Monday, April 24, 1995

4901 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 April 24, 1995 10 3:02 p.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR JOHN R. KUHL, JR., Acting President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 4902 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: The 3 Senate will come to order. Ask the members to 4 find their chairs. Ask everybody in the chamber 5 to rise and say the Pledge of Allegiance to the 6 Flag with me. 7 (The assemblage repeated the 8 Pledge of Allegiance to the Flag.) 9 In the absence of clergy, I would 10 ask that we recognize Senator Bruno at this 11 time. 12 SENATOR BRUNO: Mr. President, 13 can I ask that all of us in the chamber just 14 take a moment and bow our heads and just say a 15 prayer for the victims and the families of the 16 great tragedy in Oklahoma. 17 (A moment of silence was 18 observed.) 19 Reading of the Journal. 20 THE SECRETARY: In Senate, 21 Sunday, April 23rd. The Senate met pursuant to 22 adjournment, Senator Hoblock in the Chair. The 23 Journal of Saturday, April 22nd, was read and 4903 1 approved. On motion, the Senate adjourned. 2 ACTING PRESIDENT KUHL: Hearing 3 no objection, the Journal stands approved as 4 read. 5 Presentation of petitions. 6 Messages from the Assembly. 7 Messages from the Governor. 8 Reports of standing committees. 9 Reports of select committees. 10 Communications and reports from 11 state officers. 12 Motions and resolutions. 13 Senator Bruno. 14 SENATOR BRUNO: Mr. President, 15 can we ask for an immediate meeting of the Rules 16 Committee in Room 332? 17 ACTING PRESIDENT KUHL: There 18 will be an immediate meeting of the Rules 19 Committee in the Majority Conference Room, Room 20 332. 21 The Chair recognizes Senator 22 Farley. 23 SENATOR FARLEY: Mr. President, 4904 1 on behalf of Senator Cook, on page 29, I offer 2 the following amendments to Calendar 421, Senate 3 Print 3491, and I ask that that bill retain its 4 place on the Third Reading Calendar. 5 ACTING PRESIDENT KUHL: The 6 amendments to Calendar 421 are received and 7 adopted. The bill will retain its place on the 8 Third Reading Calendar. 9 Senator Farley. 10 SENATOR FARLEY: On behalf of 11 Senator Levy, on page 12, I offer the following 12 amendments to Calendar 128, Senate Print 2591-A, 13 and I ask that that bill retain its place. 14 ACTING PRESIDENT KUHL: The 15 amendments to Calendar Number 128 are received 16 and adopted. The bill will retain its place on 17 the Third Reading Calendar. 18 Senator Farley. 19 SENATOR FARLEY: On behalf of 20 Senator Levy, again on page 28, I offer the 21 following amendments to Calendar 411, Senate 22 Print 4036, and I ask that that bill retain its 23 place. 4905 1 ACTING PRESIDENT KUHL: The 2 amendments to Calendar Number 411 are received 3 and adopted. The bill will retain its place on 4 the Third Reading Calendar. 5 Senator Bruno, we have a couple 6 substitutions at the desk. 7 SENATOR BRUNO: Please make the 8 substitutions. 9 ACTING PRESIDENT KUHL: The 10 Secretary will read. 11 THE SECRETARY: Senator Hoblock 12 moves to discharge from the Committee on Veter 13 ans, Assembly Bill Number 2542, and substitute 14 it for the identical Calendar Number 465. 15 On page 6, Senator Johnson moves 16 to discharge from the Committee on Environmental 17 Conservation, Assembly Bill Number 4123, and 18 substitute it for the identical Calendar Bill 19 469. 20 On page 23, Senator Trunzo moves 21 to discharge from the Committee on Education, 22 Assembly Bill Number 1428, and substitute it for 23 the identical Bill Calendar Number 368. 4906 1 ACTING PRESIDENT KUHL: The 2 substitutions are ordered. 3 Senator Bruno. 4 SENATOR BRUNO: Mr. President, at 5 this time I'd like to call up Resolution Number 6 782 that had been previously -- previously 7 adopted by Senator Nozzolio and ask that it be 8 read in its entirety. 9 ACTING PRESIDENT KUHL: The 10 Secretary will read the resolution in its 11 entirety. 12 THE SECRETARY: Legislative 13 Resolution Number 782, by Senators Nozzolio and 14 others, proclaiming April 23rd through the 29th, 15 1995 as National Crime Victims' Rights Week in 16 the state of New York. 17 WHEREAS, public opinion polls 18 clearly indicate that crime and violence are the 19 number one concern among all United States 20 citizens. 21 35 million Americans fall victim 22 to violent crime each year in the United 23 States. 4907 1 Every minute in the United States 2 four women are battered, one woman is raped, six 3 children are abused and one person is robbed. 4 Victims play an indispensable 5 role in bringing offenders to justice and thus 6 preventing further violence. 7 Law-abiding citizens are no less 8 deserving of rights, resources, restoration and 9 rehabilitation than the violent offenders who 10 victimize them. 11 Victim service providers, coun 12 selors and advocates should enjoy full support 13 from all public and private institutions, 14 entities and individuals in their efforts to 15 render critical assistance to those whom our 16 nation failed to protect. 17 Whether measured in dollars, 18 domestic tranquility, dread or death, crime 19 represents the greatest threat to Americans in 20 America. 21 The observance of National Crime 22 Victims' Rights Week is planned for April 23rd 23 through the 29th, 1995 for the purpose of pro 4908 1 viding crime victims and those who serve them 2 with the opportunity to educate citizens about 3 violence and victimization and to encourage 4 their support for victims' rights and services. 5 This legislative body is moved to 6 extend its grateful appreciation to those indiv 7 iduals and organizations committed to working to 8 provide counsel and support to crime victims 9 through direct assistance and educational 10 programs; now, therefore, be it 11 RESOLVED, that this legislative 12 body pause in its deliberations to proclaim the 13 week of April 23rd through the 29th, 1995 as 14 National Crime Victims' Rights Week in the state 15 of New York; and be it further 16 RESOLVED, that copies of this 17 resolution, suitably engrossed, be transmitted 18 to Linda Campion of the Capital District 19 Coalition for Crime Victims' Rights Week. 20 ACTING PRESIDENT KUHL: Without 21 objection. 22 The Chair recognizes Senator 23 Nozzolio to speak to the resolution. 4909 1 SENATOR NOZZOLIO: Thank you, Mr. 2 President, on the resolution. 3 Mr. President, my colleagues, in 4 the wake of one of our nation's most horrific 5 tragedies, the honoring of Crime Victims' Week 6 could not come at a more appropriate time. 7 I rise as chairman of the Senate 8 Crime Victims, Crime and Corrections Committee, 9 and it is my honor that -- as we in this chamber 10 begin Crime Victims' Week. 11 The Oklahoma bombing tragedy 12 clearly indicates the long-lasting trauma which 13 can be afflicted on crime victims and their 14 families. That trauma lasts a lifetime; but as 15 the tragedy also indicates, my colleagues, every 16 American citizen is a victim of crime 17 perpetrated against others. 18 The pictures and images of the 19 senseless and brutal desecration of human life 20 in Oklahoma has not just victimized those 21 citizens of Oklahoma City or those of the state 22 of the Oklahoma, they have victimized us all as 23 Americans and that, as we embark on National 4910 1 Crime Victims' Week, we must expand our 2 sensitivity to the tragedy that occurred there 3 to address the needs of crime victims here in 4 New York in our own state. We must work to 5 assist the victims of rape, robbery and murder 6 and all other crimes. Almost a million crimes 7 happen in New York each year and about 170,000 8 of those are of a violent nature. 9 My colleagues, a number of 10 Senators today have legislation to deal 11 specifically with the issue of crime victims and 12 those efforts are to try to ensure that those 13 who are victimized by crime are not further 14 victimized by the system. 15 Senators DiCarlo, Volker, 16 Leibell, Skelos, Maltese and Johnson each have 17 legislation that will be considered by this 18 house today to deal directly with the issue of 19 crime victims and to try to make those who, as 20 was stated in a news conference with Senator 21 Vacco today, not by one of us today, are a crime 22 victim. We need to bring not just criminal 23 justice but the issue is justice for those 4911 1 victims of crime. 2 Mr. President, I'm proud to be a 3 member of this chamber and prouder still of the 4 work done in this particular area by my 5 colleagues. 6 Thank you, Mr. President. 7 ACTING PRESIDENT KUHL: The Chair 8 would note for the record that the resolution 9 was previously adopted by this chamber. 10 Senator Bruno, that brings us to 11 the calendar. 12 SENATOR BRUNO: Mr. President, 13 can we now take up the non-controversial 14 calendar? 15 ACTING PRESIDENT KUHL: The 16 Secretary will read the non-controversial 17 calendar. 18 THE SECRETARY: Calendar Number 19 54, by Senator DiCarlo, Senate Print 500-A, an 20 act to amend the Criminal Procedure Law and the 21 Penal Law, in relation to felony sex offenses. 22 SENATOR PATERSON: Lay it aside. 23 ACTING PRESIDENT KUHL: Lay the 4912 1 bill aside. 2 THE SECRETARY: Calendar Number 3 138, by Senator Holland, Senate Print 466-A, an 4 act to amend the Social Services Law, in 5 relation to access to the statewide register of 6 child abuse and maltreatment. 7 ACTING PRESIDENT KUHL: The 8 Secretary will read the last Section. 9 (The Secretary called the roll.) 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 THE SECRETARY: Ayes 52. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 200, by Senator Saland, Senate Bill 2106, an act 17 to amend the Family Court Act, in relation to 18 dispositional alternatives upon the education of 19 child protective proceedings. 20 ACTING PRESIDENT KUHL: The 21 Secretary will read the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect on the 120th day. 4913 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 52. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 295, by Senator Lack, Senate Print 2982, an act 9 to amend the Surrogate Court Procedure Act, in 10 relation to a claimant's right to action. 11 ACTING PRESIDENT KUHL: The 12 Secretary will read the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 52. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 317, by Senator DiCarlo, Senate Print 1984, an 23 act to amend the Executive Law, in relation to 4914 1 qualifications of employment. 2 SENATOR PATERSON: Lay it aside. 3 ACTING PRESIDENT KUHL: Lay the 4 bill aside. 5 THE SECRETARY: Calendar Number 6 321, by Senator Saland, Senate Print 2120, an 7 act to amend the Family Court Act, in relation 8 to the fair treatment of child witnesses. 9 ACTING PRESIDENT KUHL: The 10 Secretary will read the last section. 11 THE SECRETARY: Section 2. This 12 act shall take effect on the 1st day of 13 November. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes 53. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 THE SECRETARY: Calendar Number 21 359, by Senator Trunzo, Senate Print 3661, an 22 act to amend the Civil Service Law, in relation 23 to conforming the terminology procedures with 4915 1 existing practice for obtaining a guide dog. 2 ACTING PRESIDENT KUHL: The 3 Secretary will read the last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 ACTING PRESIDENT KUHL: Call the 7 roll. 8 (The Secretary called the roll.) 9 THE SECRETARY: Ayes 53. 10 ACTING PRESIDENT KUHL: The bill 11 is passed. 12 THE SECRETARY: Calendar Number 13 383, by Senator Hannon, Senate Print 2087, an 14 act to amend the Civil Practice Law and Rules, 15 in relation to disposition of proceedings. 16 ACTING PRESIDENT KUHL: The 17 Secretary will -- lay the bill aside. 18 THE SECRETARY: Calendar Number 19 385, by Senator Volker, Senate Print 2720, an 20 act to amend the Criminal Procedure Law, in 21 relation to pre-sentence investigations. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the last section. 4916 1 THE SECRETARY: Section 26. This 2 act shall take effect immediately. 3 SENATOR PATERSON: Lay it aside. 4 ACTING PRESIDENT KUHL: Lay the 5 bill aside. 6 THE SECRETARY: Calendar Number 7 386, by Senator Leibell, Senate Print 2743-A, an 8 act to amend the Penal Law, in relation to 9 increasing the penalty for endangering the 10 welfare of a child. 11 SENATOR BRUNO: Lay it aside at 12 the request of the sponsor. 13 ACTING PRESIDENT KUHL: Star 14 Calendar Number 386 at the request of the 15 sponsor. 16 THE SECRETARY: Calendar Number 17 426, by Senator Skelos, Senate Bill 2478, an act 18 to amend the Family Court Act and the Criminal 19 Procedure Law. 20 ACTING PRESIDENT KUHL: The 21 Secretary will read the last section. 22 THE SECRETARY: Section 3. This 23 act shall take effect on the 1st day of 4917 1 November. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 53. 6 ACTING PRESIDENT KUHL: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 429, by Senator Maltese, Senate Print 455, an 10 act to amend the Executive Law, in relation to 11 the filing time for crime victims compensation. 12 ACTING PRESIDENT KUHL: The 13 Secretary will read the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 53. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 THE SECRETARY: Calendar Number 23 430, by Senator Maltese, Senate Print 495, an 4918 1 act to amend the Executive Law, in relation to 2 the definition of victim of a crime. 3 ACTING PRESIDENT KUHL: The 4 Secretary will read the last section. 5 THE SECRETARY: Section 3. This 6 act shall take effect immediately. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 53. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 432, by Senator Johnson, Senate Print 2183, an 15 act to amend the Executive Law, the Civil 16 Practice Law and Rules and the Tax Law, in 17 relation to personal injury awards. 18 ACTING PRESIDENT KUHL: The 19 Secretary will read the last section. 20 THE SECRETARY: Section 4. This 21 act shall take effect on the 1st day of January. 22 ACTING PRESIDENT KUHL: Call the 23 roll. 4919 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes 53. 3 ACTING PRESIDENT KUHL: The bill 4 is passed. 5 THE SECRETARY: Calendar Number 6 433, by Senator Volker, Senate Print 3814, an 7 act to amend the Executive Law, in relation to 8 the written statement of the crime victim in 9 making a parole release decision. 10 ACTING PRESIDENT KUHL: The 11 Secretary will read the last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect on the 1st day of 14 November. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 53. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 Senator Bruno, that completes the 22 non-controversial calendar. 23 SENATOR BRUNO: Mr. President, 4920 1 can we now take up the controversial calendar? 2 ACTING PRESIDENT KUHL: The 3 Secretary will read the controversial calendar. 4 THE SECRETARY: On page 10, 5 Calendar Number 54, by Senator DiCarlo, Senate 6 Print 500-A, an act to amend the Criminal 7 Procedure Law and the Penal Law, in relation to 8 felony sex offenses. 9 SENATOR PATERSON: Explanation. 10 ACTING PRESIDENT KUHL: Senator 11 DiCarlo, an explanation of the bill has been 12 asked for by Senator Paterson. 13 SENATOR DiCARLO: Thank you, Mr. 14 President. 15 This is exactly the same bill 16 that this body passed unanimously a few weeks 17 ago, except that a technical amendment was 18 necessitated by passage of the death penalty 19 bill. That's the only difference. 20 ACTING PRESIDENT KUHL: The Chair 21 recognizes Senator Paterson. 22 SENATOR PATERSON: Yes, Mr. 23 President. This is an excellent bill. We all 4921 1 voted for it, and what I would like to do is to 2 propose an amendment to this bill, hopefully to 3 improve it, if that's even possible. 4 Is my amendment at the desk, Mr. 5 President? 6 ACTING PRESIDENT KUHL: Yes, 7 Senator Paterson, there is an amendment at the 8 desk. Are you asking to move the amendment, 9 waive the reading of it and an explanation to 10 explain it? 11 SENATOR PATERSON: Let me waive 12 the reading, Mr. President, and just explain it 13 briefly. 14 ACTING PRESIDENT KUHL: Senator 15 Paterson to explain the amendment. 16 SENATOR PATERSON: What this bill 17 does is that it provides for -- for treatment of 18 sex offenders at the -- by the approval of the 19 court. 20 What I wanted to do was create a 21 specific fashion in which the treatment could be 22 achieved. What we would do is we would direct 23 the Department of Corrections and the Division 4922 1 of Parole to supervise the treatment of sex 2 offenders emanating from one year to the end of 3 the actual sentence continuing through the 4 parole period, and what we would have is the 5 Office of Mental Health give an overview and 6 provide some of the protocols to make sure that 7 the treatment continuum moves from the 8 Department of Corrections with the incarcerated 9 person as they move into parole. 10 What it would also do, it would 11 mandate that there be a study as to how 12 effective the treatment of sex offenders can be 13 that would be due on November 1st of the year 14 2000. 15 Senator DiCarlo pointed out when 16 we moved the bill earlier that there is no real 17 cure for sex offenders, and we have no quarrel 18 with that. What we would suggest is that there 19 have been a number of sex offender treatment 20 programs, particularly in New Jersey, that have 21 been effective. They haven't necessarily been 22 effective of curing, but what they have been 23 effective in is curbing and limiting and 4923 1 certainly reducing the recidivism of the sex 2 offender who is serving time. No matter how 3 long the prison sentence is that we impose, we 4 still have the problem of the sex offender 5 coming out of the incarcerated facility. 6 What this amendment does is it 7 provides for a way of establishing some sort of 8 control that we, as a society, would have over 9 the offender emanating from one year prior to 10 the end of the sentence continuing through the 11 entire parole period, and that is the context of 12 this amendment and, Mr. President, I ask that we 13 move it now. 14 ACTING PRESIDENT KUHL: The 15 question is on the amendment. All those in 16 favor of the amendment signify by saying aye. 17 (Response of "Aye".) 18 Opposed, nay. 19 (Response of "Nay".) 20 The amendment is lost. 21 Senator Abate, are you trying to 22 get my attention? 23 SENATOR ABATE: No. I was going 4924 1 to speak on the amendment. I'm sure I would 2 have changed every vote in the house after I 3 spoke, but I supported -- if I -- it's 4 already - 5 ACTING PRESIDENT KUHL: Senator 6 Abate on the bill. 7 SENATOR ABATE: Okay. On the 8 bill. 9 The hostile -- or the amendment 10 is no longer before this body, but I think it's 11 very important that while we do our law 12 enforcement efforts, which are very important, 13 that we also keep in mind, if we are actually 14 going to curb the impact of sex offenders, it's 15 very important to talk about treatment at the 16 same time, and I believe this bill is deficient 17 because there's no appropriation. There's no 18 mandatory treatment available in prison as well 19 as in the community. 20 Let me give you a perspective. 21 If you talk to the Division of Parole and if you 22 talk with the local probation departments around 23 the state, they will tell you that it's not 4925 1 enough to put a sex offender under scrupulous 2 surveillance and monitoring. It's not enough to 3 have a probation officer and parole officer go 4 to someone's house, have that individual 5 report. They need another set of eyes and ears 6 and often that set of eyes and ears is the 7 treatment professional. That individual can get 8 the sex offender to open up. They can get 9 information about what they're doing at home, 10 what fights they're having with their families, 11 whether they're keeping up with their curfew. 12 It's the ability to get this critical 13 information before the parole or probation 14 officer that's necessary, because oftentimes as 15 this information comes before they -- the 16 individual relapses and commits the next crime, 17 when they get this information, they can usually 18 either violate the individual from parole or 19 probation, put their -- put them under more 20 strict surveillance. 21 So if we're talking about public 22 safety, if we are also speaking about preventing 23 future victimization while this sex offender is 4926 1 on the street, we have to talk about treatment 2 and prevention. I ask you, why did the state 3 Division of Parole set up a sex offender unit 4 nine years ago? Why did they go through the 5 entire expense and reorganization to set up 6 specialized case loads for sex offenders? They 7 did that because they needed to do differently 8 with sex offenders; and that's law enforcement, 9 that's prevention and treatment. 10 The bill does some good things. 11 It should go a lot further if we really care 12 about safety on the street and protecting women 13 and children and other members of our society 14 from sex offenders. 15 ACTING PRESIDENT KUHL: The Chair 16 indicated the amendment failed. Is there any 17 other Senator wishing to speak on the bill? 18 (There was no response.) 19 Hearing none, the Secretary will 20 read the last section. 21 THE SECRETARY: Section 14. This 22 act shall take effect on the 1st day of 23 November. 4927 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 53. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 The Secretary will continue to 8 call the controversial calendar. 9 THE SECRETARY: Calendar Number 10 317, by Senator DiCarlo, Senate Print 1984, an 11 act to amend the Executive Law, in relation to 12 qualifications of employment as a youth division 13 aide. 14 SENATOR PATERSON: Explanation. 15 ACTING PRESIDENT KUHL: Senator 16 Saland -- excuse me. 17 Senator DiCarlo, an explanation 18 of Calendar Number 317 has been asked for by 19 Senator Paterson. 20 SENATOR DiCARLO: Thank you, Mr. 21 President. 22 Simply put, what this bill does 23 is it disqualifies from employment as a youth 4928 1 division aide, a YDA, for the Division of Youth, 2 any person convicted of a felony and misdemean 3 ance, at the discretion of the director. 4 ACTING PRESIDENT KUHL: The Chair 5 recognizes Senator Montgomery. 6 SENATOR MONTGOMERY: Yes. Thank 7 you, Mr. President. 8 Would the sponsor of the bill 9 yield for a question? 10 ACTING PRESIDENT KUHL: Senator 11 DiCarlo, do you yield to Senator Montgomery? 12 SENATOR DiCARLO: Yes. 13 ACTING PRESIDENT KUHL: The 14 Senator yields, Senator Montgomery. 15 SENATOR MONTGOMERY: Thank you. 16 Senator, are there any memos on 17 this legislation? 18 SENATOR DiCARLO: I don't have 19 any memos on the bill, but I have spoken to the 20 new director of the Division for Youth and he is 21 in favor of my bill. 22 SENATOR MONTGOMERY: Okay. Thank 23 you. 4929 1 Mr. President, if the Senator 2 would continue to yield. 3 ACTING PRESIDENT KUHL: Senator 4 DiCarlo, do you continue to yield? The Senator 5 continues to yield, Senator Montgomery. 6 SENATOR MONTGOMERY: Does the 7 commissioner currently have any authority to 8 reject any employee based on prior criminal 9 activities? Is that currently part of his 10 jurisdiction in the law? 11 SENATOR DiCARLO: Presently, the 12 director does not have that ability and the 13 Correction Law would prohibit that. 14 SENATOR MONTGOMERY: He does not 15 have authority to - 16 SENATOR DiCARLO: Deny employment 17 based on that, yes. 18 SENATOR MONTGOMERY: Based on 19 that. Okay. 20 Senator, you - 21 ACTING PRESIDENT KUHL: Senator 22 DiCarlo, do you continue to yield? 23 SENATOR DiCARLO: Yes. 4930 1 ACTING PRESIDENT KUHL: The 2 Senator continues to yield. 3 SENATOR MONTGOMERY: The bill 4 says that, if a person has been convicted of a 5 felony, they're automatically disqualified and 6 if a person has been convicted of a misdemeanor, 7 it is at the discretion of the commissioner, I 8 believe. That's how I interpret your - 9 SENATOR DiCARLO: You're correct, 10 if convicted of a felony, cannot work, and the 11 other is also correct. 12 SENATOR MONTGOMERY: All right. 13 Senator, we passed a bill last week, I believe. 14 It was to establish the crime of urination and 15 defecation, if you recall. 16 SENATOR DiCARLO: I recall, yes. 17 SENATOR MONTGOMERY: And I 18 believe that it had degrees of criminality. One 19 was a misdemeanor and that could escalate to a 20 felony, depending on how many times you're 21 arrested and charged for that. 22 SENATOR DiCARLO: I'm taking your 23 word on it. 4931 1 SENATOR MONTGOMERY: Well, let me 2 just ask, Senator. In the event that we had 3 someone who had been arrested and charged with 4 such a crime, or less, that resulted in that 5 person having a misdemeanor charge or even 6 perhaps a felony charge of some lower degree, 7 that means that that person is either 8 automatically disqualified or must prove to the 9 commissioner their worthiness to the 10 satisfaction of the commissioner. 11 SENATOR DiCARLO: Well, if that 12 person were convicted or pled to a felony, they 13 could not be employed. It's not discretionary. 14 If it is a misdemeanor, then it is discretionary 15 and can either work or not work based on the 16 director of the Division for Youth. 17 SENATOR MONTGOMERY: Okay. Thank 18 you, Senator. 19 Mr. President, briefly on the 20 legislation. 21 ACTING PRESIDENT KUHL: Senator 22 Montgomery on the bill. 23 SENATOR MONTGOMERY: Okay. This 4932 1 bill, I think, is very far-reaching, and it is 2 my understanding that, despite the fact that the 3 commissioner has indicated that he does not have 4 the authority, my information says that, under 5 Corrections Law Section 752, the DFY commission 6 er does, in fact, have the authority to restrict 7 and to refuse to hire a person who has a prior 8 criminal record. 9 And so in that sense, Mr. 10 President, I'm not sure that it's even necessary 11 that we do this bill but, nonetheless, Senator 12 DiCarlo has decided that he wants to pass this 13 legislation. 14 Now, I want to just say a word of 15 caution about the far-reaching aspect of this 16 bill. It is going to involve in its net a large 17 number of people whom we, in fact, might want to 18 be able to work in the facilities that they 19 might be employed. 20 I have a program in my district 21 that is a -- it's run by an organization called 22 Therapeutic Communities, Inc. It was founded 23 and established as a prison-based program for 4933 1 rehabilitation of people who've been incarcer 2 ated because they had been involved in drug 3 crimes. It is now a community-based program, 4 and the people who run the program have been 5 inmates themselves and, personally, I think the 6 quality of the program and the success of the 7 program is directly related to the fact that the 8 people who are running it are the most skilled, 9 most knowledgeable, most informed and understand 10 how to work with a personality such as the 11 people that they work with. 12 So, in that sense, if we had this 13 legislation in place, Senator DiCarlo -- Mr. 14 President, we may not have that kind of program 15 in our state, and that program, by the way, has 16 been exported by the state of New York. We 17 don't pay for it, but the model is ours. It was 18 born here. It has now been invited to be a 19 major program in the prison system in the state 20 of Texas and in other states and countries 21 around the world. 22 So I'm just -- I think that we're 23 going backwards, Mr. President, and I would 4934 1 advise that Senator DiCarlo rethink the whole 2 notion of what it is we're talking about. I 3 don't think you expect, Mr. President -- I don't 4 think Senator DiCarlo expects that a group of 5 well-meaning, well-trained social workers are 6 going to go into a DFY facility and function 7 perhaps as well and as professionally as a 8 person who knows the system, knows the 9 personalities, understands how to work with 10 them, understands the dynamic of the behaviors 11 that they are faced with and can deal with them 12 in a very professional fashion. 13 So I think this is a -- it's 14 well-meaning but it's, one, not needed and, two, 15 I think it's too far-reaching and it's going to 16 ultimately prevent us from having some of the 17 best possible minds and hands in those available 18 to work in some of the very difficult situations 19 in DFY facilities. So I'm voting against it, 20 and I urge my colleagues to also oppose this 21 legislation. 22 Thank you, Mr. President. 23 ACTING PRESIDENT KUHL: The Chair 4935 1 recognizes Senator Paterson. 2 SENATOR PATERSON: Mr. President, 3 I agree with what Senator Montgomery said and 4 I'm quite persuaded by her presentation. I 5 would just like to add to that, the fact that we 6 disagree sometimes in this chamber on how long 7 the sentences should be for particular crimes, 8 but we do have an overall theory about 9 individuals paying their debt to society. 10 In cases where a person commits a 11 murder, we have determined in this state now 12 that they may pay the ultimate price for the 13 crime they committed. In other cases, we may 14 incarcerate them for life because, while we 15 might not want to execute them under our new 16 death penalty, we recognize that it is a danger 17 to have these individuals come back into 18 society. 19 Now, where we have allowed 20 individuals back into society, there are at 21 times protections that we may establish based on 22 the type of crime that individual has committed. 23 There is a bill that's on the active list -- it 4936 1 hasn't come before the Senate yet -- that would 2 disallow bus attendants who previously had a 3 felony from working here in New York State. 4 Now, these individuals would work around younger 5 people and I could understand, for instance, if 6 they were sex offenders that we wouldn't want 7 them around younger people. We don't want 8 previous inmates to be working as guards in our 9 correctional facilities that would compromise 10 security, so I can understand that. 11 But what I think Senator 12 Montgomery was admonishing us and what I think 13 we really need to heed is the warning that we 14 aren't providing any kind of opportunity for 15 individuals who we have determined have paid 16 their debt to society. Yes, there is a more 17 increased possibility that they may be 18 recidivists compared to a member of the average 19 population but, at the same time, if we are 20 really providing some sort of rehabilitation and 21 we are not inviting these individuals who 22 engaged in criminality to continue, then I would 23 suggest that there have to be some methods of 4937 1 employment for them, and if we're not going to 2 let them work in correctional facilities or if 3 we're not going to let them work in Social 4 Service facilities, if we're not going to let 5 them work in youth facilities, my question is 6 where are they going to work? 7 There are a lot of studies that 8 demonstrate that individuals who have previously 9 been convicted have been very effective at times 10 in prevention aspects, of talking to younger 11 people and letting them know some of the lessons 12 that they have to learn in life and advising 13 them to think before they would get involved in 14 that kind of criminal conduct, lest they be put 15 in the same position that these ex-offenders 16 are. 17 What I'm objecting to in this 18 piece of legislation and others that I see is 19 we, as a society, taking a -- an extremely 20 strict and constructionist view about 21 ex-offenders, almost forcing them back into 22 recidivism because we, as a society, haven't got 23 the slightest job that they would be eligible 4938 1 for because in some way we've decided that it 2 impedes the regular workings of society from 3 continuing. 4 The other problem of this bill 5 is, since there is the discretion on mis 6 demeanors on the part of the commissioner, is 7 the fact that people have been convicted for 8 misdemeanors for trespassing and violating 9 orders of protection and a number of issues in 10 which it may have just been a compulsive act 11 committed once and then, for the rest of time, 12 this individual may have an employment problem 13 because of an act, such as a violation of 14 Section 240 of the Criminal Law which relates to 15 trespass. 16 And so I would -- I would suggest 17 that we not move this bill and rethink what our 18 directives are to those who have served time. 19 ACTING PRESIDENT KUHL: The 20 Secretary will read the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 4939 1 roll. 2 (The Secretary called the roll.) 3 ACTING PRESIDENT KUHL: Announce 4 the results when tabulated. 5 THE SECRETARY: Ayes 49, nays 4. 6 Those voting in the negative are Senators Abate, 7 Espada, Galiber and Paterson. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Also, Senator 11 Montgomery. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 The Secretary will continue to 15 call the controversial calendar. 16 THE SECRETARY: Calendar Number 17 383, by Senator Hannon, Senate Print 2087, an 18 act to amend the Civil Practice Law and Rules, 19 in relation to disposition of proceeds of claim 20 of infant, incompetent or conservatee. 21 SENATOR PATERSON: Last section. 22 ACTING PRESIDENT KUHL: Read the 23 last section. 4940 1 THE SECRETARY: Section 2. This 2 act shall take effect immediately. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes 53. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 THE SECRETARY: Calendar Number 10 385, by Senator Volker, Senate Print 2720, an 11 act to amend the Criminal Procedure Law, in 12 relation to pre-sentence investigations of 13 defendants in sex offense cases. 14 SENATOR PATERSON: Explanation. 15 ACTING PRESIDENT KUHL: Senator 16 Volker, an explanation has been asked for of 17 Calendar Number 385 by Senator Paterson. 18 SENATOR VOLKER: Mr. President, 19 this is known as the Rape Victims' Services Act 20 of 1995. This bill passed the Senate last year 21 by a vote of 52 to 2. 22 It provides a series of provis 23 ions in relates -- in relation to various 4941 1 support services and various types of services 2 involving sex crimes. It establishes a 3 statewide toll-free rape crisis hot line. It 4 establishes standards for rape collection - 5 evidence collection kits. It establishes 6 treatment for rape offenders. It allows victims 7 to be notified if their assailant has HIV. It 8 makes HIV testing and counseling costs covered 9 by crime victims' compensation. It requires 10 regular updates to victims of the progress of 11 prosecution, including plea bargains and an 12 opportunity to be heard. It requires a 15-day 13 notification of the disposition of the case and 14 the date of parole hearings. It requires a 15 written statement of the reasons for granting 16 parole to a sex offender. It allows testimony 17 on rape trauma syndrome. It allows photographs, 18 sketches, and so forth, to be used in 19 identification of perpetrators. 20 This bill, which in the past was 21 sponsored by Senator Marino and co-sponsored by 22 myself, has passed the Senate, as I said, last 23 year by a vote of 52 to 2 and it passed on 4942 1 several occasions. The Assembly has a much more 2 limited bill that was just introduced within the 3 last about 15 days, I understand. It is my 4 hope, by the way, that this bill will be the 5 basis for some sort of compromise this year. 6 We have had two bills over the 7 years that deal with the issue of rape, one 8 dealing more primarily with penalties and with 9 the -- the incarceration of rapists, and so 10 forth, and this bill which deals with rape 11 crisis and services. 12 If you'll notice in the bill, 13 although it's effective later on this year, 14 there are demonstration projects involved in it 15 which would not trip in until 1996. The obvious 16 reason for that is that we would have to prepare 17 the funding for that and, due to the limited 18 funding this year, we do not have the funding in 19 this bill except for the initial start-up of the 20 -- of this proposal. 21 So that basically is the bill. 22 Are there any other questions? 23 ACTING PRESIDENT KUHL: The Chair 4943 1 recognizes Senator Paterson. 2 SENATOR PATERSON: Mr. President, 3 this bill actually will assist us in the state 4 recouping ten percent of our federal grant, our 5 Byrne money and, however, what the bill does is 6 it actually goes beyond it because the HIV 7 testing request can be made by the victim prior 8 to conviction. 9 If Senator Volker would yield for 10 a question. 11 ACTING PRESIDENT KUHL: Senator 12 Volker, do you yield? 13 SENATOR VOLKER: Yes. 14 ACTING PRESIDENT KUHL: The 15 Senator yields, Senator Paterson. 16 SENATOR PATERSON: I just wanted 17 to inquire as to why Senator Volker chose to go 18 beyond the federal standard in drafting the 19 bill? 20 SENATOR VOLKER: Senator, the 21 reason we did that was this was a bill -- very 22 honestly was basically requested by crime 23 victims and, as I related in the description of 4944 1 the bill earlier, is a bill that has a whole 2 series of provisions in it, not just the HIV 3 provision but a whole series of provisions that 4 relate to crime victims and specifically the 5 issues of sex crimes; and the reason for that 6 provision in this bill is, frankly, it was 7 requested by crime victims themselves and was 8 included in the bill from the time that it was 9 drafted, which I believe was about three or four 10 years ago, and that's why it's there. 11 SENATOR PATERSON: Mr. President. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: If Senator 15 Volker would continue to yield. 16 ACTING PRESIDENT KUHL: Senator 17 Volker, do you continue to yield? The Senator 18 continues to yield. 19 SENATOR PATERSON: Through you, 20 Mr. President. 21 Senator Volker, if the person who 22 is being accused of the crime tests negative for 23 the HIV virus, wouldn't we still have the 4945 1 responsibility of coming back and testing them 2 after the disposition of the -- of the trial; 3 considering that they're found guilty, wouldn't 4 we have to do it at that time anyway? So that's 5 the reason I'm asking why we have to do it 6 beforehand. 7 SENATOR VOLKER: I don't believe 8 so, Senator. I don't know what the initial - 9 the process is that, if the person requests the 10 -- requests the test and the defendant objects, 11 then the judge would hold a hearing on the issue 12 of the test and should the judge decide, then 13 the defendant would be ordered to do it, but 14 once the defendant is determined to be negative, 15 I don't know what reason there would be to 16 retest the defendant later on after the case is 17 disposed of. 18 ACTING PRESIDENT KUHL: Senator 19 Paterson. 20 SENATOR PATERSON: Mr. President, 21 if Senator Volker will continue to yield. 22 SENATOR VOLKER: Certainly. 23 ACTING PRESIDENT KUHL: The 4946 1 Senator continues to yield. 2 SENATOR PATERSON: Senator 3 Volker, the reason that I think -- in fact, the 4 reason I'm quite sure we would have to retest 5 the defendant is because if the -- if the act - 6 if the crime was committed within six months of 7 the arraignment of the defendant, even if the - 8 even if the defendant tests negative, we still 9 do not know that they're fully testing negative 10 for the HIV virus because it takes about six 11 months, according to medical personnel, for the 12 results of that test to show up. 13 So, in other words, a person who 14 may have just obtained the virus and then 15 commits a crime would test negative but, at some 16 point in the future, they will surely test 17 positive. And so I was wondering that, since 18 this person at the time that we are establishing 19 a mandatory test has not been convicted of a 20 crime, that even for correct medical data as to 21 when someone contracts the HIV virus, that we 22 would wait until the end of the trial anyway, 23 because we don't have reliable information. 4947 1 Even if they test negative, the victim, in my 2 opinion, has to assume that they're positive 3 until some six-month period has elapsed between 4 tests. 5 SENATOR VOLKER: Senator, let me 6 just say to you, at the present time, as you 7 well know, there is no law that says that the 8 person be tested at all. You brought up an 9 interesting issue, but there is nothing in the 10 law now that says a person has to be tested six 11 months from then or at any point. So I guess 12 the answer to your question is, as far as I can 13 see under this statute, a person only need be 14 tested at the -- during the initial hearing, but 15 you might -- you make a point that possibly 16 there should be a consideration for further 17 testing later on, but under this statute, as far 18 as I can see, the only mandate would be that the 19 test be taken at the time the person is arrested 20 and then there's probable cause to say that this 21 person is the perpetrator. 22 ACTING PRESIDENT KUHL: Senator 23 Paterson. 4948 1 SENATOR PATERSON: Mr. President, 2 would you thank Senator Volker for his 3 cooperation, and if I might be allowed to speak 4 on the bill. 5 ACTING PRESIDENT KUHL: Senator 6 Paterson on the bill. 7 SENATOR PATERSON: Senator 8 Volker, previously I pointed out that your 9 legislation is going to, first of all, recoup a 10 lot of the federal funding that we're not 11 getting right now and, second of all, it is 12 going to establish testing which -- which is a 13 commendable reason to draft the bill. That's 14 not what my problem with the bill is. 15 My problem with the bill is that 16 there would be an issue of mandatory testing for 17 an individual who has not been convicted of a 18 crime in the first place, and what I was saying 19 is maybe because of the danger we might want to 20 overlook that. In other words, this is a 21 dangerous situation. There's a chance that this 22 person, by the fact that they're on trial, may 23 be the actual guilty party and so we would force 4949 1 them to consent to testing for the HIV virus, 2 but what I would hope Senator Volker will 3 consider is that that initial test cannot be the 4 only test, and I make that argument on behalf of 5 the health care of the victim, Senator Volker, 6 because if the defendant contracted the HIV 7 virus anywhere within six months of that 8 particular time, it will not show up in a test. 9 It will not show up until later, as are many 10 types of diseases where the individual has the 11 disease and doesn't know it, so they don't test 12 that way until it matures to the extent -- to an 13 extent where we can pick it up through HIV 14 testing. 15 And so what I implore Senator 16 Volker to consider is to possibly redraft this 17 legislation and include in it a final test at 18 some later date so that this could be 19 determined, and I would suggest so that we can 20 clear up all of the issues of privacy in 21 addition, as it impinges on the concept of 22 justice, what we would really want to do is to 23 just wait until that period has elapsed because 4950 1 then we would have a sure test and also we would 2 not have violated the privacy of a person who 3 may be found not guilty of the offense. 4 Thank you. 5 ACTING PRESIDENT KUHL: Senator 6 Mendez. 7 SENATOR MENDEZ: Mr. President, 8 will Senator Volker yield for a question? 9 ACTING PRESIDENT KUHL: Senator 10 Volker, do you yield to a question from Senator 11 Mendez? 12 SENATOR VOLKER: Sure. 13 ACTING PRESIDENT KUHL: The 14 Senator yields. 15 SENATOR MENDEZ: Senator Volker, 16 in your bill, you have options for treatment of 17 rapists. Do you really believe that they could 18 be cured or stopped from committing that 19 horrible crime? 20 SENATOR VOLKER: Well, I think 21 there's a debate about whether there's any 22 possibility of cure, but what the bill provides 23 is for -- remember, it provides -- when we talk 4951 1 about options, we're talking about they can go 2 to jail and be treated. 3 What this bill -- this bill 4 doesn't say that you can just walk out and get 5 treatment rather than incarceration. What it 6 really is, it provides some treatment. 7 As we've talked about, Senator, 8 on a number of occasions, ultimately what we're 9 really looking for is a dual thrust and that is, 10 number one, persons in prison also get treatment 11 and look for treatment for anybody who is also 12 going to get out, and that's what we're really 13 looking for; but the answer to your -- the 14 answer is I'm not sure that anyone has really 15 determined -- I think someone can probably be 16 treated. In most severe cases, they probably 17 can't, but the option here does not mean that a 18 person is going to walk free just because they 19 committed a sex crime, but it means that they 20 will receive incarceration as well as treatment. 21 SENATOR MENDEZ: Thank you. 22 Mr. President, on the bill. 23 ACTING PRESIDENT KUHL: Senator 4952 1 Mendez on the bill. 2 SENATOR MENDEZ: Yes, Senator 3 Volker is correct in saying that the results of 4 treatment for rapists and other sex offenders 5 are mixed. 6 I have consistently stated in 7 this chamber, Mr. President, that the first 8 order of business -- and on this I want to 9 congratulate Senator Volker. The first order of 10 business is to ensure that sex offenders like 11 rapists, like pedoists that prey on young 12 children are locked up, and I mean locked up, to 13 ensure the safety of the children and the women 14 in the state of New York. 15 I don't have the data concerning 16 to what -- how effective those treatment in the 17 prison -- in the system in New York State has 18 been. The fact is that there are no women 19 there. Pedoists that received treatment in the 20 prison system, of course, they don't have the 21 kids around. They're in a different environment 22 that is totally different from the environment 23 outside of the prison system. 4953 1 So I am supporting this bill. I 2 do hope that, eventually, we could come up with 3 a bill in which the rights of the women and 4 children of the state of New York, to safety in 5 that area are more strongly defended by 6 segregating our sex offenders in a prison in New 7 York State and making sure that they stay there 8 for a lengthy period -- a sufficiently lengthy 9 period so that they would not come out so easily 10 and prey once more on women and children. 11 Again, I congratulate Senator 12 Volker on this. 13 Thank you, Mr. President. 14 ACTING PRESIDENT KUHL: The Chair 15 recognizes Senator Dollinger. 16 SENATOR DOLLINGER: Mr. 17 President, will Senator Volker yield to a 18 question? 19 ACTING PRESIDENT KUHL: Senator 20 Volker, do you yield to Senator Dollinger? 21 SENATOR VOLKER: Should we 22 essentially repeat last year's question and 23 answer? 4954 1 SENATOR DOLLINGER: Again, 2 Senator, I'm just trying to make sure - 3 ACTING PRESIDENT KUHL: The 4 Senator yields. 5 SENATOR DOLLINGER: -- make sure 6 I understand because I thought this might have 7 been attended to in the bill. 8 The issue, through you, Mr. 9 President, is who pays the cost for the victim 10 to bring the court application to get the 11 mandatory test? And one of the concerns I had 12 and I know I expressed it last year, was that we 13 tried to provide access to victims' compensation 14 funds to cover the cost of the legal fees that 15 will accrue when the victim who's in this very 16 difficult situation has to hire their own 17 counsel to go out and bring the court order. 18 I note just for the record, Mr. 19 President, that there is a provision in there 20 that says that out-of-pocket loss shall include 21 the cost of testing, counseling and prophylactic 22 treatment provided -- prescribed by a physician 23 in connection with the exposure of the victim of 4955 1 the sex offense. So the crime victim of the sex 2 offense would have the ability to have a portion 3 of their medical costs paid. 4 My question is, and I know we 5 talked about this before, I would just hate to 6 think that a woman is going to be faced with the 7 problem of having to go out and raise 500, $750, 8 $1,000 to bring the civil action to force the 9 test, and one of the things I think we talked 10 about last year was allowing the district 11 attorney to do it. I understand how that gets 12 the district attorney representing an individual 13 plaintiff instead of the state. That may be a 14 problem, but if there was some way that you 15 would give this victim who says, "I would like 16 to have the test of my accused", but then the 17 district attorney says, "You've got to go out 18 and hire a private lawyer to do that" -- I just 19 think it's a deterrent. 20 SENATOR VOLKER: I think our 21 discussion last year -- and that's what I was - 22 I was just reading the testimony, Senator, 23 primarily on the issue of when the HIV test 4956 1 comes in, and so forth, and that's why I was - 2 I didn't mean to be flippant about it. You make 3 a good point, and it's something that we're 4 going to look at. 5 Let me say that it certainly is 6 an issue. I think generally speaking, many of 7 these cases are poor cases anyways. That is, 8 the person is not -- not even necessarily 9 represented because of the way of -- the 10 situation, but you are right, it is something 11 that, I think, needs to be addressed, because we 12 certainly don't want the person to be in a 13 position where she has to -- to have to expend a 14 considerable amount of money to be able to 15 uphold what the law is, because we cover the 16 treatment and we cover everything else. You are 17 absolutely right. It is something we are going 18 to look at and see if there is some way to cover 19 it. 20 SENATOR DOLLINGER: Just on the 21 bill, Mr. President. 22 I'm going to vote in favor of - 23 ACTING PRESIDENT KUHL: Senator 4957 1 Dollinger on the bill. 2 SENATOR DOLLINGER: I'm going to 3 vote in favor of this bill, but I'd just point 4 out, Senator Volker, that one of the other 5 questions would be when the application is 6 sought, I assume many of these defendants will 7 be represented by the public defender. I can 8 understand from the public defender's point of 9 view that they could take the position that they 10 would have to defend this person civilly on the 11 test because of the potential that it could 12 somehow affect the criminal case. So you may 13 have someone who's a victim of a crime having to 14 hire private counsel to wage a war against the 15 public defender who's being retained at 16 government expense to provide a defense, and it 17 just seems to me that you get into that sense of 18 unfair treatment, the unfairness of the system 19 that a victim would take to heart and be more 20 disappointed than enthused that this remedy is 21 available. 22 I'm going to vote in favor of 23 this bill. I think that there is a balancing 4958 1 here. I can see that there's been a lot of work 2 done to improve this balance. I'm just 3 concerned that, unless you provide a mechanism 4 of counsel -- counsel fees out of the crime 5 victims' assistance funds, that you may end up 6 with an illusory benefit to the victim. 7 ACTING PRESIDENT KUHL: Senator 8 Volker on the bill. 9 SENATOR VOLKER: Thank you, 10 Senator Dollinger, and let me just say that you 11 make a very good point. It is something that we 12 are going to look into, and I hesitate to admit 13 it, but my good friend, Senator Paterson, also 14 makes a good point. 15 Senator, if we look at the bill, 16 the -- if you look at the section that relates 17 to HIV testing, you'll see that it talks about 18 the person can bring an action or rather a 19 hearing when the sex offense was committed by 20 the person to be tested in violation of any 21 crime within six months prior to the 22 application, but you do make a point that -- and 23 I guess because I am by no means an expert on 4959 1 HIV testing and I don't profess to be, that we 2 may have a problem with the six-month issue 3 thereafter. 4 So, although I think the bill 5 does cover basically what we were trying to 6 cover as far as the initial testing is 7 concerned, I think we must consider the real 8 possibility that we should look to a further 9 test later on just to be safe. So we will look 10 at that, Senator. 11 I guess I don't agree with your 12 -- with the fact that you don't want to do the 13 initial test, but I think that it is something 14 that we certainly will look at and consider very 15 seriously, making an amendment to the bill. 16 ACTING PRESIDENT KUHL: The Chair 17 recognizes Senator Saland on the bill. 18 SENATOR SALAND: Mr. President, I 19 listened intently to the debate, certainly the 20 debate that ensued between Senator Volker and 21 Senator Paterson. 22 In prior sessions, I have 23 introduced and this house has passed legislation 4960 1 dealing with the subject of HIV testing in sex 2 offense cases and, while this language does not 3 mirror the language that was contained in those 4 particular bills, the two things that I would 5 like to point out would be, number one, the 6 application process requires that the victim or 7 the individual who's making application for the 8 court order to enable the testing has to show 9 that the victim has had the opportunity for 10 counseling. That is in addition to the fact 11 that there also is the prerequisite that the 12 person who is the subject of the test, the 13 proposed subject of the test, is a person who 14 has been advised that they have the right to 15 voluntarily submit to the test. 16 So it may well be that a number 17 of people would voluntarily submit to the test. 18 I would assume that that -- considering the 19 confidentiality requirements in this bill would 20 not be a particularly onerous task but, 21 secondarily, in the course of that counseling, 22 the victim would be apprised of the problems 23 associated with HIV testing and, in fact, I 4961 1 believe at the bottom of pages -- bottom of page 2 6 and top of page 7, there's some reference to 3 the importance of the victim understanding what 4 that is all about. 5 And insofar as testing prior to 6 conviction, I certainly have advocated that on 7 this floor previously, continue to advocate it. 8 I'm aware of at least two separate instances in 9 which the refusal or the inability, I should say 10 more appropriately, to require an HIV test was 11 used in the city of New York in two separate 12 cases that were reported to me, one in a New 13 York City newspaper, the other in a legal 14 bulletin, where it was the defendant attempted 15 to use his refusal to take that test as a means 16 to secure a plea bargain. 17 I would think that the panel that 18 former Governor Cuomo put together, the task 19 force dealing with a number of related issues, 20 was certainly not stacked with right wing 21 Republican types, but they too have recommended 22 that there be a separate civil proceeding which 23 would enable a victim of a sexual offense to 4962 1 have his or her attacker tested prior to 2 conviction. In fact, in their commentary, they 3 said it was an easy decision for them to reach, 4 but they felt that it was an appropriate 5 decision and one which I would agree with 6 wholeheartedly. 7 Mr. President, I certainly thank 8 Senator Volker for bringing this bill forward. 9 I'm hopeful, as he has indicated, that it will 10 form the framework within which we will be able 11 to obtain some type of agreement on this subject 12 during this session. It certainly is long 13 overdue. 14 ACTING PRESIDENT KUHL: Senator 15 Abate, do you wish to speak on the bill? 16 SENATOR ABATE: Senator - 17 ACTING PRESIDENT KUHL: The Chair 18 recognizes Senator Abate. 19 SENATOR ABATE: Yes. Senator 20 Volker, would you yield to a question? 21 ACTING PRESIDENT KUHL: Senator 22 Volker, do you yield? The Senator yields. 23 SENATOR ABATE: As we've spoken 4963 1 before, I also applaud you for many of the 2 provisions, particularly around notification, 3 hot line services, prosecutorial advances, very 4 important pieces of this legislation and, 5 hopefully, this will not just be a one-house 6 bill, it will eventually become law. 7 I do have problems with one 8 section, but on balance, I will support the 9 bill. The problem I have is not post 10 conviction, but in the accusatory stages, the 11 testing of a defendant, and around that issue, I 12 have a number of questions, and just to follow 13 up on Senator Saland's questions. 14 Can a victim seek an application 15 for testing in criminal court, Supreme Court, as 16 well as civil court under the provisions of this 17 statute? 18 SENATOR VOLKER: Just in civil 19 court, Senator. 20 SENATOR ABATE: Just in civil 21 court? 22 SENATOR VOLKER: Right. 23 SENATOR ABATE: And -- which is 4964 1 preferable, because one of my concerns is the 2 application of this test could interfere with 3 the due process rights and presumption of 4 innocence of people accused of crimes and not at 5 a stage of conviction. 6 In order -- and I would hope that 7 once this bill is negotiated, the testing would 8 only be post-conviction but, in any case, 9 assuming if it's preconviction or post 10 conviction, will there be provisions for the 11 victim to bring an ex parte motion? Will it 12 have to be in writing? Could it be also brought 13 by a crime victim advocate? These are issues 14 that perhaps you might want to look at. 15 Again, I stand opposed to 16 preconviction testing. I believe the eventual 17 outcome will be post-conviction testing in order 18 to ensure federal dollars, that you'd look at 19 the issues of how the motion can be brought and 20 if, in fact, it's going to be a real bill, it 21 has to have some teeth and some reality because 22 most victims do not have the resources to go 23 into court. 4965 1 And so while I oppose the 2 preconviction, the post-conviction, I believe, 3 at that point, a woman has a right to know even 4 though the information may be faulty, even 5 though the woman still has to get tested 6 herself, I think you need to consider, is it 7 really going to be an available use to most 8 victims? 9 SENATOR VOLKER: I agree with 10 you. I think it's something we certainly are 11 going to look at and although I don't -- I think 12 that it would be a shame if we ended up strictly 13 with post-conviction, it's something we 14 certainly will look at. 15 We have -- I've said on many 16 occasions with the Assembly that we would be 17 willing to talk about any of these issues. I 18 don't know if you're aware, Senator, that I came 19 to the Senate in part because of my interest in 20 this issue. I led the largest rape investi 21 gation in upstate New York's history, a state 22 trooper and myself many, many years ago, in an 23 investigation that eventually ended up arresting 4966 1 something, I believe, in the neighborhood of 27 2 or 28 people as part of the investigation that 3 involved some 2- or 300 rapes of women 4 throughout upstate New York, and one of the 5 reasons I say I felt so strongly was when I came 6 to the Senate and I was thankfully part of a 7 movement that was occurring which changed the 8 laws on rape and allows us now to convict 9 people, at the time was virtually impossible to 10 convict the person of rape first and, in fact, I 11 think in the time that I was a law enforcement 12 officer, I don't believe one person in Erie 13 County, the county I came from, was convicted of 14 rape first, and this Legislature, in a period of 15 a few years changed the law, so now as you all 16 know, there are a great many rapists who are 17 incarcerated in our prisons, which is where they 18 should be, and there are issues now that are 19 coming up. 20 Obviously HIV and the issue of 21 testing is something very new, as really is the 22 issues -- the crime victim issues are 23 comparatively new because, I think we've only 4967 1 become aware of these over the last few years as 2 more and more people are going to jail but, 3 Senator, it is certainly something we will look 4 at, and we don't want to burden anybody with any 5 more costs than they have to, and we will be 6 happy to look at all those issues in the context 7 of an agreed bill, and I think that the 8 possibilities this year are there probably more 9 than any other because at least the Assembly, 10 very honestly, has introduced a very extremely 11 limited bill within the last month which 12 indicates that they are, at least, interested in 13 discussing this issue. 14 SENATOR ABATE: Would the Senator 15 yield to one more question? 16 SENATOR VOLKER: Sure. 17 ACTING PRESIDENT KUHL: Senator 18 Volker, do you yield to one more question? The 19 Senator yields. 20 SENATOR ABATE: Senator, as you 21 are probably aware, the victims' community is 22 not a monolithic community and not every service 23 provider victim advocate supports the HIV 4968 1 testing of rape victims, and I think most of us 2 think that it's a very clear issue for victim 3 advocates; it is not. 4 The one thing they are united 5 around, whether the testing is mandatory or not, 6 that there be mandatory counseling of the 7 victims, because they want to ensure that 8 there's not false information given to a crime 9 victim around this test because, even though the 10 offender may test negative, he may, in fact, be 11 positive, or if he tests positive, it does not 12 mean that the crime victim is infected with the 13 HIV virus. So it's just one snapshot on a long 14 picture of information that needs to be given to 15 the crime victim, and I would hate to see that a 16 mandatory testing bill come forward and, 17 hopefully, it's not preconviction again, but if 18 it's post-conviction, along with a mandatory 19 testing, there should be mandatory counseling, 20 so that provision could be strengthened. What 21 we don't want is to have crime victims rely on 22 bad information and not get the medical help 23 they need. They need to be tested themselves to 4969 1 ensure their physical well being. 2 So as this bill progresses in the 3 Legislature, I hope you take another look at 4 that counseling provision also. 5 SENATOR VOLKER: Senator, I think 6 if you look at the bill, you'll see that we do 7 provide for crime victims' counseling in the 8 bill, and I think we covered that pretty well. 9 Let me just say about testing, I 10 really think there's only one group that opposes 11 HIV -- really, HIV testing, and all the crime 12 victims' groups, except for a handful of groups 13 that are centered around one group are the ones 14 that oppose this, and I think you know what I'm 15 talking about. Unfortunately - 16 SENATOR ABATE: New York City 17 opposes it, the Bar Association, the Crime 18 Victims Board never took a position. 19 SENATOR VOLKER: Yeah. I think 20 it's only because of one small group in the city 21 that they oppose it because they have, in fact 22 -- most of these groups have come to us and 23 said, "We know it should be done, but we got a 4970 1 problem because some of our members are skittish 2 about this", and so forth, but the problem, I 3 think, is that women are being affected by this, 4 and the difficulty, I think, is it's not just a 5 matter of law, it's a matter of a serious social 6 and criminal justice problem that we have to 7 face up to, whether we like it or not. 8 I know it's a heavy political 9 problem, but I think it has to be faced up to, 10 and it's one of the reasons why, very honestly, 11 we have persisted because I think that sooner or 12 later it's going to happen and, Senator, I guess 13 my only disagreement would be, yeah, maybe 14 initially we're going to be post-prosecution, 15 but I will be willing to wager to you that, 16 before too long, we are going to do HIV testing 17 the way this bill is, because I think it has to 18 happen, and I think most of us that are dealing 19 with this issue know it has to happen. 20 SENATOR ABATE: And I guess one 21 other question to your response. 22 ACTING PRESIDENT KUHL: Senator 23 Volker, do you continue to yield? 4971 1 SENATOR VOLKER: Certainly. 2 ACTING PRESIDENT KUHL: The 3 Senator yields. 4 SENATOR ABATE: You provided for 5 the crime victims' board paying for the 6 counseling that they need as a result of the 7 testing, but I'm not sure, is there -- in the 8 bill that says when the testing occurs, there 9 will be a provision -- a mandatory provision of 10 counseling to the crime victim if they want it? 11 I know that there's compensation available. 12 SENATOR VOLKER: If you look at 13 the bottom of page 6, it says that "based on 14 reasonable cause to believe the crime was 15 committed by defendant, that the applicant has 16 received counseling by a physician or public 17 health officer and understands the limitations 18 on the information to be obtained through HIV 19 related testing", and so forth. I think that's 20 the section that would cover it. 21 SENATOR ABATE: All right. Thank 22 you. 23 ACTING PRESIDENT KUHL: The 4972 1 Secretary will read the last section. 2 THE SECRETARY: Section 26. This 3 act shall take effect immediately. 4 ACTING PRESIDENT KUHL: Call the 5 roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 55. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 Senator Skelos, that completes 11 the controversial calendar. 12 SENATOR SKELOS: Yes, Mr. 13 President. At this time, if we could return to 14 reports of standing committees, I believe 15 there's a report of the Rules Committee at the 16 desk. 17 ACTING PRESIDENT KUHL: We will 18 return to reports of standing committees. The 19 Secretary will read. 20 THE SECRETARY: Senator Bruno, 21 from the Committee on Rules, reports the 22 following bills: Senate Print 4323, by the 23 Committee on Rules, an act to amend the Racing, 4973 1 Pari-mutuel Wagering and Breeding Law and 2 Chapter 281 of the Laws of 1994 amending the 3 Racing, Pari-mutuel Wagering and Breeding Law. 4 Senate Print 4324, Budget Bill, 5 an act making an appropriation for the support 6 of government. 7 Senate Print 4325, Budget Bill, 8 an act making an appropriation for the support 9 of government. 10 And Senate Print 4326, Budget 11 Bill, an act to provide for payments to 12 municipalities and to providers of medical 13 services under the Medical Assistance Program. 14 All bills reported directly for 15 third reading. 16 ACTING PRESIDENT KUHL: Senator 17 Skelos. 18 SENATOR SKELOS: Yes, Mr. 19 President. I move we adopt the report of the 20 Rules Committee. 21 ACTING PRESIDENT KUHL: The 22 motion is to accept the report of the Rules 23 Committee. All those in favor signify by saying 4974 1 aye. 2 (Response of "Aye".) 3 Opposed, nay. 4 (There was no response.) 5 The report is accepted. 6 Senator Skelos. 7 SENATOR SKELOS: Could you 8 recognize Senator Santiago, please? 9 ACTING PRESIDENT KUHL: The Chair 10 recognizes Senator Santiago. 11 SENATOR SANTIAGO: Mr. President, 12 I would like to be recorded in the negative on 13 Calendar Number 385, please. 14 ACTING PRESIDENT KUHL: Without 15 objection, Senator Santiago will be recorded in 16 the negative on Calendar Number 385. 17 Senator Skelos. 18 SENATOR SKELOS: Yes. At this 19 time, Mr. President, could we take up Calendar 20 Number 479, Senate 4324? 21 ACTING PRESIDENT KUHL: The 22 Secretary will read Calendar Number 479. 23 THE SECRETARY: Calendar Number 4975 1 479, Budget Bill, Senate Print 4324, an act 2 making an appropriation for the support of 3 government. 4 ACTING PRESIDENT KUHL: The 5 Secretary will read the last section. 6 THE SECRETARY: Section 4. This 7 act shall take effect immediately. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 55. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 Senator Skelos. 15 SENATOR SKELOS: Mr. President, 16 can we take up Calendar Number 480, Senate 17 4325? 18 ACTING PRESIDENT KUHL: The 19 Secretary will read Calendar Number 480. 20 THE SECRETARY: Calendar Number 21 480, Budget Bill, Senate Print 4325, an act 22 making an appropriation for the support of 23 government. 4976 1 ACTING PRESIDENT KUHL: The 2 Secretary will read the last section. 3 THE SECRETARY: Section 4. This 4 act shall take effect immediately. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 55. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 Senator Skelos. 12 SENATOR SKELOS: At this time, 13 can we take up Calendar Number 481, Senate 14 4326? 15 ACTING PRESIDENT KUHL: The 16 Secretary will read Calendar Number 481. 17 THE SECRETARY: Calendar Number 18 481, Budget Bill, Senate Print 4326, an act to 19 provide for payments to municipalities and 20 providers of medical services under the Medical 21 Assistance Program. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the last section. 4977 1 THE SECRETARY: Section 3. This 2 act shall take effect immediately. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes 55. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 Senator Skelos. 10 SENATOR SKELOS: Yes. Could you 11 recognize Senator Present, please? 12 ACTING PRESIDENT KUHL: The Chair 13 recognizes Senator Present. 14 SENATOR PRESENT: Mr. President, 15 on page 19, on behalf of Senator Lack, I offer 16 the following amendments to Calendar Number 296, 17 Assembly Print 395, and ask that it retain its 18 place on the Third Reading Calendar. 19 ACTING PRESIDENT KUHL: The 20 amendments to Calendar Number 296 are received 21 and accepted. The bill will retain its place on 22 the Third Reading Calendar. 23 Senator Present. 4978 1 SENATOR PRESENT: Mr. President, 2 on page 11, on behalf of Senator Cook, I offer 3 the following amendments to Calendar 90, 4 Assembly 290-A, and ask that it retain its place 5 on the Third Reading Calendar. 6 ACTING PRESIDENT KUHL: The 7 amendments are received to Calendar Number 90 8 and accepted. The bill will retain its place on 9 the Third Reading Calendar. 10 SENATOR SKELOS: Mr. President, 11 is there any other housekeeping? If we could 12 just stand at ease for a moment then. 13 ACTING PRESIDENT KUHL: There's 14 no housekeeping here, Senator Skelos, at the 15 moment. The Senate will stand at ease for a few 16 moments. 17 (Whereupon, the Senate stood at 18 ease.) 19 ACTING PRESIDENT KUHL: The Chair 20 recognizes Senator Skelos. 21 SENATOR SKELOS: Yes, Mr. 22 President. At this time, there being no further 23 business, I move we adjourn until Tuesday, April 4979 1 25th at 3:00 p.m. sharp. 2 ACTING PRESIDENT KUHL: Without 3 objection, the Senate stands adjourned until 4 tomorrow, Tuesday, April 25th at 3:00 p.m. 5 sharp. 6 (Whereupon, at 4:15 p.m., the 7 Senate adjourned.) 8 9 10 11 12 13 14