and during 23 the trial, as you know as an attorney -- I 3017 1 believe you are an attorney, are you not? I'm 2 not. That's why I'm asking you -- is part of 3 the procedure. 4 So the issue of psychiatric 5 impairment is brought to the attention of the 6 jury by experts during the course of the trial. 7 Their determination will be as laymen, as most 8 of them are. "Acquittal by reason of insanity," 9 "guilty" or, under this proposal a third 10 alternative, "guilty but mentally ill." 11 Should they decide on that third 12 alternative, then mandated would be mental 13 health care. But the issue of mental impairment 14 would become part of the trial. Frequently, 15 there will be psychiatrists representing the 16 defense, a psychiatrist representing the 17 prosecutor. 18 Quite frequently, in those cases 19 that I've read about, the juries usually become 20 confused as to the level of impairment, the 21 degree of impairment, the efficacy of the 22 insanity plea. Obviously, they do reach out. 23 Senator DeFrancisco is correct; they do reach 3018 1 out for an appropriate middle ground -- and I 2 emphasize the word "appropriate"-- and this 3 would provide it. 4 SENATOR WALDON: Thank you. 5 Mr. President. If I may, I have 6 two more questions, if the Senator would 7 continue to yield. 8 ACTING PRESIDENT KUHL: Senator 9 Padavan, continue to yield? 10 SENATOR PADAVAN: Yes. 11 ACTING PRESIDENT KUHL: Senator 12 does. 13 SENATOR WALDON: Senator, can you 14 tell us in New York State over the last two or 15 three years what percentage of people who have 16 been tried under the circumstances covered by 17 your proposed legislation were actually 18 affected, meaning in 1990, how many people 19 qualified under this? 20 SENATOR PADAVAN: There is no way 21 I can answer that question, Senator. What I 22 believe you are asking is how many people 23 claimed the insanity defense, which would be the 3019 1 first part of the question. Then you are asking 2 how many would be covered by this statute, and 3 there's no way to answer that. This would be a 4 determination made by a jury. Items totally 5 prospective. 6 SENATOR WALDON: I apologize for 7 my error in not appropriately phrasing the 8 question. Let me try again. If I may, Mr. 9 President? 10 ACTING PRESIDENT KUHL: Please 11 do, Senator. 12 SENATOR WALDON: In the State of 13 New York in 1990, how many people were found not 14 responsible who might also qualify for the 15 legislation that you're proposing? 16 SENATOR PADAVAN: You say "not 17 responsible," incompetent to stand trial? 18 SENATOR WALDON: Yes. 19 SENATOR PADAVAN: I do not know. 20 SENATOR WALDON: Last question, 21 if I may, Mr. President. 22 ACTING PRESIDENT KUHL: 23 Certainly, Senator. 3020 1 SENATOR WALDON: Senator Padavan, 2 can you tell us, please, in your own words what 3 might be the fiscal impact on OMH, Office of 4 Mental Health, if this legislation became law 5 and it took the control of the treatment of 6 these persons in hospital facilities out of the 7 hospital facilities and into the prison system? 8 SENATOR PADAVAN: What would be 9 the impact if they were taken out of the 10 hospitals and put in the prison system? 11 SENATOR WALDON: Yes. That's 12 what is going to happen here. 13 SENATOR PADAVAN: Yes, except if 14 you recall what I said earlier, we have seven 15 correction facilities in this state that have a 16 direct relationship with OMH clinics. OMH still 17 would provide and does today the mental health 18 care for prisoners in general. We have many 19 people who are incarcerated who have need of 20 mental health care irrespective of anything 21 we're talking about here today; either they had 22 it when they were going in or they developed it 23 while they are there. So I would say there's 3021 1 really no impact on OMH should this become law. 2 SENATOR WALDON: Thank you very 3 much, Senator Padavan. 4 Mr. President. When I have an 5 opportunity, I would like to speak on the bill. 6 ACTING PRESIDENT KUHL: Senator 7 Waldon on the bill. 8 SENATOR WALDON: Thank you very 9 much. For the edification of my colleagues, in 10 1990, 25 persons qualified, as I understand this 11 information, under the proposed legislation, in 12 '91, 23; '92, 24; and in '93, 33. 13 I disagree with Senator Padavan, 14 my colleagues. If you pass this legislation, 15 there will be a dramatic impact on OMH and its 16 ability to devise its budget, which is not a 17 statement from Al Waldon but a statement from 18 the leadership of the Office of Mental Health. 19 Thank you very much, Mr. 20 President. 21 ACTING PRESIDENT KUHL: Senator 22 Seward on the bill. 23 SENATOR SEWARD: Thank you, Mr. 3022 1 President. 2 My colleagues. First of all, I 3 want to recognize Senator Padavan for his very 4 persistent efforts to bring some logic and 5 common sense to this whole area of the law over 6 a period of a number of years, and I have long 7 supported this type of legislation, and I'm very 8 pleased this year to be joining Senator Padavan 9 in co-sponsoring this measure before us. I also 10 want to commend my colleagues in this house who, 11 over a period of time, have actually passed this 12 type of legislation. 13 Mr. President. I want to tell 14 you and my colleagues why we must pass this 15 measure again this year, and that I am very 16 hopeful that it will be signed into law this 17 year. 18 There have been some statistics 19 thrown around here today and some very keen 20 thoughts provided, but I would just like to take 21 a moment to personalize this type of 22 legislation. 23 In an incident right in my 3023 1 district on October 20, 1992, in the small 2 community of New Berlin in rural Chenango 3 County, a teenager, April Dell'Olio lured her 4 boyfriend, David Eccleston, to a secluded area 5 before school and stabbed him to death. In 6 fact, she stabbed David 22 times. The murder 7 was planned in advance -- this all came out in 8 the trial -- she contrived the opportunity and 9 she also tried to cover her tracks. 10 Leaving David dead, she went on 11 to school that day. The family grieved the 12 death of a young man killed for apparently what 13 turned out to be a jealousy over a wilting 14 teenage romance. 15 What happened after she was 16 arrested, though, caused even more pain and 17 anguish to David's mother, who is in the gallery 18 today, his younger brother, his family and 19 friends, in that community in which he was 20 raised. The verdict in this case, and in the 21 end, was "not responsible by reason of mental 22 disease or defect." 23 I think it's unthinkable. But 3024 1 under the circumstances, the judge imposed the 2 only sentence that he could for this outrageous 3 crime and that was five years of outpatient 4 therapy. Five years of outpatient therapy for 5 the murder of a young man in the most brutal and 6 callous way. 7 I don't think the verdict can be 8 blamed on the jury or the judge or even the 9 defense's use of some very confusing psychology 10 and that type of testimony. I think the verdict 11 was the result of an insanity defense law that 12 we have in this state that places the jury in an 13 all or nothing situation. 14 If there is some evidence of 15 mental disorder and you couple that with a very 16 confusing and complex and lengthy oral 17 instruction from the trial court to the jury, it 18 invariably -- and very often, I should say, 19 leads to the insanity verdict; in that the 20 condition is deemed to be temporary in nature, 21 the defendant walks free, proving that in New 22 York State, in this particular case, you can get 23 away with murder. 3025 1 Now, the sentencing judge, a 2 Judge Kevin Dowd of Chenango County, said at the 3 time of sentencing, and I will quote Judge 4 Dowd, "I have never in my entire legal career 5 had a case with more disturbing overtones than 6 this one. A young man is dead, and I'm 7 hamstrung by the law that treated with a 8 psychiatric equivalent that April had a bad hair 9 day on October 20, 1992." 10 Now, my colleagues, I'm not here 11 to retry this case or to suggest that we should 12 change the law because of one single case, but I 13 do stand here to say that this case 14 demonstrates, very clearly in my mind, that 15 there is a very obvious omission in New York 16 State law that we need to correct and to fill. 17 Now, the bill before us allows 18 the jury to say very simply, yes, the killer or 19 the offender, whatever the case may be, the 20 killer was suffering from a mental disorder at 21 the time of the crime, but it was not to such an 22 extent that the defendant is excused from 23 accountability and responsibility for a very 3026 1 serious crime against an individual or society 2 as a whole. 3 The bill simply provides a 4 meaningful alternative, the middle ground, as it 5 has been described here today, for the juries to 6 choose instead of being forced to choose between 7 "guilty beyond a resonable doubt" and "not 8 guilty by reason of mental disease or defect." 9 It seems to me that the heart of 10 the matter is that laws that diminish respect 11 for our courts and our criminal justice system 12 or those that contribute to negative public 13 perceptions of the legitimacy of the law demand 14 our very serious attention. 15 Mr. President. This bill before 16 us does not radically overhaul the criminal 17 justice system or the insanity defense as some 18 might suggest. It leaves the insanity defense 19 in place, yet it does introduce an element of 20 common sense and logic to the combination of the 21 law and psychiatry. So, most important, it will 22 assure accountability for those who are, in 23 fact, responsible for their actions. 3027 1 Because of the local case that I 2 have outlined for you today, in my area of the 3 state, this legislation before us is being 4 called the David Eccleston Act, not only because 5 of that celebrated case but also because of the 6 tireless efforts toward reform of David 7 Eccleston's mother and family and other close 8 friends in that community, their tireless 9 efforts to push for these types of reforms in 10 our New York State law. 11 So, Mr. President, for the sake 12 of a public that sees our -- very often sees our 13 criminal justice system as all criminal and no 14 justice, for the sake of grieving families like 15 the Eccleston family who will suffer a lifetime 16 of emptiness and sorrow, and for the sake of 17 justice of all concerned and for the sake of 18 order in our society and a civilized culture 19 where we should be rewarding virtue and 20 penalizing wrongdoing, I would urge my 21 colleagues to vote in favor of this legislation 22 here today. 23 ACTING PRESIDENT KUHL: Senator 3028 1 Gold. 2 SENATOR GOLD: Mr. President. I 3 don't think it's any secret that I have a 4 tremendous amount of respect for Senator Seward; 5 and I think as everyone else in the chamber, we 6 listened very carefully to what he had to say, 7 and I understanding exactly where is coming 8 from. 9 There is -- there is a movie we 10 talk about every once in awhile, "Absence of 11 Malice," and at the end there is that wonderful 12 scene where the investigator from Washington is 13 up and he is talking to everybody, and when they 14 figure out how smart everyone is, there's that 15 line where Paul Newman says, "Yes, everybody in 16 the room is smart, but" and then he mentions the 17 name of this girl and says, "but she's dead. 18 Who do I go to see about that?" And the answer 19 is, "Well, no one. I wish there was." 20 Senator Seward, I don't know what 21 to say to the Eccleston family, and we wonder in 22 this Legislature sometimes when these situations 23 happen, what can we do, and unfortunately the 3029 1 answer is: As much as we have power, we don't 2 have the power to recreate life, as everyone 3 knows, and there is nothing we can do. 4 But we all know, as professionals 5 in this business, that very often bad cases make 6 bad law. And I didn't sit in that courtroom, 7 and I don't know what went into the jurors' 8 minds or whatever, but from your perspective, 9 Senator Seward, as you have explained it very 10 articulately, it may be a case where a jury was 11 wrong, I don't know. Juries are wrong from time 12 to time. 13 Senator Volker has asked us on a 14 number of occasions to pass a bill that would 15 alter the way certain things happen in the grand 16 jury because one assistant district attorney in 17 Buffalo made a mistake on one day. And 18 interestingly enough, every time that we debate 19 the bill, we still go back to that one case. 20 D.A.s, ADA's, aren't making that mistake any 21 more; and as we, who have opposed that bill, 22 have said, we shouldn't just shake up the system 23 because there was one mistake. 3030 1 Unquestionably, there have been 2 people who have been subjected to a jury trial, 3 and the juries under our existing law have found 4 them "not guilty because of mental defect," and 5 we can in fact, apparently, come up with those 6 numbers, and Senator Waldon was very, very 7 accurate in pointing out the really small number 8 that are involved. When he said, for example, 9 25 in the year 1990, there were 202,000 criminal 10 dispositions in this state, and 25 people were 11 found by juries to not be responsible. That's 12 something like, what is it, one tenth of a 13 percent? Infinitesimal amount if you want to 14 look at the numbers, and so it is in each year 15 that the number where this happens is really 16 extraordinarily low. 17 Now, the one figure we don't have 18 which would be fascinating, and much larger I'm 19 sure, are the number of cases where people have 20 gone into court claiming this defense and juries 21 have said no. Now, I make that point because 22 it's something that we sometimes don't think 23 about. We do know and we do hear about a case 3031 1 where an individual is released because a jury 2 makes the finding, but we don't hear about the 3 others very often because it's just another 4 convicted person. 5 I don't think there's anybody 6 here that doesn't understand the very, very 7 strong emotions that this whole situation brings 8 about. I have great respect for my colleague 9 from conventions, Senator Padavan, and of course 10 I admire his tenacity. But the reason that this 11 bill becomes so very important of our whole 12 system of justice, and that has always been that 13 people with criminal intent and criminal 14 responsibility are found guilty; and where there 15 is no criminal intent, things may happen, people 16 may be responsible, but we have determined that 17 they were not guilty of crime. And in the 18 insanity situation, the issue has always been 19 did the person have the mental capacity to be 20 able to have that intent to understand right or 21 wrong or whatever the other parts of that test 22 are. 23 And so if we, in fact, were to go 3032 1 along with this -- and I think Senator Waldon 2 very well pointed out that it's been almost ten 3 years since any state has jumped into this 4 area. The question would then be, are we going 5 to take people who do not have the capacity, 6 according to a jury now, to determine criminal 7 intent, do not have the capacity to make those 8 criminal decisions and find them, nonetheless, 9 quilty of a crime? Because that's what you are 10 doing "guilty but mentally ill." 11 It is a very, very tough road in 12 a situation where less than 1/100 of a percent 13 of cases in New York are affected. And I might 14 say that out of the less than 1/100 of one 15 percent, we're not even claiming the juries are 16 wrong in those cases. 17 Now, in the case that Senator 18 Seward spoke about, number 1, the jury may have 19 been wrong. It may have been the wrong thing to 20 do. I don't know whether the other 23 or 24 21 cases that year were wrong or not. 22 But I would respectfully suggest 23 -- and I understand that the family is here, 3033 1 and I certainly wouldn't want them to think that 2 those of us who may not agree with the change in 3 the law do not have compassion for what happened 4 that day, because that's not what we're debating 5 here. But we are basically in a classic 6 situation being asked to change the law because 7 of one or two situations out of what is 8 literally hundreds of thousands of cases that 9 are brought before our courts. 10 The Office of Mental Health has 11 filed in opposition to this. The Alliance for 12 the Mentally Ill has filed in opposition to 13 this, and I would respectfully suggest to my 14 colleagues that we are here to do the best we 15 can in terms of framing laws, and it is 16 unrealistic to suggest that we are not human 17 beings, that we do not bleed, that we do not 18 have compassion and emotions for individuals in 19 individual case. But I think that we are called 20 upon every day to look further than that in 21 terms of developing a philosophy of our legal 22 system, and this is one of the situations where 23 that delicate balance comes into play. 3034 1 ACTING PRESIDENT KUHL: Senator 2 Padavan. 3 SENATOR PADAVAN: Mr. President. 4 Senator Gold and as did Senator Waldon pointed 5 out, and properly so, that the number of 6 instances where the insanity defense is raised, 7 successful or otherwise but even raised, are 8 very limited. However, I would like to quote 9 for your information a statement in the Attorney 10 General's report, a rather lengthy report that 11 he put out a number of years ago -- when I talk 12 about the Attorney General, I am referring to 13 Robert Abrams -- where he addresses that issue. 14 He says, "Some have argued in 15 support of the insanity defense that the 16 relatively small percentage of criminal cases 17 resulting in insanity acquittals should not give 18 rise to undo concern. This argument totally 19 ignores the vital relationship between 20 legitimacy in the law and public confidence in 21 the legal process." 22 I think this is what was being 23 said earlier by Senator Seward. It's not the 3035 1 number of cases that are at issue here, 2 successful or not, but it is the significance 3 that those cases have in the mind of the public 4 when they view the legal process and all the 5 publicity that it gets, and I think that should 6 be understood here. 7 Senator Gold also mention is that 8 there are far greater number of cases where the 9 insanity defense was rejected and that person 10 went to jail, period. 11 I ask you to recall the question, 12 even if the jury was uncertain of the degree of 13 mental incapacitation, wouldn't it be far better 14 that that defendant, when he or she went to 15 prison, was mandated to receive some level of 16 mental health care through the satellite clinics 17 which we already have in place in New York 18 State; and should that person go on parole as 19 many do, that that mental health care would 20 follow the individual so that he or she would 21 not perhaps be prone to revert back to a former 22 state and commit yet another crime? 23 Wouldn't it be far better to have 3036 1 such a mechanism in place for, as Senator Gold 2 properly states, the greater number of 3 individuals where in the course of a trial the 4 insanity defense was raised? And keep in mind 5 the guilty but mentally ill opportunity provided 6 for in this bill could only be utilized when the 7 insanity defense is raised, not just in any case 8 but in those number. 9 Final, let me comment about the 10 memorandum from the Office of Mental Health that 11 was referred to. They say that the insanity 12 defense -- it's on page 2 of their memo -- is 13 rarely used, and they are right. If it's rarely 14 used, I fail to understand the logic of their 15 contention that it would cost such a great deal 16 of money for them to provide the care and 17 treatment that a prisoner who was found "guilty 18 but mentally ill" would require, because those 19 individuals would have had to be a person who 20 was tried having claimed reason of insanity as a 21 defense. There is a contradiction there that 22 I'm sure you will accept as a matter of fact 23 simply reading the memo. 3037 1 ACTING PRESIDENT KUHL: Senator 2 Dollinger. 3 SENATOR DOLLINGER: Mr. 4 President. Was Senator Padavan concluding on 5 the bill? If so, I will hold my comments to 6 explain my vote. I don't mean to usurp his - 7 ACTING PRESIDENT KUHL: Senator 8 Padavan was the last speaker, Senator Dollinger. 9 SENATOR DOLLINGER: I'll comment 10 at the - 11 SENATOR GOLD: Last section. 12 ACTING PRESIDENT KUHL: Clerk 13 will read the last section. 14 THE SECRETARY: Section 3. This 15 act shall take effect on the 90th day after it 16 shall have become law. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the roll. 20 ACTING PRESIDENT KUHL: Senator 21 DeFrancisco to explain his vote. 22 SENATOR DeFRANCISCO: After 23 listening to the debate, I think these issues 3038 1 become much clearer in my mind. It's not an 2 easy issue to deal with. It's an emotional one 3 and an important one. 4 In fact for many, many years the 5 M'Naughten rule, since the late 1800's, has been 6 the rule and we have not been able to come up 7 with one better in over a hundred years, and it 8 results in very, very difficult problems on many 9 occasions. 10 Right now, when a defendant 11 raises the defense of not guilty by reason of 12 insanity, there are two options that the jury 13 can take, guilty or not guilty. By saying 14 "guilty," implicitly the jury is saying there 15 may be something wrong with this person, whether 16 you call it mentally ill or whatever you want to 17 call it, but not sufficient enough to meet the 18 M'Naughten rule, not sufficient enough to 19 relieve the person from responsibility. 20 If this bill became law and you 21 raised the defense of "not guilty by reason of 22 than sanity," there are three options, guilty, 23 guilty, or not guilty. And the two first guilty 3039 1 verdicts are guilty, straight guilty, guilty by 2 reason of mental illness, and they both carry 3 with it the same sentence. Both the same 4 sentence. Maybe the first part of that sentence 5 in the second option is in a mental institution 6 or at a facility that treats the person for 7 mental illness. 8 And I think that is very radical 9 change in the jurisprudence of this state, and I 10 think what would happen, in my humble opinion, 11 is that what is held out to compromise is really 12 just a second option to find the defendant 13 guilty. And for that reason, unless I can see 14 statistics that these bills come back to us that 15 this has not happened in other states, that it's 16 really in effect abolished the "not guilty by 17 reason of insanity," I vote no. 18 ACTING PRESIDENT KUHL: Senator 19 DeFrancisco in the negative. 20 Senator Dollinger to explain his 21 vote. 22 SENATOR DOLLINGER: Mr. 23 President. This bill poses for me a whole 3040 1 series of very, very difficult questions, and I 2 applaud Senator Padavan for bringing the issue 3 forward. I think the comments of Senator 4 DeFrancisco, measured and tempered as they are, 5 I think are right on the nose. I have sort of 6 weighed whether I should vote yes or no on this 7 bill and pitched it back and forth. 8 I would like to make one comment 9 on something Senator Seward said; and that is, 10 too often, at least in my experience in the 11 criminal justice system the tendency on the part 12 of the public is to view anytime that someone is 13 tried for a crime and they are either acquitted 14 or if their case happens to be dismissed in the 15 pretrial suppression process because of the 16 court concluding that materials were improperly 17 seized oral statements improperly obtained, 18 everyone is convinced that someone got away with 19 something, "That someone got off," as I think 20 it's often put. 21 I think when we look at who got 22 off, we have to look at the important, if not 23 vital principles that are vindicated in that 3041 1 process, whether it's someone's constitutional 2 rights, the constitutional rights that were the 3 foundation of this country, the constitutional 4 rights that are enshrined in this constitution 5 of this state, important and significant as they 6 are. 7 But I think the other thing that 8 we have done in this state is we have taken our 9 entire criminal justice system and based it on a 10 theory of intent. Look at the statutes that 11 we've passed, that this body has passed that are 12 part of our law, and you will see that we 13 measured the degree of a crime oftentimes by the 14 intent that goes with that crime, intent to 15 murder, intent to kill is a homicide, it's 16 punished as a homicide. If you can't prove 17 intent, we have criminally negligent homicide, 18 we have reckless conduct. 19 All of those are based on the 20 theory that you are responsible for what you do 21 because your mind forms the idea and the intent 22 to do it, the mens rea concept that we learn 23 about in our first year of law school. It seems 3042 1 to me that this bill seeks to create that fine 2 line in the difference between the insanity 3 defense and the idea of culpability. 4 While I applaud Senator Padavan 5 for bringing the issue to the fore, it seems to 6 me that we have not fine tuned our analysis from 7 psychiatrists and psychologists to a point where 8 they will be able, in my judgment, to make that 9 very, very difficult differentiation between 10 "guilty," "not guilty by reason of insanity" 11 and this middle ground that I don't believe at 12 this point the courts of this state can really 13 deal with and the evidence will be able to be 14 properly dealt with by juries. 15 I agree with Senator 16 DeFrancisco. The notion may be confusing to the 17 jury. We may be weighing it more heavily in 18 favor of guilty. I think that those who are 19 mentally ill and mentally not responsible are 20 given the benefit of a reasonable doubt in this 21 case. 22 I will vote no. 23 ACTING PRESIDENT KUHL: Senator 3043 1 Dollinger in the negative. 2 Senator Seward to explain his 3 vote. 4 SENATOR SEWARD: Yes. Thank you, 5 Mr. President. 6 During the debate this afternoon, 7 there have been many references to the other 8 states that have, in fact, moved forward and 9 passed "guilty but mentally ill" legislation, 10 some seventeen across the country. It's been 11 pointed out that no new states have been added 12 to this list in a few years. But I also want to 13 point out that neither have there been any 14 states stepping away from the "guilty but 15 mentally ill" concept. In fact, some states 16 have even gone much further; and we've seen, as 17 a result, some Supreme Court action in a couple 18 of those states very recently. 19 And I would point out in those 20 seventeen other states, these bills have been 21 challenged in the courts in those states on a 22 variety of grounds, whether it's that the 23 "guilty but mentally ill" is cruel and unusual, 3044 1 for due process, equal protection, many other 2 grounds where the "guilty but mentally ill" 3 legislation in those states has been 4 challenged. And, in fact, in each case, the 5 "guilty but mentally ill" legislation in those 6 other states has been upheld, and I think that 7 says a great deal in terms of the 8 appropriateness of this legislation. 9 Believe me, as a co-sponsor of 10 this measure and as close as I have been to a 11 local situation as I have outlined earlier, 12 believe me, I would be the last person that 13 would want to inappropriately put someone behind 14 bars and throw away the key or any of those 15 situations. And this legislation does not do 16 that. It simply says that in the cases where 17 someone is deemed to be guilty but mentally ill 18 we should in fact take care of, treat the mental 19 problem that led that person to commit the 20 crime. Let's treat the problem and then in fact 21 if they recover, they would serve out whatever 22 remaining time on their sentence in a 23 correctional facility. 3045 1 We're not trying to put someone 2 inappropriately behind bars. We're trying to 3 give someone who has committed a serious crime 4 the treatment they need, obviously need, protect 5 society from further ill, help that person 6 protect society, and I believe those are all 7 pluses, and that's why I'm supporting this 8 legislation. 9 ACTING PRESIDENT KUHL: Senator 10 Seward in the affirmative. Senator Marchi to 11 explain his vote. 12 SENATOR MARCHI: Yes. Mr. 13 President. That is a disturbing case, because 14 it is difficult to fault someone to come up with 15 the solution that's presented. But as I read 16 it, we have in section 330.21(a) "that the 17 defendant is guilty of a crime." 18 The word guilty is not 19 coextensive with the word responsibility. Guilt 20 implies a moral failure, a moral responsibility 21 which was offended. It is more could extensive, 22 the word "guilty", with a criminal intent, which 23 is essentially the basis of the M'Naughten rule. 3046 1 And then going on to (b) "That 2 defendant was suffering from mental disease or 3 defect but not to such an extent that he lacks 4 substantial capacity to know or appreciate 5 either:" 6 Now, what is substantial 7 capacity? "... to know or appreciate either: 8 The nature or consequence of his conduct... 9 Does the nature and consequence of his conduct 10 also carry with it the criminal intention to do 11 something wrong, mala in se -- not mala 12 prohibita, but mala in se. 13 Nature and consequence. If I 14 have a gun and I'm suffering under this 15 disability, I know the nature and consequence - 16 and I know the consequence of my act if I know 17 that if I pull the trigger that person is going 18 to drop dead, but it still does not establish 19 whether I had the criminal intent or not because 20 of a failure or a capacity to make a moral 21 judgment of the act that I am committing. 22 "...; or that his conduct was 23 wrong at the time of the commission of the 3047 1 crime." Now, we're getting down to the 2 essentials; that is, mala in se. Not mala 3 prohibita, but -- it may or may not offend mala 4 in se. Mala in se means that the act was 5 wrong. 6 When we go to the end on page 3 7 of the act, "As used in this section the term 8 "mentally ill" means a substantial disorder of 9 thought, mood, perception, orientation or memory 10 which grossly impairs judgment, behavior or 11 capacity to recognize reality or the ability to 12 meet the ordinary demands of life." So it would 13 seem to say that the person was not available or 14 incapable of earning the title guilty. 15 I believe what is sincerely 16 sought to achieve was to supply a pragmatic 17 answer, but in a -- but I believe that it does 18 fail in meeting the essentials, and perhaps it 19 might be, in a pragmatic sort of way, if we 20 really knew what happens. But even if we knew, 21 it still doesn't answer my problem with respect 22 to -- to establish the moral circumstances 23 surrounding the taking of a life or the 3048 1 commission of what would otherwise be a crime. 2 And by crime, I can only make that coequivalent 3 to the capacity to understand that the actor 4 here is perpetrating an action that comes under 5 the classification of mala in se, evil in and of 6 itself, and it can't accommodate some of these 7 other circumstances that would result in a 8 different disposition. 9 So for those reasons, I would 10 have to say no to this bill, but most perplexed 11 in so doing. 12 ACTING PRESIDENT KUHL: Record 13 Senator Marchi in the negative. 14 Announce the results. 15 Senator Leichter? In the 16 negative. 17 Announce the results. 18 THE SECRETARY: Those recorded in 19 the negative on Calendar Number 636 are Senators 20 Connor, DeFrancisco, Dollinger, Gold, Leichter, 21 Marchi, Mendez, Ohrenstein and Waldon. Ayes 22 46. Nays 9. 23 ACTING PRESIDENT KUHL: The bill 3049 1 is passed. 2 Clerk will continue to call the 3 controversial calendar. 4 THE SECRETARY: Calendar Number 5 654. 6 SENATOR NANULA: Mr. President. 7 ACTING PRESIDENT KUHL: Senator 8 Nanula. 9 SENATOR NANULA: I would like to 10 request unanimous consent to be recorded in the 11 negative on Calendar Number 744. 12 ACTING PRESIDENT KUHL: Without 13 objection, so ordered. 14 Senator Holland. 15 SENATOR HOLLAND: I would also 16 like to be recorded -- with unanimous consent, I 17 also would like to be recorded on the negative 18 on Calendar 558. 19 ACTING PRESIDENT KUHL: Without 20 objection, Senator Holland will be recorded in 21 the negative on Calendar Number 558. 22 THE SECRETARY: Calendar Number 23 654, by Senator Hannon, Senate Bill Number 277, 3050 1 an act to amend the Administrative Code of the 2 City of New York. 3 SENATOR CONNOR: May we get one 4 day on this? 5 SENATOR PRESENT: Lay it aside. 6 ACTING PRESIDENT KUHL: Lay the 7 bill aside for the day. 8 THE SECRETARY: Calendar Number 9 659, by Senator Seward. 10 SENATOR GOLD: May we lay it 11 aside for today, please? 12 SENATOR PRESENT: Lay it aside 13 for the day. 14 ACTING PRESIDENT KUHL: Lay the 15 bill aside for the day. 16 Senator Padavan. 17 SENATOR PADAVAN: May I be 18 recorded with unanimous consent in the negative 19 on Calendar 558. 20 ACTING PRESIDENT KUHL: Without 21 objection, so ordered. 22 Senator Present, that completes 23 the controversial calendar. 3051 1 SENATOR PRESENT: Mr. President, 2 any housekeeping? Mr. Cornell got everything 3 up-to-date? 4 ACTING PRESIDENT KUHL: Nothing 5 at the desk, Senator Present. 6 SENATOR PRESENT: Mr. President, 7 there being no further business - 8 SENATOR GALIBER: Mr. President. 9 ACTING PRESIDENT KUHL: Senator 10 Galiber. 11 SENATOR GALIBER: Could I have 12 unanimous consent to be voted in the negative on 13 636. 14 ACTING PRESIDENT KUHL: Without 15 objection, Senator Galiber is going to be 16 recorded in the negative on Calendar Number 636. 17 I believe that concludes it, 18 Senator Present. 19 Senator Present. 20 SENATOR PRESENT: Mr. President. 21 There being no further business, I move that we 22 adjourn until tomorrow at 3:00 p.m. 23 ACTING PRESIDENT KUHL: Senate 3052 1 stands adjourned until tomorrow at 3:00 p.m. 2 (Whereupon, at 4:56 p.m., Senate 3 adjourned.) 4 5 6 7 8