Tuesday, May 23, 1995

6237 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 May 23, 1995 10 11:05 a.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 6238 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: The 3 Senate will come to order. Members please find 4 their chairs, the staff their seats. Ask 5 everybody in the chamber to please rise and join 6 me in saying the Pledge of Allegiance. 7 (The assemblage repeated the 8 Pledge of Allegiance to the Flag.) 9 In the absence of clergy, may we 10 bow our heads in a moment of silence. 11 (A moment of silence was 12 observed.) 13 Reading of the Journal. 14 THE SECRETARY: In Senate, 15 Monday, May 22nd, the Senate met pursuant to 16 adjournment, Senator Kuhl in the Chair upon 17 designation of the Temporary President. The 18 Journal of Sunday, May 21st, was read and 19 approved. On motion, the Senate adjourned. 20 ACTING PRESIDENT KUHL: Hearing 21 no objection, the Journal stands approved as 22 read. 23 Presentation of petitions. 6239 1 Messages from the Assembly. 2 Messages from the Governor. 3 Reports of standing committees. 4 Reports of select committees. 5 Communications and reports from 6 state officers. 7 Motions and resolutions. 8 The Chair recognizes Senator 9 Farley. 10 SENATOR FARLEY: Mr. President, 11 on behalf of Senator Levy, please place a 12 sponsor's star on Calendar Number 841. 13 On behalf of Senator Cook, Mr. 14 President, on page 4, I offer the following 15 amendments to Calendar Number 23, Senate Print 16 762, and I ask that that bill retain its place 17 on the Third Reading Calendar. 18 ACTING PRESIDENT KUHL: The 19 amendments are received and adopted to Calendar 20 Number 23. The bill will retain its place on 21 the Third Reading Calendar. Calendar Number 841 22 is starred at the request of the sponsor. 23 Senator Paterson, why do you 6240 1 rise? 2 SENATOR PATERSON: Mr. President, 3 we have a, on the calendar, Resolution Number 4 1326 honoring Myron Holtz who has stepped down 5 from the Division of Housing. 6 Senator Connor would like to open 7 this resolution for any member to go on if they 8 would so desire. 9 ACTING PRESIDENT KUHL: Anybody 10 who would like to be a co-sponsor of Resolution 11 Number 1326, please indicate to the desk and 12 we'll leave it open so that anybody who 13 determines that they would like to during the 14 course of the day, please notify the desk. 15 Senator Marchi, Senator Stachowski, Senator 16 Onorato. 17 The Chair recognizes Senator 18 Rath. 19 SENATOR RATH: I also -- Mr. 20 President, on page 11, Calendar Number 337, I 21 would like to place a sponsor's star on that 22 item and also on page 45, Calendar 883, please 23 place a sponsor's star. 6241 1 Thank you. 2 ACTING PRESIDENT KUHL: At the 3 request of the sponsor, both bills will be 4 placed on the starred calendar. 5 Senator Sears. 6 SENATOR SEARS: Calendar Number 7 894, would you star that bill, please. 8 ACTING PRESIDENT KUHL: Calendar 9 Number 894 will be starred at the request of the 10 sponsor. 11 Senator Hoblock. 12 SENATOR HOBLOCK: Mr. President, 13 on the Resolution Calendar, Resolution 1322 14 commemorating Armed Forces Day and Resolution 15 1323 commemorating Memorial Day, I would like to 16 open that up to co-sponsorship, both 17 resolutions. 18 ACTING PRESIDENT KUHL: Is there 19 any member who does not want to be on either 20 Resolution 1321 -- excuse me, 1322 or 1323? 21 (There was no response.) 22 We'll place all the members on 23 the resolution as a co-sponsor, Senator 6242 1 Hoblock. If anybody does not wish to be on 2 them, please indicate to the Secretary. 3 The Chair recognizes Senator 4 Bruno. 5 SENATOR BRUNO: Mr. President, 6 can we ask for an immediate meeting of the 7 Finance Committee in Room 332. 8 ACTING PRESIDENT KUHL: There 9 will be an immediate meeting of the Senate 10 Finance Committee in the Majority Conference 11 Room, Room 332; immediate meeting of the Senate 12 Finance Committee, Room 332. 13 Senator Bruno. 14 SENATOR BRUNO: Mr. President, 15 can we go to the Resolution Calendar and move 16 its adoption. 17 ACTING PRESIDENT KUHL: The 18 question is on the Resolution Calendar. All 19 those in favor signify by saying aye. 20 (Response of "Aye".) 21 Opposed, nay. 22 (There was no response.) 23 The Resolution Calendar is 6243 1 adopted. 2 Senator Bruno. 3 SENATOR BRUNO: Mr. President, 4 can we now take up the non-controversial 5 calendar. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the non-controversial 8 calendar. 9 THE SECRETARY: On page 10, 10 Calendar 299, by Senator Padavan, Senate Print 11 3380-A, an act to amend the State Finance Law, 12 the General Municipal Law, the Personal Property 13 Law, the Public Authorities Law and the 14 Administrative Code of the city of New York, in 15 relation to authorizing agreements. 16 ACTING PRESIDENT KUHL: The 17 Secretary will read the last section. 18 THE SECRETARY: Section 5. This 19 act shall take effect immediately. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes 37. 6244 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 338, by Senator Farley, Senate Print 1275-A, an 5 act to amend the Education Law, in relation to 6 residence with parent for determining tuition 7 assistance awards. 8 ACTING PRESIDENT KUHL: The 9 Secretary will read the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect July 1st. 12 ACTING PRESIDENT KUHL: Call the 13 roll. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes 39. 16 ACTING PRESIDENT KUHL: The bill 17 is passed. 18 THE SECRETARY: Calendar Number 19 339, by Senator Padavan, Senate Print 3089-A, an 20 act to amend the Education Law, in relation to 21 the exclusion of illegal aliens. 22 ACTING PRESIDENT KUHL: Lay the 23 bill aside. 6245 1 THE SECRETARY: Calendar Number 2 409, by Senator Levy, Senate Print 4034, an act 3 to amend the Transportation Law, in relation to 4 projects funded under the Airport Preservation 5 Program. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the last section. 8 THE SECRETARY: Section 3. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes 39. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 591, by Senator Skelos, Senate Print 394, an act 18 to amend the Vehicle and Traffic Law, in 19 relation to increasing the period of time during 20 which a driver's license is suspended for repeat 21 DWI offenses. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the last section. 6246 1 THE SECRETARY: Section 2. This 2 act shall take effect on the first day of 3 November. 4 ACTING PRESIDENT KUHL: Call the 5 roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 39. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 606, by Senator Leibell, Senate Print 3681-A, an 12 act to amend the Private Housing Finance Law, in 13 relation to the definition of a limited profit 14 mutual company. 15 ACTING PRESIDENT KUHL: Senator 16 Paterson, why do you rise? 17 SENATOR PATERSON: Mr. President, 18 I was wondering if the Majority Leader would let 19 us have a day on this bill; we have some 20 questions on it that we just would like to 21 prepare. 22 ACTING PRESIDENT KUHL: Would you 23 like to lay the bill aside? 6247 1 SENATOR PATERSON: For the day. 2 SENATOR BRUNO: Lay it aside 3 temporarily. 4 ACTING PRESIDENT KUHL: Lay the 5 bill aside for the day. 6 THE SECRETARY: Calendar Number 7 615, by Senator Farley, Senate Print 2675-A, an 8 act to amend the Retirement and Social Security 9 Law, in relation to negotiation of retirement 10 benefits. 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 39. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 643, by Senator Levy, Senate Print 4337, an act 23 to amend the Transportation Law, in relation to 6248 1 the creation of regional citizens advisory 2 councils. 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 41. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 700, by Senator Stafford, Senate Print 1261-B, 15 an act to amend the Insurance Law and the 16 General Obligations Law, in relation to limiting 17 liability for property owners. 18 SENATOR PATERSON: Lay it aside, 19 please. 20 ACTING PRESIDENT KUHL: Lay the 21 bill aside. 22 THE SECRETARY: Calendar Number 23 721, by Senator Skelos, Senate Print 413, an act 6249 1 to amend the Public Health Law and the 2 Correction Law, in relation to requiring certain 3 applicants for employment in home health care 4 services. 5 ACTING PRESIDENT KUHL: The 6 Secretary will read the last section. 7 THE SECRETARY: Section 3. This 8 act shall take effect on the 90th day. 9 ACTING PRESIDENT KUHL: Call the 10 roll. 11 (The Secretary called the roll.) 12 THE SECRETARY: Ayes 41. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 722, by Senator Saland, Senate Print 2039, an 17 act to amend the Public Health Law and the 18 Executive Law, in relation - 19 SENATOR PATERSON: Lay it aside. 20 ACTING PRESIDENT KUHL: Lay the 21 bill aside. 22 THE SECRETARY: Calendar Number 23 777, by Senator Lack, Senate Print 4789, an act 6250 1 to amend the Estates, Powers and Trusts Law, in 2 relation to shares of stock of a cooperative 3 apartment corporation. 4 ACTING PRESIDENT KUHL: The 5 Secretary will read the last section. 6 THE SECRETARY: Section 3. This 7 act shall take effect January 1st. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 42. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 825, by Senator Volker, Senate Print 4262, an 16 act to amend the Criminal Procedure Law, the 17 Penal Law and the Civil Practice Law and Rules, 18 in relation to assault against a child. 19 ACTING PRESIDENT KUHL: The 20 Secretary will read the last section. 21 THE SECRETARY: Section 8. This 22 act shall take effect on the first day of 23 November. 6251 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 44. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 830, by Senator Volker, Senate Print 4588, an 9 act to amend the Penal Law, in relation to 10 issuance of licenses to have and carry pistols. 11 SENATOR PATERSON: Lay it aside. 12 ACTING PRESIDENT KUHL: Lay the 13 bill aside. 14 THE SECRETARY: Calendar Number 15 844, by Senator DeFrancisco, Senate Print 673, 16 an act to amend the Vehicle and Traffic Law, in 17 relation to speeding while being pursued by a 18 police officer. 19 ACTING PRESIDENT KUHL: The 20 Secretary will read the last section. 21 THE SECRETARY: Section 3. This 22 act shall take effect on the 90th day. 23 ACTING PRESIDENT KUHL: Call the 6252 1 roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 44. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 879, by Senator Levy, Senate Print 976-A, an act 8 in relation to directing the State Fire 9 Administrator to study the Hazardous Materials 10 Emergency Response Training Program. 11 ACTING PRESIDENT KUHL: The 12 Secretary will read the last section. 13 THE SECRETARY: Section 3. This 14 act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 44. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 884, by Senator Padavan, Senate Print 3091, an 23 act to amend the Executive Law, in relation to 6253 1 cooperation between police agencies and the 2 United States Immigration and Naturalization 3 Service. 4 SENATOR PATERSON: Lay it aside. 5 ACTING PRESIDENT KUHL: Lay the 6 bill aside. 7 THE SECRETARY: Calendar Number 8 896, by Member of the Assembly Brodsky, Assembly 9 Print 6220, an act to amend the Environmental 10 Conservation Law, in relation to the length of 11 scup. 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 44. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 THE SECRETARY: Calendar Number 23 905, by Senator Present, Senate Print 993, an 6254 1 act to amend the Tax Law, in relation to 2 penalties and interest assessments with respect 3 to sales tax reporting. 4 SENATOR PATERSON: Lay it aside. 5 ACTING PRESIDENT KUHL: Lay the 6 bill aside. 7 THE SECRETARY: Calendar Number 8 907, by Member of the Assembly Kaufman, Assembly 9 Print 1811-B, an act to amend the Arts and 10 Cultural Affairs Law, in relation to contracts 11 for theatrical and musical performances. 12 ACTING PRESIDENT KUHL: The 13 Secretary will read the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect on the first day of 16 January. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 44. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 THE SECRETARY: Calendar Number 6255 1 911, by Senator Present, Senate Print 1691, an 2 act authorizing the Commissioner of General 3 Services to transfer and convey certain state 4 lands in the county of Cattaraugus to Holimont, 5 Incorporated. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the last section. 8 THE SECRETARY: Section 7. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes 46. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 913, by Senator Farley, Senate Print 1726, an 18 act to amend the Public Officers Law, in 19 relation to the power of the state legislators 20 to administer oaths of office. 21 ACTING PRESIDENT KUHL: The 22 Secretary will read the last section. 23 THE SECRETARY: Section 2. This 6256 1 act shall take effect immediately. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 46. 6 ACTING PRESIDENT KUHL: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 914, by Senator Bruno, Senate Print 1860, an act 10 to amend the Tax Law, in relation to the 11 inspection of tax returns. 12 SENATOR PATERSON: Lay it aside. 13 ACTING PRESIDENT KUHL: Lay the 14 bill aside. 15 THE SECRETARY: Calendar Number 16 917, by Senator DeFrancisco, Senate Print 2153, 17 an act in relation to authorizing the conveyance 18 of certain real property to the state of New 19 York adjacent to the Hutchings Psychiatric 20 Center to Syracuse University. 21 ACTING PRESIDENT KUHL: The 22 Secretary will read the last section. 23 THE SECRETARY: Section 3. This 6257 1 act shall take effect immediately. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 46. 6 ACTING PRESIDENT KUHL: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 918, by Senator Farley, Senate Print 2305, an 10 act to amend the Tax Law, in relation to the 11 requirement to file a personal income tax 12 return. 13 SENATOR PATERSON: Lay it aside. 14 ACTING PRESIDENT KUHL: Lay the 15 bill aside. 16 THE SECRETARY: Calendar Number 17 928, by Senator Stafford, Senate Print 3312, an 18 act to amend the Tax Law, in relation to 19 authorizing the county of Washington to allocate 20 certain proceeds from the tax on mortgages. 21 ACTING PRESIDENT KUHL: The 22 Secretary will read the last section. 23 THE SECRETARY: Section 2. This 6258 1 act shall take effect immediately. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 46. 6 ACTING PRESIDENT KUHL: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 931, by Senator Lack, Senate Print 3552, an act 10 to amend the Tax Law, in relation to mortgage 11 recording taxes on credit line mortgages. 12 ACTING PRESIDENT KUHL: There's a 13 local fiscal impact note at the desk. The 14 Secretary will read the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 46. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 THE SECRETARY: Calendar Number 6259 1 936, by Senator Goodman, Senate Print 4002, an 2 act to amend the Public Buildings Law, in 3 relation to deleting the value limitation on 4 contracts authorized to be let to meet 5 construction emergencies. 6 SENATOR PATERSON: Lay it aside. 7 ACTING PRESIDENT KUHL: Lay the 8 bill aside. 9 THE SECRETARY: Calendar Number 10 941, by Senator Padavan, Senate Print 4745, an 11 act to amend Chapter 172 of the Laws of 1992, 12 amending the Tax Law, relating to releasing the 13 Cooperative Housing Corporation from transferee 14 liability. 15 ACTING PRESIDENT KUHL: The 16 Secretary will read the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes 46. 23 ACTING PRESIDENT KUHL: The bill 6260 1 is passed. 2 THE SECRETARY: Calendar Number 3 960, by Senator Maltese, Senate Print 489, an 4 act to amend the Vehicle and Traffic Law, in 5 relation to providing for distinctive license 6 plates for members of the Catholic War Veterans. 7 ACTING PRESIDENT KUHL: The 8 Secretary will read the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect on the first day of April. 11 ACTING PRESIDENT KUHL: Call the 12 roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes 46. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 961, by Senator Skelos, Senate Print 1965, an 19 act to amend the Vehicle and Traffic Law, in 20 relation to distinctive license plates for gold 21 star mothers. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the last section. 6261 1 THE SECRETARY: Section 2. This 2 act shall take effect January 1st. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes 46. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 THE SECRETARY: Calendar Number 10 964, by Senator Hoblock, Senate Print 3407, an 11 act to amend the Military Law, in relation to 12 providing legal authority for obtaining 13 background checks on individuals. 14 ACTING PRESIDENT KUHL: The 15 Secretary will read the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 46. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 6262 1 THE SECRETARY: Calendar Number 2 965, by Senator LaValle, Senate Print 3508, an 3 act to amend the Vehicle and Traffic Law, in 4 relation to distinctive plates for widows or 5 widowers of former prisoners of war. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes 46. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 966, by Senator Bruno, Senate Print 3654-B, an 18 act to amend the Vehicle and Traffic Law, in 19 relation to authorizing issuance of distinctive 20 license plates to "legion of merit" recipients 21 of the United States Armed Forces. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the last section. 6263 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 46. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 THE SECRETARY: Calendar Number 10 971, by Senator Cook, Senate Print 286, an act 11 to amend the Agriculture and Markets Law, in 12 relation to examination of horses for equine 13 infectious anemia. 14 ACTING PRESIDENT KUHL: The 15 Secretary will read the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 46. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 6264 1 Senator Johnson, that completes 2 the non-controversial calendar. 3 SENATOR JOHNSON: Can we please 4 take up the controversial reading of the 5 calendar? 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the controversial calendar. 8 THE SECRETARY: On page 11, 9 Calendar Number 339, by Senator Padavan, Senate 10 Print 3089-A, an act to amend the Education Law, 11 in relation to the exclusion of illegal aliens 12 from attending public post-secondary educational 13 institutions. 14 ACTING PRESIDENT KUHL: 15 Explanation. 16 SENATOR JOHNSON: Lay it aside 17 temporarily. 18 ACTING PRESIDENT KUHL: Lay the 19 bill aside temporarily. 20 The Secretary will continue to 21 call the controversial calendar. 22 THE SECRETARY: Calendar Number 23 700, by - 6265 1 ACTING PRESIDENT KUHL: Senator 2 Johnson. 3 SENATOR JOHNSON: Also, Mr. 4 President, please lay aside 914 for the day. 5 ACTING PRESIDENT KUHL: 914 - 6 Calendar Number 914? 7 SENATOR JOHNSON: Yes. 8 ACTING PRESIDENT KUHL: Okay. 9 Calendar Number 914 is laid aside for the day. 10 The Secretary will continue to 11 call the controversial calendar. 12 THE SECRETARY: Calendar Number 13 700, by Senator Stafford, Senate Print 1261-B, 14 an act to amend the Insurance Law and the 15 General Obligations Law, in relation to limiting 16 liability for property owners. 17 SENATOR PATERSON: Explanation. 18 SENATOR JOHNSON: Lay it aside 19 temporarily. 20 ACTING PRESIDENT KUHL: Lay the 21 bill aside temporarily. 22 THE SECRETARY: Calendar Number 23 722, by Senator Saland, Senate Print 2039, an 6266 1 act to amend the Public Health Law and the 2 Executive Law, in relation to court author 3 ization for immunodeficiency virus-related 4 testing of certain sex offenders. 5 SENATOR PATERSON: Explanation. 6 SENATOR JOHNSON: Lay it aside 7 temporarily. 8 ACTING PRESIDENT KUHL: Lay the 9 bill aside temporarily. 10 THE SECRETARY: Calendar Number 11 830, by Senator Volker, Senate Print 4588, an 12 act to amend the Penal Law, in relation to 13 issuance of licenses to have and carry pistols. 14 SENATOR PATERSON: Explanation. 15 ACTING PRESIDENT KUHL: Senator 16 Volker, an explanation has been asked for by the 17 Acting Minority Leader, Senator Paterson, on 18 Calendar Number 830. 19 SENATOR VOLKER: Mr. President, 20 this - 21 ACTING PRESIDENT KUHL: Senator 22 Volker, just -- excuse me just a minute. May we 23 have some quiet in the chamber, please? There's 6267 1 a lot of noise in the back of the chamber. 2 Could we please quiet it down? 3 Thank you. 4 Senator Volker for an 5 explanation. 6 SENATOR VOLKER: Mr. President, 7 this is a bill that's passed this house on a 8 number of occasions and sponsored in the 9 Assembly by Assemblyman Bragman. 10 This bill has been termed the 11 "proper cause" bill, and it's a fairly simple 12 bill that obviously is also very controversial, 13 and it would basically create a presumption that 14 a person of clean, moral, criminal and mental 15 record has proper cause for the issuance of a 16 license to carry a firearm. 17 Presently, the way that firearms 18 licenses are issued in many parts of the state, 19 the presumption is in reverse, and what this 20 bill would do basically is still allow, obvious 21 ly, background checks and all the rest of the 22 things that go with licensing statewide, but 23 there would be a presumption that a person with 6268 1 a -- that would have a clean, moral, criminal 2 and mental record and, of course, when the 3 checks were made, if that person was found not 4 to be in that sort of a position, then the 5 courts say a pistol permit could be denied. 6 ACTING PRESIDENT KUHL: Senator 7 Paterson. 8 SENATOR PATERSON: Mr. President, 9 would Senator Volker yield for a question? 10 ACTING PRESIDENT KUHL: Senator 11 Volker, do you yield to a question from Senator 12 Paterson? The Senator yields. 13 SENATOR PATERSON: Senator 14 Volker, I think one of the mistakes that often 15 advocates of gun control make is the presumption 16 that restricting guns just uniformly and 17 individually cuts crime, and we are not trying 18 to suggest in our opposition to this piece of 19 legislation that it is going to address the real 20 major problems that we have with crime in our 21 state. 22 However, it would seem that we 23 would not want to add to what is already a 6269 1 crisis situation when it comes to violence and 2 violence committed with firearms in our state, 3 and so my question to you is with that kind of 4 climate already existing, why would we ever want 5 to limit any kind of regulations with respect to 6 an individual obtaining a firearm when the 7 decent citizens of the state, even though 8 encumbered by a little more than would be the 9 result if this bill passes, can still obtain 10 firearms? It is not illegal to obtain a firearm 11 and conceal it in this state. 12 SENATOR VOLKER: Senator, I think 13 that -- and I'm glad that you said it, although 14 I would certainly argue that there are some 15 people in this state and certainly in the Con 16 gress of the United States who seem to have only 17 one -- one criminal justice agenda, and that is 18 limit firearms and maybe add a few police 19 officers occasionally, but I agree with you, and 20 I'm not making light of it, and I agree that 21 there are many more reasonable people who, I 22 think, certainly should recognize because, 23 unfortunately, the people with the toughest gun 6270 1 laws in the United States of America, Washington 2 D.C. and New York, have some of the highest 3 crime rates in America. 4 Let me point out to you once 5 again something that I think many people have 6 pointed out ad nauseam, that the problem is not 7 now nor has it ever been legally licensed 8 handgun owners. The problem with firearms 9 relates to - 10 ACTING PRESIDENT KUHL: Senator 11 Dollinger, why do you rise? 12 SENATOR DOLLINGER: I'm having 13 some difficulty hearing Senator Volker. 14 SENATOR VOLKER: There's a little 15 bit of background noise. 16 ACTING PRESIDENT KUHL: There's 17 quite a bit of background noise, Senator 18 Volker. I don't know if you're used to having 19 that kind of accompaniment. Why don't we quiet 20 it down in the chamber and if we could get 21 Senators Leibell and Holland to take their 22 seats - 23 SENATOR JOHNSON: Can I interrupt 6271 1 for an announcement? Senator Hannon would like 2 to make an announcement. 3 ACTING PRESIDENT KUHL: Senator 4 Hannon. 5 SENATOR HANNON: Mr. President, I 6 would like to announce that we're going to call 7 a Health Committee meeting in Room 332 8 immediately at 11:30 today. 9 ACTING PRESIDENT KUHL: There 10 will be an immediate meeting of the Health 11 Committee in the Majority Conference Room, Room 12 332; immediate meeting of the Health Committee. 13 Thank you for your indulgence, 14 Senator Volker. 15 Senator Volker. 16 SENATOR VOLKER: Yeah. Getting 17 back, I think those of us who have been the 18 proponents of this bill -- Senator, I can assure 19 you that if I thought that the passage of this 20 bill would truly increase the proliferation of 21 illegal guns in this state and truly create any 22 more of a criminal justice problem, I would be 23 the last one that would sponsor such a bill. 6272 1 I think the problem is that we 2 have had an irrational attitude toward crime in 3 many ways in this state, and I think what we're 4 trying to do here is develop a coordinated 5 system, that we don't have a system such as the 6 city of New York, where, in many cases, what 7 happens is that the licensing people just sit on 8 applications and don't grid them at all, and we 9 have situations in other counties where there 10 are all sorts of different rules. 11 I think the argument that we make 12 here, and what this bill is that this sets a 13 rational method of licensing, still does not 14 allow the people who commit -- who indulge in 15 criminal conduct from obtaining weapons legally, 16 because the problem is that people who indulge 17 in criminal conduct obtain their weapons 18 illegally, and that's the real problem that we 19 have had to deal with, and I don't think this 20 bill will -- will create any more problems than 21 the present licensing structure in some ways has 22 created because, unfortunately, what we've done, 23 I think, is create pseudo-criminals out of 6273 1 people because they want to protect themselves 2 and I think that's a huge mistake. 3 ACTING PRESIDENT KUHL: Senator 4 Paterson. 5 SENATOR PATERSON: Mr. President, 6 I want to thank Senator Volker for answering the 7 question. I also want to thank him for 8 recognizing the point I was trying to make, 9 which is that I don't think that we have to 10 necessarily talk about the crime rate when we 11 are talking about licensing firearms. We don't 12 necessarily talk about the crime rate when we 13 license automobile drivers. It's just that we 14 understand that a firearm and an automobile can 15 turn into very dangerous weapons when not 16 operated correctly, and so what I'm saying is we 17 just discount the crime rate and just on the 18 issue of maintenance and obtaining a firearm, we 19 recognize that it is a highly dangerous weapon 20 and not try to create the stigma of the citizen 21 who legally wants to obtain the firearm, but to 22 just give notice to that citizen and as a notice 23 to society that it's public policy that what we 6274 1 would really want people who would like to own 2 firearms to know is that it carries a high 3 degree of responsibility which should take far 4 more in the criteria than I feel Senator Volker 5 sets forth in his bill. 6 I understand what Senator Volker 7 is saying. Probably there is a feeling that 8 increased restrictions cause individuals to feel 9 as if they're being treated like the criminal 10 when, in fact, they are purchasing the firearms 11 to ward off criminals, but I don't think that's 12 what we really are saying. 13 In voting against this bill, what 14 I think we should be saying is that this is just 15 a dangerous weapon, and it is one that has a 16 threshold of regulation that the -- that the 17 candidate who would like to own such a firearm 18 should reach, and I think that that threshold is 19 a lot greater than what Senator Volker sets 20 forth in this bill. 21 ACTING PRESIDENT KUHL: The Chair 22 recognizes Senator Leichter. 23 SENATOR LEICHTER: Yes, Mr. 6275 1 President. I can't be as benign in my judgment 2 of this bill and as accommodating and civil as 3 my good friend, Senator Paterson on this bill, 4 because I think this is really a very, very 5 dangerous bill. 6 This is part of the far right 7 wing agenda in this country which is almost to 8 force guns upon everybody, and I don't mean to 9 call my good friend and respected colleague, 10 Senator Volker, a member of the right wing 11 fringe. He isn't, but this is part of the 12 agenda, where a line seems to have been drawn in 13 this country where the greatest issue is to try 14 to make it as easy for people to possess 15 firearms. In fact, in some instances we've seen 16 where localities have compelled people to have 17 firearms on the totally insane idea, totally 18 insane, that people are going to be protected if 19 they have a firearm in their house or in their 20 possession when, in fact, every statistic shows 21 the great increase in the number of crimes that 22 have been committed with firearms and the number 23 of deaths and the number of injuries that have 6276 1 been caused with firearms. 2 First of all, just the number of 3 injuries and deaths caused with firearms by 4 people, no crime involved, but they left a gun 5 in their drawer and the kid found it, and every 6 day we read about these. Secondly, of course, 7 is the fact that firearms get stolen, and 8 Senator Volker says, "Well, it's not going to 9 lead to a proliferation of illegal handguns." 10 Of course, it will, because the more handguns 11 you have out in society, the greater risk and 12 danger there is that these are going to be 13 stolen, and while I don't have the exact 14 statistic in mind, a large proportion of the 15 illegal handguns, Senator Volker, come from 16 people who originally had -- or people who did 17 have a license to have handguns and had that 18 handgun stolen or lost it, and that handgun then 19 finds its way out in the street and ends up 20 being used in a crime and ends up in shooting a 21 store owner or in a shoot-out in the street 22 where someone gets shot. 23 I don't know what it is about 6277 1 this wonderful country -- and it is, it's a 2 wonderful country -- but this madness that 3 everybody's got to have a gun, and it's not just 4 a gun, to have a rifle, go out shooting, that's 5 fine. You insist that people have -- are 6 allowed to have these murderous assault 7 weapons. We can't pass a bill through this 8 Senate barring people from having assault 9 weapons. It has nothing to do with protection. 10 It has nothing to do with sportsmen who want to 11 go out and shoot, and that's fine. It has no 12 other purpose than to kill, to maim, to destroy, 13 and we can't pass a bill because you are so 14 scared of the NRA. 15 I don't know how many of you are 16 members of the NRA -- I know Senator Johnson 17 proudly says -- well, Senator Johnson, may I say 18 to you, I think I'm a lot prouder and have more 19 respect for George Bush for saying "I'm not 20 going to belong to an organization that calls 21 federal law enforcement officials" -- what do 22 they call them -- thugs or some other booted 23 thugs? 6278 1 I could just say to you, Senator 2 Johnson -- and I know your high moral standard, 3 and so on -- maybe you ought to review whether 4 you want to belong to that sort of an 5 organization. 6 But we are at a critical time in 7 this country as far as the social compact is 8 concerned, and much of it relates to this driv 9 ing force by what, I think, is a relatively few 10 people that you've got to make guns available to 11 everybody who wants it, whether they're trained 12 to have guns, whether they're qualified to have 13 guns, whether they're experienced with guns, has 14 been satisfactory or not. Just let everybody 15 have guns. 16 What are the militias all about? 17 The militias are all about people who are saying 18 we're taking away their right to have guns and, 19 therefore, now they have the right to blow up 20 federal buildings and kill children and kill 21 innocent people because that right to have guns 22 in their mind is so sacred and is so paramount, 23 and that's why I say this bill -- and I know you 6279 1 have introduced it for years, Senator Volker, 2 before maybe the gun issue became as inflamed as 3 it has in our society, but this is now part of 4 the extreme right wing agenda, and you ought to 5 reject it, and you ought to acknowledge that we 6 need a sensible, careful system of regulating 7 who has firearms in their possession. 8 So I'm grateful that the Assembly 9 once again will protect the public, Senator 10 Volker, because it's fashionable for the 11 Majority here to get up and talk about security, 12 and so on, and since we have been following your 13 path, this state has become more and more 14 unsafe. The only thing you have been able to do 15 is create a lot of prisons and put a lot of 16 people in prisons. In the meantime, everybody 17 is less safe whether in the city, in the suburbs 18 or in the rural areas, but the fact is that this 19 bill which will increase the number of crimes 20 committed with guns, the number of people killed 21 with guns, the number of people maimed with 22 guns, should not be before us. This is a bad, 23 bad, bad bill. 6280 1 ACTING PRESIDENT KUHL: The Chair 2 recognizes Senator Waldon. 3 SENATOR WALDON: Thank you very 4 much, Mr. President. 5 I would like to speak on the 6 bill. I echo the sentiments of Senator 7 Paterson, Senator Leichter, but I would like to 8 take you to another step. 9 This is not a bill about 10 dangerous instruments. This is a bill about a 11 deadly weapon. Pistols, revolvers, whatever you 12 want to call them, are made for one purpose, to 13 take lives, and what we're saying with this act 14 proposed, if it should become an act, by Senator 15 Volker, is that people can declare themselves 16 okay under the law. I am a moral person. I am 17 a good person, therefore, I should have a deadly 18 weapon in my hand, so that if someone comes upon 19 me in the street and I feel apprehensive and 20 it's a dark night, and I feel that they may be a 21 threat to me, then I may wish to exercise the 22 deadly physical force allowable with this deadly 23 instrumentality in my hand. 6281 1 When you hear that, you think 2 about what about all the people who live in 3 Brooklyn where I grew up? What about the people 4 who live in South Jamaica, part of where I 5 represent? What about the people in the Bronx 6 and in Manhattan, who, like Anthony Stewart, a 7 young man I represented in an auto accident 8 case, a college student on his way home from 9 school with his books, driving the Honda that 10 his parents can afford to pay for him is stopped 11 by the police, dragged out of the car and 12 searched, and then they say, "Oops! A mistake. 13 You look like somebody we're looking for." 14 Could we later on declare that I am a moral 15 person and I should have this deadly weapon? 16 What about what happened on 97th 17 and 150th on July 3rd of last year? A man who 18 is an engineer, his wife has a Master's degree, 19 works for the state. Their two children are "A" 20 students, one in junior high school, one in high 21 school. The police came by to stop fireworks 22 from being fired off. The two boys happened to 23 be outside when others were firing off fireworks 6282 1 and happened to move too slowly when the police 2 became angered. It ended up the father was 3 arrested and beaten, the mother was arrested and 4 beaten, the boys were arrested and beaten and 5 all of the witnesses, including the New York 6 City Police Department's Internal Affairs 7 Division found that they had done nothing, but 8 now they have a record, which will be expunged 9 eventually, but the point I'm making is these 10 are moral people. These are good citizens, each 11 of them, and they may want to one day qualify to 12 have this deadly weapon, but the system is 13 making it very difficult for them to have the 14 weapon. 15 The point I'm really making is 16 that we don't need this in this state. We don't 17 need this in America. We don't need to arm 18 ourselves against the possibility that someone 19 who way not look like us or act like us may 20 attack us. That's foolish, and all the data 21 subscribes to what Senator Leichter said, when 22 you have these weapons, they end up hurting more 23 innocent people than those who are guilty of 6283 1 doing something wrong. 2 The point, though, is that do we 3 need this creeping fascist approach to governing 4 ourselves? I think not. I would hope that my 5 colleagues in their wisdom would not allow this 6 to happen. 7 Thank you very much, Mr. 8 President. 9 ACTING PRESIDENT KUHL: The Chair 10 recognizes Senator Gold. 11 SENATOR GOLD: Thank you, Mr. 12 President. 13 I will try to be brief, but I 14 wanted to explain to my colleague, Senator 15 Leichter, that his comments were very 16 significant, but he doesn't understand really 17 what this is all about. 18 This is about slogans. If it 19 wasn't about slogans, it wouldn't be on the 20 floor, because it's not going to pass the 21 Assembly as he pointed out. 22 If we wanted to do something in 23 this area, I want you to know that when you talk 6284 1 about education for people who have guns, that 2 bill is in. It won't get reported out of 3 committee. We won't have a chance to vote on 4 it. A simple bill that says that if you're 5 going to own a gun, just as you have to take a 6 driving course, you ought to take a course just 7 as with boaters now, we want them to take 8 courses, but boating you're going to have to 9 take a course. Driving, you have to take a 10 course, but a gun, no reason you should be 11 trained at all, but we have that bill. You 12 won't have a chance to vote on it. 13 What about all the talk about 14 people protecting themselves with guns? Now, 15 the people that sell guns tell you that you need 16 a gun to protect yourself. There was a simple 17 bill that was introduced in this Legislature 18 that says if a gun is actually used in an 19 incident it ought to be reported to the police 20 so we'll have some records. You will never see 21 that bill on the floor, I guarantee you that. 22 Certainly the gun dealers and the people who 23 manufacture don't want you to see it because 6285 1 you'll find out how that argument doesn't hold 2 weight. 3 There were people killed on 4 campuses of this state where someone walked in 5 and in the heat of rage, bought a rifle, a 6 shotgun, went out and killed people on the 7 campus. We have a bill introduced in this 8 Legislature for a four-day waiting period for a 9 rifle. It doesn't say they can't get it. It 10 doesn't say if you're a hunter you can't own as 11 many rifles as you want or shotguns. It says 12 four days. People that go hunting know they're 13 going to go hunting in four days. They got to 14 apply for hunting licenses. You'll never see 15 that bill before you on the floor of the 16 Senate. It's introduced. 17 I don't understand all of that, 18 and I think that the reason you won't see some 19 of these bills is that my colleagues don't 20 understand the NRA, and I say this with 21 respect. I thought it was fascinating that this 22 last week we read that 70 percent of the people 23 who belong to the NRA disavowed the terrible 6286 1 comments that Senator Leichter referred to. 2 Well, I wasn't shocked, because I have been 3 educated by some of my friends up here, Senator 4 Volker, Senator Stachowski, people who have NRA 5 families, Senator Hoffmann, in their districts 6 who say, "What are these peoples?" These are 7 hunters. These are decent people who use guns 8 in proper ways. Unfortunately, after these 9 comments were made public, the NRA had its, I 10 think, national convention and who goes to these 11 conventions but I guess the people who feel the 12 strongest and they re-elected a leadership which 13 this country should not necessarily be proud of, 14 but you're misreading the average person in the 15 NRA. 16 I get calls in my office. My 17 name is on some of these flyers that they hand 18 out in the gun stores, you know, with "Enemy of 19 the People" in it, and people call me up and 20 they say, "Senator, why are they against you? 21 What are your bills?" And I talk to these 22 people and they say, "There's nothing wrong with 23 that. There's nothing wrong with education. We 6287 1 have kids and we make sure they get a course in 2 education. We do it voluntarily." I said, 3 "Fine. Don't you think everybody should?" 4 They said, "Yeah. I don't know why the NRA is 5 against you, Senator", and I explained to them 6 about some of the other bills I've introduced 7 about waiting periods and the average person, 8 your constituents who are NRA people, are not 9 against sensible solutions. So maybe you ought 10 to talk to them and get away from some of this 11 radical leadership. 12 As far as this bill is concerned, 13 Senator Volker, you've made it very clear what 14 it does. There are judges, I guess, in upstate 15 New York and other people who throw in some 16 regulations which you feel are not statutory and 17 I understand what you're trying to do, but the 18 bottom line, in my opinion, Senator, is not 19 opening the door to more guns. 20 I would like to remind you that 21 there are, I believe, 168 dead people in 22 Oklahoma City from fertilizer and other items, a 23 bomb that was made and, by the way, if you don't 6288 1 know how to make that bomb, I guess you didn't 2 read the right newspapers, because God bless 3 freedom of speech, I think almost every 4 newspaper printed it, so if you didn't know how 5 to make a bomb, after you read the paper, you 6 knew how to make it. 7 But the answer, Senator, to bombs 8 that blow up 168 people and the answer to the 9 kind of violence we have in America is not by 10 encouraging more violence and arming your 11 citizens against violence. It's preaching 12 against violence. It's trying to teach our kids 13 respect for one another, and we've done that. 14 I've told you before, I'm very proud of the fact 15 that last year we passed a bill which would 16 mandate teaching the Holocaust, teaching the 17 evils of slavery, teaching the inhumanity to man 18 and hopefully the kids will start to see each 19 other in a different light, but none of that 20 happens because we pass a bill that says that 21 it's easier to get a gun. It's the wrong focus 22 on the wrong syllable. 23 I vote no. 6289 1 ACTING PRESIDENT KUHL: The Chair 2 recognizes Senator Marchi. 3 SENATOR MARCHI: I'm not sure 4 that -- you know, I'm a little perplexed by the 5 dangers that are alluded to in this bill. 6 However, it does change, in a 7 way, the burden of proof so that instead of 8 having the applicant have to at least respond to 9 a number of requirements, there is a presumption 10 that, in effect, is rebuttable -- is rebuttable, 11 but it shifts the burden of proof. 12 I fail to see where there's any 13 impediment throughout the rest of the state, 14 except in the city of New York, and in New York 15 they exaggerate the other way. I'm sure if the 16 cardinal asked for permission to carry a gun, it 17 would take him a couple of years before he got 18 it, unless he knows -- unless the police know 19 something about him that we don't, but I - 20 there are over 650,000, I believe, gun permits 21 issued throughout the state of New York outside 22 of New York City, and I don't argue with that. 23 I think they are issued properly because good 6290 1 cause or entitlement is established, but to jump 2 and say that is there anyone being denied -- is 3 there a need, in other words, for something like 4 this to establish a presumption that would put 5 this burden on the state or on the public in the 6 absence of an indicated need which I don't see? 7 I voted against this measure last 8 year for the same reason, and this is not to 9 blanket all NRA people as evil, because I have 10 many of them in my own district and not all of 11 them follow some of the crazies that George - 12 Senator Dole -- no, ex-president or President 13 Bush characterized most properly, but I fail to 14 see where anyone today is being hampered in the 15 process of obtaining a consent to an application 16 under the present rules, and to establish a 17 precedent that we don't -- to shift that burden, 18 I just don't see the need for it, and I am going 19 to vote no on this. 20 ACTING PRESIDENT KUHL: The Chair 21 recognizes Senator Volker. 22 SENATOR VOLKER: Go ahead. 23 ACTING PRESIDENT KUHL: Senator 6291 1 Volker yields to Senator Hoffmann. 2 Senator Hoffmann. 3 SENATOR HOFFMANN: Thank you, Mr. 4 President. 5 Along with Senator Volker, 6 Senator Johnson, Senator Kuhl, Senator Larkin 7 and Senator Saland, I'm a sponsor of this 8 measure, and I want to make clear to those who 9 pay attention to the deliberations in this 10 chamber that there is at least one member on 11 this side of the aisle who believes very 12 strongly in the rights of Americans to be able 13 to own and carry pistols when it suits their 14 purpose, when it suits their convenience as is 15 guaranteed by the United States Constitution. 16 Unfortunately, we have a history 17 in this state of some discrimination where the 18 matter of gun ownership is concerned, and there 19 are numerous incidents in various counties where 20 people in a clerical capacity or purely minis 21 terial capacity have taken it upon themselves to 22 impose restrictions that were in no way 23 appropriate or reasonable when an individual 6292 1 applied to obtain a pistol permit. 2 I'd like to note that one of the 3 largest categories of growing gun ownership in 4 this country is with women, and women resent the 5 notion that they should somehow portray them 6 selves as potential victims in order to be given 7 a pistol permit to which they are legally 8 entitled. It should be a simple matter of 9 stating the obvious that they are choosing to 10 exercise their rights as American citizens, that 11 they are of high moral character, have done 12 nothing that would create any kind of legal 13 restriction to their exercising this right but, 14 in fact, they are sometimes put through an 15 unnecessary and very arduous process of 16 justification that they have, in fact, a need or 17 a right because they are potentially a victim in 18 society. 19 Well, all of us are victims - 20 potential victims in society. We cannot begin 21 to protect ourselves from most of the evils out 22 there. We can't anticipate an automobile 23 accident. We can't anticipate a fire. We can't 6293 1 anticipate a natural disaster, any better than 2 we can anticipate a fertilizer bomb in Oklahoma 3 City, but it is reasonable, in fact, it is 4 prudent for people who feel comfortable carrying 5 a firearm, who are trained in the use of that 6 firearm to exercise their right to have a 7 firearm with them when they see fit. That is a 8 matter that is guaranteed by the Constitution of 9 the United States. It should not be usurped by 10 the state of New York. It should not be usurped 11 by a clerk or a sheriff or somebody in the 12 ministerial role in some county who handles 13 these applications. 14 I want to make clear people 15 realize that those of us who do represent large 16 rural constituencies are in touch with the 17 people who own or might consider owning a 18 firearm, and it is generally not such a big 19 deal, and I'm a little troubled by Senator 20 Gold's comments earlier that he has talked to 21 some people in the NRA and he believes that he 22 understands them better than those of us in 23 rural areas. I don't understand any of that 6294 1 logic. I respect Senator Gold's brilliant legal 2 mind and I listen to him debate quite 3 frequently, but I do take exception to his 4 characterization of my constituents. 5 I know that many of my 6 constituents who never intend to own a firearm 7 in their lives are offended that this state or 8 some other jurisdiction of government would 9 choose to preempt their right. This is a matter 10 of personal exercise of freedom, and I believe 11 that it's a perfectly logical measure for us to 12 be passing. 13 In the other house, the prime 14 sponsor is the Democratic Majority Leader, Mike 15 Bragman, also from central New York, so this is 16 not a Republican versus a Democratic issue. It 17 is not a matter of debate against the NRA. I 18 resent the stigmatization of gun owners in 19 general. I resent the stigmatization of some 20 people who happen to be members of the NRA. 21 Let's deal with this on merit. Let's deal with 22 it as an issue of personal freedom. 23 I would urge all of my colleagues 6295 1 to consider that at some point you may want to 2 exercise a measure of freedom guaranteed by the 3 Constitution that is totally unrelated to gun 4 ownership and how would you feel if you were 5 told that you had to demonstrate extreme need in 6 order to be able to exercise that constitutional 7 right; then consider how people who want to 8 obtain a pistol permit feel when they discover 9 their rights have been usurped as well. 10 I would urge all of my colleagues 11 to vote aye on this measure. 12 Thank you. 13 ACTING PRESIDENT KUHL: Senator 14 Hoffmann, would you yield to a question from 15 Senator Waldon? 16 SENATOR HOFFMANN: Yes, Senator 17 Waldon. 18 SENATOR WALDON: Thank you very 19 much, Mr. President. 20 ACTING PRESIDENT KUHL: The 21 Senator yields. 22 SENATOR WALDON: Senator, I heard 23 you say "constitutional guarantee" in regard to 6296 1 right to have this weapon as characterized by 2 this bill. I am in the dark about that. Would 3 you please enlighten me and tell me where the 4 Constitution specifies that we have a right to 5 own pistols or carry pistols? 6 SENATOR HOFFMANN: Well, Senator 7 Waldon, without getting into a lengthy discourse 8 with you, I think that's a fundamental differ 9 ence of opinion that many people who oppose gun 10 ownership in general take, because the 11 Constitution does not specifically spell out 12 pistols or specific types of firearms. There 13 has lately been a characterization that somehow 14 this is not a guaranteed right. 15 I take the broader interpretation 16 of the Constitution that the Second Amendment 17 guarantees that right to all Americans. More 18 over, I believe that our founding fathers, when 19 they crafted the Constitution, intended personal 20 freedoms to include possession of firearms and a 21 large number of other freedoms that were not 22 anticipated at that time. I think that to be as 23 picayune as some people have been and say, "I 6297 1 don't see the definition in the United States 2 Constitution that person number, serial number, 3 Social Security number, whatever, does not have 4 the right to carry a .38 pistol", I find that 5 that's a rather diversionary approach to this 6 issue, but one that has been happening quite 7 often, just as the introduction of the NRA in 8 this debate really has little to do with the 9 issue of gun ownership. 10 I believe that the Constitution 11 of the United States guarantees us as American 12 citizens the right to be responsible gun owners 13 and that right cannot be eroded by any other 14 jurisdiction of government. 15 SENATOR WALDON: Thank you, Mr. 16 President. 17 Thank you, Senator. 18 ACTING PRESIDENT KUHL: The 19 Secretary will read the last section. 20 Senator Montgomery, to explain 21 your vote. 22 SENATOR MONTGOMERY: Yes -- no, I 23 would like to - 6298 1 ACTING PRESIDENT KUHL: Speak on 2 the bill? 3 SENATOR MONTGOMERY: -- ask the 4 sponsor to yield to a question, if you will. 5 ACTING PRESIDENT KUHL: Senator 6 Volker, do you yield? Senator Volker yields. 7 SENATOR MONTGOMERY: Does -- this 8 bill to establish presumption of eligibility to 9 own a pistol, does it violate the current 10 federal law, the Brady Bill or is this in 11 anticipation that the Brady Bill will be 12 overturned? 13 SENATOR VOLKER: No, in fact, the 14 Brady Bill really had virtually -- had very 15 little impact on New York, because we had a much 16 more stringent law in licensing than the Brady 17 Bill. 18 I think one of the things that 19 should be understood is the fact that I've seen 20 some circulars sent out that says, "Look what a 21 wonderful job the Brady Bill --" but in New 22 York, it had virtually no impact because we 23 already have a much stricter law than the Brady 6299 1 Bill -- is involved in the Brady Bill. The 2 Brady Bill just provides for a waiting period. 3 We provide for a licensing period in the city of 4 New York that may be forever. Certainly it will 5 be a year to two years even upstate, and if we 6 got into this, I could tell you a story about a 7 friend of mine who applied for a license who, in 8 fact, is a very good friend of mine, and I could 9 get into how long it took him and all the hoops 10 he had to go through. I think it took him like 11 eight months, and the fellow was a bank 12 executive and had a totally clean record and had 13 to go through -- the reason I mention that is 14 that anyone that thinks that this is an easy 15 process and if this bill passed through both 16 houses, which I will predict at some point in 17 the next few years, will happen maybe with a 18 little different -- some restrictions on it, but 19 I believe that at some point will happen, it 20 will still -- you'll still have a licensing 21 process, and in the city of New York, you'll 22 have -- they'll still be very reluctant to grant 23 licenses and will delay them, and so forth, but 6300 1 the answer is the Brady Bill had virtually no 2 effect on New York and this bill would still 3 provide a licensing process. You still have to 4 go through the fingerprinting and all that sort 5 of thing that you're going through now, so the 6 answer is it does not violate the Brady Bill. 7 It does not violate any federal statute which, 8 by the way, the bill that was on the floor 9 yesterday of the Assembly that was debated and 10 passed with one vote after all sorts of -- that 11 bill definitely violates some of the federal 12 laws and, unfortunately, for the Assembly, I 13 don't think they completely understand how the 14 guns laws work, but this bill certainly would 15 not. 16 SENATOR MONTGOMERY: Okay. Thank 17 you for that clarification. 18 Senator, the -- you speak of - 19 in the memo that I have before me, you talk 20 about random predatory violence and the concern 21 for that, and I would just ask in your -- the 22 issue of random predatory violence being the 23 rationale for the bill, is that -- are you 6301 1 trying to put into my hands a pistol so that if 2 someone approaches me and I assume that that 3 person is going to commit some violent act 4 toward me, I should just shoot them; that I 5 should be allowed to own a gun for that 6 purpose? Is that the purpose of your trying to 7 get pistols in the hands of citizens, that you 8 want them to be able to protect themselves by 9 killing another person who appears to be posing 10 a threat or danger to them and vice versa, if I 11 approach you in your district on a late evening, 12 I'm walking on your block and you -- you -- you 13 feel threatened by my presence, that you should 14 just pull your pistol out and shoot me since 15 we're talking about random violence in dealing 16 with it based on your bill? 17 SENATOR VOLKER: No, Senator, 18 that obviously is not -- is not what we're 19 looking for. When we speak of random violence, 20 what we're really talking about here -- I think 21 I don't have to remind you that I do have a 22 little bit of knowledge, although as I get 23 older, it gets farther and farther, I guess, 6302 1 from my law enforcement days, but what we're 2 talking about in the memo when we talk about 3 random violence is the issue of personal 4 protection, and this business in Oak Grove and 5 various places, I guess, where it was where they 6 tell people they have to have firearms, that's a 7 little much and, obviously, is a reaction to the 8 other side of the coin that says you can't have 9 any guns and, of course, we know that neither 10 one of those have any relevance with reality, 11 and I think what we're trying to do with this 12 bill -- and I think the media, of course, that 13 has had such a frenzy about guns and, frankly, 14 because of their opposition to the death penalty 15 and opposition to tough criminal statutes in 16 general, the editorial boards of the Times and 17 all the rest of these papers have tried to deal 18 with this issue as some sort of panacea. The 19 real truth is there's just been nothing shown 20 that real gun control has done anything 21 anywhere. 22 Now, that doesn't mean that we 23 are saying, Senator, that we should just hand 6303 1 guns out to anybody that wants weapons, but what 2 we are saying is that this is a rational system 3 for dealing with the -- if we have a licensing 4 system -- right now we have a licensing system 5 that is somewhat irrational. In fact, Senator 6 Waldon without realizing it, just brought up one 7 of the problems with the licensing system 8 because he was telling about some people who 9 were improperly dealt with by the police. Under 10 the present system in New York City, those 11 people could never get a license. Under this 12 bill, if they applied for a license, they would 13 have a presumption and, therefore, they would 14 have an opportunity that they don't have now to 15 be able to possess -- to purchase and possess a 16 firearm. 17 And what I'm saying with this 18 bill is I'm not saying that everybody should 19 have a gun. I'm not saying that everybody 20 should confront other people. What I am saying 21 is, though, we should set up a rational process 22 throughout this state that deals with this issue 23 up front if a person has a criminal record or if 6304 1 a person has mental problems, and so forth, that 2 are desirable then they shouldn't have the 3 weapons, but if they don't, then we should 4 present a process that allows them to have that 5 weapon to protect themselves because that's what 6 we're talking about as far as random violence is 7 concerned. 8 SENATOR MONTGOMERY: All right. 9 Thank you, Senator. 10 Mr. President, just briefly on 11 the bill. 12 ACTING PRESIDENT KUHL: Senator 13 Montgomery on the bill. 14 SENATOR MONTGOMERY: This bill 15 is, I think -- my assumption is that it's 16 Senator Volker's attempt to address the issue of 17 random violence, and his way of addressing it is 18 making it much easier for a person like myself 19 or anyone in this room to go out and buy a 20 pistol. We just present ourselves and say we 21 want to buy a pistol and essentially it would be 22 presumed that I would be eligible or anybody 23 would be eligible, and the ultimate result of 6305 1 the continued explosion of availability of 2 weapons, concealed weapons as well as weapons 3 that are not so easily concealed, automatic, 4 semiautomatic, et cetera, essentially people 5 killing machines has been the number one source 6 of unnecessary death by violence in this 7 nation. 8 We have one of the highest murder 9 rates in the world, and I think that is in and 10 of itself enough reason for us to revisit - 11 reconsider how we view the possession of guns, 12 but despite all of that information, knowledge, 13 understanding about the relationship between the 14 murder rate, our murder rate in this nation and 15 the availability of these weapons, these killing 16 machines, we still continue to see legislatures, 17 including ours, and legislators, including 18 Senator Volker, come forth with attempts to make 19 it far easier to possess -- purchase and possess 20 these killing machines. 21 It is a very sad state of 22 political correctness that people view the fact 23 that we should -- we should have guns as a means 6306 1 of dealing with crime, politically correct, 2 that, in fact, the way that I view it is that 3 there are some people whose view of America and 4 whose view of dealing with each other in America 5 goes back to a time when any two men confronting 6 each other on a street had their guns on their 7 hips, and if those two men had an argument and 8 it had not been resolved up to that point, they 9 would just simply take a draw and the best man 10 -- the quickest draw would win. 11 That seems to be where we're 12 headed. That's where everybody wants this 13 nation to go, so that if we are going that far 14 back, why don't we just say everybody shall have 15 a gun, shall have a holster, the women included 16 -- Senator Hoffmann wants the women to have 17 some too. They didn't in those days but they 18 will now. Maybe they'll have pretty little neat 19 holsters with their guns, and when we meet each 20 other on the street and we have a -- I have an 21 argument with Senator Smith, I'll just pull out 22 my pistol and shoot her if I don't like how she 23 deals with me at that moment and we will resolve 6307 1 a lot of problems. Why don't we just go all the 2 way if that's where we're going, because that's 3 where this legislation points to. It does not 4 resolve the random crime. It does not help to 5 reduce crime in this state, in the City and it 6 certainly does not help to reduce crime, the 7 murder rate in this nation, for us to continue 8 along these lines, but if that's our vision of 9 America, let's take it all the way back. 10 Mr. President, I vote no. I 11 think this is very -- a very wrong message to be 12 giving young people and to be giving New York 13 people at this point in time, especially when 14 we're trying desperately to reduce the murder 15 rate in our nation and desperately to send a 16 message to Americans that we do not approve of 17 this kind of violence, using violence as a means 18 of resolving our issues. 19 This is wrong, and I am opposed 20 to it. I will always be opposed to it because I 21 think it's wrong, and I hope that my colleagues 22 will all vote no on this bill. 23 ACTING PRESIDENT KUHL: The 6308 1 Secretary will read the last section. 2 SENATOR DOLLINGER: Mr. 3 President. 4 ACTING PRESIDENT KUHL: Senator 5 Dollinger. 6 SENATOR DOLLINGER: Can I speak 7 on the bill, Mr. President? 8 ACTING PRESIDENT KUHL: The 9 debate is still open. The Secretary recognizes 10 Senator Dollinger on the bill. 11 SENATOR DOLLINGER: Mr. 12 President, this discussion about this bill and 13 what it really means has been wide ranging, 14 talking about constitutional rights and I guess 15 possible duals between members of this Senate, 16 but what I would like to do is just focus on 17 exactly what I see this bill doing and perhaps 18 trying to get away from the absolutes of this 19 discussion on the practicality of it. 20 This bill would amend a section 21 that allows the possession of a concealed 22 firearm. This is the provision, section (g), 23 which -- excuse me, section (f) which says that 6309 1 you can have and carry concealed firearms 2 without regard to employment or place of 3 possession. You can carry it anywhere concealed 4 by any person only on -- based on one condition, 5 one condition to get the license to be able to 6 do that, and that is when proper cause exists 7 for the issuance. That's the only restriction, 8 the only requirement that we put on carrying a 9 concealed pistol so that Senator Montgomery's 10 comments about running into someone who would 11 suddenly turn around and shoot someone, the only 12 thing that this bill affects is if that person 13 appears like me with a suit coat on, but what I 14 don't tell you is I have a concealed weapon 15 under my coat which I can settle our argument 16 with. 17 The concealment of a weapon in 18 this state requires that there be proper cause 19 demonstrated by the person who wants to conceal 20 it. That's what our law currently requires, and 21 under the current process -- and Senator Volker 22 could correct me if I'm wrong, but under the 23 current process, in order to carry that 6310 1 concealed weapon, the bearer of the concealed 2 weapon has to prove that proper cause exists. 3 The decisions of this case - 4 this state, my understanding is are replete with 5 a very broad reading of what proper cause is. 6 Threatened violence, the possibility of 7 violence, of living in an environment in which 8 there is significant violence, all of those 9 things would constitute proper cause for the 10 issuance of a consist -- a concealed pistol 11 permit. 12 It seems to me that what this 13 legislation does by presuming proper cause is, 14 it says you can carry a concealed weapon any 15 time you want without any restrictions. You get 16 a license for a pistol permit simply by asking 17 for it, because you will be presumed to have 18 proper cause for the possession of a concealed 19 weapon. 20 This exception swallows -- this 21 exception swallows the rule created in section 22 (f). It seems to me that this goes too far, 23 that what we will do is we will have everyone 6311 1 possessing a concealed pistol in this state. We 2 have chosen -- this Legislature has chosen not 3 to do that in the past, and we are not 4 eliminating the proper cause requirement. We 5 have chosen not to do it because we believe in 6 the proper use of pistols -- and I'm not one of 7 those who wants to take pistols away from 8 people, but in the proper use of a pistol, in 9 order to carry it concealed, you have to show 10 some cause to do that. If you create a license 11 which is presumed to qualify, you no longer need 12 the license, and it just seems to me that in 13 this day and age, requiring that proper cause be 14 shown by the bearer of the pistol before he or 15 she can carry it concealed is one of the 16 fixtures of our gun laws in this state which we 17 should not amend and should not change. 18 We could talk forever about the 19 Second Amendment, what it means and whether it 20 creates a right to carry this -- the mere fact 21 that this statute is on the books and has been 22 on the books for more than 50 years suggests to 23 me that no one has challenged this statute. We 6312 1 can restrict access to permits. We can -- we 2 can restrict access to pistols just as this 3 statute does. It would clearly survive 4 constitutional attack. 5 So there isn't an unfettered 6 right, in my judgment, as evidenced by this 7 statute, to bear a pistol, but what we do 8 require is before you carry one concealed in 9 your possession, you have to show proper cause 10 and the burden of proof is on you to show proper 11 cause for the issuance of that permit. We ought 12 to keep this in this statute. 13 ACTING PRESIDENT KUHL: The 14 Secretary will read the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect on the 1st day of 17 November. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 ACTING PRESIDENT KUHL: Senator 22 Waldon to explain his vote. 23 SENATOR WALDON: Thank you very 6313 1 much, Mr. President. 2 This is a place of spin masters. 3 We can put words together and create pictures. 4 We can put words together and create movements. 5 It is interesting that in this state we do not 6 presume if someone -- if someone wishes to fly a 7 plane that he can say or she can say "I just 8 want to fly a plane. I'm of good moral 9 character", and we permit them to fly the 10 plane. We do the same thing regarding 11 automobiles. When our children become of age 12 and wish to drive, they can't say, "Hey, Daddy, 13 I just want to presume that I'm able to drive 14 your car" and jump on the road without some 15 sanction from government. The same things 16 happens with motorboats. 17 The government in its wisdom 18 says, "You can't do these things cavalierly. 19 There has to be a check and balance so that the 20 greater society is protected from you, and you 21 are protected from yourself", and yet, in my 22 opinion, this bill will allow someone to say, 23 "I'm okay for carrying a deadly weapon" and 6314 1 that's sufficient. 2 I think that is wrong. I think 3 it's improper. I think it's stretching, but the 4 greatest stretch I heard here today was the spin 5 master of the Constitution says it's okay, so 6 people in the gallery will walk away and say, 7 "Gee, I didn't know that the Constitution 8 guaranteed that women could carry weapons if 9 they wish in their Gucci holsters or men can 10 carry in their Coach holsters, pistols." 11 I think that is dangerous, and I 12 know that some of you sometimes wonder what the 13 heck is Al Waldon talking about with some of the 14 things that I say when I speak of the creeping 15 to the right or the rapid movement to the right 16 or the invasions against and incursions against 17 that which has made this nation strong in terms 18 of our constitutional guarantees, the bastions, 19 the underpinning of this society are being 20 attacked at times in this chamber with this kind 21 of philosophical approach to what we do as a 22 government. I urge us to deny the presumption 23 and to assume that all of these years we have 6315 1 been right. 2 I vote in the negative on this. 3 ACTING PRESIDENT KUHL: Senator 4 Waldon in the negative. Announce the results. 5 THE SECRETARY: Those recorded in 6 the negative on Calendar 830 are Senators Abate, 7 Connor, Dollinger, Gold, Goodman, Kruger, 8 Leichter, Marchi, Markowitz, Mendez, Montgomery, 9 Nanula, Onorato, Oppenheimer, Paterson, 10 Santiago, Smith, Stavisky, Waldon, also Senator 11 Jones. Ayes 36, nays 20. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 The Chair recognizes Senator 15 Johnson. 16 SENATOR JOHNSON: Mr. President, 17 may we please return to reports of standing 18 committees. I believe there's a report from the 19 Finance Committee at the desk. 20 ACTING PRESIDENT KUHL: Senator 21 Johnson, there is a report of the Finance 22 Committee at the desk. We will return to 23 reports of standing committees. I'll ask the 6316 1 Secretary to read. 2 THE SECRETARY: Senator Stafford, 3 from the Committee on Finance, reports the 4 following nomination: Donald C. DeWitt, Esq., of 5 Albany, Commissioner of the Tax Appeals 6 Tribunal. 7 ACTING PRESIDENT KUHL: Chair 8 recognizes Senator Hoblock on the nomination. 9 SENATOR HOBLOCK: Thank you, Mr. 10 President. I rise - 11 ACTING PRESIDENT KUHL: Senator 12 Hoblock, excuse me just a minute. There's a lot 13 of noise in the chamber. Will you please have 14 the members take their seats, take the conversa 15 tions out of the chamber. 16 I think we're ready now, Senator 17 Hoblock. Excuse the interruption. 18 SENATOR HOBLOCK: Thank you, Mr. 19 President. 20 I rise in support and move the 21 nomination of Donald C. DeWitt as Commissioner 22 of the Tax Appeals Tribunal. 23 Don is extremely qualified and 6317 1 most deserving of this nomination. Don 2 graduated from law school and was admitted to 3 the bar in 1979 and spent several years in 4 private practice in the litigation area and then 5 went to work in 1982 for the New York State 6 Department of Equalization and Assessment as a 7 senior attorney. In 1990, Don moved to the New 8 York State Department of Taxation and Finance 9 where he has been a senior attorney on the 10 Department's litigation staff. 11 While he was practicing law and 12 serving his state, Don also did a great deal of 13 work for his community in a legal way. He 14 served in a pro bono status for the Legal Aid 15 Society of Northeastern New York and the Albany 16 County Bar Association. Don also has an 17 extensive reputation and background for service 18 to his country, having been a Marine and served 19 his country during the Vietnam war. 20 He's an individual who is 21 committed to his community and, as stated, he's 22 been committed to his state and his country. 23 I've got to know Don quite personally over the 6318 1 past several years and I've been extremely 2 impressed by his perseverance, his dedication, 3 his energy and his sense of responsibility, and 4 in moving the nomination of a person into a very 5 important position such as the Tax Appeal 6 Tribunal where an individual has to sit there in 7 judgment and weigh the various issues and 8 positions by the litigants, I think Don is 9 extremely qualified from a personal standpoint 10 because he is the father of 11 children ages 3 11 to 20, and I'm sure he's had to litigate a 12 number of disputes over the years. So I think 13 he's most deserving of this particular 14 position. 15 I'm extremely proud of Don and 16 his family, and I know we will be of him as he 17 continues with his work. He's here today with 18 his wife Mary Ann and, Mr. President, it gives 19 me a great deal of pleasure to move the 20 nomination of Donald C. DeWitt. 21 ACTING PRESIDENT KUHL: The 22 question is on the nom... excuse me. 23 Senator Farley, on the 6319 1 nomination. 2 SENATOR FARLEY: As somebody from 3 the Capital District, I'd like to rise to second 4 Senator Hoblock's nomination. It's my 5 understanding that Donald has 11 children. 6 SENATOR HOBLOCK: Yes. 7 SENATOR FARLEY: And anyone with 8 all those kids really needs the job, and I'm 9 going to vote with enthusiasm for him. He's an 10 excellent nominee, and I'm sure that Senator 11 Hoblock's recommendation is enough to make for a 12 fine appointment, and I applaud the Governor and 13 I'm going to vote aye. 14 ACTING PRESIDENT KUHL: The 15 question is on the nomination of Donald C. 16 DeWitt, of Albany, to become the Commissioner of 17 the Tax Appeals Tribunal. All those in favor of 18 the nomination, please signify by saying aye. 19 (Response of "Aye.") 20 Opposed nay. 21 (There was no response. ) 22 The nominee is confirmed. 23 We're very happy to be joined by 6320 1 the Commissioner, Donald C. DeWitt, his wife 2 Mary Ann, their two daughters who have been most 3 patient listening to what we've been doing here, 4 Katherine and Karen. Good luck in your new 5 job. Thank you for joining us. Godspeed. 6 (Applause) 7 Secretary will continue to read. 8 THE SECRETARY: Senator Stafford, 9 from the Committee on Finance, offers the 10 following nomination: Alexander Samuel Jess, of 11 Ilion, sheriff of Herkimer County. 12 ACTING PRESIDENT KUHL: Senator 13 Stafford. 14 SENATOR STAFFORD: It's a 15 pleasure, Mr. President, to move the nomination 16 of Alexander Samuel Jess. He has an excellent 17 background in law enforcement, in administration 18 and I'm sure he'll serve Herkimer County well. 19 ACTING PRESIDENT KUHL: The 20 question is on the nomination. Excuse me, 21 Senator Sears. 22 SENATOR SEARS: Thank you, Mr. 23 President. 6321 1 I'm happy to second and move the 2 nomination of Sam Jess to be sheriff of Herkimer 3 County. I don't know Sam Jess real well, but I 4 know of his background and his experience having 5 come up through the ranks as a deputy sheriff 6 and then being appointed as the undersheriff of 7 Herkimer County. 8 He has a long, long record of 9 achievements, and I'm sure that he will carry 10 out the duties of the new sheriff of Herkimer 11 County to the best of his ability, and I'm happy 12 to move that confirmation. 13 SENATOR SEWARD: Mr. President. 14 ACTING PRESIDENT KUHL: The Chair 15 recognizes Senator Seward on the nomination. 16 SENATOR SEWARD: Yes. I want to 17 join my colleague in congratulating the Governor 18 on the nomination of Sam Jess to be the new 19 sheriff of Herkimer County. He has a long 20 history of service to the people of Herkimer 21 County in an appointive capacity related to law 22 enforcement, most recently as undersheriff of 23 that county. 6322 1 I know he's going to do an 2 outstanding job as the new sheriff of Herkimer 3 County and I join -- I'm pleased to join in 4 seconding the nomination of Sam Jess to be 5 Herkimer County Sheriff. 6 ACTING PRESIDENT KUHL: The 7 question is on the nomination of Alexander 8 Samuel Jess to become sheriff of Herkimer 9 County. All those in favor of the nomination, 10 signify by saying aye. 11 (Response of "Aye.") 12 Opposed nay. 13 (There was no response.) 14 The sheriff's appointment is 15 confirmed. 16 Chair recognizes Senator Skelos. 17 SENATOR SKELOS: Mr. President, 18 would you please call up Calendar Number 339. 19 ACTING PRESIDENT KUHL: Secretary 20 will read the title of Number 339. 21 THE SECRETARY: On page 11, 22 Calendar Number 339, by Senator Padavan, Senate 23 Print 3089A, an act to amend the Education Law, 6323 1 in relation to the exclusion of illegal aliens 2 from attending post-secondary educational 3 institutions. 4 SENATOR PATERSON: Explanation. 5 ACTING PRESIDENT KUHL: Senator 6 Padavan, an explanation has been asked for by 7 Senator Leichter on Calendar Number 339. 8 SENATOR PADAVAN: Thank you, Mr. 9 President. 10 This bill would provide for the 11 exclusion of illegal aliens from attending our 12 State University and City University. 13 ACTING PRESIDENT KUHL: Senator 14 Paterson? Senator Leichter? Your choice. 15 SENATOR LEICHTER: O.K. Would 16 Senator Padavan yield? 17 ACTING PRESIDENT KUHL: Chair 18 recognizes Senator Leichter. 19 Senator Padavan, would you yield 20 to a question from Senator Leichter? The 21 Senator yields. 22 SENATOR LEICHTER: Senator, do 23 you have any data, information as to alleged 6324 1 number of illegal aliens that are attending 2 post-secondary educational institutions in the 3 state of New York? 4 SENATOR PADAVAN: Mr. President, 5 in response to the question that was raised, in 6 a recent report that we published just last 7 month dealing with many economic issues and 8 other related issues involving immigration, we 9 did compile significant data based on a variety 10 of sources that would answer Senator Leichter's 11 question. 12 If we go back to 1989, the City 13 University itself announced the fact that there 14 were some 2,000 illegal immigrants attending 15 City University. That's six years ago. Based 16 on other data that's been provided and made 17 available since, we estimate that between SUNY 18 and CUNY, there are over 4300 illegal immigrants 19 residing in those universities which, as you 20 know, is subsidized -- State University we 21 subsidize at approximately 11,000, a little more 22 than that, per pupil and City University we 23 subsidize a little over 7,000 per pupil. 6325 1 So we do have a pretty good idea 2 based on this information that's been made 3 available of the relative magnitude of the 4 number of students in our state and city system 5 that are in this country illegally. 6 SENATOR LEICHTER: Mr. President, 7 if the Senator would be so good as to continue 8 to yield. 9 ACTING PRESIDENT KUHL: Senator 10 Padavan, do you continue to yield? The Senator 11 continues to yield. 12 SENATOR LEICHTER: Senator, that 13 4300 figure is -- am I correct in understanding 14 that that is a guess or surmise on your part? 15 SENATOR PADAVAN: Well, Senator, 16 no, it's far more than that, I can assure you. 17 If we accept CUNY's own report which, as I 18 indicated, goes back six years and, as we know, 19 the illegal immigration problem has ballooned 20 for the last three, four, five years in the 21 aggregate, so their data -- their report would 22 obviously be the minimum threshold in terms of 23 numbers. 6326 1 No, it is not a guess. It is not 2 a surmise. It's a factually based statement and 3 I'll be glad to give you a copy of the report, 4 Senator, in which you can analyze the data which 5 is significant and, I'm sure, come to your own 6 conclusion. 7 But, Senator, whether it's 2,000, 8 3,000 or 4,000, the fact remains we have illegal 9 immigrants in our City and State University, 10 violating the laws of this country and, as we at 11 this point in time in the Legislature, grapple 12 with some very serious economic problems as they 13 relate to education, both elementary and second 14 ary and higher education, fighting to hold onto 15 tuition assistance programs, SEEK programs, HEOP 16 programs, which benefit not only citizens but 17 legal immigrants, people in this country 18 lawfully, trying to hold onto those resources 19 and those programs, it seems to me that it's 20 terribly wrong to reward people who have come 21 to this country illegally by giving them a 22 subsidized education. In addition, by the way, 23 many of these illegal immigrants have applied 6327 1 and received TAP and are benefiting from SEEK 2 and are benefiting from HEOP. So, in addition 3 to the subsidy we provide within the State and 4 City University, they are benefiting from other 5 programs as well. 6 SENATOR LEICHTER: Senator 7 Padavan, if you would be good enough to continue 8 to yield. Other than - 9 ACTING PRESIDENT KUHL: Senator 10 Padavan, do you continue to yield? 11 SENATOR PADAVAN: Yes. 12 ACTING PRESIDENT KUHL: The 13 Senator continues to yield. 14 SENATOR LEICHTER: Senator, other 15 than the report that you prepared, is there any 16 information or any independent data about 17 illegal immigrants receiving TAP awards? 18 SENATOR PADAVAN: Yes. As I 19 indicated to you before, we have information 20 from City University itself. I might also add 21 that the - 22 SENATOR LEICHTER: I'm sorry. 23 Referring to TAP now. 6328 1 SENATOR PADAVAN: Yes. We have 2 indications, statistical data in terms of the 3 number of students who are in this category, 4 this 4,000 figure, who are applying for TAP, 5 O.K.? I can't give you name and address. 6 The only requirement that is 7 currently in effect is that they have a place of 8 residence, and I might add, to add insult to 9 injury, they are paying resident tuition. 10 They're not even paying non-resident tuition, so 11 you have someone in this country illegally 12 paying resident tuition. You know, non-resident 13 tuition is approximately twice as much. To me, 14 that's also an irony that I find hard to 15 accept. 16 SENATOR LEICHTER: Mr. President, 17 again - 18 ACTING PRESIDENT KUHL: Senator 19 Padavan, do you continue to yield? 20 SENATOR LEICHTER: Senator 21 Padavan, right now, if somebody applies to State 22 University and identifies themselves as an 23 illegal immigrant, undocumented alien, says, 6329 1 "I'm in this country illegally," would the 2 University accept them? 3 SENATOR PADAVAN: Yes. 4 SENATOR LEICHTER: You -- you've 5 checked with the University? 6 SENATOR PADAVAN: Yes. 7 SENATOR LEICHTER: And you've 8 been told - 9 SENATOR PADAVAN: I've been told 10 that - 11 SENATOR LEICHTER: -- that 12 someone who is here illegally - 13 SENATOR PADAVAN: First, your 14 question is somewhat academic because they don't 15 make that inquiry, but if they did, if they did, 16 based on current policies that prevail, they 17 would currently enroll that student. 18 SENATOR LEICHTER: Mr. President, 19 on the bill, please. 20 ACTING PRESIDENT KUHL: Senator 21 Leichter, on the bill. 22 SENATOR LEICHTER: Senator 23 Padavan, I have no problem with the basic notion 6330 1 with the problem that somebody who is in this 2 country illegally should not be entitled to 3 attend a state-supported institution. I have no 4 problem with that and, frankly, I'm surprised 5 and, while I've no reason to doubt your answer, 6 I have a certain amount of skepticism that when 7 you say that if somebody informed the University 8 "I'm here illegally" that the University would 9 say, "You're still entitled to be admitted," 10 because I would think that the University would 11 respond and say that you must have a legal 12 status in this country to be admitted to a state 13 university. 14 The problem I have with this 15 bill, Senator, is really two-fold. First of 16 all, I think that you create an administrative 17 nightmare that is far worse than any problem 18 that we have and, while you gave a figure of 19 4300 and so on, which is -- in itself is very 20 small when -- when we have over what? -- the 21 total enrollment in our public educational 22 institutions is well over 200,000, maybe more 23 than that, but I suspect that far fewer 6331 1 undocumented aliens than that have actually 2 applied and been admitted to attendance at a 3 state university. 4 Now, you require an 5 administrative determination which means that a 6 lot of resources, a lot of effort, are going to 7 be required to find out whether people are here 8 legally or not, and it's not that simple a 9 determination in every case. Somebody may 10 determine that they're here legally and, in 11 fact, they may be here legally and they may not 12 have papers at the moment that can establish - 13 that can prove it. 14 It's not always a simple thing, 15 and I speak, by the way, because I came to this 16 country legally. I was really one of the very, 17 very fortunate people who escaped Hitler 18 Europe. I came here on a visa, and so on, but I 19 know of instances where I could not establish 20 immediately my -- my citizenship. 21 I remember once coming from 22 Montreal, it was not that many years ago. I was 23 already a Senator here and going from Canada, 6332 1 gone up to Montreal for dinner, came back at 2 night and was asked at the immigration point at 3 the border, Where were you born? I said, Vienna, 4 Austria. Oh. Are you a citizen? Yes. Can you 5 establish it? Well, at that moment I thought 6 well, wait a second, what do I have that says 7 I'm a citizen, and then I pulled out my Senate 8 card, identification card, and he looked at it, 9 didn't think much of my being in the Senate, but 10 didn't -- that wasn't yet grounds for keeping 11 somebody out of this country. It may soon be, 12 but, in any event, determined I must be a 13 citizen if I -- if I'm a member of the Senate. 14 So that when you say O.K., 15 they've got -- somebody has really got to 16 establish their status, sometimes there are 17 arguments. Somebody will say, "I'm here 18 legally." There may be a question and now the 19 University has to make that determination. I 20 assure you that the result will be two-fold. 21 One is a great administrative burden on the 22 University, SUNY, CUNY, the community colleges, 23 and secondly, that there will be people who, in 6333 1 fact, are here legally, they are documented 2 aliens but may not be at a particular point able 3 to establish it. 4 And that leads me to the second 5 problem I have with this bill. We know and 6 understand there's a certain degree of illegal 7 immigration into this country. There obviously 8 are population pressures. People seek to come 9 to this country. We know our borders are not 10 secure. They're large borders, difficult to 11 keep out people, and there are illegal 12 immigrants here, but it's a federal matter to 13 determine immigration, and to thrust this burden 14 if you will, on the states -- and it is a burden 15 already, but to do it in this particular regard, 16 I submit to you, makes no sense whatsoever. 17 It's a federal matter. It ought 18 to be dealt with by the federal government, and 19 this sort of reminds me of a bill that John Daly 20 used to present every year, and that was that he 21 wanted the State University to determine whether 22 somebody had registered for the draft, and we 23 pointed out there's a federal function. Why 6334 1 should we use our state institutions as a means 2 of enforcing federal laws? That's up to the 3 federal government. 4 Finally, I'm troubled really by 5 what underlies this bill, Senator Padavan, 6 because I don't think that rising costs at the 7 State University are due because we've had such 8 a large influx of illegal immigrants at state 9 universities or other publicly funded 10 institutions of higher education. Not at all. 11 This is part of what, unfortunately, is becoming 12 a scapegoating of immigrants. Our problems are 13 due to illegal immigrants. 14 It's not true. It's scapegoat 15 ing, and while I know that's not something that 16 you would engage in, and so on, but I think that 17 element is unfortunately very much present at 18 this time in our society. I happen to agree 19 with the mayor of the city of New York when he 20 talked about the fact that what really has been 21 wonderful about the strength of this country are 22 the immigrants who come here, and all of us at 23 one time, there isn't anybody here as far as I 6335 1 know who can say, Well, I or my ancestors, we 2 were not immigrants. 3 Reminds me of this wonderful 4 story about FDR when he greeted the Daughters of 5 the American Revolution shortly after they'd 6 refused to let Marion Anderson sing at the hall 7 that they had in Washington, and he greeted them 8 as they came in and said, Welcome, fellow 9 immigrants. 10 We're all immigrants at one time, 11 and I'm sure or believe at least that most of 12 our ancestors probably came here legally, but to 13 set up this notion that our social problems are 14 caused by illegal immigrants, that the cost at 15 the State University is so great because of 16 illegal immigrants, that, I think, partakes of 17 scapegoating. 18 I don't think there is a 19 problem. I don't think there's a difficulty. I 20 don't mind saying as public policy that we 21 should not pay for people who are clearly 22 identified, who identify themselves as illegal 23 immigrants. But to set up this, if you will, a 6336 1 police -- policing administrative function, put 2 that burden on the state institution, I think 3 it's unjustified, unnecessary, and I think it 4 takes away something that makes this state - 5 makes this country great, and that's the way 6 that we deal with people who live in this 7 country and live in this state. I think this 8 bill is a mistake. 9 SENATOR PADAVAN: Mr. President. 10 ACTING PRESIDENT KUHL: Chair 11 recognizes Senator Paterson. 12 SENATOR PADAVAN: Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Padavan, why do you rise? I have a list going, 15 Senator Padavan. 16 SENATOR PADAVAN: I'd like to 17 respond to certain questions that I felt that 18 Senator Leichter raised. However, if you feel 19 you should preclude that - 20 ACTING PRESIDENT KUHL: We have 21 five speakers ahead of you, Senator Padavan: 22 Senator Paterson, Senator Stavisky, Senator 23 Waldon - 6337 1 SENATOR PADAVAN: I'd like to 2 respond to the comments, if I may. 3 ACTING PRESIDENT KUHL: Would you 4 like to ask Senator Leichter to yield to a 5 question? If you wish to do that, Senator 6 Padavan, that's the only way we could take you 7 out of order. 8 SENATOR PADAVAN: If you wish me 9 to do it that way - 10 ACTING PRESIDENT KUHL: Senator 11 Leichter, would you yield to a question by 12 Senator Padavan? 13 SENATOR LEICHTER: Yes. I was 14 going to say, am I not right, Senator Padavan? 15 ACTING PRESIDENT KUHL: Senator 16 Padavan to respond to Senator Leichter. 17 SENATOR PADAVAN: Senator -- and, 18 Senator, I was about to say that there's much of 19 what you said that I agree with, and let me 20 start off with the things that I agree with you 21 on. 22 First, I believe largely the 23 immigration issue is federal. On May 6th, the 6338 1 President, in his address to the nation -- radio 2 address -- I'll just read one paragraph from it, 3 stated: Our immigration policy is focused in 4 four areas: First, strengthening border 5 control; secondly, protecting American jobs by 6 enforcing the labor laws against illegal 7 immigrants in the workplace; thirdly, deporting 8 criminal and deportable aliens; fourth, giving 9 assistance to states who need it and deny 10 illegal aliens benefits for public services or 11 welfare. 12 It's that fourth one that I'd 13 like for you to consider. The President of the 14 United States, earlier this month, in a national 15 address, highlights the simple fact that we 16 should not be providing public services to 17 illegal immigrants. 18 He bases much of what he says on 19 a report rendered by his Commissioner, 20 Presidential Commission on Immigration chaired 21 by a brilliant woman, Barbara Jordan. If you 22 had had the opportunity of reading her report, 23 the Commission's report to the Congress, in the 6339 1 fall they make a significant point that states: 2 Certain regions -- of which we are near the top 3 of the list, perhaps second after California - 4 are providing services to illegal immigrants in 5 such a magnitude that it is undermining our 6 ability to provide services to legal immigrants 7 as well as to the general citizenry. 8 This report is quite 9 comprehensive. It deals with a whole bunch of 10 other issues, including the one we're dealing 11 with, education. 12 Now, all of what you said about 13 immigrants -- and we are a nation of immigrants 14 unless we're native Americans or Mexican 15 Americans -- we came here as you said yourself, 16 or our forebears came here in the main legally. 17 In the city of New York a significant percentage 18 of our City University population are legal 19 immigrants, non-citizens who are here on student 20 visas and a variety of other categories, of 21 which I think there are 13, attending our City 22 University, community colleges, and so on, 23 lawfully. They followed the rules, Senator, and 6340 1 we welcome them because they do provide an 2 enrichment, a dimension that is beneficial. 3 However, we do have thousands, 4 and I cited and you questioned me on my sources 5 and one of them was the City University itself, 6 and that's six years ago, we know the problem 7 has gotten far worse in terms of the number and 8 if we use 4,000 as a figure and we look at the 9 subsidy, we're talking about $28 million. The 10 mayor is looking for that and City University is 11 looking for that kind of money right now as we 12 grapple with their fiscal problems. 13 So when you say the benefits are 14 negligible and the problem is inconsequential, I 15 have to tell you, with all due respect, you're 16 wrong. 17 Now, with regard to the 18 administrative burden, the other point you made, 19 currently we have this in written form from CUNY 20 and SUNY: Right now a student is required to 21 indicate very clearly as to whether they're 22 resident or non-resident, and the reason is 23 because the tuition is significantly different. 6341 1 It would not be any greater administrative 2 burden for that individual on one more line on 3 that form to indicate their immigration status 4 if they're non-citizen. Very simple thing to 5 do, no heavy burden, no outrageous cost, part of 6 the admission process. 7 Now, with two youngsters in 8 college, and I know that you have had, you know, 9 you had to fill out forms before you were 10 admitted. This would not add any great 11 dimension to that process, and it would save, I 12 think, a great deal of money to both SUNY and 13 CUNY. 14 SENATOR LEICHTER: Mr. President. 15 ACTING PRESIDENT KUHL: Senator 16 Leichter, why do you rise? 17 SENATOR LEICHTER: If you would 18 yield to just one question, Senator Padavan. 19 ACTING PRESIDENT KUHL: Senator 20 Padavan, do you yield to Senator Leichter? 21 Senator yields. 22 SENATOR LEICHTER: Should your 23 bill become law in this form, would it comply 6342 1 with the requirement of this bill if all that 2 the University did on the form, on the admission 3 form, were to ask, Are you legally in the United 4 States, however they would phrase it, but with 5 that purport, and have the applicant either 6 check yes or no; or do you envisage that the 7 University has to make some independent investi 8 gation or require proof if you have a name such 9 as Lopez or Mendez, would you have to show that 10 you didn't come here illegally and that you now 11 have a legal status? 12 SENATOR PADAVAN: As you know, 13 Senator, to answer your question fully -- it's a 14 good one. If you are applying for employment, 15 under current law, you must demonstrate to your 16 employer that you're in this country legally. 17 You cite a visa number, whatever is appropriate 18 in your case, green card number, so on. That 19 would be applicable here. 20 Beyond that, obviously if that 21 document is fraudulent or whatever, that becomes 22 an INS issue, but right now that is not being 23 asked for, and so we have a problem. 6343 1 ACTING PRESIDENT KUHL: Chair 2 recognizes Senator Paterson. 3 SENATOR PATERSON: Thank you, Mr. 4 President. 5 If permissible that Senator 6 Padavan would yield for a couple of questions. 7 ACTING PRESIDENT KUHL: Senator 8 Padavan, do you yield to Senator Paterson? 9 SENATOR PADAVAN: Yes. 10 ACTING PRESIDENT KUHL: Senator 11 yields. 12 SENATOR PATERSON: What I would 13 like you to tell me, Senator, is after the 14 application is filled out and say we put this 15 third category on, resident, non-resident, 16 immigrant or legally permanent resident, we have 17 13 categories of legal permanent residents and 18 31 different types. 19 The individual fills out that 20 they are a legal immigrant, but there's reason 21 to believe that they are not. How is that 22 investigated? 23 SENATOR PADAVAN: I'm not sure. 6344 1 Just take the last part of the question. 2 SENATOR PATERSON: How do you 3 find out that a person is not a legal resident, 4 not a legal immigrant? 5 SENATOR PADAVAN: How did you 6 find out? Well, obviously, City University, 7 employers, social service agencies, and so on, 8 are not investigatory bodies. If they have such 9 an indication, they would refer the matter to 10 INS. 11 SENATOR PATERSON: Mr. President, 12 if Senator Padavan would yield to another 13 question? What would give us the indication 14 that we would have to investigate? 15 SENATOR PADAVAN: That's a 16 question I can't answer for you. Whatever -- if 17 -- if, in the admissions process there is in 18 the minds of the admissions office some 19 indication that the document is fraudulent, 20 there is a notation on it in any category, then 21 an appropriate referral would be made. 22 SENATOR PATERSON: Mr. President, 23 that's exactly why many of us so strongly oppose 6345 1 this bill. At the point that there's an 2 indication, we might have a problem being 3 assured of what the proper investigation 4 procedure would be, but what brings us to the 5 indication that a person may be an illegal 6 immigrant? 7 I guess if you worked at Hostos 8 College, where the large percentage of the 9 students are Dominican, it might be because they 10 speak Spanish or because they look like they are 11 not naturalized citizens to the eye of the 12 beholder or perhaps their names, as Senator 13 Leichter pointed out, indicate that there's at 14 least a chance that they are not currently 15 citizens of this country. They have an accent, 16 that could be an indication, and the problem 17 that I have with it, Senator Padavan, is that it 18 opens the door for abuse, and so in an attempt 19 to -- to catch some, we are stigmatizing the 20 many. 21 Now, earlier in the conversation 22 about the licensing of weapons, Senator Hoffmann 23 raised the issue of individuals who just want to 6346 1 apply for guns who are being stigmatized by 2 clerks, so I certainly think that in just the 3 same way that we now have individuals who are 4 not employees of the Immigration and Naturali 5 zation Service, they are not professionals in 6 this field, they are not members of an 7 investigating body, but they must -- may just 8 decide for some reason that they think that this 9 person is answering the questions incorrectly 10 and may be an illegal immigrant; and my question 11 to you, Senator Padavan, is the cost of 12 stigmatizing the many worth catching the few? 13 SENATOR PADAVAN: First, I 14 strongly disagree with you on your contention 15 that such a process would stigmatize anyone. I 16 think it's an affront to those people, those 17 youngsters who are in our city and state 18 legally, non-citizens attending our universities 19 to have someone come in illegally and enjoy the 20 same benefits. There's the stigmatizing if you 21 want to have one. 22 Another fact remains, Senator, 23 admissions officers do check very carefully the 6347 1 issue of residency and, as I outlined in my 2 response to Senator Leichter, because it has 3 direct bearing on the tuition to be paid and 4 they do that as a matter of routine, so, 5 therefore, you could say, are they stigmatizing 6 people who are non-New York State residents, 7 which would be absurd. 8 SENATOR PATERSON: Mr. 9 President. 10 SENATOR PADAVAN: Therefore, 11 Senator, in response to your question, I do not 12 agree with your underlying premise and, 13 therefore, my answer to your question is no. 14 ACTING PRESIDENT KUHL: Senator 15 Paterson. 16 SENATOR PATERSON: Senator 17 Padavan, I don't want you to use your conclusion 18 as a basis for the argument because no one in 19 this chamber is disagreeing with your 20 conclusion. All of us are affronted by the fact 21 that people who would come into this country 22 illegally, have not gone through our process or 23 our system and are now using our facilities 6348 1 probably in the way of American citizens or 2 legal residents who more rightfully have a right 3 to those services and we all are affronted by 4 that, but that's not the answer to my question. 5 My question is, how do you 6 protect the legal permanent residents who are 7 here and the citizens who may be stigmatized by 8 the process, and you're telling me that there's 9 no stigmatization. 10 I guess it's clear that you would 11 think that there's no stigmatization because you 12 don't have in this bill any due process for the 13 wrongly accused. You don't have anything that 14 indicates that we will provide a due process for 15 anyone who is now challenged at that particular 16 point, but I would want you to know, Senator, 17 that at our borders right here in New York State 18 that people are challenged every day just in the 19 same way Senator Leichter said that he was 20 challenged when he was riding back on a train 21 from Montreal. 22 It's a real problem, and we 23 accepted it when it was raised earlier today 6349 1 that people who were going to apply for guns 2 were harassed by clerks, and we have all kinds 3 of documented evidence from the Puerto Rican 4 Legal Defense Association, from immigration 5 organizations, from a number of groups, that 6 this stigmatization does occur, and what I'm 7 saying is, Senator Padavan, I have to believe 8 that you recognize that it does occur. 9 The question I'm asking is, how 10 do you address it in this legislation? 11 SENATOR PADAVAN: I don't accept 12 that it occurs, and I'll give you an analogy 13 possibly that will rationalize when I respond. 14 Two people are applying for a job, both 15 non-citizens. One provides information that 16 shows he's in this country legally. The other 17 does not in the mind of the potential employer, 18 and a referral is made. That happens to be law 19 today. 20 And why is it law? Number one is 21 to protect people in this country legally in 22 terms of gainful employment. It's also to 23 discourage the employment of illegal immigrants 6350 1 who not only take jobs away from others, but 2 also can be manipulated in the workplace. 3 Now, is there stigma... is that 4 person who was referred to in the second 5 instance being stigmatized? The answer is no. 6 They both might have, to use your phrase, an 7 access, but the fact remains the law is very 8 clear there. One is legally entitled to 9 employment and the other is not. 10 We wish to make that applicable 11 to City and State University. Therefore, your 12 question about stigmatizing people is not 13 relevant, in my mind. 14 ACTING PRESIDENT KUHL: Senator 15 Paterson, you have the floor. 16 SENATOR PATERSON: If Senator 17 Padavan would continue to yield. 18 ACTING PRESIDENT KUHL: Senator 19 Padavan, do you continue to yield? 20 SENATOR PADAVAN: Yes. 21 ACTING PRESIDENT KUHL: Senator 22 continues to yield. 23 SENATOR PATERSON: Senator 6351 1 Padavan, you first indicated that there are a 2 number of people who have been victimized by 3 that process who are walking, talking proof that 4 it does happen. Many of them are in this 5 chamber right now and would probably like to 6 tell you their stories; but my question is, 7 isn't it true if we -- if your law is passed 8 that we are going to apply this to students who 9 are already enrolled - 10 SENATOR PADAVAN: Yes. 11 SENATOR PATERSON: So then my 12 question is how are we going to check their 13 immigration status? 14 SENATOR PADAVAN: The very same 15 way that the bill outlines, Senator. They would 16 be required to provide indications that they are 17 in this country lawfully, student visas and a 18 green card. 19 SENATOR PATERSON: All right. 20 Thank you, Senator Padavan. 21 On the bill, Mr. President. I'm 22 really just afraid of the kinds of situations 23 that occurred in The Great Escape where they 6352 1 walked to the train and just asked people to 2 show their papers. I hope we would never get to 3 that point of view, even though Senator Padavan 4 raises an issue that everyone in this chamber is 5 in agreement with, that we do have a 6 circumstance where there are people who are 7 illegally using services in this country and 8 probably obfuscating the right of Americans and 9 legal permanent residents to use those 10 services. However, with the number of 11 situations that have occurred where there has 12 been, although Senator Padavan does not believe 13 that it occurs, harassment of individuals who 14 happen to, for some reason, arouse in others 15 the suspicion that they may not be legal 16 residents, I really think that this bill is 17 merited, but needs more protections and the 18 protection that I would suggest at least would 19 be a due process opportunity for those who have 20 been accused. 21 ACTING PRESIDENT KUHL: Senator 22 Cook, why do you rise? 23 SENATOR COOK: Mr. President, if 6353 1 I might, the regular meeting of the Education 2 Committee is about to convene in Room 124. 3 ACTING PRESIDENT KUHL: There 4 will be an immediate meeting of the Senate 5 Education Committee in Room 124. Immediate 6 meeting of the Senate Education Committee in 7 Room 124. 8 Senator Stavisky, why do you 9 rise? 10 SENATOR STAVISKY: I ask whether 11 I would be the next name on the list. 12 ACTING PRESIDENT KUHL: Senator 13 Waldon had indicated he wanted to speak next 14 and, Senator Stavisky, you are next after him. 15 SENATOR STAVISKY: Thank you. 16 ACTING PRESIDENT KUHL: Chair 17 recognizes Senator Waldon. 18 SENATOR WALDON: Thank you very 19 much, Mr. President. 20 Mr. President, if Senator Padavan 21 would yield to a question or two. 22 ACTING PRESIDENT KUHL: Senator 23 Padavan, do you yield to Senator Waldon? 6354 1 SENATOR PADAVAN: Yes. 2 ACTING PRESIDENT KUHL: Senator 3 yields. 4 SENATOR WALDON: Thank you very 5 much, Senator. Senator, I am looking for 6 edification with respect to the process to be 7 implemented if this were to become law. Let me 8 give you the hypothetical and then, if you will, 9 you could explain to me what happens. 10 Someone comes to Baruch College, 11 the CUNY system, makes application to be 12 admitted. The interviewer believes that the 13 person may be an illegal alien and, therefore, 14 wishes to report it. Who does that interviewer 15 report this illegal alien suspicion to? 16 SENATOR PADAVAN: First, Senator, 17 if the applicant provides valid documentation - 18 my youngsters, I recall, in helping them fill 19 out their applications, there was a block said, 20 Are you a citizen? If you're a non-citizen, 21 what is your immigration status? Both of them 22 are in private colleges, but the same would 23 apply. 6355 1 So as an example, the one I gave 2 Senator Paterson, if they were here on a student 3 visa, they would put that information down on 4 that line and that would be the end of it. 5 However, if information was not provided or 6 there was some problem with regard to it, the 7 bill specifically tells you in paragraph 3, page 8 2, the process that the admissions officer would 9 follow in terms of reporting such a situation to 10 certain individuals, including the United States 11 Immigration and Naturalization Service. 12 SENATOR WALDON: If the Senator 13 would continue, Mr. President. 14 SENATOR PADAVAN: Yes. 15 SENATOR WALDON: If the Senator 16 would continue to yield. 17 ACTING PRESIDENT KUHL: Senator 18 Padavan, do you continue to yield? 19 SENATOR PADAVAN: Yes. 20 ACTING PRESIDENT KUHL: The 21 Senator continues to yield. 22 SENATOR WALDON: The requirement 23 of making those reports, is there any money 6356 1 built into this bill to cover that, to defray 2 the cost? 3 SENATOR PADAVAN: There's no 4 money built into the bill for any part of it 5 because, in my view, if properly implemented, 6 based on the data that's been made available to 7 us which, as I indicated to others I'll be happy 8 to share with you in our report, there would be 9 huge savings to both the City and State 10 University. 11 SENATOR WALDON: I -- Mr. 12 President, if I may continue, if the Senator 13 would - 14 ACTING PRESIDENT KUHL: Senator 15 Padavan, do you continue to yield? 16 SENATOR PADAVAN: Yes. 17 ACTING PRESIDENT KUHL: Senator 18 continues to yield. 19 SENATOR WALDON: Senator, I'm not 20 attempting to be convoluted at all, I'm just 21 trying to get some information. 22 SENATOR PADAVAN: I thought I 23 answered. 6357 1 SENATOR WALDON: I simply am 2 asking -- perhaps I -- well, let's create some 3 body with a hypothetical name. I have someone 4 who wants to come into Baruch College of City 5 University. They do not show me to my 6 satisfaction that they are a student who should 7 be admitted because of proper documentation. I 8 suspect, because of their language and their 9 color, that they are not a citizen of the United 10 States. I want to report it to the proper 11 authorities. 12 I ask if there is any money 13 provided here for that, not is there any money 14 saved to the CUNY and SUNY system, but is there 15 any money built into this to defray the cost? 16 SENATOR PADAVAN: Senator, let me 17 answer it. Your comment about the language and 18 color, I take strong exception to, very much 19 so. If you look at the enrollment at our City 20 and State University today, a significant 21 percent are people of color and people who are 22 foreign born where English is not their native 23 language, and they provide a high level of 6358 1 enrichment to that University. So let's, if you 2 will take that part out of your question, but 3 now let me answer it. 4 There is no money in the bill to 5 provide a referral in an instance where 6 information has not been provided relevant to 7 immigration status that would meet the 8 requirement. The answer is no. 9 SENATOR WALDON: Thank you very 10 much, Mr. -- Senator. 11 Mr. President, if I may on the 12 bill. 13 ACTING PRESIDENT KUHL: Senator 14 Waldon, on the bill. 15 SENATOR WALDON: Thank you very 16 kindly, Mr. President. 17 You have -- the situation that I 18 foresee because of the many numbers of people of 19 color who speak languages not necessarily in 20 sync' with the language of this land, who may be 21 illegal aliens, are the ones who I think will 22 perhaps be stigmatized, as Senator Paterson 23 characterized, in this process and I think 6359 1 that's a danger, and I think that's being very 2 honest to say, as I see it, as I view the world, 3 as I understand the racism that's practiced in 4 this country and in this state and certainly in 5 the city of New York, that these are the people 6 who will become the brunt of this kind of 7 policy. 8 I have said here before in this 9 chamber and will say again, I'm sure, if God 10 allows me to live long enough, that there's a 11 lady who sits in the harbor in New York City and 12 she has a tablet under her arm, and on that 13 tablet is inscribed words which sound something 14 like "Send me your poor, your tired, your 15 troubled masses yearning to breathe free." 16 I think this approach, this 17 attitude, this posture is in sync' with all of 18 the things that I dislike about what we're 19 trying to do and where we're going as a nation. 20 I oppose it. I think this doesn't help anyone. 21 I think this nation should have an open arms 22 policy and find mechanisms that would allow 23 people to be educated so that they can be 6360 1 productive citizens and bring the riches of 2 their culture and their background and their 3 intelligence and allow all of us to benefit from 4 it. 5 I will have to vote in the no on 6 this, and I thank you very kindly. 7 SENATOR PADAVAN: Will Senator 8 Waldon yield to a question? 9 ACTING PRESIDENT KUHL: Senator 10 Waldon, do you yield? Senator yields. 11 SENATOR PADAVAN: Senator, are 12 you familiar with the President's Commission on 13 Immigration chaired by Barbara Jordan? 14 SENATOR WALDON: I am somewhat 15 familiar. I'm not cognizant enough to speak for 16 it. 17 SENATOR PADAVAN: Do you know who 18 Barbara Jordan is? 19 SENATOR WALDON: I absolutely 20 know who Barbara Jordan is. I served in the 21 Congress -- she was not there, but her history, 22 her reputation in the Congress was replete in 23 every feature. I had occasion to meet Barbara 6361 1 Jordan. She is a great lady, a distinguished 2 Texan, and one of the icons of the Congress of 3 the United States. 4 SENATOR PADAVAN: I agree fully. 5 Now, here is the gist of the question. In her 6 report, she states, "The Commission recommends 7 that illegal aliens should not be eligible for 8 any publicly funded service or assistance except 9 those made on an emergency basis." This lady 10 who you very well described, in her capacity as 11 chairman of that commission, makes that state 12 ment. Do you think it's a valid one? Do you 13 think it's appropriate? Do you think it makes 14 sense? 15 SENATOR WALDON: Mr. President, 16 if I may respond. 17 Barbara Jordan has the right to 18 make any statement that she wishes. She's 19 sufficiently intelligent to analyze situations 20 and come to a conclusion and to share those 21 conclusions with whomever. I do not necessarily 22 adopt her conclusions. I respect her right to 23 make them. I respect her right to publish them, 6362 1 but I do not profess to march to the same 2 drummer that she does. 3 I have a wife who has a genius 4 level I.Q., and is certainly far more 5 intelligent than I, and I don't even listen to 6 what she says all of the time; so I respectfully 7 submit that it is right for Miss Jordan to say 8 what she said, but I am an independent human 9 being, a free thinker, and I think for myself. 10 Thank you very much, Mr. 11 President. 12 ACTING PRESIDENT KUHL: The Chair 13 recognizes Senator Stavisky. 14 SENATOR STAVISKY: Mr. President, 15 we have had legislation proposed in this house 16 that would require as part of the duties of 17 citizenship the teaching of citizenship to 18 provide students at New York State institutions 19 with instruction in the United States Consti 20 tution. Sometimes that instruction is needed in 21 other places. Sometimes even we who serve in 22 government have to be reminded that, under the 23 federal system, we do not do everything, neither 6363 1 does the federal -- the United States 2 government, and neither do the municipalities of 3 this state. 4 We are talking about a provision 5 of the United States Constitution and, when I 6 last looked at that Constitution, it had not 7 been amended to give the state of New York and 8 the educational institutions of the state of New 9 York the responsibility of implementing what the 10 United States government is ill-prepared to 11 implement itself. 12 You want to have implementation 13 along these lines? That's not for the state of 14 New York or for any educational institution to 15 do and to absorb the cost. Get the Immigration 16 and Naturalization Service to do its job. 17 To quote a President of the 18 United States, his name is Bill Clinton, Neither 19 Bill Clinton nor George Bush nor Ronald Reagan 20 nor any of their predecessors provided money or 21 support for the kind of intensive analysis and 22 scrutiny that this legislation proposes to do. 23 Educational institutions are in 6364 1 the business of educating. You want them to do 2 more? Make it within the jurisdiction of what 3 the New York State Constitution says that we 4 shall do or else amend the federal Constitution 5 and the federal law to make it our 6 responsibility. 7 I see no effort. I've seen no 8 money, and I still see at the airports cases 9 that come to our attention every month of the 10 year where people who can afford to have an 11 airline ticket pass through the authorities, 12 United States government authorities, and they 13 say, We are here on political asylum. 14 What kind of scrutiny is that? 15 You're on political asylum. You're asked to 16 answer a question or two. You're let through 17 the gates and they're never found again. Now, 18 if these people are here illegally, that is the 19 responsibility of the United States government 20 and not the educational institutions in the 21 post-secondary field that happen to be public 22 educational institutions. 23 If we're looking to catch people 6365 1 who shouldn't be attending our schools, what 2 about kindergarten? What about elementary 3 school? What about high school? Aren't these 4 also expenses borne by the taxpayers of New York 5 State? I am not proposing that we take that 6 route, but there is something inconsistent in 7 beginning with higher education when the 8 individual may have been here illegally 9 throughout the educational system prior to 10 higher education instruction. 11 I think we are better served as a 12 nation and as a state by having people educated 13 so that they will be law-abiding, hopefully 14 law-abiding citizens of this state and nation. 15 I don't ever want to see us adopt a policy 16 where, because of the response of a teen-ager 16 17 or 17 years of age, that teen-ager may have 18 fingered the parents and caused the parents to 19 be evicted from the United States. I think that 20 would be a tragedy, and it is a tragedy that 21 other societies have encouraged and permitted to 22 happen, and I think it was wrong. 23 We have had cases where, under 6366 1 totalitarian systems, and I am not suggesting 2 that this legislation in any way parallels that, 3 but I know that under totalitarian systems, 4 children would be encouraged to let the 5 authorities know about illegal actions of their 6 parents, and I think that was reprehensible 7 whether practiced in Germany or practiced in the 8 Soviet Union or practiced anywhere else. 9 Finally, why do we single out the 10 public higher educational institutions? TAP is 11 available to any student, public or non-public, 12 and that is paid for by taxpayers of New York 13 State. Why have we singled out the public 14 higher educational institutions? Why is your 15 bill silent? I'm not asking you to yield on 16 this. Why is the legislation silent on this 17 issue? You can take from the taxpayers if 18 they're going to a non-public institution but 19 not if they're applying to a public college and 20 I think there are sufficient reasons here to be 21 aware of the problem and ask the United States 22 authorities no matter who is in charge, whether 23 it's Newt Gingrich or his predecessor, whether 6367 1 it is the Governor of New York State, the 2 present governor or his predecessor, comply with 3 the law by having each level of government do 4 what it is supposed to do and not have the 5 schools assume all the responsibilities for what 6 public officials have been unwilling to do. 7 We don't want them to attend our 8 colleges, fine. Do not admit them, but how do 9 you find out? You can't turn to the census data 10 because the last time I looked the census data 11 is confidential, and after the questions are 12 asked, all of those responses are put in a vat 13 and they are treated with chemicals which 14 destroy the answers on the census data, and 15 sometimes even the illegal immigrants have been 16 counted by the census authority to qualify New 17 York State with federal aid which is 18 disappearing and representation in Congress 19 which is going down. 20 How do you get the answers? How 21 do you get accurate answers? Do you send a 22 special agent from a college to ring the door 23 bell? With or without a gun, I don't know which 6368 1 proposal you'll be following, and if you ring 2 the door bell and say, I'm here from a college 3 and we want to know whether you're here legally 4 or not, I can imagine what the answer to that 5 question would be if you were bothered during 6 the day or at night and asked to answer that 7 kind of a question. 8 You say, Well, I don't have any 9 papers available. I'll have to look. I'm 10 sorry, we can't admit your son or your daughter 11 to college unless you answer that question. We 12 have to understand that the idea may be a good 13 one, but you don't want to spend taxpayer money 14 in New York for those who are not entitled to it 15 and I agree with that, but at what cost? How do 16 you verify -- how do you prevent a kind of 17 police state that many people in this room would 18 not wish to see, Republicans as well as 19 Democrats? 20 You would not wish to see that 21 finger on the door bell and that finger of 22 authority demanding to know the documentation, 23 and I am most certain that you would not want 6369 1 your children to betray the confidence and the 2 rights of their parents which could very easily 3 happen if the answer turns out to be negative. 4 For these reasons, I'm appealing 5 to you, if you believe in certain individual 6 rights of citizenship -- and I've heard a lot of 7 discussion on the prior bill, a lot of that 8 discussion, we have a right as free Americans 9 not to be hassled, not to be asked too many 10 intrusive questions, but we have a presumption 11 that we are of good moral character, well, 12 college applicants have a right to say, Isn't 13 there a presumption that we have a right to an 14 education? They may not have a right to have it 15 free. They should be charged as non-resident 16 New Yorkers, but to remove them would require 17 action by the federal government, which does not 18 appear to be overly enthusiastic in implementing 19 what the law requires it to do. 20 ACTING PRESIDENT KUHL: Chair 21 recognizes Senator Espada. 22 SENATOR ESPADA: Thank you, Mr. 23 President. 6370 1 Will Senator Padavan yield to a 2 question. 3 ACTING PRESIDENT KUHL: Senator 4 Padavan, will you yield to Senator Espada? 5 SENATOR PADAVAN: Yes. 6 ACTING PRESIDENT KUHL: Senator 7 yields. 8 SENATOR ESPADA: Senator Padavan, 9 prefacing my questions, I wish you to know that 10 in no way are my questions or the comments that 11 follow it directed toward you as a person. 12 Would you please define to me the 13 term "xenophobia"? 14 SENATOR PADAVAN: Pardon? 15 SENATOR ESPADA: Would you please 16 fine to me in these chambers the term 17 "xenophobia"? 18 SENATOR PADAVAN: Xeno... 19 SENATOR ESPADA: Xenophobia, yes. 20 SENATOR PADAVAN: I think that's 21 a fear of foreigners, fear of aliens, whatever. 22 Yes. Does that help you? 23 SENATOR ESPADA: I don't know if 6371 1 you were being serious. My question was a 2 serious one. 3 SENATOR PADAVAN: And I gave you 4 a serious answer. I think it's a fear of 5 foreigners, by definition. 6 SENATOR ESPADA: Thank you. 7 Perhaps someone from out west, but maybe some 8 unfounded fears of foreigners would contribute 9 to the condition known as xenophobia, would you 10 not agree? 11 SENATOR PADAVAN: Again, I'm 12 afraid you lost me on that one. Would I what? 13 SENATOR ESPADA: Xenophobia is 14 mostly founded on unconscious positions in the 15 bearer's mind, in the unconscious, not the 16 reality? 17 SENATOR PADAVAN: That may be the 18 answer you want, but I don't know if it's 19 relevant to this legislation but, you know, 20 could you -- I'll be glad to answer any 21 question. I would appreciate, however, in all 22 due courtesy that we deal with the legislation. 23 SENATOR ESPADA: Absolutely. I 6372 1 think we would all be naive and absolutely 2 ill-served if we did not take up this issue that 3 there are many people that speak a certain 4 language, Spanish or foreign language, that 5 don't have the prototypical characteristics of 6 a, quote, American, unquote that are very 7 concerned that your legislation and that your 8 material in your legislative package is your 9 version of the 187 bill that became law last 10 November in California, that that would produce 11 conditions that are xenophobic and that the 12 ramifications of that would be borne by people 13 that speak a foreign tongue or that look a 14 certain way, and so that's why I ask you. 15 SENATOR PADAVAN: Now I 16 understand your question. 17 SENATOR ESPADA: To please define 18 for me your view of xenophobic people. 19 SENATOR PADAVAN: Well, I'm going 20 to try to answer your question, Senator. You 21 and I come from the city of New York. A 22 significant percentage, and I'm not going to 23 take a guess, but it's probably far in excess of 6373 1 a third of young people in our City University 2 are not born in this country. They're foreign 3 born, and so they fit your description. They 4 make a meaningful contribution. They're here in 5 this country legally, or their families are. 6 They're getting an education. They add to the 7 enrichment of our city and state and nation. 8 They train themselves to be gainfully employed 9 and they add, in a brood sense, to the city and 10 the state. 11 However, there are only so many 12 seats in the City University. There are only so 13 many dollars we can commit, and we're fighting 14 now for these dollars. The notion that we 15 should not preclude illegal immigrants from 16 filling those seats because there are so many 17 others who are there, makes absolutely no sense 18 at all. 19 I want to underline the word 20 "illegal" as many times as I need to to get the 21 point across to you. Now, every student who 22 fills out an application is judged on a number 23 of criteria -- educational background, where 6374 1 they live, the residents, non-residents, SAT 2 scores, whatever the case may be, all kinds of 3 things. 4 Are we stigmatizing people by 5 asking that information on an application for 6 City or State University? I don't think so. 7 Those are the requirements for admission. 8 SENATOR ESPADA: Answer the 9 question, sir. 10 SENATOR PADAVAN: So, therefore, I 11 think I've answered your question by saying 12 phobias, other things of that nature are just 13 not applicable to what we're trying to do here. 14 SENATOR ESPADA: Well, if I may 15 follow through with a couple more questions, Mr. 16 President, to the good Senator from Queens. Mr. 17 President I'm asking it through you. I take 18 that to mean that we could continue. 19 ACTING PRESIDENT KUHL: Yes, 20 Senator Padavan yields. 21 SENATOR ESPADA: Yes, Senator 22 Padavan, have you ever been stopped by an INS 23 agent or by the police at any of our airports or 6375 1 anything of that type? Have you ever enjoyed 2 such an experience? 3 SENATOR PADAVAN: Yes. 4 SENATOR ESPADA: And how did you 5 feel, if you don't mind sharing? 6 SENATOR PADAVAN: Well, I was 7 crossing the Thousand Islands Bridge from New 8 York to Canada, and I was stopped, wanted to 9 look in the trunk of my vehicle. I felt if 10 there was a reason for them to do so in their 11 judgment, part of the process, I found no 12 personal affront to it. They examined my car, 13 asked me to open the trunk. 14 SENATOR ESPADA: I just should 15 share that it also happened to me on my way back 16 from Puerto Rico to New York's Kennedy Airport, 17 and I didn't have such a pleasant experience. 18 All Puerto Ricans, yours truly included, are 19 automatically American citizens, as you know, by 20 virtue of legislation enacted way back in 1917 21 or thereabouts. It wasn't a pleasant 22 experience, and I just should share with you for 23 the purposes of clarifying this whole allegation 6376 1 of -- of stig... the whole issue of stigmatizing 2 people, that I felt very stigmatized, very 3 humiliated, and I am a -- I was born an American 4 citizen, my children are born American citizens 5 and no doubt, under your legislation, many 6 people like myself goin' through the CUNY system 7 would also be subjected to that kind of harass 8 ment. 9 Have you any concerns about that? 10 SENATOR PADAVAN: Is that a 11 question? 12 SENATOR ESPADA: Have you any 13 concerns? 14 SENATOR PADAVAN: Is that a 15 question? The answer is absolutely no. You 16 would check off the block, U.S. Citizen and, as 17 you pointed out accurately - 18 SENATOR ESPADA: M-m h-m-m. 19 SENATOR PADAVAN: -- Puerto 20 Ricans have been citizens since 1917, and that 21 would be the end of it. 22 SENATOR ESPADA: Let me ask you, 23 though, because I would think it's the end of 6377 1 it, your passage of legislation would also put 2 me and my family in a situation where, if we 3 were to go to a public hospital or we were to 4 attempt to enroll children in a local school 5 district, it would put us in the same position 6 again of having to answer questions that would 7 -- one would deem embarrassing, intimidating 8 and a source of great harassment. 9 Well, what I'm saying is, you do 10 have the same philosophy applies to little 11 babies going to school and little babies born 12 into the emergency room of a public hospital, 13 right? 14 SENATOR PADAVAN: Absolutely not, 15 and we'll hopefully some time before this 16 session ends, we'll deal with other bills, but 17 it's not applicable. What you just said is 18 incorrect. 19 SENATOR ESPADA: I'm correct. 20 SENATOR PADAVAN: I would choose 21 to deal with the bill before us but, in general 22 terms, I would say that your statements were not 23 valid. 6378 1 SENATOR ESPADA: You asked my 2 colleague, Senator Waldon, whether he was 3 familiar with the distinguished Barbara Jordan. 4 You are familiar with the distinguished Newt 5 Gingrich, are you not? 6 SENATOR PADAVAN: Mr. Gingrich, I 7 only know him by newspapers, reports and other 8 things. And contrary, however, with regard to 9 Barbara Jordan, I have had personal contact with 10 her as recently as November, and we've had a lot 11 of dialogue before and since; so, therefore, if 12 you're trying to draw a contrast on this, I'm 13 far more knowledgeable and personally aware of 14 Barbara Jordan than I am of Newt Gingrich. 15 SENATOR ESPADA: Well, let's see 16 because, with respect to welfare reform, many of 17 the policies that the Gingrich Congress has 18 passed would deny benefits to legal immigrants. 19 Do you, sir, subscribe to those proposals that 20 would deny benefits to legal immigrants? 21 SENATOR PADAVAN: To legal 22 immigrants? 23 SENATOR ESPADA: Yes. 6379 1 SENATOR PADAVAN: It would depend 2 on the benefit, but those currently provided for 3 in law are not ones that I would think we should 4 take away, certainly health care and elementary 5 school education, which is currently mandated by 6 the federal government, to both legal and 7 illegal immigrants. 8 However, I think we would have to 9 evaluate each of those proposals as we're now 10 dealing, ourselves, with issues of welfare 11 reform as they relate to the entire welfare 12 population. 13 SENATOR ESPADA: So I take it 14 your support for legal immigrants and the rights 15 that accrue to them are conditional in nature 16 subject to case-by-case review? 17 SENATOR PADAVAN: Not case by 18 case, but issue by issue. See, legal 19 immigration, Senator, has a lot of categories. 20 SENATOR ESPADA: Yes. 21 SENATOR PADAVAN: People in this 22 country, who someone, I think it was Senator 23 Stavisky come here seeking asylum, they're 6380 1 granted in some cases an opportunity for a 2 hearing. During the time they arrive at Kennedy 3 Airport and the time they have their hearing, 4 they are here, quote, illegally until a hearing 5 takes place. So that's one category and there 6 are many other categories. So when you use the 7 general term legal immigrant, I think we would 8 have to deal with the various categories in 9 terms of what benefits would be available. 10 SENATOR ESPADA: Thank you. I 11 wish to thank you, Senator Paterson, for 12 answering the questions. 13 Mr. President, on the bill. 14 ACTING PRESIDENT KUHL: Senator 15 Espada, on the bill. 16 SENATOR ESPADA: I think this is 17 appropriately termed in terms of being the prop 18 osition or the bastardized child of Proposition 19 Number 187 type bills. I mean no personal of 20 fense. 21 I'm very passionate about my 22 opposition to this bill. You see, the sponsor 23 or one of the chief beneficiaries of this 6381 1 xenophobic bill or law that became law in 2 California was Pete Wilson, and Pete Wilson or 3 Governor Wilson rested much of his case and most 4 of his moral conviction on the fact that there 5 was a case to be made. 6 What he didn't show at the time 7 was he knew first-hand that there was a case to 8 be made because he had an illegal immigrant that 9 was cleaning his house and looking after his 10 children, and that is the kind of hypocrisy, 11 that is the kind of individual value that could 12 characterize this whole package of legislation 13 that, unfortunately, we will be discussing in 14 these chambers and this proud state, the 15 proudest state in the United States. That we 16 should be subjected to discussing and giving 17 credence to this kind of a bill at this point in 18 time when the immigration service who, 19 throughout the whole of the United States, is 20 resulting in mothers not taking their children 21 into hospitals in California, into the court 22 system saying, Oh, you cannot implement that 23 law, for us to seriously and in this proud 6382 1 institution give credence to this legislation by 2 even analyzing it is to give the whole notion of 3 xenophobic behavior credence and acceptability 4 and, therefore, I find it morally reprehensible 5 and would certainly vote no. 6 Thank you. 7 ACTING PRESIDENT KUHL: Senator 8 DiCarlo, why do you rise? 9 SENATOR DiCARLO: Mr. President, 10 would you recognize Senator Hoffmann and Senator 11 Montgomery for the purpose of voting? 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect on the 180th day. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll. ) 19 ACTING PRESIDENT KUHL: Senator 20 Hoffmann, how do you vote? 21 SENATOR HOFFMANN: Aye. 22 ACTING PRESIDENT KUHL: Senator 23 Hoffmann recorded in the affirmative. 6383 1 Senator Montgomery, how do you 2 vote? 3 SENATOR MONTGOMERY: No. 4 ACTING PRESIDENT KUHL: Senator 5 Montgomery will be recorded in the negative. 6 The roll call is withdrawn. 7 Debate will continue. Senator Mendez was next 8 on the list. She's temporarily out of the 9 chamber. 10 Senator Dollinger is next on the 11 list. 12 SENATOR DOLLINGER: Mr. 13 President, will Senator Padavan yield to a 14 couple questions? 15 ACTING PRESIDENT KUHL: Senator 16 Padavan, do you yield to Senator Dollinger? 17 SENATOR DOLLINGER: Let me start 18 by saying, I read the Cities Committee report on 19 illegal immigration. I thought it was an 20 enlightening document, the discussion about the 21 appearance of people at the airport who seek 22 asylum, who leave, take their 18 months while 23 waiting for the numbers, never show up for the 6384 1 hearing, the conversion from, quote, legal 2 status to illegal status, the cost that INS has 3 and the tremendous difficulty in trying to 4 police the problem. I thought it was really 5 well laid out and really drew attention to an 6 area where we have to take a very close look, 7 and my questions today deal with this bill and 8 how this bill achieves the goal of dealing with 9 the problem of illegal immigration because, as 10 you've heard, I think there are a number of 11 concerns on this side of the table about the 12 concept of illegal immigration. 13 I am one of those who believe 14 that this country has always held that we have 15 our doors open. What you have to do is we have 16 a series of laws adopted by our Congress that 17 say there are certain requirements you have to 18 meet to get in the door and we change those 19 periodically, and I'm not opposed to the federal 20 government imposing those rules and drawing 21 lines between legal immigration and illegal 22 immigration. 23 So starting with that preference, 6385 1 let me ask you a few -- one question about the 2 specifics of the bill. Is there -- your bill 3 links the exclusion from post-secondary 4 education and the requirement that the post 5 secondary institution report to the INS. 6 Would you consider delinking 7 those, breaking the linkage, in other words 8 simply saying in the bill that if you were an 9 illegal alien, you do not qualify for public 10 education and abolishing the second requirement 11 which turns our public secondary school 12 officials into enforcement arms of the INS? 13 SENATOR PADAVAN: That a 14 question? 15 SENATOR DOLLINGER: Decoupling 16 those. 17 SENATOR PADAVAN: No. 18 SENATOR DOLLINGER: Could you 19 explain -- through you, Mr. President, could you 20 explain why those have to be linked together? 21 SENATOR PADAVAN: I think, 22 Senator, it's a responsibility of the state to 23 do what it can, and I share some of your -- some 6386 1 of your concerns, and I thank you for some of 2 your comments about the report we put out last 3 year, and we have just recently followed up with 4 a second report. 5 I think it's the responsibility 6 of the individual states, particularly those six 7 regions around the country that are being over 8 whelmed by problems of illegal immigration, and 9 so on, that when they become aware of someone 10 who is fraudulently attempting to enter into our 11 network, whether it's social services or higher 12 education, that they not have a blind eye to 13 them, and not take appropriate action. 14 These people are breaking the 15 law. They are law-breakers. They should be 16 referred to appropriate authority; and so, 17 therefore, in answer to your question, I would 18 not feel that that would be appropriate. 19 SENATOR DOLLINGER: The second 20 question, again through you, Mr. President. 21 ACTING PRESIDENT KUHL: Senator 22 Padavan, do you continue to yield? Senator 23 yields. 6387 1 SENATOR DOLLINGER: Senator, what 2 do you see happening when a student shows up at 3 the institution and is asked a question about 4 their United States citizenship -- either does 5 not reply to the satisfaction of the admissions 6 officer or thereafter discontinues the 7 application process which is, I assume, what 8 would happen, either they wouldn't satisfy the 9 admissions officer or they will discontinue, 10 they'll just leave. What do you anticipate will 11 happen to that college student? 12 SENATOR PADAVAN: I'm not sure I 13 fully understand the question. If there is a - 14 on any college application, there could be many 15 items which have not been completely filled out, 16 and normal procedure, my experience would be the 17 admissions office would contacte the applicant 18 and say, You've left this out, you've not 19 provided that, or whatever the case may be, and 20 if that information then is not forthcoming, 21 then the application would be rejected. That 22 would be the end of it. 23 SENATOR DOLLINGER: Also, again 6388 1 through you, Mr. President, at that point would 2 that constitute reasonable suspicion if the 3 applicant is not a legal alien and, therefore, 4 triggered the reporting requirement under 5 Section 2 or 3 of the bill? 6 SENATOR PADAVAN: If the 7 application was withdrawn and that information 8 was no longer in possession of the admissions 9 officer, the answer is no, but if it's still 10 there, if it's still thought to be fraudulent, 11 if the information was still of a nature that 12 gave that admissions officer the concern 13 articulated, then it would remain. 14 SENATOR DOLLINGER: The -- again 15 through you, Mr. President, if Senator Padavan 16 would continue to yield. 17 ACTING PRESIDENT KUHL: Senator 18 Padavan, do you continue to yield? 19 SENATOR PADAVAN: Yeah. 20 ACTING PRESIDENT KUHL: Senator 21 yields. 22 SENATOR DOLLINGER: Do you define 23 in the bill a reasonable suspicion, what 6389 1 constitutes a reasonable suspicion in the eyes 2 of the admissions officer? 3 SENATOR PADAVAN: Well, Senator, 4 the - 5 SENATOR DOLLINGER: Again, and I 6 ask this, Senator, because if this becomes law, 7 some day we'll have to try to provide guidance 8 to a court or to an admissions officer for what 9 constitutes a reasonable suspicion that there is 10 -- that someone is an illegal alien. This 11 really addresses the point that Senator Espada 12 made which is - 13 SENATOR PADAVAN: Yeah, it's a 14 good question, and I - 15 SENATOR DOLLINGER: How do you 16 feel about it? 17 SENATOR PADAVAN: I heard you. I 18 heard you and I say it's a good question. 19 Currently, as you know, and as I've said here 20 many times, admissions officers in SUNY and CUNY 21 have to make a diligent effort to verify whether 22 that applicant is a New York State resident or a 23 resident in another state. 6390 1 The reason, as you know, 2 obviously relates to a significant difference in 3 tuition. Now, if the admissions office feels 4 that an applicant is claiming New York State 5 residency and has some indication and, if you're 6 going to ask me what that might be, I can't 7 answer you, but I will tell you that if there is 8 an indication that that student is not a New 9 York State resident but attempting to be 10 accepted as such, pay less tuition, then 11 appropriate action is taken. 12 Now, similarly, the same kind of 13 thought process would have to be utilized by the 14 admissions office if they were, based on the 15 information in front of them -- and that's all 16 they can go by -- of the opinion that this 17 person who is applying is an illegal immigrant. 18 Now, I cannot put myself in the 19 mind's eye of every administration, every ad 20 missions officer in the State and City Univer 21 sity system, but they would have to obviously be 22 guided by the information on the document, on 23 the application. 6391 1 SENATOR DOLLINGER: And I think, 2 through you, Mr. President, it's not your 3 intention, as I understand your clear words, 4 that reference to ethnicity or lack of English 5 fluency would be in and of themselves enough to 6 provide reasonable suspicion that this person 7 was not an illegal alien. 8 SENATOR PADAVAN: Obviously not, 9 because if that was the case in the City 10 University of New York more than a third of the 11 students would fit that description and that is 12 certainly far afield of any intention. We're 13 trying to provide resources for all of our 14 students who are in this country lawfully in 15 this state, attempting to enter into our system, 16 and we have no reason in the world not to want 17 to do that. 18 SENATOR DOLLINGER: Right, I 19 understand that. 20 One final question, Mr. 21 President. What is the intended enforcement 22 mechanism in this system? 23 SENATOR PADAVAN: What is what? 6392 1 SENATOR DOLLINGER: What is the 2 enforcement mechanism, what is it that will make 3 admissions officers do this or make our CUNY and 4 SUNY system exclude the illegal aliens that you 5 want to exclude? What's the enforcement trigger 6 and how does it work? What's the punishment or 7 fine or - 8 SENATOR PADAVAN: There is no 9 punishment. There is no fine. If the 10 application is fraudulent, it's rejected and 11 referral is made as I indicated a little while 12 ago. There is only this space on the form that 13 indicates whether you are a resident, 14 non-resident, citizen or non-citizen. It's 15 already there. That's what they use. 16 SENATOR DOLLINGER: But my 17 only - 18 SENATOR PADAVAN: Now, if the 19 person indicates non-citizen immigrant status 20 and doesn't provide the appropriate information 21 to verify that, then there's a problem. 22 SENATOR DOLLINGER: Again, 23 through you, Mr. President. What I was 6393 1 referring to wasn't the enforcement against the 2 student. What my question was, what's the 3 enforcement against the admissions office to get 4 them to comply. What's to prevent the admission 5 office in our public colleges to say we could 6 enforce this but there's no punishment to us, 7 there's no enforcement mechanism that requires 8 it? 9 SENATOR PADAVAN: To answer your 10 question, we would have to rely upon the fact, 11 as we do in so many ways, when we require 12 agencies, institutions in this state and city, 13 localities to do things, to do it without - 14 without penalties on them. I think you would 15 probably in this black book on our desk find 16 many, many proposed bills that require things be 17 done but yet no penalty on the administrator or 18 agency if they're not done. 19 SENATOR DOLLINGER: On the bill, 20 Mr. President. 21 I'm really torn about this bill, 22 because I believe there is a basis on which this 23 country, having enacted immigration law, can 6394 1 enforce those laws. 2 I'm troubled by the reports of 3 the Cities Committee analysis of the immigration 4 law in this country that show INS has grown very 5 lax, that we don't seem to enforce the 6 immigration laws and it seems to me that we as a 7 country can establish rules in which you can 8 become a legal alien. I'm not aware that those 9 rules are tremendously oppressive or 10 exclusionary. 11 Now, my understanding is that 12 they are generally consistent with the 13 principles established and written on the 14 tablets underneath the Statute of Liberty. What 15 troubles me is that an illegal alien, someone 16 who gains entry to this country without legal 17 authority, can continue to enjoy benefits that 18 those who are both citizens and legal residents 19 and legal citizens currently enjoy. 20 I believe you can draw a line and 21 exclude illegal aliens. I think Senator Padavan 22 describes correctly that they are breaking the 23 law in continuing to be in this country. 6395 1 However, I'm equally concerned about the 2 position advocated by Senator Espada, which is 3 that the reasonable suspicion that will attach 4 in this whole process could too often be based 5 on ethnicity, on color, on lack of English 6 fluency, and that may too often be the decisive 7 factor in a report to the INS, and you may have 8 and you certainly open yourself up to the 9 possibility of significant improper complaints, 10 unfounded complaints, and we're vesting our 11 admissions offices with the ability to decide 12 whether the illegal -- whether the immigration 13 laws have been broached or not. 14 Frankly, this is an extremely 15 difficult bill for me to deal with. I think the 16 due process protection that Senator Paterson 17 talked about is missing. I think there are a 18 couple other things that could be done to 19 explain better the reasonable suspicion, provide 20 due process, provide some kind of enforcement 21 mechanism to really make it work, and I'm not in 22 the bottom line, I guess, convinced that while 23 we should -- we can and perhaps we should 6396 1 exclude illegal aliens from access to our public 2 colleges, I'm not convinced that we should turn 3 our public colleges into the enforcement arm for 4 the INS. 5 So, for that reason, this is a 6 close one for me, Mr. President. I guess I've 7 decided I'm going to vote against this. 8 ACTING PRESIDENT KUHL: The Chair 9 recognizes Senator Mendez. 10 SENATOR MENDEZ: Thank you, Mr. 11 President. 12 I wonder, Mr. President, if 13 Senator Padavan would yield for a question. 14 ACTING PRESIDENT KUHL: Senator 15 Padavan, do you yield for a question from 16 Senator Mendez? The Senator yields. 17 SENATOR MENDEZ: Senator Padavan, 18 I am very much concerned with the issue of per 19 ception that gets in the minds of many American 20 citizens, the idea, the image that they get of 21 who is an illegal alien, and I've got some 22 information here that I want to share with you. 23 Do you know -- first, do you know 6397 1 how many immigrants are legal and illegal do 2 come into the United States every year? 3 SENATOR PADAVAN: Yes. We have 4 that information. In New York State, INS gives 5 us an estimate, conservative estimate of 510,000 6 illegal immigrants in New York State, roughly 80 7 percent in New York City. 8 SENATOR MENDEZ: Well, the -- an 9 organization in Washington and Dr. Lobos from 10 Rice University, they have canvassed the 11 districts about immigrants and they came out and 12 stated that we have every year in the United 13 States, in the entire country, 1.1 million of 14 immigrants. Out of those 1.1 million, Senator 15 Padavan, there are 700 million that are, in 16 fact, legal. Then we have anywhere from 100- to 17 150,000 immigrants who are here because of 18 political persecution or what have you, and the 19 fact is that the remaining 300,000 individuals 20 we could -- they could be 300,000 illegal aliens 21 in the entire United States. 22 SENATOR PADAVAN: Senator, those 23 are annual figures. 6398 1 SENATOR MENDEZ: Yes. 2 SENATOR PADAVAN: California alone 3 has a million and a half illegal immigrants. 4 SENATOR MENDEZ: How many? 5 SENATOR PADAVAN: Nevertheless 6 what they are talking about is annually, and 7 they estimate that several hundred thousand 8 illegal immigrants come in every year. They 9 come in a variety of ways. Some come in through 10 smuggling, some overstay, a whole bunch of 11 categories, but we have to deal with what we 12 have now. 13 SENATOR MENDEZ: Correct. 14 SENATOR PADAVAN: Well over a half 15 a million, mostly in New York City, out of 7 16 million people. 17 SENATOR MENDEZ: Senator Padavan, 18 we are agreeing that every year there are 19 300,000 illegal aliens in the entire United 20 States, in California coming in. 21 SENATOR PADAVAN: Certainly 22 several - 23 SENATOR MENDEZ: I don't know how 6399 1 many they have in California, but whatever 2 number they have, but the fact remains they have 3 been building up over many years. O.K. So do 4 you know how exactly a -- how many people become 5 -- the ones that come, how many individuals are 6 coming to New York, how many of those apparent 7 illegal aliens, do you know where they are from 8 and how they became illegal aliens? 9 SENATOR PADAVAN: Senator, I 10 can't give you that information off the top of 11 my head, but in the two reports, one we did last 12 January - 13 SENATOR MENDEZ: Senator - 14 SENATOR PADAVAN: Let me answer 15 your question. 16 SENATOR MENDEZ: No, but I wanted 17 to give it to you. 18 SENATOR PADAVAN: But it's all 19 here. 20 SENATOR MENDEZ: We can compare 21 with each other at the appropriate time. 22 SENATOR PADAVAN: To respond to 23 your earlier point, according to INS, there are 6400 1 about 200,000 come across the border from Mexico 2 every year. In 1991 there were 300,000 over 3 stayed their visas, and then they go on and on 4 in a number of other categories, so when you 5 talk about just those numbers about illegal 6 immigrants, those are annual numbers and they 7 don't cover the entire - 8 SENATOR MENDEZ: Correct, 9 correct. But, six out of -- six out of every 10 ten illegal aliens, those six individuals become 11 legal because either the tourist visa expired or 12 business visa expired or the student visa 13 expired. This takes six of every ten illegal 14 aliens, tend to be individuals who are higher in 15 the educational as well as -- as economic 16 situation in the country where they are, in the 17 country, so six out of ten -- and I wanted to 18 mention that because many of them, once their 19 visa is -- once their visa is -- is -- makes - 20 once the visa runs out, they make some time and 21 start working on renewing it, making themselves 22 legal again, but it seems to me that your 23 primary motive is to deprive the illegal aliens 6401 1 to be educated in our public institutions, and I 2 will agree that illegal aliens is a person who 3 is in the country and is not entitled to be 4 here, should not receive benefits, we all 5 agree. The same sentiment is shared across the 6 aisle on that issue, but the main -- I suppose 7 the predominant factor you say in wanting to 8 implement this bill of yours, is that it, 9 according to your own -- to your own accounting, 10 it might be costing the city of New York many 11 million dollars, is that correct? 12 SENATOR PADAVAN: I'm sorry. I 13 didn't hear. 14 SENATOR MENDEZ: You mentioned 15 earlier -- excuse me. 16 SENATOR PADAVAN: Savings? 17 SENATOR MENDEZ: You mentioned 18 earlier that there are 2,000 illegal aliens. 19 SENATOR PADAVAN: No, no. I said 20 in response to the question of Senator Leichter 21 I cited a report from City University in 1989. 22 SENATOR MENDEZ: Yeah. 23 SENATOR PADAVAN: Where they said 6402 1 there were 2,000. 2 SENATOR MENDEZ: Correct, yes. 3 SENATOR PADAVAN: That was their 4 number, illegal aliens in City University, and 5 since then that number has significantly 6 increased -- I'll wait until you and Senator 7 Tully discuss whatever you're doing, but since 8 then that number has increased significantly. 9 SENATOR MENDEZ: Yeah, but after 10 you mentioned those 2,000 illegal aliens that 11 are students in our City University and 12 shouldn't, you also mentioned that the mayor of 13 the city of New York was raising between $28 14 million that could be saved or he could obtain 15 if your bill, for example, would be 16 implemented. You remember that number? 17 SENATOR PADAVAN: I didn't say it 18 that way, Senator. I said that, based -- I said 19 that, based on the numbers that we have been 20 provided, the cost in City University alone, 21 using the $7,015 annual subsidy, would be 22 approximately $28 million dealing with this 23 number of illegal immigrants. 6403 1 I then said, we are right now as 2 we are negotiating a budget, trying very 3 desperately to provide money to the City 4 University which City University board of 5 trustees, educators and the mayor have asked us 6 to provide. 7 SENATOR MENDEZ: Well, but I want 8 to share with you the fact that illegal and 9 legal aliens, which is immigrants, they do pay 10 in taxes 42 point -- I'm sorry, let me back 11 track, get my glasses. Legal and undocumented 12 immigrants combined, the two groups receive 13 $42.9 billion in services such as education and 14 public assistance. However, they pay approxi 15 mately $70.3 billion a year, which if your 16 primary motivation that you think that is your 17 primary motivation was to save the state the $28 18 million so that the mayor would be better off 19 with $28 million because the expenses that all 20 legal and illegal immigrants do incur in New 21 York State and for the federal government, the 22 $42.9 million and they pay taxes in the area of 23 70.3 billion, we're ahead of the game, wouldn't 6404 1 you say so? 2 SENATOR PADAVAN: Senator, you're 3 talking about aggregate immigrant contributions 4 and costs. 5 SENATOR MENDEZ: Yes. 6 SENATOR PADAVAN: This bill deals 7 with illegal immigrants, not paying any taxes, 8 certainly not paying any state and city income 9 tax. 10 But, Senator, the answer to your 11 question is right here in this document, in this 12 report dated April of -- last month, and I'm 13 going to see that you get a copy if you didn't 14 get one in the mail already. 15 SENATOR MENDEZ: I'll appreciate 16 it. 17 SENATOR PADAVAN: -- which tells 18 you specifically in all categories what the 19 benefits are, and you're right, in the 20 aggregate, millions of dollars and the cost 21 also, which is complete, and this document is 22 based on reliable resources that I think you 23 might benefit from reading. 6405 1 SENATOR MENDEZ: Thank you, 2 Senator Padavan. 3 Mr. President, I am going - 4 ACTING PRESIDENT KUHL: Senator 5 Mendez, may I interrupt for just a moment. 6 Could we have the Secretary read the last 7 section? 8 THE SECRETARY: Section 2. This 9 act shall take effect on the 180th day. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll. ) 13 SENATOR SKELOS: Mr. President, 14 would you please recognize Senator Maltese and 15 Senator Maziarz. 16 ACTING PRESIDENT KUHL: Senator 17 Maltese, how do you vote? 18 SENATOR MALTESE: Aye. 19 ACTING PRESIDENT KUHL: Senator 20 Maziarz, how do you vote? 21 SENATOR MAZIARZ: Aye. 22 ACTING PRESIDENT KUHL: Both 23 members will be recorded in the affirmative. 6406 1 Secretary will withdraw the roll call. 2 Thank you, Senator Mendez, for 3 the interruption. 4 SENATOR MENDEZ: Thank you. 5 ACTING PRESIDENT KUHL: Senator 6 Mendez, on the bill. 7 SENATOR MENDEZ: Mr. President, I 8 am going to vote against this bill, as stated 9 earlier, if the primary motive for -- for 10 passing this bill is that the city of New York 11 will be saving $28 million by forcing our public 12 higher education institutions to behave as if 13 they were working for the Immigration and 14 Naturalization federal department. If that is 15 the primary motivation, because statistics 16 clearly show that illegal as well as legal 17 immigrants combined never only utilize $42.9 18 billion in services such as education and - 19 and -- education and public assistance. 20 However, that same group of individuals, legal 21 immigrants as well as illegal immigrants 22 combined, these two groups do pay to the country 23 $70.3 billion, so that the argument in terms of 6407 1 saving money for the city of New York is not a 2 valid one, under the realities this, of the 3 data. 4 Also I am very much afraid, and I 5 know of some cases in which, Mr. President, 6 Puerto Ricans were swept into a group of Spanish 7 speaking people and were taken directly to -- to 8 Mexico because provisions in the bill do not 9 clarify fully what that suspicion should be all 10 about. 11 I'm afraid that many American 12 citizens like myself Puerto Rican, of Puerto 13 Rican extraction, and other Hispanics who have 14 become American citizens might be -- their 15 rights would be violated. 16 Lastly, Mr. President, it could 17 be the case often so that the illegal immigrants 18 that Senator Padavan's bill speak about or 19 address the bill to, are those people, six out 20 of every ten once that, in fact, they have 21 entered the country legally through -- with 22 visas as students, business visas or student 23 business visas or which is the other one - 6408 1 student, business and -- well, I forgot the 2 other one. It's irrelevant anyhow. It is a 3 group of individuals, a group of individuals 4 that have a higher educational level in their 5 countries, higher economic, higher economic 6 level in their country and they know, they came 7 originally, they stay a few months or what have 8 you. Once they -- the visa was not up to date, 9 then they stayed and they required time to start 10 making the process of making themselves legal 11 again, so I think that the worst of it also is 12 that this bill will, in fact, create a sort of a 13 monolithic picture of who an immigrant is, and 14 in creating such a global picture of a diverse 15 group of people, it will certainly bring forth 16 existing prejudices, so I think that although I 17 believe like each one Senator serves in this 18 chamber, that people who are illegal in the 19 country should not be entitled to receive 20 services. 21 In this instance, this bill, Mr. 22 -- Mr. President, will not do the job and will 23 result in greater violations of the civil rights 6409 1 of many individuals who do not determine that to 2 be their future. 3 Thank you, Mr. President. 4 SENATOR MARCHI: Mr. President. 5 ACTING PRESIDENT KUHL: The Chair 6 recognizes Senator Marchi. 7 Senator Marchi, for the benefit 8 of the floor, the debate started about at 9 approximately 12:28. 10 SENATOR MARCHI: 12:28? 11 ACTING PRESIDENT KUHL: 12:28. 12 SENATOR MARCHI: Contracts 13 sometimes make not the best law, but when you're 14 looking to a policy that is disgraceful, you 15 seek to use whatever weapons you have that are 16 consistent with the law. 17 The -- our policy on immigration 18 for the last 10 or 15 years, it doesn't make any 19 difference whether they're Democrats or whether 20 they're Republicans, is a total disgrace -- a 21 total disgrace. They are not applying - 22 they're not applying the power to turn the 23 faucet on and off according to the laws that 6410 1 Congress passes, and I don't know what's behind 2 it all. 3 I know that Chavez worked very 4 hard to -- to save some of the exploitation that 5 went on with the fruit pickers, so I don't 6 know. People who sometimes see it that way 7 encourage this very fact of life because they 8 can exploit this labor. It's happened to some 9 of the members of the Chinese community. 10 Disgracefully exploited. They come off from an 11 illegal entry, one -- one was intercepted, but 12 those who are working in some deep dungeon and 13 being paid disgraceful wages and have no access 14 simply because the federal government, having 15 the responsibility, fails to exercise it, I 16 think tells us, the public at least we are to 17 interpret it in this fashion ought to be doing 18 something about it. 19 Let's dismiss this notion about 20 xenophobia. I speak Italian as fluently as I 21 speak English and maybe my English, you may 22 fault, and you say, Well, maybe your Italian 23 isn't too good. My wife speaks a delightful 6411 1 exquisite accent like Olga Mendez, and I would 2 cry copious tears if she ever lost them -- that 3 exquisite accent. My children both speak 4 Italian fluently, and we can speak it fluently 5 at home and, whenever I speak to anybody, if 6 they're Spanish or they're Chinese or they're 7 Russian, whatever they are, I encourage them to 8 keep those languages. This is the patrimony of 9 -- tremendous patrimony for the United States 10 of America to have, I think an enhanced means of 11 communicating with the rest of the world. 12 There is no xenophobia. How much 13 bookkeeping does it involve for the City 14 University to say, where are your naturalization 15 papers or, if they're too involved, or your 16 birth certificate, or whatever other indicia? 17 This isn't a frightful burden. As a matter of 18 fact, Senator Padavan has been addressing this 19 problem vigorously. 20 In 1989 -- we had an enormous 21 increase since 1989 in immigration, some of it 22 legal and some of it illegal, but even the legal 23 immigration which contains affidavits of 6412 1 support, we can not enforce that in the state of 2 New York. You may be an illegal alien, needing 3 some supportive contribution. You can not go to 4 the guarantors that are in the laws formulated 5 by Congress. 6 You know, this question even went 7 to the -- to the Court of Appeals of this state 8 and they said, Oh, forget about that. You have 9 a constitutional mandate to support the needy. 10 Therefore, you have to do it anyway. Forget 11 about Congress. This is the Court of Appeals. 12 So, Senator Padavan, having only 13 few weapons to use here, and I -- and I refer 14 back now to the student population of the city 15 of New York, this is primary and secondary 16 education, public schools had leveled off to a 17 plateau of about 850,000, where one or -- have 18 one million one now, and the increase is not 19 indigenous. 20 Is this bad? No, only if we had 21 cooperation by those who formulate immigration 22 policy. If they were doing something right 23 here, Senator Padavan wouldn't even be 6413 1 sponsoring this bill. 2 So what do we do? We talk about 3 preserving some perception, and it's done in 4 good faith because I can't disagree with what's 5 been said over here, but at the same time we're 6 now under unconscionable pressures to raise 7 tuition. I don't want to be a party to that. 8 At least I've done something to try to rein that 9 rise and ascension of that tuition and please, 10 federal government, maybe we ought to do more 11 about meeting with our Congressional delegations 12 and our Senatorial -- our two Senators, bringing 13 greater pressure where states are impacted very 14 heavily, because you get these hard facts and 15 it's not always the most cheerful and the most 16 benign legislation that we would like. 17 Given the genesis of our country 18 and our history, we have prospered as a result 19 of all this and we are, when one has said all 20 these things, those immigrants when they came 21 they didn't have any Blue Cross, think didn't 22 have any insurance, they didn't have Medicaid. 23 If you died, unless you had some neighbors that 6414 1 were going to save you, they would just dump you 2 into a grave. You would die of starvation. 3 We don't -- there's a different 4 mind set. The country -- the country has to 5 plan intelligently, and also when people come do 6 it with compassion. I don't know how many of 7 you ever visited Israel where they -- where they 8 welcome immigrants from -- from around the 9 world. These are Jewish immigrants. They have 10 a process of acutely acculturation. They are 11 people who come from, oh, places like Yemen, who 12 have basic facilities they were unaware that 13 existed. They would take them for six months 14 and -- and prepare for greater assimilation into 15 the population. They took Falashas from 16 Ethiopia who were surprised when they saw a spit 17 cooking a chicken, because they had never seen 18 anything so complicated. After six months they 19 were working on the Lava bomber which was then 20 abandoned because it was too expensive, but it 21 was a feasible bomber and doing electrical 22 circuitry after six months training. A positive 23 policy, not this business of opening the doors 6415 1 wide open and then abdicating any 2 responsibility. 3 This is the history of the United 4 States government. It's disgraceful in this 5 respect, and we have to take measures to protect 6 ourselves, not -- we have to have some coopera 7 tion. You say primary and secondary, there is a 8 law on compulsory education, and I think the 9 question was asked by someone, well, what about 10 -- what about the non-public schools? People 11 who go to the non-public schools, if there were 12 one -- nine out of ten were illegal and there's 13 only one, that one would have to pay for the 14 tuition for all of them. 15 This is not a public -- this is 16 not -- no one is going to public for the -- for 17 non-public education. But we're talking about 18 public education, and -- and we know that there 19 is this -- we have a compulsory law, but in 20 higher education, we don't have a compulsory 21 law. Contracts, yes. The happiest law, no. 22 But we need help, and Senator 23 Padavan is absolutely correct. He takes one - 6416 1 one element of this and at least tries to 2 protect that, and let's not labor him with 3 putting perceptions that are improper on 4 anything. If -- if an individual wants to vote, 5 they can qualify very easily. There are no 6 complicated measures for establishing -- the 7 bookkeeping is not going to involve millions of 8 dollars to establish a legal presence in the 9 United States. 10 I mean we're talking to each 11 other. We know what the -- we know what the 12 real world is. What disturbs us all and what 13 disturbs everybody in this chamber, and I agree 14 with you, we ought not to be debating this way 15 and we ought not to have bills like this. But 16 do we have a choice? I say no. And I would 17 hope that -- I would hope that this -- you know, 18 you don't like this or you don't like some other 19 bill, put some bills in that you think would do 20 the job more efficiently, and Frank Padavan and 21 myself would be the first ones to support you. 22 But we -- I think this is a first 23 step, a very modest first step in higher 6417 1 educational experience. I would hope that - 2 that if we get into this business seriously also 3 with sister states like Florida, Texas and other 4 states that are more heavily impacted, that we 5 will go to a more enlightened policy, one which 6 demonstrates compassion, and one which enriches 7 the country and enriches the lives of the people 8 that come in. 9 We appreciate their -- the 10 quality of their life. I don't -- I don't see 11 where there's any splendor in that, and this 12 absence of responsibility that exists down south 13 of us, is a disgrace and I am compelled to vote 14 for this bill, and I do it willingly because I'm 15 a co-sponsor, and I do hope it prevails. 16 SENATOR GOODMAN: Mr. President. 17 ACTING PRESIDENT KUHL: Senator 18 Goodman. 19 SENATOR GOODMAN: I'd like to 20 announce an immediate meeting of the Committee 21 on Investigations, Taxation and Government 22 Operations in Room 332. 23 ACTING PRESIDENT KUHL: There 6418 1 will be an immediate meeting in the Majority 2 Conference Room 332 of the Committee on 3 Investigations. 4 SENATOR SKELOS: And I believe 5 that the Minority intends to have a slow roll 6 call, so that before the committee starts we can 7 have the members here voting. 8 ACTING PRESIDENT KUHL: Secretary 9 will read the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect on the 180th day. 12 ACTING PRESIDENT KUHL: Call the 13 roll. 14 (The Secretary called the roll. ) 15 ACTING PRESIDENT KUHL: Senator 16 Paterson, why do you rise? 17 SENATOR PATERSON: Mr. President, 18 we would like a slow roll call. 19 ACTING PRESIDENT KUHL: Are there 20 five members in the chamber? Would they stand 21 up, please. 22 There are five members. 23 Secretary will ring the bell and call the roll 6419 1 slowly. 2 THE SECRETARY: Senator Abate. 3 SENATOR ABATE: No. 4 THE SECRETARY: Senator Babbush. 5 (There was no response. ) 6 Senator Bruno. 7 (Affirmative indication. ) 8 THE SECRETARY: Senator Connor. 9 (Negative indication. ) 10 THE SECRETARY: Senator Cook. 11 (There was no response. ) 12 Senator DeFrancisco. 13 SENATOR DeFRANCISCO: Yes. 14 THE SECRETARY: Senator DiCarlo. 15 SENATOR DiCARLO: Aye. 16 THE SECRETARY: Senator 17 Dollinger. 18 (There was no response. ) 19 Senator Espada. 20 SENATOR LEICHTER: Mr. President. 21 ACTING PRESIDENT KUHL: Senator 22 Espada. 23 Yes. Senator Leichter, why do 6420 1 you rise? 2 SENATOR LEICHTER: Mr. President, 3 I don't hear the bells ringing. 4 SENATOR PATERSON: I hear it. 5 ACTING PRESIDENT KUHL: Senator, 6 there's an audiology service down at the 7 Concourse. (Laughter) I'm informed the bells 8 are on, Senator Leichter, and they are ringing. 9 Senator Espada to explain his 10 vote. 11 SENATOR ESPADA: Thank you, Mr. 12 President. 13 Like so many of these types of 14 initiatives, the premise -- the assumption is 15 destined to lead to conclusions that, and 16 measures that have really no value, and 17 certainly the purpose of which we take great 18 exception to. 19 The notion that somehow 20 immigrants, legal, illegal, are a drain on our 21 economy is absolutely something that is not 22 proven by the mounds of paper that Senator 23 Padavan's committees have produced. In fact, 6421 1 many a study will indicate that legal and 2 illegal immigrants are up and down the whole 3 length of his own district operating retail 4 outlets, transportation services, aiding people 5 in hospitals, producing via an incredible range 6 quotient. 7 Our institutions, we celebrate 8 them when they participate in Team U.S.A. 9 Soccer. The names of Ranger hockey players that 10 we can't pronounce, and we celebrate them, we 11 celebrate legal and illegal immigrants when we 12 want to toot our own democratic horn but, in 13 fact, at the first sign of economic difficulties 14 we want scapegoats and we find them. We find 15 them and we define them with code language, code 16 language like "they". The "they" syndrome is 17 very present in this legislation and the 18 justification that has been provided for it. 19 I, just in closing, Mr. 20 President, a Mr. Kim, a grocer in my district, I 21 visited him last year about this time when the 22 first Padavan report came out, and I -- I was 23 distressed because Mr. Kim never closes his 6422 1 store, and this particular day he was closed and 2 I asked him the following day when I saw him, 3 "Mr. Kim, what happened? Yesterday was the 4 first time in ten years that you've been closed 5 and were you ill, or was someone in your family 6 ill," and he said, "No, Mr. Espada. Yesterday, 7 my first daughter graduated from Harvard 8 University. That's why I closed my store 9 yesterday." 10 That is America, Mr. President. 11 This version of America is unacceptable, and I 12 vote no. 13 ACTING PRESIDENT KUHL: Senator 14 Espada will be recorded in the negative. 15 Secretary continue to call the 16 roll slowly. 17 THE SECRETARY: Senator Farley. 18 SENATOR FARLEY: Aye. 19 THE SECRETARY: Senator Galiber 20 excused. 21 Senator Gold. 22 SENATOR GOLD: Mr. President. 23 ACTING PRESIDENT KUHL: Senator 6423 1 Gold to explain his vote. 2 SENATOR GOLD: Mr. President, I 3 voted against using the university system to 4 check people's draft cards. I've voted against 5 the concept that you make a great American by 6 requiring that our universities sing the 7 National Anthem and pledge allegiance at their 8 graduations. I think it would be wonderful if 9 they want to do that, but I don't think we 10 should be mixing apples and oranges. 11 Having said that, if this bill 12 were being put out to handle a problem, if this 13 bill alone was being put out as part of some 14 overall process, I could say to myself, Well, 15 look, if you're talking about now not using the 16 schools to function and help the Immigration and 17 Naturalization Service, maybe this bill might 18 make some sense. 19 But I can't close my eyes to 20 reality. This bill isn't put out to solve a 21 problem. It's put out, as so many other bills 22 today, as a slogan bill. You vote for the bill 23 because you got to clamp down on those kind of 6424 1 people. If you vote against the bill, you're 2 voting against it because you realize that there 3 are certain dangers that happened in other 4 countries, and we can't let it happen here. 5 So Senator Padavan, I know you 6 pretty well, and I think that you are trying to 7 zero in on a problem because you really see it 8 that way, but unfortunately, once we throw 9 something out there in the public domain, we 10 don't always control what happens with it, so 11 since this bill is not going to become a law, 12 since we're really positioning ourselves as to 13 where we stand in America, I'd like to vote with 14 Senator Espada and vote in the negative. 15 ACTING PRESIDENT KUHL: Senator 16 Gold will be recorded in the negative. 17 Secretary will continue to call 18 the roll. 19 THE SECRETARY: Senator 20 Gonzalez. 21 SENATOR GONZALEZ: No. 22 THE SECRETARY: Senator Goodman. 23 SENATOR GOODMAN: Mr. President, 6425 1 to explain my vote. 2 ACTING PRESIDENT KUHL: Senator 3 Goodman to explain his vote. 4 SENATOR GOODMAN: I've listened 5 with some careful attention to this debate, Mr. 6 President, and I think what one can glean from 7 it is that essentially there are two strands 8 which can not be properly intertwined in 9 reaching a conclusion about this matter. 10 On the one hand, we have the 11 basic generosity of spirit of the American 12 civilization amply discussed across the aisle 13 and quoting the base of the Statue of Liberty 14 quotation of give us your tired, your poor. 15 On the other, we hear the very 16 cries of students from CUNY begging us to be 17 sure that CUNY is not short-changed. When we 18 consider the added burden which, unfortunately, 19 is placed upon CUNY's facilities by the influx 20 of people who are not legally entitled to CUNY 21 education, we understand our trouble. 22 In the best of all worlds, 23 wouldn't it be wonderful if we could give every 6426 1 one an education and even embrace our illegal 2 immigrants and bootstrap them up in the great 3 crucible of American opportunity? But the plain 4 simple fact is, Mr. President, we can not do 5 that. Not only can we not afford to do it, but 6 we can not even properly afford to finance the 7 City University of New York's education amongst 8 those who are deserving of it and in legal 9 status. 10 So with this type of a tremendous 11 overload predicament, it seems to me that we 12 have little choice but to try to filter out 13 those who do not have proper entitlement and, 14 for that reason, I intend to support this bill. 15 I vote aye. 16 ACTING PRESIDENT KUHL: Senator 17 Goodman recorded in the affirmative. 18 Secretary will continue to call 19 the roll slowly. 20 THE SECRETARY: Senator Hannon. 21 (There was no response.) 22 THE SECRETARY: Senator Hoblock. 23 SENATOR HOBLOCK: Yes. 6427 1 THE SECRETARY: Senator Hoffmann 2 voting in the affirmative earlier today. 3 Senator Holland. 4 SENATOR HOLLAND: Yes. 5 THE SECRETARY: Senator Johnson. 6 (There was no response. ) 7 Senator Jones. 8 SENATOR JONES: Aye. 9 THE SECRETARY: Senator Kruger. 10 (There was no response. ) 11 Senator Kuhl. 12 SENATOR KUHL: Aye. 13 THE SECRETARY: Senator Lack. 14 SENATOR LACK: Aye. 15 THE SECRETARY: Senator Larkin. 16 SENATOR LARKIN: Aye. 17 THE SECRETARY: Senator LaValle. 18 SENATOR LAVALLE: Mr. President. 19 ACTING PRESIDENT KUHL: Senator 20 LaValle to explain his vote. 21 SENATOR LAVALLE: Mr. President, 22 first, I'd like to compliment Senator Padavan 23 for the thorough job that he did in explaining 6428 1 and presenting this legislation before this body 2 and really, the debate as on so many bills was 3 quite excellent. 4 Senator Paterson, in yesterday's 5 debate and today's, you've presented constitu 6 tionality issues before this body in a very 7 scholarly way, but I think this bill is not 8 about due process. This bill is not about 9 xenophobia. This bill is simply trying to get 10 our institutions to really look at public policy 11 in a way that coincides with the fiscal 12 realities that we face in trying, as Senator 13 Goodman said, to use our resources in a way that 14 does not overtax the facilities and the 15 resources that we have. 16 City University adopted a policy 17 that said any student who comes to the door is a 18 resident student. Therefore, they get a favored 19 status in terms of tuition, and so what Senator 20 Padavan is simply saying is that not everyone 21 legitimately is a resident student, and so I 22 think that in this bill, Senator Padavan has 23 pointed out, both legally, fiscally and correct 6429 1 public policy is to support the Padavan bill and 2 I vote aye, Mr. President. 3 ACTING PRESIDENT KUHL: Senator 4 LaValle is recorded in the affirmative. 5 Senator Stafford, why do you 6 rise? 7 SENATOR STAFFORD: Mr. President, 8 may I have my name called? 9 SENATOR SKELOS: No objection. 10 SENATOR STAFFORD: No objection. 11 ACTING PRESIDENT KUHL: Senator 12 Stafford. Call his name. 13 THE SECRETARY: Senator 14 Stafford. 15 SENATOR STAFFORD: Aye. 16 ACTING PRESIDENT KUHL: Senator 17 Stafford in the affirmative. 18 Continue to call the roll 19 slowly. 20 THE SECRETARY: Senator Leibell. 21 SENATOR LEIBELL: Aye. 22 THE SECRETARY: Senator 23 Leichter. 6430 1 SENATOR LEICHTER: Yes. Mr. 2 President. 3 ACTING PRESIDENT KUHL: Senator 4 Leichter to explain his vote. 5 SENATOR LEICHTER: I think it's 6 important to emphasize again that there is no 7 credible evidence or proof that there's any 8 great fiscal burden on the public higher 9 education institutions of this state because of 10 people attending who are illegal immigrants. 11 There just is no proof and no proof that the 12 situation has worsened recently and that, 13 therefore, what we need to do is, as Senator 14 Goodman explained, come to some conclusion 15 between two competing theories and strands in 16 our compassion as to -- to bow to our fiscal 17 realism. 18 I think that's important to 19 understand because what you're doing by this 20 bill is putting a burden on these public 21 institutions. Now, if all that Senator Padavan 22 required was, on the application form, that you 23 got to fill out a box like when you come into 6431 1 the United States, Are you a citizen. If you 2 put no, Are you in the United States legally, I 3 have no problem with that, and if somebody says 4 "No, I'm not here legally," they should not be 5 admitted. 6 I see a real problem both 7 administratively and as a burden on people who 8 are here legally, if the university then has to 9 go beyond that, has to collect documents, that I 10 think becomes a real problem. Then it really 11 becomes an enforcement arm of the U.S. 12 Government. It's a burden that ought to be 13 borne by the U. S. Government. 14 So when I see this sort of a bill 15 while in some respects, as we pointed out, we 16 have no problem in saying that people who are 17 here illegally should not get the benefits that 18 we provide for residents of this state, but when 19 you do it without really showing that there's a 20 great problem, I'm -- I end up with a conclusion 21 that there's a certain amount of scapegoating, 22 it's "they" who are causing the problem. "They" 23 are overburdening our institutions. "They" are 6432 1 taking our jobs, whoever "they" are. 2 I think that's unfortunate, and I 3 think that changes in some respect the character 4 and the outlook that makes this country and this 5 state so great. I vote in the negative. 6 ACTING PRESIDENT KUHL: Senator 7 Leichter will be recorded in the negative. 8 Secretary will continue to call 9 the roll. 10 THE SECRETARY: Senator Levy. 11 SENATOR LEVY: Aye. 12 THE SECRETARY: Senator Libous. 13 SENATOR LIBOUS: Aye. 14 THE SECRETARY: Senator Maltese 15 voting in the affirmative earlier today. 16 Senator Marcellino. 17 SENATOR MARCELLINO: Aye. 18 THE SECRETARY: Senator Marchi. 19 SENATOR MARCHI: Aye. 20 THE SECRETARY: Senator 21 Markowitz. 22 (There was no response. ) 23 Senator Maziarz voting in the 6433 1 affirmative earlier today. 2 Senator Mendez. 3 SENATOR MENDEZ: No. 4 THE SECRETARY: Senator 5 Montgomery voting in the negative earlier 6 today. 7 Senator Nanula. 8 SENATOR NANULA: Aye. 9 THE SECRETARY: Senator 10 Nozzolio. 11 SENATOR NOZZOLIO: Mr. President, 12 may I have permission to explain my vote. 13 ACTING PRESIDENT KUHL: Senator 14 Nozzolio to explain his vote. 15 SENATOR NOZZOLIO: Thank you, Mr. 16 President. 17 Mr. President, my colleagues: My 18 father immigrated to this nation from Italy and 19 one of his proudest days, one of the proudest 20 days of his life was the day that he passed his 21 citizenship test and pledged before God and 22 country that he pledges allegiance to the United 23 States of America. That was the proudest day. 6434 1 This bill correctly addresses a 2 moral question, not as some contend a matter of 3 dollars and cents. We have a moral obligation 4 to ensure that this country welcomes those from 5 other lands who seek freedom and opportunity 6 and, doubly, that moral obligation is to do what 7 it meant to us, for those who are entering this 8 country enter with the knowledge that that entry 9 is based on rules, laws and procedures. And if 10 those rules, laws and procedures are followed, 11 then the fruits of this nation, the 12 opportunities of this nation and state are 13 theirs. 14 This bill is correct. It's 15 right. And so are those obligations, requiring 16 those obligations to be fulfilled and so, Mr. 17 President, I urge its passage. 18 ACTING PRESIDENT KUHL: Senator 19 Nozzolio will be recorded in the affirmative. 20 Secretary will continue to call 21 the roll slowly. 22 THE SECRETARY: Senator Onorato. 23 (There was no response.) 6435 1 Senator Oppenheimer. 2 ACTING PRESIDENT KUHL: Senator 3 Oppenheimer to explain her vote. 4 SENATOR OPPENHEIMER: I'll be 5 voting no. 6 There's several things I don't 7 understand about this bill. If we are concerned 8 about supporting illegal aliens with state funds 9 then I, you know, perhaps you could make an 10 argument that we ought not to be spending our 11 TAP money or our HEOP money or EOP money on 12 students who are illegal aliens, but to say that 13 the school should not be taking in these 14 students, if these students perhaps are paying 15 full tuition, I mean why we -- we are not 16 putting the burden where it belongs. We are 17 putting it on our already overburdened higher 18 education system which we have cut back the 19 funding on so substantially, and now we are 20 asking them to -- to do background checks; and 21 on what basis? Because someone looks like he's 22 not an American citizen? 23 I mean really, it's -- it's 6436 1 outrageous. If there is some concern at the 2 state level that our state monies ought not to 3 be going to assist in tuition payments, then let 4 the state or let some governmental authority 5 look into this. I don't see that the SUNY or 6 CUNY system can, number one, bear the additional 7 burden nor should they be put in this kind of a 8 position. 9 I can't remember my other 10 thought. I will be voting no. 11 ACTING PRESIDENT KUHL: Senator 12 Oppenheimer will be recorded in the negative on 13 Calendar Number 339. 14 The roll call will continue. 15 THE SECRETARY: Senator Padavan. 16 ACTING PRESIDENT KUHL: Senator 17 Padavan to explain his vote. 18 SENATOR PADAVAN: I chose earlier 19 not to close debate in support of the bill 20 because I thought Senator Marchi had done such a 21 beautiful job of doing so, and I would have only 22 been redundant. However, in the explanations 23 that have -- I've heard here, I do think a 6437 1 moment of response is in order. 2 Senator Leichter, you and I 3 discussed this bill before you asked me what the 4 source was in terms of the magnitude of the 5 problem. Now, either you don't believe me or 6 you don't believe CUNY. But I told you that in 7 1989, when the illegal immigration problem was a 8 fraction of what it is today, they reported 9 2,000 illegal immigrants in the system as 10 residents. 11 Now, that's a fact, and I also 12 told you that in the report which you obviously 13 haven't had a chance to read, we have given a 14 number of other source documents with regard to 15 the problem. So it is a real problem. I mean 16 it's not a hypothetical one. 17 To respond to the other comments 18 about perception, about all kinds of issues, I 19 would simply quote the President when he says, 20 We are indeed a nation of immigrants, but we are 21 also a nation of law, and either we enforce the 22 law or we don't enforce the law. Either we 23 accept people here under our laws or we tell 6438 1 them they can't be here, and certainly if 2 they're here in violation of our laws, we don't 3 provide them with benefits, services, as the 4 Commission has cited categorically should be 5 available only to those who are here lawfully. 6 I vote aye. 7 SENATOR MARKOWITZ: Mr. 8 President. 9 ACTING PRESIDENT KUHL: Senator 10 Padavan is recorded in the affirmative. 11 Senator Markowitz. I'll ask the 12 Secretary to call Senator Markowitz' name. 13 THE SECRETARY: Senator 14 Markowitz. 15 SENATOR MARKOWITZ: Voting in the 16 negative. 17 ACTING PRESIDENT KUHL: Yes, 18 Senator Markowitz will be recorded in the 19 negative. 20 Secretary will continue to call 21 the roll slowly. 22 THE SECRETARY: Senator 23 Paterson. 6439 1 SENATOR PATERSON: Mr. President, 2 I was listening to the colloquy between Senator 3 Waldon and Senator Padavan and Senator Padavan 4 asked him if he was familiar with Barbara Jordan 5 and he then talked about the President's report 6 that was issued on May 6th, and I didn't hear 7 anywhere in that discussion the desire of the 8 individuals who framed that report that the 9 states would take on the duties of the federal 10 government, particularly in the area of 11 immigration, which really should be a federal 12 process. I thought, and it was good that 13 Senator Padavan is in -- was in touch with the 14 individuals who put that report together, I 15 thought that what the federal government is 16 doing now and he cited the President, is trying 17 to clean up what has really been at times an 18 abysmal Immigration and Naturalization Service, 19 and to correct a lot of the problems that we 20 have in the area of immigration. 21 I do not feel that we as a state 22 have to go beyond the purview of the federal 23 government to such an extent that we are now 6440 1 going to ask the Attorney General's office or 2 the Department of Education or the police 3 departments to actually start handling our 4 immigration matters. We don't have any due 5 process in this legislation. It's an unfunded 6 mandate. It comes at a time when we are already 7 stripping our city and state universities of 8 great resources, and it also comes at a time 9 when there is a feeling among those who are 10 afflicted that there is a perception of 11 xenophobia or stigmatization. 12 I think that, when we talk about 13 perceptions, there have been a number of times 14 when we as a society dismissed other people's 15 perceptions only to find out that they were 16 real, and so when we heard the perception 17 earlier about the gun owners in a sense being 18 discriminated against by clerks or being 19 mistreated when they applied for gun licenses, I 20 accepted it because I understood that that 21 perception might actually exist. 22 I certainly wish some of those 23 who don't believe it's possible and never heard 6441 1 of the stigmatization that individuals who, by 2 reason of race or religion or national origin or 3 for any other reason, were separated by a 4 discretionary implementation of a policy, would 5 sometimes understand that that actually exists. 6 Otherwise I would close, Mr. 7 President, just by saying that in 1982 the 8 Supreme Court issued a decision that denied us 9 the right to stop educating primary and 10 secondary educational students based on the fact 11 that they are not legal immigrants. I think 12 that that basic spirit might actually be 13 extended to secondary education and to higher 14 education if the court interprets this 15 legislation in the same way as it did in 1982 in 16 the case of Tyler v. Dow. 17 ACTING PRESIDENT KUHL: Senator 18 Paterson in the negative. 19 Senator Skelos. 20 SENATOR SKELOS: Yes. Would you 21 please recognize Senator Smith out of order. 22 ACTING PRESIDENT KUHL: Senator 23 Smith, how do you vote? 6442 1 SENATOR SMITH: No. 2 ACTING PRESIDENT KUHL: Senator 3 Smith will be recorded in the negative. 4 Secretary will continue to call 5 the roll slowly. 6 THE SECRETARY: Senator Present. 7 SENATOR PRESENT: Yes. 8 THE SECRETARY: Senator Rath. 9 SENATOR RATH: Yes. 10 THE SECRETARY: Senator Saland. 11 SENATOR SALAND: Aye. 12 THE SECRETARY: Senator 13 Santiago. 14 SENATOR SANTIAGO: No. 15 THE SECRETARY: Senator Sears. 16 SENATOR SEARS: Aye. 17 THE SECRETARY: Senator Seward. 18 SENATOR SEWARD: Yes. 19 THE SECRETARY: Senator Skelos. 20 SENATOR SKELOS: Yes. 21 THE SECRETARY: Senator Solomon 22 excused. 23 Senator Spano. 6443 1 SENATOR SPANO: Aye. 2 THE SECRETARY: Senator 3 Stachowski. 4 SENATOR STACHOWSKI: (No audible 5 response). 6 THE SECRETARY: Senator Stafford 7 voting in the affirmative earlier today. 8 Senator Stavisky. 9 SENATOR STAVISKY: No. 10 THE SECRETARY: Senator Trunzo. 11 SENATOR TRUNZO: Yes. 12 THE SECRETARY: Senator Tully. 13 SENATOR TULLY: Aye. 14 THE SECRETARY: Senator Velella. 15 SENATOR VELELLA: Yes. 16 THE SECRETARY: Senator Volker. 17 SENATOR VOLKER: Yes. 18 THE SECRETARY: Senator Waldon. 19 (Negative indication. ) 20 THE SECRETARY: Senator Wright 21 excused. 22 ACTING PRESIDENT KUHL: Secretary 23 will call the absentees. 6444 1 THE SECRETARY: Senator Babbush. 2 (There was no response. ) 3 SENATOR BABBUSH: No. 4 THE SECRETARY: Senator Cook. 5 SENATOR COOK: Yes. 6 THE SECRETARY: Senator 7 Dollinger. 8 SENATOR DOLLINGER: Explain my 9 vote, Mr. President. 10 ACTING PRESIDENT KUHL: Senator 11 Dollinger to explain his vote. 12 SENATOR DOLLINGER: I agree with 13 Senator Padavan we are both a country of 14 immigrants and we are a country of laws, and I 15 believe that we have the power to restrict the 16 benefits of post-secondary education only to 17 legal immigrants and citizens of this country. 18 If that's all that this bill did, I would vote 19 yes. 20 I'm going to vote no, because I 21 think it doesn't have the due process protection 22 built into it and, number two, what it 23 unfortunately does is, it may make members of 6445 1 our post-secondary admissions office into law 2 breakers as well because what it will do is it 3 will put admission officers in the extremely 4 delicate and difficult position of deciding 5 whether there's reasonable suspicion to believe 6 that someone is an illegal alien even though, in 7 my judgment, they will be told that they are a 8 legal alien or a rightful resident of this 9 country. 10 That reasonable suspicion, I 11 believe, is a dangerous concept. I believe it 12 is subjected to all kinds of different 13 interpretations, and I think it's wrong to make 14 the post-secondary admissions officers in our 15 college institutions into the enforcement arms 16 of the Immigration and Naturalization Service. 17 If all this bill did was say, you 18 either have to be a citizen or legal resident or 19 legal alien, then you can go to our schools, I 20 would support that bill provided it had due 21 process protection. This bill, I think, 22 unnecessarily goes beyond that, Mr. President, 23 and for that reason, I will be voting no. 6446 1 ACTING PRESIDENT KUHL: Senator 2 Dollinger will be recorded in the negative. 3 Secretary will continue to call 4 the absentees. 5 THE SECRETARY: Senator Hannon. 6 ACTING PRESIDENT KUHL: Senator 7 Hannon to explain his vote. 8 SENATOR HANNON: Mr. President, I 9 am going to support this bill, but I would hope 10 that we don't get into too much of overtones in 11 regard to our relationships with people who are 12 coming here from other countries. Obviously if 13 we have people who are breaking the law, that 14 can't be condoned, but if we don't continue to 15 recognize that this state has had a large rich 16 tradition of having people coming as immigrants 17 and becoming part of our society, we're going to 18 be setting the wrong tone. So I think there is 19 a need to avoid that divisiveness. 20 Thank you. I vote in the 21 affirmative. 22 ACTING PRESIDENT KUHL: Senator 23 Hannon in the affirmative. 6447 1 Secretary will continue to call 2 the absentees. 3 THE SECRETARY: Senator Johnson. 4 SENATOR JOHNSON: Aye. 5 THE SECRETARY: Senator Kruger. 6 (There was no response. ) 7 Senator Onorato. 8 (There was no response. ) 9 ACTING PRESIDENT KUHL: Announce 10 the results. 11 THE SECRETARY: Ayes 39, nays 12 17. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 The Chair recognizes Senator 16 Skelos. 17 SENATOR SKELOS: Mr. President, 18 would you call up Calendar 905, by Senator 19 Present. I believe the objection has been 20 removed. 21 ACTING PRESIDENT KUHL: The 22 Secretary will read Calendar Number 905. 23 THE SECRETARY: On page 42, 6448 1 Calendar Number 905, by Senator Present, Senate 2 Print 993, an act to amend the Tax Law, in 3 relation to penalties and interest assessments 4 with respect to sales tax reporting. 5 ACTING PRESIDENT KUHL: The 6 Secretary will read the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect on the first day of the 9 quarterly period. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes 58. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 Senator Skelos. 17 SENATOR SKELOS: Mr. President, 18 would you call up Calendar Number 922, by 19 Senator Saland, and with the consent of the 20 Minority prior to entering into the debate, if 21 you could have the last section read for several 22 members voting. 23 ACTING PRESIDENT KUHL: The 6449 1 Secretary will read Calendar Number 722. 2 THE SECRETARY: On page 26, 3 Calendar Number 722, by Senator Saland, Senate 4 Print 2039, an act to amend the Public Health 5 Law and the Executive Law, in relation to court 6 authorization for human immunodeficiency virus 7 related testing for certain sex offenders. 8 SENATOR LEICHTER: Mr. President. 9 ACTING PRESIDENT KUHL: The 10 Secretary will read the last Section. 11 THE SECRETARY: Section 8. This 12 act shall take effect on the first day of 13 November. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll.) 17 ACTING PRESIDENT KUHL: Senator 18 Tully, how do you vote? 19 SENATOR TULLY: Aye. 20 ACTING PRESIDENT KUHL: Senator 21 Tully will be recorded in the affirmative. 22 Senator Nozzolio, how do you 23 vote? 6450 1 SENATOR NOZZOLIO: Aye. 2 ACTING PRESIDENT KUHL: Senator 3 Nozzolio will be recorded in the affirmative. 4 Senator Larkin, how do you vote? 5 SENATOR LARKIN: Aye. 6 ACTING PRESIDENT KUHL: Senator 7 Larkin will be recorded in the affirmative. 8 Senator Seward, how do you vote? 9 SENATOR SEWARD: Aye. 10 ACTING PRESIDENT KUHL: Senator 11 Seward in the affirmative. The roll call is 12 withdrawn. We're on -- Calendar Number 722 is 13 before the house for debate. 14 SENATOR PATERSON: Explanation. 15 ACTING PRESIDENT KUHL: Senator 16 Saland, an explanation has been asked for by the 17 Acting Minority Leader, Senator Paterson. 18 SENATOR SALAND: Thank you, Mr. 19 President. 20 Mr. President, this bill is a 21 bill which has been before us in a couple of 22 prior sessions. What it does, Mr. President, is 23 to create a process whereby someone who has been 6451 1 the victim of a sexual offense would have the 2 ability to make application to a court for an 3 order to have his or her assailant tested for 4 the presence of HIV. 5 The bill elaborates the mechanism 6 by which that shall be accomplished, establishes 7 what constitutes reasonable cause and basically 8 uses three events for reasonable cause. One is 9 conviction, another is indictment and the third 10 is being held over by a local court for action 11 by a grand jury. 12 The bill endeavors to ensure the 13 confidentiality of the defendant by making it 14 clear that the information that's obtained is 15 not available in any other civil or criminal 16 proceeding. 17 It sets up a petition process by 18 which the individual who is making application 19 to the court would have to show that the assail 20 ant had been first afforded the opportunity to 21 submit voluntarily to the testing and goes on to 22 -- to talk in terms of the applicant or the 23 petitioner being advised of the importance of 6452 1 counseling and, in addition, to the limitations 2 of current information with regard to 3 HIV-related testing. 4 This bill is a response, on my 5 part, to situations which have been brought to 6 my attention, at least two of which were brought 7 to my attention in media accounts out of the 8 city of New York where a defendant, in an effort 9 to obtain a better plea bargain, used the 10 refusal to take an HIV test as an effort -- in 11 an effort or as a basis for obtaining a better 12 plea bargain, something which I'm sure would not 13 sit well with anybody. 14 In addition, the federal 15 government has required by reason of legislation 16 that it enacted back in 1990 that by September 17 30 of 1994, all states have on their books 18 legislation that would permit testing of 19 defendants in HIV -- I'm sorry -- of defendants 20 in sex offense cases and failure to comply would 21 result in a loss of Edward Byrne Memorial state 22 and local law enforcement funds to the tune of 23 ten percent of your available funding. Last 6453 1 year the state of New York lost, I believe, 2 $2.25 million because of the failure to comply. 3 This year we will lose $2.8 million. 4 This is a victims' rights bill. 5 It's intended as nothing but a victims' rights 6 bill and certainly should not be immersed or 7 submerged in the controversy that somehow or 8 other always adheres to the issue of AIDS and 9 HIV testing. 10 Mr. President, I'm available to 11 respond to any questions. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: Mr. President, 15 if Senator Saland would yield for a question. 16 ACTING PRESIDENT KUHL: Senator 17 Saland, do you yield to Senator Paterson? 18 SENATOR SALAND: Yes, Mr. 19 President. 20 ACTING PRESIDENT KUHL: The 21 Senator yields. 22 SENATOR PATERSON: Senator 23 Saland, why have you exceeded the federal 6454 1 standard for dollars that the state would 2 receive by going beyond the conviction to 3 enabling this test to be taking place based on 4 an indictment or the defendant being held over? 5 SENATOR SALAND: I would beg to 6 differ with you. The recently enacted onmibus 7 criminal -- omnibus crime bill this year, in 8 fact, requires such testing at the federal level 9 where a defendant has been charged with the 10 offense in a state or federal court. 11 SENATOR PATERSON: But we don't 12 lose any test -- dollars for failing to do it. 13 I'm saying they may be doing it, but we don't 14 lose any money by failing to do it. 15 SENATOR SALAND: No, I'm 16 distinguishing -- the federal standard as 17 adopted by the fed's in their own omnibus crime 18 bill was for the underlying charge to be 19 sufficient grounds for the testing. The 20 enabling legislation that goes back to 1990 21 merely requires the testing, and some states 22 have done it on conviction and some states have 23 done it pre-conviction. 6455 1 My suggestion is pre-conviction, 2 which is entirely consistent with the report of 3 the prior governor, Governor Cuomo's Task Force 4 on Rape and Sexual Assault which issued its 5 report in April of 1990 and recommended 6 pre-conviction testing. 7 SENATOR PATERSON: If Senator 8 Saland - 9 SENATOR SALAND: It was not 10 exactly a haven for right wing Republican 11 Neanderthals either. 12 SENATOR PATERSON: Mr. President, 13 if Senator Saland would yield for a question. 14 SENATOR SALAND: Yes. 15 ACTING PRESIDENT KUHL: Senator, 16 do you continue to yield? The Senator yields. 17 SENATOR PATERSON: I think this 18 is an issue of trying to protect victims, and I 19 think that whatever -- whichever way someone 20 classifies themselves politically, I think we're 21 all in favor of doing that, Senator; I'm sure 22 you are, but my question is if the standard was 23 the standard of conviction, wouldn't that 6456 1 eliminate an issue that you were talking about 2 earlier where the defendant, in a malicious way, 3 uses the test as a bargaining tool in the actual 4 negotiation of a plea? 5 SENATOR SALAND: Permit me to 6 read to you from the Governor's reports - 7 Governor's task force report, and I'm quoting so 8 I can't claim authorship of the language. 9 "The question of how and when to 10 test the alleged sex offenders remains *** the 11 task force considered and rejected waiting until 12 an accused is convicted." 13 It goes on to say, "There are a 14 number of acquittals and dismissals where the 15 defendant may have nevertheless infected the 16 victim" and then continues to say "Furthermore, 17 a prosecutor may be unable to obtain an 18 indictment for reasons unrelated to whether the 19 accused is the true perpetrator." 20 Now, the statistics, when it 21 comes to sexual offenses, rapes are staggering. 22 The conviction rate is a relatively low rate. 23 You're talking about perhaps out of somewhere in 6457 1 the area of 5,000 reported rapes where sexual 2 crimes in this state under the most recent 3 statistics, less than half of those resulted in 4 arrest and probably at best -- at best, ten to 5 fifteen percent of those that resulted in arrest 6 resulted in conviction, and that is not to say, 7 as was indicated in this report, that the fact 8 that there was not a conviction doesn't mean 9 that a victim was not infected or had the risk 10 of being infected. 11 So I, again, believe that 12 wholeheartedly endorses my position that it 13 should be where reasonable cause is established 14 pre-conviction, and we define reasonable cause 15 in this bill as being either indictment or being 16 held over by a local court and obviously upon 17 conviction. 18 ACTING PRESIDENT KUHL: Senator 19 Paterson. 20 SENATOR PATERSON: Admonishing 21 that a significant civil liberties issue exists 22 for the purposes of this discussion, I'm going 23 to accept that, Senator Saland, just in the 6458 1 sense that there is a low conviction rate, 2 you're absolutely right. 3 Your legislation does address a 4 situation where a number of individuals are in 5 danger, and I would then ask you to yield for 6 another question. 7 ACTING PRESIDENT KUHL: Senator 8 Saland, do you continue to yield? 9 SENATOR SALAND: Certainly, Mr. 10 President. 11 ACTING PRESIDENT KUHL: The 12 Senator yields. 13 SENATOR PATERSON: And I would 14 ask you how many tests do you feel should be 15 conducted? 16 SENATOR SALAND: I don't think 17 that it's my place nor yours to determine how 18 many tests should be conducted. What is 19 important as is required in this application 20 process is that the victim be apprised of the 21 process, be apprised of the ability to take or 22 require the test to be taken, of the lack of 23 certainty in the testing process, of the need 6459 1 for counseling. It may well be that there will 2 be numerous tests that will be required. 3 Testing of the victim certainly 4 is important. No one can deny that. It's 5 critical that the victim be tested, but by the 6 same token when the victim has undergone the 7 anguish, undergone the turmoil, undergone the 8 sheer degradation of being subjected to these 9 types of acts, that victim should have the right 10 to request a court, on a finding of reasonable 11 cause, to have his or her assailant tested to 12 determine if there is the presence of the HIV. 13 ACTING PRESIDENT KUHL: Senator 14 Paterson. 15 SENATOR PATERSON: Mr. President, 16 Senator Saland can speak for himself, but I will 17 reserve the right to express how many tests I 18 think would actually have to be conducted, and 19 the reason is because if you only conduct one 20 test, it increases the probability that you're 21 getting an incorrect test. You could possibly 22 have a person who has the HIV virus but does not 23 evidence the symptoms that might be picked up on 6460 1 a test, so if you don't come back and conduct a 2 second test, Senator Saland, you've given the 3 victim misinformation, so if you think the 4 victim is already in peril and is already in an 5 emotionally charged situation by the fact that 6 they've been put in in unfortunate circumstance, 7 now giving them the results of one test where 8 they might test negative for HIV when they 9 actually have it, falsely assuring the victim 10 that they don't have it, I suggest, would be a 11 very dangerous situation to put the victim in, 12 don't you agree? 13 SENATOR SALAND: I would call 14 your attention, Senator Paterson, to the last 15 page of the bill, page 5, and there we talk 16 about out-of-pocket loss for purposes of 17 compensation by the crimes -- Crime Victims 18 Board, and there's no limitation in this 19 language on the number of tests that a victim 20 may obtain. 21 I, for one, would never tell a 22 victim not to take one test or were I asked my 23 opinion, I would certainly counsel that person 6461 1 to take multiple tests, and there's nothing in 2 this legislation that is intended to convey the 3 impression that they should only have one test. 4 You may choose to create that as a stalking 5 horse but you're really, well, well off base. 6 SENATOR PATERSON: Mr. President, 7 if Senator Saland would continue to yield. 8 ACTING PRESIDENT KUHL: Senator 9 Saland, do you continue to yield? 10 SENATOR SALAND: Yes, Mr. 11 President. 12 ACTING PRESIDENT KUHL: The 13 Senator continues to yield. 14 SENATOR PATERSON: I don't know 15 how I'm off base, Senator, when what I'm telling 16 you is accurate, and I never said that the 17 legislation did not limit the number of tests. 18 I just asked you how many tests did you think 19 should be conducted because I wanted to 20 determine whether or not there was a probability 21 that there would have to be more than one test 22 to establish that the assailant -- we're not 23 talking about the victim -- that the assailant 6462 1 has HIV, so I don't know how you can tell me 2 that that's off base. 3 SENATOR SALAND: I'm not quite 4 sure I understand your question. I apologize. 5 Please repeat it. 6 ACTING PRESIDENT KUHL: Senator 7 Paterson. 8 SENATOR PATERSON: To repeat the 9 question, Mr. President, I did not say that your 10 bill limited the number of tests. I asked you 11 the question how many tests you thought needed 12 to be conducted, and I asked the question to 13 determine if there would be a -- an increased 14 probability of accuracy by the increased number 15 of tests, and so I'm asking you, don't you think 16 that there would -- if you required that there 17 be a test, wouldn't you also require that there 18 would have to be more than one rather than not 19 speaking to the issue itself which you said was 20 not your place to do, but what I'm saying is if 21 in a situation where there was one testing and 22 the victim is given those results, that could 23 very much confuse the victim. You told me 6463 1 that's off base. That's absolutely accurate. 2 SENATOR SALAND: I would suggest 3 to you that you might want to look at paragraph 4 4 of the bill. 5 Paragraph 4 of the bill requires 6 that anybody who's making application to the 7 court be apprised of the processes involved in 8 the testing procedure, be apprised of the -- and 9 I call your attention to lines 36, 37 and 38, 10 that the applicant has received counseling by a 11 physician or public health official who 12 understands the limitations and the information 13 to be obtained through HIV-related testing on 14 the proposed subject, current scientific 15 assessment of the risk of transmission of HIV 16 from the exposure he or she has experienced and 17 the need for the applicant to undergo HIV 18 related testing to definitively determine his or 19 her HIV status. 20 Now, if you mean to tell me that 21 somebody who's going through counseling would 22 not be apprised of the importance of multiple 23 testing, then you know even less than I do, 6464 1 because that's a given. It's a given under any 2 counseling therapy. You know that as well as I 3 do. Read the bill; you would be apprised of it. 4 ACTING PRESIDENT KUHL: Senator 5 Paterson. 6 SENATOR PATERSON: Senator, I did 7 read the bill and I'm not talking about the 8 victim. I'm talking about the assailant. 9 You're talking about counseling. 10 SENATOR SALAND: You mean to tell 11 me, Mr. Paterson, that a victim is not going to 12 be counseled about the importance, (a) of her 13 testing and about the -- about the fact that 14 even her testing cannot be, in effect, an assur 15 ance to her unless it's done over a multiple 16 period of -- multiple number of tests? 17 Secondly, she's going to be 18 apprised that one test and merely one test of 19 whomever her assailant may be or his assailant 20 may be will not necessarily be dispositive. I 21 know that. You know that, but that's the 22 victim's call, not mine, not yours. 23 ACTING PRESIDENT KUHL: Senator 6465 1 Paterson. 2 SENATOR PATERSON: Mr. President, 3 would Senator Saland yield for a question? 4 ACTING PRESIDENT KUHL: Senator 5 Saland, do you continue to yield? 6 SENATOR SALAND: Yes, Mr. 7 President. 8 ACTING PRESIDENT KUHL: The 9 Senator yields. 10 SENATOR PATERSON: Senator, have 11 you in this discussion heard me say one word 12 about the victim? 13 SENATOR SALAND: I'm responding 14 to your question. I just responded to your 15 question. I said to you that she's going to be 16 apprised in the course of her counseling for 17 whatever therapy she or he receives that one 18 test of the assailant will not necessarily be 19 dispositive. 20 SENATOR PATERSON: Mr. President. 21 ACTING PRESIDENT KUHL: Senator 22 Paterson, the floor is yours. 23 SENATOR PATERSON: Would Senator 6466 1 Saland yield for a question? 2 ACTING PRESIDENT KUHL: Senator 3 Saland, do you continue to yield? 4 SENATOR SALAND: Yes, Mr. 5 President. 6 ACTING PRESIDENT KUHL: The 7 Senator continues to yield. 8 SENATOR PATERSON: Senator, in 9 this discussion, have you heard me say one word 10 about the victim in any sense? I haven't said a 11 word about the victim being tested yet. 12 SENATOR SALAND: I can't recall 13 what you might have said previously. 14 SENATOR PATERSON: What I'm 15 telling you is you keep telling me about the 16 victim. I haven't mentioned the victim yet. 17 SENATOR SALAND: I would beg to 18 differ with you. I just said it twice. I'll 19 say it a third time. The victim will be 20 apprised that the one test of his or her 21 assailant will not necessarily be dispositive. 22 Isn't that the answer you're looking for? 23 You're concerned about whether one test of an 6467 1 assailant or a defendant is going to be adequate 2 for purposes of coming up with a dispositive 3 result? Is that not what you're not driving at; 4 and I'm telling you in response to your question 5 or your innuendo that there will be profession 6 als that will provide that information to the 7 person who has been the victim of the rape or 8 the sodomy or whatever sexual perversion he or 9 she has been subjected to. 10 ACTING PRESIDENT KUHL: Senator 11 Paterson, the floor is yours. 12 SENATOR PATERSON: In a word, 13 no. I didn't raise that and I was never talking 14 about that, and that's what I'm trying to tell 15 you right now. 16 I'm talking not about the 17 informing of the victim. I'm talking about the 18 reliability of the test. That's what I'm 19 talking about, the reliability of the test, and 20 so what I was referring to is how many times the 21 test would be administered. In other words, if 22 you're going to give information -- I would 23 concede to talk about the point that you have 6468 1 been addressing right now to say that, if you're 2 going to give information, before you even give 3 information, you have to make a determination 4 that the -- that the information is even 5 remotely reliable, and that's why I asked you 6 the question how many times you thought the test 7 should be administered. 8 In other words, I accept what 9 you're saying. We could take a test that's 20 10 percent reliable and then go and tell the victim 11 that the test is 20 percent reliable but this is 12 what we came up with, but scientifically that 13 would be dismissed out of hand. It would be 14 absolutely outrageous to use an improper 15 selection of the actual information and then to 16 inform someone and think that you're actually 17 helping them when all you're doing is confusing 18 them. 19 What I'm saying, Senator Saland, 20 is that we have to first determine to what 21 extent we test to determine whether or not the 22 test is actually accurate. So I ask you again, 23 how many times you would suggest that the test 6469 1 be conducted? 2 SENATOR SALAND: I suspect this 3 could go on all day. We're talking not to each 4 other but at each other. I've explained to you 5 and I thought to any reasonable person that 6 there are professionals who will be making those 7 decisions. Were it me, were it a member of my 8 family, I certainly would want as many tests as 9 I could have. That would be what I would do 10 subjectively, but I would do that based upon the 11 advice that I would get from people such as the 12 people who have to be part of this process, the 13 people who you, in your petition, have to allege 14 you have counseled with and received advice 15 from. Their input, their expertise certainly is 16 far more valuable than mine. 17 ACTING PRESIDENT KUHL: Senator 18 Paterson. 19 SENATOR PATERSON: Mr. President, 20 I want to thank Senator Saland for that answer, 21 because that brings me to the point that I'm 22 trying to make, that most professionals in the 23 field are very suspect of the reliability of 6470 1 this kind of test, because you have a number of 2 situations. You have false-positives that occur 3 in HIV testing. You actually have a situation 4 when the person first contracts the virus where 5 they may actually elude the test by going back 6 and forth from HIV-negative to HIV-positive in a 7 matter of days so that the day you pick the test 8 is giving you a snapshot of the situation that's 9 not actually accurate of the whole, and then you 10 have the obvious circumstance where the person 11 has contracted the HIV virus but it doesn't show 12 up in the test generally for six to eight 13 months, Senator Saland, and so in those partic 14 ular cases, to be specific, the professionals in 15 the field will tell you that the test is 16 absolutely not something that can be based on 17 fact but is really something that relates more 18 to interpretation. 19 Now, we're going to take the 20 results of that test and inform the victim. The 21 problem we have here now is that you don't know 22 whether or not the assailant actually infected 23 the victim of the crime. The assailant may be 6471 1 guilty of the crime but whether they actually 2 infected the victim is also a matter for which 3 -- and now I will address that fact -- the 4 victim is tested. 5 So all I'm saying to you, Senator 6 Saland, is that it is so highly improbable that 7 you can get an accurate enough result at a 8 specific period of time, otherwise I would be 9 inclined to agree with you in these types of 10 situations where we can come up with an accurate 11 test. 12 All I'm saying to you -- and I'm 13 saying it to you, not at you -- is that, 14 unfortunately, we have started to take the 15 process of HIV testing and thinking that it may 16 be as accurate as say a test for tuberculosis or 17 a test for syphilis where it would actually 18 work, but this situation, it's not only a 19 dangerous disease, Senator, it is so highly 20 improbable that you can even measure it at first 21 that it's so -- for an example, if you were 22 going to try to use AZT as prophylactic, you 23 have to use that immediately, so even before - 6472 1 even the advice you would have to give the 2 victim is that the victim would have to go on 3 AZT immediately if they were going to use it as 4 a prophylactic, and the reason would be because 5 you can't depend on the test to actually be 6 accurate, so in the interest of health, you 7 would want to use it immediately. At the same 8 time, if you have a person who's treated with 9 AZT who doesn't have the HIV virus, you're going 10 to have significant damage to the immune system 11 of the actual victim. 12 So I'm not trying to be unusually 13 contentious, Senator, I'm just saying that, in 14 an attempt to address an issue where you have 15 been very sensitive to the victims of crimes, 16 I'm just suggesting to you that it might not 17 always be the best course to mandate this test 18 ing in a situation where medical professionals 19 will tell you that the results have not been, to 20 this point, particularly accurate. 21 If we get another test that would 22 be more revealing, I think that your bill would 23 have more merit; otherwise, I think the general 6473 1 issue that you are trying to resolve took a lot 2 of effort and I commend you for it, but I'm just 3 reiterating for the last time that the HIV test 4 is one that is not accurate enough nor is it not 5 indicative enough for us to be using it in this 6 kind of a circumstance. 7 ACTING PRESIDENT KUHL: The Chair 8 recognizes Senator Abate. 9 SENATOR SALAND: Mr. President. 10 ACTING PRESIDENT KUHL: Senator 11 Saland, why do you rise? 12 SENATOR SALAND: Mr. President, 13 Senator Paterson, in his comments referred to 14 mandating testing. There is absolutely - 15 ACTING PRESIDENT KUHL: Senator 16 Saland, there are two other members who have 17 asked to be recognized. You will have an 18 opportunity to refer back to Senator Paterson's 19 comments in a moment. If you would like to go 20 on the list, I'll put you third. 21 Thank you. 22 SENATOR SALAND: Thank you, Mr. 23 President. 6474 1 ACTING PRESIDENT KUHL: Senator 2 Abate. 3 SENATOR ABATE: Yes. Would 4 Senator Saland yield to a question? 5 ACTING PRESIDENT KUHL: You're 6 going to get an opportunity sooner than you 7 thought, Senator Saland. 8 SENATOR ABATE: A question or 9 two. 10 ACTING PRESIDENT KUHL: Will you 11 yield? The Senator yields. 12 SENATOR ABATE: Yes. Senator 13 Saland, I applaud you. You certainly are a 14 crime victim advocate. I consider myself as a 15 crime victim advocate. We have a long history 16 of supporting crime victims, and I want to 17 address two of the issues that you say are 18 compelling reasons to support this legislation. 19 The first was the preservation of 20 federal funding, and I want you to acknowledge 21 that the Governor has a budget bill and it is 22 number 1318 which calls for the mandatory test 23 ing of sex offenders after conviction, and I 6475 1 believe the Governor has received some wise 2 counsel because he believes the passage of that 3 legislation, which is only the testing of 4 offenders post-conviction, would preserve these 5 federal fundings. Do you agree with the 6 Governor's analysis? 7 SENATOR SALAND: Do I think that 8 merely testing on conviction will preserve? 9 Yes, I do. 10 SENATOR ABATE: Yes. So the 11 Governor is wise in his -- in his suggestion 12 that this legislation would be appropriate, and 13 wouldn't you also say that is a wise decision 14 because then it avoids the constitutional 15 arguments that it's an unwarranted intrusion 16 upon people who are accused of crimes? These 17 are not people who are convicted of crimes at 18 the indictment stage or post-arraignment stage. 19 This avoids all those constitutional issues. 20 So in that sense - 21 SENATOR SALAND: If we lived in 22 fear of avoiding constitutional issues, much of 23 the legislation that we enact would never be 6476 1 enacted. Now, the Schmerber case going back to, 2 what, the '60s - 3 SENATOR ABATE: The '60s. 4 SENATOR SALAND: -- basically 5 said where you're dealing with DWI, you could 6 reasonably within the Fourth Amendment take 7 blood from somebody prior to conviction. Now, I 8 don't think where there's a substantial state 9 interest as occurs here that you're going to 10 find the kinds of constitutional problems that 11 people allege will occur. 12 I'm not questioning the wisdom of 13 the Governor. We're having a difference of 14 opinion. I think that my approach is a better 15 approach. I think it avoids using the tool as a 16 -- of a refusal to take the test as a means of 17 a plea bargain. It eliminates it. 18 I can understand Senator 19 Paterson's position as he states it. I guess he 20 would not even support a bill such as the 21 Governor's, would just rely merely on conviction 22 for fear that somehow or other the testing is 23 inaccurate. 6477 1 However, there is no mandatory 2 testing. There is nobody who's required to make 3 application to the court. It's purely a call of 4 the individual who is given the option to 5 determine whether he or she wants to make a 6 request to find out whether his or her assailant 7 is, in fact, HIV-positive. It's no mandate. 8 SENATOR ABATE: Senator Saland, 9 would you yield to another question? 10 ACTING PRESIDENT KUHL: Senator 11 Saland, do you yield? 12 SENATOR SALAND: Yes. 13 ACTING PRESIDENT KUHL: The 14 Senator yields. 15 SENATOR ABATE: Thank you for 16 being so gracious. 17 I would still like to talk about 18 the financial issues you raised, why it's so 19 compelling to pass this legislation so federal 20 funding does come into New York State. 21 If we were really serious, 22 though, about this federal funding, we would be 23 looking at the Governor's bill. There will be a 6478 1 greater likelihood of a two-house passage. It 2 seems to me by placing the mandatory testing 3 pre-conviction, we are actually jeopardizing 4 this funding because we know all too well this 5 will be a one-house bill. It will go nowhere 6 and we will lose federal dollars. 7 SENATOR SALAND: Are you familiar 8 with this report? 9 SENATOR ABATE: Yes. 10 SENATOR SALAND: You were on this 11 task force. 12 SENATOR ABATE: Yes, I was. 13 SENATOR SALAND: There is no 14 minority opinion, there's no dissenting opinion, 15 there's nothing in here that says that there 16 was. 17 SENATOR ABATE: Yes. Well, we 18 had large discussions around that time and that 19 report was released in 1988. 20 SENATOR SALAND: 1990. 21 SENATOR ABATE: Was it 1990? 22 SENATOR SALAND: April of 1990. 23 SENATOR ABATE: I was on a number 6479 1 of the committees that discussed that. None of 2 the victims' community at that point could reach 3 a consensus on this issue. In fact, the Victims 4 Services Agency last year, which is the largest 5 agency that provides services to victims in this 6 state, was opposed to this legislation, and they 7 were opposed not because they weren't concerned 8 obviously for victims, the devastation that 9 particularly rape and sexual assault places on 10 individuals. 11 There was a recognition there was 12 a need for victims to have accurate information 13 so they could deal with their health and safety 14 and go on with their lives. The concern was by 15 Victims Services last year and also the concerns 16 raised by the Association of the Bar of the 17 state of New York is that there would be false, 18 untimely, inaccurate information given to 19 victims, and the fear was that victims would 20 rely on this information and, certainly, 21 Senator, you would recognize there is a 22 possibility that inaccurate information through 23 the testing of these defendants would give a 6480 1 false assurance to victims. 2 SENATOR SALAND: I would beg to 3 differ with you. I think that is nothing but a 4 straw man. I think it's absolute poppycock. If 5 you read the bill, the bill has a mechanism that 6 says whoever makes the application has to, in 7 effect, be pre-screened by someone, a profes 8 sional, someone who deals in this type of 9 therapy, who is going to apprise them of all of 10 these things that are being raised as objections 11 to the bill. It's all there. It's all laid 12 out. It's right there. They're going to do it 13 in a professional fashion. It's not going to be 14 anecdotal. It's going to be done as you would 15 want it to be done. 16 Now, maybe it's a turf thing. 17 Maybe somehow or other people are concerned that 18 their turf is being trod upon. The reality is 19 any reasonable reading of this bill would say 20 that the very things that you're raising, these 21 issues will come into the mix, and once that 22 person has done that, he or she does not have to 23 go any further. They don't -- they must be 6481 1 counseled before they can even make the 2 application. That's one of the elements that 3 they have to allege. 4 SENATOR ABATE: I can -- Senator, 5 would you respond to another question? 6 SENATOR SALAND: Certainly. 7 SENATOR ABATE: I can see a 8 scenario that the victim makes an application 9 for testing and the -- and that victim is 10 counseled, being told that any -- you have to be 11 tested yourself in order to get accurate 12 information. The defendant is then tested and 13 the defendant is found to be negative, but it's 14 a false -- it's a false test because six months 15 later, if that defendant was tested again, that 16 defendant would be tested positive for the AIDS 17 virus, and let's say the victim then, herself or 18 himself -- most likely herself -- gets tested 19 and she tests negative, and then the case ends. 20 The defendant takes a plea. Somehow it's a 21 quick plea bargain; there's no trial. It's all 22 wrapped around in 45 days and she leaves the 23 system, and she then says "I tested negative. 6482 1 The defendant tested negative. I'll walk away. 2 I don't need to be tested again", and because 3 there's a confirmation by that defendant's test 4 that, "Oh, I probably -- I'm not at risk" -- and 5 my concern is that we're giving not reliable 6 information to the victim where I would like to 7 see this money -- and we don't have a lot of 8 money -- to go into counseling of the victim, 9 multiple testing of the victim, more rape crisis 10 centers, supportive centers for that victim, for 11 that survivor. What we're doing is misplacing 12 limited dollars for numbers of tests, and we 13 have to test the defendant many times to ensure 14 accurate information be given to the victim. 15 That's my concern. 16 I'm sure you share those concerns 17 but, on balance, you would rather give that 18 information to the victim. Is that an accurate 19 appraisal of - 20 SENATOR SALAND: I'm not quite 21 sure of your characterization, but suffice it 22 for me to say that the very issue that you 23 raised, your concern about a quick disposition 6483 1 which, as you know -- I believe you're a former 2 prosecutor -- in a sexual assault or rape case 3 is highly unlikely, but even assuming the 4 scenario that you gave me that such a thing does 5 occur, again, the application process, the 6 petitioner, the victim, the survivor, that 7 person is going to have to, in order to make 8 application, to have spoken with a physician, a 9 health -- a health official, some qualified 10 person. They're going to be apprised. They're 11 going to be apprised of the need for multiple 12 testing. They're going to be apprised of some 13 of the problems or all of the problems 14 associated with testing. 15 This is purely a victim's call. 16 Whether you want to call the person a victim or 17 survivor, it's up to them. If that's what they 18 want, that's what they should have the right to 19 have. Nobody is requiring them to do it. 20 Nobody is saying that you must. They just - 21 what we are saying and what the federal 22 government is saying and what 40-some-odd other 23 states are saying is people should have that 6484 1 option. 2 SENATOR ABATE: On the bill. 3 ACTING PRESIDENT KUHL: Senator 4 Abate on the bill. 5 SENATOR ABATE: I take an unusual 6 position in this case. I would support legisla 7 tion that required mandatory testing post 8 conviction because, on balance, although I 9 believe it still would be faulty information 10 given to victims, that would be a way, a 11 reasonable way, for the state to ensure those 12 federal dollars. 13 I think once someone is convicted 14 of a sex offense, their due process rights have 15 been afforded. There's -- a right to a fair 16 trial has been afforded. At that point, I don't 17 believe it's an unreasonable intrusion in terms 18 of that testing, but I would go back to the 19 Association of the Bar of the city of New York 20 which characterizes this legislation in terms of 21 pre-conviction as poorly conceived, potentially 22 unconstituional and medically inappropriate, and 23 my concern is, again, around the constitutional 6485 1 issues, the fact that the victim will be given 2 inaccurate and false information in many cases, 3 that the money could be better spent to directly 4 help victims ensure more extensive counseling, 5 not just within the criminal justice system for 6 long hours and long years past that criminal 7 justice system. 8 I'm also fearful that this 9 legislation will add to discrimination against 10 victims. We're talking about this information 11 to remain in a confidential setting. We all 12 know that during the course of a trial it lends 13 itself to sensationalism. Once the public 14 learns, whether through a leak or a newspaper 15 report that the defendant is HIV-positive, the 16 victim then will be stigmatized even though he 17 or she may not, in fact, be infected with the 18 disease. 19 So I'm fearful although with good 20 intentions you're trying to help the victim, in 21 the long run, this legislation will hurt the 22 victim. I think there's a better way of 23 protecting the victim, and I would not be able 6486 1 to support this legislation as it stands in its 2 current form. 3 ACTING PRESIDENT KUHL: The Chair 4 recognizes Senator Leichter. 5 SENATOR LEICHTER: Mr. President, 6 thank you. 7 If Senator Saland would be good 8 enough to yield. 9 ACTING PRESIDENT KUHL: Senator 10 Saland, do you yield? 11 SENATOR SALAND: Senator 12 Leichter, yes, of course. 13 ACTING PRESIDENT KUHL: The 14 Senator yields. 15 SENATOR LEICHTER: I think all of 16 us share your desire to be helpful to victims. 17 The problem I have with this bill is I just 18 don't see what this bill does that, in any 19 respects or ways, helps a victim. I really 20 don't. 21 Let me try to go through it and 22 maybe you can give me an answer. Somebody has 23 the misfortune or the tragedy -- it's more than 6487 1 a misfortune -- tragedy to have been raped, 2 sexually assaulted in the way that it could lead 3 to the transmission of the HIV virus. 4 Now, I can't understand and maybe 5 that you can explain to me, how testing the 6 alleged assailant -- and forgetting for a moment 7 the due process issues and some of the very 8 valid questions that were raised by Senators 9 Paterson and Abate, but what does it tell you 10 that the alleged assailant is HIV-positive? 11 SENATOR SALAND: What you're 12 doing, Senator Leichter, is permitting a victim 13 or a survivor, whichever term you prefer, to 14 basically have some ability to gather 15 information that he or she may think, and may 16 very well be important to his or her well-being, 17 and let me just quote to you a statement from a 18 survivor, a woman who had been the victim of a 19 rape, "having been forcibly violated once by 20 your attacker, you now have to submit to testing 21 and the dreadful waiting that accompanies it. 22 On the other hand, your attacker, if caught, is 23 protected from this indignity. You see in the 6488 1 minds of AIDS professionals in New York State 2 every AIDS sufferer is a victim, including 3 rapists, and forcing rapists to submit to 4 testing is an example of pitting victim against 5 victim." 6 Well, in order -- we all sustain 7 our traumas. Thank goodness I never had to 8 sustain this type of trauma. I know you 9 sustained traumas, as bad as they have been, you 10 have never had to endure this type of a trauma. 11 The idea of a victim seeking the ability to 12 somehow or other restore their life, to somehow 13 or other be placed back in the position that's 14 as close to the position that he or she was in 15 prior to that trauma is something that may well 16 be hard, if not impossible, for some people to 17 identify with, and I don't put that at your 18 feet. 19 The reality is, as I said 20 earlier, this is something that is purely 21 optional. This is something that a victim, 22 after they have had professional assistance 23 which is required as part of the petition 6489 1 problem -- process, may or may not choose to do, 2 but as was pointed out both in this report which 3 I alluded to earlier, and by others, that while 4 the testing process is a less than perfect 5 process, the results emanating from the process 6 are less than perfect. There is some reason to 7 believe that testing as soon as possible may, in 8 fact, result in a more accurate indication of 9 the HIV status of an attacker. 10 SENATOR LEICHTER: Senator, with 11 all due respect to you and the statement you 12 read from the victim, I don't think it's 13 responsive or really makes sense. 14 We now have a victim. We want to 15 help that victim. You and I and everybody 16 agrees. We want to help the victim. Now, if 17 there was some -- and let's assume that the test 18 is -- is fairly accurate -- and I don't accept 19 the argument that, you know, the test is faulty 20 -- it may be faulty at some time, but I think 21 that it is viewed as generally a good indication 22 of whether somebody is HIV-positive or not, but 23 the fact that the alleged assailant is 6490 1 HIV-positive, what does that allow you to do or 2 what does it enable you to do to help the 3 victim? That's really what we're dealing with, 4 as far as the victim here talks about, you know, 5 the indignity and the terrible things she went 6 through, absolutely right, and if that assailant 7 is guilty, you and I hope that he's going to be 8 sent to jail for a long, long, long time, and 9 that obviously should happen; but right now, as 10 I understand this legislation, you're trying to 11 help the victim, and if there was some way -- in 12 other words, if we knew that there was an 13 antidote to the HIV virus, we would all say, 14 "Oh, by God, let's test him right away because 15 he tests positive", you begin giving the victim 16 this sort of medication. Unfortunately, we're 17 not at that point. We may never be. 18 So now the -- the alleged 19 assailant who tests positive, there's nothing 20 you can do. You just got -- in fact, if 21 anything, I think it's worse for the victim 22 because now she not only underwent this terrible 23 experience, now she's got to wait and sit until 6491 1 such time as you can test her and find out did 2 she, as a consequence of this act, become HIV 3 virus? It just makes that whole period for her 4 worse, and there's absolutely nothing that you 5 can do. 6 If the victim -- I'm sorry. If 7 the alleged assailant tests negative, you've got 8 to test her anyhow. I mean, a doctor would be 9 negligent if he said not to -- not to test her, 10 so what do you gain -- what do you gain by 11 testing the alleged assailant? 12 SENATOR SALAND: I'm finding the 13 question rather difficult to comprehend inasmuch 14 as the logical conclusion from the question is 15 we ought to walk away from any and all people 16 who are HIV-infected because there's absolutely 17 nothing that can be done for them. That seems 18 to be implicit in your question. 19 What you could do for this person 20 is perhaps they may elect to try AZT therapy, 21 they might elect to get into some kind of - 22 some type of supportive counseling that would be 23 of assistance to them. The options -- there's 6492 1 no silver bullet out there that's going to make 2 it all better, we all know that, but the options 3 should not be denied a person in his or her 4 quest to deal with their trauma. 5 SENATOR LEICHTER: Senator 6 Saland, if you would be good enough to continue 7 -- I'm sorry. Maybe I didn't express myself 8 clearly, but you totally missed my question. 9 Let me give you the example. 10 There's a rape. Under your bill, you test the 11 alleged assailant because he has been indicted. 12 He tests positive at that point -- and let's say 13 this happens within a week after the alleged 14 act. At that point, you can't give the victim 15 AZT because the victim has to be tested. The 16 very fact that her assailant was HIV virus 17 doesn't mean that the virus was transmitted, and 18 I believe in most of these instances, it 19 probably would not be transmitted, so you've got 20 to wait. You've got to wait until you test the 21 victim, and in any instance -- and that's my 22 point -- you've got to test the victim. Testing 23 the assailant - 6493 1 SENATOR SALAND: That's a given. 2 That's a given in this bill. 3 SENATOR LEICHTER: I understand 4 it's a given, Senator. Of course, it's a given, 5 and that's the whole point, because you've got 6 to test the victim. You can't take any medical 7 action until after you tested the victim. What 8 do you gain by testing the alleged assailant? 9 Tell me one thing that you gain. 10 SENATOR SALAND: Senator, if you 11 want to intellectualize it, if you want to make 12 this into an intellectual exercise, you put 13 yourself in the posture of the victim. You put 14 yourself in the posture of the victim. The 15 victim has a right to know, and that's what this 16 is all about. 17 If that victim chooses, because 18 they feel that the odds are infinitesimal that 19 they will test positive to disregard the option 20 available to them to have his other her 21 assailant tested, they may do that. They may 22 take your logic and accept it as a given. 23 SENATOR LEICHTER: Mr. President, 6494 1 if my good friend continues to yield - 2 ACTING PRESIDENT KUHL: Senator 3 Saland, do you continue to yield? The Senator 4 continues to yield. 5 SENATOR LEICHTER: I appreciate 6 the sharpness of your argumentative tool, but it 7 -- I'm not trying to intellectualize it. I'm 8 trying to do something for the victim as you 9 are, and I'm trying to deal with a real 10 situation as I, frankly, don't understand you 11 are doing, because if the purpose is to help the 12 victim -- and you and I and everybody agrees you 13 got to test the victim. You can't do anything 14 until you test the victim. If the only reason 15 to test the assailant -- or the alleged 16 assailant -- is as a punitive matter -- because 17 it doesn't do you any good. It doesn't help the 18 victim. If it would help the victim, by God, we 19 ought to do it, Senator, but since you don't 20 advance by one day, by one minute, the medical 21 treatment of the victim if, indeed, she became 22 HIV-positive as a consequence of this attack - 23 no fair giving him the answer. 6495 1 SENATOR SALAND: I didn't hear 2 your last comments, but I assume you concluded 3 with a question. 4 Let me just suggest to you, 5 Senator, that you might wish to use that 6 argument upon the people in your fair city, and 7 I know of one instance that was reported 8 involving a young woman at Columbia University, 9 another that was reported in some legal 10 periodical -- not the New York Law Journal, some 11 Manhattan something or other -- where a 12 defendant was requested to take a test and 13 refused. You may want to prevail upon those 14 traumatized victims that that's not important. 15 You may want to tell them that, you know, "It 16 just doesn't matter. Just take care of 17 yourself. Be good, God bless, and I hope you're 18 okay." Those victims requested -- requested 19 that the defendant undergo HIV testing. The 20 defendant's response in those two cases that I'm 21 familiar with -- and I'm told again anecdotally 22 that there are more -- was that I will do that 23 if you will give me a better plea bargain. 6496 1 I think a victim deserves 2 something a little better than that, forgetting 3 the fact that the federal government is going to 4 take money away from us if we don't do it, 5 forgetting the fact that right now people can go 6 into federal court, if you happen to have a 7 federal court close to you and get this very 8 same relief by making application under the 9 federal act. If you're in New York, you can do 10 that. If you're in Poughkeepsie, you've got to 11 travel down to New York. If you're in Herkimer, 12 I guess you got to travel to Syracuse. 13 The fed's have said you're going 14 to lose money and we're creating a mechanism 15 where there's anything pending in state and 16 federal court for someone who's been the subject 17 of one of these sexual offenses to make 18 application for testing. 19 SENATOR LEICHTER: Mr. President, 20 on the bill. 21 ACTING PRESIDENT KUHL: Senator 22 Leichter on the bill. 23 SENATOR LEICHTER: Thank you very 6497 1 much, Senator Saland. 2 Anybody who was listening to our 3 debate, and I hope they were, I think it's 4 pretty clear now what Senator Saland bases his 5 bill and it's not that in any respect this will 6 provide medical treatment or medical health or 7 actual assistance to the crime victim. I think 8 his argument is that the crime victim, terribly 9 distraught, decides that, in some respects, it 10 would be of assistance to her to know whether 11 her alleged assailant was HIV virus -- I mean 12 HIV -- had the HIV virus, was HIV-positive. 13 There are other things that the 14 alleged victim may very well wish to do to her 15 alleged assailant that, while we have all of the 16 sympathy in the world for her, if there is no 17 public policy rationale for doing it, we would 18 have to say to her, "As much as we want to be 19 helpful to you, this really will not be of help 20 to you, it will not be of help to society. What 21 really needs to be done, unfortunately, in this 22 situation is to wait until such time as you can 23 be tested and the test will give a reasonable or 6498 1 will give an accurate reading", which is not 2 until some days after the alleged attack on 3 her. So you've got to wait for that, and you 4 can't treat her just based on the fact that her 5 alleged assailant tested HIV-positive. 6 So what are you achieving? I 7 don't -- I don't understand the congressional 8 act except that we're responding to the fear, to 9 the anger that people have with people who 10 commit crimes which is understandable and the 11 particular fear when AIDS is involved, but it's 12 an -- but the -- to propose an irrational 13 response doesn't do anything, doesn't help 14 anybody. 15 The answer obviously is to see 16 that the victim gets the proper medical 17 treatment, and I'm sure you want that and I want 18 that, and that requires testing the victim. 19 That's the only way that you would know what to 20 do, and testing the assailant does absolutely 21 nothing. 22 Now, if Congress says you've got 23 to do it, but they say you've got to do it 6499 1 post-conviction -- the Governor has given us a 2 bill to do it post-conviction -- again, I don't 3 think that makes much sense, but I would 4 certainly vote for it rather than lose $2.8 5 million, but to vote for a bill like yours which 6 -- to satisfy the congressional requirements 7 and has a strong possibility of constitutional 8 infirmity, and doesn't do anything for the 9 victim, and doesn't do anything for public 10 policy -- Why? Except to respond to a fear, to 11 respond to a misunderstanding about the HIV 12 virus and the disease, to mislead people? What 13 are we accomplishing? 14 I really submit to you -- and I 15 know that it comes from the best of intentions, 16 and your record and concern for victim rights is 17 one that really we all admire and can take you 18 as a role model, but I think -- I think in this 19 instance, you're misplaced because you're really 20 not helping -- excuse me -- because you're 21 really not helping the victim whatsoever. 22 I think if you examine the bill 23 -- and it's not intellectualizing it, it's 6500 1 looking at the actual situation of helping the 2 victim -- this bill doesn't do that. 3 ACTING PRESIDENT KUHL: The 4 Secretary will read the last section. 5 THE SECRETARY: Section 8. This 6 act shall take effect on the first day of 7 November. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 ACTING PRESIDENT KUHL: Announce 12 the results when tabulated. 13 THE SECRETARY: Those recorded in 14 the negative on Calendar Number 722 are Senators 15 Abate, Connor, Gold, Leichter, Markowitz, 16 Nanula, Paterson and Smith. Ayes 50, nays 8. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 SENATOR GOLD: Mr. President. 20 ACTING PRESIDENT KUHL: Senator 21 Gold. 22 Senator Espada. 23 SENATOR ESPADA: Thank you, Mr. 6501 1 President. 2 If the time is right, I would 3 like to ask for unanimous consent to be recorded 4 in the negative - 5 ACTING PRESIDENT KUHL: No time 6 better than now, Senator Espada. 7 SENATOR ESPADA: Thank you. 8 -- on Calendars Number 830 and 9 721, please. 10 ACTING PRESIDENT KUHL: Without 11 objection, Senator Espada will be recorded in 12 the negative on Calendar Number 830 and 721. 13 Senator DeFrancisco. 14 SENATOR DeFRANCISCO: May I have 15 unanimous consent to be recorded in the negative 16 on 879 and 907, please. 17 ACTING PRESIDENT KUHL: Without 18 objection. Hearing no objection, Senator 19 DeFrancisco will be recorded in the negative on 20 897. 21 SENATOR DeFRANCISCO: 879. 22 ACTING PRESIDENT KUHL: 879 and 23 907. 6502 1 Senator Marcellino. 2 SENATOR MARCELLINO: Mr. 3 President, may we resume the regular order of 4 the calendar. 5 ACTING PRESIDENT KUHL: The 6 Secretary will continue to call the 7 controversial calendar in regular order. 8 Before we do that, Senator 9 Montgomery I know has been looking to register a 10 vote. 11 SENATOR MONTGOMERY: Thank you. 12 Mr. President, I would like to be 13 recorded in the negative on Calendar 721 and 14 960. 15 ACTING PRESIDENT KUHL: Without 16 objection. Hearing no objection, Senator 17 Montgomery will be recorded in the negative on 18 Calendar Number 721 and 960. 19 Now, the Secretary will continue 20 to call the controversial calendar regular 21 order. 22 THE SECRETARY: On page 40, 23 Calendar Number 884, by Senator Padavan, Senate 6503 1 Print 3091, an act to amend the Executive Law, 2 in relation to cooperation between police 3 agencies and the United States Immigration and 4 Naturalization Service. 5 SENATOR PATERSON: Explanation. 6 SENATOR MARCELLINO: Lay it aside 7 temporarily. 8 ACTING PRESIDENT KUHL: Lay the 9 bill aside temporarily. 10 THE SECRETARY: Calendar Number 11 918, by Senator Farley, Senate Print 2305, an 12 act to amend the Tax Law, in relation to the 13 requirement to file a personal income tax 14 return. 15 SENATOR PATERSON: Explanation. 16 ACTING PRESIDENT KUHL: Senator 17 Gold, why do you rise? 18 SENATOR GOLD: Maybe he would 19 like me to explain it if Senator - 20 ACTING PRESIDENT KUHL: Senator 21 Farley, an explanation has been asked for by 22 Senator Paterson on Calendar Number 918. 23 SENATOR FARLEY: I would be happy 6504 1 to give that explanation. 2 Senator Paterson, this bill is a 3 senior citizen bill, to be very frank with you, 4 and for low income residents. It reduces 5 administrative costs in the Department of 6 Taxation and Finance and it repeals the existing 7 statutory threshold which requires that the 8 filing of a New York State income tax by persons 9 with incomes over $4,000, whether they have any 10 tax due or not. 11 This bill enables the 12 commissioner to instead establish the threshold 13 for the legislation -- for the regulation. The 14 current $4,000 threshold has been in state 15 statute since 1987. In contrast, the federal 16 income tax threshold are $6250 for individuals 17 under 65 and as high as $12,750 for married 18 senior citizens. 19 So, consequently, many married - 20 many persons, particularly senior citizens, are 21 forced to file state returns even though they 22 owe no state taxes and are not required to file 23 federal returns. 6505 1 Tax preparers -- I could name 2 them, but they do volunteer work for senior 3 citizens, which I'll spare you from, have 4 pointed out this hardship and confusion 5 particularly for older citizens. Again, this 6 would enable the Commissioner of Taxation and 7 Finance to establish filing levels which best 8 coincide with the changing -- changing federal 9 limits. That's why I did not put it in statute 10 to figure and with any special considerations in 11 New York, okay? 12 The state Department of Taxation 13 and Finance says it will have no impact on the 14 budget or anything. As a matter of fact, it 15 will save us some money because they don't have 16 to process them. 17 ACTING PRESIDENT KUHL: The 18 Secretary will read the last -- Senator 19 Dollinger. 20 SENATOR DOLLINGER: Mr. 21 President, I'm the one who laid this bill aside 22 and I asked a couple of questions of Senator 23 Farley before this, and I understand his 6506 1 intention is to give the commissioner the 2 ability to link the state filing requirements 3 with the federal filing requirements and do it 4 on an annual basis. I was concerned that we 5 were giving away the power to establish the 6 floor in which this occurred which is 7 traditionally a legislative function. 8 SENATOR FARLEY: That's kind of a 9 moving target. 10 SENATOR DOLLINGER: Well, I'm 11 satisfied that if the commissioner's goal is to 12 bring us in unison with the IRS, that's probably 13 best done on a regulatory basis. 14 ACTING PRESIDENT KUHL: The 15 Secretary will read the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect on the 1st day of January. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 58. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 6507 1 THE SECRETARY: Calendar Number 2 936, by Senator Goodman, Senate Print 4002, an 3 act to amend the Public Buildings Law, in 4 relation to deleting the value limitation on 5 contracts authorized to be let to meet 6 construction emergencies. 7 SENATOR MARCELLINO: Mr. 8 President, could we lay that aside temporarily? 9 ACTING PRESIDENT KUHL: Lay the 10 bill aside temporarily. 11 Senator Marcellino, that 12 completes the controversial calendar. We do 13 have some housekeeping. 14 SENATOR MARCELLINO: Can we take 15 the housekeeping? 16 ACTING PRESIDENT KUHL: The Chair 17 recognizes Senator Farley. 18 SENATOR FARLEY: Thank you, Mr. 19 President. 20 On behalf of Senator Levy, he 21 wishes to amend his bill on page 8, Calendar 22 225, Senate Print 975-A, and he wants it to 23 retain its Third Reading Calendar position. 6508 1 ACTING PRESIDENT KUHL: The 2 amendments to Calendar Number 225 are received 3 and accepted. The bill will retain its place on 4 the Third Reading Calendar. 5 SENATOR FARLEY: On behalf of my 6 colleague to the left, Senator DeFrancisco, I 7 wish to call up his bill, Print Number 3649, 8 which was recalled from the Assembly which is 9 now at the desk. The Secretary will read the 10 title. 11 ACTING PRESIDENT KUHL: The 12 Secretary will read the title. 13 THE SECRETARY: 789, by Senator 14 DeFrancisco, Senate Print 3649, an act 15 authorizing the town of Camillus to discontinue 16 use as park land certain lands heretofore 17 acquired as park and other purposes. 18 SENATOR FARLEY: Mr. President, I 19 now move to reconsider the vote by which this 20 bill was passed. 21 ACTING PRESIDENT KUHL: The 22 motion is to reconsider the vote by which the 23 bill passed the house. The Secretary will call 6509 1 the roll on reconsideration. 2 (The Secretary called the roll on 3 reconsideration.) 4 THE SECRETARY: Ayes 58. 5 ACTING PRESIDENT KUHL: Senator 6 Farley. 7 SENATOR FARLEY: The bill is now 8 at the Third Reading Calendar, and I offer the 9 following amendments. 10 ACTING PRESIDENT KUHL: The 11 amendments are received and adopted. 12 Senator Farley. 13 SENATOR FARLEY: Again, on behalf 14 of Senator Levy, I wish to remove the sponsor's 15 star from Calendar Number 77. 16 ACTING PRESIDENT KUHL: The 17 sponsor's star on Calendar Number 77 is removed. 18 The Chair recognizes Senator 19 Leibell. 20 SENATOR LEIBELL: Mr. President, 21 Calendar Number 606, could we lay that aside for 22 the day, please? 23 ACTING PRESIDENT KUHL: Calendar 6510 1 Number 606 is laid aside for the day at the 2 request of the sponsor for the second time. 3 Senator Marcellino. 4 SENATOR MARCELLINO: May we stand 5 at ease for one minute? 6 ACTING PRESIDENT KUHL: The 7 Senate will stand at ease for one moment. 8 (Whereupon, the Senate stood at 9 ease.) 10 ACTING PRESIDENT KUHL: The 11 Senate will come to order. 12 SENATOR MARCELLINO: Mr. 13 President, is there any housekeeping at the 14 desk? 15 ACTING PRESIDENT KUHL: All taken 16 care of, Senator Marcellino. 17 SENATOR MARCELLINO: Mr. 18 President, there being no further business, I 19 move we adjourn until Wednesday, May 24th at 20 10:00 a.m. 21 ACTING PRESIDENT KUHL: Without 22 objection, the Senate stands adjourned until 23 tomorrow, Wednesday, May 24th at 10:00 a.m. 6511 1 Note the time change, 10:00 a.m. 2 (Whereupon, at 3:50 p.m., the 3 Senate adjourned.) 4 5 6 7 8