Monday, May 16, 1994

3536 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 May 16, 1994 10 2:52 p.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR CHARLES D. COOK, Acting President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 3537 1 P R O C E E D I N G S 2 ACTING PRESIDENT COOK: The 3 Senate will come to order. You all please rise 4 and join me in the Pledge of Allegiance. 5 (The assemblage repeated the 6 Pledge of Allegiance to the Flag.) 7 In the absence of a clergy, shall 8 we pause for a moment of silence. 9 (A moment of silence was 10 observed. ) 11 Reading of the Journal. 12 THE SECRETARY: In Senate, 13 Sunday, May 15th. The Senate met pursuant to 14 adjournment, Senator Farley in the Chair upon 15 designation of the Temporary President. The 16 Journal of Saturday, May 14th, was read and 17 approved. On motion, Senate adjourned. 18 ACTING PRESIDENT COOK: Hearing 19 no objection, the Journal stands approved as 20 read. 21 Presentation of petitions. 22 Messages from the Assembly. 23 Messages from the Governor. 3538 1 Reports of standing committees. 2 Reports of select committees. 3 Communications and reports from 4 state officers. 5 Motions and resolutions. 6 SENATOR SKELOS: Mr. 7 President. 8 ACTING PRESIDENT COOK: Senator 9 Skelos. 10 SENATOR SKELOS: Calendar Number 11 992 on the Second Reading Calendar, would you 12 star that bill. 13 ACTING PRESIDENT COOK: Bill is 14 starred. 15 SENATOR SKELOS: And on the Third 16 Reading Calendar, Number 818, would you lay it 17 aside for the day for amendments. 18 ACTING PRESIDENT COOK: Laid 19 aside for the day. 20 Senator DiCarlo. 21 SENATOR DiCARLO: I move the 22 following bills be discharged from their 23 respective committees and be recommitted with 3539 1 instructions to strike the enacting clause: 2 Senator Johnson, 5987-A. 3 ACTING PRESIDENT COOK: Bill is 4 recommitted. 5 SENATOR DiCARLO: Mr. President, 6 I wish to call up Senator Volker's bill, Print 7 Number 7518, recalled from the Assembly which is 8 now at the desk. 9 ACTING PRESIDENT COOK: Secretary 10 will read. 11 THE SECRETARY: By Senator 12 Volker, Senate Bill Number 7518, an act to amend 13 the Town Law, in relation to deadline for annual 14 audit to be completed. 15 SENATOR DiCARLO: Mr. President, 16 I now move to reconsider the vote by which this 17 bill was passed. 18 ACTING PRESIDENT COOK: Secretary 19 will call the roll. 20 (The Secretary called the roll on 21 reconsideration. ) 22 THE SECRETARY: Ayes 31. 23 ACTING PRESIDENT COOK: Bill is 3540 1 before the house. 2 SENATOR DiCARLO: Mr. President, 3 I now offer the following amendments. 4 ACTING PRESIDENT COOK: 5 Amendments received and adopted. 6 SENATOR DiCARLO: Mr. President, 7 on page 51, I offer the following amendments to 8 Calendar 855, and Assembly Print 7516, for 9 Senator Libous, and ask that said bill retain 10 its place on third reading. 11 ACTING PRESIDENT COOK: 12 Amendments received. 13 SENATOR DiCARLO: Mr. President, 14 on page 60, I offer the following amendments to 15 Calendar Number 485, for Senator Levy, Senate 16 Print Number 193-A, and ask that said bill 17 retain its place on third reading. Mr. 18 President, please remove the star. 19 ACTING PRESIDENT COOK: 20 Amendments received, and the star is removed. 21 Senator Saland. 22 SENATOR SALAND: Mr. President, 23 on page 61, I'd offer the following amendments 3541 1 to Calendar Number 599, that's Assembly Print 2 9919-A. 3 ACTING PRESIDENT COOK: 4 Amendments received. 5 SENATOR SALAND: I ask that the 6 bill retain its place on Third Reading Calendar. 7 ACTING PRESIDENT COOK: So 8 ordered. 9 Secretary will read some 10 substitutions. 11 THE SECRETARY: On page 5 of 12 today's calendar, Senator Sears moves to 13 discharge the Committee on Health from Assembly 14 Bill Number 9619 and substitute it for the 15 identical Calendar 1037. 16 On page 30, Senator Velella moves 17 to discharge the Committee on Rules from 18 Assembly Bill Number 8794-B and substitute it 19 for the identical Calendar Number 349. 20 ACTING PRESIDENT COOK: 21 Substitutions ordered. 22 Senator Present. 23 SENATOR PRESENT: Recognize 3542 1 Senator Holland, please. 2 ACTING PRESIDENT COOK: Senator 3 Holland. 4 SENATOR HOLLAND: Mr. President, 5 I have a resolution at the desk. I ask that it 6 be read. 7 ACTING PRESIDENT COOK: Secretary 8 will read. 9 THE SECRETARY: Legislative 10 Resolution, by Senator Holland, memorializing 11 Governor Mario M. Cuomo to proclaim May 23rd 12 through 27th, 1994 as Bone Marrow Donor 13 Awareness Week in New York State and honoring 14 Olympic speed skater Kristen Talbot of 15 Schuylerville, New York, for her dedication and 16 consummate commitment to excellence. 17 WHEREAS, this legislative body is 18 justly proud to memorialize Governor Mario M. 19 Cuomo to proclaim May 23rd through 27th, 1994 as 20 Bone Marrow Donor Awareness Week in New York 21 State, and to honor Olympic speed skater and 22 bone marrow donor Kristen Talbot of 23 Schuylerville, New York for her dedication and 3543 1 consummate commitment to excellence; 2 Bone marrow transplants now give 3 people dying of blood-related diseases such as 4 leukemia and aplastic anemia a chance to be 5 cured if a donor can be found whose bone marrow 6 matches their own; 7 An individual has only a 30 8 percent chance of finding a donor among his own 9 family members. Once family members have been 10 tested and no match is found, an individual is 11 faced with only about one in 20,000 unrelated 12 people who will match closely enough to allow 13 the opportunity for a bone marrow donation; 14 Kristen Talbot has been skating 15 since before she entered kindergarten. She's 16 been competing in national championships since 17 age 12 and qualified for her third Olympics, 18 earning the fourth and final spot in the 500 19 meters; 20 Just before competing in the 1994 21 Olympics, Kristen Talbot had bone marrow 22 extracted from both hips at Johns Hopkins in 23 order to save her brother, her brother Jason, 3544 1 who needed a transplant to fight aplastic 2 anemia, a condition that attacks the marrow and 3 slows or halts the production of red and white 4 blood cells; 5 Kristen Talbot's commitment to 6 excellence mirrors those prerogatives of 7 personal initiative and accountability so 8 paradigmatic of our American manner; 9 Through her long and sustained 10 commitment to excellence in the arduous sport of 11 speed skating and her altruism in giving her 12 bone marrow, Kristen Talbot has so unselfishly 13 advanced that spirit of united purpose and 14 shared concern which is the unalterable 15 manifestation of our American experience; 16 Kristen Talbot will dedicate her 17 time and energy to bowl in the Legislative 18 Bowl-a-Thon to raise money for testing in the 19 Legislative Office Building during Bone Marrow 20 Donor Awareness Week; 21 Although national donor registry 22 was begun in 1987 to assist in finding suitable 23 donors from a pool of "typed" readily available 3545 1 volunteers, it is estimated that at least one 2 million potential donors worldwide must be 3 listed on the registry if the majority of the 4 9,000 afflicted individuals presently waiting 5 for matches in the United States are to be 6 saved; 7 Many people in the United States 8 have died because their desperate searches have 9 not produced a matching donor in time; it is 10 vital, therefore, that every effort be made to 11 assure that the donor pool is as large and 12 diverse as possible; 13 Marrow transplants require 14 matching tissue types, which are characterized 15 by complex genetic traits often unique to a 16 particular race, and currently 92 percent of our 17 volunteer donors are Caucasian; 18 It is of critical importance that 19 African-American, Hispanics, Asians and Native 20 Americans, who are presently under-represented 21 on the registry, become volunteers so that the 22 hope can be offered to all Americans in need; 23 In memory of the late Senator 3546 1 Eugene Levy, it is the intent of this 2 legislative body to designate May 23rd through 3 the 27th of 1994 as Bone Marrow Donor Awareness 4 Week in New York State, recognizing and honoring 5 all those who have selflessly donated marrow or 6 been tested as a potential donor, and to enhance 7 public awareness of the desperate need for bone 8 marrow donors, particularly minority donors; 9 During the Bone Marrow Donor 10 Awareness Week, the Bone Marrow Resource 11 Foundation will distribute educational material 12 and conduct a donor drive to test individuals as 13 potential donors in the Legislative Office 14 Building. Donors will be registered in the 15 National Marrow Donor Program through the local 16 donor center at the American Red Cross in 17 Albany; 18 Everyone has the availability to 19 give the "gift of life" by donating bone marrow 20 to someone who faces imminent death from a 21 blood-related disease; 22 Through its commitment to the 23 preservation and enhancement of human life, Bone 3547 1 Marrow Awareness Week so clearly advances that 2 spirit of united purpose and shared concern 3 which is the unalterable manifestation of our 4 American experience; 5 NOW, THEREFORE, BE IT RESOLVED 6 that this legislative body pause in its 7 deliberations to memorialize Governor Mario M. 8 Cuomo to proclaim May 23rd through May 27, 1994 9 as Bone Marrow Awareness Week in New York State 10 and to honor Olympic speed skater Kristen Talbot 11 of Schuylerville, New York, for her dedication 12 and consummate commitment to excellence; and 13 BE IT FURTHER RESOLVED that 14 copies of this resolution, suitably engrossed, 15 be transmitted to the Bone Marrow Resource 16 Foundation, the National Marrow Donor Program, 17 the New York State American Red Cross of Albany 18 and Kristen Talbot, in recognition of their 19 efforts in educating the public and assisting 20 those in need of a bone marrow donation. 21 ACTING PRESIDENT COOK: Senator 22 Holland. 23 SENATOR HOLLAND: Mr. President, 3548 1 as the clerk has mentioned, this was started by 2 Senator Gene Levy five years ago. Gene 3 succumbed to leukemia shortly after that. 4 This is a disease that we can 5 save a lot of lives with. In the five years 6 we've been doing this here on the third floor of 7 the LOB, we typed a lot of people. We need to 8 type, as the clerk has said, about a million 9 people in order to take care of the 9,000 people 10 that are on the list right now. 11 It costs about $50 each to type 12 each individual. We have to raise money for 13 that. We've been -- we did last year -- we had 14 a Bowl-a-Thon the year before that. We raised 15 $13,000 last year. We're going to do the same 16 thing tomorrow night. The lobbyists are 17 gracious enough to donate money for this. 18 The typing will be next week, the 19 23rd and 24th on the third floor of the LOB. I 20 ask anyone who is willing to have their blood 21 typed to come there on that day, 9:00 to 5:00, 22 they only take about a teaspoon of blood, it's a 23 very easy thing to do and you could save a 3549 1 life. 2 In the five years that we've been 3 doing it, we've met a number of people who have 4 donated and then been called and today we are - 5 have the pleasure to welcome Kristen Talbot. I 6 think many of you heard the story of Kristen 7 Talbot. She's a speed skater. She's been in 8 the Olympics three times. This year prior to 9 the Olympics, her brother came down with 10 aplastic anemia. 11 As you heard, in your family, 12 it's a 30 percent chance to have a match. 13 Kristen matched her brother, so before she went 14 to the Olympics this year for the third time she 15 donated bone marrow to her brother and we talked 16 earlier of this, and she did go to the Olympics 17 after that. She said she wasn't tired but she 18 did miss about ten weeks, I think, of skating 19 which cost her in that. 20 She's been competing in the 21 national championships since the age of 12 and 22 qualified, as I said, for her third Olympics. 23 She's a fighter and is committed to her sport of 3550 1 speed skating. However, she put her personal 2 initiative behind her and gave bone marrow when 3 her brother needed it. 4 Kristen is also donating her time 5 to bowl tomorrow night -- and she said she's a 6 great bowler -- in this year's legislative 7 Bowl-a-Thon to raise funds. Because of her 8 unselfishness, I am proud to introduce this 9 resolution which recognizes Kristen's selfless 10 giving and devotion to her sport, as well as 11 designating May the 23rd through the 27th as 12 Bone Marrow Awareness Week. 13 I do want to also thank all the 14 people who donate. The bowling center is 15 donated; the food is donated. Lots of people 16 volunteer. Assemblyman Jeff Aubry is the 17 sponsor in the Assembly. We can save lives, and 18 I urge anybody who has five minutes on the 23rd 19 and 24th to go down and have your blood typed. 20 Thank you very much. 21 ACTING PRESIDENT COOK: Kristen, 22 we are very honored and humbled to have you here 23 with us today. These acts of unselfishness that 3551 1 people do in behalf of other people really put 2 the rest of us to shame, and we are just so 3 honored that you've seen fit to come here and 4 join us today, and that you have been willing to 5 join as well in the greater effort to raise 6 funds so that other people may benefit, as your 7 brother has benefited. 8 Senator Present, is it acceptable 9 to open the resolution for all members if 10 there's no one who objects? 11 SENATOR PRESENT: Right. 12 ACTING PRESIDENT COOK: There 13 being no objection, then, all members are on the 14 resolution. 15 The question occurs on the 16 resolution. All in favor, say aye. 17 (Response of "Aye.") 18 All those opposed nay. 19 (There was no response. ) 20 The resolution is adopted. 21 Senator Present. 22 SENATOR PRESENT: Mr. President, 23 we take up the non-controversial calendar, 3552 1 please. 2 ACTING PRESIDENT COOK: Secretary 3 will read. 4 THE SECRETARY: On page 27 of the 5 Calendar, Calendar Number 6, by Senator Volker, 6 Senate Bill Number 246-B, an act to amend the 7 Penal Law, in relation to the crime of false 8 personation. 9 ACTING PRESIDENT COOK: Call the 10 roll. Last section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT COOK: Then call 14 the roll. Call the roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Ayes 39. 17 ACTING PRESIDENT COOK: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 127, by Senator Farley, Senate Bill Number 342 21 A, an act to amend the Real Property Tax Law, in 22 relation to sale by a tax district of lands in 23 the forest preserve. 3553 1 ACTING PRESIDENT COOK: Last 2 section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT COOK: Call the 6 roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Ayes 39. 9 ACTING PRESIDENT COOK: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 303, by Senator Lack, Senate Bill Number 6694-A, 13 an act to amend the Criminal Procedure Law, in 14 relation to pre-sentence conditions. 15 ACTING PRESIDENT COOK: Last 16 section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT COOK: Call the 20 roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 40. 23 ACTING PRESIDENT COOK: The bill 3554 1 is passed. 2 THE SECRETARY: Calendar Number 3 359, by Senator Wright, Senate Bill Number 6861 4 A, authorize the city of Ogdensburg School 5 District to finance the projected accumulated 6 deficit. 7 ACTING PRESIDENT KUHL: Last 8 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 40. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 465, by Senator Farley, Senate Bill Number 2424 19 A, an act to amend the Banking Law, Estates, 20 Powers and Trusts Law. 21 ACTING PRESIDENT KUHL: Last 22 section. 23 THE SECRETARY: Section 2. This 3555 1 act shall take effect immediately. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 40. 6 ACTING PRESIDENT KUHL: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 632, by Senator Holland, Senate Bill Number 10 207-A. 11 SENATOR GOLD: Lay aside. 12 ACTING PRESIDENT KUHL: Lay the 13 bill aside. 14 THE SECRETARY: Calendar Number 15 654, by Senator Hannon. 16 SENATOR GOLD: Lay it aside, 17 please. 18 ACTING PRESIDENT KUHL: Lay the 19 bill aside. 20 THE SECRETARY: Calendar Number 21 669, by Senator Cook, Senate Bill Number 7710-A, 22 authorize the New Paltz Central School District 23 to finance deficits. 3556 1 ACTING PRESIDENT KUHL: Last 2 section. 3 THE SECRETARY: Section 5. This 4 act shall take effect immediately. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Ayes 40. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 671, by Senator Lack, Senate Bill Number 6963 13 B, Estates, Powers and Trusts Law, in relation 14 to the division of trusts. 15 ACTING PRESIDENT KUHL: Last 16 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 40. 23 ACTING PRESIDENT KUHL: The bill 3557 1 is passed. 2 THE SECRETARY: Calendar Number 3 693, by Senator Maltese, Senate Bill Number 4 7446-A, an act to amend the Criminal Procedure 5 Law. 6 ACTING PRESIDENT KUHL: Last 7 section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 40. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 694, by member of the Assembly Lentol, Assembly 18 Bill Number 6869, an act to amend the Civil 19 Practice Law and Rules. 20 ACTING PRESIDENT KUHL: Last 21 section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 3558 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll. ) 4 THE SECRETARY: Ayes 41. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 696, by member of the Assembly Cahill, Assembly 9 Bill Number 10828, Criminal Procedure Law, in 10 relation to the service of an order. 11 ACTING PRESIDENT KUHL: Last 12 section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll. ) 18 THE SECRETARY: Ayes 41. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 699, by Senator Volker, Senate Bill Number 7574, 23 an act to amend the Criminal - 3559 1 SENATOR GOLD: Lay the bill 2 aside. 3 ACTING PRESIDENT KUHL: Lay the 4 bill aside. 5 THE SECRETARY: Calendar Number 6 727, by Senator Hannon, Senate Bill Number 6627, 7 an act to amend the Administrative Code of the 8 city of New York. 9 SENATOR GOLD: Lay aside. 10 ACTING PRESIDENT KUHL: Lay the 11 bill aside. 12 THE SECRETARY: Calendar Number 13 746, by Senator Hannon, Senate Bill Number 6337, 14 an act to amend the Public Authorities Law. 15 SENATOR HANNON: Lay aside for 16 the day. 17 ACTING PRESIDENT KUHL: Lay the 18 bill aside for the day. 19 THE SECRETARY: Calendar Number 20 752, by Senator Tully, Senate Bill Number 7717, 21 amends Chapter 295 of the Laws of 1990, amending 22 the New York State Medical Care Facilities 23 Finance Agency. 3560 1 ACTING PRESIDENT KUHL: Last 2 section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Ayes 42. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 753, by Senator Tully, Senate Bill Number 7751 13 A, an act to amend the Public Health Law. 14 ACTING PRESIDENT KUHL: Read the 15 last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 42. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 3561 1 THE SECRETARY: Calendar Number 2 767, by Senator Skelos, Senate Bill Number 2272 3 A, an act to amend the Real Property Tax Law, 4 real property tax exemption for persons 65 years 5 of age or over. 6 ACTING PRESIDENT KUHL: Read the 7 last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 43. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 773, by Senator Saland, Senate Bill Number 18 4331. 19 SENATOR PRESENT: Lay it aside 20 temporarily. 21 ACTING PRESIDENT KUHL: Lay the 22 bill aside temporarily. 23 THE SECRETARY: Calendar Number 3562 1 836, by Senator Maltese, Senate Bill Number 2 3294, an act to amend the Correction Law. 3 ACTING PRESIDENT KUHL: Read the 4 last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 SENATOR GOLD: Lay it aside. 8 ACTING PRESIDENT KUHL: Lay the 9 bill aside. 10 SENATOR GOLD: Hold it. 11 ACTING PRESIDENT KUHL: Call the 12 roll. 13 SENATOR GOLD: Hold on a second. 14 ACTING PRESIDENT KUHL: Call the 15 roll on Calendar Number 836. 16 (The Secretary called the roll. ) 17 THE SECRETARY: Ayes 43. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 THE SECRETARY: Calendar Number 21 848, by Senator Libous, Senate Bill Number 6928 22 A, an act to amend the Mental Hygiene Law. 23 ACTING PRESIDENT KUHL: Last 3563 1 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 44. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 849, by Senator Libous, Senate Bill Number 6930 12 A, an act to amend the Mental Hygiene Law. 13 SENATOR PRESENT: Lay it aside 14 for the day. 15 ACTING PRESIDENT KUHL: Lay that 16 bill aside for the day. 17 THE SECRETARY: Calendar Number 18 869, by Senator Trunzo, Senate Bill Number 4823, 19 an act to amend the Civil Service Law. 20 ACTING PRESIDENT KUHL: Read the 21 last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 3564 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll. ) 4 THE SECRETARY: Ayes 44. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 870, by Senator Trunzo, Senate Bill Number 6889 9 A, an act to amend the General Municipal Law and 10 the Retirement and Social Security Law. 11 ACTING PRESIDENT KUHL: Read the 12 last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll. ) 18 THE SECRETARY: Ayes 44. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 872, by Senator Velella, Senate Bill Number 23 7198, an act to amend the Administrative Code of 3565 1 the city of New York. 2 ACTING PRESIDENT KUHL: Read the 3 last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 ACTING PRESIDENT KUHL: Call the 7 roll. 8 (The Secretary called the roll. ) 9 THE SECRETARY: Ayes 44. 10 ACTING PRESIDENT KUHL: The bill 11 is passed. 12 THE SECRETARY: Calendar Number 13 876, by Senator Trunzo, Senate Bill Number 7792, 14 an act to amend the Administrative Code of the 15 city of New York. 16 ACTING PRESIDENT KUHL: Read the 17 last section. 18 THE SECRETARY: Section 2. This 19 act shall take effect immediately. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 44. 3566 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 877, by Senator Skelos, Senate Bill Number 7862, 5 an act to amend the Retirement and Social 6 Security Law. 7 ACTING PRESIDENT KUHL: Read the 8 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 44. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 879, by Senator Present, Senate Bill Number 19 2108, an act to amend the Insurance Law, in 20 relation to coverage for mammography screening. 21 SENATOR SOLOMON: Explanation. 22 ACTING PRESIDENT KUHL: Lay the 23 bill aside. 3567 1 THE SECRETARY: Calendar Number 2 894, by Senator Rath, Senate Bill Number 7054-A, 3 an act to amend the State Administrative 4 Procedure Act. 5 SENATOR GOLD: Lay it aside. 6 ACTING PRESIDENT KUHL: Lay the 7 bill aside. 8 THE SECRETARY: Calendar Number 9 895, by Senator Skelos, Senate Bill Number 10 7129-A, an act to amend the Economic Development 11 Law. 12 ACTING PRESIDENT KUHL: Read the 13 last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 44. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 THE SECRETARY: Calendar Number 23 896, by Senator Rath, Senate - 3568 1 SENATOR PRESENT: Lay it aside 2 for the day, please. 3 ACTING PRESIDENT KUHL: Lay the 4 bill aside for the day. 5 SENATOR PRESENT: And the next 6 two bills, lay aside for the day. 7 ACTING PRESIDENT KUHL: Lay 8 Calendar Number 898 and 900 aside for the day. 9 Senator Present, that completes 10 the non-controversial calendar. What's your 11 pleasure, sir? 12 SENATOR GOLD: Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Leichter. 15 SENATOR LEICHTER: May I have - 16 yes, Mr. President. May I have unanimous 17 consent to be recorded in the negative on 18 Calendar Number 127, please. 19 ACTING PRESIDENT KUHL: Without 20 objection, Senator Leichter recorded in the 21 negative on Calendar Number 127. 22 SENATOR LEICHTER: Thank you. 23 ACTING PRESIDENT KUHL: Senator 3569 1 Present. 2 SENATOR PRESENT: Mr. President, 3 it comes that time when I ask that the Senate 4 stand at ease for a few moments. 5 ACTING PRESIDENT KUHL: The 6 Senate will stand at ease for a few moments. 7 (The Senate stood at ease from 8 3:17 p.m. to 4:01 p.m.) 9 ACTING PRESIDENT KUHL: The 10 Senate will come to order. Ask the staff to 11 take their places, members to take their seats. 12 Senator Present, we have a little 13 housekeeping. Shall we take that up first? 14 SENATOR PRESENT: First, take 15 that up, and then we'll take up the 16 controversial calendar, please. 17 ACTING PRESIDENT KUHL: Senator 18 Velella. 19 SENATOR VELELLA: Mr. President, 20 I move to reconsider the vote by which my bill 21 7198, Calendar Number 872, passed. 22 ACTING PRESIDENT KUHL: On the 23 motion to reconsider the vote, the clerk will 3570 1 call the roll. 2 (The Secretary called the roll on 3 reconsideration. 4 ACTING PRESIDENT KUHL: Bill is 5 laid aside. 6 Clerk will call the controversial 7 calendar. 8 THE SECRETARY: On page 37, 9 Calendar Number 632, by Senator Holland, Senate 10 Bill Number 207-A, an act to amend the Penal 11 Law. 12 SENATOR GOLD: Explanation. 13 ACTING PRESIDENT KUHL: Senator 14 Holland, explanation has been asked for. 15 SENATOR HOLLAND: This bill would 16 allow persons who have a valid license to carry 17 a pistol or revolver in New York State, anywhere 18 in New York State, to also carry that pistol or 19 revolver in the city of New York. 20 The bill really is to correct an 21 inequity in the law as far as I'm concerned, and 22 another example of the two-state situation we 23 have with upstate New York and the -- the city 3571 1 of New York. It simply says that, if you're 2 issued a valid pistol license in any of the 57 3 counties, you can carry that in the city of New 4 York. 5 That is illegal today, although 6 anybody who is issued a pistol license in the 7 city of New York can carry it any place in the 8 state of New York. That's unfair, not the right 9 thing. 10 Now, I know you're going to say 11 well, people will steal the weapons. That's - 12 I don't think that's true. I don't think it's 13 true at all. If somebody wants weapons, you 14 know as well as I do, and you've brought it up 15 on the floor, they can go to Virginia and get 16 the weapons and bring them up here. They're not 17 going to steal them from the people bringing 18 them down here. 19 I might also tell you again, as 20 I've told you every year, that when I was county 21 clerk I consolidated the pistol issuing process 22 in the county of Rockland from all the different 23 police departments to the sheriff and the county 3572 1 clerk's office and cut down the delivery of the 2 system from 13 months to three months and, if 3 anybody is issued a pistol license in the state 4 of New York, first of all, you must have your 5 fingerprints taken. You must have a background 6 check. Fingerprints are run by the FBI, the 7 BCI; a written statement and your resume is run 8 by the Health Department and the Mental Health 9 Department in the county of Rockland. We also 10 require a statement from your spouse or the 11 person you live with that they don't object to 12 your having a pistol license, and they are given 13 education on handling weapons as well. So there 14 is no reason in my mind why it shouldn't be a 15 one-state situation, and that's what this bill 16 does. 17 SENATOR GOLD: Mr. President. 18 ACTING PRESIDENT KUHL: Chair 19 recognizes Senator Gold. 20 SENATOR GOLD: Thank you. 21 Will the gentleman yield to a 22 question, please? 23 ACTING PRESIDENT KUHL: Senator 3573 1 Holland, will you yield? 2 SENATOR HOLLAND: Yes. 3 ACTING PRESIDENT KUHL: Senator 4 does, Senator Gold. 5 SENATOR GOLD: Senator, do you 6 have any cities in your Senate district? 7 SENATOR HOLLAND: No. 8 SENATOR GOLD: It's a shame. 9 Towns? 10 SENATOR HOLLAND: Towns, yes. 11 SENATOR GOLD: Senator yield to a 12 question? 13 ACTING PRESIDENT KUHL: Senator 14 Holland, you continue to yield? 15 SENATOR HOLLAND: Yes. 16 ACTING PRESIDENT KUHL: Senator 17 does. 18 SENATOR GOLD: Senator, do any of 19 those towns that you represent have any local 20 ordinances at all in terms of conduct within 21 them, speed of vehicles or any other ordinances 22 that deal with conduct within their borders? 23 SENATOR HOLLAND: I'm sure you're 3574 1 right. 2 SENATOR GOLD: Well, Senator, I 3 have a memo from the mayor of the city of New 4 York, the Republican mayor of the city of New 5 York, which mirrors exactly the prior memo of 6 the Democratic mayors of the city of New York, 7 and he says in the last line of this memo, "The 8 New York City Police Department strongly opposes 9 this bill -- these bills." Actually, it talks 10 about your bill and also the Assembly version. 11 Senator, don't you think that the 12 city of New York has a right to control conduct 13 within its borders, particularly conduct as 14 serious as dealing with carrying and possession 15 of weapons? 16 SENATOR HOLLAND: Certainly I see 17 your point, Senator, but I really don't think 18 so. I think, in this situation, it should be a 19 one-state situation and, if people who are 20 issued pistol licenses in the city of New York 21 are allowed to carry them throughout the rest of 22 the state, it should be reciprocal as far as I'm 23 concerned. 3575 1 SENATOR GOLD: Thank you. 2 Mr. President. 3 ACTING PRESIDENT KUHL: Senator 4 Gold, on the bill. 5 SENATOR GOLD: This is a bill 6 which we've had before, we will have again, 7 because it will never see the light of day, I'm 8 sure, in the Assembly, and it's a difficult 9 situation. I remember one of the great men in 10 legislative history, Senator Levy, who used to 11 talk about his wife being afraid to come to the 12 city of New York unless she had a gun, and all I 13 can do is to repeat very briefly what I've said 14 in the past. 15 New York City is the Big Apple. 16 New York City is a great city, but if you have 17 people from upstate New York who feel that they 18 cannot visit us without your gun, without 19 bringing their guns, well, then don't visit. I 20 mean we don't want to lose the tourism; we don't 21 want to lose the economic value but, if the only 22 way you can come to New York is if you bring 23 your weapons, then I tell you, don't come. The 3576 1 mayor says don't come. Our police commissioner 2 says don't come, and that's really it. 3 I mean to argue over the 4 difficulties in New York City and people not 5 feeling safe, to argue about a statewide 6 necessity for these kind of controls, we are 7 very unsympathetic, meaning the people from New 8 York City, with these kinds of arguments, and we 9 respect the fact that, in your local areas, 10 you're very careful about who you give gun 11 permits to, and I respect that, and I respect 12 that they're fingerprinted and I respect all the 13 things you do, but I also tell you that when you 14 are the elected mayor of millions of people 15 responsible for the city of New York, 16 responsible for its safety, and you're trying as 17 hard as I'm sure this present mayor is doing and 18 I know the prior mayor was very successful and 19 crime fell during the Dinkins administration - 20 please, let's not forget that -- and they say, 21 We will take the responsibility, we don't want 22 these guns in the city of New York, and the 23 issue of whether or not there are illegal guns 3577 1 in the city of New York is not the issue. The 2 issue is they don't want the guns in the city, 3 so once again, we will call for a slow roll 4 call. I won't read out the names of the 5 negatives, because we've had this so many times 6 and it's not an issue that people will likely 7 forget. 8 ACTING PRESIDENT KUHL: The Chair 9 recognizes Senator Leichter. 10 SENATOR LEICHTER: Thank you, Mr. 11 President. 12 My colleagues, you know, when I 13 saw this bill, I said, Well, we've had it be 14 fore; I mean what's new? But there are some 15 things that are new and maybe make it appropri 16 ate to get up and comment on this bill. 17 I used to debate it at great 18 length with Senator Levy, and I -- everyone who 19 served with him, I loved him, but I thought he 20 was wrong in this particular issue, and I think 21 you're wrong, Senator Holland, to carry on that 22 bill. 23 But let me tell you what's new. 3578 1 Just today in the New York Times was an article 2 that violence with hand guns in the United 3 States in the last two years has increased, I 4 think the figure was 20 -- close to 25 percent. 5 More and more crimes are being committed with 6 hand guns; more violence occurs with hand guns; 7 more people are being shot with hand guns 8 inadvertently, children finding guns in a 9 drawer, playing with it, shooting themselves or 10 shooting a member of the family. 11 Now, I appreciate that there's 12 local licensing, but conditions in the city of 13 New York are different. Unfortunately, in some 14 respects there probably is more violence in the 15 city of New York. We're trying to deal with 16 it. The mayor is trying to deal with it, but as 17 a consequence you must have in mind local 18 licensing requirements, and I thought that 19 Senator Gold's analogy to localities imposing 20 their own speed limits was really very apt. 21 There are individual community 22 differentiations, circumstances, and you can't 23 just homogenize the whole state, particularly 3579 1 when it comes to something as sensitive as gun 2 control. We have a terrible time in the city of 3 New York with illegal guns, and one of the ways 4 that illegal guns find their way in the streets 5 is they start out as legal, and every year we 6 have hundreds of guns that are legal but that 7 are stolen in the city of New York and, when I 8 heard Senator Levy talk about his wife with a 9 gun, I was scared. I was scared for her that 10 she should find herself in a situation where she 11 might use that gun considering some of the 12 people in the city of New York and their 13 prevalence towards violence, and I was scared 14 for the people of the city of New York if that 15 gun, as can happen and happens, should be taken 16 from her or stolen and find its way onto the 17 illegal market. 18 Just yesterday, I had a 19 conference on crime in the city of New York and 20 I wish that people, you my colleagues, had been 21 there because it was really one of the most 22 intelligent discussions. We had excellent 23 people. We had our commissioner of the Division 3580 1 of Criminal Justice Services, Girgenti, Jerry 2 Lynch, the president of John Jay College, the 3 Bronx Borough Commander, Catherine Abbate, and 4 just a wonderful and inspirational person, 5 Stephen McDonald, the former police officer who 6 was badly wounded and paralyzed as a result of 7 an assault on him by a young person with a hand 8 gun; and one of the things that they all agreed 9 on is that we have to take stronger measures to 10 get guns off the streets of New York City and, 11 for that matter, in our communities throughout 12 the state and in the nation. 13 So we really plead with you to be 14 aware of the needs of the city of New York, the 15 special circumstances. Listen to our local 16 elected officials. Listen to our mayor who 17 says, Please don't pass this bill, and keep in 18 mind that the American people are changing on 19 the issue of gun control. We saw it in the 20 House of Representatives. I think they're 21 tired, they're fed up with the mayhem, with the 22 violence. They realize guns are dangerous. 23 They realize that the NRA slogan, Guns Don't 3581 1 Kill, People Kill, of course, is perfectly 2 stupid, because people can generally kill only 3 because they have guns. 4 And so we say don't pass measures 5 that place the people of the city of New York at 6 greater risk. 7 SENATOR GOLD: Slow roll call. 8 ACTING PRESIDENT KUHL: Senator 9 Montgomery. 10 SENATOR MONTGOMERY: Mr. 11 President, I -- this is one of the bills that I 12 recall, as well as Senator Leichter has said 13 that Senator Levy used to bring to the floor and 14 it was one of the few times that I would 15 actually debate against him, because we were 16 friends and agreed on so many things. 17 I just wonder if Senator Holland 18 would yield to a question. I know that Senator 19 Levy said that he was afraid that his wife 20 needed her pistol in her mink coat, she had to 21 have it, she wanted to have it when she came to 22 the City, and I just wonder if Senator Holland 23 would yield to a question. 3582 1 SENATOR HOLLAND: Sure. 2 ACTING PRESIDENT KUHL: Senator 3 Holland, will you yield? Senator Holland 4 yields, Senator Montgomery. 5 SENATOR MONTGOMERY: Thank you, 6 Senator Holland. 7 Senator Holland, similar to 8 Senator Levy who was afraid that his wife would 9 be shot if she didn't have a pistol in her mink 10 coat, is it, for you, a similar rationale for 11 this bill? Do you need a pistol in your jacket 12 or does your wife need her pistol in her mink 13 coat when you come to visit Senator Padavan in 14 his district, Senator Goodman in his district, 15 Senator Marchi in Staten Island, Senator Maltese 16 in Queens? Are you afraid to come without your 17 pistol, and you need this bill to resolve that 18 problem for you? Is that the rationale? I'm 19 just curious, Senator. 20 SENATOR HOLLAND: My wife neither 21 has a mink coat nor pistol. Nor do I. 22 SENATOR MONTGOMERY: So is there 23 -- is there a -- a growing and - 3583 1 ACTING PRESIDENT KUHL: Senator 2 Montgomery, are you asking Senator Holland to 3 continue to yield? 4 SENATOR MONTGOMERY: Yes, if you 5 would continue to yield. 6 ACTING PRESIDENT KUHL: Senator 7 Holland yields, Senator Montgomery. 8 SENATOR MONTGOMERY: Is there a 9 growing need among your constituents that they 10 come into the city and they're afraid and they 11 need this legislation? 12 SENATOR HOLLAND: Senator, I 13 think there is. I think the city of New York is 14 a dangerous place to be; it's more dangerous 15 than upstate. Somebody mentioned tourists and 16 tourists shouldn't carry weapons. That's what's 17 happening in New York and Florida; they're 18 shooting tourists, and people are afraid to go 19 into the city of New York. 20 It's hurting your economy; it's 21 hurting your tax base, there's no question about 22 it, and the people that have licensed hand guns 23 are the people not creating problems, and we're 3584 1 only talking about the licensed hand guns. 2 We're not talking about the illegal hand guns. 3 They should be controlled, there's no question 4 about it, but we're only talking about the 5 licensed hand guns. 6 SENATOR MONTGOMERY: Thank you. 7 Thank you, Senator. 8 Mr. President, briefly on the 9 bill. 10 ACTING PRESIDENT KUHL: Senator 11 Montgomery, on the bill. 12 SENATOR MONTGOMERY: I am 13 obviously very, very much opposed to this 14 legislation for several reasons. 15 One is we certainly do not want 16 to encourage people to bring additional weapons 17 into the city without having the appropriate 18 licensing as per our local government, and I 19 think that, although people use that rationale 20 frequently, that they need their weapon to 21 protect themselves from whatever they envision 22 as the enemy and the threat, we know that in 23 fact there are very, very, very few instances 3585 1 where people successfully defend themselves by 2 the use of a gun, by killing the enemy 3 essentially. 4 So this, in my -- in my 5 estimation, is in the least a false reason for 6 having -- for carrying a weapon, and I don't 7 know if there are people like in this room, many 8 of us or if any of us has chosen to carry a 9 weapon, because we want to defend ourselves, we 10 want to get our enemies, we want to do whatever 11 people say that they use weapons for, and 12 certainly those of us in this room who hunt as a 13 sport don't bring our weapons with us as we just 14 move around in society, in the streets and at 15 work, and I don't know how many of us in this 16 room take a weapon when we go out socially. I 17 don't suppose anyone, but I -- I would not --I 18 would not assume that no one does, but my 19 assumption is that most of us certainly don't, 20 and so I don't know what -- what people would 21 want to carry weapons, especially people like us 22 in this room. 23 Why would we need to have a 3586 1 license to bring a weapon into a city that 2 already has too many weapons? And obviously, 3 the move now, even from within New York City, is 4 to rid our street of weapons, not to encourage 5 people, and at this very moment, Mayor Giuliani 6 and Governor Cuomo are working together to 7 expand our tourism industry, bringing people 8 into the City from other states, other parts of 9 the state, to encourage an economic upturn in 10 terms of our tourism industry, to bring people 11 into the hotels, who have been using the other 12 facilities, the cultural institutions, to really 13 encourage a revitalization of that aspect of the 14 economy in the City, and here we are in the 15 state, and Senator -- led by Senator Holland, 16 and I say, Senator Holland, certainly I agree 17 with many of the things that he has proposed but 18 this movement led by him, I think is a terrible 19 mistake, that you're saying we want you to come 20 and we want you to bring your guns and in order 21 to make it possible for you to bring more guns 22 to the City as tourists, as visitors, as 23 whatever, we want you -- we want the City to 3587 1 relax its licensing requirements. 2 So, Senator Holland, clearly this 3 is a mistake and, as I said, I argue against it 4 when Senator Levy used to propose it, and I -- I 5 have the same reason for opposing it now, and I 6 wish that you would --I wish that you would 7 change your mind because this goes against 8 everything that we are trying to encourage and 9 do in the state of New York. 10 Thank you, Mr. President. 11 ACTING PRESIDENT KUHL: The Chair 12 recognizes Senator Dollinger. 13 SENATOR DOLLINGER: Thank you, 14 Mr. President. 15 I voted against this bill in the 16 past, and I appreciate Senator Gold's comments 17 about let's just get it over with and have this 18 vote. I think it's probably somewhat predict 19 able what would happen but I have to respond to 20 a couple of the issues that have been raised. 21 One was, at least as I understood 22 it, Senator Holland, you said that this would 23 basically make New York city safe for visitors. 3588 1 More people would want to go into the city 2 because the visitors who want to bring their 3 guns with them are somehow going to feel safe. 4 What I hear in the memorandum of 5 opposition from the city of New York is, while 6 you may make it feel a little bit safer for 7 visitors, you will make it more dangerous for 8 the people that live there. They don't want you 9 to bring your gun into New York City, and it 10 seems to me that one of our jobs in this body is 11 to recognize, when someone says we don't want 12 you to bring something into our house that's 13 dangerous, we ought to recognize that and give 14 them the ability to decide what comes in their 15 house or not. 16 Now, I'm trying to draw an 17 analogy in my own house. I have a smoke-free 18 house. I have two children very sensitive to 19 ambient smoke, so I have a little sign on my 20 house that says, Please don't smoke if you come 21 in my house, because I think it's dangerous and 22 if someone walked to the door of my house and 23 knocked on the door and said, "I'm going to 3589 1 bring my cigarettes in because I don't think 2 they're dangerous," I would tell them, "I don't 3 care what you think; it's my house and what I 4 think is important," and if I think it's 5 dangerous, you can leave your cigarettes out in 6 the street or you can come around to my back 7 yard where all my friends who smoke go out on my 8 back porch, my screened in back porch and 9 smoke. I'm willing to tolerate that. I set the 10 rules of the house. 11 ACTING PRESIDENT KUHL: Senator 12 Dollinger, excuse me. Senator Velella? 13 SENATOR VELELLA: Will you yield? 14 SENATOR DOLLINGER: Will I yield? 15 Yes, Mr. President, I will. 16 SENATOR VELELLA: I happen to 17 live in New York City, and can you tell me what 18 basis you are using to say that the people of 19 New York City don't want tourists to come into 20 the City to have guns if they are, in fact, 21 licensed and approved elsewhere in the state? 22 As one resident, I don't have a 23 problem with somebody who's licensed from your 3590 1 district who is a reputable person who has been 2 approved by your government coming into my city 3 carrying a weapon. I don't know. Have you 4 taken a poll, or how do you presume to speak for 5 the people of New York City? 6 SENATOR DOLLINGER: Well, I'm not 7 speaking for the people of New York City. 8 They've spoken pretty definitively themselves. 9 There's a man that sits on, I don't know, Gracie 10 Mansion, I guess they call it, he's sat there, 11 one of them sat there for four years and then he 12 wrote this memo, and then the guy who took his 13 place was elected by the Republicans, wrote us a 14 memo which I looked at and it's identical word 15 for word, not one single word is changed. 16 SENATOR VELELLA: Senator, if 17 you'd yield for another question. 18 SENATOR DOLLINGER: He's the 19 elected representative. 20 ACTING PRESIDENT KUHL: Senator 21 Dollinger, Senator Velella is asking you to 22 yield. 23 SENATOR DOLLINGER: Mr. President, 3591 1 I'm just tryin' to respond and I'll -- I'll 2 yield again. 3 ACTING PRESIDENT KUHL: Please 4 continue. 5 SENATOR DOLLINGER: It seems to 6 me when we look to our municipalities, we're 7 constantly looking to cities, we're looking to 8 city councils or we're looking to the designated 9 representative who got two million votes, two 10 and a half million votes from the people of the 11 city of New York, and they elevated him to 12 become the mayor, and that's what he says, 13 Please if you want to come to New York City, get 14 a permit from us in New York City and your state 15 permit isn't going to carry -- isn't going to 16 allow you to carry a weapon in New York City. 17 I'm respecting his wishes, not 18 imposing my own. 19 I'll now yield, Mr. President. 20 ACTING PRESIDENT KUHL: Senator 21 Dollinger will now yield to another question. 22 SENATOR VELELLA: Senator 23 Dollinger, do you see no difference between the 3592 1 mayor of the city of New York taking a position 2 on a particular issue and making a statement on 3 the floor of the state Senate that the people of 4 the city of New York do or do not want some 5 thing? There may not ever be any inconsistency 6 in your mind there. 7 SENATOR DOLLINGER: Mr. 8 President, in response I acknowledge that there 9 can be an inconsistency between the electorate 10 and it's elected officials. Unfortunately, it's 11 not - 12 SENATOR VELELLA: Thank you, 13 Senator. Your explanation is satisfactory. 14 SENATOR DOLLINGER: 15 Unfortunately, in this democracy, I have no 16 other way of looking to that electorate other 17 than the people that they elect to represent 18 them. I guess the same thing could be said to 19 follow your logic, Senator, the same thing could 20 be said of the 36 people who sit on that side of 21 the floor with respect to the guns issue and 22 I've been trying to amend the gun bills for the 23 last three and a half months, to attach a ban on 3593 1 assault weapons. What I'm told is that 36 2 members of the Senate representing the views of 3 their constituents oppose that. So I guess the 4 elected representatives, at least from my point 5 of view, if your argument were carried to its 6 natural conclusion, I would argue that that the 7 36 members over there don't represent the 8 electorate either. 9 SENATOR VELELLA: Senator, one 10 final question. Would you yield to it? 11 SENATOR DOLLINGER: I'd be glad 12 to. 13 SENATOR VELELLA: You would have 14 no - 15 ACTING PRESIDENT KUHL: The 16 Senator yields. 17 SENATOR VELELLA: You would have 18 no problem then if I ordered a transcript of 19 this and read back to you when we're talking 20 about some other City issues that position that 21 the mayor takes by reminding you that that's 22 what the people of the city of New York want and 23 that you have an obligation to fulfill that 3594 1 wish? 2 SENATOR DOLLINGER: I - 3 certainly, Mr. President, in response to the 4 question, I think in that instance we're doing 5 two things: One, we're responding to the person 6 that talks and, two, we're making an independent 7 judgment. But in this case we're imposing on 8 the people of the city of New York -- in this 9 case we're imposing on the people of the city of 10 New York our views about what we think is 11 acceptable in the city of New York, and I stand 12 by -- I stand by what the mayor tells me. 13 If the Senator has got some other 14 person in New York City that I should be 15 listening to, I'd be glad to do it. 16 But to return the point I was 17 making, Mr. President, I think if they run their 18 house, if it's my house I should be able to 19 decide whether people smoke in it or not. 20 Two, the reason why I stand is 21 because the city of Rochester has just recently 22 passed legislation that bans assault weapons and 23 that does a number of things that this house has 3595 1 been unwilling to do. I would like to do 2 everything I could to encourage the city of 3 Rochester to continue with that experimentation 4 in trying to restrict access to weapons that the 5 city believes are dangerous to the people who 6 live there. 7 And, finally, I think we're wit 8 nessing something in this chamber that's unheard 9 of in the American political landscape, at least 10 by my reckoning, and I've watched the issues 11 somewhat carefully. 12 I think this may be the only 13 elected body in the United States of America 14 which is talking about increasing the amount of 15 guns in our urban areas. I don't know of any 16 other body that's doing that. Certainly the 17 House and the Senate in Washington are 18 decreasing the amounts that are available, other 19 states that have banned assault weapons, other 20 states that have restricted weapons are 21 decreasing the amount of weapons available in 22 our urban areas. 23 And here we seem to be moving in 3596 1 the opposite direction where what we're doing, 2 we're increasing the availability of weapons. 3 This bill invites more guns to come into New 4 York City. It seems to me it's a fundamental 5 mistake; it's grossly inconsistent with what's 6 going on in this country, and I think the 7 unfortunate message is that GOP is now trans 8 lated into GUN. That's the message that you can 9 draw. 10 I think it's mistaken; I think 11 it's misguided; I think it does a disservice 12 it's a mistake to our cities that are trying to 13 decrease violence. Let's have this vote; this 14 thing ought to be defeated. 15 SENATOR GOLD: Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 Gold. 18 SENATOR GOLD: Just very briefly 19 I'd like to get past the sparring and into 20 reality. Once we pass by the petty political 21 sparring and get to reality, the record ought to 22 indicate that in the comments that were made by 23 Senator Dollinger, those speak for the people of 3597 1 the city of New York because, Senator Dollinger, 2 there isn't a doubt that, if we polled the 3 people of the city of New York they would, in 4 overwhelming numbers, ask for the defeat of this 5 bill. 6 Now, there are members elected 7 here from the city of New York who, because of 8 party lines or whatever, will vote for this bill 9 and we happen to live in a society where in most 10 Senate Districts people don't vote on the basis 11 of one issue, and they may get away with it. 12 But getting away with a bad vote doesn't mean 13 you're speaking for the people in your district 14 or the people in the city of New York and, 15 Senator Dollinger, you can take it to the bank, 16 the people of the city of New York thank you for 17 supporting our mayor and for, more importantly, 18 supporting them on this issue. 19 ACTING PRESIDENT KUHL: Is there 20 any other Senator wishing to speak on this 21 bill? If not, the clerk will read the last 22 section. 23 THE SECRETARY: Section 2. This 3598 1 act - 2 SENATOR GOLD: Slow roll call. 3 THE SECRETARY: Section 2. This 4 bill shall take effect on the first day of 5 November next succeeding the date on which it 6 shall have become a law. 7 SENATOR GOLD: Slow roll call. 8 ACTING PRESIDENT KUHL: Call the 9 roll. Are there five Senators willing to stand 10 to request a slow roll call? There are. The 11 clerk will call the roll slowly. Please ring 12 the bells. 13 THE SECRETARY: Senator Babbush. 14 (There was no response.) 15 Senator Bruno. 16 (There was no response. ) 17 THE SECRETARY: Senator Connor. 18 (There was no response. ) 19 Senator Cook. 20 SENATOR COOK: Yes. 21 THE SECRETARY: Senator Daly. 22 SENATOR DALY: Yes. 23 THE SECRETARY: Senator 3599 1 DeFrancisco. 2 SENATOR DeFRANCISCO: Yes. 3 THE SECRETARY: Senator DiCarlo. 4 SENATOR DiCARLO: Yes. 5 THE SECRETARY: Senator 6 Dollinger. 7 SENATOR DOLLINGER: No. 8 THE SECRETARY: Senator Espada. 9 SENATOR ESPADA: No. 10 THE SECRETARY: Senator Farley 11 excused. 12 Senator Galiber. Senator 13 Galiber. 14 SENATOR GALIBER: No. 15 THE SECRETARY: Senator Gold. 16 SENATOR GOLD: No. 17 THE SECRETARY: Senator 18 Gonzalez. 19 (There was no response.) 20 THE SECRETARY: Senator Goodman. 21 (There was no response. ) 22 Senator Hannon. 23 SENATOR HANNON: Yes. 3600 1 THE SECRETARY: Senator 2 Hoffmann. 3 (There was no response. ) 4 Senator Holland. 5 SENATOR HOLLAND: Mr. President, 6 to explain my vote. 7 ACTING PRESIDENT KUHL: Senator 8 Holland to explain his vote. 9 SENATOR HOLLAND: Mr. President, 10 this is, in my estimation, just a question of 11 fairness. If you can be issued a license in the 12 city of New York, a legal license just for a 13 hand gun, not for an assault weapon, Senator 14 Dollinger, not for an assault weapon -- we're 15 not talking about that; we're talking about the 16 Second Amendment and the rights of the citizens 17 of this country to carry weapons. We're not 18 talking about assault weapons, we're talking 19 about revolvers, hand guns, legal hand guns, 20 that has been checked out by judges, by the FBI, 21 by the BCI, by the Mental Health Association, 22 people have been given courses in how to handle 23 a weapon and not to take it out, as Senator 3601 1 Montgomery said, to scare somebody away, only as 2 a last resort. That's all we're talking about. 3 If you want to do it the other 4 way, Senator Gold, why don't you make it illegal 5 for the other way so that people in the city of 6 New York can't carry their weapons in upstate 7 New York. I think that would be just as fair, 8 and I would be against that too. 9 So it's a Second Amendment 10 question. It's a question of fairness, and I 11 see -- and only makes sense to me. 12 ACTING PRESIDENT KUHL: Senator 13 Holland, how do you vote. 14 SENATOR HOLLAND: Yes. 15 ACTING PRESIDENT KUHL: Senator 16 Holland in the affirmative. The clerk will 17 continue calling the roll. 18 THE SECRETARY: Senator Johnson. 19 SENATOR JOHNSON: Mr. President, 20 to explain my vote. 21 ACTING PRESIDENT KUHL: Senator 22 Johnson to explain his vote. 23 SENATOR JOHNSON: The state of 3602 1 New York has very rigid requirements concerning 2 licensing for hand gun ownership and for hand 3 gun carrying. New York City perhaps may be 4 stricter in some respects than the rest of the 5 state. 6 We guarantee that in New York 7 City you're probably less likely to meet a 8 legitimate licensed hand gun owner than you are 9 in any other part of the state based upon 10 population. Needless to say, with so many 11 unarmed people running the streets of the city 12 of New York, crime is running rampant, that's no 13 secret to anybody in this chamber. 14 The fact that others who are 15 licensed in other parts of the state are just as 16 credible certainly as anybody with a New York 17 City license, they meet the same laws, the same 18 requirements for remaining free of criminal 19 background or mental defect. Those people 20 perhaps may be a little more enlightened than 21 some others and feel like they'd like to carry 22 their gun when they visit the city of New York 23 to protect their lives and their property -- a 3603 1 very intelligent thing to do, in my opinion. 2 There's no reason why a 3 legitimate permit shouldn't be valid anywhere in 4 this state. So, Mr. President, I support this 5 bill. I suggest other people support it as 6 well. 7 Thank you. I vote aye. 8 ACTING PRESIDENT KUHL: Senator 9 Johnson in the affirmative. 10 THE SECRETARY: Senator Jones. 11 SENATOR JONES: Yes. 12 THE SECRETARY: Senator Kruger. 13 SENATOR KRUGER: No. 14 THE SECRETARY: Senator Kuhl. 15 SENATOR KUHL: Aye. 16 THE SECRETARY: Senator Lack. 17 (There was no response. ) 18 Senator Larkin. 19 SENATOR LARKIN: Aye. 20 THE SECRETARY: Senator LaValle. 21 SENATOR LAVALLE: Aye. 22 THE SECRETARY: Senator 23 Leichter. 3604 1 SENATOR LEICHTER: No. 2 THE SECRETARY: Senator Levy. 3 (There was no response. ) 4 Senator Libous. 5 SENATOR LIBOUS: Aye. 6 THE SECRETARY: Senator Maltese. 7 SENATOR MALTESE: Aye. 8 THE SECRETARY: Senator Marchi. 9 SENATOR MARCHI: Aye. 10 THE SECRETARY: Senator Marino, 11 aye. 12 Senator Markowitz. 13 SENATOR MARKOWITZ: No. 14 THE SECRETARY: Senator Mendez. 15 SENATOR MENDEZ: No. 16 THE SECRETARY: Senator 17 Montgomery. 18 SENATOR MONTGOMERY: No. 19 THE SECRETARY: Senator Nanula. 20 SENATOR NANULA: Aye. 21 THE SECRETARY: Senator Nolan. 22 (There was no response. ) 23 Senator Nozzolio. 3605 1 SENATOR NOZZOLIO: Aye. 2 THE SECRETARY: Senator 3 Ohrenstein. 4 Senator Onorato. 5 SENATOR ONORATO: No. 6 THE SECRETARY: Senator 7 Oppenheimer. 8 (There was no response. ) 9 Senator Padavan. 10 SENATOR PADAVAN: Yes. 11 THE SECRETARY: Senator Pataki. 12 (There was no response. ) 13 Senator Paterson. 14 SENATOR PATERSON: No. 15 THE SECRETARY: Senator Present. 16 SENATOR PRESENT: Aye. 17 THE SECRETARY: Senator Rath. 18 SENATOR RATH: Yes. 19 THE SECRETARY: Senator Saland. 20 SENATOR SALAND: Mr. President. 21 ACTING PRESIDENT KUHL: Senator 22 Saland to explain his vote. 23 SENATOR SALAND: Thank you, Mr. 3606 1 President. 2 Mr. President, this bill, it 3 would seem to me, merely reflects a reality of 4 probably some 57 counties in the state of New 5 York having a mechanism that's clearly lawful, 6 that clearly is intended to comply with the law, 7 one which screens countless numbers of 8 candidates, one which is very, very selective, 9 one which, by the way, certainly greatly exceeds 10 anything that was discussed at the national 11 level during the recent debates surrounding the 12 adoption of the Brady bill by -- by our federal 13 Congress. 14 These bills, basically as 15 discussed, we're talking about a five-day 16 waiting period. I think most of us here could 17 say very safely that in New York the kind of 18 careful scrutiny that occurs in each of the 57 19 counties outside of the city of New York results 20 in a process that probably takes somewhere in 21 the area of about six months. It's a process 22 which runs not only through local law 23 enforcement, local sheriffs, but one which also 3607 1 bears the imprimatur of a court, a court review 2 before an applicant has been found fit for a 3 permit. Those people then have the ability to 4 carry virtually throughout, oh, I would guess 85 5 to 90 percent of the geography of the state of 6 New York, failing only to be appropriate in 7 those some five counties comprising the five 8 boroughs of the city of New York. 9 I believe this is basically an 10 equity issue. This is an issue which I think 11 certainly recognizes the realities of the rights 12 of law-abiding citizens to be permitted to carry 13 or where they've been so approved in the county 14 of their residence. I see no reason why this 15 exception should be carved out. In fact, I 16 commend Senator Holland for bringing this bill 17 to us today, and I vote in the affirmative, Mr. 18 President. 19 ACTING PRESIDENT KUHL: Senator 20 Saland in the affirmative. Clerk will continue 21 the roll. 22 THE SECRETARY: Senator 23 Santiago. 3608 1 (There was no response. ) 2 Senator Sears. 3 SENATOR SEARS: Aye. 4 THE SECRETARY: Senator Seward. 5 SENATOR SEWARD: Aye. 6 THE SECRETARY: Senator Skelos. 7 SENATOR SKELOS: Yes. 8 THE SECRETARY: Senator Smith. 9 SENATOR SMITH: No. 10 THE SECRETARY: Senator Solomon. 11 (There was no response. ) 12 Senator Spano. 13 SENATOR SPANO: Aye. 14 THE SECRETARY: Senator 15 Stachowski. 16 SENATOR STACHOWSKI: Yes. 17 THE SECRETARY: Senator 18 Stafford. Senator Stafford. 19 SENATOR STAFFORD: Aye. 20 THE SECRETARY: Senator 21 Stavisky. 22 SENATOR STAVISKY: My name having 23 been called, I'd like to briefly explain my 3609 1 vote. 2 ACTING PRESIDENT KUHL: Senator 3 Stavisky to explain his vote. 4 SENATOR STAVISKY: How many times 5 does the National Rifle Association's computer 6 have to run? How many times during a session 7 does the NRA have to insist on an act of fealty 8 in order that members here who are fully capable 9 of being reelected with or without the NRA's 10 endorsement have to pledge obedience to the 11 NRA's regressive posture? 12 I've heard statements about 13 obedience to the law, and why should law-abiding 14 citizens in upstate New York not have the 15 opportunity to carry their firearms in New York 16 City because upstate New York obeys the law and 17 we should cast no aspersions? And yet there are 18 times when members here acknowledge that other 19 parts of the state do not necessarily comply 20 with the law in every instance. 21 How many times do I hear my 22 colleague ask for all of our votes for a local 23 bill to exempt from some provision, let us say 3610 1 of the Education Law, a school district that may 2 not have complied with the law? And yet the law 3 is the law. But is the law only the law when 4 you wish it to be so? And is it not the law 5 when you don't like it? 6 We do not want to have the 7 standard of Judge Billy Bob or whatever his name 8 is, in your jurisdiction whom we do not know 9 making decisions with regard to guns in New York 10 City. We have confidence that our police 11 commissioner and our mayor -- our mayor, ladies 12 and gentlemen -- I'm making no distinction, have 13 the ability to speak for the city in which some 14 of us live, the same way as your elected 15 officials have the power to speak for your 16 interests just as you do. 17 Please do not ask us to surrender 18 our rights with regard to the law as it applies 19 to New York City and then go back and tell us 20 you don't want us to obey the law when it comes 21 to your district that has done something to 22 follow up the procedure or to violate the law 23 when they knew it well in advance. 3611 1 I don't want a double standard. 2 I want home rule to apply equally across the 3 state and some of you who know better should not 4 be voting for this type of legislation again and 5 again and ask us in New York City to remain 6 silent when you want us to revise what we expect 7 for our constituents and our visitors. 8 I do not want to impose a 9 standard in your jurisdiction. Please don't do 10 it in the place where I live. I vote no. 11 ACTING PRESIDENT KUHL: Senator 12 Stavisky, how do you vote? Senator Stavisky in 13 the negative. The clerk will continue the 14 roll. 15 THE SECRETARY: Senator Trunzo. 16 SENATOR TRUNZO: Yes. 17 THE SECRETARY: Senator Tully. 18 SENATOR TULLY: Yes. 19 THE SECRETARY: Senator Velella. 20 SENATOR VELELLA: Yes. 21 THE SECRETARY: Senator Volker 22 excused. 23 Senator Waldon. 3612 1 (There was no response. ) 2 Senator Wright. 3 (There was no response.) 4 ACTING PRESIDENT KUHL: The clerk 5 will call the absentees. 6 THE SECRETARY: Senator Babbush. 7 (There was no response. ) 8 Senator Bruno. 9 SENATOR BRUNO: Mr. President. 10 ACTING PRESIDENT KUHL: Senator 11 Bruno to explain his vote. 12 SENATOR BRUNO: Senator, you talk 13 about a double standard. You talk about 14 imposing will on your constituency. I'd like to 15 ask the same indulgence of you and those people 16 that vote against this. 17 I have a pistol permit, legal, 18 like a lot of other citizens in New York State. 19 I resent being treated like a second class 20 citizen in my own state. You have a pistol 21 permit in New York City, you have a perfect 22 right in coming to Rensselaer County, Saratoga 23 County, into my district and carry a weapon. 3613 1 I don't have the same privilege 2 when I go into New York City. That is a double 3 standard. We pass laws in this chamber every 4 day that affect the entire constituency of this 5 state, and I, for one, Mr. President, resent 6 being treated like a second class citizen. 7 I get fingerprinted. I do all of 8 the things that the law says I have to do to get 9 a permit for carrying a pistol. I go into New 10 York City, and I am a criminal if I have that 11 pistol with me. 12 Now, do you call that representa 13 tive? You call that good government? I don't, 14 and I also resent the fact that any time anyone 15 wants to get on their feet, they talk about the 16 NRA and that we're (unintelligible) we're 17 lackey. 18 Well, let's talk about being a 19 citizen who feels that he or she has a 20 constitutional right to carry a weapon here in 21 New York State or in the United States, and that 22 is totally unrelated to the NRA. So that may be 23 self-serving in your constituency, but it's of 3614 1 no value here in this constituency. 2 So, Mr. President, in fairness to 3 all the citizens of this state, equal 4 opportunity for all the citizens, I vote yes. 5 ACTING PRESIDENT KUHL: Senator 6 Bruno in the affirmative. Clerk will continue 7 the roll call. 8 THE SECRETARY: Senator 9 Gonzalez. 10 (There was no response. ) 11 Senator Goodman. 12 SENATOR GOODMAN: No. 13 THE SECRETARY: Senator 14 Hoffmann. 15 SENATOR HOFFMANN: To explain my 16 vote. 17 ACTING PRESIDENT KUHL: Senator 18 Hoffmann to explain her vote. 19 SENATOR HOFFMANN: In the ten 20 years that I have endured the debate on this 21 bill, I've heard many things said on this floor 22 that made me cringe, and today was another one 23 of those days. 3615 1 I would like to add my voice to 2 the other upstate representatives who are 3 talking about the issue of parity and fairness 4 and the constitutional guarantee that we have to 5 recognize rights enforced by the state of New 6 York that allow people to do things across the 7 state and to recognize that one jurisdiction 8 does not have the right to deny people the 9 opportunity to use a right which has been 10 granted in another jurisdiction of the state. 11 It is a relatively simple concept. 12 But what we have seen today is 13 another example of somehow that issue of 14 fairness is instead cast aside and we have 15 territorial warfare and territorial prejudices 16 exposed, and in this case a rather interesting 17 class issue. I have never heard any castigation 18 before of this chamber following the will of the 19 NRA, and I resent the implication that any of us 20 are taking orders from an organization like the 21 National Rifle Association or any other 22 organization. 23 Those charges were once made 3616 1 about people who ran for office in this country 2 who belong to minority religious groups and 3 people who make those charges today are regarded 4 as uneducated boobs, and I am appalled that any 5 member of this chamber would accuse us, those of 6 us who vote our conscience on this issue of 7 taking orders from an organization and the 8 reference to "Judge Billy Bob or whatever their 9 names are" in the upstate area is another af 10 front to people of this state. That's a direct 11 reference to cartoon characterizations of people 12 who live in the back woods. It's a Beverly 13 Hillbillies kind of slap on those of us in 14 upstate New York. 15 The Republican judges in Onondaga 16 County who issue pistol permits would be 17 offended to hear their characterization of 18 "Judge Billy Bob or whatever their names are" 19 in these chambers today. They follow the law. 20 They use waiting periods that are far in excess 21 of what the national standard has been. They 22 screen people sometimes to excess, and they are 23 fair and they recognize the Constitution and we 3617 1 should recognize the Constitution for people all 2 over the state of New York. 3 I hope the next time this bill 4 comes up that the tenor of debate will be of a 5 higher level and it will not be one in which 6 everybody from upstate New York is cast in one 7 lot and lumped with ridicule. 8 I vote aye. 9 ACTING PRESIDENT KUHL: Senator 10 Hoffmann in the affirmative. The clerk will 11 continue the roll call. 12 THE SECRETARY: Senator Lack. 13 SENATOR LACK: Aye. 14 THE SECRETARY: Senator Levy. 15 SENATOR LEVY: Aye. 16 THE SECRETARY: Senator 17 Ohrenstein. 18 (There was no response.) 19 Senator Oppenheimer. 20 (There was no response. ) 21 Senator Pataki. 22 (There was no response.) 23 Senator Santiago. 3618 1 (There was no response. ) 2 Senator Solomon. 3 SENATOR SOLOMON: No. 4 THE SECRETARY: Senator Wright. 5 (There was no response.) 6 ACTING PRESIDENT KUHL: The clerk 7 will announce the results. 8 THE SECRETARY: Ayes 34, nays 9 16. 10 ACTING PRESIDENT KUHL: The bill 11 is passed. 12 Senator Present. 13 SENATOR PRESENT: Recognize 14 Senator Stafford. 15 SENATOR STAFFORD: I would like 16 to call an immediate meeting of the Committee on 17 Finance in Room 332, please. 18 ACTING PRESIDENT KUHL: Senator 19 Stafford calls an immediate meeting of the 20 Committee on Finance in Room 332, immediate 21 meeting of the Senate Finance Committee. 22 Senator Present, do you desire to 23 continue. 3619 1 SENATOR PRESENT: Regular order. 2 ACTING PRESIDENT KUHL: Clerk 3 will continue to call the controversial 4 calendar. 5 THE SECRETARY: Calendar Number 6 654, by Senator Hannon, Senate Bill Number 277A, 7 an act to amend the Administrative Code of the 8 City of New York and the Emergency Tenant 9 Protection Act. 10 SENATOR GALIBER: Explanation. 11 ACTING PRESIDENT KUHL: Senator 12 Hannon, Senator Galiber has asked for an 13 explanation. 14 Senator Hannon for an 15 explanation. 16 SENATOR HANNON: This bill 17 provides that the failure to file a city -- New 18 York City income tax return by a tenant in a 19 rent-regulated apartment would be prima facie 20 evidence that the tenant doesn't have a primary 21 residency in New York City, which is a 22 requirement - 23 ACTING PRESIDENT KUHL: Senator 3620 1 Hannon, excuse me just a minute. 2 Ladies and gentlemen, there is a 3 great deal of noise in the chamber. Very 4 difficult for the chair to understand what 5 Senator Hannon is saying even with the use of 6 the microphone. Could we please quiet it down. 7 Thank you, Senator Hannon. 8 SENATOR HANNON: In conclusion of 9 the explanation, this legislation doesn't apply 10 to individuals who request an extension or 11 provide any other reasonable excuse for failure 12 to file their taxes in a timely fashion. 13 ACTING PRESIDENT KUHL: Clerk 14 will read the last section. 15 SENATOR GOLD: Mr. President. 16 ACTING PRESIDENT KUHL: Take that 17 back. Senator Gold. 18 SENATOR GOLD: As has been 19 pointed out in the past on this bill which keeps 20 coming back, it's opposed by the New York State 21 Tenant and Neighborhood Coalition; and Senator 22 Connor and Espada, myself, Montgomery, 23 Ohrenstein and Waldon have voted against it in 3621 1 the past, I guess on the simple theory that you 2 are mixing apples and oranges; and what can I 3 tell you? 4 Last section. 5 ACTING PRESIDENT KUHL: Clerk 6 will read the last section. 7 THE SECRETARY: Section 5. This 8 act shall take effect immediately. 9 ACTING PRESIDENT KUHL: Call the 10 roll. 11 (The Secretary called the roll.) 12 ACTING PRESIDENT KUHL: Clerk 13 will announce the results. 14 THE SECRETARY: Those recorded in 15 the negative on -- those recorded in the 16 negative on Calendar Number 654 are Senators 17 Espada, Gold, Goodman, Leichter, Mendez, 18 Montgomery, Onorato, Smith, Stavisky, also 19 Senator Markowitz, also Senator Kruger. Ayes 20 41. Nays 11. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 THE SECRETARY: Calendar Number 3622 1 699, by Senator Volker. 2 SENATOR GOLD: Hold that 3 temporarily for Senator Galiber. 4 ACTING PRESIDENT KUHL: Lay the 5 bill aside temporarily. 6 THE SECRETARY: Calendar Number 7 727, by Senator Hannon, Senate Bill Number 6627, 8 an act to amend the Administrative Code of the 9 City of New York. 10 ACTING PRESIDENT KUHL: Senator 11 Hannon, Senator Stavisky would like an 12 explanation. 13 SENATOR PRESENT: Lay it aside 14 temporarily. 15 SENATOR GOLD: Thank you. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside temporarily. 18 THE SECRETARY: Calendar Number 19 773, by Senator Saland, Senate Bill Number 4331 20 an act to amend the Family Court Act, in 21 relation to authorizing fees for probation 22 services in Family Court. 23 SENATOR GOLD: Explanation. 3623 1 ACTING PRESIDENT KUHL: 2 Explanation has been asked for. 3 SENATOR PRESENT: Lay it aside 4 temporarily. 5 ACTING PRESIDENT KUHL: Lay the 6 bill aside temporarily. 7 THE SECRETARY: Calendar Number 8 879, by Senator Present, Senate Bill Number 9 2108, an act to amend the Insurance Law, in 10 relation to coverage for mammography screening. 11 SENATOR SOLOMON: Mr. President. 12 ACTING PRESIDENT KUHL: Senator 13 Solomon. 14 SENATOR SOLOMON: Will the 15 sponsor yield, please. 16 ACTING PRESIDENT KUHL: Senator 17 Present, do you yield for a question? 18 SENATOR PRESENT: Yes. 19 ACTING PRESIDENT KUHL: Senator 20 does. Senator Solomon. 21 SENATOR SOLOMON: Senator 22 Present, I'm sure you are aware that ERISA, the 23 Employee Retirement Income Security Act, 3624 1 prohibits states from having mandates on 2 insurance policies that cross state lines so 3 there can be standardization of policies. How 4 do you reconcile this bill with ERISA? 5 SENATOR PRESENT: I don't think 6 this bill conflicts with the federal law. 7 SENATOR SOLOMON: Can you cite me 8 any cases where you can prove that, any legal 9 opinion? Because this directly contradicts 10 federal law under ERISA. 11 SENATOR PRESENT: It only covers 12 laws that are governed by New York State law. 13 SENATOR SOLOMON: Senator, I read 14 this legislation -- Senator, correct me if I'm 15 wrong. Does not this legislation mandate - 16 Mr. President, if the Senator 17 will yield. 18 Doesn't this legislation require 19 any policies issued -- any policy to cover 20 mammography exams even if those policies are 21 issued out of state. 22 SENATOR PRESENT: I think that 23 this bill provides only the mandates that are 3625 1 covered by other laws, covered mandates. I 2 think you interpret it wrong. We differ. I 3 think you raised this issue in the past, when 4 this bill has passed in the Senate. 5 SENATOR SOLOMON: Well, I just 6 read the bill, and the bill in and of itself 7 basically says - 8 ACTING PRESIDENT KUHL: Senator 9 Solomon, are you asking Senator Present - 10 SENATOR SOLOMON: On the bill, 11 Mr. President. 12 ACTING PRESIDENT KUHL: On the 13 bill. Senator Solomon on the bill. 14 SENATOR SOLOMON: "Any policy 15 which provides" -- let's see. The part that you 16 are taking out is, "except that this provision 17 shall not apply to a policy which covers persons 18 employed in more than one state or the benefit 19 structure which is the subject of a collective 20 bargaining affecting persons employed by one 21 state." That's what ERISA was specifically 22 designed to do and has been interpreted by the 23 courts. 3626 1 The Courts have said where you 2 have insurance policies that go across state 3 lines -- for instance, General Electric can 4 issue the same policy or have the same insurance 5 coverage for all its employees. The state can 6 not mandate certain coverages. 7 And in addition to the impact of 8 this bill, what will happen is we will just 9 basically have insurers move out of the state or 10 the insurance policies will not be bought from 11 New York State insurers. This bill directly 12 contradicts ERISA. There is no court case that 13 I know of, after doing a lot of research on 14 ERISA, that supports the basis of this 15 legislation, and the only thing we're doing is 16 passing a law which is going to cause the loss 17 of employment in this state and the loss of 18 revenue in this state because there are premium 19 tax dollars that are generated when insurance 20 policies are sold, and we're going to lose those 21 premium tax dollars. 22 ACTING PRESIDENT KUHL: Any other 23 Senator wishing to speak on the bill? 3627 1 (There was no response.) 2 Clerk will read the last section. 3 THE SECRETARY: Section 3. This 4 act shall take effect on the first day of 5 January next succeeding the date on which it 6 shall have become a law. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll.) 10 ACTING PRESIDENT KUHL: Announce 11 the results. 12 THE SECRETARY: Ayes 52. Nays 13 2. Senators Kuhl and Solomon recorded in the 14 negative. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 SENATOR CONNOR: Mr. President. 18 ACTING PRESIDENT KUHL: Senator 19 Connor. 20 SENATOR CONNOR: Thank you, Mr. 21 President. May I have unanimous consent to be 22 recorded in the negative on Calendar Number 654. 23 ACTING PRESIDENT KUHL: Without 3628 1 objection, Senator Connor is recorded in the 2 negative on Calendar Number 654. 3 Senator Present. 4 SENATOR PRESENT: Go back to 5 Calendar 773, please. 6 ACTING PRESIDENT KUHL: The clerk 7 will read Calendar Number 773. 8 THE SECRETARY: Calendar Number 9 773, by Senator Saland, Senate Bill Number 4331, 10 an act to amend the Family Court Act, in 11 relation to authorizing fees for probation 12 services in Family Court. 13 SENATOR GOLD: Explanation. 14 ACTING PRESIDENT KUHL: Senator 15 Gold has asked for an explanation. Senator 16 Saland for an explanation. 17 SENATOR SALAND: Thank you, Mr. 18 President. 19 Mr. President. This bill would 20 amend the Family Court Act to permit a court to 21 order a home investigation by a probation 22 department -- a county probation department, 23 which it already has the authority to do, but 3629 1 add to that authorization the ability for the 2 court to charge a -- permit the probation 3 department to charge a fee from $50 to $500 or 4 waive that fee in its entirety where on a 5 showing of means the court determines that it 6 would not be appropriate. Currently, that 7 authority exists for home studies in cases 8 involving custody proceedings. 9 SENATOR GOLD: Mr. President. 10 ACTING PRESIDENT KUHL: Senator 11 Gold. 12 SENATOR GOLD: I just wanted - 13 for those members who have voted in the negative 14 before, Senator Galiber, Montgomery and Onorato, 15 Paterson, Santiago, Solomon, Stavisky, Waldon, 16 Kuhl, Pataki, and Skelos. 17 ACTING PRESIDENT KUHL: Clerk 18 will read the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect on the first day of 21 October next succeeding the date on which it 22 shall have become a law. 23 ACTING PRESIDENT KUHL: Call the 3630 1 roll. 2 (The Secretary called the roll.) 3 ACTING PRESIDENT KUHL: Senator 4 Padavan, to explain your vote? 5 SENATOR PADAVAN: Voting in the 6 negative. 7 THE SECRETARY: Those recorded in 8 the negative on Calendar Number 773 are Senators 9 Connor, DiCarlo, Gold, Kruger, Kuhl, Leichter, 10 Mendez, Montgomery, Nanula, Onorato, Padavan, 11 Santiago, Skelos, Solomon and Stavisky. 12 Ayes 39. Nays 15. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 Senator Present. 16 SENATOR PRESENT: Would you 17 recognize Senator Goodman, please? 18 ACTING PRESIDENT KUHL: Senator 19 Goodman. 20 SENATOR GOODMAN: Mr. President. 21 It's my privilege and pleasure to bring to the 22 attention of the chamber the fact that we have 23 here a very distinguished senior member of the 3631 1 United States Senate in our presence. I'm 2 honored to have you meet and greet Senator Phil 3 Gramm of Texas, who, as you know, is one of the 4 more scholarly members of the United States 5 Senate having himself been a professor, an 6 expert on many issues, who is in Albany today 7 for the purpose of discussing matters relating 8 to health. 9 Senator Gramm, we're very pleased 10 indeed to see you, and we warmly welcome you. 11 (Applause.) 12 ACTING PRESIDENT KUHL: Senator 13 Gramm, on behalf of the Senate Majority Leader, 14 Senator Marino, we certainly welcome you here. 15 We're pleased that you found time to leave the 16 busy city of Washington to come up and join us 17 in our proceedings. Welcome. 18 I notice that Senator Goodman 19 didn't know which side of the aisle to take you, 20 but certainly we appreciate your being here. 21 Senator Nanula. 22 SENATOR NANULA: Mr. President. 23 I'd like to request unanimous consent to be 3632 1 recorded in the negative on Calendar Number 654. 2 ACTING PRESIDENT KUHL: Without 3 objection, Senator Nanula will be recorded in 4 the negative on Calendar Number 654. 5 Senator Wright. 6 SENATOR WRIGHT: Mr. President. 7 I was away on Senate business when the vote on 8 Calendar 632, Senate Print Number S.207A, was 9 taken. I would like the record to reflect that 10 had I been in the chamber when the vote was 11 taken, I would have voted in the affirmative on 12 Calendar 632. 13 ACTING PRESIDENT KUHL: The 14 record will reflect that had Senator Wright been 15 here, he would have voted in the affirmative on 16 Calendar Number 632. 17 Senator Santiago. 18 SENATOR SANTIAGO: I request 19 unanimous consent to be recorded in the negative 20 on Calendar 632 and 654. 21 ACTING PRESIDENT KUHL: Senator 22 Santiago, without objection, you will be 23 recorded in the negative on Calendar Number 3633 1 654. If you would like, the record will reflect 2 that had you been here when the vote was taken 3 on Calendar Number 632, you would have voted in 4 the negative. 5 SENATOR GOLD: Thank you, Mr. 6 President. 7 ACTING PRESIDENT KUHL: Further 8 housekeeping? 9 (There was no response.) 10 Continue the roll. 11 THE SECRETARY: Calendar Number 12 894, by Senator Rath, Senate Bill Number 7054A, 13 an act to amend the State Administrative 14 Procedure Act. 15 SENATOR GOLD: Yes. 16 ACTING PRESIDENT KUHL: Senator 17 Gold. 18 SENATOR GOLD: Senator, could we 19 impose to put this over for one day for Senator 20 Oppenheimer, please? 21 SENATOR RATH: I couldn't hear 22 you, Senator. 23 SENATOR GOLD: Pardon me? 3634 1 SENATOR RATH: I can't hear you. 2 SENATOR GOLD: That's the idea. 3 Senator, could we put this over for one day for 4 Senator Oppenheimer, please? 5 SENATOR RATH: Sure. 6 SENATOR GOLD: Thank you very 7 much. 8 ACTING PRESIDENT KUHL: The bill 9 is laid aside for the day. 10 Senator Present. 11 SENATOR PRESENT: Mr. President. 12 Can we stand at ease for a few moments. 13 ACTING PRESIDENT KUHL: Senator, 14 we have a motion on the floor. Can we recognize 15 Senator Holland? 16 SENATOR PRESENT: Go ahead. 17 ACTING PRESIDENT KUHL: Senator 18 Holland. 19 SENATOR HOLLAND: Mr. President. 20 I move the following bill be discharged from its 21 respective committee and be recommitted with 22 instructions to strike the enacting clause: 23 8355. 3635 1 ACTING PRESIDENT KUHL: Without 2 objection, so ordered. 3 Senator Maltese. 4 SENATOR MALTESE: Mr. President. 5 I ask that Senate Bill, my bill 5059, Calendar 6 Number 84, be starred. 7 ACTING PRESIDENT KUHL: Place a 8 sponsor star -- Senator, the calendar number, 9 again, was - 10 SENATOR MALTESE: 84. 11 ACTING PRESIDENT KUHL: Calendar 12 Number 84 will have a sponsor star placed on it. 13 SENATOR PRESENT: At ease. 14 ACTING PRESIDENT KUHL: Senate 15 will stand at ease for just a few moments. 16 (Whereupon, at 5:07 p.m., the 17 Senate stood at ease.) 18 (Whereupon, at 5:20 p.m., Senate 19 reconvened.). 20 ACTING PRESIDENT KUHL: Senate 21 will come to order. 22 Senator Present. 23 SENATOR PRESENT: Can we return 3636 1 to the reports of the standing committee? 2 ACTING PRESIDENT KUHL: That we 3 can, Senator. 4 We will return to reports of 5 standing committees. Clerk will read. 6 THE SECRETARY: Senator Stafford, 7 from the Committee on Finance, reports the 8 following bills directly for third reading: 9 Senate Bill Number 8474, by the 10 Committee on Rules, an act to provide for 11 payments to municipalities. 12 Senate Bill Number 8475, by the 13 Committee on Rules, an act to amend Chapter 84 14 of the laws of 1994. 15 Senate Bill 8476, by the 16 Committee on Rules, an act to provide for 17 payments to vendors. 18 Senate Bill Number 8477, by the 19 Committee on Rules, an act making an 20 appropriation for the support of government. 21 Senate Bill Number 8478, by the 22 Committee on Rules, an act making an 23 appropriation for the support of government. 3637 1 All bills reported directly for 2 third reading. 3 ACTING PRESIDENT KUHL: Without 4 objection, all bills are reported directly for 5 Third Reading. 6 Senator Present. 7 SENATOR PRESENT: Mr. President. 8 Can I have those bills read at this time, 9 starting with Calendar 1072. 10 ACTING PRESIDENT KUHL: Clerk 11 will read, starting with Calendar Number 1072. 12 THE SECRETARY: Calendar Number 13 1072, by the Senate Committee on Rules, Senate 14 Bill Number 8474, an act to provide for payments 15 to municipalities and to providers of medical 16 services. 17 ACTING PRESIDENT KUHL: Senator 18 Present. 19 SENATOR PRESENT: Mr. President. 20 Is there a message at the desk? 21 ACTING PRESIDENT KUHL: There is, 22 Senator Present. 23 SENATOR PRESENT: I move that we 3638 1 accept the messages, as I think there are two. 2 ACTING PRESIDENT KUHL: On the 3 motion, all those in favor signify by saying 4 aye. 5 (Response of "Aye.") 6 Opposed nay. 7 (There was no response.) 8 The motion is approved. 9 Clerk will read the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect immediately. 12 ACTING PRESIDENT KUHL: Call the 13 roll. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes 54. 16 ACTING PRESIDENT KUHL: The bill 17 is passed. 18 THE SECRETARY: Oh, excuse me. 19 Ayes 52. Nays 2. Senators Holland and Maltese 20 recorded in the negative on Calendar 1072. 21 Also, Senator Sears in the negative on Calendar 22 1072. 23 ACTING PRESIDENT KUHL: The bill 3639 1 is passed. 2 Senator Present. 3 SENATOR PRESENT: Calendar 1073, 4 please. 5 ACTING PRESIDENT KUHL: Clerk 6 will read Calendar Number 1073. 7 THE SECRETARY: Calendar Number 8 1073, by the Senate Committee on Rules, Senate 9 Bill Number 8475, an act to amend Chapter 84 of 10 the Laws of 1994, an appropriation for debt 11 services obligations. 12 ACTING PRESIDENT KUHL: Clerk 13 will read the last section. 14 SENATOR PRESENT: Mr. President. 15 Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 Present. 18 SENATOR PRESENT: Are there 19 messages of necessity and message of 20 appropriation at the desk? 21 ACTING PRESIDENT KUHL: There 22 are, Senator Present. 23 SENATOR PRESENT: I move we 3640 1 accept the messages. 2 ACTING PRESIDENT KUHL: All those 3 in favor, signify by saying aye. 4 (Response of "Aye.") 5 Opposed, nay. 6 (There was no response.) 7 The motion is approved. 8 Clerk 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 54. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 Clerk will read Calendar Number 18 1074. 19 THE SECRETARY: Calendar Number 20 1074, by the Senate Committee on Rules, Senate 21 Bill Number 8476, an act to provide for payments 22 to vendors under the Women, Infants and 23 Children's program. 3641 1 ACTING PRESIDENT KUHL: Senator 2 Present. 3 SENATOR PRESENT: Mr. President. 4 Is there a message of necessity and a message of 5 appropriations at the desk. 6 ACTING PRESIDENT KUHL: There is, 7 Senator Present. 8 SENATOR PRESENT: I move that we 9 accept the messages. 10 ACTING PRESIDENT KUHL: All those 11 in favor, signify by saying aye. 12 (Response of "Aye.") 13 Opposed, nay. 14 (There was no response.) 15 The messages are 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 54. 23 ACTING PRESIDENT KUHL: The bill 3642 1 is passed. 2 Clerk will call Calendar Number 3 1075. 4 THE SECRETARY: Calendar Number 5 1075, by the Senate Committee on Rules, Senate 6 Bill Number 8477, an act making an appropriation 7 for the support of government. 8 ACTING PRESIDENT KUHL: Senator 9 Present. 10 SENATOR PRESENT: Mr. President. 11 Is there a message of necessity and a message of 12 appropriation at the desk on this bill? 13 ACTING PRESIDENT KUHL: There is, 14 Senator Present. 15 SENATOR PRESENT: Mr. President. 16 I move we 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 messages are accepted. 23 Clerk will read the last section. 3643 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 THE SECRETARY: Ayes 54. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 Clerk will read Calendar Number 10 1076. 11 THE SECRETARY: Calendar Number 12 1076, by the Senate Committee on Rules, Senate 13 Bill Number 8478, an act making an appropriation 14 for the support of government. 15 ACTING PRESIDENT KUHL: Senator 16 Present. 17 SENATOR PRESENT: Mr. President. 18 Is a message of necessity and a message of 19 appropriation at the desk on this bill? 20 ACTING PRESIDENT KUHL: There is, 21 Senator Present. 22 SENATOR PRESENT: Mr. President. 23 I move that we accept the messages. 3644 1 ACTING PRESIDENT KUHL: All those 2 in favor, signify by saying aye. 3 (Response of "Aye.") 4 Those opposed, nay. 5 (Response of "Nay.") 6 Senator Dollinger is recorded in 7 the negative. The messages are accepted. 8 The clerk will read the last 9 section. 10 THE SECRETARY: Section 2. This 11 act shall take effect immediately. 12 ACTING PRESIDENT KUHL: Call the 13 roll. 14 (The Secretary called the roll.) 15 ACTING PRESIDENT KUHL: Announce 16 the results. 17 THE SECRETARY: Those recorded in 18 the negative on Calendar Number 1076 are 19 Senators Dollinger, Jones and Nanula. Ayes 52. 20 Nays 3. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 Senator Present. 3645 1 SENATOR PRESENT: Mr. President. 2 Can we go back to Calendar 699? 3 ACTING PRESIDENT KUHL: We will 4 return to Calendar Number 699. Ask the clerk to 5 read. 6 SENATOR GALIBER: Explanation. 7 THE SECRETARY: Calendar Number 8 699, by Senator Volker, Senate Bill Number 7574, 9 an act to amend the Criminal Procedure Law, in 10 relation to corrective remedies. 11 SENATOR GALIBER: Explanation, 12 please. 13 ACTING PRESIDENT KUHL: An 14 explanation has been asked for by Senator 15 Galiber. 16 Senator Maltese. 17 SENATOR MALTESE: Mr. President. 18 This statute seeks to amend the Criminal 19 Procedure Law with regard to the people's 20 failure to serve on the defendant copies of 21 witnesses' statements. 22 Basically, it adds a new Section 23 240.46 to the Criminal Procedure Law to provide 3646 1 that a reversal or modification of a judgment 2 for failure to turn over copies of a witness's 3 statements may not occur unless the defendant 4 demonstrates that his rights were affected. 5 This is a statutory answer to 6 People versus Ranghelle, which was decided on by 7 our Court of Appeals in 1986, and what People 8 versus Ranghelle did to the discovery rule, the 9 Rosario rule, is extended it very unreasonably 10 and to an extent that is not followed in any 11 other jurisdiction in the United States. And 12 what they said is, that even if a witness's 13 prior statements do not contradict his 14 testimony, even if those statements were not 15 produced in bad faith, even if the substantial 16 rights of the defendant are not affected in any 17 shape, manner or form, or even if those prior 18 statements absolutely buttress and substantiate 19 and follow the witness's subsequent statements, 20 that the case must be reversed and a new trial 21 ordered. 22 So this is a corrective piece of 23 legislation that, as a matter of fact, was 3647 1 requested by the District Attorneys' Association 2 of the State of New York, has been supported by 3 every district attorneys' -- every county 4 district attorney that has communicated with us; 5 and, as a matter of fact, in a subsequent case 6 People versus Dana Jones, Justice Joseph 7 Bellacosa indicated that the decision in People 8 versus Ranghelle was "a prosecutor's nightmare 9 and a perpetrator's delight." So this 10 legislation would remedy that prosecutor's 11 nightmare and give us legislation in New York 12 that would not unduly tie the hands of 13 prosecutors and make it mandatory on lower 14 courts to demand -- to reverse prior judgments 15 and demand new trials. 16 ACTING PRESIDENT KUHL: Senator 17 Galiber. 18 SENATOR GALIBER: Yes, thank you, 19 Mr. President. 20 Senator, I don't really have any 21 questions because I can count and I know where 22 this bill is going, but I will just make some 23 observations. 3648 1 You have worked as a district 2 attorney on occasion. You certainly have gone 3 through our procedure as far as a formal 4 education is concerned. You are someone who 5 believes in America. You are someone who 6 believes in the American Flag, and I guess, more 7 importantly, you believe in people, and I'm not 8 saying that with tongue in cheek. We may differ 9 on how we go about the business, but more than 10 often we come to some of the same conclusions. 11 This piece of legislation, as a 12 fair and as a reasonable person and someone who 13 believes in the Constitution of the United 14 States -- and, again, I know all these things 15 and this debate, every now and then we put our 16 tongue in our cheek. 17 And my tongue is not in my cheek 18 on this piece of legislation. It is all about 19 fairness, Senator, and you knew this when you 20 were a prosecutor; and when we seek changes, we 21 seek changes mainly because, somewhere, someone 22 has abused something. This is a situation where 23 there has been a domino effect. 3649 1 Those of us who believe in law 2 and order and some believe in law and order and 3 justice at the same time -- and sometimes there 4 is more than just a fragile distinction; there 5 is a big difference between the two -- believe 6 that the Constitution of the United States was 7 for people, at least most of the people, but it 8 was about fairness and rights. And if we watch 9 very carefully and we follow the various 10 amendments, we have seen this great country of 11 ours progress. 12 We have a situation here where 13 you are now prepared to suggest that we shift 14 the burden from the people, where it's always 15 been, to the defendant. The defendant stands 16 accused, indicted, he is prepared or she's 17 prepared for trial. And we have prosecutors who 18 -- we put them in an arrogant position, 19 especially the new fellows. 20 Not the old timers when you were 21 there. And, again, I'm not massaging you. When 22 they had a case, they went forward with it. If 23 they didn't have a case, they moved to dismiss 3650 1 the case, wouldn't even present it to the grand 2 jury. None of this nonsense that the D.A.'s 3 Association, a number of young folks, some of 4 them in my county, who believe they are going to 5 change the world. The world certainly needs 6 alterations, but not changes. 7 You have here a Rosario bill 8 which we passed some time ago and we have been 9 slowly amending it when it comes to the point 10 where we figure that we haven't got an even 11 playing field; and that's all we're seeking for 12 here or any place in theory -- sometimes in 13 actuality -- to say, "Is it fair?", the 14 presumption of innocence. Those are not just 15 casual words. The defendant appears before the 16 Court. He or she is presumed innocent until 17 proven otherwise by a jury of peers or a judge 18 if it's a nonjury trial. 19 What you would suggest here and 20 perhaps, yea, even encourage, is a situation 21 where if the defendant who has the burden that 22 you're trying to shift over, with little 23 resources in some instances, Legal Aid taking 3651 1 nothing away from or adding onto, Legal Services 2 certainly, even in the case of private 3 attorneys, where they do not have the ways and 4 means, if you will, to go out and properly 5 investigate a case, to marshal, if you will, all 6 the evidence, as the district attorney has tons 7 and tons of investigators, and then that 8 district attorney's office decides what they 9 will use or not use. 10 I'm saying that if you make that 11 decision that we can't change the Constitution; 12 we can't amend the Constitution because of the 13 abuses; and as a result of the abuses, there are 14 procedures which says or suggests, if you don't 15 give up this information on demand, per se, as 16 such, it's gone. It's an automatic reversal. 17 Does that do harm to anyone? Is 18 that unreasonable? Is it not American? Is it 19 not part of the forefathers' Constitution that 20 they put into existence? It's American as I 21 use the expression from time to time. 22 Why now should we change it 23 merely because we have the votes? Why should 3652 1 we tinker with something which is so very 2 important, because we have the votes? Why 3 should we bulldoze and make that kind of even 4 playing field disruptive and making it uneven 5 again to shift this responsibility back to the 6 defendant? 7 Senator, this bill is just not 8 fair, and I know that things and conditions are 9 so bad in our society and some of our areas, 10 whether it's talking about bringing guns into 11 our community, or whatever the case may be, the 12 conditions are so bad that even those persons 13 who are saying we have gone too far with 14 mandatory sentences, we have gone too far with 15 all the other "Get Tough on Crime," which I 16 agree we don't agree about the procedure, but 17 certainly things are horrible in our 18 communities. When you come Upstate, they are 19 still horrible, but they are just better. They 20 smooth out a little bit, but they are horrible 21 in our district, and you know that. 22 This is not the answer. This is 23 one of those occasions when we take a position, 3653 1 "Whether it's death penalty or no?", and those 2 who are strong believers of the death penalty, 3 and I respect those judgments -- you know that 4 as well as I do, for years. "Well, you know, if 5 one innocent person happens to be electrocuted, 6 sobeit; that's the way it goes." 7 In this piece of legislation, 8 we're saying until we find another system -- and 9 the American system to me is a good system with 10 a number of cracks in the armor but the best 11 system that I know of, and I have some personal 12 problems with this great nation of ours, but 13 we've seen progress. So, those of us who are 14 concerned, as those of you on this side of the 15 aisle and on this side of the aisle are 16 concerned how we will slowly but surely whittle 17 away at certain basic rights that people have. 18 We took the 14th Amendment and 19 some number of other Amendments and we keep just 20 attempting to destroy them. It's like declaring 21 war, and that's what this "Get Tough on 22 Criminals" and get tough and hard on things that 23 are happening in our community. It's a cause, 3654 1 it's a phase, it's another kind of war; and as a 2 result of it, we hide behind the notion of a 3 war, like we declared war on poverty. I can't 4 imagine doing that, but we did it, and we hid 5 behind it and a lot of abuses took place, but it 6 gave us the right to do some other things. 7 We have gone through a sensitive 8 area and that I'm concerned with, and that's the 9 war on drugs. Once we throw that out, it's like 10 a Madison Avenue public relations firm 11 "declaring war." 12 This piece of legislation is akin 13 to that because, when we declare war, then we 14 justify all those things which are guaranteed by 15 our Constitution, we throw them aside. We start 16 kicking in doors without search warrants. We 17 beat up people with due cause. We do all these 18 horrible things, and we say, "But this is a 19 war." This is a war so, therefore, we have 20 justified them. 21 This reminds me, Senator, this 22 piece of legislation -- and I said to one of 23 counsels here, I said, "I wish Dale Volker was 3655 1 here," not for the substance of the matter, 2 because certainly you argue the point as well as 3 he would, but just we miss him so much, and I 4 wish he was here. I'm sure he will be soon. 5 But, Senator, this is my 6 observations. I don't have enough votes here. 7 But I'm saying we've got to put a screeching 8 halt eventually, or we're going to have another 9 form of government. We can't go on with this 10 craziness in trying to shift burdens because of 11 the horrible conditions that exist in our 12 communities throughout the entire state with 13 varying degrees. And that's what you are 14 suggesting here. You are suggesting that this 15 burden be shifted. You want to tie the hands of 16 prosecutors, as you put it. Nice great terms. 17 No, we don't want to tie the 18 hands of prosecutors. We want to bring back 19 some of those old-time prosecutors who said, "If 20 you are wrong, we're going to indict you, and 21 we're going to convict you." 22 And those old-time judges -- we 23 didn't have to fetter judges like we're doing 3656 1 today. We had a horrible crime, this fellow is 2 in jail right now, mostly males who are serving 3 some long, long, long terms back to those old 4 judges, that we no longer have any confidence 5 in; who were prosecuted by district attorneys 6 who we no longer have confidence in their 7 philosophy; and you came up during that period 8 of time. Those were good solid days where 9 America meant something, our system meant 10 something, and it worked pretty good. 11 We want to get merit judges 12 because the old judges that we elected are no 13 good. I don't know, they served me pretty well 14 and you also. We're trying to go change a 15 system that doesn't need changing. 16 And, Senator, this piece of 17 legislation gives a basic American right that a 18 defendant appears before the Court, his peers, 19 clothed with the indicia of innocence, a 20 presumption of innocence, built into that 21 notion, this does violence. This does violence 22 to that presumption of innocence. 23 SENATOR SOLOMON: Mr. President. 3657 1 ACTING PRESIDENT KUHL: Senator 2 Solomon. 3 SENATOR SOLOMON: Thank you, Mr. 4 President. 5 Will Senator Maltese yield, 6 please? 7 ACTING PRESIDENT KUHL: Senator 8 Maltese, do you yield to Senator Solomon? 9 SENATOR MALTESE: Yes. 10 ACTING PRESIDENT KUHL: Senator 11 does. 12 Senator Solomon, will you yield 13 temporarily? 14 Senator Present. 15 SENATOR PRESENT: Mr. President. 16 Can we lay this bill aside just for a moment, 17 and take up 727 and read the last section. 18 ACTING PRESIDENT KUHL: Calendar 19 699 will be laid aside just for a moment. 20 Clerk will call up Calendar 21 Number 727. 22 THE SECRETARY: Calendar Number 23 727, by Senator Hannon, Senate Bill Number 6627, 3658 1 an act to amend the Administrative Code of the 2 City of New York. 3 ACTING PRESIDENT KUHL: Clerk 4 will read the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll.) 10 ACTING PRESIDENT KUHL: Senator 11 Oppenheimer, how do you vote on this bill? 12 SENATOR OPPENHEIMER: I would 13 like to vote in the negative, please. 14 ACTING PRESIDENT KUHL: Senator 15 Oppenheimer recorded in the negative. 16 The roll call will be withdrawn. 17 Excuse me. While the roll call is still open - 18 Senator Velella. 19 SENATOR VELELLA: Negative. 20 ACTING PRESIDENT KUHL: In the 21 negative. 22 Senator Goodman. 23 SENATOR GOODMAN: Nay. 3659 1 ACTING PRESIDENT KUHL: In the 2 negative. 3 Senator Padavan. 4 SENATOR PADAVAN: (Indicating 5 negative.) 6 ACTING PRESIDENT KUHL: In the 7 negative. 8 Senator LaValle. 9 SENATOR LAVALLE: Aye. 10 ACTING PRESIDENT KUHL: In the 11 affirmative. 12 Now, the roll call will be 13 withdrawn. The bill is laid aside. 14 We will return to Calendar Number 15 699. 16 SENATOR SOLOMON: Okay. We got 17 this straight? 18 THE SECRETARY: Calendar Number 19 699, by Senator Volker. 20 SENATOR SOLOMON: Mr. President. 21 Will Senator Maltese yield? 22 ACTING PRESIDENT KUHL: Chair 23 recognizes Senator Solomon. 3660 1 SENATOR SOLOMON: Mr. President. 2 Will Senator Maltese yield? 3 SENATOR MALTESE: Yes, Mr. 4 President. 5 ACTING PRESIDENT KUHL: Senator 6 Maltese, do you yield? 7 Senator Maltese yields. Senator 8 Solomon. 9 SENATOR SOLOMON: I forgot the 10 question. 11 Senator Maltese, I see the 12 Ranghelle decision came down in 1986. If this 13 has been such a -- when was this developed or 14 seen by the prosecutors as such a pressing 15 issue, because it's 1994 now? 16 SENATOR MALTESE: Mr. President. 17 In the very same decision, there were 18 observations made by Judge Bellacosa as to 19 difficulties with this decision. 20 In 1987, a subsequent case, 21 People versus Jones, that's when Judge Bellacosa 22 made statements, both that it was a prosecutor's 23 nightmare but, in addition, indicating that as a 3661 1 common law rule it could be amended by statute, 2 and he indicated that the Legislature should 3 take a look at the judge-made law. The 4 prosecutors, so far as I know, have indicated 5 difficulty with it from the time of the decision 6 in '86 and subsequently in '87. 7 SENATOR SOLOMON: Mr. President. 8 If Senator Maltese will yield? 9 ACTING PRESIDENT KUHL: Senator 10 Maltese, do you continue to yield? 11 SENATOR MALTESE: Yes. 12 ACTING PRESIDENT KUHL: Senator 13 does. 14 SENATOR SOLOMON: Senator, I 15 understand this is not your bill, so if you have 16 the answer, that's fine. If not, that's okay. 17 Do you know when this bill was 18 first introduced or any other bill similar to 19 this was first introduced? 20 SENATOR MALTESE: Mr. President. 21 That's what I've just been advised. The bill 22 was introduced in 1987 and subsequently in every 23 year and apparently was passed by the Senate 3662 1 every year following that. 2 SENATOR SOLOMON: Thank you, Mr. 3 President. 4 SENATOR LEICHTER: Mr. President. 5 ACTING PRESIDENT KUHL: Senator 6 Leichter. On the bill? 7 SENATOR LEICHTER: Mr. 8 President. If Senator Maltese would yield, 9 please? 10 ACTING PRESIDENT KUHL: Senator 11 Maltese, do you yield to Senator Leichter? 12 SENATOR MALTESE: Yes. 13 ACTING PRESIDENT KUHL: The 14 Senator does. 15 SENATOR LEICHTER: Senator, I am 16 concerned about a point that Senator Galiber 17 made, which is, that you are shifting the burden 18 of proof; that it's on the defendant to show 19 that he or she had their substantial rights 20 affected by the failure of the prosecutor to do 21 what the prosecutor should do, which is turn 22 over papers. 23 But what I'm specifically 3663 1 concerned about is the language in this bill 2 that says that -- and I'm reading. The key word 3 is on line 11. Let me read the whole sentence: 4 "The Court shall not set aside a conviction or 5 reverse or modify a judgment on account of a 6 failure to comply with the provisions of Section 7 240.45 of this article..." -- that is the 8 requirement to turn over the papers and 9 documents -- "...unless the defendant 10 demonstrates" -- demonstrates -- "that his 11 substantial rights were affected." 12 By what burden of proof, 13 preponderance, clear and convincing, beyond a 14 reasonable doubt? 15 SENATOR MALTESE: Mr. President. 16 The rule that prevailed prior to the Rosario 17 case and was changed by the Rosario case in all 18 other discovery matters right up until the 19 People versus Ranghelle indicated that the 20 Harmless Error Rule, the rules that indicated 21 that unless a defendant's substantial rights 22 were affected adversely, were prejudiced, that 23 that error would not require the setting aside 3664 1 or modification of a judgment or be calling for 2 a new trial. 3 In all other discovery motions, 4 the defendant would have to show that his 5 substantial rights were violated if he was 6 bringing forth some evidence that would -- some 7 evidence that would indicate that the prosecutor 8 had erred willfully or that it was not a 9 harmless error that could be modified by an 10 action of the Court. 11 The reason that this specific 12 legislation is being put in is because this is 13 so different. As I indicated earlier, this is 14 not the rule that prevails in any other 15 jurisdiction in the United States. This is a 16 rule that twists the Rosario rule, which since 17 '61 has become noncontroversial. The element 18 that my good colleague, Senator Galiber, has 19 indicated, the elements of fairness, the element 20 of a balancing of the equities so that -- and 21 giving every advantage to the defendant, so that 22 he would have a fair trial has been carried, 23 prior to Ranghelle, to a logical conclusion. 3665 1 But this conclusion, I submit, is 2 illogical. It is a twisted perversion because 3 it indicates that even if the prior statement 4 was not inconsistent to any degree; as a matter 5 of fact, even if the prior statement of the 6 witness in question is, "I saw him do it; I saw 7 him pull the trigger, and I saw him kill the 8 deceased," and that is not inconsistent with the 9 subsequent statement of the witness, if that 10 statement through inadvertance and not through 11 bad faith were not disclosed to the defendant 12 prior to the witness testifying, that case would 13 demand the reversal and a new trial. 14 SENATOR LEICHTER: Mr. President. 15 ACTING PRESIDENT KUHL: Senator 16 Leichter. 17 SENATOR LEICHTER: Mr. 18 President. Senator Maltese, you totally failed 19 to address my question. You made another 20 commercial for the bill. You did it well. But 21 I'm not going to repeat the question. I will 22 just try to deal with it myself. 23 The point that I was trying to 3666 1 get at, Senator, was that while I might have no 2 difficulty if a prosecutor failed to turn over a 3 paper and that paper, as you indicated, in no 4 way affected the substantive rights of the 5 defendant. But then, to put the burden on the 6 defendant to show that the paper that was 7 improperly withheld or failed to be turned over 8 -- and it doesn't matter whether it was 9 purposefully or whether it was inadvertent and 10 negligent, or so on. 11 We have these rules in how to do 12 trials. I don't ever do criminal work. I 13 wouldn't trust any defendant to my knowledge of 14 the Criminal Law, but I do some civil work, and 15 I know the importance of turning papers over, 16 and the sanctions that we impose on attorneys 17 and parties if you fail to turn over papers. 18 If it's important in civil cases, 19 it's certainly more important in criminal cases 20 because one of the things that makes our system 21 so wonderful, as Joe Galiber says, is that we do 22 give every opportunity to the defendant because 23 we want to make sure. We want to make sure that 3667 1 we don't convict anybody improperly. 2 I remember first coming to this 3 country and hearing the statement -- as a young 4 person, I was impressed by it -- that we'd 5 rather have 99 guilty people go free than to 6 convict one innocent person. I question whether 7 that's any longer the belief of some people. 8 So, when you have a bill of this 9 sort, I'm just troubled by the fact that you now 10 put the burden on the defendant to show that 11 that paper which was improperly withheld 12 affected his substantive rights. That may be 13 difficult to do. There may be instances where, 14 on the face of it, the paper doesn't seem to 15 directly contradict the defendant's guilt; but 16 an attorney, somebody as skillful as you, having 17 information and the paper, would use it with a 18 witness, and so on. Seems to me that the burden 19 ought to be on the prosecutor -- on the 20 prosecutor to show that that paper did not 21 affect the substantive rights. 22 So my question to you was, if you 23 are putting the burden on the defendant, what is 3668 1 the nature of the -- does he have to show it by 2 the preponderance of the evidence or all the 3 various gradations that we have? But I don't 4 know. 5 I don't know. I think I would be 6 troubled with this bill irrespective of the 7 degree burden you put on the defendant. I would 8 vote for this bill if the burden was on the 9 prosecutor to show that the mistake that the 10 prosecutor made did not affect the rights of the 11 defendant. But, then, where the defendant was 12 damaged or may have been damaged, certainly he 13 didn't get all the papers and documents that he 14 should have. And now you say you didn't get 15 them? "Yeah, you didn't get 'em. Show us that 16 it hurt you." I think that's wrong, Senator. 17 SENATOR MALTESE: Mr. President. 18 ACTING PRESIDENT KUHL: Senator 19 Maltese on the bill. 20 SENATOR MALTESE: The burden - 21 the burden on the prosecutor to prove the 22 defendant's guilt has not shifted; the burden 23 remains the same. 3669 1 As to the specific document in 2 question, the burden, if you will, has not 3 shifted as far as the guilt or innocence of the 4 defendant. What the court -- or what the 5 Legislature here is attempting to do is return 6 sanity to a decision, a court-made decision, a 7 common law decision, which is a rule of 8 evidence, and they have taken the Rosario rule, 9 which I think all of us at this time find to be 10 a reasonable rule, and they have done what we do 11 in criminal trials. They leave it to a jury 12 first of all, but ultimately a judge. And if in 13 a judge's deliberation, he finds that this 14 document when it is discovered would have 15 affected the rights, the substantial rights, of 16 the defendant adversely to whatever degree in 17 his analysis he feels is detrimental, then he 18 still has the same rights he had originally to 19 order a new trial and reverse or modify the 20 prior judgment of the court. 21 What my good colleague, Senator 22 Galiber, was talking about earlier as far as 23 when we were younger, some of us, and we were in 3670 1 various phases of our career, I was a prosecutor 2 for some three and a half years under two 3 district attorneys, two distinguished district 4 attorneys one Nat Hentel and the other a member 5 of this house, Tom Mackell. And I find that in 6 the passage of years -- now it will be almost 30 7 years -- my recollection sometimes dims, and I 8 fall prey to the disease of people who start 9 going into their 60s and 70s that the good old 10 days look better and better all the time, and 11 that we were the repositories of all wisdom, and 12 that our judgments were never wrong, and that 13 the things that we did in the district 14 attorney's office were right and just. And 15 perhaps, nowadays, they don't do it the right 16 way. 17 Now, that isn't to say that I 18 don't agree with Senator Galiber that those days 19 we had better judgment and we did what I would 20 consider a better job and that we had more 21 discretion, for instance; and that in my 22 judgment, again, district attorneys did not - 23 in the exercise of their discretion did not - 3671 1 were not unfair, were not unjust and were able 2 to carry through, carry the best efforts of 3 justice through and protect at the same time 4 defendants. 5 We are in an adversarial system 6 of law, an adversarial system criminal law. 7 This particular piece of legislation is not 8 adversarial. This particular piece of 9 legislation is attempting to utilize some common 10 sense. Certainly, it goes against all common 11 sense if you say that the prior statement in no 12 way contradicts, is perhaps an identical 13 statement of the witness who is to take the 14 stand for the prosecution. Certainly if it has 15 no effect, absolutely no effect of any kind, 16 detrimental or otherwise on the testimony of the 17 witness or on the ultimate finding of guilt or 18 innocence of the defendant, it should not be a 19 cause for reversal. 20 We talk about the ends of justice 21 being served. Those ends are best served by 22 speedy trials not by congesting the courts with 23 repeated, unnecessary, unfruitful, unfair, 3672 1 requests for appeal. 2 In this case, we are seeking to 3 remedy a court-made rule that a justice of the 4 very court that came up with that rule has 5 termed a prosecutor's nightmare and, in effect, 6 has given us a road map of how we in the 7 Legislature can act so that the best interests 8 of all people and the best interests of the 9 defendant would be protected. 10 The interests of justice are not 11 fairly and justly served by protracted appeals, 12 by unnecessary appeals, and by burdening the 13 courts, the prosecutors, and the taxpayers with 14 the unnecessary expense of trying cases 15 repeatedly and over and over again with no 16 effect and without the best interests of justice 17 being served. 18 SENATOR GALIBER: Senator, will 19 you yield for a question? 20 SENATOR MALTESE: Yes. 21 ACTING PRESIDENT KUHL: Senator 22 Galiber asks Senator Maltese to yield. 23 He does. 3673 1 SENATOR GALIBER: Senator, what 2 would be wrong -- you know, I was there in the 3 good old days. I'm sure you weren't talking 4 about me because I recognize the good old days 5 weren't so good in some instances, so I'm a firm 6 believer in that point. 7 But, Senator, let me ask you a 8 question. Wouldn't it be simpler just to give 9 to the defense counsel all the material? 10 Wouldn't that be the simple way? 11 SENATOR MALTESE: Mr. President. 12 Certainly, it would be the simple way. And the 13 law still demands that if a prosecutor fails to 14 comply as far as good faith, that that's a 15 consideration. That's something to be taken 16 into consideration by the Court. 17 I believe that even under this 18 legislation that if a prosecutor withholds, 19 deliberately withholds, prior statements of the 20 witness that it would be cause for both 21 prosecutorial misconduct and, as well, as very 22 compelling reason to still have a new trial 23 called and a judgment reversed. 3674 1 SENATOR GALIBER: Senator, will 2 you yield for another question? 3 ACTING PRESIDENT KUHL: Senator 4 does. 5 SENATOR GALIBER: How do we prove 6 this, Senator, if we go to the extreme -- I'm 7 dramatizing a little bit. We have liberty 8 toward doing these things from time to time, but 9 now by the time -- assuming that we have the 10 money for the appeals now. Everybody doesn't 11 have -- we have 18B lawyers and Legal Aid and a 12 whole litany of persons representing indigent 13 clients, because they don't have the money. 14 Would you suggest that after the fact if this 15 person is now electrocuted, if we had a death 16 penalty, and all of a sudden we found out that 17 somewhere along the line one of those old-time 18 prosecutors withheld, purposely, a little piece 19 of information that might have been favorable to 20 the defendant, we now say to this prosecutor 21 "We're going to take you before the bar 22 association, maybe take your license away," how 23 do we balance it out? Back to the basic 3675 1 question I had before. 2 Why not just give it to them? 3 Why don't we do the right thing from the outset, 4 and we wouldn't have this. Because you and I, 5 when people start talking about criminal law and 6 prosecution and they use words like "craziness" 7 or they use words like "not applicable in 8 certain instances," which is not the craziness 9 you were talking about before, I look with some 10 suspicion that there are sort of code words out 11 there, "unfair," "no harm," "craziness," "a 12 community sense". 13 Senator, what I'm suggesting is 14 there a very simple remedy, and you know in your 15 heart's heart that there is. Just give it all 16 over to them, because by the time it gets up on 17 appeal, some persons just can't go that far. 18 You know? We've had some experience with folks 19 in jail and make all kinds of -- you know, 20 serious threats about what they are going to do 21 to us when they get out and stuff like that, and 22 we trembled and we say, "We hope they never get 23 out," or they die before they -- you know. 3676 1 There is a concern. 2 But there are people in these 3 institutions, and you and I traveled to some of 4 these institutions, who shouldn't be there. And 5 that's not being soft on crime. This is a 6 procedural, this is an evidentiary rule which 7 has held us in good stead. We nibbled away at 8 the Rosario, but it started out because somebody 9 abused. 10 The simple answer here is just 11 give it all up at the outset. Don't leave it in 12 the hands, the discretion of a district attorney 13 who says, "Well, you know, I got somebody 14 testifying but however...", especially in the 15 area of identification. You drew the analogy, 16 that whole criminal justice system, the whole 17 criminal law, the whole trial experience that we 18 have, this whole area of identification. So if 19 you get somebody up and say, such and such, "I 20 saw him pull the gun out and I saw him and this 21 is the person," you are suggesting that if the 22 district attorney has some evidence that this is 23 not so or could be or a doubt somewhere, he can 3677 1 keep it in his back pocket; and the only remedy 2 that the defendant has is if, by chance, 3 somewhere down the line, years later, were you 4 able to prove proof it. 5 And the burden, Senator, does 6 shift to the defendant. Whether you say it or 7 not, it does shift to the defendant. The 8 decision says that, or the suggestion there, 9 shifts over; that he through the process can now 10 come up and find out that this might have been 11 more than just a harmless rule; because what 12 little practice I have -- it's very little - 13 this harmless rule wasn't applied in this 14 instance. 15 The Court said harmless rules is 16 when somebody blinked at the wrong time, or they 17 said they read a paper or they did something in 18 the course of the trial and the Court of Appeals 19 says, "Listen," or the Appellate Division says, 20 "This is a harmless error, because there is 21 overwhelming other evidence that he or she would 22 have been convicted any way." This is not it. 23 What you are attempting to do 3678 1 doesn't cover that harmless area. This covers 2 basic rights that the defendant has, and we all 3 know this, and it's just Monday and it's a 4 little frustrating there's no budget so we - 5 you know, we spend some time on a very important 6 issue. But, you know, you got the votes and it 7 will probably go through. You've done it 8 before. 9 But, Senator, there comes a time 10 -- and I'm not sure we're going to see it in 11 our lifetime -- where we have to put a 12 screeching halt -- now I'll use a code word - 13 this "nonsense" of slowly taking away basic 14 human rights that people have. We got to stop 15 some place. 16 SENATOR GOLD: Last section. 17 ACTING PRESIDENT KUHL: Clerk 18 will read the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect on the first day of 21 November next succeeding the date on which it 22 shall have become a law. 23 ACTING PRESIDENT KUHL: Call the 3679 1 roll. 2 (The Secretary called the roll.) 3 SENATOR GOLD: Mr. President. 4 ACTING PRESIDENT KUHL: Senator 5 Gold to explain his vote. 6 SENATOR GOLD: Yes, thank you 7 very much. 8 Mr. President. My distinguished 9 colleague from the County of the Bronx could not 10 possibly be more correct than he has been in the 11 last few minutes, and that's because we're 12 talking about the real world. 13 Now, I have tried cases, a lot of 14 them, and believe me, I love juries but there's 15 plenty of times when I had the feeling that 16 while the jury came in with what I thought was 17 the right verdict, a judge might have done 18 something different. And that judge doing 19 something different might have thought that the 20 failure to give simple discovery might have been 21 unsubstantial in terms of the rights of the 22 defendant because the judge would have done 23 something else. 3680 1 And you can't do that. You can't 2 put the situation to have a Court making that 3 determination when the Court is not trying the 4 case. 5 There was one case I had where 6 the judge's eyebrows went up when the jury came 7 back with the verdict, and he called me up to 8 the bench. In a very, very friendly way and 9 kind of cute way, he says, "Manny, what was the 10 nature of the defense again?" And he thought it 11 was funny, because he never would have come in 12 with the verdict of the jury. That judge, who 13 was one of the really great ones in this state, 14 happens to now be an Appellate Division judge. 15 And the bottom line here is that 16 Senator Leichter made what I thought was a 17 reasoned person's offer. If you want to give a 18 district attorney the right to argue that the 19 rights weren't prejudiced, then the district 20 attorney carries that burden. And then let the 21 defense lawyer stand up and say, "But you don't 22 understand what I would have done during 23 cross-examination," or, Senator Maltese, in your 3681 1 very extreme case, maybe that would have 2 affected the plea bargain system. 3 And when you say the issue of 4 guilt or innocence, I point out to you that in 5 the federal government, they doesn't allow a 6 judge to be involved in the plea bargaining, but 7 in the state courts they do, and maybe that 8 would have given the defendant the opportunity 9 to do better for himself in that stage of the 10 proceeding. 11 So the bottom line is, as is 12 often the case, Senator Galiber is correct. The 13 person's rights are protected by a district 14 attorney or an assistant district attorney 15 simply complying with the law, particularly in 16 allowing someone to prepare the defense, which 17 is something that effects their entire life. 18 I have vote in the negative. 19 ACTING PRESIDENT KUHL: Senator 20 Gold in the negative. 21 Announce the results. 22 THE SECRETARY: Those recorded in 23 the negative on Calendar Number 699 are Senators 3682 1 Espada, Galiber, Gold, Leichter, Mendez, 2 Paterson and Solomon. Ayes 48. Nays 7. 3 ACTING PRESIDENT KUHL: The bill 4 is passed. 5 Senator Present. 6 SENATOR PRESENT: Can we go back 7 to 727. 8 ACTING PRESIDENT KUHL: Clerk 9 will read Calendar Number 727. 10 THE SECRETARY: Calendar Number 11 727, by Senator Hannon, Senate Bill Number 6627, 12 an act to amend the Administrative Code of the 13 City of New York. 14 SENATOR GOLD: Explanation. 15 ACTING PRESIDENT KUHL: 16 Explanation has been asked for. 17 SENATOR HANNON: Yes, this bill 18 would amend the City Housing Maintenance Code so 19 that a landlord could commence a proceeding in 20 order to get limited access to an apartment. 21 That would be for the purpose of correcting a 22 housing code violation because a tenant has 23 refused to grant access to the apartment. 3683 1 The beneficiaries of this would 2 be two-fold. The rest of the tenants would 3 benefit so that whatever was causing the code 4 violation would not be harmful to their 5 apartment, and the landlord could make the 6 correction. 7 SENATOR GOLD: Mr. President. 8 ACTING PRESIDENT KUHL: Chair 9 recognizes Senator Gold. 10 SENATOR GOLD: First of all, I 11 want to have out on the record that I'm grateful 12 to Senator Hannon for his courtesy not only 13 today but in the last few days in putting the 14 bill over. 15 Having said that, there is a 16 memorandum in opposition by the New York State 17 Tenant and Neighborhood Coalition, and the 18 problems with this bill I think are very 19 obvious, but that first sentence says an awful 20 lot, "The bill would place in the hands of New 21 York City landlords a new way to harass and 22 unjustifiably penalize tenants." They very 23 strongly urge the defeat of this bill. 3684 1 ACTING PRESIDENT KUHL: Senator 2 Hannon. 3 SENATOR HANNON: Mr. President. 4 I want to point out that I think the memorandum 5 is entirely illogical and misplaced. First of 6 all, all of the proceedings would have to be 7 through court. There is absolutely no self-help 8 allowed here whatsoever. 9 Second of all, this is not 10 unjustifyingly penalizing tenants. There are 11 tenants who are equally desirous of getting this 12 bill as anybody else. When you live in an 13 apartment building, the quality of your life 14 depends as much on the services provided by the 15 landlord as the style of life maintained by your 16 fellow tenants. If some tenant refuses to give 17 access and there is water leaking through that 18 apartment or they are keeping a filthy apartment 19 and those things cannot be cleaned up by the 20 landlord, it's the other tenants who suffer. 21 Frankly, the landlord has a great 22 excuse if he can't get access. So by voting 23 against this bill, you are voting against 3685 1 tenants. 2 And let me close by stressing, 3 it's all under supervision of the New York City 4 Housing Court judges who, if there is anything 5 to be said, have been pretty well on the lookout 6 for the interest of tenants. 7 ACTING PRESIDENT KUHL: Senator 8 Markowitz. 9 SENATOR MARKOWITZ: Mr. 10 President. A couple of questions, Senator 11 Hannon, if I may. 12 ACTING PRESIDENT KUHL: Senator 13 Hannon, do you yield to Senator Markowitz? 14 SENATOR HANNON: Yes. 15 ACTING PRESIDENT KUHL: Senator 16 yields. 17 SENATOR MARKOWITZ: I have a 18 couple of questions. Whenever I hear from you, 19 Senator, on those rare occasions, that a piece 20 of legislation is supported by the tenants, you 21 recognize of course that I have to -- or some 22 tenants and that it's real a pro-tenant bill, I 23 begin to shake whether I'm in my seat or 3686 1 standing because I know that I have to look it 2 over again, because I don't think there has 3 really been a time that I now of when you have 4 gotten up here as a tenant supporter. So let me 5 just ask some questions, and I know that your 6 knowledge of this particular piece of 7 legislation. You'll certainly be able to 8 respond quickly to this. 9 Is there any fiscal implication 10 for this particular legislation? 11 SENATOR HANNON: There is no 12 appropriation necessary because of this. 13 SENATOR MARKOWITZ: Secondly, you 14 say that those of us that are concerned about 15 tenants in New York ought to take some solace in 16 the fact that the New York City Housing Court 17 will review any of the actions or misbehavior, 18 if any occurs, from the owners. Do you believe 19 this might add an additional burden on the New 20 York City Housing Court, as we currently know 21 it. 22 SENATOR HANNON: Actually, no. 23 Because the number of times that the landlord 3687 1 Has to go back to report that the violations 2 have not been fixed will be diminished because 3 the landlord will be able to say, "Yes, I got 4 access to the apartment. I have been able to 5 correct it; and, therefore, we don't have to 6 continue with this proceeding." So I would 7 think, if anything, one could surmise that the 8 burden on the court would be reduced. 9 SENATOR MARKOWITZ: Senator, it 10 has been my experience over many, many years, 11 way before I became a Senator, that landlords 12 very often fail to really make appointments with 13 their apartment tenants in terms of repairs. 14 Are we requiring in this bill as proof to the 15 Court that in fact the tenant has been served 16 with a certified request for access into that 17 apartment? 18 SENATOR HANNON: That very well 19 could be provided for, since you have to apply 20 to the court for the order and it can be issued 21 at the discretion of the court. 22 SENATOR MARKOWITZ: Right. But 23 I'm asking again - 3688 1 SENATOR HANNON: It shall be 2 served as the Court may direct. "If the Court 3 finds that the tenant has denied such access," 4 as I read from the proposed bill, "or is causing 5 the violation, the Court shall direct the tenant 6 to provide access at a specific time and date 7 for the purpose of permitting the landlord, 8 agents, or employees to correct such violation." 9 I believe that responds directly 10 to your point about making a specific 11 appointment. 12 SENATOR MARKOWITZ: See, my 13 experience should be, Senator -- our experience, 14 our mutual effort should be what will work to 15 get these apartments repaired. Now, there is no 16 question that not every tenant is necessarily an 17 angel and not every landlord is necessarily the 18 opposite of an angel, for sure. 19 But one thing we could agree on. 20 There are many abuses in the system. What we 21 ought to be doing is striving to come up with 22 the legislation that meets the needs of both 23 tenants and owners of property. Both. We have 3689 1 to be sure, for instance, Senator, that the 2 remedy that the owner wishes to do is actually 3 the work that has to be done. 4 We ought to impose a penalty on 5 owners who make repair times and then fail to 6 show, which happens all the time. 7 What about if there is a 8 disagreement on who caused the violation? That 9 very often occurs in landlord/tenants affairs as 10 you know. 11 SENATOR HANNON: None of the 12 points that you raise are forestalled or fore 13 closed by this legislation. All of those points 14 are and will be raised in court proceedings by 15 tenants now. All we're trying to say is -- who 16 caused it? It doesn't matter. If it's causing 17 -- if you have a flood in the bathroom and it's 18 leaking downstairs and all the way down to the 19 lower floors, you want it fixed. 20 I'm sure the courts are going to 21 say if it's somehow the fault of the landlord, 22 they are going to get hit. The landlords, by 23 the way, are under greater penalties. For not 3690 1 only will they get fined for service violations 2 directly but also they could get reduction in 3 rent orders for failing to have a good 4 apartment. 5 So I mean the economic incentive 6 is all -- and the social incentive is all in 7 getting these things fixed. 8 And let me just respond one more 9 thing, Senator Markowitz. This puts all of the 10 procedure through the courts. If somebody has a 11 better procedure, they haven't made any specific 12 suggestions that I can see of, and the bill has 13 been out on the calendar for a number of weeks. 14 It came out of committee. I haven't heard of 15 anything, and we had it in last year also. 16 SENATOR MARKOWITZ: Okay. On the 17 bill now if I may. 18 ACTING PRESIDENT KUHL: Senator 19 Markowitz the bill. 20 SENATOR MARKOWITZ: I hear what 21 the chairman of our Housing Committee is saying, 22 and I think the arguments that you presented is 23 really a good reason why we don't necessarily 3691 1 need this bill at this time, and I also think 2 that until such time as we do something with the 3 Housing Court, Senator Hannon, that we help 4 streamline the Housing Court that is frankly not 5 working and has not worked for many years, to 6 add additional burdens onto that court, more so 7 than they can handle even with their 8 responsibilities today, puts the tenants even in 9 greater peril. 10 But I think in the legislative 11 memorandum issued by the New York State Tenant 12 and Neighborhood Coalition, I think that the 13 last paragraph, Senator Hannon, is one that 14 should have your attention. "There is no 15 requirement to verify that service is 16 consummated appropriately. The bill does not 17 provide for an inspection to verify the 18 landlord's claim. There is no provision to keep 19 a landlord from racking up unlimited number of 20 days of penalties by, for example, scheduling 21 repairs and not meeting the schedule time, or in 22 other ways misleading the tenants that are 23 involved. There is no provision for bringing 3692 1 the Court's attention to any existing relating 2 proceeding which might be relevant in judging 3 the full context of the allegations. Such 4 proceedings include the Housing Part actions 5 where the tenant is suing the landlord for 6 repairs, holdover proceedings where landlords 7 can sue tenants for allegations relating to the 8 denial of access and nonpayment proceedings 9 where the most significant offense is a 10 counterclaim for repairs." 11 What I'm basically saying is I 12 recognize also that there are examples in my own 13 building and in other buildings that I have 14 lived in, in which there are certain repairs 15 that are needed, and there have been tenants, 16 I'm sure you know that, that absolutely refuse 17 access to the owners. There are nuts like that, 18 for sure, out there. 19 Whether or not legislation like 20 this is what we need to overcome that when, in 21 fact, the owners are allowed emergency access 22 when there is a clear and present danger -- and 23 that's true, Senator. "It is not true," you are 3693 1 shaking your head. It is true. Landlords can 2 gain access where there is a threat to the 3 building or the tenants in that building, even 4 if a tenant refuses to allow access, and that's 5 the truth, where there are major leaks and 6 electrical problems in the building , and it's 7 our example up and down. 8 Whether or not this is needed at 9 this time, however well intentioned you say it 10 is, I have to urge my colleagues to say no until 11 such time that we can craft another piece of 12 legislation that meets your goals and that meets 13 what our experiences have been. 14 ACTING PRESIDENT KUHL: Senator 15 Solomon. 16 SENATOR SOLOMON: Yes, Mr. 17 President. Will the sponsor yield, please? 18 ACTING PRESIDENT KUHL: Senator 19 Hannon, do you yield to Senator Solomon. 20 SENATOR HANNON: Yes, Mr. 21 President. 22 ACTING PRESIDENT KUHL: Senator 23 yields. 3694 1 SENATOR SOLOMON: Senator, I used 2 to do a lot of work in Housing Court at one 3 point in time, and this was raised; but in many 4 instances, there were never records kept; and 5 the attempt to gain access would be the 6 Superintendent knocking on the door at 2:00 in 7 the afternoon when someone was at work. 8 My question is this, as I read 9 this bill, this looks as if the landlord's 10 basically going to get an ex parte order on 11 this. And that's what I'm curious about. It 12 doesn't say any requirement -- I don't have the 13 previous section in front of me. I don't have 14 the section that's being amended in front of me, 15 but this looks as if the landlord could just go 16 in and get an ex parte order on this on an 17 affidavit. 18 SENATOR HANNON: You could get it 19 ex parte in the sense that the order could 20 issue, but you have to have service. And, 21 frankly, if there was any doubt in the judge's 22 mind, they would do as they currently do, and 23 they would require the very fact of the order to 3695 1 be in question and have a hearing in court. 2 So somebody has to start it. The 3 question is if the judges were to feel there was 4 any question of fact, they would have the 5 hearing. 6 SENATOR SOLOMON: Well, I don't 7 know. The tenant is - 8 ACTING PRESIDENT KUHL: Senator 9 Solomon, you are asking Senator Hannon to 10 continue to yield? 11 SENATOR SOLOMON: Yes. 12 ACTING PRESIDENT KUHL: Senator 13 Hannon, do you continue to yield? 14 SENATOR HANNON: Yes. 15 ACTING PRESIDENT KUHL: Senator 16 does. 17 SENATOR SOLOMON: What I'm just 18 saying, Senator, is that the way this proceeding 19 is initiated is by an application to the 20 landlord to the Court, not a service of any 21 order or any notice upon the tenant. In other 22 words, there is no process in here where the 23 landlord serves notice on the tenant saying, 3696 1 "I've attempted to get in, et cetera, et 2 cetera, and now I'm going to go to court 3 requesting a court order." 4 SENATOR HANNON: Let me point out 5 the first two lines, "If the owner is unable to 6 to correct the violation because a tenant has 7 denied the landlord access or the tenants is 8 causing the violation itself," all of this 9 necessarily presupposes that there has been 10 prior interaction between the two in regard to 11 the incident and that this is a subsequent 12 step. So that the use of the ex parte is 13 incorrect. When we use ex parte, it is usually 14 in regard to an injunction or a TRO, where there 15 has not been any interaction between the 16 parties. This is not such a situation. 17 SENATOR SOLOMON: So -- okay. 18 Okay. Thank you. 19 ACTING PRESIDENT KUHL: Clerk 20 will read the last section on Calendar Number 21 727. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 3697 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 ACTING PRESIDENT KUHL: Announce 5 the results. 6 THE SECRETARY: Those recorded in 7 the negative on Calendar Number 727 are Senators 8 Connor, Espada, Galiber, Gold, Goodman, 9 Leichter, Markowitz, Mendez, Montgomery, Nanula, 10 Onorato, Oppenheimer, Padavan, Paterson, Smith, 11 Solomon, Spano and Velella. Ayes 37. Nays 18. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 SENATOR CONNOR: Mr. President. 15 ACTING PRESIDENT KUHL: Senator 16 Connor. 17 SENATOR CONNOR: Thank you, Mr. 18 President. May I have unanimous consent to be 19 recorded in the negative on Calendar Number 699. 20 ACTING PRESIDENT KUHL: Without 21 objection, Senator Connor is recorded in the 22 negative on Calendar Number 699. 23 Senator Galiber. 3698 1 SENATOR GALIBER: Yes, Mr. 2 President. May I have unanimous consent to be 3 recorded in the negative on Calendar 654 and 4 Calendar 773. 5 ACTING PRESIDENT KUHL: Without 6 objection, Senator Galiber is recorded in the 7 negative on those two bills. 8 Senator Montgomery. 9 SENATOR MONTGOMERY: Yes, Mr. 10 President. I would like unanimous consent to be 11 recorded in the negative on Calendar 699. 12 ACTING PRESIDENT KUHL: Without 13 objection, Senator Montgomery is recorded in the 14 negative on Calendar 699. 15 Senator Smith. 16 SENATOR SMITH: I would like 17 unanimous consent to be recorded in the negative 18 on 699. 19 ACTING PRESIDENT KUHL: Without 20 objection, Senator Smith is recorded in the 21 negative on Calendar Number 699. 22 Senator Trunzo. 23 SENATOR TRUNZO: Mr. President. 3699 1 On page 52, I offer the following amendments to 2 Calendar Number 875, Senate Print Number 7726, 3 and ask that said bill retain its place on the 4 Third Reading Calendar. 5 ACTING PRESIDENT KUHL: Without 6 objection, so ordered. 7 Senator Present. 8 SENATOR PRESENT: Housekeeping? 9 ACTING PRESIDENT KUHL: I think 10 that completes it, Senator Present. 11 SENATOR PRESENT: Mr. President. 12 There being no further business, I move that we 13 adjourn until tomorrow at 3:00 p.m. 14 ACTING PRESIDENT KUHL: Senate 15 stands adjourned until tomorrow, Tuesday, at 16 3:00 p.m. 17 (Whereupon, at 6:22 p.m., Senate 18 adjourned.) 19 20 21 22 23