Monday, February 13, 1995

1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 February 13, 1995 10 3:03 p.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR JOHN A. DeFRANCISCO, Acting President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 1 P R O C E E D I N G S 2 ACTING PRESIDENT DeFRANCISCO: 3 The Senate will come to order. I will ask 4 everyone present to please rise and repeat with 5 me the Pledge of Allegiance to the flag. 6 (The Senate joined in the Pledge 7 of Allegiance to the Flag.) 8 The invocation today will be 9 given by the Reverend Terry Troia from the 10 Brighton Heights Church of Staten Island. 11 THE REVEREND TERRY TROIA: Let us 12 pray. 13 Breath of Creation, whom we know 14 by many names, Ala, Hashim, Lord, we honor You 15 as a poor man honors his bread. 16 In the midst of these difficult 17 days of budget negotiations, instill in Your 18 legislators wisdom and deliberation and the 19 courage to stand with those in need. May the 20 lives of the widow, orphan, and stranger and the 21 suffering of those among us fighting addiction 22 and disease of mind and body, be foremost in the 23 hearts and in the minds of Your servants 1 gathered here. 2 May the whisper of the weakest 3 resound in our hearts and may the work of Your 4 Senators be transformed into acts of living 5 kindness, done for Your people's sake and in 6 Your most holy name. 7 Amen. 8 ACTING PRESIDENT DeFRANCISCO: 9 Thank you, Reverend Troia. 10 Reading of the Journal. 11 THE SECRETARY: In Senate, 12 Sunday, February 12. The Senate met pursuant to 13 adjournment. Senator Hoblock in the chair upon 14 designation of the Temporary President. The 15 Journal of Saturday, February 11, was read. On 16 motion, Senate adjourned. 17 ACTING PRESIDENT DeFRANCISCO: 18 Without objection, the Journal stands approved 19 as read. 20 Presentation of petitions. 21 Messages from the Assembly. 22 Messages from the Governor. 23 Reports of standing committees. 1 The Secretary will read. 2 THE SECRETARY: Senator Levy from 3 the Committee on Transportation reports the 4 following bill directly for third reading: 5 Senate Bill Number 317A, by 6 Senator Johnson and others, an act to amend the 7 Vehicle and Traffic Law, in relation to maximum 8 speed limits. 9 Senator Marchi from the Committee 10 on Corporations, Authorities, and Commissions 11 reports the following bills directly for third 12 reading: 13 Senate Bill Number 769, by 14 Senator DeFrancisco, Public Authorities Law, in 15 relation to the Onondaga County Resource 16 Recovery Agency. 17 1117, by Senator Skelos, an act 18 to amend the Business Corporation Law and the 19 Civil Practice Law and Rules, in relation to 20 shareholders derivative suits. 21 All bills reported directly for 22 third reading. 23 ACTING PRESIDENT DeFRANCISCO: 1 Without objection, all bills reported directly 2 to third reading. 3 Reports of select committees. 4 Communications and reports from 5 state officers. 6 Motions and resolutions. 7 Senator Skelos. 8 SENATOR BRUNO: Mr. President. I 9 believe there is a resolution at the desk. May 10 we please have the title read. 11 ACTING PRESIDENT DeFRANCISCO: 12 The Secretary will read. 13 THE SECRETARY: Legislative 14 Resolution Number 339, by Senators Hoblock, 15 Bruno, and Farley, Legislative Resolution 16 commemorating Hope Day on Monday, February 13, 17 1995. 18 SENATOR HOBLOCK: I move to 19 adopt, please. 20 ACTING PRESIDENT DeFRANCISCO: On 21 the resolution. All in favor signify by saying 22 aye. 23 (Response of "Aye.") 1 Opposed, nay. 2 (There was no response.) 3 The ayes have it, and the 4 resolution is adopted. 5 Senator Skelos, are you ready for 6 the calendar? 7 SENATOR SKELOS: Please recognize 8 Senator DiCarlo and then Senator Velella. 9 ACTING PRESIDENT DeFRANCISCO: 10 Senator DiCarlo. 11 SENATOR DiCARLO: Mr. President. 12 On page 5, on behalf of Senator Rath, I offer 13 the following amendments to Senate Print Number 14 208, and ask that the bill retain its place on 15 Third Reading Calendar. 16 ACTING PRESIDENT DeFRANCISCO: 17 Without objection, so ordered. 18 Senator Velella. 19 SENATOR VELELLA: Mr. President. 20 On behalf of Senator Stafford, please place 21 sponsor stars on Calendar Numbers 40 and 41. 22 ACTING PRESIDENT DeFRANCISCO: 23 Sponsor stars will be so placed on -- 40 and 1 41? 2 SENATOR VELELLA: Yes. 3 ACTING PRESIDENT DeFRANCISCO: 4 Without objection. 5 SENATOR VELELLA: Thank you, Mr. 6 President. On page 4, I offer the following 7 amendments to Calendar Number 32, Senate Print 8 Number 22, and ask that said bill retain its 9 place on the Third Reading Calendar. 10 ACTING PRESIDENT DeFRANCISCO: 11 Without objection, so ordered. 12 Senator Skelos. 13 SENATOR SKELOS: May we now have 14 the noncontroversial calendar read. 15 ACTING PRESIDENT DeFRANCISCO: 16 All right. We'll take up the reading of the 17 noncontroversial calendar. The Secretary will 18 read. 19 THE SECRETARY: Calendar Number 20 43, by Senator Maltese, Senate Bill Number 449. 21 SENATOR PATERSON: Lay it aside. 22 ACTING PRESIDENT DeFRANCISCO: 23 Lay the bill aside. 1 THE SECRETARY: Calendar Number 2 54, by Senator DiCarlo, Senate Bill Number 500, 3 an act to amend the Criminal Procedure Law and 4 the Penal Law, in relation to felony sex 5 offenses. 6 SENATOR PATERSON: Lay it aside. 7 ACTING PRESIDENT DeFRANCISCO: 8 Please lay it aside. 9 THE SECRETARY: Calendar Number 10 55, by Senator Present, Senate Bill Number 503, 11 an act to amend the Penal Law, in relation to 12 lawful possession of weapons by persons 11 years 13 of age. 14 ACTING PRESIDENT DeFRANCISCO: 15 Lay the bill aside. 16 THE SECRETARY: Calendar Number 17 56, by Senator Cook, Senate Bill Number 561, an 18 act to amend the Criminal Procedure Law. 19 SENATOR PATERSON: Lay it aside. 20 ACTING PRESIDENT DeFRANCISCO: 21 Lay the bill aside. 22 THE SECRETARY: Calendar Number 23 59, by Senator Present, Senate Bill Number 768, 1 an act to amend the Criminal Procedure Law. 2 SENATOR PATERSON: Lay it aside. 3 ACTING PRESIDENT DeFRANCISCO: 4 Lay the bill aside. 5 THE SECRETARY: Calendar Number 6 66, by Senator Kuhl, Senate Bill Number 2034, to 7 amend Chapter 356 of the Laws of 1993, amending 8 the General Municipal Law. 9 SENATOR PATERSON: Lay it aside. 10 ACTING PRESIDENT DeFRANCISCO: 11 Lay the bill aside. 12 THE SECRETARY: Calendar Number 13 67, by Senator Kuhl, Senate Bill Number 2081, in 14 relation to exempting certain project of the 15 city of Hornell. 16 SENATOR KUHL: Lay the bill aside 17 for the day, please. 18 ACTING PRESIDENT DeFRANCISCO: 19 The bill is laid aside for the day. 20 That completes the reading of the 21 noncontroversial calendar. 22 SENATOR SKELOS: Mr. President. 23 May we have the controversial calendar read now. 1 ACTING PRESIDENT DeFRANCISCO: 2 The Secretary will read. 3 THE SECRETARY: Calendar Number 4 43, by Senator Maltese, Senate Bill Number 449, 5 an act to amend the Education Law, in relation 6 to instructions in the display, use and proper 7 respect for the flag. 8 SENATOR PATERSON: Explanation. 9 ACTING PRESIDENT DeFRANCISCO: 10 Explanation. Senator Maltese. 11 SENATOR MALTESE: This bill 12 amends the provisions of the present law and 13 requires that the Commissioner of Education 14 prepares for the public schools a program 15 providing for specific instruction regarding 16 respect for the flag, its display and use, as 17 provided by federal statute and regulations. 18 This bill has been debated at 19 prior years, at least a minimum of the last 20 three prior years, and last year passed the 21 Senate 54 to zero. 22 Basically, what we have attempted 23 to do with this bill is incorporate the 1 provisions of Section 802 of the Education Law 2 and incorporate the provisions of Sections 170 3 to 177 of Title 36 of the United States Code, 4 and those sections relate to the National Anthem 5 and conduct during play, the Pledge of 6 Allegiance and conduct during recitation, the 7 display and use of the flag by civilians, the 8 time and occasions for display, the position and 9 manner of display, respect for the flag and 10 conduct during hoisting, lowering and passing of 11 the flag. 12 This is an attempt on the part of 13 the Legislature in the course of many, many 14 demands on a student's time, an instructor's 15 time, teachers and people who set curriculum, to 16 ascertain that instruction be given regarding 17 respect for the flag. This legislation is not 18 proposed in a vacuum. It is proposed because 19 more and more we seem to see a disrespect for 20 the flag of our country and that disrespect 21 unfortunately is manifested at many public 22 events, sporting events. 23 In addition, it's manifested by a 1 disrespect for the flag not only during 2 occasions of civil disobedience but those 3 actions of civil disobedience as shown in the 4 public media, on TV, and reported in the media 5 provide unfortunately a bad example for many of 6 our students, many of the young people who have 7 difficulty ascertaining what is right and what 8 is wrong. 9 So what we are attempting to do 10 is give them, give the education authorities an 11 opportunity to provide the proper instruction in 12 what should come naturally, but unfortunately 13 does not, the respect for our country's flag, 14 the symbol of our great nation and the 15 sacrifices of our veterans and all those 16 Americans who have proceeded us. 17 ACTING PRESIDENT DeFRANCISCO: 18 Senator Paterson. 19 SENATOR PATERSON: Thank you, Mr. 20 President. 21 Actually, for those who are 22 unaware, if I had come to the Senate in the last 23 couple of years, I would have thought that the 1 Pledge of Allegiance, for instance, would have 2 certainly been the precursor to all of the 3 sessions here, but actually the Pledge of 4 Allegiance that we observe every day at the 5 beginning of our session was brought into effect 6 by resolution in 1989. 7 So this bill is probably 8 something that is refocusing us on the 9 allegiance to our actual country, as certainly 10 was pointed out in the explanation. 11 My only question that I would 12 like to ask is if there is any measurable fiscal 13 impact of this legislation. Otherwise, that's 14 all I wanted to know. 15 ACTING PRESIDENT DeFRANCISCO: 16 Senator Maltese. 17 SENATOR MALTESE: My 18 understanding in prior years was that there were 19 no fiscal implications because it would be 20 handled like any other suggested curriculum 21 changes. The memo -- and in prior years there 22 were no objections made -- provides no fiscal 23 implications and no local fiscal implications. 1 ACTING PRESIDENT DeFRANCISCO: 2 Senator Dollinger. 3 SENATOR DOLLINGER: Mr. 4 President. Will the sponsor yield to a couple 5 of questions? 6 SENATOR MALTESE: Yes. 7 ACTING PRESIDENT DeFRANCISCO: 8 Senator Maltese. 9 SENATOR DOLLINGER: Senator, what 10 evidence of need is there for a change in the 11 curriculum on flags in New York State? Do you 12 have any evidence of the need for this change in 13 this state? 14 SENATOR MALTESE: Mr. President. 15 Certainly, I would feel that for any piece of 16 legislation to be enacted we would have some 17 need. This specific legislation is difficult to 18 place in the context of need. The episodes that 19 I recited of disrespect, open disrespect for the 20 flag, all of us have seen instances of this. 21 As far as whether or not the fact 22 that it is not done in many of our schools I 23 think would seem to indicate that there would be 1 a need as far as providing for instruction and 2 including it, as I mentioned before, in a 3 curriculum as part of a necessary recommend - 4 necessary educational instruction as far as the 5 respect for the flag. 6 ACTING PRESIDENT DeFRANCISCO: 7 Senator Dollinger. 8 SENATOR DOLLINGER: Again through 9 you, Mr. President. I note in the sponsor's 10 memo, you point out that New York State requires 11 that all of the areas in your bill be covered as 12 part of the curriculum in elementary and 13 secondary schools. Isn't that correct? So we 14 already do this, don't we? 15 SENATOR MALTESE: Mr. President. 16 The program itself would be supplemented by 17 these specific provisions; and while there is a 18 present provision for it, in actuality, we are 19 advised that the instruction, if you will, is 20 very cursory, very brief and subject to the 21 individual whim of whoever happens to be 22 preparing the curriculum. 23 ACTING PRESIDENT DeFRANCISCO: 1 Senator Dollinger. 2 SENATOR DOLLINGER: Again through 3 you, Mr. President. Senator, do you know of any 4 specific example, any specific example in this 5 state where you can point to the fact that a 6 teacher in an elementary school has given 7 cursory and just proforma explanation of the 8 flag and the high esteem that the flag is held 9 with in this country as part of the curriculum 10 in education? Do you have any specific school, 11 any specific date, any specific pupil that you 12 can point to who got only a proforma 13 introduction to the flag? 14 ACTING PRESIDENT DeFRANCISCO: 15 Senator Maltese. 16 SENATOR MALTESE: Mr. President. 17 I have not myself personally participated in any 18 of these classroom sessions. Perhaps in the 19 future, it might be a good idea that I and 20 Senator Dollinger and other members of the body 21 do so. I do have not have any specific 22 instances, but common sense which perhaps all 23 too often is lacking in this body as in other 1 legislative bodies would dictate that anything 2 subject to the whim or judgment, if you will, 3 ill or good, would vary from case to case and 4 perhaps should be more formalized, and that's 5 what this bill intends to do. 6 ACTING PRESIDENT DeFRANCISCO: 7 Senator Dollinger. 8 SENATOR DOLLINGER: Again through 9 you, Mr. President, if Senator Maltese will 10 yield to another question. Isn't it true, 11 Senator, that the teaching of one plus one 12 equals two could also be subject to the same 13 kind of whim of the teacher? They may give it a 14 lot of emphasis; they may give it just a little 15 bit of emphasis. They may teach two times two, 16 or five times five may get proforma 17 introduction. 18 I mean isn't everything that 19 happens in a courtroom -- excuse me -- in a 20 classroom subject to the possibility of being 21 taken by the teacher and given specific emphasis 22 on some topics and lesser emphasis on others, 23 and isn't that the whole process of education? 1 ACTING PRESIDENT DeFRANCISCO: 2 Senator Maltese. 3 SENATOR MALTESE: Mr. President. 4 I think while that may be the whole process of 5 education, as I indicated there are many, many 6 demands on teachers and people who set the 7 curriculum, education specialists, 8 administrators, school administrators, and those 9 demands unfortunately at times force the 10 administrators or the teachers to set 11 priorities, and we may not from time to time 12 agree with those priorities; and while something 13 like rote two times two or mathematics or 14 multiplication tables, we can hope that if this 15 is missed by a particular teacher or in a 16 particular year that it would be repeated 17 subsequently and the student would be able to 18 avail themselves of the education that is 19 proffered in that case. 20 But in this case, we fear that if 21 this would be passed over or provided to not as 22 full an extent as we would wish, we would not be 23 able to remedy that; and, again, common sense 1 tells us that the adults that we see showing and 2 evidencing disrespect for the flag must have 3 gone through some educational system to arrive 4 at where they are; and what we are hoping to do 5 by this legislation is provide them with some 6 background so that perhaps they wouldn't be as 7 expeditious in coming forth and showing 8 disrespect for the flag and perhaps would be 9 more reluctant to show disrespect for the flag. 10 ACTING PRESIDENT DeFRANCISCO: 11 Senator Dollinger. 12 SENATOR DOLLINGER: Again, 13 through you, Mr. President. I'm intrigued as 14 Senator Paterson was by your claim that there is 15 no cost or no fiscal implication attached to 16 this legislation. Don't you intend as part of 17 this that someone in the Department of Education 18 would devise a curriculum, then circulate that 19 curriculum around this state, that local school 20 districts would spend their time and effort in 21 curriculum development in making sure that their 22 local curriculum conformed with the state model; 23 and don't you think that will take up a 1 significant portion of administrative time so 2 that your estimate that there's no fiscal 3 implication is actually just not true or 4 accurate? 5 ACTING PRESIDENT DeFRANCISCO: 6 Senator Maltese. 7 SENATOR MALTESE: This bill was, 8 as I've mentioned before, debated in prior 9 sessions; and at that period in time, the fiscal 10 implications were indicated to be not applicable 11 and no claim or substantiation was made on 12 behalf of Senator Dollinger or any of those 13 Senators who while arguing against the bill 14 ultimately voted for the bill and, thus, must 15 have had their fears allayed as far as fiscal 16 implications are concerned. So I would say that 17 the expectation is that the programs would be 18 developed in the normal course of business of 19 the educational establishment and that it would 20 provide for no additional expenditures or fiscal 21 implications. 22 ACTING PRESIDENT DeFRANCISCO: 23 Senator Dollinger. 1 SENATOR DOLLINGER: On the bill, 2 Mr. President. 3 I guess this bill perhaps 4 epitomizes sometimes what we're all about in 5 this chamber. The best I can tell, and I 6 appreciate Senator Maltese's impetus that brings 7 this bill to the fore, but I didn't hear any 8 demonstration of need. In fact, after this bill 9 was passed last year, I used it as the classic 10 demonstration about how the State Senate used 11 the concept of unfunded mandates; that what we 12 tend to do is we tend to take this little 13 picture, individualized picture, of what is 14 wrong with the state and then we devise a bill 15 and we bring it to the Senate floor. I guess 16 members of the Majority bring it to the Senate 17 floor. We don't get a chance to do that. 18 But, nonetheless, they bring it 19 to the Senate floor as an episodic view of 20 what's wrong with New York State. We obviously 21 have some parents who don't know how to accord 22 the flag its proper respect. The fault must lie 23 in the curriculum we teach in our schools, I'm 1 not sure I buy that logic. 2 But instead we found out -- what 3 I found out was -- I asked my school districts, 4 "What do you do with the flag?" And they told 5 me we teach flag, we teach patriotism. We do it 6 all the time. It's one thing that the kids love 7 to do. We love to give them this training. 8 They sit in wrapped attention as they are told 9 what the stars and bars mean. 10 I don't think there's any 11 specific need for this. The Senator can't point 12 out any specific need in this state. In 13 addition, it's clearly an unfunded mandate. 14 We're going to require school districts to 15 change their curriculum, not give them any 16 money. I'm sure at some point during this 17 session we'll produce another one of those bills 18 that we always vote on that say no unfunded 19 mandates. The last thing, of course, is I 20 believe it's just a fiction about having no 21 fiscal impact at all. 22 My final comment is this about 23 the flag. I said this yesterday in a meeting of 1 veterans in Rochester. I said I believe that 2 the flag is a revered symbol of this country, 3 and I believe it's entitled to respect and our 4 children should be taught what that respect is 5 and how it's properly accorded. But I'd simply 6 point out that the flag now appears on bikini 7 briefs. It appears on bikini bathing suits. It 8 appears on coffee cups, on sweaters, on ties. 9 It appears in the jerseys that were worn by the 10 Dream Team basketball players. It appears on 11 all kinds of swimsuits and other kinds of 12 paraphernalia. 13 But I think we've got to come to 14 a conclusion in this country. Either, we're 15 going to allow the flag to be commercially 16 exploited as it is now or we're going to go back 17 to the days when it was a revered symbol. I 18 don't think we can have it both ways. 19 I voted in favor of this bill 20 last year, frankly because I was afraid that 21 somebody would run one of those fancy political 22 commercials against me and accuse me of being 23 not patriotic because I didn't. 1 I think this bill is an unfunded 2 mandate. I think it's a fiction that it has no 3 cost; and, frankly, I think it typifies it what 4 we too often do in this chamber. 5 ACTING PRESIDENT DeFRANCISCO: 6 Senator Montgomery. 7 SENATOR MONTGOMERY: Thank you, 8 Mr. President. I would like to know if the 9 sponsor would yield for a question? 10 ACTING PRESIDENT DeFRANCISCO: 11 Senator Maltese. 12 SENATOR MONTGOMERY: Mr. 13 President. I would like to know if Senator 14 Maltese is amending the existing law that covers 15 instruction for the flag? This bill, does it 16 not, amends Subdivision 1 of Section 802 of the 17 Education Law. 18 ACTING PRESIDENT DeFRANCISCO: 19 Senator Maltese. 20 SENATOR MALTESE: Mr. President. 21 Yes. 22 SENATOR MONTGOMERY: Thank you. 23 Mr. President. I have the law in 1 my hand, and I'm trying to figure out just what 2 we're talking about here because the law says 3 that it shall be the duty of the Commissioner of 4 Education to prepare for the use of the public 5 schools of this state a program providing for a 6 salute to the flag and a daily Pledge of 7 Allegiance to the flag, instruction in its 8 correct use and display and such other patriotic 9 exercises as may be deemed by him to be 10 expedient. 11 Now, it sounds like the only 12 thing that Senator Maltese is ultimately doing 13 is adding that we should also teach the children 14 that they should respect the flag. Is that not 15 so? Is that what this is? 16 ACTING PRESIDENT DeFRANCISCO: 17 Senator Maltese. 18 SENATOR MALTESE: Mr. President. 19 Generally speaking, that would be what we would 20 try to do, but because we're setting it forth by 21 statute, we set forth further down the minimum, 22 the provisions of Section 170 through 177 of 23 Title 36 of the United States Code which has the 1 headings, the paragraph headings that I referred 2 to earlier, and which I would be glad to provide 3 to Senator Montgomery. Basically, it's as 4 Senator Montgomery as indicated. It supplements 5 those provisions but particularizes them as far 6 as the actual content of what should be included 7 in the curriculum. 8 ACTING PRESIDENT DeFRANCISCO: 9 Senator Montgomery. 10 SENATOR MONTGOMERY: So that in 11 addition to respect, Senator Maltese, if you 12 would yield, you are adding another mandate for 13 a higher level of a more involved curriculum 14 which then has to be developed by the Education 15 Department for which we are proposing a 30 16 percent cut in the Department of Education 17 staff? 18 ACTING PRESIDENT DeFRANCISCO: 19 Senator Maltese. 20 SENATOR MALTESE: Mr. President. 21 The sections are part of the United States Code 22 and I have them before me, and they take up - 23 without all the legislative references, they are 1 -- 1, 2, 3, 4, 5 -- well, lengthy. They take 2 up about 12 paragraphs, and they are very 3 specifically set forth as far as the wording; 4 and they are, as I indicated, headed National 5 Anthem, Star Spangled Banner, which is only one 6 sentence. Section 171 is conduct during playing 7 of the Star Spangled Banner. The Pledge of 8 Allegiance to the flag, manner of delivery, 9 display and use of flag, time and occasions for 10 display, and position and manner of display and 11 respect for the flag and conduct during hoisting 12 lowering or passing of flag. 13 ACTING PRESIDENT DeFRANCISCO: 14 Senator Montgomery. 15 SENATOR MONTGOMERY: Thank you, 16 Senator Maltese. 17 On the bill briefly. 18 Mr. President. I reiterate that 19 we already have in law, and it is very clear to 20 me reading this as a lay person. I understand 21 what is required and I understand that every 22 child in the State of New York is required to 23 have some instruction in allegiance to the flag, 1 and it's clear to me that we sing our national 2 anthem and we salute the flag, and I suppose 3 that teachers teach it for -- teachers teach 4 respect via teachers teaching appropriate 5 behavior as it relates to this process. 6 Now, I understand that Senator 7 Maltese wants to teach respect, respect of 8 everything, and the flag certainly is one of 9 them and I agree with that. But I think it's a 10 terrible hoax on the citizens of this state to 11 propose legislation which essentially duplicates 12 what we already have, simply says that we are 13 now going to add respect; and in addition to 14 that, we are going to require the Commissioner 15 of Education to go and develop possibly a new 16 curriculum another curriculum. 17 It's another mandate that's going 18 to be passed on; and, quite frankly, I resent 19 this, because the teacher in my child's class 20 already has 30 children in her class. She is 21 doing as much as she can, and I would not want 22 to be a part of any legislation which passes on 23 to her an additional burden to do something over 1 and above what she already is struggling to do 2 in that class with those 30 children. 3 And some children are in class 4 with even more children in the room, and maybe 5 it doesn't affect the schools in your district, 6 Senator Maltese, but it certainly does in mine, 7 and my own son's class, moreover. 8 So I'm going to vote no on it 9 because I think we already have a bill. This is 10 not necessary. It does not prove any more 11 allegiance to the flag than we already have. It 12 is not going to require us to have any legal 13 sanctions against anybody who desecrates the 14 flag. So even though you have that concern, 15 this doesn't address it, and it adds an 16 additional burden to the schools in the City of 17 New York, and so I'm against it and I will vote 18 no. 19 ACTING PRESIDENT DeFRANCISCO: 20 Senator Waldon. 21 SENATOR WALDON: Thank you very 22 much, Mr. President. Would the gentleman from 23 not too far from where I reside in Queens yield 1 to a question or two? 2 ACTING PRESIDENT DeFRANCISCO: 3 Presumably that is Senator Maltese. 4 SENATOR WALDON: Senator Maltese, 5 do you support the constitutional concept of 6 free speech. 7 SENATOR MALTESE: Yes. Mr. 8 President, I certainly do. 9 SENATOR WALDON: Do you in that 10 regard feel that one should be allowed to say 11 whatever he or she wishes just so long as it 12 does not impair and/or interfere with the rights 13 of other Americans? 14 SENATOR MALTESE: Mr. President. 15 Basically that would seem to cover my position. 16 SENATOR WALDON: By the way, Mr. 17 President, alert Senator Maltese there's no trap 18 in my question. I have a very - 19 SENATOR MALTESE: Mr. President. 20 I thought Senator Waldon was going to talk about 21 the access bill to abortion clinics. 22 ACTING PRESIDENT DeFRANCISCO: 23 Well, be that as it may. 1 Senator Waldon. 2 SENATOR WALDON: Thank you very 3 much, Mr. President. Senator Maltese is being 4 very creative in his imagination today. I'm not 5 barking along that trail. 6 If I may continue, Mr. 7 President. If the Senator will continue to 8 yield? Senator Maltese, were you in the 9 military? 10 SENATOR MALTESE: Mr. President. 11 Yes, I was. I was a Marine Reservist, and 12 subsequent to that served in the United States 13 Army where I rose to the lofty rank of corporal. 14 ACTING PRESIDENT DeFRANCISCO: 15 Senator Waldon. 16 SENATOR WALDON: As one corporal 17 to another, Mr. President, if I may continue. 18 In your time in the service, Senator Maltese, 19 were you on occasion in parades, military 20 parades? 21 ACTING PRESIDENT DeFRANCISCO: 22 Senator Maltese. 23 SENATOR MALTESE: Mr. President. 1 I appreciate Senator Waldon giving us the 2 opportunity to engage in this bout of 3 nostalgia. Yes, I was in many parades and 4 enjoyed all of them. 5 SENATOR WALDON: And I recall 6 from my days in the military that when we were 7 either in full dress or fatigues but in parade 8 formation, whether it be the battalion level, 9 company level, or even regimental level, we were 10 often led by the guidon and the guidon had a 11 flag. My question, Mr. President, if I may 12 continue to the learned Senator is, does your 13 recollection recall such instances of parades 14 and following the flag of this country? 15 ACTING PRESIDENT DeFRANCISCO: 16 Senator Maltese. 17 SENATOR MALTESE: Yes, Mr. 18 President, I recall them and I know in many 19 instances we had to follow these instructions 20 because many of us were not as familiar with the 21 rules concerning the flag since we didn't 22 receive the instruction in our schools. 23 ACTING PRESIDENT DeFRANCISCO: 1 Senator Waldon. 2 SENATOR WALDON: Thank you very 3 much, Mr. President, and I appreciate the 4 Senator's response. 5 Senator Maltese, we are coming to 6 the end of my inquiry. Can you recall the 7 feeling, the sense of feeling that you had when 8 you were in those formations; and if you can 9 recall such, would you briefly share them with 10 us, meaning your emotional state at that time. 11 ACTING PRESIDENT DeFRANCISCO: 12 Senator Maltese. 13 SENATOR MALTESE: Mr. President. 14 You know, since we are engaged in a debate and 15 referring to nostalgia, I grew up in a different 16 time. I was born in 1932 and was just 10 years 17 old on the date that Pearl Harbor was attacked, 18 and we had, I think, different instruction in 19 the home than many of our children have the 20 opportunity to receive today, and the atmosphere 21 and the spirit that permeated the greater 22 American spirit was much different than it was 23 today. People would not have dared at that time 1 to show disrespect for the flag in public 2 arenas, sports stadiums. They have would have 3 been ridden out of town on a rail. That was a 4 different time. 5 Yes, Senator, I had a great 6 feeling of pride. I know that many of my 7 colleagues and comrades in arms had a great 8 feeling of pride as did all the veterans of 9 prior wars, and I know that feeling of pride is 10 shared by many that serve today who did not have 11 the opportunity to serve, but I do think that 12 it's worthy of note that it was a different time 13 and a different place and a somewhat different 14 country, and what I am seeking to do with this 15 legislation is restore some of that pride of 16 country, pride in our flag as a symbol of that 17 country. 18 ACTING PRESIDENT DeFRANCISCO: 19 Senator Waldon. 20 SENATOR WALDON: Mr. President. 21 Thank you very much, Senator Maltese. Mr. 22 President, if I may, on the bill. 23 I, too, was extremely proud on 1 those occasions where I marched behind the 2 flag. I was in the honor guard in France and 3 had the opportunity to march not only with U.S. 4 Military personnel but with personnel from 5 France, from Great Britain, from Canada, and 6 those moments in full dress, marching into towns 7 like Orleans or Nancy, even on occasion Verdun, 8 with thousands of troops in formation, was an 9 exhilarating experience. 10 I was proud to be part of the 11 U.S. Army. I was proud to be a part of our 12 honor guard. I don't want to offend anyone with 13 what I'm saying and people have the right to 14 believe whatever they believe, but I do believe 15 that nowadays in America there is a callousness 16 toward what it means to be an American, and I'm 17 troubled by that. 18 I don't know if what you are 19 attempting to do, Senator Maltese, will 20 accomplish your goal or will help us in the 21 journey to inspire people to feel better about 22 this country, the greatest country on the 23 earth. I hope that it will have some saving 1 grace. 2 I will support the bill simply 3 because I see too many young people doing things 4 not just about the flag but in general about 5 what it means to be patriotic and what it means 6 to be an American that cause me some concern and 7 cause me some pain actually, because despite the 8 fact that my people came here differently in 9 terms of passage than many of my colleagues in 10 this institution, we have paid our debt to 11 America. We have spilled our blood on foreign 12 soil so that this flag could fly high and with 13 pride, and I hope that the younger people of 14 this nation will become more sensitized to truly 15 what it means to be a part of the greatest 16 nation on earth. 17 I hope that the teachers will 18 understand that maybe they have a greater role 19 to play in that regard. I hope that the parents 20 will understand that maybe they have a greater 21 role to play in that regard. The threat of 22 Communist Russia is not upon us as it was in the 23 past few decades but there are threats out there 1 which could undermine this nation. 2 I believe that what you are doing 3 is commendable. I support it, and I sincerely 4 hope that all of us will learn to feel a little 5 bit better about this country, which happens to 6 be the greatest nation on earth. 7 Thank you, Mr. President. 8 ACTING PRESIDENT DeFRANCISCO: 9 Please read the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect on the 180th day after it 12 shall have become a law. 13 ACTING PRESIDENT DeFRANCISCO: 14 Call the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 57. Nays 17 1. Senator Montgomery recorded in the 18 negative. 19 ACTING PRESIDENT DeFRANCISCO: 20 The bill is passed. 21 Secretary will read. 22 THE SECRETARY: Calendar Number 23 54, by Senator DiCarlo, Senate Bill 500, an act 1 to amend the Criminal Procedure Law and the 2 Penal Law in relation to felony sex offenses. 3 SENATOR GOLD: Explanation. 4 ACTING PRESIDENT DeFRANCISCO: An 5 explanation is asked for. 6 Senator DiCarlo. 7 SENATOR DiCARLO: Yes, Senator 8 Gold. My bill does a number of things. One, it 9 limits plea bargaining for sex offenders and 10 requires that the lowest they can plead to is to 11 a sex felony. It also does a separate 12 sentencing structure, increases minimum terms, 13 mandates that during -- periods of probation and 14 parole be extended and it also is mandatory post 15 prison treatment for sex offenders. 16 ACTING PRESIDENT DeFRANCISCO: 17 Senator Gold. 18 SENATOR GOLD: Yes, will Senator 19 yield to a question? 20 SENATOR DiCARLO: Yes. 21 SENATOR GOLD: Senator, as I 22 indicated in the Codes Committee, I don't have a 23 problem with what you do. I have a problem with 1 what you don't do; and, Senator, am I right, the 2 bill does not provide for any kind of a 3 treatment plan for people while they are in 4 prison? Is that true or is that not true. 5 SENATOR DiCARLO: That's correct. 6 SENATOR GOLD: Well, could you 7 explain to us, Senator, why you decided not to 8 include that in the bill? 9 SENATOR DiCARLO: Well, firstly, 10 sex offenders cannot be cured, as I have stated 11 in the past. Their behavior can only be curbed, 12 and that's if we're lucky. 13 SENATOR GOLD: That's what? 14 SENATOR DiCARLO: That's if we're 15 lucky, that their behavior is curbed. My bill 16 wants to protect people on the outside. It is 17 my belief that you can have all the treatment 18 programs that you want in prison; once they are 19 out if they don't have those same treatments, 20 they will go back to the same as they were 21 before. 22 My bill wants to keep them in 23 prison for longer periods of time and while out 1 have longer periods of parole and probation 2 while they must get treatment because that is 3 the only time I believe it is effective. 4 So my bill does not talk about 5 treatment while they're in prison, but I would 6 bring to your attention that already in New York 7 State we have 14 prisons that do have sex 8 offender programs, with 24 counseling programs, 9 already instituted, five maximum security prison 10 facilities provide counseling groups, at Attica, 11 Auburn, Elmira, Green Haven and Sing Sing; seven 12 medium security prison facilities provide 13 counseling groups at Arthur Kill, Cayuga, 14 Collins, Gouverneur, Midstate, Orleans, and 15 Watertown. At Groveland Correctional Facility, 16 Veterans Residential Therapeutic Programs has a 17 sex offender program that provides intensive 18 counseling for sex offenders. 19 We already have in New York State 20 a number of programs for sex offenders, for sex 21 offenders who wish to be in counseling. So that 22 already exists. I do not think what you are 23 asking for has a place in my legislation. 1 SENATOR GOLD: Will Senator yield 2 to another question? 3 SENATOR DiCARLO: Sure. 4 SENATOR GOLD: Senator, you said 5 in your belief there is no cure but it can be 6 curbed. I mean, now, is that belief based upon 7 any particular study or studies or information? 8 SENATOR DiCARLO: I believe that 9 my predecessor, Senator Mega, held hearings on 10 this back in 1989, where the findings were that 11 from most authorities that they can not be 12 cured, sex offenders cannot be cured, so that's 13 based on hearings and studies that I have look 14 into. 15 ACTING PRESIDENT DeFRANCISCO: 16 Senator Gold. 17 SENATOR GOLD: Senator yield to 18 another question? 19 SENATOR DiCARLO: Yes. 20 SENATOR GOLD: Senator, what 21 about states like New Jersey which actually have 22 the programs? What is their experience? 23 SENATOR DiCARLO: You can tell 1 me. You tell me what their experience is in New 2 Jersey. 3 ACTING PRESIDENT DeFRANCISCO: 4 Senator DiCarlo, do you wish to respond to that 5 question? 6 SENATOR DiCARLO: My response 7 would be I'm not sure what New Jersey has 8 found. Maybe you can enlighten me. 9 SENATOR GOLD: Well, Senator, if 10 you will yield to another question? 11 SENATOR DiCARLO: Yes, I will. 12 SENATOR GOLD: Do you know what 13 any of the states have found that actually have 14 a formal program for sex offenders? 15 SENATOR DiCARLO: Yes, from a New 16 York Times article. Those people who want to be 17 treated and want help sometimes can get help 18 with these programs while in prison, yes. 19 SENATOR GOLD: Will Senator yield 20 to a question? 21 SENATOR DiCARLO: Yes. 22 SENATOR GOLD: Senator, I'm not 23 interested in what some New York Times reporter 1 said. What I'm interested in -- you are 2 sponsoring legislation which I'm going to vote 3 for. I mean I don't have a problem. 4 As a matter of fact, as I have 5 said so many times, I'm never amazed when a 6 so-called Conservative misinterprets what a 7 so-called Liberal is. I mean from my point of 8 view, people have rights; and then after the 9 rights are used, you have a trial. You go to 10 jail, "directly to jail, don't pass go, don't 11 collect $200". No problem with that. 12 I'm asking you, Senator, as the 13 person who drafted this legislation and who says 14 that you don't think that a program in prisons 15 can help, what's your experience from having 16 examined those states like New Jersey and others 17 that do have the programs. What has their 18 experience told you? 19 SENATOR DiCARLO: Their 20 experience from what I have seen is that if you 21 have treatment within the prison once they are 22 out, if they do not continue treatment, the 23 treatment while in prison was worthless. 1 SENATOR GOLD: And if you'll 2 yield to another question? 3 SENATOR DiCARLO: Yes. 4 SENATOR GOLD: That's what I'm 5 trying to get at so I can learn. Which of the 6 programs that you have investigated gave you 7 that as a result? 8 SENATOR DiCARLO: Testimony from 9 experts in a half a dozen states, which I will 10 gladly forward to your office so that you can 11 also look at what these experts have told us. 12 SENATOR GOLD: All right. Mr. 13 President. On the bill. 14 ACTING PRESIDENT DeFRANCISCO: 15 Senator Gold. 16 SENATOR GOLD: One of the issues 17 that we raised in the Codes Committee, and I'm 18 interested to see how the rest of the session 19 goes, is whether or not there is not some 20 compromise position between the way we opt in 21 New York State and the way the Congress 22 operates. 23 Congress, as you probably know, 1 has one bill. It's the Crime Bill of 1993, or 2 whatever, and they take care of everything. We 3 on the other hand deal in pen certificates, so 4 every single paragraph idea you are going to 5 change gets a pen certificate. Maybe there is 6 something in the middle that works. 7 And if we're dealing with the 8 subject of sex offenders, Senator DiCarlo has a 9 bill which is pretty comprehensive and I admire 10 the work he's done, but it does miss a step, and 11 I'm offering an amendment. I waive the reading 12 and ask for the opportunity to explain it. 13 The amendment is an amendment 14 which, by the way, Senator DiCarlo, I'm not only 15 urging upon you and upon former Senator Pataki 16 but I've also urged it upon Governor Cuomo and, 17 unfortunately, they didn't buy it. States like 18 New Jersey set up programs, real programs. They 19 didn't just bring in a sex counselor and say, 20 "If anybody's got a sex problem, come talk once 21 a week." They had a program, and the program 22 was aimed at dealing with sex offenders who are 23 different than other kinds of criminals. 1 Now, when I say they are 2 different, it doesn't mean that they are 3 better. They are just different. The programs 4 run, the so-called Mahwah program in New Jersey 5 and others, have shown that you can, in fact, 6 decrease recidivism if these people are treated 7 while they are in prison. 8 The general history of sex 9 offenders as Senator Skelos knows is that while 10 they are in prison they may be excellent, 11 excellent prisoners, and the day they get out 12 they commit another crime because one thing had 13 nothing to do with the other, but those people 14 who have been able to receive some real 15 treatment in prison, the recidivism rate is 16 substantially altered. 17 And what does that mean? That 18 means safety in the streets, that's what it 19 means. There is one reaction that just says 20 let's tell everybody who they are. New Jersey 21 is trying that, and let's do this and let's do 22 that, but this is simple. This says you've got 23 somebody in prison for a period of time. Under 1 your bill, Senator DiCarlo, that period of time 2 will be longer and that's fine with me, but do 3 something with them. Do something with them 4 that will help your people and cut recidivism, 5 and it is worth a try. 6 It's worth a try based upon 7 experience; and when somebody says, "Well, you 8 can't cure, you can only curb," well, if you 9 curb it and it's under control -- I mean there 10 are people with different kinds of illness. 11 There are people who can not handle alcohol 12 ever, so they handle it. We have people who go 13 to AA and live wonderful lives, terrific lives, 14 and you can say, "Well, they're not really 15 cured; they're curbed." But what's the 16 difference? Every day, they are functioning 17 wonderful members of society. 18 So if you can have a program that 19 will take these people and change their ways, 20 even monitor them after prison as you are 21 suggesting, I think we owe it to people. We owe 22 it to the people we represent, and it is worth a 23 try, and my amendment does exactly that. It 1 would set up a program in the prisons for people 2 convicted of sex offenses to try to cure or 3 curb, or whatever you call it, that conduct so 4 that society is safer the day they get out. 5 ACTING PRESIDENT DeFRANCISCO: 6 There is an amendment. 7 Senator Volker. 8 SENATOR VOLKER: Mr. President. 9 Let me just first of all say that we commend 10 Senator DiCarlo for sponsoring this bill; and as 11 a discussion as we discussed in the Codes 12 Committee and Senator Gold was part of that 13 discussion, this is an issue, the issue of sex 14 crimes, that is an issue that has a great body 15 of opinion on both sides. There certainly are 16 some people -- and I don't know if I would go as 17 far as you have, Senator Gold, to say that the 18 New Jersey experience has yet shown that there 19 is long-term information that we can necessarily 20 affect a great deal, a great many sex offenders, 21 but I think probably, as I understand it, it has 22 shown the possibility that we may be able to 23 have some impact on these people, and that is 1 one reason why a number of states have been 2 looking at the so-called sexual predator 3 legislation, which I have introduced last year 4 and that we are going to work on and as we 5 talked in the committee and have talked with 6 Senator DiCarlo and with Senator Skelos and also 7 with you and some other people about the 8 possibility of several things. 9 Number 1, certainly, that we can 10 all talk about this issue as this session goes 11 on, the possibility that we might hold further 12 hearings on the issues that are involved here. 13 So by no means is Senator DiCarlo, I think, 14 saying or I think is our committee saying that 15 this is the final word on what's going to happen 16 in dealing with this issue. 17 It's very complex. As you well 18 know, we've had bills on this floor dealing with 19 rape for the last several years that we have not 20 been able to compromise with the Assembly. My 21 feeling is that this is the year I would hope 22 that we will be able to do something more with 23 that and at the same time deal with the issue of 1 sexual predators which is a very, extremely 2 serious issue. 3 As somebody who came from a 4 background, as you well know, where I 5 investigated and was on a task force that lasted 6 for years that involved these very issues, it is 7 something that I feel very strongly about, but 8 let me say that nobody is saying in February of 9 this year that this entire issue is -- has been 10 decided yet, and I don't think Senator DiCarlo 11 is saying that. 12 I think what Senator DiCarlo is 13 saying is that he has a bill here that he feels 14 deals with the issue as far as he feels 15 comfortable with; and it seems to me, though, 16 that I would just say to you that we will 17 certainly as a committee look further at this 18 issue before this year is out; and as I said to 19 you in the committee before, I would be happy to 20 discuss it with you and the other members of 21 this house who are interested in it. 22 ACTING PRESIDENT DeFRANCISCO: 23 Senator Paterson. 1 SENATOR PATERSON: Mr. 2 President. This issue of sexual abuse and 3 sexual offenses is one that evokes often a 4 number of knee-jerk reactions and a lot of 5 conform resections, but what I think this 6 amendment that Senator Gold offers us is a real 7 alternate and one that certainly has a basis in 8 program study that is included in this amendment 9 the Mahwah program in New Jersey, one at Avadale 10 also in New Jersey. There are programs right 11 here in New York State, one of which was founded 12 by one of the members sitting here in this 13 chamber, Senator Hoffmann, that have 14 demonstrated that there are some results that 15 would indicate that treating sexual offenders at 16 a time when they are incarcerated can decrease 17 the recidivism when they come out. 18 One of the things that we have to 19 understand is that there are different types of 20 sexual offenses and different types of results. 21 Those who are defined as pedophiles, there 22 haven't been results that would be as effective 23 as we would like; however, in rape cases 1 treating those particular cases has had some 2 results when there is some kind of programmatic 3 response where there is an actual structure as 4 is done in other states and as is suggested in 5 this amendment. 6 So I am happy that Senator Gold 7 has introduced this amendment, and I hope it 8 will pass. 9 ACTING PRESIDENT DeFRANCISCO: 10 Senator Stavisky. 11 SENATOR STAVISKY: Mr. 12 President. I notice the roll call in 1994. An 13 identical bill, Senate 6380, passed the Senate 14 by a vote of 57 to nothing. And I think that 15 what is occurring here should be a basis for 16 reflection on both sides of the aisle. You will 17 notice there were no opponents on the Democratic 18 side to the concept. Very often, and you will 19 notice it day after day as the session evolves 20 that Democrats regularly vote for Republican 21 bills, but they are the only bills that normally 22 come out of committee, and I ask you not to view 23 every idea that comes from this side of the 1 aisle as a hostile amendment. 2 Senator Gold has made a very 3 constructive suggestion. It is not intended to 4 embarrass the sponsor of this bill. It is not 5 intended to weaken the purpose of this bill. It 6 is intended to make the legislative process in 7 this chamber fair and productive, and I would 8 urge all of my colleagues, not just on this bill 9 but on other bills, not to get up tight when 10 there is a constructive amendment as Senator 11 Gold has proposed and the feeling that by a 12 party vote it has to be voted down. 13 I'm pleased by Senator Volker's 14 attitude. I think it's an enlightened attitude, 15 and I hope that the sponsor of this bill and the 16 sponsor of other pieces of legislation will take 17 heart from what has happened in this 18 discussion. When Senator Emanuel Gold comes 19 forward with a constructive suggestion that 20 would improve the way that the original bill 21 functions, then welcome it. Don't turn it off 22 on a partisan party vote, "All those in favor 23 signify by saying aye; all those opposed say 1 no," and then the amendment dies without even a 2 record, and there may even be a bill in 3 committee that was not even given a chance to 4 breathe because it was not even taken up on the 5 committee's agenda. It happens too often in 6 this chamber, and I think the time has come that 7 we should, on both sides of the aisle, reach out 8 to each other and try to improve legislation not 9 in a vindictive or partisan manner but in a 10 sensible way. 11 And with that having been said, I 12 would hope that the sponsor would take that 13 attitude towards what Emanuel Gold has done here 14 today and embrace the idea. There may be good 15 ideas coming from this side of the carpet. The 16 carpet does not necessarily separate dummies 17 from geniuses. There may be both on both sides 18 of the carpet. 19 I support the amendment. 20 ACTING PRESIDENT DeFRANCISCO: 21 Senator Hoffmann. 22 SENATOR HOFFMANN: Thank you, Mr. 23 President. Would Senator DiCarlo yield for a 1 question, please? 2 ACTING PRESIDENT DeFRANCISCO: 3 Senator DiCarlo. 4 SENATOR HOFFMANN: I note in the 5 sponsor's memo, there is a reference to 6 requiring mandating a separate sentencing 7 structure for sex felons including extended 8 periods of probation and parole with required 9 post-incarceration participation in approved sex 10 offender treatment programs. 11 The question I would ask, Senator 12 DiCarlo, is for a definition of approved sex 13 offender treatment programs. Approval by whom, 14 programs run by whom? 15 ACTING PRESIDENT DeFRANCISCO: 16 Senator DiCarlo. 17 SENATOR DiCARLO: I believe that 18 would be set by the court at sentencing. 19 SENATOR HOFFMANN: By the court? 20 SENATOR DiCARLO: Yes. 21 SENATOR HOFFMANN: And would 22 Senator DiCarlo yield for a further question? 23 SENATOR DiCARLO: Yes. 1 SENATOR HOFFMANN: Is it safe to 2 assume that you are supporting the concept of 3 convicted sex offenders on parole for the 4 purpose of receiving treatment? 5 ACTING PRESIDENT DeFRANCISCO: 6 Senator DiCarlo. 7 SENATOR DiCARLO: If I had within 8 my power to keep them in prison, most of them, 9 until the last breath leaves their body, I 10 would. But in the present conditions in this 11 state, the legislation I put together is a bill 12 which keeps them in prison longer and because 13 they must be released under our present laws at 14 some point, we mandate that they be treated; and 15 if they do not go through treatment, they are 16 returned to prison and out of society if that 17 answers your question. 18 SENATOR HOFFMANN: Would Senator 19 DiCarlo yield for one further question? 20 SENATOR DiCARLO: Yes. 21 SENATOR HOFFMANN: I wanted to 22 make sure I understood you correctly. Did you 23 say there are voluntary programs within New York 1 State's correctional system at this point? 2 SENATOR DiCARLO: That's my 3 understanding, yes. 4 SENATOR HOFFMANN: That there are 5 only voluntary programs? 6 SENATOR DiCARLO: Voluntary 7 programs. 8 SENATOR HOFFMANN: Thank you, 9 Senator DiCarlo. 10 On the bill, Mr. President. This 11 is one of those issues that sometimes brings out 12 the best and the worst in people and it makes 13 every one squeamish, and I have seen the history 14 of this issue over the last few years in this 15 chamber, and I must admit that the issue makes 16 me less squeamish than does the action by some 17 people who would go out with a less than fully 18 developed concept in a means to satisfy the 19 public appetite that we do something with 20 dangerous rapists and pedophiles, and I don't 21 mean to criticize Senator DiCarlo because I 22 think his intentions are very good, and it's a 23 very long, complicated sponsor's memo that 1 conveys a great deal of information and a 2 considerable amount of thought on his part. 3 I do wish we had had an 4 opportunity to discuss the issue a little bit 5 because I have put in a fair amount of time on 6 this over the years. But as Senator Stavisky 7 just pointed out, discussion across the aisle 8 doesn't happen very often in this chamber; and 9 for that not to happen on an issue like this, I 10 think is particularly sad. 11 So I'm just going to share with 12 you some of the facts as I know them in 13 supporting Senator Gold's amendment today, and I 14 would also concur with what Senator Stavisky 15 said in offering that we work together, and I 16 would like to reference something Senator Volker 17 said. I sponsored a bill last year dealing with 18 predicate sex felons. It's modeled very much on 19 the Washington state bill that would require 20 civil commitment for those sex offenders who 21 having served their full sentence in the 22 criminal justice arena, having then been judged 23 by a medical review to still be a clear and 1 present danger to society would be recommitted 2 under civil commitment. The law as it exists 3 now in Washington State has withstood the test 4 of the Supreme Court. The Supreme Court of the 5 United States refused to hear it; therefore, 6 upholding it. 7 And when I introduced that bill 8 and offered it to co-sponsorship to every member 9 of this house, I received no support on the 10 other side of the aisle. I will be very 11 intrigued to see what happens if an identical 12 bill or a bill identical in concept but with 13 Republican prime sponsorship suddenly receives 14 overwhelming support. What issue of 15 enlightenment occurred between last year and 16 this year between last session and this session 17 that would somehow make the idea noteworthy 18 under somebody else's sponsorship but not under 19 the sponsorship of my name. 20 I would be delighted, Senator 21 Volker, if you are introducing a bill that does 22 what my bill last year did, to join you in 23 co-sponsorship if that is a way of making that 1 one happen. 2 But let me just explain what has 3 happened in New York State over the last few 4 years on the issue of sex offenders and 5 incarceration. The Department of Corrections 6 regularly asks the Legislature for increases in 7 programmatic aid for the treatment of drug 8 users, various other types of addictive behavior 9 and demonstrated with very carefully analyzed 10 graphs and charts the statistical increase in 11 those felons in New York State prisons who are 12 serving time for drug offenses and, therefore, 13 required many million dollars in additional 14 treatment money to treat these people. 15 I did a little examination of my 16 own at the same time that we were looking at 17 these vast increases in funding to drug 18 offenders and I saw that while the charts showed 19 the curve for drug offenders going up like this, 20 only slightly below drug offenders we had sex 21 offenders on a marked increase through the mid 22 and late '80s, and yet the Department of 23 Corrections asked for no funding for treatment 1 for sex offenders. 2 I was aware that other states did 3 treat sex offenders and regularly solicited 4 legislatures in other states to expand those 5 programs, and I asked a couple of times during 6 budget hearings the then Commissioner of 7 Corrections, Tom Coughlin, why New York State 8 was not making a similar request of this 9 Legislature. I asked that during the fiscal 10 hearings that we regularly hold over in the 11 LOB. The first time I asked Commissioner 12 Coughlin this question was, I think, in 1986. 13 It might have been in 1987. But he indicated he 14 didn't believe these programs ever worked, and 15 he wasn't going to bother with them. The second 16 time I asked him he said there were a few and we 17 didn't know the results yet. I don't know 18 whether it was the second or the third time, but 19 we did have some dialogue on this subject, and 20 during that time, I became a little better 21 educated on the subject, so I had a few 22 statistics that I used to increase his level of 23 interest and, finally, we concluded our 1 discussion during the fiscal hearing with 2 Commissioner Coughlin saying to me sometime in 3 the late '80s, "I don't believe these programs 4 work, but you show me some that do and I'll try 5 them." 6 I took that challenge very 7 seriously to heart and sought the assistance of 8 the Director of Criminal Justice Services at 9 that time, John Poklemba, to begin a major 10 national study on existing sex offender 11 treatment programs. I went to the trouble to 12 visit several of them myself, visiting Avadale 13 in New Jersey which has been mentioned a couple 14 of times. It is a maximum facility that is 15 solely used to house sex offenders. They are 16 totally segregated from the rest of the inmate 17 population in that state. They are housed in 18 one facility and there is mandated treatment. 19 On the other end of the spectrum, 20 I saw in Washington State medium and minimum as 21 well as maximum facilities that have mandatory 22 programs and voluntary programs where sex 23 offenders are mainstreamed but provided some 1 segregated sex offender treatment, and I also 2 saw the programs that operate in the state of 3 Minnesota under the commissionership there of a 4 gentleman named Orville Pung, who is the 5 nation's longest ranking corrections 6 commissioner at this point in time and was at 7 that point in time as well, who also has the 8 distinction of holding the dual responsibility 9 of not only correction commssioner but is also 10 commissioner of parole, one in the same 11 department in that state, providing an added 12 advantage of maintaining control over sex 13 offenders as well as other inmates from the time 14 of sentencing until the time of the final 15 release from parole however many years later. 16 That element of control over their lives and the 17 ability to insist upon a treatment program from 18 day one all the way through incarceration and 19 knowing what would happen post-incarceration was 20 an apparent advantage that is borne out by the 21 statistics, because that state, the state of 22 Minnesota, is the state that has the very best 23 statistical evidence that sex offender treatment 1 can work. 2 Now, what do we mean by work? 3 The phrase cured is never used in 4 discussing sex offenders among the sex offender 5 treatment professionals. There is an alliance 6 of sex offender treatment professionals. In 7 fact, they held a conference here in Albany not 8 too many years ago, bringing in people 9 internationally, and I would refer any of my 10 colleagues who are interested in this subject to 11 that group, because they have excellent data and 12 can provide a lot of very valuable information 13 as to how this whole concept works. 14 So we don't talk about curing any 15 more than you talk about curing alcoholism or 16 addictive behavior for a substance. What you 17 discuss is behavior modification and the ability 18 to control behavior upon release, and sex 19 offenders learn while incarcerated, number 1, 20 what victim empathy is. They will go through a 21 process where they begin to understand, some of 22 them -- some of them may never understand. They 23 begin to understand what it was that happened 1 with the victim and begin to learn a little bit 2 about their own motivation. They also begin to 3 understand what it is about themselves that 4 causes them to act out and, most importantly, 5 what the warning signs are, what behaviorial 6 changes they undergo that could be identifiable 7 either to them as individuals or to other people 8 such as parole officers, members of their 9 community and members of their family, that 10 would help monitor their behavior upon release 11 to provide a higher level of safety for the 12 general public. 13 I think it's safe to say that 14 most of us when we approach this issue are not 15 doing it out of this deep seated sense of 16 compassion for rapists and pedophiles. We're 17 doing it out of a desire to protect the safety 18 of citizens in New York State, the women and 19 children who will otherwise be subjected to the 20 violent crime of rape and lesser crimes of 21 molestation, which can be avoided if sex 22 offenders are afforded some kind of treatment 23 that will allow them to control their behavior 1 and assist others in making sure that they 2 control their behavior. 3 So the very complex issue is one 4 that can't be addressed in a single law, 5 mandating treatment in nonexisting treatment 6 programs. To correct a couple of the 7 inaccuracies within this bill, I will just point 8 out, number 1, that the courts do not presently 9 have any system for approval of sex offender 10 treatment in New York State. There is no 11 standard for approved sex offender treatment. 12 Number 2, there is not a sufficient number of 13 treatment programs in New York State to which 14 all of the convicted sex offenders could 15 currently be released. There would have to be a 16 sizeable appropriation in a bill to actually 17 make that part of one that could be implemented, 18 although I think it's a worthy goal and I, for 19 one, would support an appropriation that would 20 create such a program and would require that 21 upon release it be made part of a condition of 22 parole. 23 And rather than give Senator 1 DiCarlo a hard time for having indicated that he 2 supports the notion of parole for some sex 3 offenders, and I applaud him for the very 4 diplomatic way in which he suppressed it. I 5 want to say that I recognized after having 6 studied the issue through these many years what 7 the sex offender treatment professionals have 8 come to recognize and what Orville Pung, 9 Commissioner of Minnesota, has stated, that 10 unless you have a hook in them when you release 11 them, you have no means of controlling whether 12 they will be in a program or not. 13 So, unpleasant as it may be, it 14 is absolutely essential that you have some form 15 of parole for sex offenders so that you can 16 force them to continue the treatment upon 17 release. Otherwise, if they max out, as they 18 generally do at Avadale in New Jersey, they max 19 out. Then they go into society, and there is no 20 extended treatment required at that time. 21 ACTING PRESIDENT DeFRANCISCO: 22 Senator Mendez, why do you rise? 23 SENATOR MENDEZ: I wonder if 1 Senator Hoffmann would yield for a question? 2 ACTING PRESIDENT DeFRANCISCO: 3 Senator Hoffman, will you - 4 SENATOR HOFFMANN: I will yield 5 briefly, Senator Mendez, but I prefer to wait. 6 SENATOR MENDEZ: Of those studies 7 that you have reviewed, could you tell me any 8 specific study that states what was the number 9 of sex offenders that received the treatment, 10 and - 11 SENATOR HOFFMANN: Yes, Senator 12 Mendez. I'm anticipating your question, and 13 I'll get to that momentarily. Thank you. 14 SENATOR MENDEZ: There's a number 15 of - 16 ACTING PRESIDENT DeFRANCISCO: 17 Excuse me a minute. Could you finish your 18 question, please. 19 SENATOR MENDEZ: I'm trying to 20 finish it. I'm not going to take much -- I - 21 I'm on your side. I know how you feel about 22 it - 23 SENATOR HOFFMANN: I know. I 1 know the statistics - 2 ACTING PRESIDENT DeFRANCISCO: 3 Senator Hoffmann, will you please let her - 4 SENATOR MENDEZ: My question is 5 -- everybody here is talking about how sex 6 offenders could curb that offensive behavior. 7 My question is, nobody has given specific 8 details as to which specific study, how much 9 subjects were studied, what degree of recidivism 10 was found, and that's -- and I want to know if 11 there is any specific study that anybody could 12 cite here. Do you have any? 13 ACTING PRESIDENT DeFRANCISCO: 14 Senator Hoffmann. 15 SENATOR HOFFMANN: Thank you, Mr. 16 President. To respond to Senator Mendez, I am 17 getting to that point, and I think you will be 18 pleased to know that I have some of those 19 statistics, Senator Mendez, but I would like to 20 bring them up in my own time after I explain a 21 few more aspects of this bill. If you would 22 just bear with me and be patient, I think I can 23 answer your question satisfactorily. 1 To get back to the issue of 2 parole, it is essential that we have an 3 integrated program that requires mandated sex 4 offender treatment as well as voluntary 5 treatment in prisons and to accomplish that, 6 after having gone through this exhaustive study 7 with DCJS and my own office and having visited 8 several of these facilities over a period of 9 time, I embarked upon the creation of a program 10 that would be a pilot program in New York State 11 and the Department of Corrections. I 12 implemented this at Oneida Correctional Facility 13 in Rome. 14 And unlike Senator DiCarlo's 15 assertion that they're all voluntary programs, I 16 want to make it very clear that this is a 17 mandatory program to which convicted sex 18 offenders in New York State -- not all of them, 19 but all of them who are sentenced to a 20 five-prison hub in the Mohawk Valley in New York 21 State, all of them initially are required to 22 attend and participate in segregated housing in 23 a sex offender treatment program. The minimum 1 period of time is six weeks. It is generally 2 considerably longer, several months, that the 3 mandatory component of the program is in place. 4 During this time, the sex 5 offenders conduct group discussions. They go 6 through an elaborate explanation of their crime, 7 their sentence. After standing and stating 8 their name, where they're from, what their crime 9 was, they then say they were guilty. Several of 10 them in every group that I have visited will 11 say, "And I'm not guilty," or "The bitch asked 12 for it," or something of that nature. 13 After a while, however, the 14 process of having been forced in that 15 environment to endure the daily discussions of 16 this criminal activity, combined with the 17 exposure to the whole victim empathy 18 professional modality creates a change in their 19 environment and they begin to communicate on an 20 entirely different level and they begin to 21 discuss what it was that motivated them to do it 22 and then, ultimately, after some period of time, 23 they begin to discuss what was wrong, and 1 finally, why they would like to not do that 2 again or why they would feel badly for somebody 3 if they did whatever it was they had done 4 before. 5 This change takes place in a 6 different period of time for different inmates, 7 and for some it will never take place, and the 8 urges that accompany the crimes that are 9 committed in many instances will never subside, 10 but there is still the potential for controlling 11 the urges for those men who will go through the 12 program for some period of time, years, and upon 13 release continue with regular treatment, so the 14 professionals say. 15 What do the statistics show? In 16 New York State it is much too soon to say 17 whether the pilot program at Oneida Correctional 18 Facility is going to reduce recidivism long 19 term. It's only a few years old. I would urge 20 any of my colleagues, you especially, Senator 21 DiCarlo, to please visit and see the program so 22 you have a better sense of how it works. Listen 23 to how these men and their very hard-working, 1 beleaguered counselors address this issue in a 2 Department of Corrections that is somewhat less 3 than supportive when contrasted to other states; 4 but in those states that have this well 5 structured, well-thought-out mandatory treatment 6 program and required parole treatment in 7 approved -- state sanctioned and approved 8 programs, all of which are missing in New York 9 State, in those states, there's statistical 10 results that show that it works. 11 And to address Senator Mendez' 12 question, the state of Minnesota is the one that 13 has compiled the best statistical analysis over 14 the longest period of time. For those inmates 15 who successfully stayed in the program while 16 they were incarcerated -- and many of them 17 washed out -- they start the program and then 18 they go through the mandatory part. After they 19 have been in the mandatory part, they literally 20 have to audition for the ongoing part which 21 takes place in the duration of their treatment. 22 If they are not sincerely working on their 23 abnormal behavior, then they are not going to 1 remain in the program; but for the ones that do, 2 and then continue in program upon release as 3 parolees, the ten-year post-release statistic 4 for recidivism is less than ten percent -- less 5 than ten percent of those sex offenders who 6 continued the program from incarceration through 7 parole in the state of Minnesota recidivate, 8 contrasting that with anywhere between 40 and 50 9 on a national average for all sex offenders, I 10 think is a remarkable figure. 11 If we could lower the recidivism 12 rate in New York State for sex offeners in 13 treatment at Oneida Correctional by only five 14 percent, if we could go down from 50 to 45 15 percent, we would spare, literally, thousands of 16 women and children the agony of a rape or a 17 molestation by those sex offenders. The figures 18 are just enormous. The potential to avoid a 19 crime is one of the most traumatic that we have 20 before us and, yet, to put it all together 21 requires sentencing changes; it requires parole 22 improvements. 23 We have now embarked upon a 1 program of dedicated case loads for parole 2 officers. I worked with Commissioner Russi a 3 few years ago and arranged for the National 4 Institute of Corrections to come in and do a 5 training program much like the one we did at 6 Oneida Correctional when we started the sex 7 offender treatment program there, and we now 8 have dedicated case loads for some parole 9 officers who now understand what the sex 10 offender treatment program works like, so for 11 those who can, as parolees, have the good 12 fortune of entering a program that meets some of 13 their needs, there is a parole officer who 14 understands it and has a better sense what the 15 warning signs are when a person may, in fact, be 16 getting close to the point of recidivism. 17 So I want to applaud Senator 18 DiCarlo for entering this area, and I would hope 19 that it is just the beginning of a long and very 20 fruitful journey in reducing the number of sex 21 crimes in New York State; but I would like very 22 much to applaud Senator Gold for introducing a 23 reasonable amendment, and I hope that we will 1 not be voting on the party line today to deny 2 the urgency of mandatory sex offender treatment 3 to those sex offenders who are incarcerated in 4 New York State. 5 Let's support the amendment as 6 well as the bill and then let's work toward a 7 better, more meaningful, comprehensive approach 8 to address this issue from start to finish. 9 ACTING PRESIDENT DeFRANCISCO: 10 Senator Mendez. 11 SENATOR MENDEZ: Mr. President, 12 yes, I rise in support of Senator Gold's 13 amendment. I suppose that the reason why I do 14 that is because, although I firmly believe that 15 there is nothing at this point in time that we 16 could ever do to -- to redeem or change the 17 behavior of a sex offender, especially a sex 18 offender that attacks children, so that at least 19 let's try out something. 20 I understand -- I'm not sure, but 21 I understand that that treatment effort that is 22 going on in Oneida, referred to by Senator 23 Hoffmann, I understand that it is mainly with 1 rapists. There is a difference, a big 2 difference between -- in my mind at least, 3 between a rapist - 4 SENATOR HOFFMANN: Will Senator 5 Mendez answer a question? 6 ACTING PRESIDENT DeFRANCISCO: 7 Excuse me, Senator Hoffmann. Why do you rise? 8 SENATOR HOFFMANN: I wonder if 9 Senator Mendez would yield for a question, 10 please. 11 ACTING PRESIDENT DeFRANCISCO: 12 Senator Mendez, would you yield for a question? 13 SENATOR MENDEZ: Yes, I will. I 14 think -- are you going to ask me -- you're going 15 to mention -- say your question. 16 ACTING PRESIDENT DeFRANCISCO: 17 Senator Hoffmann. 18 SENATOR HOFFMANN: I'm going to 19 ask Senator Mendez why it is that she thinks the 20 program at Oneida deals solely with rapists? 21 SENATOR MENDEZ: Because 22 Commissioner Coughlin once told me when I was 23 telling him what I really think should be done 1 with sex offenders; Commissioner Coughlin told 2 me that he had a program for rapists, and he 3 didn't mention any other sex offenders, Senator 4 Mendez. That's why. 5 ACTING PRESIDENT DeFRANCISCO: 6 Senator Hoffmann, you have another question? 7 SENATOR HOFFMANN: I would just 8 want to respond to Senator Mendez, to let her - 9 reassure Senator Mendez. 10 ACTING PRESIDENT DeFRANCISCO: 11 Excuse me. Senator Hoffmann, I think Senator 12 Mendez has the floor. If you have a -- you want 13 her to yield for a question? 14 SENATOR HOFFMANN: Senator 15 Mendez, if you would like to come to the Oneida 16 program in Rome, I think you would be pleasantly 17 surprised to find that there is the full 18 complement, the full garden variety of sex 19 offenders there. There are -- there are incest 20 fathers; there are child molesters, pedophiles 21 of several different varieties, as well as 22 rapists. In -- every sentenced sex offender who 23 goes into that facility goes into the program. 1 It is not by any means limited to rapists. 2 ACTING PRESIDENT DeFRANCISCO: 3 Senator Mendez. 4 SENATOR HOFFMANN: Would you like 5 to come? I would like that. 6 ACTING PRESIDENT DeFRANCISCO: 7 Excuse me, Senator Mendez. If you can find a 8 question within that, would you want to answer 9 that? 10 SENATOR MENDEZ: No, I am not 11 interested - 12 ACTING PRESIDENT DeFRANCISCO: 13 You have the floor. Excuse me. You have the 14 floor. 15 SENATOR MENDEZ: I am not 16 interested in visiting all those people there 17 that shouldn't be let out to hurt more people. 18 So anyhow -- but anyhow, Mr. 19 President, I am supporting, I said before, the 20 -- the amendment presented by Senator Gold, 21 just as a last resort, knowing in my mind at 22 this point I feel that there is nothing that we 23 can do. 1 I was mentioning before that - 2 that, in my mind, there is a difference between 3 rapists and child sexual offenders. Those that 4 rape infants, those that rape little boys and 5 little girls, those people at this point in 6 time, Mr. President, I don't think that there is 7 anything, no treatment at all foolproof that 8 would make it possible for that individual to 9 come out of jail with -- regardless of how many 10 treatments he had received in jail and monitored 11 outside, that person is not worth for society to 12 allow that person to come out and then have 13 another child suffer the horrendous, traumatic 14 experience. 15 So that in instances like this in 16 which we're dealing with sexual crimes, we 17 really have to -- have to think in terms of the 18 -- of the victims. Of course, we all want to 19 see everybody behave like angels, but not - 20 everybody do not behave like angels, saints in 21 the heaven; and these people, something has 22 occurred to them in their formative years, 23 something went wrong in their psycho-sexual 1 development that it's excited at that point and 2 it's -- and it's a danger to -- to let them 3 out. 4 I really want to also 5 congratulate Senator DiCarlo for his bill. It 6 doesn't go as far as it should because we always 7 keep forgetting that the main -- one of the main 8 functions of government is to provide safety for 9 women, children and its citizens, and as long as 10 we keep allowing courts to -- to have -- to have 11 plea bargaining whenever a sex offense occurs, 12 together with another -- as with an armed 13 robbery or whatever, then society has not been 14 paying enough attention to the tremendous 15 importance of people who prey on others to -- to 16 prey on others and commit these horrible 17 crimes. 18 We should seriously consider 19 eventually to do all kinds of experimentation 20 and treatment and therapies that we want to, we 21 feel we should try in an effort to see if 22 something could be done to, in fact, correct the 23 behavior of these people. I have no problems 1 with that, but we have to make certain that they 2 stay put where they are, because our primary 3 responsibility is to prevent one single child to 4 be raped in such violent fashions. 5 This morning, Mr. President, when 6 I woke up, I read in the -- I heard on the radio 7 that there is a man -- he probably was already 8 in jail -- with a van, a red van, going around 9 the schools trying to lure children, little 10 children into his van, and we don't have the 11 right to allow that sick person out of jail to 12 be doing that kind of thing. I hope he's caught 13 before another child pays a price that he 14 shouldn't be paying when we here must make the 15 law to ensure the safety of the citizens and 16 mainly the children should be our first 17 priority. 18 So, at least some sentencing is 19 going a little bit longer this time around, 20 Senator DiCarlo, but that is not the end of it. 21 We all should forget about everything else and 22 just deal with the issue. Yes, let's have a 23 thorough research. As far as I'm concerned, I'm 1 going to deal with that later because no 2 specific statistics at all have been given, no 3 detailed explanation of one of these studies 4 that have been conducted and by whom, how were 5 the subjects -- how were the conclusions 6 validated? Nothing. We don't have nothing to 7 make this statement that, in fact -- at least I 8 feel about this one point; maybe it's my 9 ignorance -- that the bulk of the literature 10 would prove that the recidivism of these people 11 is going to be so low, .001 percent, that maybe 12 -- maybe it could be justifiable to allow them 13 out in our society. 14 So, again, I support the -- the 15 amendments presented by Senator Gold. I don't 16 have big illusions about it, but -- and I 17 support the bill of Senator DiCarlo, but we have 18 a long way to go to ensure the safety of our 19 kids in our society. 20 ACTING PRESIDENT DeFRANCISCO: 21 Senator Abate. 22 SENATOR ABATE: I know a lot has 23 been said, and I will try to say it briefly. 1 On the bill, Senator DiCarlo. 2 I'm a newcomer to this chamber, but having spent 3 22 years in criminal justice, the communities 4 that we serve are begging for leadership from 5 this chamber, not just Band-Aid approaches, but 6 comprehensive, rational approaches to making our 7 streets safer. People are looking to the Senate 8 because the Senate traditionally is known for 9 the crime-fighting body of this Legislature, and 10 I would suggest that, although this bill gives 11 rigorous attention to needed vigorous 12 prosecution and sentencing remedies, that we're 13 fooling ourselves if we stop short of providing 14 treatment and prevention. 15 As a former correction 16 commissioner, as a former commissioner of 17 Probation, I have traveled throughout this 18 country and I have spoken to law enforcement 19 professionals. They will say, if you just do 20 two parts of the equation, law enforcement and 21 policing and not treatment and prevention, we 22 will continue to fail. 23 I think if we look at the reality 1 of the situation, there are thousands of sex 2 offenders on probation today throughout the 3 state. There are thousands on parole and there 4 are thousands in the Department of Corrections, 5 and it's not the issue that we can't do anything 6 or nothing we can do works. The issue is we 7 have never tried anything and we have never done 8 enough. 9 I know when I was a commissioner 10 of probation, we had a thousand sex offenders. 11 There was no money, and my experience was no 12 different from other departments of probation in 13 -- throughout the state. We had to develop 14 specialized case loads, and this is before state 15 Department of Corrections did it, before state 16 parole did it, because we knew how volatile this 17 population was and we tried to develop training 18 for the probation officers. In New York City, 19 there are a handful of programs, so to say that 20 this treatment does or does not work, to say 21 there's not a body of documentation, is really 22 saying we've never had this treatment. We must 23 have the treatment. 1 We also must have a research 2 component to evaluate what modalities work and 3 what doesn't work. The professionals throughout 4 the country talk about the need for continuum of 5 care. It must start in prison, in jail, 6 continue out in the community or start in 7 probation or end in parole; and the reason is, 8 is what Senator Hoffmann says. People don't 9 change overnight, particularly sex offenders. 10 They go through a long period of denial. They 11 separate their crime, their actions. They 12 depersonalize the victims. They don't think 13 what they did is wrong. It takes years for them 14 to come in touch with their rational being and 15 their emotional being. So it's important that 16 treatment not just be voluntary in correction. 17 It must be mandatory, and that continuum of 18 treatment must be as vigorous and intensive when 19 that offender reaches the community. 20 And there are all kinds of 21 treatment from counseling, the psycho-dymanics, 22 the biomedical modalities, all of this has to be 23 tried, but we need money and we need designed 1 programs that have to be developed. They just 2 don't exist, and Probation Departments and 3 Parole Departments have to deal with this 4 population, having offenders coming out of jails 5 and prisons without this kind of treatment. 6 And I think we all agree, as a 7 body, we need to make sure that sex offenders do 8 not offend again. We need to make our 9 communities safer and what I'm suggesting, the 10 only way to do it is through law enforcement and 11 treatment together, and we can make, I think, a 12 difference. 13 So I would suggest, Senator 14 DiCarlo, we can take a comprehensive view. If 15 we just do more -- putting more people in parole 16 and probation and prison without the treatment, 17 they will just continue to victimize our -- the 18 people we are served to protect. I would ask 19 you to reconsider, go back and let's have a 20 fuller discussion. Look what happened in 21 Massachusetts. They have done studies - 22 studies throughout the country. Let's make sure 23 we provide the kind of leadership to our 1 communities so, in fact, we make a difference 2 that makes our streets safer. This just goes 3 one step in that direction. Why not go the 4 whole way and make a difference for our 5 communities? 6 There's a body of research out 7 there. There's programs that can be developed. 8 Let -- as a Senate body, we are crime fighters. 9 We all care about the safety of our 10 communities. Let's prove it. Let's not do 11 BAnd-Aid approaches, short-sided approaches. 12 Let's not just deal in rhetoric. Let's deal in 13 real solutions that are going to save people's 14 lives. 15 Thank you. 16 ACTING PRESIDENT DeFRANCISCO: 17 Senator DiCarlo on the amendment. 18 SENATOR DiCARLO: Senator Mendez 19 has left the chamber, but she was speaking about 20 our conversations with Commissioner Coughlin and 21 she stopped short of her answer to this problem, 22 and if I read Senator Mendez' mind, if she were 23 putting that on as an amendment to my bill, I 1 would probably go along with it. 2 Senator Gold, I know that you've 3 obviously worked long on your amendment, and I 4 think you believe this is going in the right 5 direction. I oppose your amendment because I 6 oppose the content of it. I am perfectly 7 willing to discuss with a colleague their 8 feelings on legislation and potential 9 legislation at any time. I do not believe in 10 your amendment, period. 11 We have here a case recently in 12 New York City -- we talk about treatment. We 13 have the case of -- the Rosado case, and we talk 14 about treatment as being the panacea and the 15 answer to these troublesome questions. This man 16 was a second felony offender, having been 17 convicted of second degree robbery in 1971. In 18 1979, he was involved in four separate sex 19 crimes. 20 In 1980, he was convicted of 21 first degree rape, first degree sodomy, first 22 degree attempted rape, first degree attempted 23 sodomy, second degree assault, second degree 1 sexual assault, unlawful imprisonment and second 2 degree assault. Although four separate 3 incidents, he was sentenced concurrently, could 4 have been sentenced to a maximum of 12 1/2 to 5 25, but he was sentenced only a 9 to 18. Parole 6 Board did its job and denied him parole four 7 times and he served the minimum. 8 Rosado was a model prisoner and 9 he earned good time, which meant he had to be 10 released after serving 13 years. He agreed to 11 submit to an evaluation and treatment program 12 following his release. Now, I'm all for if 13 you're going to get out, you have to have 14 treatment, because it does probably cut back on 15 some tendencies, but it doesn't cure it. Rosado 16 was actually attending the program after his 17 release and, at the same time, committed eight 18 rapes over a one-year period, and this is while 19 getting treatment. 20 The answer to the problem is to 21 take these people off the streets. The answer 22 is not treatment while in prison or after 23 prison, while out of prison. My bill wants to 1 keep these people in prison for longer periods 2 of time. I would rather my bill kept them in 3 for much longer periods of time, but I want to 4 get a piece of legislation passed into law. The 5 reason I put treatment into my bill is because I 6 do believe that some are going to be getting out 7 and it is much better for us to try something 8 else if they're going to be released and if 9 they're going to be released into society, we 10 should try to give them some treatment. 11 Your amendment wants to treat 12 them in prison. Frankly, I don't believe -- and 13 there are studies that will go on forever about 14 what happens in prison and treatments in 15 prison. I do not believe treatment in prison is 16 going to reduce significantly their committing 17 crimes when they're out. I don't think it's 18 going to happen. I don't agree with your 19 amendment, but I think we've got to get serious 20 with this crime. We're not serious with it. 21 This bill has passed every year 22 for the last six years, and every Democrat in 23 this chamber along with every Republican votes 1 for it. You might not think it goes far 2 enough. You'd rather see treatment while in 3 prison, but we pass a bill every year in this 4 floor for six years, only to die over in the 5 other chamber. We're not serious about the 6 crime of rape. We're not serious about the 7 crime of child molestation. It's a joke. 8 Now, Senator Gold, I would always 9 sit down and discuss pieces of legislation with 10 you. I do not believe your amendment goes in 11 the direction that I want my bill to go in, and 12 I would be happy to sit down with you at another 13 time to discuss other pieces of legislation 14 because I believe your many years in the Senate, 15 all right, would be helpful to me, but this 16 amendment does not go in the direction that I 17 want it to. I would not vote for your 18 amendment. I would urge its defeat. 19 Thank you. 20 ACTING PRESIDENT DeFRANCISCO: 21 Senator Gold. 22 SENATOR GOLD: Yeah, if nobody 23 else wants to speak, I'd close on this. 1 Let me say this. Senator 2 DiCarlo, first of all, I have a great deal of 3 respect for you. You know that, but -- but when 4 you say studies "go on forever", to give the 5 impression that there's studies on the right and 6 studies on left is nonsense because, Senator 7 DiCarlo, in all fairness, there are no studies 8 on the other side that say that it's a waste of 9 time. There aren't. There are the studies 10 referred to. Minnesota, you've got 11 Massachusetts, New Jersey and others. Those are 12 real studies. 13 Now, I learned years ago you 14 can't argue religion with people because, at one 15 point in time, somebody says to you, "Well, 16 that's what I believe." Well, if that's what 17 you believe, then let's not get into logic or 18 anything else. If you want to say, "Well, this 19 is what I believe," then I won't argue with you 20 on that, but don't tell me there's studies and 21 they go on forever. 22 The other thing is you said that 23 my amendment talks about treatment as a 1 panacea. Now, that's not so. I didn't say that 2 at all. And as far as Mr. Rosario is concerned, 3 as Senator Abate pointed out, you don't treat 4 somebody for an hour and say, "My God, we've 5 just sent down another changed person." This 6 takes a period of time, and if that time starts 7 while they're in prison, then the person who 8 goes out on the street isn't hitting treatment 9 for the first time, so you can shrug your 10 shoulders and say, "Look at that. We gave that 11 guy an hour yesterday and he committed a crime 12 today." We're talking about giving people 13 treatment over a period of time, so the day they 14 get out of prison maybe they are a different 15 person. 16 And the problem with giving me a 17 case like the Rosario case is you've got to 18 invite me to read you these 35 cases of people 19 who went through the program described by 20 Senator Hoffmann and who haven't bothered 21 anybody. So, you know, bad cases make bad law. 22 There's always some instance, situation you can 23 point to, but that doesn't mean that that's 1 what's really happening across the board. 2 Now, this bill is not, as far as 3 I know, passing the Assembly tomorrow. As a 4 matter of fact, you indicated you haven't been 5 able to pass it in the Assembly for years, so 6 this conversation we have today could be a very 7 useful one in the process. "Let's not pass the 8 bill. Let's talk. You don't like my amendment, 9 maybe there's a way we can word it differently 10 to fit it in," and then we wind up taking care 11 of the situation. 12 Another point I want to make is 13 there's an expression used all the time, and 14 I'll bet you right now -- I'll bet you right 15 now, Senator DiCarlo, dinner for four, my wife 16 and you and your wife in New York. You pick the 17 restaurant -- that by the time we finish a 18 debate on a bill tomorrow, if that bill comes up 19 tomorrow, somebody on your side of the aisle is 20 going to say, "And even if this saves only one 21 life, it's worth it." Well, let me tell you 22 something. Why not today? If my amendment will 23 save one life, if my amendment will save 50 1 women, why isn't that enough? I mean, I must 2 tell you if you -- if you talk to people who 3 have been involved with the rape situation, it's 4 devastating to someone's life, so if my bill 5 could save one life, why isn't it worth it? And 6 the fact of the matter is, we're talking about a 7 lot more than just one life. 8 What we have here in this debate 9 I find fascinating. We have people who say, 10 "Well, I've got a feeling." There are fears. 11 There's obviously politics involved, and on my 12 side of the aisle, I sat -- and there's a Jewish 13 word "kvell" which means you look at something 14 with great pride, and I listened to Senator 15 Hoffmann talk, and what did I hear? I didn't 16 hear prejudice; I heard facts from an 17 intelligent, articulate lady, setting forth real 18 logic for what is happening in understanding a 19 problem; and if that wasn't enough, Senator 20 Abate jumps in and says, "Look, I'm a Senator 21 for maybe an hour and a half, but I have 22 22 years' experience in this subject and maybe 23 that's why people sent me here." 1 And I think that the corker of it 2 all is, Senator DiCarlo, you may, on a scale of 3 one to ten, have an idea of where you are in the 4 fight against sex abuse, but wherever you think 5 you are, put Senator Mendez one step ahead of 6 you because, in her little remarks, we all know 7 the way she feels, and she stands up and says, 8 "I don't think this will work, I'll give it a 9 try," because maybe Senator Mendez, in her 10 wisdom, says, "If it helps one woman, ten women, 11 fifty women --" So that's what we're talking 12 about. We're talking about whether or not this 13 is a serious process. 14 You said a moment ago, Senator 15 DiCarlo, that you were very upset with the 16 process. This house unanimously has passed a 17 bill and why is it not the law? Maybe it's not 18 the law because it's the fault of your party. 19 Maybe if your party didn't bring bills out for 20 political advantage, maybe if they brought out 21 ideas for conversation, if they came out with 22 open ears and an open mind, that would be fine. 23 Now, Senator, you said you don't 1 like the idea. That, I respect. That, I 2 respect. You're entitled not to like the idea, 3 and I believe you're an honest man and you don't 4 like it, but there are people on your side who I 5 know do like it, and maybe if we refined it, 6 maybe if we worked it out between you and I and 7 between you and Senator Hoffmann who probably 8 knows more about it than I do, Senator Abate who 9 probably knows more about it than I do, we'd get 10 the amendment that passes both houses and then, 11 Senator DiCarlo, the system will work and you 12 will be one of the reasons why it worked. 13 I sincerely hope this amendment 14 passes. 15 ACTING PRESIDENT DeFRANCISCO: 16 Senator Abate. 17 SENATOR ABATE: I just want to 18 urge again that this is a good bill, but you 19 have an opportunity to create an excellent bill, 20 and I urge you to go back to the state Division 21 of Parole and speak to parole officers that, if 22 they're going to be effective in supervising sex 23 offenders in the community, they need mandatory 1 treatment in the prisons. They will tell you 2 that over and over again. If I'm wrong, please 3 come back to the floor and tell me I'm wrong. 4 What I'm asking is to have a debate and 5 discussion so we really can produce a bill 6 that's going to make a difference. And I just 7 want to -- because I did not cover it in the 8 first instance, when we created that sex 9 offender treatment program in New York City, we 10 studied offenders in the prior year to look at 11 the recidivist rates, those sex offenders on 12 probation that did not have offender treatment 13 available to them, and then we developed an 14 intensive treatment program where people were 15 supervised in their homes. We went -- did home 16 visits. There was counseling. There were 17 medical staff assigned to the sex offenders. 18 The recidivism rates were substantially reduced. 19 Now, Senator Gold, that's not a 20 study in Massachusetts. That's not a study in 21 Minnesota; that's real life and what happened in 22 New York City with real life human beings and 23 serious sex offenders, pedophiles, acquaintance 1 rapes, other kinds of rapists and sex 2 offenders. Please, let's talk about those 3 experiences in New York City, across the 4 country. Let's look to parole. 5 You have a great opportunity to 6 provide enormous leadership around a very 7 complex and difficult problem. We ask you to 8 take another look at it. Come back. If we're 9 wrong, tell us we're wrong, but we're raising 10 some critical issues that, I think, deserve more 11 examination and debate. 12 ACTING PRESIDENT DeFRANCISCO: 13 The question is on the amendment. All those in 14 favor signify by saying aye. 15 (Response of "Aye".) 16 Opposed? 17 (Response of "Nay".) 18 The amendment is defeated. On 19 the bill, please read the -- please read the 20 last section. 21 THE SECRETARY: Section 14. This 22 act shall take effect on the 1st day of November 23 next succeeding the date on which it shall have 1 become a law. 2 ACTING PRESIDENT DeFRANCISCO: 3 Please call the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 58. 6 ACTING PRESIDENT DeFRANCISCO: 7 The bill is passed. 8 THE SECRETARY: Calendar Number 9 55, by Senator Present, Senate Bill Number 503, 10 an act to amend the Penal Law. 11 ACTING PRESIDENT DeFRANCISCO: 12 Senator Dollinger. 13 SENATOR DOLLINGER: Mr. 14 President, could you tell me what number we're 15 on on the calendar? I apologize. 56? 16 ACTING PRESIDENT DeFRANCISCO: 17 55. 18 SENATOR DOLLINGER: Thank you. 19 ACTING PRESIDENT DeFRANCISCO: 20 Please read the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect on the 1st day of 23 November. 1 THE PRESIDENT: Call the roll. 2 (The Secretary called the roll.) 3 ACTING PRESIDENT DeFRANCISCO: 4 Senator Paterson - 5 SENATOR PATERSON: Mr. President. 6 ACTING PRESIDENT DeFRANCISCO: - 7 to explain your vote? 8 SENATOR PATERSON: This 9 legislation is - 10 ACTING PRESIDENT DeFRANCISCO: 11 Excuse me. I'm confused a bit. We're on the 12 roll call. Are you rising to explain your 13 vote? 14 SENATOR PATERSON: I was. 15 ACTING PRESIDENT DeFRANCISCO: 16 Okay. Thank you. 17 SENATOR PATERSON: Mr. President, 18 on this particular piece of legislation, I'm 19 voting no on it. The Eighth Amendment of our 20 Constitution allows and certainly provides that 21 every citizen is extended -- that's what I 22 thought. I'm on the wrong bill, Mr. President. 23 ACTING PRESIDENT KUHL: Senator 1 Paterson, that's happened to a lot of people 2 before. 3 Can we continue with the roll 4 call? 5 SENATOR PATERSON: No, I want to 6 leave now, Mr. President. 7 (Laughter) 8 ACTING PRESIDENT KUHL: Senator, 9 I'll allow you to do that too, Senator. 10 SENATOR PATERSON: Continue the 11 roll call, Mr. President. 12 ACTING PRESIDENT KUHL: The 13 Secretary will announce the results. 14 THE SECRETARY: Ayes 57, nays 1, 15 Senator Paterson recorded in the negative. 16 ACTING PRESIDENT KUHL: The bill 17 is passed. 18 THE SECRETARY: Calendar Number 19 56, by Senator Cook, Senate Bill Number 561, an 20 act to amend the Criminal Procedure Law. 21 SENATOR DOLLINGER: Explanation. 22 THE INMATE: Senator Cook, an 23 explanation has been asked for by Senator 1 Paterson. 2 SENATOR COOK: Mr. President, the 3 -- ironically, this bill is explained, although 4 I would have to say rather imperfectly in a 5 memorandum in opposition which states that 6 Article -- I can't read it -- Section 5 of the 7 New York State Constitution guarantees every 8 accused the right not to be held unreasonably or 9 on excessive bail. 10 In interpreting these provisions 11 of state, it says -- that happens to be one 12 Supreme Court judge -- has properly recognized 13 that the only constitutional -- constitutionally 14 permissible purpose of bail is to ensure the 15 defendant's presence at a trial. 16 While it was only, indeed, one 17 Supreme Court judge that has been the precedent 18 in the state that the courts of New York have 19 interpreted that bail can only be denied in 20 cases where there's a question of whether the 21 defendant would appear for trial, this bill 22 attempts to establish another standard, and that 23 standard is the purpose of protecting the 1 public. 2 It seems to me that our 3 responsibility here is exactly that, and indeed 4 we've just heard a discussion of another bill in 5 which the point was made repeatedly that our 6 purpose here is to protect the public. What 7 this bill does is provide that, in certain 8 enumerated crimes, that is, persons who are 9 arrested and charged with certain enumerated 10 crimes, if they have been previously convicted 11 of one of those enumerated crimes or, indeed, if 12 they're currently on bail and awaiting trial for 13 one of those crimes, that that is taken as an 14 indication that this person is a danger to 15 society and, therefore, that the court is 16 instructed in those cases not to grant bail in 17 those cases. There is a long list of -- a long 18 procedure that can be followed that gives due 19 process by which, if the individual is charged 20 wants to -- wants to contest this, they have the 21 ability to do so, whereupon the judge then has 22 to make a finding in fact that the person does 23 constitute a danger to society. 1 This is not a particularly new 2 issue. It's an issue that has been addressed by 3 a report issued by the Democrats in this house 4 who themselves have issued a report indicating 5 that, to quote them, several academic studies on 6 the criminal -- the continuing criminal habits 7 of persons granted pretrial release, granted 8 startling conclusions, revealed startling 9 conclusions. The Institute for Law and Social 10 Research found that 26 percent of all felonies 11 committed in the District of Columbia, 12 admittedly not New York State, but I suspect 13 it's not unlike the same statistics year. 20 14 percent -- 26 percent of all felonies were 15 committed by persons on some form of conditional 16 release. Another study by the U.S. Attorneys 17 Office of over 500 indicted robbery defendants 18 reported a 70 percent rearrest rate while on 19 pretrial release. These were people who were 20 already on bail when they committed another 21 crime. Up to 28 percent of all murders, 19 22 percent of all rapes are committed by persons on 23 conditional release. Senator Kennedy, citing 1 instances in Massachusetts, said that over 50 2 percent of all the crime in that state was 3 committed by persons who were out on bail. So 4 the point is that -- and another statistic 5 incidentally is that 80 percent of all the 6 persons convicted of robbery in New York City - 7 New York City, had a prior felony arrest. More 8 than 2,000 persons arrested -- and mentally, 9 this is a staled statistic, but I'm sure again, 10 unfortunately it probably hasn't changed much - 11 2,000 persons arrested in that city in 1976 for 12 new crimes were already wanted under bench 13 warrants because they had broken their parole. 14 So the point is, Mr. President, 15 this bill is a common sense effort to say that 16 there are certain persons in this society who 17 have a history of violent behavior, who have 18 attacked people, who have raped people, in some 19 cases have murdered people, and these people 20 have been arrested. They have been identified. 21 We know who they are, and yet because of the 22 technicality of the way the present law is 23 written and the way it has been interpreted by 1 the courts, the courts have said, "We have no 2 choice but to let these people back out on the 3 street." This bill attempts to correct that by 4 saying that the court has a responsibility in 5 the case where an individual has a history of 6 dangerous behavior, to deny bail to that person 7 and to have a speedy trial so that the case can 8 be disposed of. 9 ACTING PRESIDENT KUHL: The Chair 10 recognizes Senator Paterson. 11 SENATOR PATERSON: Thank you, Mr. 12 President. 13 I decided to stay and I really 14 don't mind being the puppet, but my assistants 15 are really starting to let the strings show, so 16 with that, I want to know if Senator Cook would 17 yield for a question? 18 ACTING PRESIDENT KUHL: Senator 19 Cook yields. 20 SENATOR PATERSON: Senator Cook, 21 did the study or some of the studies you're 22 talking about give any available information on 23 what would alter the statistics if the trials 1 were made speedier? In other words, if the 2 individuals who were seeking bail could be 3 brought to trail on a sooner period of time, 4 would that influence the statistics? 5 SENATOR COOK: Mr. President, I 6 -- I assume that it's really impossible for any 7 study to speculate on what might have happened 8 if something had been done other than what was 9 done. That's always one of the things that we 10 deal with in here, in fact, admittedly in this 11 bill. I can't stand here and tell you with 12 certainty, what's going to happen when this is 13 written into law, but certainly, we know what 14 has happened when this was not in law, and 15 that's what we're trying to deal with. 16 SENATOR PATERSON: Thank you very 17 much, Senator Cook. 18 I understand that that's a 19 difficult question to answer. It really calls 20 for a great deal of speculation, and I think you 21 gave us a fair answer. 22 My problem with this bill really 23 relates to the Constitution of the United 1 States. As I was saying before, the Eighth 2 Amendment which -- really provides that every 3 citizen of the United States, even one that is 4 arrested, is given the opportunity to receive a 5 reasonable bail and given an opportunity to be 6 released on their own recognizance or released 7 with some control, such that they will come back 8 for the trial. The Eighth Amendment is 9 interpreted in New York State by the Fourteenth 10 Amendment, and that is the right to due 11 process. 12 Now, in our state, we recognize 13 that right, so in Article 1, Section 5 of our 14 Constitution, we realize that the only real 15 reason that we have bail is to assure the 16 defendant's presence at the trial, and so we've 17 codified into the Criminal Procedure Law, 18 Section 510.30, Subsection (2), paragraph (a) 19 which states that, really the purpose of bail 20 will be to establish some control over the 21 defendant's -- defendant's whereabouts. 22 What Senator Cook's bill is 23 addressing is the fact that he seems to have 1 located that there is a high degree of 2 recidivism among those individuals who 3 apparently -- who have been convicted and have 4 been rearrested for a particular crime that, 5 during that period of time, there was - 6 SENATOR COOK: Mr. President. 7 ACTING PRESIDENT KUHL: Senator 8 Cook, why do you rise? 9 SENATOR COOK: Senator, I know 10 that you're excellent at being accurate, and I 11 just want to correct that. The statistics we 12 have are persons who have been arrested, 13 awaiting trial and commit another crime while 14 they're awaiting trial. So that's what I was 15 citing. 16 SENATOR PATERSON: That's right, 17 Senator Cook. What I was suggesting is that in 18 part of your bill, if there is a previous 19 conviction, that also applies, doesn't it? 20 Okay. And then I was getting to the point that 21 you made which is if they're arrested during 22 that particular time, that they have been again 23 arrested and accused of another offense. 1 I think the problem with the bill 2 is really our own Constitution. Perhaps if this 3 were Bosnia, it might actually work, but this is 4 the United States of America. We still have a 5 presumption of innocence until proven guilty. 6 Now, this does not belie the statistics that 7 Senator Cook presents us that, apparently for 8 some reason, people who have already been 9 arrested seem to have engaged at a higher degree 10 in criminal activity than they are when they are 11 not arrested, but still as a society, it is my 12 recommendation that we cannot pronounce a 13 presumption of guilt or in any way detain them 14 for any other reason than what the Eighth and 15 Fourteenth Amendment provide -- in Article 1, 16 Section 5 of our state Constitution provides 17 which is that bill does not speak to the guilt 18 or innocence of the crime. Bail speaks to our 19 assurance that the defendant will be able to 20 face the actual charges. 21 And so I would recommend that we 22 vote no on this particular bill, in spite of the 23 fact that, perhaps, a speedier trial, which is 1 guaranteed by the Sixth Amendment, is something 2 that we might look into to try to prevent this 3 problem which Senator Cook has properly 4 identified. 5 ACTING PRESIDENT KUHL: Is there 6 any other Senator wishing to speak on the bill? 7 Senator Dollinger. 8 SENATOR DOLLINGER: Mr. Chairman, 9 would the sponsor yield to a couple of 10 questions? 11 ACTING PRESIDENT KUHL: Senator 12 Cook, do you yield? 13 SENATOR COOK: Yes. 14 ACTING PRESIDENT KUHL: The 15 Senator yields. 16 SENATOR DOLLINGER: Through you, 17 Mr. President. Approximately how many 18 defendants in the criminal justice system in New 19 York State would be affected by the operation of 20 this bill? 21 SENATOR COOK: Senator, I don't 22 know for sure. I can only cite the one 23 statistic that's indicated in the study I do 1 have, that said in New York City, there were 2 2,000 persons arrested who were -- already had 3 bench warrants on them, so I assume we're 4 looking at that kind of numbers. 5 SENATOR DOLLINGER: Again through 6 you, Mr. President. Those were 2,000 persons 7 that were arrested in 1976, correct? So, is it 8 safe to assume that there's probably four times, 9 three times, five times the amount of the people 10 that might be affected by this bill today; is 11 that a fair statement? 12 SENATOR COOK: Senator, I'm not 13 sure whether that would be a fair statement or 14 not. Perhaps the courts are doing -- as Senator 15 Paterson indicated, perhaps they are getting to 16 these cases faster, perhaps they're not getting 17 to them as fast. I apologize. I don't have 18 more up-to-date numbers, but I would have to 19 suspect -- I think I know where you're going - 20 that there probably are indeed 4-, 5,000 people 21 in the state who would be in that situation. 22 SENATOR DOLLINGER: Again through 23 you, Mr. President. 1 ACTING PRESIDENT KUHL: Senator 2 Cook, do you still yield? 3 SENATOR COOK: Yes. 4 ACTING PRESIDENT KUHL: Senator 5 Cook yields. 6 SENATOR DOLLINGER: Senator Cook, 7 do you know what the cost is to incarcerate 8 those 4- or 5,000 inmates each day in a county 9 facility or in this case, the city of New York, 10 in the city facility, what the cost of 11 incarcerating those individuals is? What's an 12 average cost per day per inmate? 13 SENATOR COOK: Senator, I'm not 14 really sure what that cost is. I have heard 15 numbers talking about $50,000 a year, $100,000 a 16 year, and I guess if you divide it by 365, you 17 would come up with that kind of number, but the 18 point is, Senator, I guess if we really are 19 concerned about the cost of the prisons, we 20 ought to just repeal the Criminal Law and not 21 put anybody in prison. The point is we're 22 trying to deal with a problem here of crime on 23 the street. 1 SENATOR DOLLINGER: Again through 2 you, Mr. President, if I could just ask Senator 3 - 4 ACTING PRESIDENT KUHL: Senator 5 Cook, do you continue to yield? 6 SENATOR COOK: Yes. 7 ACTING PRESIDENT KUHL: The 8 Senator continues to yield. 9 SENATOR DOLLINGER: Let's say the 10 cost were $50 per day per inmate, that's 11 probably a fair cost, wouldn't you agree? 12 SENATOR COOK: I think it is a 13 little more than that, Senator. 14 SENATOR DOLLINGER: So to 15 incarcerate the 2,000 people in 1976 at $50 per 16 person per day would cost $100,000 a day to the 17 city of New York to put all the people on 18 pretrial release who are guilt -- who are 19 charged with felonies, had prior felony 20 convictions, would cost them $100,000 a day; is 21 that a fair -- I mean, is my math correct? 22 SENATOR COOK: I assume -- I'll 23 accept that number for whatever purpose. 1 SENATOR DOLLINGER: So that's 2 about $36 million a year to incarcerate those? 3 Where are the funds in this bill to pay the city 4 of New York to incarcerate the people so that 5 our vision of what the criminal justice system 6 ought to be is actually reflected by our ability 7 to commit the funds to do it? 8 SENATOR COOK: Senator, I don't 9 know that we have ever when we've written 10 criminal justice bills -- we're going to be 11 doing a death penalty bill here in a couple of 12 days. We've done other types of bills. Senator 13 Gold had just had an amendment on the floor in 14 which he wanted to have certain treatment. I 15 don't know that any of those bills ever had an 16 appropriation attached to them to cover the 17 cost. The point is that we have a criminal 18 justice system that we fund through a different 19 mechanism that is supposed to do certain things 20 and if we, in fact, pass bills that mandate that 21 there are going to have to be people in prison, 22 it's a given that we're going to provide the 23 funding for them. No question about it. 1 SENATOR DOLLINGER: But isn't it 2 true -- again through you, Mr. President. 3 ACTING PRESIDENT KUHL: Senator 4 Cook, do you continue to yield? 5 SENATOR COOK: Yes. 6 ACTING PRESIDENT KUHL: The 7 Senator continues to yield. 8 SENATOR DOLLINGER: I agree with 9 you, Senator Cook. I think that we ought to in 10 this era of cost consciousness on the part of 11 government, recognize that when we tell the 12 counties in the city of New York that they now 13 have to pick up the cost of pretrial release and 14 we're going to cancel pretrial release, we're 15 going to require that you put these people in 16 jail, the only problem that I have is that we 17 don't have to pay that cost, do we? That has to 18 come out of the property taxpayers in the city 19 of New York, in the county of Monroe where I 20 live or in any other county in the state, isn't 21 that correct? We don't pay that cost. 22 SENATOR COOK: Mr. President, 23 it's really interesting, Senator, of all of the 1 discussions that people have made -- had with me 2 about mandate relief, you're the first person I 3 have ever heard suggest that we ought to repeal 4 the Criminal Law so that we would relieve people 5 of the property tax. That's the first time 6 that's ever been - 7 SENATOR DOLLINGER: You're 8 misinterpreting -- you've misinterpreted my 9 comments. 10 ACTING PRESIDENT KUHL: Senator 11 Dollinger, you have the floor. 12 SENATOR DOLLINGER: I do have one 13 additional question. 14 ACTING PRESIDENT KUHL: Senator 15 Cook, do you continue to yield? 16 SENATOR DOLLINGER: As we push - 17 ACTING PRESIDENT KUHL: The 18 Senator yields. 19 SENATOR DOLLINGER: -- this cost 20 on to the counties and the city of New York, we 21 don't pay for it ourselves, how do you justify 22 that when the Governor is cutting defender 23 services by $18 million so that these trials 1 will take longer to occur and he's cutting 2 prosecution cost to the tune of $25 million in 3 this budget, how do you make that fiscal reality 4 square with what appears to be the motive of 5 this bill which is to require that all those 6 trials occur like that? 7 SENATOR COOK: Thank you. 8 I think, as I indicated earlier, 9 the Governor has framed his budget in the 10 context of what is currently on the books, and 11 if this bill arrives on his desk at some point 12 and he signs it into law, then obviously he has 13 to deal with that reality in future budgets, but 14 this bill does not have an effective date as of 15 now. It is not one that will be in place at the 16 beginning of the fiscal year starting April 1st, 17 and so, therefore, it is something that would 18 not appropriately be considered in this year's 19 budget but something that would have to be done 20 next near. 21 SENATOR DOLLINGER: One final 22 question, through you, Mr. President. 23 ACTING PRESIDENT KUHL: Senator 1 Cook, do you continue to yield? The Senator 2 continues to yield. 3 SENATOR DOLLINGER: In view of 4 the fact that shifting to the local property 5 tax, the cost of this measure, have any of the 6 county organizations of the city of New York 7 come in and supported this bill and said, "We're 8 willing to pay the property tax cost that would 9 be involved in financing this bill"? 10 SENATOR COOK: Well, again, Mr. 11 President, I haven't had anybody protesting "My 12 gosh, you're imposing a mandate on us." I don't 13 think anybody looks at this bill as a mandate in 14 that sense of the word. I think what people are 15 concerned about is the local police agencies are 16 concerned that they have people that they arrest 17 six and seven and eight and twenty and, in some 18 cases, in the city of Buffalo, 100 times when 19 they are out on bail; that's a cost that they 20 wouldn't like to have. I think if they had 21 those people behind bars they wouldn't be paying 22 that cost. I think people who are raped and 23 robbed and the person who is murdered whom I 1 know personally by somebody who was on bail on a 2 rape charge, I don't think that family would 3 have been -- would have been particularly 4 concerned about paying the extra $10 in property 5 tax to have that person held in jail so that 6 they weren't out on the streets to attack other 7 people. 8 I think, Senator, that your 9 speech about property taxes may be well taken in 10 another context, but I don't think there's 11 anybody in the state of New York today who wants 12 to have us reduce our surveillance of known 13 criminals who are out there in the public just 14 to save them money. I have not heard that said 15 by anyone. 16 SENATOR DOLLINGER: Again through 17 you, Mr. President. I apologize. I guess the 18 point of my question to Senator Cook was not to 19 suggest that I favor not doing this because we 20 shouldn't do it. What I simply suggested was, 21 in this new era where we look at costs and we 22 recognize that everything we do in this chamber 23 has a cost associated and at least in my county 1 -- my county executive is now living on the 2 second floor, my former county executive -- what 3 he always said was "Don't send us any more of 4 those mandates. Don't tell us to do something 5 that's going to raise our property taxes when 6 you're unwilling put your money, your personal 7 income tax revenue, your business tax revenue, 8 your sales tax revenue, you're not willing to 9 put your money where your mouth is." That's 10 what he kept telling me, and he was dead set 11 against all those unfunded mandates, and he made 12 it very clear that, in this chamber, we ought to 13 look at what we mandate and we ought to tie 14 funds with it. 15 I agree with Senator Cook. Last 16 time when this bill came up, I said, "This is an 17 unfunded mandate.' We're in that -- approving 18 all those bills that said, you know, "No more 19 unfunded mandates. This chamber is dead set 20 against them. We're not going to do it." I was 21 caught up in that rhetoric. I voted for the 22 bill that put a ban on unfunded mandates. I 23 looked at this bill and said, "My God, it's the 1 same day and we're passing an unfunded 2 mandate." I voted against it. I saw a 3 television commercial that said "Rick Dollinger 4 voted against work release. Rick Dollinger 5 coddles criminals". I tried to stand up and 6 say, "Gee, It was an unfunded mandate. We 7 weren't willing to put our money where our mouth 8 was, that's why I voted against it." I couldn't 9 get that message out in the campaign because I 10 didn't have all that campaign money that showed 11 up on the other side of the ledger. I never got 12 a chance to say it was an unfunded mandate. Got 13 me last time. Didn't get me this time. 14 I agree with Senator Cook, if 15 it's such a good bill, let's put our personal 16 income taxes, our business taxes, let's fund it 17 ourselves. Let's at least be truthful and 18 realistic. Let's stop sort of this newsletter 19 enacting of legislation or attempts to enact 20 legislation. 21 Frankly, I think, as I said 22 earlier in this chamber today, we do this all 23 the time. We get little headlines for our 1 newsletters but we don't accomplish much. 2 ACTING PRESIDENT KUHL: The Chair 3 recognizes Senator Abate. 4 SENATOR ABATE: Mr. President, 5 will Senator Cook yield to a question? 6 ACTING PRESIDENT KUHL: Senator 7 Cook, do you yield? 8 SENATOR COOK: Yes. 9 ACTING PRESIDENT KUHL: The 10 Senator yields. 11 SENATOR ABATE: Yes. How does 12 this bill preserve the presumption of innocence 13 that should be afforded to all defendants -- it 14 could be you or I, any of us, whether it's 15 violent or non-violent -- crimes we're accused 16 of? 17 SENATOR COOK: The bill provides 18 due process which is the matter in which we 19 protect that presumption. There is a due 20 process manner in which the defendant is able 21 to, if you will, protest, and that is -- that's 22 how we do it; that's how we do it in a criminal 23 proceeding. It, in effect, does require a 1 preliminary finding, if you will, if it's 2 requested by the defendant. 3 SENATOR ABATE: Mr. President. 4 ACTING PRESIDENT KUHL: Senator 5 Abate. 6 SENATOR ABATE: Would you yield 7 to another question? 8 SENATOR COOK: Might I suggest 9 that it's not -- in a sense it's not an awful 10 lot like a grand jury proceeding, in a sense, 11 because there is a presumption. 12 SENATOR ABATE: My understanding 13 is that in a grand jury proceeding, there is 14 testimony taken and after testimony is heard, 15 there's a decision rendered. In this case, 16 there's no evidence heard by the judge, it's 17 just the nature of the crime to which a 18 defendant is accused and by that, the nature 19 that person will be denied bail or ROR? 20 SENATOR COOK: Not quite, 21 Senator. The purpose of the hearing, if 22 requested by a defendant, is really to determine 23 whether this person is a potential endangerment 1 to society, and that becomes the criteria. If 2 there is, in fact, a pattern of behavior on the 3 part of that individual that indicates that, if 4 they're released back on the street, there's a 5 likelihood that they're going to commit another 6 crime, that is the criteria that we're dealing 7 with. 8 SENATOR ABATE: One other 9 question. 10 ACTING PRESIDENT KUHL: Senator 11 Cook, do you continue to yield? 12 SENATOR COOK: Yes. 13 ACTING PRESIDENT KUHL: The 14 Senator continues to yield. 15 SENATOR ABATE: Can you envision 16 a situation where a defendant has a long 17 criminal record but there's little or no 18 evidence to support the instant charge and that 19 individual would really be denied presumption of 20 innocence on the instant charge because of their 21 prior record? 22 SENATOR COOK: Mr. President, 23 remember, you have a situation where a person is 1 already out on bail on a previous charge, so you 2 have a pattern there of a person who is 3 repeatedly being arrested for -- for criminal 4 behavior, and it is a matter of making a 5 rational judgment on the part of the Court that 6 this person is very likely to be involved in 7 criminal behavior and, therefore, it's a matter 8 of protection for the public. 9 SENATOR ABATE: Thank you. 10 ACTING PRESIDENT KUHL: The Chair 11 recognizes Senator Waldon. 12 SENATOR WALDON: Thank you very 13 much, Mr. President. 14 Would the good Senator yield for 15 a question or two? I'll be as brief as I can, 16 Senator Cook. I thank you, Mr. President. 17 In arriving at this legislative 18 proposal, Senator Cook, did you have a data base 19 which indicated to you the number of people in 20 other situations, in other locations of the 21 states who have been similarly charged, who have 22 had a similar review and who have been either 23 denied their release or held without release? 1 SENATOR COOK: Senator, the 2 question that you're asking is if in other 3 jurisdictions where they have preventive 4 detention, do I know what those statistics are? 5 No, I don't, Senator. I don't have that. What 6 I do have is statistics indicating what happens 7 in that state when we don't have preventive 8 detention. 9 SENATOR WALDON: Well, would you 10 share with us in regard to what happens in this 11 state when we don't have preventive detention? 12 SENATOR COOK: The situation I 13 referred to earlier when 2,000 people in New 14 York City who were arrested had previously - 15 were people who were already awaiting trial. 16 Now, that's a pretty telling statistic, I would 17 think. 18 SENATOR WALDON: No, Senator. 19 With all due respect, you anticipated my 20 question and, unfortunately, you anticipated it 21 in the wrong manner. 22 ACTING PRESIDENT KUHL: Senator 23 Cook, do you continue to yield? 1 SENATOR COOK: I would be glad to 2 anticipate, Senator. 3 ACTING PRESIDENT KUHL: The 4 Senator continues to yield, Senator Waldon. 5 SENATOR WALDON: Thank you, Mr. 6 President. 7 What I was about to ask you, sir, 8 was is there any information in this state which 9 shows what happens to African-Americans, 10 Caribbean-Americans and Latinos in the process 11 you're proposing when the arresting officer is 12 white, when the prosecutor is white, when the 13 judge is white; is there any information in that 14 regard meaning when there might be a possibility 15 of racism coming into the process as opposed to 16 an absolutely fair, equitable due process 17 process? 18 SENATOR COOK: Mr. President, I'm 19 not very clear on exactly what the Senator is 20 asking because if the Senator is asking how many 21 people are denied bail because they -- under the 22 statute, obviously nobody has been denied bail 23 because it isn't there. If you're asking me, 1 how many people would I presume would be denied 2 bail, I don't have any way of answering it. I'm 3 not real clear on the question you're asking. 4 SENATOR WALDON: Thank you very 5 much, Senator Cook. I appreciate your 6 indulgence. Mr. President, if I may on the 7 bill. 8 ACTING PRESIDENT KUHL: Senator 9 Waldon on the bill. 10 SENATOR WALDON: I'm just trying 11 to make a point, my colleagues. The reason that 12 some of us oppose the death penalty is that, 13 historically, those people who are on the lowest 14 end of the socioeconomic ladder and who happen 15 to be of color have been most disparately 16 impacted by the death penalty. The statistics 17 show clearly that those who are black and Latino 18 in this nation have been disproportionately 19 killed and executed by the death penalty 20 wrongfully, and I'm not saying that those who 21 commit those crimes should not be punished, but 22 there have been too many instances where those 23 who happen to be of color have been executed and 1 it's been found out later that they were 2 innocent. 3 And so what I'm saying is that 4 this thing that you're proposing which, in my 5 opinion, violates the basic fabric of this 6 nation, the Constitution of the United States, 7 will do the self -- same thing. It will create 8 another opportunity for people of color and 9 Latinos and other minorities and poor people to 10 be disparately treated by our jurisprudential 11 system, and for that reason alone, I must oppose 12 it. 13 Thank you, Mr. President. 14 ACTING PRESIDENT KUHL: The Chair 15 recognizes Senator Montgomery. 16 SENATOR MONTGOMERY: Thank you, 17 Mr. President. 18 I wonder in Senator Cook would 19 yield for just one - 20 ACTING PRESIDENT KUHL: Senator 21 Cook, would you yield to Senator Montgomery? 22 (Senator Cook nods head.) 23 The Senator yields. 1 SENATOR MONTGOMERY: Senator, 2 does this remove the jurisdiction from the 3 judge, the judicial process, in terms of 4 determining whether or not bail is being - 5 SENATOR COOK: Senator, the 6 arraigning judge is the one who makes the 7 determination, and I would assume, and I'm not a 8 lawyer, so if I'm -- if I make a mistake in 9 this, I would stand corrected, but I would 10 assume it would be the same judge who would then 11 be conducting the hearing that is required if 12 requested by the defendant; it would be the same 13 judge who would be holding that hearing as to 14 whether or not the bail ought to be granted. 15 SENATOR MONTGOMERY: Senator 16 Cook, if you'll continue to yield. 17 ACTING PRESIDENT KUHL: Senator 18 Cook, do you continue to yield? 19 SENATOR COOK: Yes. 20 ACTING PRESIDENT KUHL: The 21 Senator continues to yield, Senator Montgomery. 22 SENATOR MONTGOMERY: Senator, are 23 you saying that the process as it stands now is 1 different in what way? Would you explain that 2 to me? 3 SENATOR COOK: Senator, there's 4 been a precedent established by one of the 5 Supreme Court districts, happens to be the 6th 6 District in this state, that has interpreted the 7 existing law to say that bail can only be denied 8 if there is a finding that the individual is apt 9 not to return -- not to appear for trial. This 10 bill puts another round in there for denied bail 11 which is a finding by the court that this is an 12 individual who has a history of violence against 13 the public and, therefore, that releasing that 14 person back on the street constitutes an 15 endangerment to the public. 16 SENATOR MONTGOMERY: Thank you 17 for that explanation, Senator Cook. 18 This is a very difficult 19 situation for me because, (1) I know that the 20 crime that we're talking about probably affects 21 my district more than it does a number of 22 districts in the state, simply because of the 23 high incidence of crime and it's the 1 constituents that I represent who really suffer 2 more, and one of the issues for people in my 3 district is that they want us to do something 4 about violent crime. But, on the other hand, I 5 recognize, as Senator Dollinger has pointed out, 6 on one hand, that we may be passing on a problem 7 similar to what we've -- what we now have with 8 the second felony offense law that has swelled 9 the prisons, and we may be now looking at 10 swelling our jails and possibly without the 11 consequence of reducing crime, and the cost of 12 that and the other problem is, as Senator Waldon 13 pointed out, that the judicial system is not 14 always strictly just. 15 So, Senator Cook, I really would 16 like to support the concept because I think what 17 you want to do makes sense and if, in fact, it 18 were an answer to reducing crime or taking 19 criminals off the street and making that process 20 more efficient, I would certainly be in favor of 21 it, but I think there are a number of questions 22 and I will continue to oppose it, but I do want 23 to be on record in this chamber for not being 1 opposed to wanting to see this whole process go 2 much more quickly and that there is a sure and 3 direct relationship between a person who commits 4 a crime and punishment, but I do -- I do worry 5 and I'm concerned about safeguarding the rights 6 and not passing that kind of burden on to the 7 locality, the city of New York, that I don't 8 think is able to withstand a tremendous increase 9 in the cost, vis-a-vis the jail system, at this 10 point in time. 11 Thank you, Mr. President. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: Mr. President, 15 would Senator Cook yield? This is - 16 ACTING PRESIDENT KUHL: Senator 17 Cook, do you yield to Senator Paterson? 18 SENATOR COOK: Yes. 19 ACTING PRESIDENT KUHL: The 20 Senator yields. 21 SENATOR PATERSON: Senator, as 22 you know it's a fundamental precept to our 23 Constitution that an individual is presumed 1 innocent until proven guilty. What you're 2 attempting to do, and this is by your own 3 statement, is to add to the acknowledgment of 4 bail under the Eighth Amendment, a new condition 5 for what would be determinative of what bail 6 will be, and so really all I'm asking you is 7 wouldn't you consider trying to change the 8 Constitution of the state rather than putting 9 forth a bill that you would want to pass both 10 houses, because I'm suggesting to you that this 11 bill would be struck down by any court that 12 looked at it because you have really acted to 13 contravene what really is one of the fundamental 14 points that existed in the Bill of Rights. 15 SENATOR COOK: Mr. President, as 16 a matter of fact, Senator, the federal courts in 17 other states have ruled that this particular 18 type of law is permissible. I don't have the 19 citations in front of me, but there are -- there 20 are citations of federal court cases where they, 21 in fact, have found preventive detention to be 22 acceptable, and I would say, Senator, I'm not 23 sure that this is the only place where we take 1 people out of circulation on a presumption that 2 they might injure somebody. I think there are 3 places in the Mental Health Law, for example, 4 and other places where we do make presumptions 5 that somebody constitutes an endangerment to the 6 public. So I think that it is a policy that is 7 within the general police powers of the state to 8 do, to make a finding of someone on a temporary 9 basis and it is a temporary basis because it 10 requires a speedy trial, et cetera, is able to 11 -- the court is able to make that determination 12 that releasing this person would not be in the 13 public interest because they are a -- there's a 14 high probability that they would be an 15 endangerment to the public. 16 ACTING PRESIDENT KUHL: Senator 17 Paterson. 18 SENATOR PATERSON: Well, the 19 statistics that you brought forth, Senator Cook, 20 certainly were -- were quite shocking, and they 21 definitely demonstrate that there should be some 22 redress. I'm just questioning the fashion of 23 redress that you are proposing. 1 As a matter of fact, I want to 2 welcome back one of our most distinguished and 3 beloved colleagues today, Senator Galiber, or 4 Galiber if you're Caribbean, and he just pointed 5 out as we were listening to the discussion that 6 we have had a number of cases in this country of 7 preventive detention that really turned out to 8 be huge calamities in our historical reference, 9 such as the insurrection of the Japanese during 10 World War II. That was preventive detention, 11 and we wound up having to pay large sums of 12 money because we were really violating the 13 spirit of our Constitution, so I would be 14 interested in some of the federal court dicta 15 that you propose because I thought that the 16 Eighth Amendment, as it's interpreted through 17 the Fourteenth Amendment, was really clear on 18 the reasonable access of bail that each 19 defendant would necessarily have, and the 20 pattern that you're describing, as far as I'm 21 concerned, is really a pattern of arrest, not 22 necessarily a pattern of guilt, and so while the 23 statistics definitely demonstrate that there 1 needs to be something about it, that's why I 2 suggested that if we could speed up the trials, 3 that would be a way and also the discretion of 4 the sitting judge, if we provided them with this 5 type of information and tightened up on our bail 6 procedures, assuming that the previous arrests 7 and convictions actually do influence the 8 presence at trial, I would accept that, but a 9 blanket law taking the discretion away from the 10 judges and in a sense making us inflexible and 11 unreasonable where bail is concerned is 12 something that I can't support. 13 ACTING PRESIDENT KUHL: Is there 14 any other Senator wishing to speak on this bill? 15 If not, the clerk will read -- the Secretary 16 will read the last section. 17 THE SECRETARY: Section 11. This 18 act shall take effect on the first day of 19 January next succeeding the date on which it 20 shall have become a law. 21 ACTING PRESIDENT KUHL: Call the 22 roll. 23 (The Secretary called the roll.) 1 ACTING PRESIDENT KUHL: Announce 2 the results when tabulated. 3 The Chair recognizes - 4 THE SECRETARY: Those recorded in 5 the negative on Calendar Number 56 are Senators 6 Abate, Connor, Galiber, Gold, Leichter, 7 Markowitz, Montgomery, Paterson, Santiago, Smith 8 and Waldon. Ayes 47, nays 11. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. Also, the Chair would like to say 11 that, Senator Galiber, it's wonderful to have 12 you back. We've missed your warm smile in the 13 chamber. The Chair recognizes Senator Galiber. 14 SENATOR GALIBER: Yes, Mr. 15 President. 16 (Applause.) 17 Mr. President, as you are aware 18 of and many of my colleagues, I have not been 19 here for a while and I'm happy to be back, and I 20 want to take this opportunity to thank my 21 colleagues for their cards, and particularly 22 their prayers, because their prayers are the 23 reason why I'm standing here today. 1 However, Mr. President, saying 2 that, I would like to either through unanimous 3 consent or just a statement -- there were 4 several bills that, due to my absence, if I had 5 been here, I would have voted in the negative. 6 I'd like the opportunity to take those negatives 7 into the record or read them into the record. 8 ACTING PRESIDENT KUHL: Senator 9 Galiber, if you will tell us what bills you 10 would like to have been recorded in the negative 11 on, we will have the record reflect your 12 statement. 13 SENATOR GALIBER: Thank you. 14 ACTING PRESIDENT KUHL: No 15 objections from the Acting Majority Leader. 16 SENATOR GALIBER: There's 17 Calendar 1, Bill 289, Calendar Bill 2 and the 18 Senate Bill 514. Let me just read the numbers, 19 I guess, and Bill 515, 496, Bill 34, 197, Bill 20 205, Calendar -- Bill 213, Bill 619, Bill 623. 21 I would particularly like to 22 point out, I'm sure there's others that I missed 23 that I probably would have voted in the 1 negative, but those sort of stood out, if you 2 will, but I would like the record to reflect one 3 bill in particular that, if I were here, I would 4 have debated to the very end, hopefully to 5 convince some of my colleagues that the cameras 6 in the courtroom, that bill, particularly voted 7 in the negative and would like to have had the 8 opportunity. 9 I think the O.J. Simpson trial is 10 an example of what some of us who have been 11 opposed to cameras in the courtroom have been 12 saying for many, many years, so I just want to 13 make that brief statement, that slight comment 14 as far as the cameras in the courtroom, and I 15 appreciate your courtesy, Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 Galiber, the Journal will reflect that, had you 18 been present in the chamber, you would have been 19 recorded voting in the negative on the bills 20 that you enumerated. 21 Thank you, Senator. 22 The Secretary will continue to 23 read the controversial calendar. 1 THE SECRETARY: Calendar Number 2 59, by Senator Present, Senate Bill Number 768, 3 an act to amend the Criminal Procedure Law, in 4 relation to eligibility for youthful offenders 5 status. 6 ACTING PRESIDENT KUHL: Senator 7 Present, an explanation has been asked for by 8 Senator Paterson. 9 SENATOR PRESENT: Mr. President, 10 the summary of the provisions of this bill, a 11 person convicted of any Class B violent felony 12 would be eligible for youthful offender only - 13 only if the court determines such a person was a 14 minor participant in the crime, a mitigating 15 circumstance exists which bear directly upon the 16 manner in which the crime was committed. 17 ACTING PRESIDENT KUHL: Is there 18 a Senator wishing to speak on the bill? 19 (There was no response.) 20 Hearing none, the Secretary will 21 read the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect on the 1st day of 1 November. 2 ACTING PRESIDENT KUHL: Call 3 roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes -- ayes 57, 6 nays 1, Senator Galiber recorded in the 7 negative. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 66, by Senator Kuhl, Senate Bill Number 2034, an 12 act to amend Chapter 356 of the Laws of 1993, 13 amending the General Municipal Law and other 14 laws. 15 ACTING PRESIDENT RATH: Senator 16 Kuhl, an explanation has been requested. 17 SENATOR KUHL: Yes, Madam 18 President. This is a bill that essentially 19 defines the term "inducement resolution" which 20 is a term that has not been defined in the law 21 as of this moment, but was included in a bill 22 that this Legislature adopted last year in an 23 Industrial Development Agency reform bill and 1 which was subsequently signed into law. 2 ACTING PRESIDENT RATH: Please 3 read the last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 ACTING PRESIDENT RATH: Call the 7 roll. 8 (The Secretary called the roll.) 9 THE SECRETARY: Ayes 58. 10 ACTING PRESIDENT RATH: The bill 11 is passed. 12 Senator Skelos. 13 SENATOR SKELOS: Yes, Madam 14 President. There being no further business, I 15 move we adjourn until Tuesday, February 14th, 16 1995 at 3:00 p.m. 17 ACTING PRESIDENT RATH: The 18 meeting is adjourned. 19 SENATOR MENDEZ: Madam President. 20 ACTING PRESIDENT RATH: I'm 21 sorry. The Chair recognizes Senator Mendez. 22 SENATOR MENDEZ: Thank you. 23 There will be a conference of the 1 Democratic Minority right after we adjourn. 2 Thank you. 3 ACTING PRESIDENT RATH: Thank 4 you, Senator Mendez. 5 Conference of the Minority right 6 after the meeting, is that correct? 7 Senator Paterson, was there 8 something else? 9 SENATOR PATERSON: Yes, Madam 10 President. I offer up the following rules 11 change. At a point in the future, I will move 12 to amend Rule 5, Section 7 of the rules of the 13 Senate and I'm giving proper notice by offering 14 up the final -- the following rules change. 15 ACTING PRESIDENT RATH: Senator 16 Skelos. 17 SENATOR SKELOS: Is there any 18 other housecleaning? All right. 19 Madam President, at this time, I 20 would like to move that we adjourn until 21 tomorrow, February 14th, 1995 at 3:00 p.m. 22 ACTING PRESIDENT RATH: Without 23 objection, the Senate stands adjourned. 1 (Whereupon, at 5:38 p.m., the 2 Senate adjourned.) 3 4 5