Monday, June 5, 1995

7660 1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 June 5, 1995 11 3:00 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR MICHAEL J. HOBLOCK,JR., Acting President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 7661 1 P R O C E E D I N G S 2 ACTING PRESIDENT HOBLOCK: The 3 Senate will come to order. Ask everyone present 4 to please rise and repeat with me the Pledge of 5 Allegiance. 6 (The assemblage repeated the 7 Pledge of Allegiance to the Flag.) 8 The invocation today will be 9 given by our good friend, Reverend Peter G. 10 Young of the Blessed Sacrament Church of Bolton 11 Landing. 12 REVEREND PETER G. YOUNG: Dear 13 God, as we gather today, may we again pray for 14 your commitment and dedication to those in New 15 York State. May we pray that you will guide us 16 and direct our thought and our actions to the 17 best benefit of our Empire State. Now and 18 forever. Amen. 19 ACTING PRESIDENT HOBLOCK: 20 Reading of the Journal. 21 THE SECRETARY: In Senate, Sunday, 22 June 4th. The Senate met pursuant to adjourn 23 ment, Senator Hoblock in the Chair upon designa 7662 1 tion of the Temporary President. The Journal of 2 Saturday, June 3rd, was read and approved. On 3 motion, Senate adjourned. 4 ACTING PRESIDENT HOBLOCK: With 5 out objection, the Journal stands approved as 6 read. Presentation of petitions. 7 Messages from the Assembly. 8 Messages from the Governor. 9 Reports of standing committees. 10 Reports of select committees. 11 Communications and reports from 12 state officers. 13 Motions and resolutions. 14 Anything? Senator Rath. 15 SENATOR RATH: On behalf of 16 Senator Skelos, please remove the sponsor's star 17 from Calendar 588. 18 ACTING PRESIDENT HOBLOCK: Star 19 Calendar 588. 20 SENATOR RATH: Remove the star. 21 ACTING PRESIDENT HOBLOCK: Remove 22 the star. 23 SENATOR RATH: Remove the star. 7663 1 ACTING PRESIDENT HOBLOCK: I'm 2 sorry. That's better than starring. 3 SENATOR RATH: Mr. President. 4 ACTING PRESIDENT HOBLOCK: Yes, 5 Senator Rath. 6 SENATOR RATH: On behalf of 7 Senator Cook, please place a sponsor's star on 8 Calendar 108. 9 ACTING PRESIDENT HOBLOCK: 10 Calendar 108, replace the sponsor's star. 11 Senator Maziarz. 12 SENATOR MAZIARZ: Thank you, Mr. 13 President. On page 36, I offer the following 14 amendments to Calendar Number 977, Senate Print 15 2663, and ask that said bill retain its place on 16 Third Reading Calendar. 17 ACTING PRESIDENT HOBLOCK: 18 Amendments received. 19 SENATOR MAZIARZ: Mr. President, 20 on page number 21, I offer the following 21 amendments to Calendar 733, Senate Print Number 22 4017A, and ask that said bill retain its place 23 on Third Reading Calendar. 7664 1 ACTING PRESIDENT HOBLOCK: 2 Amendments received. 3 SENATOR MAZIARZ: Mr. President, 4 on page number 18, I offer the following 5 amendments to Calendar Number 668, Senate Print 6 Number 3456, and ask that said bill retain its 7 place on Third Reading Calendar. 8 ACTING PRESIDENT HOBLOCK: O.K. 9 Amendments received. 10 Senator Maziarz. 11 SENATOR MAZIARZ: Mr. President, 12 I wish to call up my bill, Print Number 3325, 13 recalled from the Assembly which is now at the 14 desk. 15 ACTING PRESIDENT HOBLOCK: Clerk 16 will read. 17 THE SECRETARY: Calendar Number 18 502, by Senator Sears, Senate Print 3325, an act 19 to amend the General Business Law, in relation 20 to prohibiting presentment of a Social Security 21 number. 22 ACTING PRESIDENT HOBLOCK: 23 Senator Maziarz. 7665 1 SENATOR MAZIARZ: Mr. President, 2 I now move to reconsider the vote by which this 3 bill was passed. 4 ACTING PRESIDENT HOBLOCK: Clerk 5 will call the roll. 6 (The Secretary called the roll on 7 reconsideration. ) 8 THE SECRETARY: Ayes 39. 9 ACTING PRESIDENT HOBLOCK: 10 Senator Maziarz. 11 SENATOR MAZIARZ: Mr. President, 12 I now offer the following amendments. 13 ACTING PRESIDENT HOBLOCK: 14 Amendments received. 15 Senator. 16 SENATOR MAZIARZ: Mr. President, 17 I wish to call up my bill, Print Number 3325, 18 recalled from the Assembly which is now at the 19 desk. 20 ACTING PRESIDENT HOBLOCK: Clerk 21 will read. 22 THE SECRETARY: Calendar Number 23 858, by Senator Goodman, Senate Print 3466, an 7666 1 act to amend the Transportation Law, in relation 2 to disclosure by common carriers of liability 3 and protection. 4 ACTING PRESIDENT HOBLOCK: 5 Senator Maziarz. 6 SENATOR MAZIARZ: Mr. President, 7 I now move to reconsider the vote by which this 8 bill was passed. 9 ACTING PRESIDENT HOBLOCK: Clerk 10 will call the roll. 11 (The Secretary called the roll on 12 reconsideration. ) 13 THE SECRETARY: Ayes 43. 14 SENATOR MAZIARZ: Mr. President, 15 I now offer the following amendments. 16 ACTING PRESIDENT HOBLOCK: 17 Amendments received. 18 Senator LaValle. 19 SENATOR LAVALLE: Mr. President, 20 would you place a sponsor's star on Calendar 21 Number 245, please. 22 ACTING PRESIDENT HOBLOCK: 23 Calendar Number 245, place a sponsor's star. 7667 1 We have a substitution from the 2 Assembly. Clerk will read. 3 THE SECRETARY: Senator Maltese 4 moves to discharge from the Committee on Rules 5 Assembly Bill Number 4814A, and substitute it 6 for the identical Calendar Number 279. 7 ACTING PRESIDENT HOBLOCK: 8 Substitution ordered. 9 Senator Bruno. 10 SENATOR BRUNO: Mr. President, 11 call for an immediate meeting of the Rules 12 Committee in Room 332. 13 ACTING PRESIDENT HOBLOCK: There 14 is an immediate meeting of the Rules Committee 15 in Room 332. 16 Senator Bruno. 17 SENATOR BRUNO: Mr. President, 18 can we at this time take up the non-controvers 19 ial calendar. 20 ACTING PRESIDENT HOBLOCK: Clerk 21 will read the non-controversial calendar. 22 THE SECRETARY: On page 4, 23 Calendar Number 77, by Senator Levy, Senate 7668 1 Print - 2 SENATOR PATERSON: Lay aside. 3 ACTING PRESIDENT HOBLOCK: Bill 4 laid aside. 5 THE SECRETARY: Calendar Number 6 195, by member of the Assembly Pfeffer, Assembly 7 Print 4130A, an act to amend the Executive Law, 8 in relation to empowering the state Office for 9 the Aging to conduct a program of education. 10 ACTING PRESIDENT HOBLOCK: Read 11 the last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 ACTING PRESIDENT HOBLOCK: Call 15 the roll. 16 (The Secretary called the roll. ) 17 THE SECRETARY: Ayes 43. 18 ACTING PRESIDENT HOBLOCK: The 19 bill is passed. 20 THE SECRETARY: Calendar Number 21 494, by Senator Cook, Senate Print 3155A, an act 22 to amend the General City Law, the Town Law and 23 the Village Law, in relation to cluster 7669 1 development. 2 SENATOR PATERSON: Lay aside, 3 please. 4 ACTING PRESIDENT HOBLOCK: Bill 5 is laid aside. 6 THE SECRETARY: Calendar Number 7 595, by Senator Saland, Senate Print 2597, an 8 act to amend the Family Court Act, in relation 9 to restitution and community service. 10 ACTING PRESIDENT HOBLOCK: Read 11 read the last section. 12 THE SECRETARY: Section 9. This 13 act shall take effect on the 1st day of 14 November. 15 ACTING PRESIDENT HOBLOCK: Call 16 the roll. 17 (The Secretary called the roll. ) 18 THE SECRETARY: Ayes 43. 19 ACTING PRESIDENT HOBLOCK: The 20 bill is passed. 21 THE SECRETARY: Calendar Number 22 596, by Senator Saland, Senate Print 3561, an 23 act to amend the Family Court Act, in relation 7670 1 to expanding the jurisdiction of the Family 2 Court to enforce the compulsory attendance law. 3 ACTING PRESIDENT HOBLOCK: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT HOBLOCK: Call 8 the roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 45. 11 ACTING PRESIDENT HOBLOCK: The 12 bill is passed. 13 THE SECRETARY: Calendar Number 14 597, by Senator Saland, Senate Print 3943, an 15 act to amend the Family Court Act and the 16 Criminal Procedure Law, in relation to family 17 offenses. 18 ACTING PRESIDENT HOBLOCK: Read 19 the last section. 20 THE SECRETARY: Section 3. This 21 act shall take effect on the 1st day of 22 November. 23 ACTING PRESIDENT HOBLOCK: Call 7671 1 the roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 45. 4 ACTING PRESIDENT HOBLOCK: The 5 bill is passed. 6 THE SECRETARY: Calendar Number 7 598, by Senator Saland, Senate Print 4039, an 8 act to amend the Social Services Law, in 9 relation to the capacity of foster family 10 boarding homes. 11 ACTING PRESIDENT HOBLOCK: Read 12 the last section. 13 THE SECRETARY: Section 3. This 14 act shall take effect immediately. 15 ACTING PRESIDENT HOBLOCK: Call 16 the roll. 17 (The Secretary called the roll. ) 18 THE SECRETARY: Ayes 45. 19 ACTING PRESIDENT HOBLOCK: The 20 bill is passed. 21 THE SECRETARY: Calendar Number 22 654, by Senator LaValle, Senate Print 2790, an 23 act to amend the Executive Law, in relation to 7672 1 population requirements for municipalities 2 wishing to establish Youth Bureaus. 3 ACTING PRESIDENT HOBLOCK: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT HOBLOCK: Call 8 the roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 45. 11 ACTING PRESIDENT HOBLOCK: The 12 bill is passed. 13 THE SECRETARY: Calendar Number 14 706, by member of the Assembly Kaufman, Assembly 15 Print 2817, an act to amend the State 16 Administrative Procedure Act, in relation to 17 required index by name and subject of all 18 written final decisions. 19 ACTING PRESIDENT HOBLOCK: Read 20 the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect on the 1st day of 23 October. 7673 1 ACTING PRESIDENT HOBLOCK: Call 2 the roll. 3 (The Secretary called the roll. ) 4 THE SECRETARY: Ayes 45. 5 ACTING PRESIDENT HOBLOCK: The 6 bill is passed. 7 THE SECRETARY: Calendar Number 8 743, by Senator Seward, Senate Print 3827B, an 9 act to authorize the city of Ithaca in the 10 county of Tompkins to discontinue the use of 11 certain real property owned for park purposes. 12 SENATOR PATERSON: Lay aside. 13 ACTING PRESIDENT HOBLOCK: 14 There's no home rule message at the desk. The 15 bill is laid aside. 16 THE SECRETARY: Calendar Number 17 854, by Senator Marchi, Senate Print 2379, an 18 act to amend the Public Authorities Law, in 19 relation to directing the Triborough Bridge and 20 Tunnel Authority to establish a system of one 21 directional toll collection on the 22 Verrazano-Narrows Bridge. 23 SENATOR PATERSON: Lay aside. 7674 1 ACTING PRESIDENT HOBLOCK: Bill 2 is laid aside. 3 THE SECRETARY: Calendar Number 4 861, by Senator Spano, Senate Print Number 5 3975B, an acted to amend the Public Authorities 6 Law, in relation to the cost of station 7 operation and maintenance. 8 SENATOR PATERSON: Lay aside. 9 ACTING PRESIDENT HOBLOCK: Lay 10 the bill aside. 11 THE SECRETARY: Calendar Number 12 868, by Senator Levy, Senate Print 4817, an act 13 to amend the Vehicle and Traffic Law, in 14 relation to the extension of time for the entry 15 of default judgments for traffic infractions. 16 ACTING PRESIDENT HOBLOCK: Read 17 the last section. 18 SENATOR PATERSON: Lay aside. 19 ACTING PRESIDENT HOBLOCK: Lay 20 the bill aside. 21 THE SECRETARY: Calendar Number 22 937, by Senator Saland. 23 SENATOR PATERSON: Lay aside. 7675 1 ACTING PRESIDENT HOBLOCK: Bill 2 is laid aside. 3 THE SECRETARY: Calendar Number 4 947, by Senator Rath, Senate Print 3014, an act 5 to amend the Domestic Relations Law, the Social 6 Services Law, and the Surrogate's Court 7 Procedure Act. 8 SENATOR RATH: Lay aside for the 9 day. 10 ACTING PRESIDENT HOBLOCK: Bill 11 is laid aside for the day at the request of the 12 sponsor. 13 Senator Bruno. 14 SENATOR BRUNO: Mr. President, 15 can we now take up the controversial calendar. 16 ACTING PRESIDENT HOBLOCK: 17 Secretary will read non... the controversial 18 calendar. 19 THE SECRETARY: On page 4, 20 Calendar Number 77, by Senator Levy, Senate 21 Print 328B, an act to amend the Public 22 Authorities Law and the Railroad Law, in 23 relation to operating a self-propelled rail 7676 1 passenger car. 2 SENATOR PATERSON: Explanation. 3 ACTING PRESIDENT HOBLOCK: 4 Explanation is asked for. Senator Levy. 5 SENATOR LEVY: Just lay it aside 6 temporarily. 7 ACTING PRESIDENT HOBLOCK: Bill 8 is laid aside temporarily. Clerk -- Secretary 9 will read. 10 THE SECRETARY: Calendar Number 11 494, by Senator Cook, Senate Print 3155B, an act 12 to amend the General City Law, the Town Law and 13 the Village Law, in relation to cluster 14 development. 15 SENATOR PATERSON: Explanation. 16 ACTING PRESIDENT HOBLOCK: 17 Explanation asked for. Bill is laid aside for 18 the day. 19 SENATOR BRUNO: Lay aside. 20 THE SECRETARY: Calendar Number 21 743, by Senator Seward, Senate Print 3827B, an 22 act to authorize the city of Ithaca in the 23 county of Tompkins to discontinue the use of 7677 1 certain real property owned for park purposes. 2 ACTING PRESIDENT HOBLOCK: Lay 3 aside for home rule message. 4 THE SECRETARY: Calendar Number 5 854, by Senator Marchi, Senate Print 2379, an 6 act to amend the Public Authorities Law, in 7 relation to directing the Triborough Bridge and 8 Tunnel Authority to establish a one-directional 9 system of toll collection. 10 SENATOR PATERSON: How about an 11 explanation? 12 ACTING PRESIDENT HOBLOCK: 13 Explanation asked for. Lay that bill aside 14 temporarily. 15 Secretary will read. 16 THE SECRETARY: Calendar Number 17 861, by Senator Spano, Senate Print 3975B, an 18 acted to amend the Public Authorities Law, in 19 relation to the cost of station operation and 20 maintenance. 21 SENATOR PATERSON: Explanation. 22 ACTING PRESIDENT HOBLOCK: Lay 23 that bill aside temporarily. 7678 1 THE SECRETARY: Calendar Number 2 868, by Senator levy, Senate Print 4718, an act 3 to amend the Vehicle and Traffic Law, in 4 relation to the extension of time for the entry 5 of default judgments for traffic infractions. 6 SENATOR PATERSON: Explanation. 7 SENATOR LEVY: Yes, Senator 8 Paterson. There was a huge backlog in Nassau 9 County prior to the time that we created a 10 Parking Violations Bureau as it related to those 11 type of infractions that were pending and were 12 not answered by the people that were -- either 13 received tickets or summonses or even were 14 arrested and we did -- we did the proposal that 15 is contained in this bill previously. It had a 16 sunset on it and last year, unfortunately, that 17 sunset expired without us taking legislative 18 action to extend this power to deal with this 19 huge backlog. 20 Now, Nassau County has requested 21 this bill and sought the extension of the power 22 that existed before the sunset and that's what 23 this bill does. 7679 1 ACTING PRESIDENT HOBLOCK: 2 Senator Paterson. 3 SENATOR PATERSON: Mr. President, 4 if Senator Levy would be kind enough to yield to 5 a question. 6 ACTING PRESIDENT HOBLOCK: 7 Senator Levy, do you yield? 8 SENATOR LEVY: Yes. 9 SENATOR PATERSON: Senator Levy, 10 I was just curious, you are extending this from 11 two years to seven years to clear up this 12 backlog. Do you think it's going to take seven 13 ears years to get to all this? I would have 14 thought it would have taken two or three years. 15 How about a month? No. 16 SENATOR LEVY: All this bill 17 does, Senator Paterson, is to reinstitute - 18 reinstitute the power that expired on October 19 the 1st of 1994. 20 SENATOR PATERSON: That isn't the 21 question I asked, Senator. 22 SENATOR LEVY: It really is 23 extending -- Senator Paterson, it really is an 7680 1 extender through October the 1st of 1996, and 2 the power for Nassau County will end on that 3 date, but what it does is to permit -- to permit 4 the pleas and the default judgments for the 5 period set forth in the bill. 6 SENATOR PATERSON: The only other 7 question I had, Senator, was regarding the 8 fiscal impact that you would project to the 9 state of extending it. 10 SENATOR LEVY: Well, the - 11 Senator, by -- by permitting the extension, all 12 this bill really does is permit the local 13 government, when they have -- when they have 14 given summonses, tickets or have arrested 15 somebody for a violation and the people have 16 ignored the process, to bring them into court. 17 All it does is give them the opportunity of more 18 time to bring about a conclusion to the case and 19 the collection of monies that are owed -- owed 20 both the county of Nassau and monies that the 21 state shares in, so it's certainly more than 22 revenue neutral because it's going to generate 23 dollars both for the county and state through 7681 1 the collection of the fine monies. 2 SENATOR PATERSON: Explanation 3 satisfactory, Mr. President. 4 ACTING PRESIDENT HOBLOCK: 5 Explanation satisfactory. The Secretary will 6 read the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT HOBLOCK: Call 10 the roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 48, nays 13 one, Senator Solomon recorded in the negative. 14 ACTING PRESIDENT HOBLOCK: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 937, by Senator Saland, Senate Print 4009A, an 18 act to amend the Tax Law and others, in relation 19 to enacting the Omnibus Mandate Relief Act. 20 SENATOR PATERSON: Explanation. 21 VOICE: Lay aside for the day. 22 ACTING PRESIDENT HOBLOCK: Bill 23 is laid aside for the day. 7682 1 Senator Skelos. 2 SENATOR SKELOS: Mr. President, 3 would you call up Calendar Number 77, please, by 4 Senator Levy. 5 ACTING PRESIDENT HOBLOCK: 6 Secretary will read. 7 THE SECRETARY: Calendar Number 8 77, by Senator Levy, Senate Print 328B, an act 9 to amend the Public Authorities Law and the 10 Railroad Law, in relation to operating a self 11 propelled rail passenger car. 12 SENATOR PATERSON: Explanation. 13 ACTING PRESIDENT HOBLOCK: 14 Explanation asked for. 15 SENATOR LEVY: Senator Paterson, 16 this bill has, fortunately, been before this 17 house for a number of years and, unfortunately, 18 has yet to pass in the other house 19 notwithstanding the fact that a couple of years 20 back, and I know, I think Senator Goodman's 21 committee went into an accident where we had a 22 drunken motorman operating a train on the 23 Transit Authority, and multiple deaths resulted 7683 1 from that incident. 2 Our friends in Washington have 3 set a .04 standard for the operation - 4 operation of a train. What this bill does - 5 and we worked with the federal Railway 6 Administration in putting this bill together - 7 is to say if you -- if you operate a train and 8 you have greater than a .04 BAC, and there is an 9 injury -- serious injury or death, we make that 10 a felony in the state of New York. 11 SENATOR PATERSON: Thank you. 12 ACTING PRESIDENT HOBLOCK: 13 Senator Paterson. 14 SENATOR PATERSON: Thank you, Mr. 15 President. 16 I have a couple of questions for 17 Senator Levy, if he is willing to answer them. 18 ACTING PRESIDENT HOBLOCK: Senator 19 Levy, will you yield to a couple of questions? 20 SENATOR LEVY: Yes, certainly. 21 SENATOR PATERSON: Senator Levy, 22 have we exceeded the federal standard by 23 imposing this .04 delineation as to what would 7684 1 be the standard of test for the motorman or the 2 operator of the self-propelled vehicle? 3 SENATOR LEVY: Senator Paterson, 4 we have not, and the language of this bill was 5 cleared with the Federal Railway Administration 6 which is in support of the legislation. 7 SENATOR PATERSON: Mr. President, 8 if the Senator would continue to yield. 9 ACTING PRESIDENT HOBLOCK: 10 Senator Levy, continue to yield? 11 SENATOR LEVY: Yes, I will. 12 SENATOR PATERSON: Senator, how 13 are the tests conducted in these types of 14 situations? The reason I raise a concern is 15 that, if you had an accident and you conducted, 16 say, for instance, a urine test rather than a 17 blood test, and your bill seems to make all 18 tests valid, sometimes medically the trauma of 19 the accident might cause an individual to be 20 incapable of responding to the test which would 21 maybe accrue some kind of suspicion or some kind 22 of stigma to the individual when, in fact, 23 they're suffering from a medical injury. 7685 1 SENATOR LEVY: Well, Senator, 2 that would be litigated the same way, and those 3 arguments are made in drunk driving and drunk 4 impaired cases whenever we have a similar 5 situation like this, Senator Paterson, so all 6 this bill is really doing is -- is taking the 7 law as it exists today as it relates to motor 8 vehicles and transposing it over to someone who 9 is operating a train in the state of New York. 10 SENATOR PATERSON: All right. 11 Thank you very much, Senator Levy. 12 On the bill. 13 ACTING PRESIDENT HOBLOCK: 14 Senator Paterson, on the bill. 15 SENATOR PATERSON: I understand 16 what Senator Levy is saying, and it can be 17 litigated in that particular way and 18 particularly in an accident as severe as the one 19 he described which occurred on 14th Street in 20 Manhattan about two years ago. You had a 21 situation where the inability to test the motor 22 man was actually a factor, and it was a tragic 23 accident in which many lives were lost. 7686 1 But in other circumstances where 2 there is just some kind of an accident and there 3 is no injury, I would just caution all of us in 4 the administration of this law that there are 5 individuals who are traumatized in accidents and 6 that, if we had an standardized test, I would 7 suggest a blood test. We might be able to 8 determine whether or not there was the kind of 9 blood to alcohol ratio or any other substance 10 that might be involved. I just think it would 11 be greater protection for society and also 12 greater protection for the individual who is not 13 in violation of any codes or standards when 14 these tests are actually conducted. 15 Otherwise, I suppose I would take 16 note of the fact that the federal standard, I 17 would tend to think, would -- would cover this, 18 but because of the fact that these accidents are 19 very severe and people who use the subways in 20 New York City or use other vehicular 21 transportation that are piloted by someone else 22 are reasonably expecting that there would be a 23 standard of care that would be demonstrated and 7687 1 the test definitely establishes that. 2 ACTING PRESIDENT HOBLOCK: 3 Secretary will read the last section. 4 THE SECRETARY: Section 5. This 5 act shall take effect on the 1st day of 6 November. 7 ACTING PRESIDENT HOBLOCK: Call 8 the roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 53. 11 ACTING PRESIDENT HOBLOCK: The 12 bill is passed. 13 Senator Bruno. 14 SENATOR BRUNO: Yes, Mr. 15 President. Can we at this time recognize 16 Senator Maltese? 17 ACTING PRESIDENT HOBLOCK: 18 Senator Maltese. 19 SENATOR MALTESE: Mr. President, 20 as many of my colleagues are aware, this week 21 end is -- has been the week end of the Italian 22 American Legislators Conference. With 51 23 members, it is one of the largest conferences of 7688 1 the state Legislature, and we're particularly 2 honored at this particular conference with 3 tonight's ceremony that we are honoring the 4 Senate Majority Leader. 5 Present with us today in the 6 chamber are a number of representatives, men and 7 women representing constituencies from across 8 the state, not only from the Conference of 9 Italian-American legislators but from the UFT 10 and from the New York City Central Labor 11 Council, and I would ask most respectfully that 12 you recognize them. 13 ACTING PRESIDENT HOBLOCK: Thank 14 you, Senator Maltese. 15 It's a great pleasure to join you 16 and others in recognizing these dignitaries and 17 extend to them our courtesies, cordiality and 18 hospitality. Thank you. 19 (Applause) 20 SENATOR SKELOS: Mr. President. 21 ACTING PRESIDENT HOBLOCK: 22 Senator Skelos. 23 SENATOR SKELOS: I believe there 7689 1 -- if we could return to reports of standing 2 committees. I believe there's a report of the 3 Rules Committee at the desk. I ask that it be 4 read. 5 ACTING PRESIDENT HOBLOCK: 6 Secretary will read. 7 THE SECRETARY: Senator Bruno 8 from the Committee on Rules reports the 9 following bills: 10 Senate Print 700, by Senator 11 Saland, an act to amend the Tax Law, in relation 12 to exempting coin-operated car wash receipts 13 from the sales and compensating use tax; 14 3349, by Senator Skelos, an act 15 to amend Chapter 846 of the Laws of 1970, 16 amending the County Law, relating to payment in 17 lieu of taxes for property acquired for park or 18 recreational purposes; 19 3395, by Senator Rath, an act to 20 amend the State Administrative Procedure Act, in 21 relation to requiring agencies to enact written 22 rules; 23 3847, by Senator Tully, an act to 7690 1 amend the Environmental Conservation Law, in 2 relation to lifetime resident combined hunting, 3 fishing and big game licenses for senior 4 citizens; 5 3848, by Senator Tully, an act to 6 amend the Environmental Conservation Law and the 7 State Finance Law, in relation to enacting the 8 Voluntary Remediation Act of 1995; 9 3849, by Senator Tully, an act to 10 amend the Environmental Conservation Law, and 11 the Public Health Law, in relation to security 12 interests in property; 13 3874A, by Senator Nanula, an 14 acted to authorize the city of Niagara Falls to 15 discontinue use of certain park land; 16 3921, by Senator Sears, an act to 17 amend the Environmental Conservation Law, in 18 relation to increasing civil penalties 19 associated with the unlawful taking of fish and 20 wildlife; 21 4408, by Senator Nozzolio, an act 22 to amend the Civil Practice Law and Rules, and 23 the Court of Claims Act and the Correction Law, 7691 1 in relation to prisoner litigation reform; 2 4437, by Senator Lack, an act to 3 amend the Estates, Powers and Trusts Law and the 4 General Obligations Law, in relation to 5 renunciations of certain property interests; 6 4439, by Senator Libous, an act 7 to amend the Criminal Procedure Law, in relation 8 to venue for an application for an order of 9 retention of an incapacitated defendant; 10 4610, by Senator Lack, an act to 11 amend the Surrogate's Court Procedure Act, in 12 relation to transfer of actions or proceedings; 13 4617, by Senator Lack, an act to 14 amend the Estates, Powers and Trusts Law, in 15 relation to providing for payment of funds over 16 $10,000; 17 4618, by Senator Lack, an act to 18 amend the Surrogate's Court Procedure Act, in 19 relation to the commissions of multiple 20 executors; 21 4673, by Senator Tully, an act to 22 amend the Environmental Conservation Law, in 23 relation to exempting certain bakeries from 7692 1 regulation pursuant to the Clean Air Act; 2 4680, by Senator Lack, an act to 3 amend the Surrogate's Court Procedure Act, in 4 relation to providing for an aunt or uncle of a 5 decedent who dies intestate to act as a 6 voluntary administrator; 7 4681, by Senator Lack, an act to 8 amend the Surrogate's Court Procedure Act, in 9 relation to the revocation, modification or 10 suspension of letters testamentary; 11 4831, by Senator Maziarz, an act 12 to amend the General Obligations Law, in 13 relation to an owner's, lessee's or occupant's 14 off-premises duty to keep premises safe for 15 entry; 16 5103, by Senator Saland, an act 17 to amend the Domestic Relations Law, in relation 18 to special relief of matrimonial actions; 19 5107, by Senator Saland, an act 20 to amend the Family Court Act, in relation to 21 the submission of transcripts in Family Court; 22 5195, by Senator Skelos, an act 23 to amend the Town Law, in relation to the 7693 1 abolition of the additional office of supervisor 2 of the town of Hempstead; 3 5212, by Senator Marcellino, an 4 act to amend the Criminal Procedure Law, in 5 relation to corrective remedies; 6 5221, by Senator Present, an act 7 to amend the General Obligations Law, in 8 relation to the powers of the development of 9 railroad facilities by the county of Chautauqua; 10 and 11 5220, by Senator Sears, an act to 12 amend the General Business Law and the Personal 13 Property Law, in relation to the cancellation of 14 personal emergency response service agreements. 15 All bills ordered directly for 16 third reading. 17 SENATOR SKELOS: Mr. President, I 18 move we accept the report of the Rules 19 Committee. 20 ACTING PRESIDENT HOBLOCK: Motion 21 of Senator Skelos, all in favor of accepting the 22 report of the Rules Committee signify by saying 23 aye. 7694 1 (Response of "Aye.") 2 Opposed nay. 3 (There was no response. ) 4 The report is accepted. 5 Senator Skelos. 6 SENATOR SKELOS: Mr. President, 7 at this time if we could return to motions and 8 resolutions. I believe there is a resolution 9 sponsored by Senator Holland at the desk. I 10 would ask that it be read in its entirety and 11 adopted. 12 ACTING PRESIDENT HOBLOCK: 13 Secretary will read. 14 THE SECRETARY: By Senator 15 Holland, Legislative Resolution, commending the 16 students of the Ramapo Senior High School upon 17 the occasion of their participation in the 1995 18 Humanitarian Relief Program for the children and 19 people of Chernobyl. 20 WHEREAS, it is the sense of this 21 legislative body to act in accord with its long 22 standing traditions honoring the achievements of 23 its promising citizens and leaders of tomorrow, 7695 1 whose character and achievement best exemplify 2 the ideals and values cherished by this great 3 state and nation; and 4 WHEREAS, this legislative body is 5 justly proud to commend the students of the 6 Ramapo Senior High School upon the occasion of 7 their participation in the 1995 Humanitarian 8 Relief Program for the children and people of 9 Chernobyl; and 10 WHEREAS, 17 students provided 11 moral support for those still suffering from the 12 effects of the Chernobyl nuclear accident by 13 singing and dancing over a 12-day visit to 14 Belarus; 15 The students raised the air fare 16 money themselves by fund-raising in the school 17 and community from the raffles, sale of cheese 18 cakes, snow brushes, gift supplies and selling 19 candy and fruit at various school activities, 20 plus some very generous individual donations, 21 the students were able to depart from JFK 22 Airport on March 22nd, 1995 for the trip of a 23 lifetime; with the continued support and 7696 1 cooperation of Austrian Airlines, each student 2 sacrificed a second piece of luggage so that, in 3 addition to the two sea containers of medicines 4 already sent ahead, additional medicines could 5 be taken on the plane; 6 During their stay in Belarus, the 7 students performed 13 times, visited and/or 8 performed in six hospitals, visited and/or 9 performed in six schools, and appeared on 10 Belarus national television five times. Some 11 highlights of their stay included performing for 12 the Belarus Foreign Minister Vladimir Syanko, 13 and U. S. Ambassador Kenneth Yalowitz at the 14 American Embassy; 15 In addition, the students had 16 lunch with, and performed for the Belarus 17 Military who provided the group with a bus for 18 their use during their stay in Belarus; hotel 19 accommodations in Belarus were provided by the 20 General Federation of Trade Unions. The 21 American group was the first group of Americans 22 to ever stay at the Trade Union Sanitorium; 23 during one of their free evenings the students 7697 1 put on a show for the residents, as well as 2 participating in the disco afterward; 3 The students also had the 4 opportunity to live in homes during the second 5 Ramapo visit to a Kolkhoz or collective farm in 6 the Nesvizh District, as well as be the first 7 American delegation to visit and again stay in 8 private homes in the town of Sharkovshina four 9 hours north of Minsk; 10 Throughout their entire period of 11 involvement, a period of purposeful learning and 12 productive community service, the students of 13 the Ramapo Senior High School stood constant in 14 dignity and good grace representing the families 15 and school community with honor and distinction; 16 and 17 WHEREAS, rare indeed is the 18 impressive dedication and accomplishment shown 19 by these young people for the benefit of others 20 which the students of the Ramapo Senior High 21 School have displayed. 22 NOW, THEREFORE, BE IT RESOLVED 23 that this legislative body pause in its 7698 1 deliberations to accommodate the students of the 2 Ramapo Senior High School upon the occasion of 3 their participation in the 1995 Humanitarian 4 Relief Program for the children and people of 5 Chernobyl; and 6 BE IT FURTHER RESOLVED that 7 copies of this resolution, suitably engrossed, 8 be transmitted to Ramapo Senior High School and 9 Don Cairns, President of the Board of Directors 10 of the Ramapo Children for Chernobyl Fund. 11 ACTING PRESIDENT HOBLOCK: 12 Senator Holland. 13 SENATOR HOLLAND: Thank you, Mr. 14 President. 15 We are indeed honored to have 16 some of the students from Ramapo High School 17 here today, and it is my pleasure to introduce 18 them to this house along with their instructors, 19 Don Cairns and Patrick DeFrancisco. These young 20 people have had an opportunity to visit Belarus 21 for two weeks, almost two weeks, stay in 22 cooperative or collective farms, see and visit 23 the schools and the hospitals of Belarus, and 7699 1 they are -- this program is ten years old. 2 They have been able to collect 3 over $12 million worth of medical supplies and 4 take them to the hospitals of Belarus and 5 Moscow. It was all started when a group of 6 these students were there during the Chernobyl 7 explosion about 11 years ago, 12 years ago, 10 8 years ago. I congratulate these students. 9 They've done a fantastic job. Their instructors 10 and teachers have done a fantastic job. They 11 are encouraging ties and communications and, as 12 they said, hope and love between the students of 13 Belarus in Russia and the students of the United 14 States. 15 Many trips of students from 16 Ramapo High School have gone over to Belarus in 17 Russia and some Russian students have come back 18 over here. I congratulate the whole program, 19 all of the people who have been involved, all of 20 the people who have donated medicines. As I 21 said, I believe I was there three years ago with 22 some of the students, and if you had been into a 23 hospital in Belarus, or Russia, they are 1930 or 7700 1 1940 editions of the hospitals here in the 2 United States. 3 You people are doing a great 4 job. I wish you would just stand up for one 5 minute and let these people in the galleries say 6 thanks for all the good work you do. 7 (Applause. ) 8 ACTING PRESIDENT HOBLOCK: The 9 question is on the resolution. All those in 10 favor signify by saying aye. 11 (Response of "Aye.") 12 Opposed nay. 13 (There was no response. ) 14 The resolution is adopted. 15 Senator Skelos. 16 SENATOR SKELOS: Mr. President, 17 on today's calendar, Calendar Number 854, by 18 Senator Marchi, if we could lay that aside for 19 the day. 20 ACTING PRESIDENT HOBLOCK: 21 Calendar 854 laid aside for the day. 22 Senator Skelos. 23 SENATOR SKELOS: Yes, at this 7701 1 time, Mr. President, if we could take up 2 Supplemental Calendar Number 1, 3 non-controversial. 4 ACTING PRESIDENT HOBLOCK: The 5 Secretary will read the Supplemental Calendar 6 Number 1, non-controversial. 7 THE SECRETARY: Calendar Number 8 1093, by Senator Saland, Senate Print 700, an 9 act to amend the Tax Law, in relation to 10 exempting coin-operated car wash receipts from 11 sales and compensating use tax. 12 ACTING PRESIDENT HOBLOCK: A 13 local fiscal impact note is at the desk. Read 14 the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect on the 1st day of 17 September. 18 ACTING PRESIDENT HOBLOCK: Call 19 the roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 53. 22 ACTING PRESIDENT HOBLOCK: The 23 the bill is passed. 7702 1 THE SECRETARY: Calendar Number 2 1094, by Senator Skelos, Senate Print 3349, an 3 act to amend Chapter 146 of the Laws of 1970, 4 amending the County Law. 5 SENATOR PATERSON: Lay aside, 6 please, Mr. President. 7 ACTING PRESIDENT HOBLOCK: Lay 8 aside. 9 THE SECRETARY: Calendar Number 10 1095, by Senator Rath, Senate Print 3395, an act 11 to amend the State Administrative Procedure Act, 12 in relation to requiring agencies to enact 13 written rules incorporating the principles of 14 law. 15 ACTING PRESIDENT HOBLOCK: Read 16 the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT HOBLOCK: Call 20 the roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes 53. 23 ACTING PRESIDENT HOBLOCK: The 7703 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 1096, by Senator Tully, Senate Print 3847, an 4 act to amend the Environmental Conservation Law, 5 in relation to lifetime resident combined 6 hunting, fishing and big game licenses. 7 ACTING PRESIDENT HOBLOCK: Read 8 the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 ACTING PRESIDENT HOBLOCK: Call 12 the roll. 13 (The Secretary called the roll. ) 14 THE SECRETARY: Ayes 53. 15 ACTING PRESIDENT HOBLOCK: The 16 bill is passed. 17 THE SECRETARY: Calendar Number 18 1097, by Senator Tully, Senate Print 3848, an 19 act to amend the Environmental Conservation Law 20 and the State Finance Law, in relation to 21 enacting the Voluntary Remediation Act of 1995. 22 SENATOR PATERSON: Lay aside. 23 ACTING PRESIDENT HOBLOCK: Lay 7704 1 the bill aside. 2 THE SECRETARY: Calendar Number 3 1098, by Senator Tully, Senate Print 3849, an 4 act to amend the Environmental Conservation Law 5 and the Public Health Law, in relation to 6 security interests in property. 7 ACTING PRESIDENT HOBLOCK: Read 8 the last section. 9 THE SECRETARY: Section 3. This 10 act shall take effect on the 90th day. 11 ACTING PRESIDENT HOBLOCK: Call 12 the roll. 13 (The Secretary called the roll. ) 14 THE SECRETARY: Ayes 53. 15 ACTING PRESIDENT HOBLOCK: The 16 bill is passed. 17 THE SECRETARY: Calendar Number 18 1099, by Senator Nanula, Senate Print 3874A, an 19 act to authorize the city of Niagara Falls to 20 discontinued use of certain park land. 21 ACTING PRESIDENT HOBLOCK: The 22 home rule message is at the desk. Read the last 23 section. 7705 1 THE SECRETARY: Section 3. This 2 act shall take effect immediately. 3 ACTING PRESIDENT HOBLOCK: Call 4 the roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 53. 7 ACTING PRESIDENT HOBLOCK: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 1100, by Senator Sears, Senate Print 3921, an 11 act to amend the Environmental Conservation Law, 12 in relation to increasing civil penalties 13 associated with the unlawful taking of fish and 14 wildlife. 15 ACTING PRESIDENT HOBLOCK: Read 16 the last section. 17 THE SECRETARY: Section 3. This 18 act shall take effect on September 1st. 19 ACTING PRESIDENT HOBLOCK: Call 20 the roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 53. 23 ACTING PRESIDENT HOBLOCK: The 7706 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 1101, by Senator Nozzolio, Senate Print 4408, an 4 act to amend the Civil Practice Law and Rules, 5 the Court of Claims Act and the Correction Law, 6 in relation - 7 SENATOR PATERSON: Lay aside. 8 ACTING PRESIDENT HOBLOCK: Lay 9 the bill aside. 10 THE SECRETARY: Calendar Number 11 1102, by Senator Lack, Senate Print 4437, an act 12 to amend the Estates, Powers and Trusts Law and 13 the General Obligations Law, in relation to the 14 renunciations of certain property interests. 15 SENATOR PATERSON: Lay aside. 16 ACTING PRESIDENT HOBLOCK: Lay 17 the bill aside. 18 THE SECRETARY: Calendar Number 19 1103, by Senator Libous, Senate Print 4439, an 20 act to amend the Criminal Procedure Law, in 21 relation to venue for an application. 22 ACTING PRESIDENT HOBLOCK: Read 23 the last section. 7707 1 THE SECRETARY: Section 4. This 2 act shall take effect immediately. 3 ACTING PRESIDENT HOBLOCK: Call 4 the roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 53. 7 ACTING PRESIDENT HOBLOCK: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 1104, by Senator Lack, Senate Print 4610, an act 11 to amend the Surrogate's Court Procedure Act, in 12 relation to transfer of actions or proceedings. 13 ACTING PRESIDENT HOBLOCK: Read 14 the last section. 15 THE SECRETARY: Section 3. This 16 act shall shall take effect on the 30th day. 17 ACTING PRESIDENT HOBLOCK: Call 18 the roll. 19 (The Secretary called the roll. ) 20 THE SECRETARY: Ayes 53. 21 ACTING PRESIDENT HOBLOCK: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 7708 1 1105, by Senator Lack, Estates, Powers and 2 Trusts Law, in relation to providing for payment 3 of funds over $10,000. 4 ACTING PRESIDENT HOBLOCK: Read 5 the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT HOBLOCK: Call 9 the roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 53. 12 ACTING PRESIDENT HOBLOCK: The 13 bill is passed. 14 THE SECRETARY: Calendar Number 15 1106, by Senator Lack, Senate Print 4618, an act 16 to amend the Surrogate's Court Procedure Act, in 17 relation to the commissions of multiple 18 executors. 19 ACTING PRESIDENT HOBLOCK: Read 20 the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT HOBLOCK: Call 7709 1 the roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 53. 4 ACTING PRESIDENT HOBLOCK: The 5 bill is passed. 6 THE SECRETARY: Calendar Number 7 1107, by Senator Tully, Senate Print 4673, an 8 act to amend the Environmental Conservation Law, 9 in relation to exempting certain bakeries from 10 regulations pursuant to the Clean Air Act. 11 SENATOR PATERSON: Lay aside, 12 please. 13 ACTING PRESIDENT HOBLOCK: Bill 14 is laid aside. 15 THE SECRETARY: Calendar Number 16 1108, by Senator Lack, Senate Print 4680, an act 17 to amend the Surrogate's Court Procedure Act, in 18 relation to providing for an aunt or an uncle of 19 decedent who dies intestate to act as a 20 voluntary administrator. 21 ACTING PRESIDENT HOBLOCK: Read 22 the last section. 23 THE SECRETARY: Section 2. This 7710 1 act shall take effect immediately. 2 ACTING PRESIDENT HOBLOCK: Call 3 the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 53. 6 ACTING PRESIDENT HOBLOCK: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 1109, by Senator Lack, Senate Print 4681, an act 10 to amend the Surrogate's Court Procedure Act, in 11 relation to the revocation, modification or 12 suspension of letters testamentary. 13 ACTING PRESIDENT HOBLOCK: Read 14 the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT HOBLOCK: Call 18 the roll. 19 (The Secretary called the roll. ) 20 THE SECRETARY: Ayes 53. 21 ACTING PRESIDENT HOBLOCK: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 7711 1 1110, by Senator Maziarz, Senate Print 4831. 2 SENATOR PATERSON: Lay aside. 3 ACTING PRESIDENT HOBLOCK: Lay 4 the bill aside. 5 THE SECRETARY: Calendar Number 6 1111, by Senator Saland. 7 SENATOR PATERSON: Lay aside. 8 ACTING PRESIDENT HOBLOCK: Laid 9 aside. 10 THE SECRETARY: Calendar Number 11 1112, by Senator Saland, Senate Print 5107, an 12 act to amend the Family Court Act, in relation 13 to the submission of transcripts. 14 ACTING PRESIDENT HOBLOCK: Read 15 the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect on the 30th day. 18 ACTING PRESIDENT HOBLOCK: Call 19 the roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 53. 22 ACTING PRESIDENT HOBLOCK: The 23 bill is passed. 7712 1 THE SECRETARY: Calendar Number 2 1113, by Senator Skelos, Senate Print 5195, an 3 act to amend the Town Law, in relation to the 4 abolition of the additional office of supervisor 5 of the town of Hempstead. 6 ACTING PRESIDENT HOBLOCK: The 7 home rule message is at the desk. Read the last 8 section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 SENATOR PATERSON: Lay that 12 aside, please. 13 ACTING PRESIDENT HOBLOCK: At the 14 request of Senator Paterson, the bill is laid 15 aside. 16 THE SECRETARY: Calendar Number 17 1114, by Senator Marcellino, Senate Print 5212, 18 an act to amend the Criminal Procedure Law, in 19 relation to corrective remedies. 20 SENATOR PATERSON: Lay aside. 21 ACTING PRESIDENT HOBLOCK: Lay 22 the bill aside. 23 THE SECRETARY: Calendar Number 7713 1 1115, by Senator Present, Senate Print 5221, an 2 act to amend the General Municipal Law, in 3 relation to the powers of the development of 4 railroad facilities by the county of 5 Chautauqua. 6 ACTING PRESIDENT HOBLOCK: Read 7 the last section. 8 SENATOR LEICHTER: Lay aside. 9 THE SECRETARY: Calendar Number 10 1116, by Senator Sears, Senate Print 5237, an 11 act to amend - 12 SENATOR SEARS: Lay aside for the 13 day. 14 ACTING PRESIDENT HOBLOCK: Bill 15 is laid aside for the day by the sponsor. 16 Senator Skelos, that completes 17 the non-controversial calendar. 18 SENATOR SKELOS: Yes, Mr. 19 President. If we could take up the first 20 supplemental calendar controversial. 21 ACTING PRESIDENT HOBLOCK: 22 Secretary will read the controversial 23 supplemental calendar. 7714 1 THE SECRETARY: Calendar Number 2 1094, by Senator Skelos, Senate Print 3349, an 3 act to amend Chapter 846 of the Laws of 1970, 4 amending the County Law. 5 ACTING PRESIDENT HOBLOCK: Read 6 the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT HOBLOCK: Home 10 rule message is at the desk. Call the roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 53. 13 ACTING PRESIDENT HOBLOCK: The 14 bill is passed. 15 THE SECRETARY: Calendar Number 16 1097, by Senator Tully, Senate Print number 17 3848, an act to amend the Environmental 18 Conservation Law and the State Finance Law, in 19 relation to enacting the Voluntary Remediation 20 Act of 1995. 21 SENATOR OPPENHEIMER: Explana 22 tion, please. 23 ACTING PRESIDENT HOBLOCK: 7715 1 Explanation has been asked for. Senator Tully. 2 SENATOR TULLY: Yes, Mr. Presi 3 dent. Will you lay that aside temporarily. I'm 4 waiting for the bill file to come from the LOB. 5 ACTING PRESIDENT HOBLOCK: The 6 bill is laid aside temporarily. 7 THE SECRETARY: Calendar Number 8 1101, by Senator Nozzolio, Senate Print 4408, an 9 act to amend the Civil Practice Law and Rules, 10 the Court of Claims Act and the Correction Law, 11 in relation to prisoner litigation reform. 12 SENATOR PATERSON: Explanation. 13 ACTING PRESIDENT HOBLOCK: 14 Explanation has been asked for. Bill laid aside 15 temporarily. 16 THE SECRETARY: Calendar Number 17 1102, by Senator Lack, Senate Print 4437, an act 18 to amend the Estates, Powers and Trusts Law and 19 the General Obligations Law, in relation to 20 renunciations of certain property interests. 21 ACTING PRESIDENT HOBLOCK: Read 22 the last section. 23 THE SECRETARY: Section 3. This 7716 1 act shall take effect immediately. 2 ACTING PRESIDENT HOBLOCK: Call 3 the roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 53. 6 ACTING PRESIDENT HOBLOCK: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 1107, by Senator Tully, Senate Print 4673, an 10 act to amend the Environmental Conservation Law, 11 in relation to exempting certain bakeries from 12 the regulations pursuant to the Clean Air Act. 13 SENATOR PATERSON: Explanation. 14 ACTING PRESIDENT HOBLOCK: 15 Explanation has been asked for. Senator Tully. 16 SENATOR TULLY: Thank you, Mr. 17 President. Will you lay that aside tempor 18 arily. That's coming out of the oven; it'll be 19 over here shortly. 20 ACTING PRESIDENT HOBLOCK: Bill 21 is laid aside temporarily. 22 THE SECRETARY: Calendar Number 23 1110, by Senator Maziarz, Senate Print 4831, an 7717 1 act to amend the General Obligations Law, in 2 relation to an owner's, lessee's or occupant's 3 of premises duty to keep premises safe. 4 SENATOR LEICHTER: Explanation, 5 please. 6 ACTING PRESIDENT HOBLOCK: 7 Explanation has been asked for. Senator 8 Maziarz. 9 SENATOR MAZIARZ: Mr. President, 10 section 9-103 of the General Obligations Law 11 currently insulates property owners as well as 12 lessees and occupants from liability for the 13 injuries of persons who are on the property in 14 order to engage in certain enumerated recrea 15 tional activities. 16 This bill would add a new sub 17 division which would expand the protections of 18 the article in order to insulate owners from 19 suits brought by person or persons who enter a 20 property in order to commit a crime. 21 This bill is necessary because, 22 as the law now stands, it is possible although 23 it is very rare for a criminal who is injured in 7718 1 the course of committing a crime to successfully 2 sue the owner of a premises upon which he was 3 injured. This bill would eliminate that 4 possibility, Mr. President. 5 SENATOR LEICHTER: Mr. 6 President. 7 ACTING PRESIDENT HOBLOCK: 8 Senator Leichter. 9 SENATOR LEICHTER: Yeah, Mr. 10 President. If Senator Maziarz would yield, 11 please. 12 ACTING PRESIDENT HOBLOCK: Senator 13 Maziarz, you yield? 14 SENATOR MAZIARZ: Yes I would. 15 ACTING PRESIDENT HOBLOCK: He 16 yields. 17 SENATOR LEICHTER: Senator, as I 18 read this bill, you seem to eliminate the law of 19 what's called "attractive nuisance", and what 20 I'm concerned about is the situation which is 21 not that rare in the city of New York where a 22 building becomes abandoned for any variety of 23 reasons, but usually because of poor upkeep. 7719 1 Once that building is abandoned, 2 and the landlord fails to take proper steps to 3 seal off the building, it's very likely that 4 homeless people will enter the building. 5 Now, if there are open air shafts 6 or really other very dangerous conditions in 7 that building which constitute or, under the 8 current law, would constitute negligence having 9 in mind that the landlord should know that 10 people might very well take advantage of an 11 abandoned building, even though by entering that 12 building they're committing a crime. They're 13 committing the crime of trespass, but 14 nevertheless they're still entitled to some 15 protection, and what I'm concerned about is that 16 situation. 17 Now, if your bill doesn't 18 eliminate the protection, I think these people 19 should be entitled to, then in theory your bill 20 has a certain appeal; in practice, I'm concerned 21 about that situation I gave you. I wondered if 22 you could respond to that, please. 23 SENATOR MAZIARZ: Well, certainly 7720 1 someone who is seeking shelter, first of all, I 2 would say that the owner may be committing a 3 crime by not properly boarding up his building, 4 leaving it wide open for someone to wander in. 5 He must be in violation of some building code of 6 some sort, but secondarily, I don't know that 7 someone wandering in the building is coming in 8 to engage in any particular criminal activity. 9 SENATOR LEICHTER: I'm sorry. I 10 didn't hear your last comment. 11 SENATOR MAZIARZ: I said I don't 12 know if someone just wandering into the 13 building, since the intent of this is to protect 14 the owner from someone who is coming into the 15 building with some criminal activity in mind. 16 SENATOR LEICHTER: Well, trespass 17 is a criminal activity. 18 ACTING PRESIDENT HOBLOCK: Is 19 that a question to Senator Maziarz, Senator 20 Leichter? 21 SENATOR LEICHTER: It is a 22 question. 23 ACTING PRESIDENT HOBLOCK: 7721 1 Senator Leichter. 2 SENATOR LEICHTER: Is it not? Is 3 trespass not a criminal activity? 4 SENATOR MAZIARZ: Well, Senator, 5 I'm not an attorney, but I don't think it's 6 enough -- it's not -- trespass is not enough. 7 It would have to be a -- it would have to be 8 somewhat of a more serious crime, Senator. 9 SENATOR LEICHTER: Mr. President, 10 if Senator Maziarz would continue to yield. 11 ACTING PRESIDENT HOBLOCK: 12 Senator Maziarz, do you continue to yield? 13 SENATOR MAZIARZ: Yes. I believe 14 trespass is a violation, Senator. I will 15 continue to yield. 16 ACTING PRESIDENT HOBLOCK: 17 Senator Leichter, he continues to yield. 18 SENATOR LEICHTER: Senator, I 19 believe that trespass can constitute a Class B 20 misdemeanor and that is a crime, but may I make 21 this suggestion to you. If your intent is to 22 deal with more serious crimes, say somebody 23 comes in with a gun with the intent to rob 7722 1 somebody and he trips on the steps because the 2 carpeting is loose and then turns around and 3 sues the person, I certainly agree with you that 4 we don't want somebody like that to bring an 5 action. 6 Why don't you -- why don't you 7 amend the bill to provide, as I gather from what 8 you say is your intent, that it covers more 9 serious crimes instead of just using the word 10 "crime." Why not say "felony" because to do an 11 act which would constitute a felony and then I 12 don't think any of us would have a problem with 13 it. 14 SENATOR MAZIARZ: Senator, was 15 there a question there? I -- I do not wish to 16 amend the bill. 17 SENATOR LEICHTER: Excuse me. 18 SENATOR MAZIARZ: I do not wish 19 to amend the bill. 20 SENATOR LEICHTER: All right. 21 Mr. President. 22 ACTING PRESIDENT HOBLOCK: 23 Senator Leichter. 7723 1 SENATOR LEICHTER: On the bill. 2 ACTING PRESIDENT HOBLOCK: On the 3 bill. 4 SENATOR LEICHTER: I guess it's 5 unfortunate, Senator Maziarz, occasionally, you 6 know, suggestions are made for bills that have 7 been written, even bills that have put out by 8 the Majority, that can be improved, that could 9 be made clearer, that could more perfectly 10 achieve your intent and also could gain the 11 support of all the members of this house and 12 maybe give it a good chance of being passed in 13 the other house. 14 There is something of a tradition 15 here that once a bill is printed, it's on the 16 floor, that it's as if it were sanctified by 17 Moses coming down from the mount, it cannot be 18 improved upon, but I think upon reflection you 19 will see that we've had bills here that have 20 indeed been improved. 21 Now, all I did in my suggestion 22 was to take your very words. You said, Well, 23 what I have in mind is serious crimes. However, 7724 1 your bill doesn't say that. Your bill says 2 committing a crime, so I made what I thought was 3 a reasonable suggestion that you state that the 4 crime which would obviate any grounds for civil 5 cause of action would be felonies. Then I don't 6 think any of us would have problems, because 7 otherwise you do have the situation where in the 8 example that I gave you, which is not that un 9 common in the city of New York where a building 10 is either not sealed off at all or poorly sealed 11 off, homeless people will come in and they're 12 entitled to some sort of protection. Similarly, 13 children, as we know -- children, could be 14 teenagers, do commit trespasses, and so on. 15 Those could be considered crimes. They 16 nevertheless ought to be entitled to some sort 17 of basic protection. For, I don't know how many 18 years, the common law has had the doctrine of 19 attractive nuisance. I think it's made a lot of 20 sense. 21 You're trying to eliminate that 22 and change that totally and completely. That, I 23 think, is going too far and that's why I suggest 7725 1 to you that the bill would make a lot more 2 sense, and I think would have a much better 3 chance of passing in the Assembly if you 4 provided that you're talking of felonies. 5 ACTING PRESIDENT HOBLOCK: 6 Secretary will read the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT HOBLOCK: Call 10 the roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 1110 are 14 Senators Abate, Connor, Leichter, Markowitz, 15 Montgomery, Paterson, Smith and Solomon. Ayes 16 45, nays 8. 17 ACTING PRESIDENT HOBLOCK: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 1111, by Senator Saland, Senate Print 5103, an 21 act to amend the Domestic Relations Law, in 22 relation to special relief in matrimonial 23 actions. 7726 1 ACTING PRESIDENT HOBLOCK: Read 2 the last section. 3 SENATOR PATERSON: Explanation. 4 SENATOR SKELOS: Lay it aside for 5 the day. 6 ACTING PRESIDENT HOBLOCK: Bill 7 is laid aside for the day. 8 THE SECRETARY: Calendar Number 9 1113, by Senator Skelos, Senate Print 5195, an 10 act to amend the Town Law, in relation to the 11 abolition of the additional office of supervisor 12 of the town of Hempstead. 13 ACTING PRESIDENT HOBLOCK: Home 14 rule message is at the desk. Read the last 15 section. 16 SENATOR PATERSON: Explanation. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT HOBLOCK: 20 Explanation has been asked for. 21 SENATOR SKELOS: Mr. President. 22 ACTING PRESIDENT HOBLOCK: 23 Senator Skelos. 7727 1 SENATOR SKELOS: Mr. President, 2 in the town of Hempstead in the county of 3 Nassau, there is the position of presiding 4 supervisor and supervisor. Because of the fact 5 that commencing January 1st, 1996, Nassau County 6 will be governed by a county legislature rather 7 than by a board of supervisors system, where 8 both the presiding supervisor and the supervisor 9 of the town of Hempstead sat on that board, this 10 legislation would eliminate one of those 11 positions since they are no longer part of the 12 board of supervisors, and there would now just 13 be a supervisor of the town of Hempstead just as 14 there is one in North Hempstead and the town of 15 Oyster Bay. 16 ACTING PRESIDENT HOBLOCK: 17 Senator Paterson. 18 SENATOR PATERSON: Yes. Mr. 19 President, so, Senator Skelos, there used to be 20 two. There used to be a local town official and 21 the town supervisor and what we're doing is just 22 taking one, taking the local one out because we 23 have a county legislature now? 7728 1 SENATOR SKELOS: Basically, yes. 2 There was a presiding supervisor, supervisor, 3 and they both sat on the board of supervisors. 4 Since there's no longer going to be a board of 5 supervisors, we're eliminating one of the 6 supervisor positions, and there will now be just 7 one supervisor from the town of Hempstead. 8 Essentially, we're eliminating the presiding 9 supervisor's position. 10 SENATOR PATERSON: One 11 supervisor. You get all (inaudible). Thank 12 you. 13 SENATOR LEICHTER: Mr. President. 14 ACTING PRESIDENT HOBLOCK: Senator 15 Leichter. 16 SENATOR LEICHTER: Yeah, Mr. 17 President, if Senator Skelos would yield, 18 please. 19 ACTING PRESIDENT HOBLOCK: Senator 20 Skelos, do you yield? 21 SENATOR SKELOS: Yeah. 22 ACTING PRESIDENT HOBLOCK: 23 Senator, who is the presiding supervisor now of 7729 1 the town of Hempstead? 2 SENATOR SKELOS: Fred Peterson. 3 SENATOR LEICHTER: O.K. He's the 4 presiding supervisor? And who is the 5 supervisor? 6 SENATOR SKELOS: Richard 7 Guardino. 8 SENATOR LEICHTER: And are they 9 both from the same party? 10 SENATOR SKELOS: They're both 11 from the same party. 12 SENATOR LEICHTER: O.K. 13 SENATOR SKELOS: As are the six 14 councilmen in the town of Hempstead also. 15 SENATOR LEICHTER: Right. I mean 16 I just want to make sure. I know that you 17 ordinarily wouldn't put something forward that's 18 not a good government measure. 19 SENATOR SKELOS: As a matter of 20 fact, in the town of Hempstead, I don't think 21 there's ever been other than a Republican 22 supervisor and presiding supervisor. 23 SENATOR LEICHTER: And the - 7730 1 this in no way will change the representation of 2 any group within the town of Hempstead? 3 SENATOR SKELOS: No. Essentially 4 it's saving the taxpayers the burden of one 5 additional supervisor's position. The original 6 charter to the county of Nassau, when they 7 established the presiding supervisor's position, 8 because the town of Hempstead had over 50 9 percent of the vote, they established the two 10 positions, presiding supervisor and supervisor, 11 so that one person would not be able to control 12 essentially the entire county of Nassau. 13 Now that we're going to a county 14 legislature, we're eliminating one of those 15 positions. 16 SENATOR LEICHTER: Let me just ask 17 you, if you would be good enough to yield: As a 18 consequence of going to the county legislature, 19 you still going to maintain the position of town 20 supervisor? 21 SENATOR SKELOS: Sure. 22 SENATOR LEICHTER: And is that 23 going to be a position that's going to have a 7731 1 vote on the county legislature? 2 SENATOR SKELOS: No. 3 SENATOR LEICHTER: O.K. Thank 4 you. 5 ACTING PRESIDENT HOBLOCK: 6 Secretary will read the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT HOBLOCK: Call 10 the roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 53. 13 ACTING PRESIDENT HOBLOCK: The 14 bill is passed. 15 THE SECRETARY: Calendar Number 16 1114, by Senator Marcellino, Senate Print 5212, 17 an act to amend the Criminal Procedure Law, in 18 relation to corrective remedies. 19 SENATOR PATERSON: Explanation. 20 ACTING PRESIDENT HOBLOCK: 21 Senator Marcellino, an explanation has been 22 asked for. 23 SENATOR MARCELLINO: Mr. 7732 1 President, this bill seeks to amend the Criminal 2 Procedure Law with regard to the people's 3 failure to serve on a defendant copies of 4 witness statements. 5 At the request of the District 6 Attorneys Association of the state of New York 7 this bill -- I'm introducing this bill. It adds 8 a new section 240.146 to the Criminal Procedure 9 Law to provide that a defendant must demonstrate 10 that his or her substantial rights would 11 prejudice for failure to turn over copies of 12 witness statements in order for reversal or 13 modification of a judgment to be granted. 14 ACTING PRESIDENT HOBLOCK: 15 Senator Paterson. 16 SENATOR PATERSON: Mr. President, 17 if Senator Marcellino would please yield for a 18 question. 19 ACTING PRESIDENT HOBLOCK: Senator 20 Marcellino, do you yield? 21 SENATOR MARCELLINO: Absolutely. 22 SENATOR PATERSON: Senator 23 Marcellino, would you first explain to me why 7733 1 you want to put the burden on the defendant to 2 establish that the papers that might not have 3 been filed were not germane to the actual case 4 when the defendant may not know that informa 5 tion but the fact is that the withholding of 6 documents is a very serious matter in the 7 criminal case. 8 SENATOR MARCELLINO: Senator, it 9 would seem that, if there was deliberate intent 10 to withhold material that would protect or help 11 the defendant, then I could imagine that a judge 12 would be able to say clearly that this was done 13 with intent and that it should be overturned and 14 the decision should be over turned. 15 In the case of a statement which 16 occurred here in one of our examples, the 17 witness statement that caused the overturning of 18 a case actually pointed to the fact that the 19 witness observed the defendant in the building 20 where the crime was committed at the time the 21 crime was committed. It had no effect -- would 22 have had no positive effect from the defendant's 23 standpoint. 7734 1 The rule -- the Rosario rule, 2 which governs these statements has apparently 3 been turned into a situation where any error, 4 whether it be by intent or just by oversight, 5 whether it's for the defendant or against the 6 defendant, will result in an immediate new 7 trial. It would be my contention that, in order 8 for any reversal to occur, that a defendant 9 should show that cause -- that this statement 10 would have helped from their perspective and let 11 a judge decide if, in fact, that's the case. 12 Defendant would have to prove, for example upon 13 conviction that there was errors in the trial 14 procedure in order to get the reversal - 15 conviction reversal for a new trial; so the 16 defendant has the same responsibility in either 17 case. 18 SENATOR PATERSON: Mr. 19 President. 20 ACTING PRESIDENT HOBLOCK: 21 Senator Paterson. 22 SENATOR PATERSON: Mr. President, 23 in the case that Senator Marcellino describes, 7735 1 he may be actually correct, but what we do by 2 requiring the burden be on the police is that we 3 set a standard that can apply for all cases and 4 the vast majority of them. If we were to pass 5 this legislation, we would overturn the case of 6 People v. Rangel, and one of the real important 7 issues that came out in the dicta of the Rangel 8 case is actually the fact that the defendant 9 cannot always just meet some ambiguous standard 10 by proving that a statement or some form of 11 evidence that was not presented is necessarily 12 going to overturn the case. 13 That becomes a very subjective 14 determination and when we want -- when we open 15 our criminal courts for the purposes of 16 prosecuting criminals and also exonerating those 17 who are not guilty, we don't want to have this 18 kind of situation where you don't know when 19 you're going over the line where there's a great 20 ambiguity. 21 What we don't really understand, 22 Senator Marcellino, with this particular 23 legislation is, why the -- why the -- the reason 7736 1 that the standard was set in the Rangel case, to 2 be frank with you is to make sure that it is 3 always a high priority on the part of the police 4 to present this evidence, but if this evidence 5 is not presented we deem it to be so important 6 that we will make that an issue relating to the 7 dismissal of the charges. If the evidence is 8 not presented, if it's withheld in any way, 9 whether it be deliberate or not deliberate, 10 because that's how important it is that all of 11 the information be available at trial. What we 12 have to do in this situation where the burden is 13 put on the defendant is we make the defendant 14 come forward after the fact and try to prove 15 something that made really be in many respects 16 something that is now after the fact and is out 17 of timing with the events that would have 18 occurred at trial. 19 This is the reason that this leg 20 islation, in my opinion, seriously jeopardizes 21 the right of the defendant to get a fair trial 22 and there are certain elements of a criminal 23 trial where there are -- where the prosecution 7737 1 is forced to bring certain evidence and to 2 maintain -- to maintain certain standards and in 3 an individual case, and there will be individual 4 cases in our criminal justice system, where the 5 prosecution doesn't meet the standard and yes, 6 the defendant will go free, but the policy 7 argument that we're making here is the argument 8 that in the overwhelming number of cases, we 9 want to set a uniform standard and that's what 10 the Rangel case did, and that's why it really 11 should be the duty of the police to bring that 12 evidence forward. 13 To pass this legislation would 14 set up a standard where we're not bringing the 15 evidence forward, where we now have an ambiguous 16 standard of what we're setting that -- and a 17 very high burden of proof that the defendant has 18 to demonstrate that but for the fact that this 19 evidence was not presented, I would have been 20 exonerated of the charges, in my opinion that is 21 too high a standard to ask an individual who is 22 alleged to be innocent until proven guilty 23 beyond a reasonable doubt. It is too high a 7738 1 standard for that individual to meet. 2 ACTING PRESIDENT HOBLOCK: 3 Senator Gold. 4 SENATOR GOLD: Thank you. 5 Mr. President, this is a bill 6 we've had before, and while the sponsor is new, 7 the bill is not new and the issue is not new and 8 the problem with the bill is a very simple one. 9 We assume that people who can do 10 one job very effectively can also do every other 11 job, and it's just not true, and there are some 12 judges who are wonderful judges and very bright 13 men and women, whom I wouldn't want to try a 14 case for me on the other side of the bench. 15 A trial is a dynamic, and whether 16 we like it or not, the fact of the matter is 17 that records will indicate that people who have 18 money sometimes can do better in a courtroom 19 than other people. Matter of fact, you take a 20 look at the debacle that's going on in 21 California, even have a prosecutor who says he's 22 fed up with the system, the point I'm making is 23 that to say that a defendant must prove to a 7739 1 judge who may or may not be his choice of trial 2 lawyer, that having that statement in advance 3 would have or would not have affected the 4 preparation of the case, how the selection of 5 the jury would have been handled, how the order 6 of witnesses might have been handled for the 7 defense, whether or not a defendant takes the 8 stand or doesn't, whether you use private 9 detectives to check out one witness or another. 10 I mean these are real life dynamics of trying a 11 case and preparing a case, and it's too 12 simplistic -- and I don't mean that in any 13 degrading way, Senator, believe me -- to suggest 14 that the mere giving or not giving of a 15 statement, because of its contents, would or 16 would not affect an outcome, because of the way 17 one judge or two judges view how they as a trial 18 lawyer might use the contents of that 19 statement. 20 The real problem with this bill 21 is that it tampers with a very delicate 22 balance. Two people in a courtroom may not 23 speak at once, so we have determined that one 7740 1 side will speak before the other. We have 2 determined that one side will ask questions of 3 juries before the other. We have determined 4 that one side will sum up after the other, and 5 we hope that in this whole balancing act there's 6 a fair trial, fair for the prosecution, giving 7 them an opportunity to really convict people who 8 have committed crime, and a fair opportunity for 9 people who have not committed a crime to have 10 their day in court and perhaps be declared not 11 guilty and, when we make these itsy-bitsy little 12 changes, they're not so itsy-bitsy and what they 13 wind up doing is changing the balance within the 14 court. 15 Senator Volker, every year, puts 16 forth a bill which would change the grand jury 17 system because one prosecutor up in Erie County 18 made a mistake one day. Now, since that time 19 everything has gone great. His law, proposed 20 law, has not passed and other prosecutors have 21 not made that error. 22 Senator, we have a case which has 23 been very well described by the Deputy Minority 7741 1 Leader, and I don't see case after case 2 happening. There are prosecutors throughout 3 this state who understand their obligation. As 4 a matter of fact, in the very case that was 5 discussed by Senator Paterson, the statement, 6 according to the court decision, would not have 7 changed the outcome and helped the prosecution, 8 so there's no reason why they should not have 9 complied with the law and walked away with their 10 conviction. 11 The bottom line of all of this is 12 that you cannot take a -- any proposed law that 13 would change the structure of a trial and look 14 at it in a vacuum. You must look at it as part 15 of a whole system of checks and balances and in 16 that context, Senator, I think it is not a great 17 idea, and I would go along with the suggestion, 18 Senator Paterson, that we leave the law just the 19 way it is. 20 ACTING PRESIDENT HOBLOCK: 21 Senator Abate. 22 SENATOR ABATE: Yes, on the 23 bill. On Friday night we passed a law which 7742 1 overturned the Ryan decision because we felt 2 that Court of Appeals case could be put a 3 prosecutor in an unfair position to prosecute 4 serious drug offenders. 5 This is a very different case. 6 What the law would do, what the Rosario said 7 that discovery is an important part of a fair 8 trial right to counsel. It was an important 9 part of the people's burden to prove a case 10 beyond a reasonable doubt because the converse 11 is, if the defendant doesn't get these prior 12 inconsistent statements, doesn't get the 13 statements of witnesses, it thereby jeopardizes 14 the defendant's ability to prepare for trial. 15 It jeopardizes the right to a fair trial, and it 16 puts the defendant at an unfair burden. 17 So I agree with my colleague, 18 this is a very different situation from what we 19 faced on Friday night. That was clear this does 20 change the rights of the defendant and, yes, it 21 will be a case where the defendant, the district 22 attorney, because of oversight has failed to 23 give the material over to the defense; but the 7743 1 burden isn't so great. 2 The D.A. on the case has those 3 statements before them when they put that 4 witness on the stand. It's usually neglect 5 because it's very easy for them to turn over 6 that information to the defense counsel, so that 7 the burden -- and it's a heavy burden as well it 8 should be -- should stay with the district 9 attorney, and it should not shift to the 10 defendant. 11 ACTING PRESIDENT HOBLOCK: Read 12 the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect on the 1st day of 15 November. 16 ACTING PRESIDENT HOBLOCK: Call 17 the roll. 18 (The Secretary called the roll. ) 19 ACTING PRESIDENT HOBLOCK: 20 Senator Leichter. 21 SENATOR LEICHTER: Yes, if I may 22 just explain my vote on this, Mr. President, 23 maybe put it in a little bit philosophical 7744 1 context. 2 I think that what is so wonderful 3 about this country, what is so wonderful about 4 our tradition of due process, is that we really 5 do bend over backwards to make sure that we 6 never convict the wrong person. We know that, 7 as human beings, we're subject to making 8 mistakes, we're fallible, and obviously, 9 innocent people do get convicted, but we make 10 every effort to make sure that a trial is fair 11 and that we avoid making what is the gravest of 12 mistakes in the law, and that is convicting an 13 innocent person and that is, I think, why this, 14 the law as it presently is, is so important and 15 that is why this bill is such a radical 16 departure really, such a basic change in the 17 philosophy of the outlook, and I would say 18 principle of tradition of this country. 19 Mr. President, I vote no. 20 ACTING PRESIDENT HOBLOCK: 21 Secretary will announce the results. 22 THE SECRETARY: Those recorded in 23 the negative on Calendar Number 1114 are 7745 1 Senators Abate, DeFrancisco, Espada, Gold, 2 Leichter, Marchi, Mendez, Paterson, Smith, 3 Solomon, Waldon, Wright, also Senator Montgomery 4 -- excuse me, Senator Wright is voting in the 5 affirmative. In the negative Senator Connor. 6 Ayes 41, nays 13. 7 ACTING PRESIDENT HOBLOCK: The 8 bill is passed. 9 Senator Wright. 10 SENATOR WRIGHT: Mr. President, 11 can we return to motions and resolutions. I 12 believe there is a resolution sponsored by 13 Senator DeFrancisco at the desk and ask that the 14 titled be read and the resolution adopted. 15 ACTING PRESIDENT HOBLOCK: 16 Secretary will read. 17 THE SECRETARY: By Senator 18 DeFrancisco, Legislative Resolution honoring 19 Gregory R. Schneider, an eighth grade student at 20 Driver Middle School in the Marcellus Central 21 School District, for his participation in the 22 49th Senate District "Good News, Good Kids" 23 student recognition program. 7746 1 ACTING PRESIDENT HOBLOCK: 2 Senator DeFrancisco. 3 SENATOR DeFRANCISCO: Yes. I 4 rise to speak in support of this resolution. 5 You know, oftentimes in these chambers we talk 6 about things that are wrong with this state and 7 may be with young people. We started a program 8 a couple years ago called "Good News, Good Kids" 9 in our district which honors groups of kids who 10 do good things for the community, and this is 11 one individual, I think had to be specially 12 recognized, Gregory R. Schneider, who is here 13 with his parents and grandmother and other 14 relatives. 15 He, on his own, as an eighth 16 grader, decided that an area behind the town of 17 Marcellus Town Hall should be a park and made 18 forever green and, on his own, he went to the 19 town supervisor, appeared before the town board 20 to get approval for this forever green park that 21 was his idea, and the town board does what we do 22 all the time. It approved it, but said there's 23 no funds for it. You raise the money, so he 7747 1 did. 2 He went out and got fund raisers, 3 together, and at least at the time of this 4 writing he raised about $7,000. Couldn't pay 5 for an architect, didn't have enough money, so 6 he convinced an architect to do a free archi 7 tectural drawing, and then got a landscaping 8 person to devote his time, and brought in other 9 kids to help with the planting, the planting of 10 the trees. 11 Talk about, you know, getting 12 community service to happen in an eighth grader 13 to do that. Well, I could tell you as of today 14 that park is forever green. The trees, over a 15 hundred trees have been planted, and they're 16 working on the park benches and other things 17 that are going to be forever in the town of 18 Marcellus park because of an eighth grader by 19 the name of Gregory Schneider. 20 We should honor him and all the 21 kids like him who do good things and give us 22 good things to talk about. 23 (Applause) 7748 1 ACTING PRESIDENT HOBLOCK: Thank 2 you very much, Senator DeFrancisco. The 3 question is on the resolution. All those in 4 favor signify by saying aye. 5 (Response of "Aye.") 6 Opposed nay. 7 (There was no response. ) 8 The resolution is adopted. 9 Senator Wright. 10 SENATOR WRIGHT: Mr. President, 11 can we return to the reading of the 12 controversial calendar. 13 ACTING PRESIDENT HOBLOCK: 14 Secretary will read. 15 THE SECRETARY: Calendar Number 16 1115, by Senator Present, Senate Print 5221, an 17 act to amend the General Municipal Law, in 18 relation to the powers of the development of 19 railroad facilities by the county of 20 Chautauqua. 21 ACTING PRESIDENT HOBLOCK: Read 22 the last section. 23 SENATOR LEICHTER: Mr. 7749 1 President. 2 ACTING PRESIDENT HOBLOCK: 3 Senator Leichter. 4 SENATOR LEICHTER: Is there a 5 home rule message on this bill? 6 ACTING PRESIDENT HOBLOCK: Not 7 one necessary, we're advised, Senator Leichter. 8 SENATOR LEICHTER: Well, let me 9 ask Senator Present a question. 10 ACTING PRESIDENT HOBLOCK: 11 Senator Present yield? 12 SENATOR PRESENT: Yes. 13 SENATOR LEICHTER: Senator 14 Present, as I read this bill, in order for a 15 particular IDA project to proceed or if it 16 proceeds, then certain tax relief will be 17 provided from the real estate tax and that will 18 cover a period where the tax rolls have already 19 been closed, is that correct? 20 SENATOR PRESENT: It will cover 21 any taxes levied after September 15, 1995 with 22 the exception of the school 1995-96 tax. 23 SENATOR LEICHTER: But, Senator, 7750 1 if you would please continue to yield, is that 2 because the tax rolls have been -- have been 3 closed? 4 SENATOR PRESENT: Back in January 5 of this year, we passed a statute that became 6 Chapter 11 of the Laws of 1995 which authorized 7 the IDAs in Chautauqua and Allegany Counties to 8 purchase a portion of the CONRAIL line which 9 runs -- that portion that runs from Hornell to 10 the Pennsylvania-New York State line. 11 They were not able to negotiate 12 that sale prior to March 1st, which is the 13 normal tax status day, so they have asked that 14 this be extended to September 15th, but not to 15 apply to 1995-96 school district taxes. 16 It also says that it has to be 17 with the consent of the taxing jurisdictions 18 within that district. 19 SENATOR LEICHTER: Senator, does 20 this -- is this -- I appreciate that no home 21 rule message is here and none apparently is 22 required, but is this something that the county 23 asked us to do? 7751 1 SENATOR PRESENT: Very much so, 2 yes. 3 SENATOR LEICHTER: O.K. 4 SENATOR PRESENT: The two 5 counties. 6 ACTING PRESIDENT HOBLOCK: Read 7 the last section. 8 THE SECRETARY: Section 3. This 9 act shall take effect immediately. 10 ACTING PRESIDENT HOBLOCK: Call 11 the roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 56. 14 ACTING PRESIDENT HOBLOCK: The 15 bill is passed. 16 Senator Wright. 17 SENATOR WRIGHT: Mr. President, 18 could we take up Calendar Number 1101. 19 ACTING PRESIDENT HOBLOCK: 20 Calendar Number 1101, Secretary will read. 21 THE SECRETARY: Calendar Number 22 1101, by Senator Nozzolio, Senate Print 4408, an 23 act to amend the Civil Practice Law and Rules 7752 1 and the Court of Claims Act and the Correction 2 Law, in relation to prisoner litigation reform. 3 SENATOR PATERSON: Explanation. 4 ACTING PRESIDENT HOBLOCK: 5 Explanation has been asked for, Senator 6 Nozzolio. 7 SENATOR NOZZOLIO: Yes, Mr. 8 President. 9 This measure is another of our 10 attempts to present a comprehensive approach to 11 prisoner reform, that this particular bill deals 12 with prisoner litigation and it provides what I 13 believe will be a disincentive to those inmates 14 who wish to use the court system and make a 15 mockery out of our system of justice by bringing 16 meritless, frivolous, malicious and/or 17 repetitive lawsuits of a civil nature, and I 18 underscore, Mr. President of a civil nature. 19 This deals with civil litigation. 20 It also seeks to prevent the 21 filing of law suits by having such actions 22 adjudicated in a more fair and expeditious 23 manner with less case load, to bring justice to 7753 1 those who may have a very valid lawsuit but, 2 because of the clogged court system, cannot hear 3 that -- that system cannot hear that suit. 4 Basically there are four purposes 5 of the measure. It institutes a partial filing 6 fee for prisoner litigation brought in state 7 court, establishes a refundable filing fee for 8 actions in the New York State Court of Claims. 9 It requires inmates to exhaust their adminis 10 trative remedies within the Department of Cor 11 rectional Services prior to engaging in litiga 12 tion, and it lastly permits the Commissioner of 13 Corrections to establish sanctions for prisoners 14 who bring meritless lawsuits upon judicial 15 determination where they are found to be such 16 frivolous, malicious or repetitive by a court. 17 ACTING PRESIDENT HOBLOCK: 18 Senator Abate. 19 SENATOR ABATE: Yes. Would 20 Senator Nozzolio yield for a question? 21 ACTING PRESIDENT HOBLOCK: 22 Senator Nozzolio, do you yield? 23 SENATOR NOZZOLIO: Yes, Mr. 7754 1 President. 2 SENATOR ABATE: We had some 3 discussion around this bill -- I believe it's 4 the same bill -- in Codes, and I had one 5 concern. I was willing to support the bill if I 6 could get a couple questions answered, and let 7 me pose the same questions to you, Senator. 8 One was, is there any time limit 9 set in terms of exhausting the administrative 10 remedies because, if there's no time set, then 11 years could go by and, in fact, this legislation 12 would have a chilling effect for those inmates 13 who do have meritorious claims because they 14 would have to wait a long period of time before 15 they could file their claims with a state 16 court. 17 SENATOR NOZZOLIO: Section 3 of 18 the bill deals with the exhaustion requirement, 19 Senator. 20 SENATOR ABATE: See, I don't have 21 the bill before me. Does it have anything - 22 and I don't think the answer -- the question was 23 asked the last time. Is there a 90-day limit, a 7755 1 year limit, a reasonable period of time, because 2 the exhaustion of administrative remedies, I 3 think, is a very good idea because it would 4 avoid litigation, particularly when some of 5 these issues could be resolved at the 6 administrative level, but you don't want it to 7 have a chilling effect on all future litigation. 8 SENATOR NOZZOLIO: The exhaustion 9 requirements established are only for those 10 claims where there is recovery for personal 11 property damages, Senators. We do not have any 12 specific time limit where the Department of 13 Corrections must act. However, I'm certainly 14 sure that there will be another lawsuit filed 15 if, for some reason, the Department of 16 Corrections does not act in a timely manner. 17 I believe that to set an 18 administrative -- you as a former commissioner, 19 I don't think would have -- with a statutory 20 requirement that an action must be reviewed 21 within a short period of time would make sense 22 administratively, that nonetheless the intention 23 is that as all administrative remedies must be 7756 1 exhausted when a private non-prisoner litigant 2 must go to court if the court, within the claim 3 of statute of limitations, that governs the time 4 that action must be taken. 5 An exhaustion of remedies does 6 not -- must be made within that administrative 7 or that statutory framework of the statute of 8 limitations of the case in question, the damages 9 sought based on the statute of limitations of 10 that particular case, so I believe that there is 11 ample time certainly to do this, that I don't 12 see the need to handcuff the administration with 13 a specific period of time. 14 SENATOR ABATE: But, on the other 15 hand, if in fact in the statute, it -- it would 16 outline that an administrative resolution had 17 to occur within a period of time, let's say 90 18 days, six months, even the Department of 19 Correction would not be harmed by that because 20 all that would occur is the person then would 21 pursue their remedies in the court as well as 22 administratively, but it would put some burden 23 on the Department, DOCS, to move these adminis 7757 1 trative cases, or they understand that the 2 inmate has an opportunity to follow a second 3 venue to remedy their situation. 4 That's one of my concerns, and I 5 was hoping that could be addressed so I could 6 support this. 7 Also, are you mindful that most 8 of the cases that go before a judge, even though 9 they may -- there may not be a ruling in favor 10 of the inmates, most of them are found either to 11 be non-meritorious, or found to be meritorious? 12 Very few are found to be frivolous and this - 13 and my understanding of this legislation that, 14 if an inmate files a claim in court and it's 15 non-meritorious, there would be no sanction 16 against that individual. 17 Let's say they lose in court, but 18 the court finds it's non-meritorious. That does 19 not mean it's frivolous; is that right? 20 ACTING PRESIDENT HOBLOCK: 21 Senator Nozzolio, do you yield? 22 SENATOR NOZZOLIO: Yes, Mr. 23 President. That is correct. 7758 1 SENATOR ABATE: And that is an 2 important distinction. That's why I felt that I 3 could support this legislation, but because 4 there are no time limits, I feel that it really 5 weakens the remedy that's provided to DOCS. 6 Would you consider, if this 7 doesn't get passed by both houses, having a 8 discussion with DOCS to find out if there is an 9 internal time period to resolve these or putting 10 in statute some additional rules and 11 regulations? 12 ACTING PRESIDENT HOBLOCK: 13 Senator. 14 SENATOR NOZZOLIO: Mr. President. 15 SENATOR STAFFORD: Mr. 16 President. 17 ACTING PRESIDENT HOBLOCK: 18 Senator Stafford. 19 SENATOR STAFFORD: I apologize to 20 the two individuals debating, but I'm sure they 21 wouldn't mind because there will come a day when 22 you visit here after you've served in such a 23 dedicated manner. We've never been able to have 7759 1 him come back on the floor, but we wouldn't let 2 him leave today Albany, without introducing and 3 wishing that he would come more often. He does 4 quite well every time he comes to Albany, so 5 maybe that will relieve that. Anyway it's 6 Senator Doug Barclay. 7 (Applause) 8 ACTING PRESIDENT HOBLOCK: Good 9 to see you, Senator. 10 SENATOR STAFFORD: Thank you. 11 Thank you, Senator, Senator Nozzolio. 12 ACTING PRESIDENT HOBLOCK: 13 Senator. 14 SENATOR NOZZOLIO: Mr. President, 15 in responding to Senator Abate's question, I 16 think that, Senator, of course, we would always 17 be willing to listen to discussion, but the 18 Department of Corrections under this legislation 19 is required to promulgate appropriate rules 20 governing the conduct of this, and certainly 21 that input that could be made to the Department, 22 and I would welcome some reasonable discussion 23 on that issue. 7760 1 SENATOR ABATE: And just on the 2 bill, and in response to Senator Nozzolio, I 3 believe DOCS has some protocol dealing with most 4 grievance situations if those grievance 5 situations haven't been resolved within 90 6 days. The property claim, there is no time 7 limit. 8 ACTING PRESIDENT HOBLOCK: Excuse 9 me. Excuse me, Senator Abate. I know this is a 10 very important bill. Can we have some order in 11 the chamber please, listen to Senator Abate on 12 this very important bill. 13 Senator Abate. Thank you. 14 SENATOR ABATE: Yes, I believe 15 the language that surrounds not only grievance 16 cases, because already DOCS has some language 17 that says that cases that are grievable must be 18 resolved within 90 days. My concern has to do 19 with property cases, property theft, property 20 loss. 21 I do not believe that there's any 22 administrative ruling or regulation that 23 requires DOCS to resolve those cases in any 7761 1 period of time. Without that, in -- this 2 legislation becomes problematic. At any rate, I 3 look forward to working with you on this 4 legislation. 5 Thank you. 6 ACTING PRESIDENT HOBLOCK: 7 Senator Waldon. 8 SENATOR WALDON: Thank you very 9 much. 10 Would the Senator from Wayne 11 County permit me to ask a question or two? 12 ACTING PRESIDENT HOBLOCK: 13 Senator Nozzolio, do you yield? 14 SENATOR NOZZOLIO: Certainly, Mr. 15 President. 16 SENATOR WALDON: Senator, it is 17 my understanding, and I will accept your 18 correction, because I know that you're much more 19 on top of this than I am, but it's my 20 understanding that the prisoners as a rule of 21 thumb, before they begin instituting suits, have 22 an internal process that they go through in the 23 prison systems, a grievance process, is that 7762 1 correct? 2 SENATOR NOZZOLIO: I mean there 3 are grievance processes within each prison. 4 That is correct. 5 SENATOR WALDON: And it is also 6 my understanding that this move into the courts 7 by prisoners oftentimes occurs after they have 8 initiated the initial grievance process, is that 9 your understanding? 10 SENATOR NOZZOLIO: Mr. President, 11 no, it is not my understanding and sometimes 12 that process is used and used legitimately in 13 terms of the grievance process within each 14 prison. 15 What we're hoping is that, by 16 this legislation, that administrative process 17 will be used more often because, frankly, we 18 have a direct -- "go directly to court" 19 mentality by many in terms of presenting 20 grievances that really have no business in 21 court. 22 So, Senator, I disagree with the 23 comment of "often used". I think that it's not 7763 1 often enough in terms of using the process and 2 after that process is exhausted of going to 3 court. 4 SENATOR WALDON: Mr. President. 5 ACTING PRESIDENT HOBLOCK: 6 Senator Waldon. 7 SENATOR WALDON: If the gentleman 8 from Cayuga County would let me ask a couple 9 more questions? 10 ACTING PRESIDENT HOBLOCK: 11 Senator yield? 12 SENATOR NOZZOLIO: Mr. President, 13 just for my colleague's benefit, I represent 14 five counties, I can give each of them. I will 15 give you each of them but that doesn't mean 16 necessarily you ask five questions. You said 17 Wayne and Cayuga. I got Seneca, Yates and 18 Ontario. 19 SENATOR WALDON: And I didn't 20 think the area you represent would have any 21 bearing whatsoever on the questions you would 22 respond to or the questions I would ask. 23 May I continue, Mr. President? 7764 1 ACTING PRESIDENT HOBLOCK: 2 Senator Waldon. Senator Nozzolio, you continue 3 to yield? Senator Waldon, you may continue. 4 SENATOR WALDON: Anyway it's fun 5 to be here sometimes on these issues. My 6 concern is, Senator Nozzolio, and let me be 7 specific and then we can cut right to the 8 chase. If someone has, in their relief system, 9 a legitimate cause that should be aired in 10 court, I think it is un-American to take that 11 away from them, but equally as important as 12 taking away their right to go to court is to 13 allow the particular superintendent and/or 14 warden of the facility at which this person may 15 find him- or herself, to be able to apply 16 punishment by taking away privileges, maybe not 17 necessarily cavalierly but at least it appears 18 that they can cavalierly take away privileges 19 because someone may feel that he or she has a 20 right to sue. 21 These people are in prison, but 22 should their rights be deterred to a greater 23 extent than those who are outside of the 7765 1 prisons? Isn't that what this accomplishes? 2 SENATOR NOZZOLIO: Mr. President, 3 in response to my colleague's inquiry, I can say 4 this, that your concern is certainly a valid one 5 if the situation was stifled by this proposal 6 before us; but, Senator, it is our intention to 7 establish a system that is no better for those 8 who are inmates than the system for those who 9 are private citizens outside the prison in terms 10 of accessing the courts. 11 There are provisions in this 12 legislation for prisoners who are seeking 13 recovery for certain damages to have a waiver of 14 the court fee that we're asking them to pay, a 15 fee, I might add, that is only a small portion 16 of the fee that your citizens and your 17 constituents and my constituents must pay to 18 access courts for their own private litigation. 19 I have to say "private litigation". This has 20 nothing to do with any violations of civil or 21 criminal rights, civil rights that inmates may 22 claim. 23 Also there is, as I mentioned, 7766 1 this fee could be waiveable or reduced depending 2 on the type of action sought. The program is 3 identical to a program that has existed for the 4 last decade in the Northern District of New York 5 in the federal court system that established a 6 partial filing fee program for those who wish to 7 bring litigation in federal court. We're 8 modeling that fee program at the state court 9 level now based on the federal court model, and 10 we're trying to reduce the numbers of types of 11 cases that are brought directly to court, and I 12 think that, if you heard of the types of cases 13 and the scope of the problem, if I may, Senator, 14 in asking you to yield, just in terms of our 15 dialogue here, that there are approximately, in 16 terms of litigation right now, one lawsuit for 17 every two inmates in the system. Approximately 18 65,000 inmates in the system today; we have 19 almost 30,000 lawsuits pending, brought by 20 inmates in the system. Many of those lawsuits 21 may be meritorious, and we're not trying to 22 stifle those. What we're saying though is, 23 there are many lawsuits which have no merit 7767 1 whatsoever, and those are the ones we're trying 2 to focus. 3 SENATOR WALDON: Mr. President. 4 ACTING PRESIDENT HOBLOCK: 5 Senator Waldon. 6 SENATOR WALDON: May I continue, 7 Mr. President? 8 ACTING PRESIDENT HOBLOCK: 9 Senator Nozzolio continue to yield? Senator 10 Waldon. 11 SENATOR WALDON: Yes, Mr. 12 President. 13 Senator Nozzolio, I was going to 14 ask you for statistics on the number of cases 15 pending, et cetera, and you anticipated my 16 question and shared that information with me. 17 Being that you have that data clearly, you must 18 have it there, I keep seeing you looking down at 19 the paper and then speaking. 20 Can you tell us what percentage 21 of those cases are state court, what percentage 22 of those cases are in federal court, what 23 percentage of those 30-plus-thousand cases have 7768 1 been resolved and found to be frivolous, what 2 percentage have been found to have merit, and 3 what percentage do not fall under those two 4 zones? 5 SENATOR NOZZOLIO: Mr. President, 6 if I may attempt to answer some of Senator 7 Waldon's questions: The 30,000 cases I referred 8 to are those in state court. Those are not in 9 federal court, that in terms of federal 10 litigation, I can tell you that the Northern 11 District, after hearing or establishing the fee 12 structure, had a 46 percent decrease in merit 13 less prison or frivolous prisoner litigation. 14 The backlog in the state courts 15 are what we're trying to get to here, Senator, 16 and we're looking at 30,000 cases, in other 17 words, none of which are adjudicated because 18 they are pending. These are pending lawsuits. 19 I don't have statistics for you in terms of 20 those that are -- have been prisoner litigation 21 for X period of time that has been adjudged - 22 adjudicated frivolous. 23 Senator Abate, in her comments, 7769 1 mentioned that most cases are not per se 2 determined frivolous, but I don't have that 3 information. What I do have is the model of the 4 -- the federal system, and I could share with 5 you some of the types of cases that I'm trying 6 to prevent. 7 I'm trying to prevent those types 8 of cases, for instance a -- an inmate in the 9 Mohawk Correctional Facility in this state sued 10 for a million dollars, sued the New York State 11 government taxpayers for $1 million because a 12 guard refused to refrigerate his ice cream 13 cone. Unfortunately, it melted. The prisoner 14 sued you and I and the taxpayers of this state 15 for a million dollars. 16 There are others like the suit 17 against the state because an individual could 18 not perform like Satanic rituals in their jail 19 cells or because the view outside their cell 20 window was not picturesque enough or the inmate 21 who sued the state because prison meals did not 22 include veal or lamb or oysters; that there was, 23 of course, the infamous litigation in the North 7770 1 Country in Senator Stafford's area where a 2 prisoner sued the state claiming they were 3 wrongfully accused of stealing a two-pound block 4 of cheese. Now, that may end up not to be 5 frivolous, but nonetheless it's the type of 6 litigation that we're talking about. 7 Let me just conclude by the 8 prisoner who sued the state of New York because 9 there was razor ribbon on top of the prison 10 fence, and he believed that that razor ribbon 11 which is there to prevent escape, of course, as 12 you well know, that prisoner claimed the razor 13 ribbon was a violation of his civil rights. 14 Those are the types of litigation 15 we're trying to stop with this proposal. 16 SENATOR WALDON: Senator, I can 17 accept the information that you've just shared 18 with myself and our colleagues with the 19 exception of the ice cream. As you know, 20 earlier in the session, Ben and Jerry's played a 21 very important role in the deliberation of this 22 body, so on that one situation alone, I might 23 step back a bit from accepting on its face the 7771 1 information you shared. 2 But to be serious, and I've been 3 frivolous there and facetious, and I hope you 4 will understand that. If I may, I have just one 5 other area I need to cover to help me make my 6 decision. 7 ACTING PRESIDENT HOBLOCK: 8 Senator Nozzolio, you continue to yield? 9 SENATOR NOZZOLIO: Yes, Mr. 10 President. 11 SENATOR WALDON: Let me preface 12 my question to you if I may, Senator Nozzolio, 13 with this statement. As I understand the 14 practices of the court and courts, when you go 15 before the court and you present your case, 16 eventually the judge or the jury, whatever the 17 forum, makes a decision and they say that you 18 win or you lose and there's a resolution 19 according to whether you've won or lost in terms 20 of punishment meted out and/or a settlement of 21 sorts when it is a situation that lends itself 22 to settlement or an actual finding by the court 23 of monetary damages, et cetera, et cetera. 7772 1 The judge is able to determine 2 what happens sometimes directed by the jury, but 3 in this situation, the Commissioner of 4 Correction, if I understand your bill correctly, 5 will have the ability to take away time off the 6 good behavior and to take away visitation rights 7 if he deems that these actions are frivolous, 8 and I want to know is that something that you 9 support on its merits, do you see any immorality 10 in that kind of ability on the part of the 11 commissioner, or do you feel that that's really 12 what the commissioner should be permitted to do? 13 SENATOR NOZZOLIO: Mr. 14 President. 15 ACTING PRESIDENT HOBLOCK: 16 Senator Nozzolio. 17 SENATOR NOZZOLIO: In response to 18 my colleague's question, I -- no, Senator, we 19 are not entrusting with this bill the Department 20 of Corrections as the overseer of those law 21 suits and as the decider of whether or not those 22 prisoners' lawsuits are, in fact, frivolous. 23 We're suggesting and establishing sanctions for 7773 1 prisoners who are determined by the courts to 2 bring frivolous lawsuits, so the determination 3 is made by the court, Senator, as I think you 4 would like it to be, as I would like it to be, 5 and they are the determining -- there the 6 determining factor is the quality of the 7 lawsuit. Then, if a determination is made by 8 the court, it will be up to the commissioner to 9 take sanctions against those who have brought 10 frivolous litigation, the type of sanctions that 11 you mentioned, eliminating or reducing time off 12 for good behavior, also reducing the amount of 13 visitation rights that a prisoner may have. 14 SENATOR WALDON: Last question if 15 I may, Mr. President. 16 ACTING PRESIDENT HOBLOCK: 17 Senator Waldon. Senator Nozzolio, you continue 18 to yield? 19 SENATOR NOZZOLIO: Yes, Senator. 20 SENATOR WALDON: Senator 21 Nozzolio, are you saying that the commissioner 22 can exact this penalty, taking time off for good 23 behavior, et cetera, after one time that the 7774 1 person is determined to have brought a frivolous 2 suit or if it is when the person having been 3 found guilty of bringing a frivolous action 4 decides to do it again and again and again and 5 again? 6 SENATOR NOZZOLIO: Mr. President, 7 in response to my colleague, let me read page 3 8 of the proposed legislation. What we're 9 suggesting by this law, proposed law, is that 10 upon a determination by a court that a complaint 11 or petition filed by a prisoner incarcerated 12 within the state is frivolous, the court reports 13 that finding to the commissioner. Then the 14 commissioner, his representative have this 15 authority by this legislation we are taking 16 today to determine whether sanctions shall be 17 applied, the sanctions we list. They may 18 include but not be limited to limiting 19 visitation privileges or eliminating 20 recreational privileges or other activities, but 21 we're also requiring the commissioner, however, 22 to establish rules and regulations so that there 23 is notice to the citizens of this state, to the 7775 1 Legislature and to those prison inmates, the 2 types of sanctions that could be proposed and 3 enacted if a judicial determination is made that 4 this litigation -- that this prisoner litigation 5 is frivolous. 6 SENATOR WALDON: Thank you very 7 much, Senator Nozzolio. 8 Mr. President, if I may, on the 9 bill. 10 ACTING PRESIDENT HOBLOCK: 11 Senator Waldon, on the bill. 12 SENATOR WALDON: Again, Senator 13 Nozzolio, I appreciate your indulgence. The 14 information you shared with me was enlightening 15 in terms of your intent and what this proposal 16 will accomplish. 17 I am very sensitive to the 18 financial situation of the state of New York and 19 I'm very sensitive to methods and means by which 20 we should move to save money for the state of 21 New York. We are in a crisis, a budgetary 22 crisis and a fiscal crisis. However, I think of 23 some things that we do portend and indicate that 7776 1 we will have a disastrous result down the road. 2 This, in and of itself, will not 3 create the disaster but I think in regard to our 4 prison systems, our prison system, I should say, 5 when you take away the educational opportunity 6 and you compound that by instituting the 7 policies which this proposal will surely result 8 in, when you compound that with taking away the 9 recreation, when you compound that with taking 10 away something that's as silly as the weights 11 that the prisoners use to exercise themselves, 12 when you make the system so punitive, so 13 aggressive, so repressive as it is in places 14 like Tennessee in this state, I think we're 15 creating a problem down the road and we will 16 have Attica revisited. 17 I don't think that's your intent, 18 Senator Nozzolio. I believe sincerely that you 19 think that what you're doing is the right thing, 20 but I believe that we must view these potentials 21 in terms of the legislation we're proposing with 22 a greater vision and a broader scope. I think 23 that we are, with what we do in this chamber, 7777 1 creating a potential for disaster in regard to 2 the prisons and the prisoners and perhaps more 3 importantly, although I'm sure the prisoners 4 won't agree with this, the people who guard 5 them, the correctional officers, and so I can 6 not support this because I think it's another 7 nail in the coffin of future disaster which may 8 occur in our prisons, and I hope it doesn't 9 happen. 10 Billy Wildey, a dear friend of 11 mine, was at Attica with the publisher of the 12 Amsterdam News and taking the pictures of the 13 bodies stacked at Attica, and I think that was 14 awful, and I hope it never happens again, but I 15 think the potential from some of the things we 16 do here is there. 17 So I will not be able to support 18 you this time, Senator Nozzolio, in regard to 19 this legislation. 20 Thank you, Mr. President. 21 ACTING PRESIDENT HOBLOCK: 22 Senator Dollinger. 23 SENATOR DOLLINGER: Mr. 7778 1 President, will the sponsor yield to just one 2 question? 3 ACTING PRESIDENT HOBLOCK: 4 Senator Nozzolio, do you yield? 5 SENATOR NOZZOLIO: Certainly. 6 SENATOR DOLLINGER: Mr. Chairman 7 we have, under the C.P.L.R., a section for 8 frivolous lawsuits under section 8001 of the 9 C.P.L.R. Do you know if that's been used in 10 prisoner litigation and, if so, how extensively 11 the sanctions have been used under that? 12 I would add, through you, Mr. 13 President, I don't know whether that specific 14 section applies to the Court of Claims, but I 15 believe, my recollection is that it does, so I'm 16 just trying to get information. 17 SENATOR NOZZOLIO: Senator, let 18 me repeat your question so I understand it. 19 You're asking if section 8 of the C.P.L.R. - 20 rephrase the question, Senator. 21 SENATOR DOLLINGER: My question 22 is this: The C.P.L.R. now contains a section, I 23 believe it's section 8001, 8002 which allows the 7779 1 courts to impose sanctions on frivolous law 2 suits. My understanding is, and this is where 3 I'm looking for some guidance from Corrections, 4 my understanding is that that section applies to 5 all claims of those brought in the Supreme 6 Court. What I'm not sure of, whether it's ever 7 been brought in the Court of Claims, and my 8 question is, do you know whether it applies to 9 the Court of Claims, number one, and number two, 10 whether the Court of Claims has imposed those 11 sanctions on frivolous prisoner litigation? 12 I'm trying to find out through 13 you, Mr. President, whether there is already a 14 disincentive in our system for the prisoner to 15 file frivolous claims because those claims can 16 be brought or those claims can be determined to 17 be frivolous and sanctions and costs can be 18 imposed on them. 19 SENATOR NOZZOLIO: Mr. President, 20 in response to Senator Dollinger's question, I 21 said I do not know specifically if a sanction 22 currently exists in the C.P.L.R. that has any 23 effect on prisoner litigation. What I certainly 7780 1 can tell you is that whatever that -- if there 2 is a sanction, it certainly is not having any 3 effect on -- relative to the prisoner litigation 4 issue and 30,000 cases now pending, that backlog 5 is significant. It's compared with 16,000 cases 6 pending only six short years ago, Mr. President, 7 so that there has been a dramatic escalation of 8 those lawsuits. 9 I'd have to say, in response to 10 the Senator's question, whatever sanction is 11 there now, it's either not being enforced or is 12 not significant enough. 13 SENATOR DOLLINGER: Thank you, 14 Mr. President. 15 SENATOR LEICHTER: Mr. 16 President. 17 ACTING PRESIDENT HOBLOCK: 18 Senator Leichter. 19 SENATOR LEICHTER: Yes. If 20 Senator Nozzolio would yield, please. 21 ACTING PRESIDENT HOBLOCK: 22 Senator Nozzolio, do you yield? 23 SENATOR NOZZOLIO: Yes, Senator. 7781 1 SENATOR LEICHTER: Senator 2 Nozzolio, did I understand you to say that there 3 are 30,000 cases pending? 4 SENATOR NOZZOLIO: Yes, Senator, 5 I said 30,000 by former Attorney General Oliver 6 Koppell's report last year. The Attorney 7 General's backlog of cases, to be specific, was 8 29,122 lawsuits filed by prison inmates as of 9 April. 10 SENATOR LEICHTER: Senator 11 Nozzolio, if you would be good enough to 12 continue to yield. 13 Senator, isn't it a fact that 14 that figure does not include only active 15 litigation, but does include notices of intent 16 to sue the state? 17 SENATOR NOZZOLIO: In response to 18 Senator Leichter's question, I'm not certain, 19 Mr. President, how to define active litigation. 20 If you're referring to those cases, Senator, if 21 I may, in response to your question, whatever 22 case is brought, the Attorney General is -- by 23 prison inmates, the Attorney General is required 7782 1 to defend and prepare, as you may well know, you 2 have to prepare for a case regardless of its - 3 whether it's in the middle of a trial or if 4 there's a notice of claim. 5 So, Senator, by your question if 6 you're suggesting that there may not be 30,000 7 cases now being tried, it's probably correct, 8 but there are certainly 30,000 cases that must 9 be defended and the preparation time and the 10 effort for that defense must be taken by the 11 nature of them being filed. 12 SENATOR LEICHTER: Senator, if 13 you have would continue to yield. 14 ACTING PRESIDENT HOBLOCK: 15 Senator Nozzolio, do you continue to yield? 16 SENATOR NOZZOLIO: Yes, Mr. 17 President. 18 ACTING PRESIDENT HOBLOCK: 19 Senator Leichter. 20 SENATOR LEICHTER: This has been 21 precisely my point. How many cases have to be 22 defended? The fact of the matter is, Senator, 23 that if it's a notice of intent to sue the 7783 1 state, there, frankly, is actually nothing to 2 defend. 3 How many cases have actually been 4 commenced by the service of a summons and 5 complaint? That's what starts a case, and I 6 agree with you, once a summons and complaint has 7 been filed, then it becomes the obligation of 8 the Attorney General to take some action. 9 Notice of intent to sue is usually just filed to 10 preserve certain rights and so on, does not 11 require any response by the Attorney General. 12 I think the 30,000 figure, 13 Senator, I understand it doesn't come from you 14 and you're just quoting Attorney General 15 Koppell, but I think upon examination, there 16 aren't 30,000 cases. These are not cases. 17 Notice of intent to sue is not a case. Isn't 18 that -- isn't that true? 19 SENATOR NOZZOLIO: Senator, let 20 me respond to that question another way. Again, 21 quoting the former Attorney General who says 22 that 20 percent of his office's budget or about 23 $15 million a year is exclusively required to 7784 1 defend these cases, regardless of what stages 2 they may be in. 3 SENATOR LEICHTER: Senator, I - 4 if you'll please continue to yield. 5 ACTING PRESIDENT HOBLOCK: 6 Senator Nozzolio, you continue to yield? 7 SENATOR NOZZOLIO: Sure. 8 SENATOR LEICHTER: Senator, I 9 accept that as a meaningful figure. I have not 10 seen that particular statement that came from 11 the former Attorney General, but I just want to 12 say that talking of 30,000 cases, and I 13 appreciate the error is not yours, but I think 14 there's been misleading and what I'm trying to 15 find out is really how much of a burden is there 16 on the courts, how much of a burden is there on 17 the Attorney General's offers in defending these 18 cases and, in that connection, Senator, have we 19 received any memorandum from OCA saying the 20 courts of this state are overburdened by inmate 21 litigation? 22 SENATOR NOZZOLIO: Senator. 23 ACTING PRESIDENT HOBLOCK: 7785 1 Senator Nozzolio. 2 SENATOR NOZZOLIO: I'd like this 3 question to be answered this way, and I'll 4 reiterate that it requires at least 20 percent 5 of the Attorney General's effort to defend these 6 matters. If it costs -- and I believe this to 7 be a low estimate -- $15 million a year, if we 8 had 16,000 cases pending six years ago, 29,000 9 pending today, I believe there's certainly a 10 dramatic growth and a substantial sum of money 11 used to defend inmate lawsuits. 12 SENATOR LEICHTER: Senator 13 Nozzolio, if you continue to yield, the figure 14 that you've just given me shows that, in fact, 15 there was no increase in inmate litigation. You 16 say that how many -- how many years ago was 17 there 16,000? 18 SENATOR NOZZOLIO: Yes, Senator. 19 SENATOR LEICHTER: How many? 20 SENATOR NOZZOLIO: Six years ago 21 16,000 cases. 22 SENATOR LEICHTER: And how many 23 inmates did we have this year? 7786 1 SENATOR NOZZOLIO: This year 2 29,000 cases. That's one lawsuit for every two 3 inmates in this state. 4 SENATOR LEICHTER: Senator, how 5 many inmates did we have six years ago and how 6 many inmates do we have now? 7 SENATOR NOZZOLIO: We have now 8 about 64,000 inmates, 62,000 inmates in our 9 system. 10 SENATOR LEICHTER: And how many 11 did we have about six years ago? 12 SENATOR NOZZOLIO: I'm not sure, 13 Senator. 14 SENATOR LEICHTER: Well, I'm 15 taking a guess, Senator, but I would say it was 16 roughly 45,000 something in that figure, so that 17 in part, the increase in the number of cases 18 just reflects the fact that you have so many 19 more inmates, and when I just said that your 20 figures do not show any increase, they do show 21 some of because there's been an increase greater 22 than the number of inmates, but the -- to a 23 significant respect, the increase in the number 7787 1 of cases is due to the fact that we're 2 incarcerating more people, so it isn't as if the 3 inmates who are currently in jail are filing 4 many more lawsuits than they did before. 5 Senator, if you'd be good enough 6 to continue to yield. 7 ACTING PRESIDENT HOBLOCK: 8 Senator Nozzolio, do you continue to yield? 9 SENATOR NOZZOLIO: Yes. 10 ACTING PRESIDENT HOBLOCK: 11 Senator Leichter. 12 SENATOR LEICHTER: Senator, I 13 asked you a question of whether OCA or the chief 14 judge or anybody from the court system had said 15 these cases are a burden upon our courts? 16 SENATOR NOZZOLIO: I have no 17 indication from the OCA saying that they're a 18 burden on the courts. However, I can read, I 19 can see 30,000 in front of my face, Senator, and 20 say that 30,000 ice cream cones melting and 21 razor ribbon wire being a violation of 22 constitutional rights and Satanic rituals can't 23 be held in my cell, I look at those individual 7788 1 cases, Senator, whether they are 16,000 or 2 30,000, as being burdens on the court, look at 3 the 20 percent of the Attorney General's time 4 taken to defend these lawsuits, to me I don't 5 need a number from OCA, Senator, telling us that 6 this is a burden. I do not have for you a memo 7 from OCA on this bill. 8 SENATOR LEICHTER: Mr. President, 9 if Senator Nozzolio would continue to yield. 10 ACTING PRESIDENT HOBLOCK: 11 Senator Nozzolio? 12 SENATOR NOZZOLIO: Yes, Mr. 13 President. 14 SENATOR LEICHTER: You keep on 15 mentioning the figure 30,000, but I thought that 16 your dialogue and mine had established that 17 there are not 30,000 cases. Cases, Senator 18 Nozzolio, are where a summons and complaint has 19 been filed. Many of these, if not most of 20 these, involve notices of intent to sue, where 21 you scribble on them, "I intend to sue." There 22 is no follow-up. No action is required by the 23 courts. No action is required by the Attorney 7789 1 General, and you conceded that the 30,000 2 includes those notices of intent to sue. 3 So we don't have 30,000 cases, 4 and we shouldn't use that figure because I think 5 it is misleading, even if it comes from somebody 6 as distinguished as the former Attorney General, 7 who used to be my roommate, but he makes 8 mistakes, too. 9 But let me ask you this, 10 Senator. You keep on mentioning about the "ice 11 cream" case, and when I first heard you talk 12 about it, I said, "Oh, that's ridiculous, 13 absurd." 14 Now that I take a look here at a 15 memo from the Prisoners Legal Services, it says, 16 and I'm quoting, "Even the 'ice cream' lawsuit, 17 which was filed by the prisoner on his own and 18 that was mentioned in a legislative memorandum, 19 has not been dismissed by the federal court 20 because it raises other substantial issues." 21 Is that your understanding? 22 SENATOR NOZZOLIO: I didn't hear 23 the first part of your question, Senator. Could 7790 1 you repeat it, please? 2 SENATOR LEICHTER: Well, the 3 first part of my question is that the "ice 4 cream" case that you referred to with a great 5 deal of passion and vehemence, understandably, 6 because, as you describe, it sounds like a 7 misuse of the judicial process, but I have a 8 memorandum here from the Prisoners Legal 9 Services of New York which says that the federal 10 court has not dismissed that case because it 11 raises other substantial issues. It is not a 12 frivolous case according to the federal court. 13 Is that your understanding? 14 SENATOR NOZZOLIO: It's not my 15 understanding, Senator, and maybe there's two 16 ice cream cones out there melting that we have 17 litigation over. 18 I think the point, Senator, is 19 one that you need not -- that you need not gloss 20 over, that you made just this moment; that if 21 the courts do not determine these cases to be 22 frivolous, then there will be no sanctions 23 taken; that we're not trying to impede anybody's 7791 1 right to access the courts. We're only saying 2 that let's use some prudence in accessing those 3 courts, and let's put prisoners on a level 4 playing field or on a more level playing field 5 with your constituents and mine who are trying 6 to access the courts with legitimate claims, yet 7 they have to spend much more funds to do so. 8 SENATOR LEICHTER: Senator 9 Nozzolio, if you will continue to yield. 10 You say you are not trying to 11 impede prisoners? Of course you are trying to 12 impede prisoners. 13 And, by the way, I have no 14 problem in doing that if you can establish 15 there's a problem. What I'm concerned about is 16 you talk about 30,000 cases; then we find out 17 there aren't 30,000 cases. You talk about this 18 frivolous "ice cream" case; you find out the 19 federal court said that it raises substantial 20 questions. You talk about the great burden on 21 our court system, and then we find out that OCA 22 has never asked us to do anything about it. 23 Then you say that all you want is 7792 1 a level playing field. Well, let me ask you 2 this. If you or I want to bring an action in 3 the Court of Claims, are we required to post any 4 filing fee? 5 SENATOR NOZZOLIO: Let me refer 6 to Section II of this bill that deals with Court 7 of Claims. "The filing fee would not apply to 8 any claimant filing for the appropriation of 9 real or personal property or interest thereon." 10 So, Senator, in terms of an 11 inmate accessing the Court of Claims for any 12 taking of property or any seizing therefore 13 would not be subjected to this filing fee. It 14 would be also refundable if the inmate provided 15 a motion, if it was, in fact, a successful 16 claimant for some other conclusion of a cause of 17 action that may have not directly enveloped the 18 seizure of real or personal property; so, 19 therefore, I believe if you look at that 20 provision of the bill, see that the inmate is 21 protected and is given those types of provisions 22 in accessing Court of Claims actions, I think 23 that you certainly would feel that your question 7793 1 was answered. 2 SENATOR LEICHTER: Senator, if 3 you would be kind enough to continue to yield 4 because I want to clarify this point. 5 I read that section of the law, 6 and you will agree that in some instances you 7 require a $50 filing fee with the Court of 8 Claims. Now, I am advised -- I don't practice 9 in that court and, therefore -- so I base this 10 just on what I've inquired and received an 11 answer to -- that when you and I bring an action 12 in the Court of Claims that we are not required 13 to file any filing fee for any action in the 14 Court of Claims. Is that the case? 15 SENATOR NOZZOLIO: There is a 16 refund -- if I understand your question, 17 Senator, you are asking under what provisions is 18 there a refund available? 19 SENATOR LEICHTER: No, no, that 20 wasn't my question at all. 21 Senator, let me repeat it. When 22 you or I, not as inmates -- which we're not, 23 although sometimes we feel we're inmates of a 7794 1 different sort of institution. But when 2 somebody who is not an inmate files an action in 3 the Court of Claims, I am advised that there is 4 no filing fee in the Court of Claims for any 5 action by somebody who is not an inmate; and I'm 6 asking you if that is correct? 7 SENATOR NOZZOLIO: It is my 8 understanding, yes, Senator. 9 SENATOR LEICHTER: All right. 10 Senator, you said that you were trying to create 11 a level playing field, but is it a level playing 12 field when you require fees by inmates when no 13 fees are required by persons who are not 14 inmates? 15 SENATOR NOZZOLIO: Senator, when 16 a person accesses the Court of Claims, they are 17 doing what a citizen does outside the prison 18 system. They are doing so because of an 19 appropriation of real or personal property or 20 for any interest thereon. No fee is required 21 for those citizens seeking redress. No fee is 22 required under this bill for those inmates 23 seeking the same type of action in the same 7795 1 court for the same purpose. We're saying that's 2 identical. It's level. It's the same. 3 SENATOR LEICHTER: But, Senator, 4 with all due respect, I believe you're being a 5 little disingenuous because we just established 6 that there are other proceedings in the Court of 7 Claims where a non-inmate will not pay a fee, 8 but under your bill an inmate now will have to 9 pay a fee; and, therefore, my question is, are 10 you creating a level playing field, or are you 11 creating an unlevel playing field by imposing a 12 filing fee on inmates which non-inmates do not 13 have to pay? 14 SENATOR NOZZOLIO: Senator. Mr. 15 President, if I may respond. 16 The characterization of my answer 17 as disingenuous, I think, is an effort to try to 18 hide the matter here, Senator. I am talking 19 about identical fees or lack of identical fees 20 for identical actions. If you go into the Court 21 of Claims and sue for the seizure of real or 22 personal property, you do not pay a fee. If you 23 go into the Court of Claims as a prison inmate 7796 1 and sue for real or personal property or 2 interest thereon, you will not pay a fee. 3 Senator, to characterize that as 4 disingenuous is, I think, frankly, an insult. 5 It is absolutely identical. Now, if a prison 6 inmate is suing the State of New York for 7 redress of another type of a grievance, not the 8 seizure of real or personal property, then a fee 9 is required. 10 Now, to say that that is an 11 unlevel playing field I think is a disingenuous 12 response on your behalf, to use your words. 13 SENATOR LEICHTER: Mr. 14 President. Mr. President. 15 ACTING PRESIDENT HOBLOCK: 16 Senator Leichter. 17 SENATOR LEICHTER: If Senator 18 Nozzolio will continue to yield. 19 ACTING PRESIDENT HOBLOCK: 20 Continue to yield, Senator Nozzolio? 21 SENATOR LEICHTER: Senator 22 Nozzolio, if I was disingenuous I will 23 apologize, but let's see who is disingenuous. 7797 1 What I was trying to establish 2 and I thought you had really made it very clear 3 by your answer which is that there are instances 4 -- instances where non-inmates suing in the 5 Court of Claims such as, let's say, an action 6 against the State of New York for negligence 7 will not have to pay a filing fee, where you are 8 now imposing upon inmates a filing fee. 9 SENATOR NOZZOLIO: Senator, the 10 fee is a $50 refundable fee. When the inmate 11 who sues for negligence or sues for any other 12 action not related to the seizure of property, 13 that fee -- there is a fee, correct? My 14 response is I hope I clarified this point for 15 you and for the debate that there is a fee. 16 That fee is refundable upon successful 17 completion of that action. 18 SENATOR LEICHTER: Senator, but 19 if the action is resolved other than upon a 20 judgment in favor of the inmate, such as the 21 case is settled and so on, then that fee would 22 not be refundable. The point is, Senator, I 23 think you - 7798 1 SENATOR NOZZOLIO: Senator, did 2 you say -- if you will yield, sir? Mr. 3 President. If Senator Leichter will yield. 4 ACTING PRESIDENT HOBLOCK: 5 Senator Leichter, do you yield? 6 SENATOR LEICHTER: Yes. 7 SENATOR NOZZOLIO: Thank you, 8 Senator. Upon a motion, under the CPLR, a 9 successful litigant in the Court of Claims can 10 apply to have that filing fee refunded, Senator, 11 in response to your question. 12 SENATOR LEICHTER: Mr. 13 President. I thank Senator Nozzolio for being 14 as courteous as he always is. I'm sorry if I 15 implied that there was anything disingenuous 16 about his answers. I think what is true to say 17 it took us a long time, I think, to come to what 18 is fairly clear and plain, which is, that you 19 are imposing fees on inmates for certain actions 20 in the Court of Claims where non-inmates do not 21 have to pay the fee; and since you are doing 22 this, there is no sense in trying to talk about, 23 "Well, I'm not imposing this for actions of 7799 1 appropriation of real property or personal 2 property," or there is no reason in talking 3 about refundable, "Well, it's refundable." The 4 fact is you're doing it, and my objection is 5 just to your saying you are creating a level 6 playing field, when in fact what you're doing is 7 the exact opposite, is not to create a level 8 playing field; and the real issue is, is there a 9 reason, is there a justification for saying 10 inmates are going to be more restricted as to 11 the lawsuits they bring? 12 The reason that you give is that 13 there are 30,000 cases. Then we look at it and 14 there aren't 30,000 cases. There are far, far 15 fewer because most of these involve notices of 16 intent to sue. 17 Then, when we look at it further, 18 and I have a statement here from a judge from 19 the Court of Claims who states that in the Court 20 of Claims -- he says there are 1,158 prisoner 21 cases pending as of June 1994. 22 The point is I don't think that 23 the case has been made that the courts are 7800 1 overrun with prisoner litigation to justify 2 saying we're going to limit inmates as to the 3 manner in which they bring you lawsuits. 4 I also point out that this bill 5 sets up, I think, a somewhat cumbersome, 6 administratively difficult procedure in the 7 effort to try to deter inmates from bringing 8 lawsuits, where they have to inquire how much 9 money they have in their account and then they 10 have to get a certified copy; and until they get 11 that certified copy, they can't bring a lawsuit 12 unless they file an affidavit. I submit that 13 this is probably going to end up just creating 14 more work. 15 If there is a real problem, a 16 serious problem, then some action is justified. 17 I don't think we have a serious problem. The 18 courts are pretty well able to defend themselves 19 against frivolous lawsuits. Let me tell you, 20 I'm an attorney and it's not very difficult to 21 defend a frivolous lawsuit. In fact, some years 22 ago, I defended a frivolous lawsuit against a 23 bank by somebody who kept on bringing lawsuits. 7801 1 I went into court and the judge issued an order 2 that this particular person could not start 3 another lawsuit without getting permission of 4 the court. 5 So the courts have a 6 self-interest in protecting themselves. They 7 have a means of doing it. They haven't asked 8 for our help in this particular case, and I 9 really don't see the reason or the justification 10 for this bill and this hue and cry that, my God, 11 we've got to protect ourselves against inmates 12 bringing all sorts of unreasonable lawsuits, and 13 we're talking about lawsuits not notices of 14 intent to sue. 15 I think Senator Waldon made a 16 very excellent point about the importance of not 17 abridging inmates' constitutional rights to such 18 an extent that you are going to create problems, 19 and I think it's particularly important that in 20 a system that by its very nature is closed, as a 21 prison system is, that there be some safety 22 valve, whether it's a Commissioner of 23 Correction, whether it's an ombudsman, whether 7802 1 its recourse to the courts, and that is 2 important. And I think to abridge this absent a 3 clear showing that there is a real problem that 4 we've got to respond to, I don't think is 5 justified. 6 I just finally want to say that 7 another aspect of this bill that troubles me is 8 that if an inmate brings a frivolous suit, then 9 a whole range of administrative punishment can 10 be imposed by the Commissioner. The ones that 11 are listed in the bill are taking away 12 recreation rights. That doesn't upset me that 13 much; but it just points these out as among a 14 whole range, and within that range are also 15 taking away good time, probably solitary 16 confinement, and so on. I think that's -- to my 17 mind is far too draconian and it's far too 18 strict a remedy. I don't think that -- to apply 19 that sort of a sanction and to have that sort of 20 a deterrence in an effort to keep inmates from 21 challenging procedures that they feel are 22 legally or constitutionally wrong, I don't think 23 is something that we ought to do. 7803 1 I don't see a problem. I see a 2 remedy here or a so-called remedy which is very 3 cumbersome and may be very punitive. I think 4 the bill is a mistake. 5 ACTING PRESIDENT HOBLOCK: 6 Senator Paterson. 7 SENATOR PATERSON: Mr. 8 President. If Senator Nozzolio will yield for a 9 moment? 10 ACTING PRESIDENT HOBLOCK: 11 Senator Nozzolio, will you yield? 12 SENATOR NOZZOLIO: Yes, Mr. 13 President. 14 ACTING PRESIDENT HOBLOCK: 15 Senator Paterson. 16 SENATOR PATERSON: Senator 17 Nozzolio, I received in the mail a brief from an 18 inmate who wants to overturn a murder convic 19 tion. It was about 75 pages long, including his 20 letter to me where he was complaining about the 21 brief that his attorney wrote. The brief was 22 about 40 pages, and eventually the attorney told 23 the inmate that she was not going to submit his 7804 1 brief because she didn't think the arguments 2 were meritorious, and this is a dispute, and you 3 get a lot of letters from inmates, and they are 4 long and drawn out, and some of the issues don't 5 really relate to the cases in the fashion that 6 they wish that they would. 7 You have a few inmates generating 8 a lot of cases in the litigious nature of 9 continually challenging the court hoping that 10 they will be successful, and so I understand the 11 spirit of your legislation. But if you would 12 yield for a question, I would certainly ask you 13 if in a sort of a consent decree as there was in 14 the case of Kaslowski versus Coughlin that the 15 separation of powers would be violated by the 16 passing of your bill in the sense that it would 17 allow the Commissioner of the Department of 18 Corrections to impose a penalty on visitation 19 over an issue that does not generate from a 20 violation of a visitation and which would really 21 be very much opposite to what that case holds? 22 ACTING PRESIDENT HOBLOCK: 23 Senator Nozzolio. 7805 1 SENATOR NOZZOLIO: Yes, Mr. 2 President, in response to Senator Paterson's 3 question. 4 Senator, the Commissioner under 5 this bill before us is only empowered to provide 6 sanctions at his discretion -- only if the 7 courts have determined that there is, in fact, a 8 frivolous lawsuit. That determination must be 9 made by the judiciary and not by the Executive; 10 and once that determination is made, the Execu 11 tive must follow rules which are promulgated, 12 that we need to ensure that those rules are not 13 arbitrary and that those rules go through the 14 same rule-making process that any other 15 executive rule must undergo. 16 SENATOR PATERSON: Mr. 17 President. 18 ACTING PRESIDENT HOBLOCK: 19 Senator Paterson. 20 SENATOR PATERSON: I understand 21 what the Senator is trying to accomplish; but, 22 Senator, isn't it true that even though the 23 decision is made by a court, the court is making 7806 1 a decision with respect to frivolous lawsuits? 2 We are now asking the 3 Commissioner to apply it in a way that is 4 detrimental to the inmate's visitation time 5 which does not relate to the lawsuits, and 6 that's why I say that your legislation would 7 probably be overturned based on this particular 8 case. 9 Don't you think it's possible 10 that it would be overturned? 11 SENATOR NOZZOLIO: Mr. President, 12 in response to Senator Paterson's question, I 13 say, Senator, that the inmate who presents a 14 frivolous lawsuit just as the citizen of your 15 district or my district who brings the same 16 frivolous lawsuit would be charged with 17 sanctions. The court, in a case of our 18 constituent, would be charging the citizen with 19 economic sanctions. 20 What we're saying is that the 21 Commissioner of Corrections would have the right 22 and authority under this law to provide 23 sanctions after the Court determined that 7807 1 sanctions were, in fact, in order. Those 2 sanctions would be limited to the discretion of 3 the Commissioner only in the areas of limitation 4 of visiting privileges, limitation of 5 recreational or other activities. We specify in 6 the statute exactly what those sanctions could 7 be if imposed upon an inmate who brings a 8 frivolous lawsuit. 9 SENATOR PATERSON: Thank you, Mr. 10 President. 11 Senator, what I would suggest is 12 that I don't think that it will be possible to 13 accomplish what you are seeking, but what I 14 would think would be possible is that the exact 15 same economic sanctions that you describe which 16 are in a sense imposed on citizens be imposed on 17 the inmates and that way you would be able to 18 achieve exactly the purpose that you're trying 19 to achieve without having to overreach the 20 standard and subject this legislation to 21 overturn on a constitutional basis. 22 Otherwise, on the bill, what I 23 would say is the Attorney General reported 7808 1 29,122 cases, but as Senator Leichter adroitly 2 pointed out there were a number of these cases 3 where there was a notice of an intent to sue but 4 actually no lawsuit. Now, you can't defend 5 against a lawsuit if you don't know what it is. 6 Just a fact that there was a notice does not 7 impose on the Attorney General's office any 8 greater duty than existed previously, other than 9 the fact that you know a lawsuit is coming. 10 What seems to be the case is that 11 there is a significantly less number of cases 12 than it might first appear. The doubling and 13 tripling of cases over the last ten or fifteen 14 years I think is attributable to the increase in 15 the number of inmates and, therefore, an 16 increase in the number of cases. I don't even 17 know that the increases on a per capita basis 18 would correspond to the corollary increase in 19 the number of prisoners. 20 But what we do notice -- what 21 Prisoners Legal Services submitted to us is 22 their consulting with a Court of Claims Judge by 23 the name of Donald Corbett, who said that in 7809 1 June of 1994 that he could account for 1158 2 Court of Claims cases which is about 15,000 less 3 than the Attorney General reported. 4 Now, I understand that the 5 sponsor was using the Attorney General's figures 6 to put this legislation together, so there is 7 certainly no disingenuous behavior on the part 8 of the sponsor. He's just relying on those 9 figures, but the Attorney General's figures are 10 incorrect in the sense that the number of 11 notices are really what create the high number 12 that there appears to be. 13 Also, there were only 78 cases in 14 the Court of Claims that had existed for over 15 two years, so that would demonstrate that the 16 Court of Claims is dealing with these cases in a 17 seasonable time period. So I think that the 18 legislation would be really better placed at a 19 point that we can establish that there really is 20 a tremendous increase in the number of cases 21 filed by prisoners and also where you have 22 inmates filing frivolous cases. 23 I think there are a few 7810 1 individuals -- few in number, but they generate 2 a lot of cases; and I think, as Senator Leichter 3 said earlier, that the courts can handle these 4 cases by imposing the kind of admonition to the 5 inmate that Senator Leichter was talking about 6 earlier, where the inmate now would have to go 7 through court before even getting the permission 8 to sue. 9 There have been some obvious 10 cases and there are always a few cases, where 11 the charge that is being made or the contention 12 that is being offered is so ridiculous that it 13 really is an offense to all of us that the 14 individual would bring such a case; but even in 15 the rather spirited case of the melted ice 16 cream, there were some other issues that were 17 raised in that case that the court felt had some 18 merit. 19 The stronger issue is the one in 20 which we want to preserve our constitutionality 21 and we want to give individuals, even when they 22 are incarcerated in our state institutions, some 23 redress if they think that they are being 7811 1 treated in some dehumanizing way. We do not 2 want to encourage the filing of false cases. We 3 don't want to, in any way, facilitate it, but we 4 do want to maintain that precious value that we 5 have in this country where our court system is 6 open and our court system is free. 7 We're not going to give special 8 privileges to individuals who have violated the 9 laws of society and rightly deserve to be where 10 they are, but in situations where they have run 11 out of administrative relief from the Department 12 of Corrections, unless we can demonstrate that 13 there is a true flooding of the system, I would 14 recommend that we do not have the level of cases 15 being filed that seems to be represented in the 16 Attorney General's report. 17 ACTING PRESIDENT HOBLOCK: 18 Secretary will read the last section. 19 THE SECRETARY: Section 5. This 20 act shall take effect on the 120th day. 21 ACTING PRESIDENT HOBLOCK: Call 22 the roll. 23 (The Secretary called the roll.) 7812 1 SENATOR LEICHTER: May I have my 2 name called, please? 3 ACTING PRESIDENT HOBLOCK: Sorry, 4 Senator Leichter? 5 SENATOR LEICHTER: May I have my 6 name called, please? 7 ACTING PRESIDENT HOBLOCK: 8 Senator Leichter, do you want to explain your 9 vote? 10 SENATOR LEICHTER: Yes, please. 11 ACTING PRESIDENT HOBLOCK: 12 Please. 13 SENATOR LEICHTER: Mr. President, 14 my colleagues, one of the really proudest 15 moments, the most wondrous moments in the 16 constitutional history of the United States was 17 when an inmate by the name of Gideon scribbled 18 on a note to the U.S. Supreme Court a claim that 19 he had been falsely convicted because he was not 20 represented by a lawyer, and the Supreme Court 21 clerk -- with all of the momentous cases that 22 came before the Supreme Court, the clerk passed 23 that note on to the justices of the Supreme 7813 1 Court and the justices of the Supreme Court felt 2 that this was a case worthy for them to 3 consider, and out of that note came the 4 significant decision that everyone is entitled 5 to be represented by attorneys in cases where 6 they can end up in jail. 7 Now, if you pass bills of this 8 sort, you are limiting that very basic right. 9 Senator Nozzolio is correct, there's going to be 10 inmates that take advantage of this, but again 11 we've got to think of the overall framework for 12 maintaining basic liberties, and one of the 13 greatest liberties that exists in this country 14 that even inmates have is access to the court. 15 It's a wonderful, wonderful tradition that this 16 country has; and unless a clear showing has been 17 made, which I don't think it has been in this 18 case, we should not abridge it. 19 Mr. President, I vote in the 20 negative. 21 ACTING PRESIDENT HOBLOCK: 22 Senator Nozzolio to explain his vote. 23 SENATOR NOZZOLIO: Thank you, Mr. 7814 1 President. 2 Mr. President, my colleagues, by 3 making prisoners exhaust their administrative 4 remedies, pay a partial filing fee from their 5 commissary account and be liable for sanctions, 6 this bill places inmates on a more level playing 7 field for those private actions taken in the 8 courts of our state. Private parties are 9 subjected to these requirements. We're simply 10 on a broader scale asking the inmates of this 11 state to pay, as well. 12 Thank you very much, Mr. 13 President and my colleagues, for the debate on 14 this issue, and I move its passage. 15 ACTING PRESIDENT HOBLOCK: 16 Secretary will announced the results. 17 THE SECRETARY: Those recorded in 18 the negative on Calendar 1101 are Senators 19 Abate, Connor, Espada, Gold, Leichter, 20 Montgomery, Paterson, Smith, Solomon and 21 Waldon. Ayes 48, nays 10. 22 ACTING PRESIDENT HOBLOCK: The 23 bill is passed. 7815 1 ACTING PRESIDENT HOBLOCK: 2 Senator DiCarlo. 3 SENATOR DiCARLO: Mr. President. 4 On behalf of the sponsor, can we lay aside for 5 the day Calendars 1097 and 1107? 6 ACTING PRESIDENT HOBLOCK: 1097 7 and 1107 are laid aside for the day. 8 Senator DiCarlo. 9 SENATOR DiCARLO: May we also now 10 take up Calendar 494? 11 ACTING PRESIDENT HOBLOCK: 12 Senator Stavisky. 13 SENATOR STAVISKY: Mr. 14 President. I believe that 1114 was previously 15 considered and, if so, I should like to be 16 recorded, without objection, in the negative. 17 ACTING PRESIDENT HOBLOCK: 18 Without objection, Senator Stavisky recorded in 19 the negative. 20 Secretary will read. 21 THE SECRETARY: Calendar Number 22 494, by Senator Cook, Senate Print 3155A, an act 23 to amend the General City Law, the Town Law and 7816 1 the Village Law, in relation to cluster 2 development. 3 ACTING PRESIDENT HOBLOCK: 4 Secretary will read the last section. 5 THE SECRETARY: Section 4. This 6 act shall take effect immediately. 7 ACTING PRESIDENT HOBLOCK: Call 8 the roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 58. 11 ACTING PRESIDENT HOBLOCK: The 12 bill is passed. 13 Senator DiCarlo. 14 ACTING PRESIDENT HOBLOCK: 15 Senator DiCarlo. 16 SENATOR DiCARLO: Mr. President. 17 Is there any housekeeping at the desk? 18 ACTING PRESIDENT HOBLOCK: Yes. 19 Senator Sears. 20 SENATOR SEARS: Yes, Mr. 21 President. On page 43, Calendar Number 471, 22 Senate Print Number 3545, would you remove the 23 star? 7817 1 ACTING PRESIDENT HOBLOCK: The 2 star is removed. 3 Senator Marcellino. 4 SENATOR MARCELLINO: Yes, Mr. 5 President. On behalf of Senator Marchi, on page 6 number 19, I offer the following amendments to 7 Calendar Number 675, Senate Print Number 593. 8 ACTING PRESIDENT HOBLOCK: 9 Amendments are received. 10 SENATOR MARCELLINO: Ask that 11 this bill retain its place on the Third Reading 12 Calendar. 13 ACTING PRESIDENT HOBLOCK: 14 Senator Marcellino. 15 SENATOR MARCELLINO: Mr. 16 President, on page number 29, I offer the 17 following amendments, on behalf of Senator Levy, 18 to Calendar Number 875, Senate Print Number 19 4985, and ask that the bill retain its place on 20 the Third Reading Calendar. 21 ACTING PRESIDENT HOBLOCK: 22 Amendments are accepted. 23 SENATOR MARCELLINO: Mr. 7818 1 President, on behalf of Senator Saland, on page 2 number 46, I offer the following amendments to 3 Calendar Number 945, Senate Number 2599, and ask 4 that said bill retain its place on the Third 5 Reading Calendar. 6 ACTING PRESIDENT HOBLOCK: 7 Amendments are accepted. 8 SENATOR MARCELLINO: And, Mr. 9 President, on behalf of Senator Larkin, on page 10 number 41, I offer the following amendments to 11 Calendar Number 215, Senate Print 2090A, and ask 12 that said bill retain its third reading order on 13 the calendar. 14 ACTING PRESIDENT HOBLOCK: 15 Amendments are received. 16 Senator DiCarlo. 17 SENATOR DiCARLO: Mr. President, 18 there will be a meeting of the Rules Committee 19 tomorrow morning at 9:30 in Room 332. 20 There being no further business, 21 I move we adjourn until tomorrow, Tuesday, at 22 10:00 a.m. 23 ACTING PRESIDENT HOBLOCK: There 7819 1 will be a meeting of the Rules Committee 2 tomorrow, Tuesday, at 9:30 a.m. Session at 3 10:00 a.m. sharp. 4 Stand adjourned. 5 (Whereupon, at 5:38 p.m., the 6 Senate adjourned.) 7 8 9 10 11 12 13 14