Tuesday, June 13, 1995

9142 1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 June 13, 1995 11 10:01 a.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR JOHN R. KUHL, JR., Acting President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 9143 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: The 3 Senate will come to order, members please find 4 their places, staff their places. Ask everybody 5 in the chamber to rise and join me in saying the 6 Pledge of Allegiance. 7 (The assemblage repeated the 8 Pledge of Allegiance to the Flag. ) 9 In the absence of clergy, may we 10 bow our heads in a moment of silence. 11 (A moment of silence was 12 observed. ) 13 Reading of the Journal. 14 THE SECRETARY: In Senate, 15 Monday, June 12th. The Senate met pursuant to 16 adjournment, Senator Kuhl in the Chair upon 17 designation of the Temporary President. The 18 Journal of Sunday, June 11th, was read and 19 approved. On motion, Senate adjourned. 20 ACTING PRESIDENT KUHL: Hearing 21 no objection, the Journal stands approved as 22 read. 23 Presentation of petitions. 9144 1 Messages from the Assembly. 2 Messages from the Governor. 3 Reports of standing committees. 4 Reports of select committees. 5 Communications and reports from 6 state officers. 7 Motions and resolutions. Senator 8 Libous. 9 SENATOR LIBOUS: Thank you, Mr. 10 President. 11 On behalf of Senator Spano, I 12 wish to call up his bill, Print Number 1701, 13 recalled from the Assembly which is now at the 14 desk. 15 ACTING PRESIDENT KUHL: Secretary 16 will read the title. 17 THE SECRETARY: Calendar Number 18 1151, by Senator Spano, Senate Print 1701, an 19 act to amend Chapter 78 of the Laws of 1989. 20 ACTING PRESIDENT KUHL: Senator 21 Libous. 22 SENATOR LIBOUS: Thank you, Mr. 23 President. 9145 1 I now move to reconsider the vote 2 by which this bill was passed. 3 ACTING PRESIDENT KUHL: The 4 motion is to reconsider the vote by which the 5 bill passed the house. Secretary will call the 6 roll on reconsideration. 7 (The Secretary called the roll on 8 reconsideration. ) 9 THE SECRETARY: Ayes 32. 10 ACTING PRESIDENT KUHL: Senator 11 Libous. 12 SENATOR LIBOUS: Mr. President, I 13 now offer up the following amendments. 14 ACTING PRESIDENT KUHL: 15 Amendments are received and adopted. 16 Senator Libous. 17 SENATOR LIBOUS: Thank you, Mr. 18 President. 19 On behalf of Senator Sears, on 20 page 49, I offer the following amendments to 21 Calendar Number 1238, Senate Print Number 4903A, 22 and ask that said bill retain its place on the 23 Third Reading Calendar. 9146 1 ACTING PRESIDENT KUHL: 2 Amendments to Calendar Number 1238 are received 3 and adopted; the bill will retain its place on 4 the Third Reading Calendar. 5 Senator Libous. 6 SENATOR LIBOUS: On behalf of 7 Senator Cook, on page 40, I offer the following 8 amendments to Calendar Number 1283, Senate Print 9 4864, and ask that said bill retain its place on 10 the Third Reading Calendar. 11 ACTING PRESIDENT KUHL: The 12 amendments to Calendar Number 1283 are received 13 and adopted. Bill will retain its place on the 14 Third Reading Calendar. 15 Senator Libous. 16 SENATOR LIBOUS: And, Mr. 17 President, on behalf of myself, on page 35, I 18 offer the following amendments to Calendar 19 Number 1233, Senate Print Number 3856, and ask 20 that said bill retain its place on the Third 21 Reading Calendar. 22 ACTING PRESIDENT KUHL: 23 Amendments are received and adopted, bill will 9147 1 retain its place on the Third Reading Calendar. 2 Senator Dollinger, why do you 3 rise? 4 SENATOR DOLLINGER: Mr. 5 President, there's a motion to alter the rules 6 which I gave notice to the Journal Clerk 7 yesterday that I believe is appropriate at this 8 time. I'd like to - 9 ACTING PRESIDENT KUHL: Senator 10 Dollinger, you're incorrect. The motions to 11 discharge are held after the calendar in the 12 normal process of business, so after we're 13 through with the process of the day we will then 14 be ready for motions to discharge. 15 SENATOR DOLLINGER: Mr. 16 President, with all due respect, this is a 17 motion filed pursuant to Rule XI which deals 18 with altering the rules. It is not a motion to 19 discharge. It is a motion to alter the rules 20 because the rules currently prohibit a motion to 21 discharge at this time in the Senate. 22 ACTING PRESIDENT KUHL: Senator 23 Dollinger. 9148 1 SENATOR DOLLINGER: Therefore - 2 ACTING PRESIDENT KUHL: Senator 3 Dollinger, you are out of order at this point. 4 You have not raised any issue at this point. 5 You asked a moment -- just a sense of inquiry. I 6 gave you my interpretation of the rules at that 7 point. There has been no ruling, official 8 ruling, so you are out of order. 9 SENATOR DOLLINGER: Mr. 10 President. 11 ACTING PRESIDENT KUHL: We do 12 have some other -- we're doing motions and 13 resolutions. We do have some other things at 14 the desk to do. Now, if you want to raise a 15 point of order, you want to issue the point of 16 order, I'll make a ruling on the point of order, 17 and then you can challenge that if you'd like to 18 do that, but essentially you are out of order at 19 this moment. 20 SENATOR DOLLINGER: I -- I 21 appreciate that, Mr. President. 22 SENATOR PATERSON: Mr. President. 23 SENATOR DOLLINGER: I raise a 9149 1 point of order. 2 ACTING PRESIDENT KUHL: Senator 3 Paterson, why do you rise? 4 SENATOR PATERSON: Mr. President, 5 I'm rising on a point of order to ask for a 6 ruling of the Chair so that we can have 7 clarification on this particular issue. 8 What I first would like is an 9 explanation from you. The motion that Senator 10 Dollinger is making, as I would understand it, 11 is not a motion to discharge. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson, can I interrupt you for just a 14 moment? 15 SENATOR PATERSON: Sure. 16 ACTING PRESIDENT KUHL: I think I 17 can shortcut this whole process by a long period 18 of time. If we can take up the substitutions 19 and complete the housekeeping and then, if you 20 would like to take up Senator Dollinger's 21 motion, we'll do it that way. Is that 22 acceptable to you? 23 SENATOR DOLLINGER: That's fine. 9150 1 SENATOR PATERSON: That's fine. 2 ACTING PRESIDENT KUHL: O.K., 3 fine. There are some substitutions at the desk, 4 Senator Bruno. I'll ask the Secretary to read 5 if that's O.K. with you. 6 SENATOR BRUNO: Fine. 7 ACTING PRESIDENT KUHL: Secretary 8 will read. 9 THE SECRETARY: On page 5, 10 Senator Rath moves to discharge from the 11 Committee on Rules Assembly Bill Number 7755 and 12 substitute it for the identical Calendar Number 13 160. 14 On page 39, Senator Libous moves 15 to discharge from the Committee on Mental Health 16 and Developmental Disabilities Assembly Bill 17 Number 2788 and substitute it for the identical 18 Calendar Number 1282. 19 On page 40, Senator Levy moves to 20 discharge from the Committee on Investigations 21 Assembly Bill Number 5975 and substitute it for 22 the identical Calendar Number 1284. 23 On page 41, Senator Gonzalez 9151 1 moves to discharge from the Committee on Rules 2 Assembly Bill Number 3411 and substitute it for 3 the identical Calendar Number 1291. 4 ACTING PRESIDENT KUHL: 5 Substitutions are ordered. 6 The Chair would recognize Senator 7 Dollinger for presentation of his motion to 8 discharge -- excuse me, motion to alter the 9 rules. 10 SENATOR DOLLINGER: That's 11 correct, Mr. President. 12 ACTING PRESIDENT KUHL: Relating 13 to the date of discharge. 14 SENATOR DOLLINGER: That's 15 correct, Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 Dollinger. 18 SENATOR DOLLINGER: This is a 19 motion to alter the rules to allow a motion to 20 discharge the ban on assault weapons which 21 passed the state Assembly. 22 Mr. President, I think that the 23 rationale for this motion ought to be obvious to 9152 1 most of the members of this chamber. This is an 2 opportunity for this body, the state Senate, to 3 be heard on an issue that is of vital importance 4 to the people of our state. It's simply to be 5 heard on the issue of assault -- banning assault 6 weapons, restricting access to high numbers - 7 SENATOR VELELLA: Mr. President, 8 a point of order. 9 ACTING PRESIDENT KUHL: Senator 10 Velella, why do you rise? 11 SENATOR VELELLA: A point of 12 order. Are we on a procedural motion, or are we 13 discussing a substantive issue? If the Senator 14 is raising a procedural issue, I think we ought 15 to stick to discussing the procedures that the 16 members will have to vote upon and not getting 17 to a substantive discussion of a particular 18 issue. 19 I'd like a ruling from the Chair 20 as to whether or not discussing particular 21 issues is in order or whether or not the Senator 22 should keep his remarked confined to the 23 procedural motion that he's making. 9153 1 ACTING PRESIDENT KUHL: Senator 2 Velella, you are correct in that the motion 3 before the house being made by Senator Dollinger 4 is a motion to amend the rules. It's being done 5 for a specific purpose, and debate should 6 contain itself around that motion. You are 7 correct, and I hope that the other members of 8 the chamber, Majority and Minority, will keep 9 that in mind as we discuss the bill. Senator 10 Dollinger, the floor is yours. 11 SENATOR DOLLINGER: Mr. President, 12 I - 13 ACTING PRESIDENT KUHL: The floor 14 is yours. 15 SENATOR DOLLINGER: Right. I 16 appreciate that direction. I think that's 17 appropriate. 18 In order to convince my 19 colleagues that we ought to alter the rules, we 20 have to at least a take peek at what altering 21 the rules would get this chamber and get the 22 people of the state of New York; so in order to 23 be able to make an argument that we ought to 9154 1 change our procedures, I believe that we have to 2 provide a justification for changing those, and 3 we can't do that unless we look around the 4 corner to see what the ban on assault weapons 5 would do. 6 It's already passed the 7 Assembly. It can become law within the next 8 five or six days if it passes this chamber today 9 because the Governor of this state has indicated 10 he supports a ban on assault weapons. He's also 11 indicated that the state Assembly supports it; 12 the Attorney General supports it. There's 13 almost unanimous support for it in this state. 14 What does this ban do? What would 15 this ban do? This ban would restrict access to 16 clips on weapons that could rapid fire weapons. 17 SENATOR BRUNO: Mr. President. 18 ACTING PRESIDENT KUHL: Senator 19 Bruno, why do you rise? 20 SENATOR BRUNO: Forgive the 21 interruption, but are we on a procedural motion? 22 Is that what is before us? 23 ACTING PRESIDENT KUHL: Yes. 9155 1 SENATOR BRUNO: And are we now 2 discussing the merits of some specific piece of 3 legislation and, if so, isn't that out of order? 4 SENATOR DOLLINGER: Mr. 5 President. 6 SENATOR BRUNO: If the discussion 7 centers around changing the procedures let's 8 talk about the justification of changing the 9 procedures, and, if that holds, then we will 10 discuss the specific issue. 11 SENATOR DOLLINGER: Mr. 12 President, with all due respect to the Majority 13 Leader, it seems to me the issue is what is the 14 argument in favor of altering the rules under 15 Rule XI. Why should we do this? Why should we 16 change our procedures, The rules of this 17 Senate, why should we alter them under Rule XI? 18 I believe, Mr. President, I'm 19 entitled to argue that there's a substantive 20 basis for doing that and that there's an 21 imperative for doing that and that is the 22 opportunity before the end of this session to 23 accomplish something we have never accomplished 9156 1 before in this state, and that's restricting 2 access to violent weapons, Mr. President. 3 I believe that there is a nexus 4 between arguing for a ban on assault weapons and 5 at least these style clips that are banned under 6 this bill - 7 SENATOR SKELOS: Mr. President. 8 SENATOR DOLLINGER: -- and 9 convincing my colleagues that we ought to alter 10 our rules in order to be able to discuss this. 11 ACTING PRESIDENT KUHL: Senator 12 Dollinger, excuse me just a moment. Senator 13 Skelos, why do you rise? 14 SENATOR SKELOS: Mr. President, I 15 think a point of order has been raised as to 16 whether this is a procedural motion or a 17 discussion on the merits of a bill that is not 18 before the house, and that Senator Dollinger 19 neglected to make the motion in a timely fashion 20 and now he's looking to disrupt and change all 21 the rules of the Senate which have been adopted 22 by this body just to suit his political needs at 23 this time. 9157 1 Now, we are trying to run an 2 orderly house. We are trying to close session 3 this Thursday. If Senator Dollinger had been 4 diligent and made his motion in a timely fashion 5 rather than trying to grandstand politically at 6 the close of session, the motion would have been 7 heard in a timely fashion and decided. 8 So at this time, I would ask that 9 he be ruled out of order if he continues to talk 10 on the merits of a bill that he neglected to 11 make a motion on or just continue to speak on 12 the procedural motion of whether the rules 13 should be amended. 14 ACTING PRESIDENT KUHL: Senator 15 Paterson, I assume you'd like to be heard on the 16 point of order? 17 SENATOR PATERSON: Me, yeah. Mr. 18 President -- Mr. President, a point of order. 19 It's my understanding that Senator Dollinger 20 filed his motion last Friday and gave the 21 requisite one-day notice that the Senate rules 22 provide for the -- to move to change the Senate 23 rules. Is that not correct? 9158 1 SENATOR BRUNO: Not the 2 information we have. That is not the 3 information that we have, Mr. President. The 4 information that I have is that this request was 5 filed after the closure date, and you had all 6 session to file, and why would we be waiting 7 until this moment as we are trying to close 8 down? 9 My counsels tell me that this is 10 on the floor after the date that we had 11 established and everyone else here knew the 12 dated, related to the date and has abided by the 13 date. 14 SENATOR PATERSON: Mr. President. 15 ACTING PRESIDENT KUHL: Senator 16 Paterson, would you like to be heard on Senator 17 Skelos' - 18 SENATOR PATERSON: Mr. President, 19 I would like -- I -- what we're doing is that 20 we're looking at this whole issue with a sort of 21 anachronism guiding the whole principle. This 22 is the way we agreed upon the process earlier in 23 the session. The budget process would end on 9159 1 April 1st. Then on April 11th, the second 2 Tuesday in April, that was the deadline for the 3 file of motions; but what happened, and I think 4 that this body has to be sensitive to what 5 actually occurred, is that the second Tuesday in 6 April passed while we were still in budget 7 negotiations. So here we passed the budget on 8 June the 8th, and once the budget was passed, 9 Senator Dollinger immediately puts in his motion 10 on June the 9th, which is one day, far short of 11 what would normally be 11 days, and what I'm 12 saying is, he filed it Friday. He gave notice 13 on the floor. I was here. I heard him. It's 14 in the Senate record. He gave notice on 15 yesterday, and so even with our desire to close 16 on Thursday -- and this is in no way attempting 17 to thwart the effort of the Majority Leader, who 18 has made it very plain -- and we hear him - 19 that he wants to close business on Thursday, but 20 the fact remains that this session has in many 21 ways been altered by the late budget and, though 22 we may have had a late budget, I know, Mr. 23 President, that we would not want the residents 9160 1 of the state of New York to feel that we did not 2 conduct business in a proper way and that we did 3 not address issues that some members might feel 4 are critical; and so, without any discussion on 5 what the issue is, here's an attempt by a member 6 who feels that an issue has raised itself to a 7 threshold that it needs immediate government 8 action, who wants to change the rules under Rule 9 XI such that we might now take up his motion to 10 discharge this bill from committee. I don't 11 know whether or not you would agree with that, 12 but I don't think it is right to say that that 13 kind of a motion is out of order. 14 SENATOR GOLD: Mr. President. 15 ACTING PRESIDENT KUHL: Senator 16 Gold, do you want to be heard on the motion to 17 discharge, the point of order? 18 SENATOR GOLD: Yes, I do. 19 I won't repeat what's been said 20 by Senator Paterson, because I think he's 21 accurate, but I want to make a point. 22 We understand what's happening 23 here, and the Majority will leave today saying 9161 1 that we had a procedural motion, and people who 2 are thinking people will understand that, if you 3 really want gun control in this state, you have 4 to support this. 5 But Senator Skelos, I'm upset for 6 two reasons: Number one, I can understand that 7 you've got political baggage to carry and that I 8 respect. I don't respect the fact that there's 9 a game that goes on here and, if Senator 10 Dollinger has the guts to bring to the fore 11 certain issues, that's no excuse for freshness 12 and some of the remarks that are made on this 13 floor to Senator Dollinger, nobody would have 14 the nerve to say to anybody else, and I think we 15 ought to cut it out. 16 Senator Dollinger doesn't need 17 political games. He is very well respected in 18 his district, and he earned that, so the snide 19 remarks that are made are, in my opinion, very 20 much out of order. 21 Now, as far as the orderly issue, 22 Senator Bruno, I am thrilled that we start on 23 time, and you know that. You and I have 9162 1 discussed that for years, and it's very 2 important. 3 SENATOR DeFRANCISCO: Mr. 4 President. 5 ACTING PRESIDENT KUHL: Senator 6 DeFrancisco, why - 7 SENATOR GOLD: I won't yield 8 right now, sir. 9 ACTING PRESIDENT KUHL: Well, are 10 you - 11 SENATOR GOLD: Now, there are 12 certain things - 13 ACTING PRESIDENT KUHL: Senator 14 Gold, excuse me just a minute. Are you asking 15 Senator Gold to yield, Senator? 16 SENATOR DeFRANCISCO: Yes, I am; 17 I requested Senator Gold to yield. 18 SENATOR GOLD: And I said I would 19 yield in a minute. 20 ACTING PRESIDENT KUHL: And 21 Senator refuses. O.K. Senator Gold. 22 SENATOR GOLD: What's more 23 important here is that we do have rules, Senator 9163 1 Bruno, and we do have order, and I'm all for 2 that but when you, Senator Bruno, take it upon 3 yourself to have the Rules Committee take over 4 this place and knock out the committees, because 5 we have to end, well, you do it, people don't 6 scream. You look at the rules and theoretically 7 we have committees and they can work all year 8 long, and the Constitution, Senator Bruno, says 9 that every member on your side and on my side 10 are entitled to three days to consider bills. 11 They're got to be here printed and on our desks 12 for three days, but emergencies come up and 13 things happen. Things happen, and so the 14 Constitution says we can change those three 15 days. 16 Well, as Senator Paterson very, 17 very well pointed out, things happen. The 18 budget was late this year. Maybe, if we had 19 elected a Republican governor, it would have 20 come in on time, that's what they promised us, 21 but the budget was late, and so we're now trying 22 to bring it down; but there are things that we 23 must deal with, and I -- and I don't understand 9164 1 your side of the aisle, Senator Bruno. 2 If you do not believe in this 3 bill that we are trying to waive the rules to 4 consider, I would imagine you're proud of that, 5 that you believe the NRA, and you believe all 6 the people who think that you can not go hunting 7 without major assault weapons, and you can't 8 bring up a child in a healthy atmosphere unless 9 the kid learns how to use an AK-47. Be proud of 10 it and say, My gosh, they called it a procedural 11 motion, but I would have voted against it any 12 way. Don't hide behind it. 13 I mean, Senator Dollinger has my 14 respect. Why? Because he looks you in the eye 15 and tells you what he believes. He's not 16 ashamed to look at the NRA or anybody else and 17 say, We need this bill in New York and that's 18 why I'm going to make the motion, and I think, 19 Senator Bruno, in closing, there's an issue 20 here. 21 Is an orderly house worth people 22 dying for? You know, I think it's amazing all 23 the time. We have put in money and programs and 9165 1 I saw the New York Times, read about one program 2 I put in, 15,000 to help kids to wear helmets 3 and not hurt themselves on bicycles and the 4 program has -- has worked three-fold, and they 5 -- they may question it. Of course, if you had 6 a kid that was in a well and the television was 7 there, we can spend millions to get 'em out 8 because we got a media event. 9 Well, we better get our 10 priorities in order, all right? I understand the 11 rules, Senator Bruno, and I respect your respect 12 for the rules, but if passing this bill saves 13 lives, to heck with the rules. We can change 14 them for one event and, if we're going to change 15 them for any one event, Senator Dollinger has 16 picked the right one. 17 And in closing, Mr. President, I 18 would remind you of something you know very, 19 very well and have respected. Speech in this 20 house has never been an issue of relevance. If 21 I'm speaking on a motion or if I'm speaking on a 22 bill and I can convince somebody to go with me 23 by using an analogy, by reading a fairy tale, by 9166 1 referring to the minutes or referring to the 2 bill or a different bill, I'm allowed to do 3 that. That's my method of argumentation and if 4 you were to rule that Senator Dollinger is out 5 of order because of his speech -- remember, 6 that's what we're talking about here -- you keep 7 saying, Well, is this your motion; is your 8 motion this, or is your motion that. 9 It is clear that his motion is to 10 suspend the rules or change the rules but, if 11 you rule against his speech, Senator Kuhl, which 12 I know you won't do, it will be the first time 13 in the history of this chamber, the 14 distinguished history of this chamber, that any 15 presiding officer has tried to limit the right 16 of speech of a member. 17 ACTING PRESIDENT KUHL: Senator 18 DeFrancisco, you want to rise on the - 19 SENATOR DeFRANCISCO: Will 20 Senator yield now? 21 SENATOR GOLD: Yes. 22 SENATOR DeFRANCISCO: Senator, 23 this is a little out of context because I rose 9167 1 at the time the statement was made, but since 2 you were so offended by the comment by Senator 3 Skelos that characterized it as being snide, to 4 the effect that Senator Skelos called Senator 5 Dollinger's actions today political grandstand 6 ing, I wonder, could you tell me how you'd 7 distinguish that snide remark, as characterized 8 by you, by the remark you made to Senator Skelos 9 of the political baggage that you know he has to 10 carry on this issue? Is there some distinction 11 that I'm missing? 12 SENATOR GOLD: Yes. I -- my - 13 my children, Senator, refer to it as AAOTP, 14 alive and on the planet. If you're alive and on 15 the planet, you know when somebody is being 16 snide. You know when somebody is being crass to 17 somebody else. You know when somebody has a job 18 to do. 19 I respect very much the fact that 20 Senator Skelos has risen to the position he's 21 risen in, and he does a very good job, but there 22 are lines to cross and we know when somebody 23 crosses it and when they don't and, Senator, 9168 1 you're smart enough from Syracuse to know where 2 that line should be drawn also. 3 SENATOR DeFRANCISCO: You're 4 smart enough from wherever you're from to 5 recognize that calling - 6 SENATOR GOLD: Not as smart as 7 you. 8 SENATOR DeFRANCISCO: -- calling 9 Senator -- saying that Senator Skelos' political 10 baggage and that's the reason for his remark, 11 and you don't see the distinction -- you don't 12 say there's a distinction between those two 13 comments. 14 SENATOR GOLD: Yes, because when 15 I look at Senator Skelos in the eye, sir, and I 16 make that comment, I say it with respect and not 17 to degrade him. The comments he made to Senator 18 Dollinger -- (Laughter) (Oooooh!) 19 SENATOR GOLD: Well, I guess the 20 agreement of that side proves my point. 21 ACTING PRESIDENT KUHL: Senator 22 Dollinger, why do you rise? 23 SENATOR DOLLINGER: Procedurally, 9169 1 are we still on the point of order? Do I have 2 the floor, Mr. President? 3 ACTING PRESIDENT KUHL: No, 4 there's a slight issue to be resolved prior to 5 your re-taking the floor. There was a point of 6 order made by Senator Skelos relative to whether 7 this was procedural or whether or not -- I'm 8 attempting in a discussion with counsel to 9 resolve that, at the same time listening to 10 debate, so if you want to talk on the point of 11 order, you're free to talk on the point of order 12 as to why I should not uphold Senator Skelos' 13 point of order. 14 SENATOR DOLLINGER: What I need 15 to know is a clarification of Senator Skelos' 16 point of order. As I understood it, the only 17 issue raised by the point of order was whether 18 or not the discussion should be limited to the 19 imperative of altering the rules or whether it 20 could be related to the substance of the bill. 21 My understanding, Mr. President, 22 is that, because of the linkage, because of 23 trying to convince my colleagues of the need to 9170 1 alter the rules, the imperative to alter the 2 rules lies in putting this issue forward on the 3 floor, having it voted on and hopefully having 4 it passed. 5 And so, Mr. President, I'm 6 willing to refrain until there's a decision from 7 the Chair, but I -- I look at these things as 8 linked. I don't know how I could convince you 9 to alter the rules if I couldn't talk about why 10 we should alter them. 11 Why should we alter them? The 12 answer is to pass this bill because of what it 13 does, not what's behind it. 14 ACTING PRESIDENT KUHL: Senator 15 Dollinger, if I might, O.K.? 16 A point of issue or point of 17 order was raised by Senator Skelos as to what 18 type of a motion this was, and it's clearly in 19 your notice of motion, a motion to amend, as you 20 have it -- a motion to alter the rules. 21 Now, the Majority Leader has 22 consented in taking this out of order. I hope 23 you keep that in mind, that normally this type 9171 1 of a motion would be taken up, under our rules 2 of our house, at the end of the day as Item 3 Number 10 in the listing in the rules, and so 4 we're taking it out of order. 5 I would agree that, in fact, this 6 is a procedural motion, but I find nothing in 7 the rules that is limiting, as Senator Gold has 8 indicated, any debate. So while the issue is 9 raised by Senator Skelos that this is a proced 10 ural motion, truly is a procedural motion, and 11 while there has been some question as to whether 12 or not technically the motion is before the desk 13 properly today because you never filed the 14 resolution amending the rules which is part of 15 what our process is, again the Majority Leader 16 is saying he's willing to let you voice your - 17 your motion. 18 So you now have the floor to 19 essentially debate the question as to whether or 20 not the rules of this house should be altered, 21 in your words, or amended in the rules -- in the 22 words of the rules of the house. 23 SENATOR DOLLINGER: Thank you, 9172 1 Mr. President. Thank the Majority Leader for 2 your courtesy. 3 ACTING PRESIDENT KUHL: Senator 4 Dollinger, on the motion. 5 SENATOR DOLLINGER: This bill 6 which I seek to bring before the house through 7 the alteration of our rules, will allow this 8 state to step forward on the issue of assault 9 weapons. 10 I'd simply read a short letter 11 from another man that perhaps some people know 12 as to why we ought to alter the rules today. It 13 says: "Senator Dollinger, I'm sorry I could not 14 be in Albany today as you attempt to move the 15 assault weapons ban to the floor of the Senate. 16 I sincerely hope that your colleagues will allow 17 this important legislation to be heard. 18 "Sensible gun laws work. After 19 President Bush banned the importation of assault 20 rifles in 1989, their use in crime dropped 45 21 percent. In just a few short months since 22 passage of the domestic assault weapon ban we 23 have already seen dramatic increases in the 9173 1 price of assault weapons and large capacity 2 clips. The supply is dwindling, and we are 3 getting these weapons of war off our streets. 4 "But make no mistake, the 5 federal assault weapons ban is on the table in 6 Congress. Poll after poll shows that 80 percent 7 of the American public supports this ban. The 8 same is true in New York. The NRA and 9 increasingly radical special interest groups 10 want to kill the ban, and the leadership in 11 Congress says they're going to accommodate 12 them. Every major national law enforcement 13 organization in the country supported the 14 federal ban on these 'cop killer' weapons. 15 Remember, it is your police officers, not the 16 NRA who face the daily risk of looking down the 17 barrel of an Uzi or an AK-47. I can't 18 understand any elected official who would rather 19 stand with the militant gun lobby than our men 20 and women in blue. 21 "I hope that the New York State 22 Senate will stand up for the extremists in the 23 gun lobby and support a state assault weapons 9174 1 ban. The people and police officers in your 2 state will be better off." Signed: James S. 3 Brady, a man who gave this country a law called 4 the Brady Law that restricts access to weapons. 5 This bill and consideration by 6 this floor is long overdue. 80 percent of the 7 people in this state, every poll knows that 8 that's what it shows about assault weapons. I'd 9 point out that the Republican Party in this 10 state has taken a position in favor of banning 11 assault weapons. The Republican Congressional 12 Delegation in New York State, including the 13 entire Long Island delegation, voted by an 8 to 14 6 margin in favor of the federal ban on assault 15 weapons. The Republican Party and its 16 leadership, its Congressional leadership in this 17 state, has stood behind the concept of banning 18 assault weapons. 19 Keep in mind, none of those 20 Republican Congressional people lost in a 21 primary. There will be no job loss in New 22 York. We don't manufacture these weapons in New 23 York. They're manufactured other places. Our 9175 1 children's lives and the children of people like 2 two constituents of mine at the corner of 3 Ferndale, Crescent and Goodman Street in 4 Rochester gave their lives in an assault weapon 5 blitz. 6 SENATOR VELELLA: Mr. President, 7 a point of order. I believe the Chair - 8 ACTING PRESIDENT KUHL: Senator 9 Velella, why do you rise? 10 SENATOR VELELLA: I believe the 11 Chair has been very liberal and very considerate 12 of Senator Dollinger's request that, in 13 discussing a procedural motion, he be allowed to 14 allude to, to make reference to, and to briefly 15 discuss the reason behind that. I don't believe 16 that he has political motivations. I think that 17 he and the word "Republican Party", Republican 18 leadership, Republican this, Republican that, 19 certainly he would never do that in a bill -- in 20 a motion that he's discussing before the house. 21 However, I think he's gone beyond 22 the bounds of what the Chair has allowed and I 23 think he's totally out of order now in getting 9176 1 over -- getting into a meritorious discussion of 2 a bill that procedurally is not before the 3 house. 4 I -- I don't think this is the 5 Assembly where we -- where we just disregard 6 motions to discharge as the Speaker had tried to 7 do. This house allows people a procedure. They 8 allow them to have the opportunity to speak. 9 You have very liberally -- I might have ruled 10 differently if I was on the Chair -- very, very 11 liberally allowed him to make allusions to the 12 merits of the bill he wants to speak about, but 13 this is a discussion to be brought before the 14 Senate on whether or not we should change our 15 rules. He's given us the reason. You've given 16 him that opportunity. We know what he wants to 17 do. Now, let's talk about whether or not we 18 should be changing our rules, and I would ask 19 the Chair to please rule Senator Dollinger out 20 of order if he continues to go along and discuss 21 the merits of a bill that is not before the 22 house. 23 The issue is, do we change our 9177 1 rules or not, not the merits of a piece of 2 legislation that he wishes to discuss. 3 ACTING PRESIDENT KUHL: Senator 4 Dollinger, you want to be heard on this point of 5 order? 6 SENATOR DOLLINGER: Yes, I do, 7 Mr. President. 8 There can't be any better reason, 9 as Senator Gold said, to do this bill today, to 10 alter the rules and to allow this motion - 11 SENATOR VELELLA: You can't move 12 the bill today, Senator. 13 SENATOR DOLLINGER: No, I'm 14 arguing that we should. 15 SENATOR VELELLA: There is no way 16 to do it. 17 (Talking over exchange between 18 Senator Dollinger and Senator Velella.) 19 ACTING PRESIDENT KUHL: 20 Gentlemen! Gentlemen! Gentlemen! (Gaveling) I 21 hate to break a historic thing here, but you're 22 out of order. Let's get some order in this 23 chamber. This is not indicative of the New York 9178 1 State Senate, and it's not very complimentary to 2 either one of you two. 3 Now, let's control this. Senator 4 Velella, contain yourself, please. Senator 5 Dollinger, you had the floor. 6 SENATOR DOLLINGER: Thank you, 7 Mr. President. 8 I will apologize to the President 9 for my comments to Senator Velella. I regret 10 them. 11 I, however -- I still believe, 12 Mr. President, that this alteration of the rules 13 is necessary today, now, because that's the only 14 way, as Senator Gold said, we can achieve the 15 goal that this bill will achieve, to alter the 16 rules, allow the motion to discharge to come 17 forward, allow this bill to be put on the floor 18 so that we can stop the killing. It's that 19 simple. 20 That's the point. That's the 21 point of everything I wanted to say. I could 22 talk for 20 minutes on this. I'll avoid that, 23 Senator, but don't forget for a second that what 9179 1 I'm arguing for is that we save people's lives, 2 that this little piece of paper, this little 3 piece of paper, this little piece of paper can 4 be better than any bullet-proof vest we can buy 5 because we can save policemen's lives; we can 6 save the lives of kids, might even save the 7 lives of the two kids that died at the corner of 8 Ferndale, Crescent and Goodman Street. That's 9 why we ought to do it today. 10 ACTING PRESIDENT KUHL: Senator 11 Oppenheimer, on the motion. 12 SENATOR OPPENHEIMER: A point of 13 order. 14 ACTING PRESIDENT KUHL: There's 15 already one point of order on the floor. Would 16 you like to be heard on that? 17 SENATOR OPPENHEIMER: O.K. 18 ACTING PRESIDENT KUHL: Speak 19 quietly. My stick is a little short here. 20 Senator Oppenheimer - 21 SENATOR OPPENHEIMER: This always 22 happens when I step up. 23 ACTING PRESIDENT KUHL: -- on a 9180 1 point of order. 2 SENATOR OPPENHEIMER: I always 3 speak softly. I'm not touching that. 4 Mr. President, my question is, 5 you said that under Point 10 in our agenda, at 6 the end of the day, that that would be the 7 proper time for us to be entertaining this - 8 this motion. Is that indeed the position, Mr. 9 President, that at the end of the day this 10 motion can be handled without altering rules and 11 creating the current situation? Can this be 12 heard at the end of the day? 13 ACTING PRESIDENT KUHL: Normally, 14 Senator, that's when it would be heard, but the 15 Majority Leader consented that this motion to 16 amend the rules of the house be taken out of 17 order, so we are procedurally out of order on 18 this particular motion, and there is an 19 opportunity, obviously, and a willingness to 20 accommodate Senator Dollinger's motion. 21 Anybody else -- Senator Paterson 22 wanting to be heard on the point of order? 23 SENATOR PATERSON: Mr. President, 9181 1 regardless of the -- the issue, it was certainly 2 benevolent of the Majority Leader to take up 3 this issue at this particular time, but just a 4 point of clarification. We were at the point in 5 the calendar where we had passed presentation of 6 petitions, messages from the Governor, messages 7 from the Assembly, reports of standing 8 committees, reports of select committees, 9 reports from state officers, and we were at 10 motions and resolutions. 11 By the way, Mr. President, if 12 your stick is too short, I can take your place 13 if you really want me to. But the point is 14 that, why is this discussion being taken out of 15 order? Motions and resolutions, that's when I 16 think it would be -- when it would occur. 17 ACTING PRESIDENT KUHL: Is that a 18 question of the Chair, Senator Paterson? 19 SENATOR PATERSON: Yes, that's a 20 question. 21 ACTING PRESIDENT KUHL: Well, if 22 you look at the rules, I don't think it's really 23 germane necessarily to this point of order, but 9182 1 if you look at the rules - 2 SENATOR PATERSON: Number 10, 3 that pertains to motions to discharge and 4 amendments to the rules, that's where you - 5 ACTING PRESIDENT KUHL: Senator 6 Paterson, I'm looking at Rule V, page 7, of the 7 rules, subsection (2) under Item 10. It reads 8 specifically: "Motions to discharge and to 9 amend the rules." Now, item 10 comes after 10 motions and resolutions, after the calendar and 11 after special orders. I just simply mentioned 12 that to kind of point out to the chamber that in 13 fact there's being an accommodation here, but it 14 has nothing to do with the point of order. 15 I'm ready to rule on the point of 16 order. 17 SENATOR PATERSON: All right. 18 ACTING PRESIDENT KUHL: I'm ready 19 to rule on the point of order. 20 SENATOR PATERSON: O.K. Point well 21 taken, Mr. President, and it also answers my 22 question. 23 ACTING PRESIDENT KUHL: Thank 9183 1 you, Senator Paterson. 2 The Chair at this time would rule 3 that, in fact, the point of order raised by 4 Senator Velella is certainly well taken in that 5 this is a procedural motion, but there is 6 nothing in the rules of the house that would 7 limit the debate on that particular ruling so, 8 if Senator Dollinger wishes to raise what he 9 perceives to be the reason why there needs to be 10 an alteration of the Senate rules, then, in fact 11 he's entirely within the rules of the Senate. 12 So the Senate would rule that the 13 point of order as raised by Senator Velella is 14 actually out of order and that, Senator 15 Dollinger, you now have the floor. 16 SENATOR DOLLINGER: Thank you, 17 Mr. President. 18 I had intended to talk at some 19 length about this and, frankly, the discussion 20 to this point has suggested to me that I should 21 -- should shorten what I was going to say. 22 The debate about this issue and 23 why we should debate it today, why it's so 9184 1 important, it seems to me, comes down to 2 something elemental, and that is people are 3 dying. These weapons are being used. 4 SENATOR VELELLA: Mr. President. 5 ACTING PRESIDENT KUHL: Excuse 6 me, Senator Dollinger. Senator Velella, why do 7 you rise? 8 SENATOR VELELLA: Mr. President, 9 I appeal the ruling of the Chair. 10 ACTING PRESIDENT KUHL: You're 11 absolutely entitle to do that, Senator Velella. 12 Excuse me, Senator Dollinger, while we deal with 13 an appeal of a ruling of the Chair based upon 14 the point of order that was raised by Senator 15 Velella. 16 Senator Paterson, why do you 17 rise? 18 SENATOR PATERSON: Mr. President, 19 would Senator Velella yield for a question? 20 Would Senator -- Well, I might ask Senator 21 Velella to yield for a question, but I don't 22 understand -- would he explain his appeal of the 23 rules? In other words he just appealed them. I 9185 1 just wanted to know why. 2 ACTING PRESIDENT KUHL: Senator 3 Velella. 4 SENATOR VELELLA: Because the 5 Chair erred in its ruling, Senator, and I'd like 6 the full body to make that decision. 7 SENATOR PATERSON: That's my 8 point, Senator. I would like you to yield for a 9 question and explain to you why you would like 10 the Chair's ruling to be overturned. 11 SENATOR VELELLA: Senator, I 12 believe, when I stated my objection originally 13 and my point of order, I believe that Senator 14 Dollinger was out of order in going into the 15 discussion on the merits of a particular piece 16 of legislation when he was making a procedural 17 motion to change the rules of this house which 18 ultimately would apply to all bills, not to any 19 one particular bill. 20 The Chair ruled at one point that 21 he had the opportunity to make some allusion to 22 the bill that was motivating this, which he did, 23 but I believe he has gone far beyond what was 9186 1 necessary to explain to the house and has 2 violated the rules, and I believe when the Chair 3 upheld him that they were out -- that they were 4 incorrect, and I'd appeal the ruling of the 5 Chair. 6 ACTING PRESIDENT KUHL: The 7 question is on the - 8 SENATOR PATERSON: Mr. President. 9 ACTING PRESIDENT KUHL: Senator 10 Paterson. 11 SENATOR PATERSON: If the Senator 12 would continue to yield for a moment. 13 ACTING PRESIDENT KUHL: Senator 14 Velella, do you continue to yield? 15 SENATOR PATERSON: He has nothing 16 to discuss? 17 SENATOR VELELLA: Call the 18 question. 19 ACTING PRESIDENT KUHL: Senator 20 Bruno, why do you rise? 21 SENATOR BRUNO: Mr. President, can 22 we call the question? 23 ACTING PRESIDENT KUHL: You can, 9187 1 Senator Bruno. The question is called. 2 SENATOR GOLD: Mr. President. 3 SENATOR ABATE: Mr. President. 4 ACTING PRESIDENT KUHL: Let us 5 call the question first, Senator Gold. The 6 question is the appeal of the ruling of the 7 Chair. A -- a -- yes, Senator Paterson. 8 SENATOR PATERSON: There's 9 nothing in our rules that says that I can't 10 debate Senator Velella's attempt to overturn the 11 ruling of the Chair, is there, and if that being 12 -- I mean, perhaps Senator Velella doesn't want 13 to discuss it, but it doesn't mean that it can't 14 be discussed in the house, and what I'm saying 15 is that Senator Velella just got up and he said 16 that it was all right for Senator Dollinger to 17 start talking but then at a certain point it was 18 unnecessary for him to go as far as he went in 19 his conversation, and I think that would relate 20 back to what Senator Gold so eloquently pointed 21 out just a little while ago. We can not allow 22 our subjective determinations of what people say 23 to govern our practice of rules. Then, as a 9188 1 Senate, we're really going to bring ourselves 2 down as much as the contention discussion that 3 you rightfully relieved us of a little while 4 ago. In other words, we can't stop people from 5 talking because they don't like -- we don't like 6 what they say. 7 Yes, Senator Dollinger did allow 8 himself to get into a substantive discussion of 9 why we should alter the rules, but that's what 10 we're here for. That's what the Senate is for. 11 I heard a discussion a couple months ago about 12 how the budget was passed, and yet we were in 13 negotiation and maybe I might not have liked 14 that some of my colleagues on the other side did 15 it, but they were perfectly entitled to. 16 They're making their point to the public who is 17 represented here and is listening to this 18 discussion, and that's all Senator Dollinger is 19 doing. 20 I think, to some extent, we get 21 up sometimes when we deny that we are here to 22 publicize some issues. I think it was President 23 Woodrow Wilson who said that to publicize is 9189 1 often as important as it is to legislate, and 2 Senator Dollinger is challenging a rule to bring 3 an issue to the floor. 4 I don't see that as something to 5 run away from or something to actually pretend 6 that is wrong. It's absolutely right. One day, 7 if we ever pass this bill that Senator Dollinger 8 is interested in, I'd like to point out, Mr. 9 President, at no point have I discussed what the 10 bill was, that at one point when that bill is 11 passed, they will point to the fact that he 12 raised it at a time when there was a procedural 13 issue, and so what I'm saying is I can 14 understand that Senator Velella does not feel 15 that he should have gone into the -- the actual 16 substance of legislation as much as he did, but 17 that's a subjective determination that he is 18 making. The Chair allowed him to speak. This 19 is America. This is not Bosnia. He has a right 20 to say what he wants to say, and I think we're 21 going too far in this discussion. 22 SENATOR BRUNO: Mr. President. 23 ACTING PRESIDENT KUHL: Senator 9190 1 Bruno. 2 SENATOR BRUNO: Mr. President, I 3 appreciate Senator Paterson lecturing us here in 4 this chamber on how we should function and how 5 we should operate, and I want to just remind 6 Senator Paterson, as he leads the Minority 7 presently, that without rules, without 8 established procedures, you have chaos and we 9 have witnessed the chaotic 20 minutes in an 10 attempt of Senator Dollinger and the Minority to 11 prove a point that, if they don't get their way, 12 that they can disrupt the proceedings of the 13 Senate. 14 Well, we are well aware that you 15 can be disruptive. It's not good government to 16 just plain be disruptive. Somewhat childish to 17 stomp around and act in an unbecoming way 18 because we don't get our way. When you have 19 rules and you deal with children, when you 20 establish rules, you have procedures - 21 SENATOR PATERSON: Mr. 22 President. 23 SENATOR BRUNO: I will not yield, 9191 1 Mr. President. 2 -- many times when people would 3 like to do as they please whether they're 4 children or adults, they have to relate to an 5 order, to a discipline. Some of us don't like 6 the rules and the regulations and the laws, but 7 we obey them. We have rules in this Senate. We 8 agreed on those rules. We agreed on those 9 procedures, and it serves no becoming purpose to 10 try and be disruptive because you don't get your 11 way, and when this statement was made that 12 you're being political and that you are 13 grandstanding, that's exactly what is happening 14 in this chamber this morning, and I am sorry, 15 Mr. President, if the good Senator doesn't like 16 it, but people have a right to voice their 17 opinions just as well and as much as you have a 18 right to be disruptive in the chamber to get 19 your way. 20 You will not be disruptive. This 21 chamber will operate in an orderly procedural 22 way established by this Majority and, Mr. 23 President, this Majority's elected by the people 9192 1 of this state, and this Majority elects a leader 2 and the leader will manage the affairs of the 3 Senate and, if any person wants to be 4 disruptive, they can to the best of their 5 ability, but the Chair has an obligation to 6 rule, keep order, and I don't know whether you 7 have a new gavel or not, but I think you're 8 going to need it? Do you? 9 ACTING PRESIDENT KUHL: Good, a 10 bigger and stronger one, Senator Bruno. 11 SENATOR BRUNO: Good, bigger 12 stronger. That is -- it looks like it can do 13 the job. 14 We have a long day before us, Mr. 15 President. We want to get on with the people's 16 business. We are not going to be intimidated. 17 We are not going to be bludgeoned into doing 18 other than following the rules of this Senate 19 that we established together. 20 So I would ask my colleagues in 21 this chamber if you would like to conclude this 22 session in the dignified orderly way that we 23 have been proceeding since we went into session 9193 1 in January, I would ask your cooperation in that 2 on both sides of the aisle. 3 Thank you. 4 ACTING PRESIDENT KUHL: Senator 5 Abate, why do you rise? 6 SENATOR ABATE: Yes, I'd like to 7 speak on the motion. Yes, Senator Paterson. 8 Would you yield? 9 SENATOR PATERSON: Yes. 10 ACTING PRESIDENT KUHL: Senator 11 Abate. I didn't hear that discussion. Senator 12 Paterson, did you want to be recognized also? 13 SENATOR PATERSON: Yes, I did, 14 Mr. President, because the remarks of the 15 Majority Leader were made to me, and I would 16 like, as a high point of personal privilege, to 17 respond to them. 18 I don't know that anything - 19 ACTING PRESIDENT KUHL: Senator 20 Paterson, could we take up -- the Senate 21 Majority Leader has called the question. I'd 22 like to get to the question of sustaining the 23 Chair on the point of order that Senator Velella 9194 1 raised. After that, we can come back. 2 SENATOR PATERSON: Mr. President, 3 but the Majority Leader made some remarks about 4 my conduct and my behavior, and I don't know how 5 we can call the question since he was speaking 6 on the motion until I get a chance to respond, 7 and in response, I -- I resent my behavior being 8 described as childish, and I don't think that 9 any action that I have taken on this floor is in 10 any way callow or puerile or in any event in 11 contravention to the desire of the Majority 12 Leader to end this session by June 8. 13 Disruptive would be abusing the 14 right of speech; it would be interrupting when 15 others are speaking. It would be not listening 16 to the directive of the Chair. That's what I 17 think abusive and childish behavior would be. 18 What I'm saying is that I have been trying to 19 point out that the rules of the Senate provide 20 for the kind of motion that Senator Dollinger 21 made. He wanted to amend the rules to bring 22 forth a motion to discharge. 23 Now, no, I don't like the fact 9195 1 that Senator Dollinger's motion is probably 2 going to fail but, if Senator Dollinger had 3 finished speaking on his motion and we'd called 4 the question, we would be in some other 5 procedure right now, probably passing some 6 legislation. But the reason Senator Dollinger 7 never got to the end of his conversation is 8 because he was challenged on the substance of 9 what he was talking about and that, in my 10 opinion, is in no way something that needs to be 11 raised or to critique one's colleagues as being 12 childish or immature. He had a right to speak 13 on his motion as we have always allowed in the 14 Senate, and Senator Gold pointed that out a 15 little while ago. 16 Senator Gold said that this would 17 be the first time in the history of this chamber 18 that anyone had ever been, in a sense, usurped 19 from continuing because someone didn't like what 20 they were saying, and then - 21 SENATOR VELELLA: Mr. President, 22 may I interrupt for a moment? I withdraw my -- I 23 withdraw my motion to appeal the ruling of the 9196 1 Chair. 2 ACTING PRESIDENT KUHL: All 3 right. Call is withdrawn. The motion to appeal 4 the ruling of the Chair is withdrawn. We're now 5 on debate on the actual motion itself to alter 6 the rules of the Senate. 7 Senator Abate. 8 SENATOR ABATE: I think we have 9 to put politics aside today, and I know it's 10 very difficult, and I agree with the Majority 11 Leader who said -- would you prefer - 12 SENATOR CONNOR: Yes. 13 SENATOR ABATE: Yes, I will 14 explain my vote during the roll call. 15 ACTING PRESIDENT KUHL: The 16 motion before the house is a motion to alter the 17 rules of the Senate relative to the deadline 18 date for the filing of discharge motions. A 19 vote in favor will be for altering the rules of 20 the house. A vote against will be a vote not in 21 favor of altering the current rules of the 22 house. 23 Senator Paterson. 9197 1 SENATOR PATERSON: Mr. President, 2 I would -- and thank you, Mr. President. I 3 think you have tried to be fair to both sides in 4 this discussion. We would like -- we would like 5 a slow roll call on this. 6 ACTING PRESIDENT KUHL: Are there 7 five Senators -- there are five Senators 8 requesting. Secretary will call the roll 9 slowly. 10 THE SECRETARY: Senator Abate. 11 SENATOR ABATE: Yes, I'd like to 12 explain my vote. 13 ACTING PRESIDENT KUHL: Senator 14 Abate to explain her vote. 15 SENATOR ABATE: Yes, clearly we 16 all in this chamber agree with Senator Bruno 17 that this is a body of great tradition and great 18 rules, and I would say 99 percent of the year we 19 honor those rules, but I believe there's an old 20 expression that exceptions prove the rules, and 21 there are times that public debate or maybe 22 public catastrophe or the public will mandate 23 that we not just be driven by formula and rules, 9198 1 and I suspect if the public were here today, the 2 communities we represent and serve, if they 3 heard this debate and the minutes we have wasted 4 talking about rules and whether they should be 5 broken and traditions and chaos and whether we 6 have the authority to amend the rules, they 7 would say, how silly we are. 8 Shouldn't there be a public 9 debate around an issue so critical, around 10 saving lives and banning assault weapons? 11 So I believe it's our 12 responsibility as leaders today, whether you 13 believe in the ban on assault weapons or not, 14 that we have a public debate and we support 15 amending the rules. I think if we look at this 16 issue dispassionately, the public will demand of 17 us, will demand of us, because it's in 18 extraordinary times, if there was an Oklahoma 19 City that occurred and we needed to take -- make 20 some measure around anti-terrorism, do you think 21 the public would allow us to say the rules won't 22 allow public debate? We have no time to 23 legislate public safety. 9199 1 I believe this is an issue of the 2 same kind of import. It deals with safety of 3 our children; it deals with safety of our law 4 enforcement. This is the time to air these 5 issues. The public demands that we do so. 6 I vote yes. 7 ACTING PRESIDENT KUHL: Senator 8 Abate will be recorded in the affirmative. 9 Secretary continue to call the roll slowly. 10 THE SECRETARY: Senator Babbush. 11 (There was no response. ) 12 Senator Bruno. 13 SENATOR BRUNO: No. 14 THE SECRETARY: Senator 15 Connor. 16 SENATOR CONNOR: Aye. 17 THE SECRETARY: Senator Cook. 18 SENATOR COOK: No. 19 THE SECRETARY: Senator 20 DeFrancisco. 21 SENATOR DeFRANCISCO: No. 22 THE SECRETARY: Senator DiCarlo. 23 SENATOR DiCARLO: No. 9200 1 THE SECRETARY: Senator 2 Dollinger. 3 SENATOR DOLLINGER: Mr. 4 President, to explain my vote. 5 ACTING PRESIDENT KUHL: Senator 6 Dollinger to explain his vote. 7 SENATOR DOLLINGER: Since I have 8 something to do with the matter before the house 9 and I guess the procedural posture in which it's 10 located. 11 Mr. President, I, as a lawyer and 12 as an elected official, I have great respect for 13 rules. There are a whole bunch of them I don't 14 like, but nonetheless I believe it's my job to 15 respect those rules and to follow them when my 16 conscience tells me that it's the right thing to 17 do and when my view of society and my role in it 18 tells me what I ought to do. 19 But I also believe, I guess, like 20 a whole bunch of American thinkers in the past, 21 be they Henry David Thoreau or Martin Luther 22 King and others, that sometimes when the rules 23 don't do what both your conscience tells you you 9201 1 should do and what you think is the right thing 2 to do for the public, at that point the rules 3 seem to have minor significance and it becomes 4 more important to get the substance and to make 5 sure that you do the right thing. 6 We've talked a lot about the will 7 of the majority. I don't think there's any 8 doubt in this state that the will of the 9 majority, if we could pack all of those 17-1/2 10 million people in this room and said, How many 11 of you want to vote to suspend the rules of the 12 Senate to allow a motion to discharge so that 13 the consequence of that is that all your elected 14 officials would have an opportunity to pass a 15 ban on assault weapons, my guests 12 or 13 16 million hands would go up. That's the majority 17 that we're ultimately responsible for. 18 I'll close with just one 19 thought. I'm not used to getting my way in this 20 chamber. I don't think I've ever gotten my way 21 in this chamber, but I dislike it when someone 22 says that I'm disruptive and childish, that I'm 23 being political and grandstanding because for 9202 1 once I don't want to get my way, I want to get 2 something that will benefit the people of this 3 state. I think that's worth challenging rules. 4 I think it's worth challenging authority. I 5 think of it's worth making every attempt to make 6 sure that the people's will rules. 7 That's why I did this. 8 ACTING PRESIDENT KUHL: Senator 9 Dollinger in the affirmative? 10 SENATOR DOLLINGER: Yes, Mr. 11 President. 12 ACTING PRESIDENT KUHL: Senator 13 Dollinger will be recorded in the affirmative. 14 Secretary will continue to call the roll 15 slowly. 16 THE SECRETARY: Senator Espada. 17 SENATOR ESPADA: Yes. 18 THE SECRETARY: Senator Farley. 19 SENATOR FARLEY: No. 20 THE SECRETARY: Senator Galiber. 21 (There was no response. ) 22 Senator Gold. 23 SENATOR GOLD: Mr. President. 9203 1 ACTING PRESIDENT KUHL: Senator 2 Gold, to explain his vote. 3 SENATOR GOLD: Mr. President. 4 Mr. President, I first of all want to 5 congratulate you because I did think that anyone 6 that sits in that Chair must take that 7 responsibility very seriously, and I think in 8 the rulings you've had to make today you have 9 taken it seriously and, as one little old 10 Democrat to a Republican, I want to tell you 11 that I appreciate the fact that the Constitution 12 means something to you. To some, it means 13 something else. 14 But the importance of this motion 15 is that we follow the rules, Senator Bruno, and 16 in preparing rules which this side of the aisle 17 may have made differently, you created a sane, 18 logical mechanism to change the rules if we felt 19 it necessary just as the three-day rule on bills 20 can be overruled if it's necessary. 21 I think it's important that that 22 language not only be part of our rules, Senator 23 Bruno, but that we take it seriously and, while 9204 1 the majority party in this house has always had 2 that language in the rules, it's incredible - 3 incredible that for 20 years or more, there's 4 never been one little itsy-bitsy situation where 5 the rules might be changed in order to bring an 6 issue to the floor. 7 So I'm not going to discuss the 8 merits of the bill involved, Senator Dollinger's 9 bill. Those merits are overwhelming and they're 10 clear. I'm going to discuss why I'm voting yes 11 because the motion has merit. 12 The motion has merit because the 13 rules provided by the Republicans anticipated 14 because they're all honorable men and woman, 15 anticipated that there would be this day and 16 this day has come and, therefore, in voting for 17 the motion to suspend the rules to air the bill, 18 my vote in favor is a vote in favor of the dig 19 nity of our rules and the dignity of this 20 chamber. 21 I vote yes. 22 ACTING PRESIDENT KUHL: Senator 23 Gold will be recorded in the affirmative. 9205 1 Secretary will continue to call the roll 2 slowly. 3 THE SECRETARY: Senator 4 Gonzalez. 5 SENATOR GONZALEZ: Yes. 6 THE SECRETARY: Senator Goodman. 7 SENATOR GOODMAN: No. 8 THE SECRETARY: Senator Hannon. 9 SENATOR HANNON: No. 10 THE SECRETARY: Senator Hoblock. 11 SENATOR HOBLOCK: No. 12 THE SECRETARY: Senator 13 Hoffmann. 14 (There was no response. ) 15 Senator Holland. 16 SENATOR HOLLAND: No. 17 THE SECRETARY: Senator Johnson. 18 SENATOR JOHNSON: No. 19 THE SECRETARY: Senator Jones. 20 SENATOR JONES: Yes. 21 THE SECRETARY: Senator Kruger. 22 SENATOR KRUGER: Yes. 23 THE SECRETARY: Senator Kuhl. 9206 1 SENATOR KUHL: No. 2 THE SECRETARY: Senator Lack. 3 SENATOR LACK: No. 4 THE SECRETARY: Senator Larkin. 5 SENATOR LARKIN: No. 6 THE SECRETARY: Senator LaValle. 7 SENATOR LAVALLE: No. 8 THE SECRETARY: Senator Leibell. 9 SENATOR LEIBELL: No. 10 THE SECRETARY: Senator 11 Leichter. 12 (There was no response. ) 13 Senator Levy. 14 (There was no response. ) 15 Senator Libous. 16 SENATOR LIBOUS: Nay. 17 THE SECRETARY: Senator Maltese. 18 SENATOR MALTESE: No. 19 THE SECRETARY: Senator 20 Marcellino. 21 SENATOR MARCELLINO: No. 22 THE SECRETARY: Senator Marchi. 23 SENATOR MARCHI: No. 9207 1 THE SECRETARY: Senator 2 Markowitz. 3 SENATOR MARKOWITZ: Yes. 4 THE SECRETARY: Senator Maziarz. 5 SENATOR MAZIARZ: No. 6 THE SECRETARY: Senator Mendez. 7 SENATOR MENDEZ: Yes. 8 THE SECRETARY: Senator 9 Montgomery. 10 (There was no response. ) 11 Senator Nanula. 12 SENATOR NANULA: Yes. 13 THE SECRETARY: Senator 14 Nozzolio. 15 (There was no response. ) 16 Senator Nozzolio. 17 SENATOR NOZZOLIO: No. 18 THE SECRETARY: Senator Onorato. 19 SENATOR ONORATO: Aye. 20 THE SECRETARY: Senator 21 Oppenheimer. 22 SENATOR OPPENHEIMER: To explain 23 my vote. 9208 1 ACTING PRESIDENT KUHL: Senator 2 Oppenheimer, to explain her vote. 3 SENATOR OPPENHEIMER: In this 4 house there are many rules and we in the 5 minority have to live by them. 6 ACTING PRESIDENT KUHL: Excuse 7 me, Senator Oppenheimer. Can we have a little 8 order in the house please? It's very, very, very 9 quiet. Let's make it very, very, very quiet. 10 Thank you, Senator Oppenheimer. 11 Senator Oppenheimer to explain 12 her vote. 13 SENATOR OPPENHEIMER: As I was 14 saying, there are many rules in this house that 15 we, the Minority, live by and I think we live by 16 them with a fair amount of equanimity, 17 recognizing that we are the Minority. 18 There's the rule, though, that 19 doesn't permit discussion on issues because we 20 can't get those issues up on the floor. This is 21 the rule I find most distressing in a democratic 22 society. A lot of my constituents have said, 23 Well, why can't you pull an issue up to the 9209 1 floor so at least it can be discussed, because 2 there are many issues, and I feel particularly 3 strongly about this issue, because I'm a 4 co-sponsor of the bill, but there are many 5 issues that the people want to hear discussed, 6 and if their legislator doesn't agree with their 7 opinions, then they want to be able to have the 8 opportunity to address those issues with their 9 legislator, who knows, in listening to arguments 10 may have some important points that they can 11 make to us and they can perhaps cause us to 12 change our votes. 13 On this particular issue which is 14 before us on this bill, there are so many people 15 that have supported this, including at some 16 times our Attorney General, our Governor, 17 perhaps 80 percent of the people in this state 18 have spoken in support of this, and I believe 19 this is the type of issue that must be brought 20 to the floor at whatever cost. 21 I'm glad Senator Dollinger did 22 it. I also want to commend our President who 23 has acted in a very presidential manner and has 9210 1 tried to weigh both issues and present them in 2 as fair a manner as possible. But our law 3 enforcement community wants this bill 4 desperately, as does by far -- by far the vast 5 majority of the people of this state, and this 6 is something that we should be discussing and we 7 shouldn't be running away from it. 8 I vote yes. 9 ACTING PRESIDENT KUHL: Senator 10 Oppenheimer will be recorded in the 11 affirmative. 12 THE SECRETARY: Senator Padavan. 13 SENATOR PADAVAN: No. 14 THE SECRETARY: Senator 15 Paterson. 16 SENATOR PATERSON: Mr. President. 17 ACTING PRESIDENT KUHL: Senator 18 Paterson, to explain his vote. 19 SENATOR PATERSON: Very briefly, 20 I came to this chamber in 1986 and I cast a vote 21 in the Health Committee, at the time I believe 22 Senator Padavan was the chair, to allow the 23 issue of parental consent for abortion to come 9211 1 to the floor of the house. 2 I was somewhat pilloried and 3 cajoled by pro-choice groups at that time 4 forecasting that vote, even though I assured 5 them that when the bill came to the house, I was 6 going to vote against the bill. The reason I 7 did that, and the way I've tried to follow in my 8 career here, is the recognition that there are 9 issues that I may not agree with but they really 10 deserve attention on the floor of a high body 11 such as the New York State Senate. 12 The assault weapons bill, which I 13 have not commented on to this point, is, I 14 think, one that really touches at the hearts of 15 individuals -- tragedies such as the Long Island 16 Rail Road incident and issues that are on 17 people's minds and need to be discussed, and I 18 think that's why Senator Dollinger tried to 19 amend the rules today to afford us that 20 opportunity. 21 I don't mean to lecture. I don't 22 mean to condescend. I only mean to suggest that 23 what we do around here to try to win our 9212 1 political battles is fine, but we really don't 2 need to engage in the personal acrimony. We're 3 all just trying to serve our constituents. I 4 think we recognize that, and I think that this 5 was actually a good thing. It took an hour, but 6 I think it was a well spent hour making sure 7 that an individual had an opportunity to try to 8 bring an issue that affects individuals all over 9 the state to the floor of the Senate and, if it 10 doesn't appear that he was going to succeed in 11 his motion at least he can go home knowing that 12 he tried. 13 ACTING PRESIDENT KUHL: Senator 14 Paterson in the affirmative. 15 Secretary will continue to call 16 the roll slowly. 17 THE SECRETARY: Senator Present. 18 SENATOR PRESENT: Aye. No. 19 THE SECRETARY: Senator Rath. 20 (There was no audible response. ) 21 Senator Saland. 22 SENATOR SALAND: Mr. President, 23 to explain my vote. 9213 1 ACTING PRESIDENT KUHL: Senator 2 Saland, to explain his vote. 3 SENATOR SALAND: Mr. President, 4 my understanding of the rules of this house 5 which certainly I think we all could agree are 6 imperative in the sense that we should conduct 7 our business in an orderly fashion given the 8 fact that there are some 10,000 or so bills that 9 will be introduced during the course of the 10 session, that anybody can introduce a motion to 11 discharge, and my understanding is that Senator 12 Dollinger in this instance could have issued 13 this motion in January, in February and in March 14 and on in, perhaps, to mid-April. 15 I suspect that for whatever 16 reason that was not done and only he can tell us 17 why that wasn't done, but we find ourselves here 18 now in an endeavor to amend rules not at the 19 11th hour but probably something approaching 20 five to 12, and I would think that this either 21 reflects the fact that this was a conscious 22 effort on his part to try and maximize the 23 political capital to be derived from the 9214 1 underlying issue for which he sought to amend 2 the rules or, in fact, he was remiss in not 3 doing what he's done on more than one occasion, 4 in fact, several times in this chamber, just 5 offering a motion to discharge. 6 I think what we've done here is 7 experience and endure a bit of political brick 8 bat. I think what we've done here is endure a 9 significant waste of time and I, Mr. President, 10 vote in the negative. 11 ACTING PRESIDENT KUHL: Senator 12 Saland will be recorded in the negative. 13 The Secretary will continue to 14 call the roll slowly. 15 THE SECRETARY: Senator 16 Santiago. 17 (There was no response. ) 18 Senator Sears. 19 SENATOR SEARS: Nay. 20 THE SECRETARY: Senator Seward. 21 (There was no response. ) 22 Senator Skelos. 23 SENATOR SKELOS: No. 9215 1 THE SECRETARY: Senator Smith. 2 SENATOR SMITH: Aye. 3 THE SECRETARY: Senator Solomon. 4 SENATOR SOLOMON: Yes. 5 THE SECRETARY: Senator Spano. 6 SENATOR SPANO: Nay. 7 THE SECRETARY: Senator 8 Stachowski. 9 SENATOR STACHOWSKI: Explain my 10 voted. 11 ACTING PRESIDENT KUHL: Senator 12 Stachowski, to explain his vote. 13 SENATOR STACHOWSKI: Mr. 14 President, I didn't plan on explaining my vote 15 but I do have to comment to Senator Saland in 16 answer to something he said. I'd like to point 17 out that, if the Majority had decided to merely 18 let Senator Dollinger challenge the rule, state 19 his case and vote accordingly, this would have 20 been over a long time ago; so if any party in 21 this house is guilty of wasting time, it 22 probably was by trying to be a little bit too 23 heavy handed in something that could have been 9216 1 quite simply done procedurally, quickly and in a 2 timely fashion, and we'd probably be well into 3 our Finance meeting and moving the bills that 4 are on the floor. 5 I vote yes. 6 ACTING PRESIDENT KUHL: Senator 7 Stachowski will be recorded in the affirmative. 8 The Secretary will continue to 9 call the roll slowly. 10 THE SECRETARY: Senator 11 Stafford. 12 ACTING PRESIDENT KUHL: Senator 13 Stafford to explain his vote. 14 SENATOR STAFFORD: Mr. President, 15 first Senator Paterson, I think this is the 16 second mistake you've made this year. Senator 17 Lombardi was the chairman of Health when you 18 cast that vote. I was sitting beside you. 19 On the other hand, what I'm going 20 to say is going to be, I hope, with good will. 21 I'm saying this simply, the point is we have 61 22 Senators in this chamber. If everyone tried to 23 do what he or she wanted to do and did not 9217 1 follow the order, we would have chaos. 2 Mr. President, I've served in 3 this Senate when there's been chaos and 4 fortunately, there is no chaos right now. I 5 would say that we have to understand, there 6 isn't a person in this chamber, myself included, 7 that doesn't have bills or issues that they want 8 to have discussed and, Mr. President, I hardly 9 ever disagree with my friend and Senator from 10 the west, but if anything, I would suggest this 11 has not been heavy handed but again, we all have 12 to understand it has to be with order when you 13 have 61 people. 14 Thank you. 15 ACTING PRESIDENT KUHL: Senator 16 Stafford will be recorded in the negative. 17 Secretary will continue to call 18 the roll slowly. 19 THE SECRETARY: Senator 20 Stavisky. 21 (There was no response. ) 22 Senator Trunzo. 23 SENATOR TRUNZO: No. 9218 1 THE SECRETARY: Senator Tully. 2 SENATOR TULLY: No. 3 THE SECRETARY: Senator Velella. 4 SENATOR VELELLA: Mr. President, 5 to explain my vote. 6 ACTING PRESIDENT KUHL: Senator 7 Velella to explain his vote. 8 SENATOR VELELLA: Mr. President, 9 let's make no mistake about it. This was not a 10 vote on the merits of any legislation. It's not 11 an issue about gun control, assault weapons or 12 anything other than one Senator's political 13 agenda and the facts bear that out. 14 April 11th was the deadline for 15 filing motions to discharge. Senator Dollinger 16 filed 13 motions to discharge on time in order 17 following the procedures of this house, but he 18 saved one, tucked away in that little desk 19 drawer for the right day, today, so that he 20 could bring his issue up and try to embarrass 21 the Majority. 22 I think that kind of conduct was 23 out of order, Senator, and I apologize if I 9219 1 offend you, but I think the merits and the facts 2 speak for themselves. You did it for 13 other 3 bills; you couldn't do it for this one. You 4 saved it for one special day so you could get 5 the attention. 6 I vote no. 7 ACTING PRESIDENT KUHL: Senator 8 Velella will be recorded in the negative. 9 Secretary will continue to call 10 the roll slowly. 11 THE SECRETARY: Senator Volker. 12 SENATOR VOLKER: No. 13 THE SECRETARY: Senator Waldon. 14 ACTING PRESIDENT KUHL: Senator 15 Waldon, to explain his vote. 16 SENATOR WALDON: Thank you very 17 much, Mr. President. 18 My colleagues, our founding 19 fathers were smarter than us. They were much 20 smarter than us. They ensured that this 21 government would run because there would be a 22 balancing of power. They created the judiciary 23 to review whatever we do and the executive 9220 1 does. They created the executive so that he or 2 she could be above the fray, above the fray of 3 the arguing, the debating, the groveling and the 4 grit and grime of politics that is the 5 legislative process, and in their wisdom they 6 ensured that the smallest constituency would 7 have a voice in this chamber and in our lower 8 house, and the purpose for that was that the 9 things that need to be discussed would be 10 discussed in an open air and open forum with the 11 light of day shining thereupon. 12 And, therefore, I would encourage 13 my colleagues to recognize the wisdom of the 14 founding fathers and let us not be overly 15 meddlesome in what we do. Let us not allow our 16 personal animosity to interfere with the process 17 of this august body. Let us recognize that no 18 matter the date, the rhythm of the process is 19 what drives us, not someone's personal crop. 20 I vote in the affirmative. 21 ACTING PRESIDENT KUHL: Senator 22 Waldon will be recorded in the affirmative. 23 Secretary will continue to call 9221 1 the roll slowly. 2 THE SECRETARY: Senator Wright. 3 SENATOR WRIGHT: Nay. 4 ACTING PRESIDENT KUHL: Secretary 5 will call the absentees. 6 THE SECRETARY: Senator Babbush. 7 (There was no response. ) 8 Senator Hoffmann. 9 (There was no response. ) 10 Senator Leichter. 11 (There was no response. ) 12 Senator Levy. 13 SENATOR LEVY: Aye -- or no. 14 ACTING PRESIDENT KUHL: No. 15 THE SECRETARY: Senator 16 Montgomery. 17 (There was no response. ) 18 Senator Santiago. 19 (There was no response. ) 20 Senator Seward. 21 (There was no response. ) 22 Senator Stavisky. 23 (There was no response. ) 9222 1 ACTING PRESIDENT KUHL: Announce 2 the results. 3 THE SECRETARY: Ayes 18, nays 4 35. 5 ACTING PRESIDENT KUHL: The 6 motion is lost. 7 Senator Skelos. 8 SENATOR SKELOS: Mr. President, 9 at this time, there will be an immediate meeting 10 on behalf of Senator Wright of the Alcoholism 11 and Substance Abuse Committee in Room 332 of the 12 Capitol. 13 ACTING PRESIDENT KUHL: Immediate 14 meeting of the Alcoholism and Substance Abuse 15 Committee in the Majority Conference Room, Room 16 332. Immediate meeting. 17 SENATOR SKELOS: That meeting, 18 just for preparation purposes after that will be 19 Crime Victims and Corrections in Room 332 20 following Senator Wright's committee meeting. 21 ACTING PRESIDENT KUHL: There 22 will be an immediate meeting after the Committee 23 on Alcoholism and Substance Abuse of the Crime 9223 1 and Corrections Committee in Room 332. 2 Chair recognizes Senator Skelos. 3 SENATOR SKELOS: Mr. President, 4 at this time if we could return to motions and 5 resolutions and I move that we adopt the 6 Resolution Calendar in its entirety. 7 ACTING PRESIDENT KUHL: The 8 question is on the Resolution Calendar 9 adoption. All those in favor signify by saying 10 aye. 11 (Response of "Aye.") 12 Opposed nay. 13 (There was no response.) 14 The Resolution Calendar is 15 adopted. 16 SENATOR SKELOS: Mr. President, I 17 also believe that Resolution Number 1640 by 18 Senator Galiber, he requested that the 19 resolution be left open for sponsorship. 20 ACTING PRESIDENT KUHL: The - 21 SENATOR SKELOS: The resolution 22 honors Kareem Abdul Jabar. 23 ACTING PRESIDENT KUHL: Are there 9224 1 members who would like to go on the Resolution 2 Number 1640 honoring Kareem Abdul Jabar in the 3 chamber? Is there anybody who doesn't want to 4 go on it? If we could adhere to past practice, 5 Senator Skelos, and put all the members on that 6 resolution except for those who don't want to be 7 on it. 8 SENATOR SKELOS: I think the 9 members should notify the desk if they wish to 10 go on the resolution. 11 ACTING PRESIDENT KUHL: All 12 right. I'll ask the members to notify the desk 13 if they wish to go on it. Those members who 14 wish to go on Resolution Number 1640 signify by 15 raising their hands, please. Hold them up for 16 just a moment. 17 SENATOR SKELOS: Mr. President, 18 while we're doing this, if you could recognize 19 Senator Padavan. 20 ACTING PRESIDENT KUHL: Chair 21 recognizes Senator Padavan. 22 SENATOR PADAVAN: Thank you, Mr. 23 President. 9225 1 By unanimous consent, I would 2 like the record to show if I had been in the 3 chamber yesterday, Monday, June 12th, I would 4 have voted no on Calendar 994, Senate Bill 5 Number 5019. 6 ACTING PRESIDENT KUHL: Senator 7 Padavan, the record will reflect that had you 8 been in the chamber when a vote was called on 9 Calendar Number 994, that you would have voted 10 in the negative. 11 Senator Skelos. 12 SENATOR SKELOS: Is there any 13 housekeeping at the desk? 14 SENATOR GOLD: Senator Markowitz 15 has some housekeeping, Mr. President. 16 ACTING PRESIDENT KUHL: Yes, 17 there is, Senator Skelos. We do have a motion. 18 The Chair will recognize Senator Maltese for a 19 motion. 20 SENATOR MALTESE: Mr. President, 21 I wish to call up my bill, Print Number 3718A, 22 recalled from the Assembly, which is now at the 23 desk. 9226 1 ACTING PRESIDENT KUHL: Secretary 2 will read the title. 3 THE SECRETARY: Calendar Number 4 1218, by Senator Maltese, Senate Print 3718A, an 5 act to amend the Administrative of the city of 6 New York. 7 ACTING PRESIDENT KUHL: Senator 8 Maltese. 9 SENATOR MALTESE: Mr. President, 10 I now move to reconsider the vote by which the 11 bill was passed. 12 ACTING PRESIDENT KUHL: Motion is 13 to reconsider the vote by which the bill passed 14 the house. Secretary will call the roll on 15 reconsideration. 16 (The Secretary called the roll on 17 reconsideration. ) 18 THE SECRETARY: Ayes 53. 19 ACTING PRESIDENT KUHL: Bill is 20 before the house. Senator Maltese. 21 Would you like to offer up the 22 following amendments? 23 SENATOR MALTESE: Yes, Mr. 9227 1 President. 2 ACTING PRESIDENT KUHL: 3 Amendments are received and adopted, Senator 4 Maltese. 5 The Chair recognizes Senator 6 Skelos. 7 SENATOR SKELOS: Yes, at this 8 time, Mr. President, if we could take up the 9 calendar non-controversial. 10 ACTING PRESIDENT KUHL: Secretary 11 will read the non-controversial calendar. 12 THE SECRETARY: On page 4, 13 Calendar Number 87, by Senator Holland, Senate 14 Print 1247A, an act to amend the Education Law, 15 in relation to contracts for the transportation 16 of school children. 17 ACTING PRESIDENT KUHL: Secretary 18 will read the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect on the first day of 21 January. 22 ACTING PRESIDENT KUHL: Call the 23 roll. 9228 1 (The Secretary called the roll. ) 2 THE SECRETARY: Ayes 53. 3 ACTING PRESIDENT KUHL: The bill 4 is passed. 5 THE SECRETARY: Calendar Number 6 90, by Senator Cook, Senate Print 290C, an act 7 to amend the Social Services Law, in relation to 8 the establishment of the Scenic Vistas program. 9 ACTING PRESIDENT KUHL: Secretary 10 will read the last - 11 SENATOR PATERSON: Explanation. 12 ACTING PRESIDENT KUHL: Lay the 13 bill aside at the request of the acting Minority 14 Leader. 15 THE SECRETARY: Calendar Number 16 128, by Senator Levy, Senate Print 2591D. 17 SENATOR PATERSON: Lay aside. 18 ACTING PRESIDENT KUHL: Lay the 19 bill aside. 20 THE SECRETARY: Calendar Number 21 197, by Senator Seward, Senate Print 2016A, an 22 act to amend the Tax Law, in relation to 23 extending the expiration of the provisions 9229 1 authorizing the county of Tompkins. 2 SENATOR PATERSON: Lay aside, 3 please. 4 ACTING PRESIDENT KUHL: Lay the 5 bill aside. 6 THE SECRETARY: Calendar Number 7 225, by Senator Levy, Senate Print 975B, an act 8 to amend the Vehicle and Traffic Law and the 9 Public Health Law, in relation to requiring 10 businesses selling or leasing bicycles. 11 SENATOR PATERSON: Lay aside. 12 ACTING PRESIDENT KUHL: Lay the 13 bill aside. 14 THE SECRETARY: Calendar Number 15 229, by Senator Levy, Senate Print 3488A, an act 16 to amend the Public Authorities Law, in relation 17 to requiring the Metropolitan Transportation 18 Authority to implement and maintain subway 19 station signs. 20 ACTING PRESIDENT KUHL: Secretary 21 will read the last section. 22 THE SECRETARY: Section 3. This 23 act shall take effect immediately. 9230 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 53. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 230, by Senator Sears, Senate Print 210D, an act 9 to amend the Penal Law, in relation to dissemin 10 ating indecent material to minors. 11 ACTING PRESIDENT KUHL: Secretary 12 will read the last section. 13 THE SECRETARY: Section 7. This 14 act shall take effect on the 1st day of 15 November. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 53. 20 ACTING PRESIDENT KUHL: Bill is 21 passed. 22 THE SECRETARY: Calendar Number 23 241, by Senator Volker, Senate Print 2445. 9231 1 SENATOR PATERSON: Lay aside. 2 ACTING PRESIDENT KUHL: Lay the 3 bill aside. 4 THE SECRETARY: Calendar Number 5 279, by member of the Assembly Dinowitz, 6 Assembly Print 4814A, an act to amend the 7 Election Law, in relation to appointment of 8 election inspectors. 9 ACTING PRESIDENT KUHL: Secretary 10 will read the last section. 11 THE SECRETARY: Section 3. This 12 act shall take effect on the 1st day of 13 December. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll. ) 17 THE SECRETARY: Ayes 53. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 THE SECRETARY: Calendar Number 21 280, by Senator Maltese, Senate Print 3084, an 22 act to amend the Election Law, in relation to 23 political committees making no expenditures. 9232 1 ACTING PRESIDENT KUHL: Secretary 2 will read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect on the 1st day of January. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Ayes 53. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 307, by Senator Seward, Senate Print 2825A, an 13 act to amend the Tax Law, in relation to 14 extending the expiration of the provisions 15 authorizing the county of Cortland. 16 ACTING PRESIDENT KUHL: Secretary 17 will lead the last section. 18 THE SECRETARY: Section 2. This 19 act shall take effect immediately. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 53. 9233 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 506, by Senator DeFrancisco. 5 SENATOR GOLD: Lay it aside. 6 ACTING PRESIDENT KUHL: Lay the 7 bill aside. 8 THE SECRETARY: Calendar Number 9 668, by Senator Velella, Senate Print 3456A, an 10 act to amend - 11 SENATOR PATERSON: Lay aside. 12 ACTING PRESIDENT KUHL: Lay the 13 bill aside. 14 THE SECRETARY: Calendar Number 15 675, by Senator Marchi, Senate Print 593A, an 16 act to amend the Real Property Tax Law, in 17 relation to providing to property owned by an 18 educational institution. 19 ACTING PRESIDENT KUHL: Secretary 20 will read the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 9234 1 roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 53. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 676, by member of the Assembly Weprin, Assembly 8 Print 3147A, an act to amend the Education Law, 9 in relation to authorizing waiver of certain age 10 requirements. 11 ACTING PRESIDENT KUHL: Secretary 12 will read the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll. ) 18 THE SECRETARY: Ayes 53. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 690, by member of the Assembly Rules, Assembly 23 Print 7394, an act to amend the Civil Service 9235 1 Law, in relation to certification of eligible 2 lists. 3 ACTING PRESIDENT KUHL: Secretary 4 will read the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 53. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 702, by Senator Velella, Senate Print 3763, an 15 act to amend the Insurance Law, in relation to 16 agent termination reporting requirements. 17 ACTING PRESIDENT KUHL: Secretary 18 will read the last section. 19 SENATOR GOLD: Lay aside. 20 ACTING PRESIDENT KUHL: Lay the 21 bill aside. 22 THE SECRETARY: Calendar Number 23 728, by Senator Levy, Senate Print 973C, an act 9236 1 to amend the Vehicle and Traffic Law, in 2 relation to operation of a motor vehicle. 3 VOICE: Lay aside. 4 ACTING PRESIDENT KUHL: Lay the 5 bill aside. 6 THE SECRETARY: 806, by member of 7 the Assembly DiNapoli, Assembly Print 5182A, an 8 act in relation to directing the Department of 9 Education to distribute information to school 10 districts. 11 ACTING PRESIDENT KUHL: Secretary 12 will read the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll. ) 18 ACTING PRESIDENT KUHL: Announce 19 the results when tabulated. 20 THE SECRETARY: Ayes 52, nays 21 one, Senator Kuhl recorded in the negative. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 9237 1 THE SECRETARY: Calendar Number 2 831, by Senator Johnson, Senate Print 4469, an 3 act to amend the Election Law, in relation to 4 transmitting of certain information in computer 5 readable form. 6 SENATOR PATERSON: Lay aside. 7 ACTING PRESIDENT KUHL: Lay the 8 bill aside. 9 THE SECRETARY: Calendar Number 10 833, by Senator Maltese, Senate Print 4524, an 11 act to amend the Election Law, in relation to 12 the names of independent bodies. 13 ACTING PRESIDENT KUHL: Secretary 14 will read the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the roll. ) 20 THE SECRETARY: Ayes 53. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 THE SECRETARY: Calendar Number 9238 1 834, by member of the Assembly Sidikman, 2 Assembly Print 444, an act to amend the Election 3 Law, in relation to clarifying that certain 4 provisions of such law apply to all special 5 elections. 6 ACTING PRESIDENT KUHL: Secretary 7 will read the last section. 8 THE SECRETARY: Section 4. This 9 act shall take effect on the 1st day of 10 December. 11 ACTING PRESIDENT KUHL: Call the 12 roll. 13 (The Secretary called the roll. ) 14 THE SECRETARY: Ayes 53. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 837, by member of the Assembly Sweeney, Assembly 19 Print 4746A, an act to amend the Election Law, 20 in relation to conforming acceptance declination 21 and substitution deadlines. 22 ACTING PRESIDENT KUHL: Secretary 23 will read the last section. 9239 1 THE SECRETARY: Section 2. This 2 act shall take effect immediately. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 53. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 THE SECRETARY: Calendar Number 10 838, by Senator Maltese, Senate Print 4668, an 11 act to amend the Election Law, in relation to 12 listing ward numbers on petitions. 13 ACTING PRESIDENT KUHL: Secretary 14 will read the last section. 15 THE SECRETARY: Section 3. This 16 act shall take effect on the 15th day of 17 November. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 53. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 9240 1 THE SECRETARY: Calendar Number 2 895, by Senator Rath, Senate Print 2011A, an act 3 to amend the Environmental Conservation Law, in 4 relation to conformity with federal water use 5 standards. 6 SENATOR PATERSON: Lay aside, 7 please. 8 ACTING PRESIDENT KUHL: Lay the 9 bill aside. 10 THE SECRETARY: Calendar Number 11 910, by Senator Present, Senate Print 1625B, an 12 act to amend the Tax Law, in relation to extend 13 ing the authorization of the county of 14 Cattaraugus. 15 ACTING PRESIDENT KUHL: Secretary 16 will read the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 53. 23 ACTING PRESIDENT KUHL: The bill 9241 1 is passed. 2 THE SECRETARY: Calendar Number 3 921, by Senator Present, Senate Print 2715A, an 4 act to amend the Tax Law, and Chapter 574 of the 5 Laws of 1986, amending the Tax Law. 6 ACTING PRESIDENT KUHL: Secretary 7 will read the last section. 8 THE SECRETARY: Section 4. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 53. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 922, by Senator Cook, Senate Print 2964. 18 SENATOR COOK: Lay aside. 19 ACTING PRESIDENT KUHL: There's a 20 local fiscal impact note at the desk. The bill 21 will be laid aside. 22 THE SECRETARY: Calendar Number 23 929, by Senator Kuhl, Senate Print 3533A, an act 9242 1 to amend the Alcoholic Beverage Control Law and 2 the Tax Law, in relation to the shipment of 3 wine. 4 ACTING PRESIDENT KUHL: Secretary 5 will - 6 SENATOR PATERSON: Lay aside. 7 ACTING PRESIDENT KUHL: Lay the 8 bill aside. 9 THE SECRETARY: Calendar Number 10 933, by Senator Nozzolio, Senate Print 3875B, an 11 act to amend the Tax Law, in relation to 12 extending the sales tax in the county of Cayuga. 13 ACTING PRESIDENT KUHL: Secretary 14 will - 15 SENATOR PATERSON: Lay aside. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside. 18 THE SECRETARY: Calendar Number 19 934, by Senator Volker, Senate Print 3890, an 20 act to amend the Tax Law, in relation to 21 extending the sales and use taxes by the county 22 of Wyoming. 23 ACTING PRESIDENT KUHL: Secretary 9243 1 will read the last section. 2 THE SECRETARY: Section 3. This 3 act shall take effect immediately. 4 ACTING PRESIDENT KUHL: Call the 5 roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 53. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 939, by Senator Libous, Senate Print 4386, an 12 act to amend the Tax Law, in relation to 13 extending the effectiveness of provisions 14 authorizing the county of Broome. 15 ACTING PRESIDENT KUHL: Secretary 16 will read the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 53. 23 ACTING PRESIDENT KUHL: The bill 9244 1 is passed. 2 THE SECRETARY: Calendar Number 3 940, by member of the Assembly Matusow, Assembly 4 Print 6345A, an act to amend the Alcoholic 5 Beverage Control Law, in relation to authorizing 6 farm winery licenses. 7 ACTING PRESIDENT KUHL: Secretary 8 will read the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 ACTING PRESIDENT KUHL: Call the 12 roll. 13 (The Secretary called the roll. ) 14 THE SECRETARY: Ayes 53. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 SENATOR PATERSON: Lay it aside. 18 ACTING PRESIDENT KUHL: The 19 motion is to withdraw the roll call, reconsider 20 the vote -- excuse me, by which the bill 21 passed. 22 Secretary will call the roll on 23 reconsideration. 9245 1 THE SECRETARY: Calendar Number 2 940, by member of the Assembly Matusow, Assembly 3 Print 6345A, an act to amend the Alcoholic 4 Beverage Control Law. 5 ACTING PRESIDENT KUHL: Lay the 6 bill aside. 7 THE SECRETARY: Calendar Number 8 954, by Senator Saland, Senate Print 4025A, an 9 act to amend the Family Court Act and the 10 Domestic Relations Law, in relation to issuance 11 of mutual orders of protection. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 3. This 15 act shall take effect 90 days. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 53. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 THE SECRETARY: Calendar Number 23 962, by Senator Levy, Senate Print 2817, an act 9246 1 to amend the Vehicle and Traffic Law, in 2 relation to authorizing issuance of distinctive 3 license plates. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 53. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 963, by Senator Hoblock, Senate Print 3108A, an 16 act to amend the Civil Service Law and others, 17 in relation to certain United States civilians 18 serving in World War II. 19 ACTING PRESIDENT KUHL: Secretary 20 will read the last section. 21 THE SECRETARY: Section 16. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 9247 1 roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 53. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 982, by Senator Farley, Senate Print 26A, an act 8 to amend the Banking Law, in relation to 9 enabling mortgage brokers to make Federal 10 Housing Administration mortgage loans. 11 SENATOR STACHOWSKI: Lay aside. 12 THE SECRETARY: Calendar Number 13 987, by Senator Farley, Senate Print 4580A, an 14 act to amend the Tax Law, the Banking Law. 15 SENATOR STACHOWSKI: Lay aside. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside. 18 THE SECRETARY: Calendar Number 19 1017, by Senator Padavan, Senate Print 667, an 20 act to amend the Penal Law, in relation to 21 making citizenship document fraud a Class E 22 felony. 23 ACTING PRESIDENT KUHL: Secretary 9248 1 will read the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect on the 1st day of 4 November. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 53. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 1278, by Senator Stachowski, Senate Print 4389, 13 an act authorizing the city of Buffalo to 14 discontinue use as park lands certain lands. 15 ACTING PRESIDENT KUHL: There's a 16 home rule message at the desk. Secretary will 17 read the last section. 18 THE SECRETARY: Section 3. This 19 act shall take effect immediately. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 53. 9249 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 1281, by Senator Jones, Senate Print 4738, an 5 act to authorize the city of Rochester to 6 discontinue the use of certain lands as park 7 lands. 8 ACTING PRESIDENT KUHL: There's a 9 home rule message at the desk. Secretary will 10 read the last section. 11 THE SECRETARY: Section 4. This 12 act shall take effect immediately. 13 ACTING PRESIDENT KUHL: Call the 14 roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Ayes 53. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 Senator Skelos, that completes 20 the non-controversial calendar. 21 SENATOR SKELOS: Mr. President, 22 as we take up the controversial calendar, I urge 23 the members on both sides of the aisle to be 9250 1 present when the bills come up if they want to 2 explain them or they want to debate them, so we 3 can move along. Controversial calendar. 4 ACTING PRESIDENT KUHL: Secretary 5 will call the controversial calendar beginning 6 with Calendar Number 90, by Senator Cook. 7 THE SECRETARY: On page 4, 8 Calendar Number 90, by Senator Cook, Senate 9 Print 290C, an act to amend the Social Services 10 Law, in relation to the establishment of the 11 Scenic Vistas Program. 12 SENATOR PATERSON: Explanation. 13 ACTING PRESIDENT KUHL: Senator 14 Cook, an explanation of Calendar Number 90 has 15 been asked for by the acting Minority Leader, 16 Senator Paterson. 17 SENATOR COOK: Mr. President, 18 this bill would enable a county to establish a 19 Scenic Vistas program, in other words a program 20 by which public assistance recipients would be 21 employed actually by the county to -- to clean 22 up the highways, improve the views, cut brush, 23 actually make improvements along roadways 9251 1 primarily, as an alternative to being on public 2 assistance. 3 ACTING PRESIDENT KUHL: Senator 4 Paterson. 5 SENATOR PATERSON: Mr. President, 6 if the sponsor would just yield for a brief 7 question. 8 SENATOR COOK: Yes, sir. 9 SENATOR PATERSON: I'm just a 10 little confused as to where the money is going 11 to come from and where the excess money is going 12 to come from to create wages. 13 SENATOR COOK: Senator, Mr. 14 President. Senator, the funds -- this is a 15 local cost; it's a local option; it's a local 16 expense. Obviously, since there's no state par 17 ticipation in this, as there would be if they 18 were on public assistance, it's going to be more 19 cost to the locality. 20 On the other hand, there are some 21 localities that would like to have the program 22 to improve the view along their roads and 23 generally clean it up, and particularly those - 9252 1 those counties that are in tourist areas, that 2 would be very useful for them, so it's a means 3 by which, instead of putting the money into the 4 public assistance program, they use a slightly 5 additional amount of money and spend it on this 6 program instead. 7 SENATOR PATERSON: Mr. President, 8 if the sponsor - 9 ACTING PRESIDENT KUHL: Senator 10 Paterson. 11 SENATOR PATERSON: Just one last 12 question. 13 ACTING PRESIDENT KUHL: Senator 14 Cook, do you continue to yield? 15 SENATOR COOK: Yes, I will. 16 ACTING PRESIDENT KUHL: Senator 17 yields. 18 SENATOR PATERSON: Senator, this 19 is an excellent idea, and it's one that creates 20 jobs, and we're happy to have this legislation 21 on the floor. Just a procedural question, 22 Senator. Do we need legislation to accomplish 23 this since it's a local government initiative? 9253 1 Do we need to pass this bill in the state 2 Legislature to make it happen? 3 SENATOR COOK: Senator, I -- I 4 assume that a county could probably do this. 5 The difference is, however, that there is an 6 ability under this bill to require the public 7 assistance recipient to participate in this 8 program. In other words, if this job is offered 9 to someone who is on home relief and they refuse 10 to accept this job, then they no longer are 11 eligible for home relief. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: Well, the home 15 relief individual refusing the benefit is 16 something that's -- at least that issue is 17 codified into law now, but this is a good piece 18 of legislation. I thank the sponsor for -- I 19 thank Senator Cook for taking my questions. 20 ACTING PRESIDENT KUHL: Secretary 21 will read the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect on the 1st day of April. 9254 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll. ) 4 THE SECRETARY: Ayes 53. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 Senator Skelos. 8 SENATOR SKELOS: Yes, Mr. 9 President. The Minority has removed their 10 objection to Calendar Number 668 and 895. If we 11 could have those called at this time? 12 ACTING PRESIDENT KUHL: Secretary 13 will read the title of Calendar Number 668. 14 THE SECRETARY: Calendar Number 15 668, by Senator Velella, Senate Print 3456A, an 16 act to amend the Environmental Conservation Law 17 and the Navigation Law, in relation to adding 18 areas of Bronx and New York. 19 ACTING PRESIDENT KUHL: Secretary 20 will read the last section. 21 THE SECRETARY: Section 13. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 9255 1 roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 53. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 895, by Senator Rath, Senate Print 2011A, an 8 acted to amend the Environmental Conservation 9 Law, in relation to conformity with federal 10 water use standards. 11 ACTING PRESIDENT KUHL: Secretary 12 will read the last section. 13 THE SECRETARY: Section 5. This 14 act shall take effect January 1. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll. ) 18 THE SECRETARY: Ayes 53. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 Senator Skelos. 22 SENATOR SKELOS: Mr. President, 23 the Crime Victims Committee is meeting at this 9256 1 time. Following that Committee, there will be a 2 meeting of the Aging Committee in Room 332 of 3 the Capitol. 4 ACTING PRESIDENT KUHL: Immediate 5 meeting of the Crime and Corrections Committee 6 in the Majority Conference Room, Room 332. 7 Immediately following thereafter, there will be 8 a meeting of the Aging Committee in the same 9 Conference Room, Room 332. 10 Secretary will continue to call 11 the controversial calendar. 12 THE SECRETARY: Calendar Number 13 128, by Senator Levy, Senate Print 2591D, an act 14 to amend the Public Authorities Law and the 15 Administrative Code of the city of New York, in 16 relation to establishing the committee on 17 personal security. 18 ACTING PRESIDENT KUHL: Secretary 19 will read the last section. 20 SENATOR PATERSON: Can we have an 21 explanation of that? 22 ACTING PRESIDENT KUHL: Senator 23 Levy, an explanation has been asked for of 9257 1 Calendar Number 128 by the Acting Minority 2 Leader, Senator Paterson. 3 SENATOR LEVY: Thank you very 4 much, Mr. President. 5 Senator Paterson, this bill is 6 supported by the MTA, and it is an outgrowth of 7 a report that the Legislative Commission on 8 Critical Transportation Choices did on the 9 marked escalation of violent and other subway 10 crime in New York City's subway system, and this 11 bill is one of the recommendations of that 12 report, and one of the recommendations really 13 expressed concern that, after the merger of the 14 Transit Authority Police Department into the New 15 York City Police Department, there was a concern 16 as to whether there would be continuing progress 17 in dealing with violent crime in the subway 18 system, and this concern arose because prior to 19 1990 the MTA Board, that report found, ignored 20 the sharp escalating violent and other crime in 21 the subway system. They had no strategy; they 22 had no plan, they provided no oversight and they 23 took no action, and the failures of the MTA and 9258 1 its board materially contributed to the sharp 2 escalation, really an out-of-control run of 3 violent crime in the subway system. 4 So this bill not only deals with 5 the Transit Authority, it also deals with 6 Metro-North and the Long Island Rail Road as it 7 relates to violent crime, and it establishes a 8 committee which I indicated to you the MTA 9 supports, and it also requires certain reporting 10 both by the police department of the city of New 11 York as well as the Long Island Rail Road and 12 Metro-North police, and the purpose of this bill 13 is to make sure that we have a committee in 14 place at the MTA and that they are providing 15 continuous oversight not only as it relates to 16 the ongoing effort to deal with crime in the 17 subway system, but also with the Long Island 18 Rail Road and Metro-North. 19 SENATOR PATERSON: Mr. President. 20 ACTING PRESIDENT KUHL: Senator 21 Paterson. 22 SENATOR PATERSON: I'm always 23 really quite pleased that Senator Levy takes a 9259 1 couple of moments out when I request, to 2 thoroughly explain these pieces of legislation. 3 I know we're in a rush for time, but I really 4 appreciate that and, if the Senator would yield 5 for a question. 6 SENATOR LEVY: Surely. 7 SENATOR PATERSON: Senator, do 8 you think -- I see that the MTA is in favor of 9 this, but Metro-North is opposed. I mean -- I'm 10 sorry. They're all in favor of it. It's the 11 Mayor, Mayor Giuliani, who is opposed, and he 12 feels that this is sort of an attempt to 13 micromanage the security around Metro-North, the 14 Long Island Rail Road, et cetera. 15 Can you explain to us how this 16 would not be an attempt to micromanage it? 17 SENATOR LEVY: Senator, this is 18 not micromanaging the New York City Police 19 Department and its efforts to continue the - 20 their actions to -- to either maintain the 21 progress or to improve the progress in the fight 22 against crime in the subway system. 23 What this bill does on a compre 9260 1 hensive basis, because it goes beyond the subway 2 system to the Long Island Rail Road and 3 Metro-North, but with particular emphasis on the 4 subway system, notwithstanding the good 5 intentions of the mayor, and I certainly take 6 him at his word that -- that the intensity of 7 the fight against violent crime in the subway 8 system is going to continue. 9 I remember back before 1990 in a 10 three-year period of time when violent crime 11 escalated out of control in the subway system. 12 So given the merger, given the fact that the 13 Transit Authority does not have its own police 14 department to continue that progress, we've got 15 to make sure, and the MTA has to make sure, that 16 the New York City Police Department continues 17 the intensity of that job and the mayor -- the 18 mayor may not be pleased with the fact that that 19 attention is going to be placed on his 20 department, and that they're going to have to 21 keep comprehensive statistics of what is going 22 on with crime in the subway system, but we can 23 not, and I say we -- we cannot, nor can the MTA 9261 1 Board permit the progress that has been made by 2 the -- by the Transit Authority Police 3 Department in any way to be diminished or 4 compromised, and that's what this oversight will 5 provide. 6 SENATOR PATERSON: Thank you, 7 Senator Levy. 8 Mr. President, on the bill. 9 Senator Levy, I don't know if 10 you're aware of this, but your legislation may 11 actually have an ancillary benefit that might 12 have not been within your contemplation when you 13 wrote the legislation. The security plan and 14 the crime fighting capacity and some of the 15 incidents that occurred that caused you to draft 16 the legislation certainly stand out, and it's 17 significant that you address them. 18 But just about three weeks an 19 African-American male who was getting off of a 20 Metro-North train was taken into custody by the 21 Metro-North police, even though he did not fit 22 the description of the individual for which they 23 were pursuing. The individual they were 9262 1 pursuing was six inches taller and wore a 2 moustache and did not in any way fit the 3 physical description of this person. This 4 person was taken into custody pursuant to an 5 anonymous letter that was written to the 6 Metro-North police that a well dressed African 7 American male was riding on the train with a 8 gun. It was later determined that the well 9 dressed African-American male was someone else, 10 and was actually a police detective regularly on 11 his way to work, and as a result of being taken 12 into custody, this individual eschewed the 13 opportunity to sue Metro-North and instead 14 demanded a public apology. He is the publisher 15 of a noted economic development magazine. 16 And so the whole new security 17 plan might incorporate in it some procedures to 18 make sure that individuals who are not in any 19 way causing any kind of a problem to their 20 fellow riders on any Metro-North or New York 21 City subway or Long Island Rail Road trains, 22 that these individuals be allowed to ride in 23 piece unless there is reasonable cause to 9263 1 question them. 2 In this case, there obviously was 3 not and the Metro-North police did apologize. 4 However, one of the issues that might be 5 discussed when we re-examine security is just 6 what is the criteria to cause the police to 7 engage in this conduct which we will admit that 8 they were willing to say was absolutely 9 outrageous. 10 ACTING PRESIDENT KUHL: Secretary 11 will read the last section. 12 THE SECRETARY: Section 5. This 13 act shall take effect on the 30th day. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll. ) 17 THE SECRETARY: Ayes 54. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 THE SECRETARY: Calendar Number 21 197, by Senator Seward, Senate Print 2016A, an 22 act to amend the Tax Law - 23 SENATOR SKELOS: Lay aside, 9264 1 please. 2 ACTING PRESIDENT KUHL: Lay the 3 bill aside. 4 THE SECRETARY: Calendar Number 5 225, by Senator Levy, Senate Print 975B, an act 6 to amend the Vehicle and Traffic Law and the 7 Public Health Law, in relation to requiring 8 businesses selling or leasing bicycles. 9 SENATOR PATERSON: Explanation. 10 ACTING PRESIDENT KUHL: Senator 11 Levy, an explanation of Calendar Number 225 has 12 been asked for by Senator Paterson. 13 SENATOR LEVY: Senator Paterson, 14 as you know, we've passed legislation to require 15 children under the age of 14 to wear bicycle 16 helmets. That law took effect June 1st of 1994. 17 We had about an eight percent or less usage of 18 bicycle helmets in the state before that law. 19 It has sharply escalated. 20 What this bill does is to require 21 the posting -- the posting of a sign by persons 22 who sell or who -- who regularly sell or rent 23 bicycle helmets of the -- of the requirements of 9265 1 that particular law. Like the law that we did 2 here, and I sponsored it a number of years ago, 3 requiring facilities that serve alcoholic 4 beverages to -- to post warnings about fetal 5 alcohol syndrome, that job was done by the State 6 Liquor Authority. The New York State Department 7 of Health has already prepared the signs, 8 Senator Paterson -- I have a copy of that sign 9 with me -- they -- they have 5,000 signs which 10 they have prepared. They are ready to 11 distribute them, and what this bill does is 12 require, like the fetal alcohol syndrome signs, 13 that the signs be displayed in a conspicuous 14 place. 15 ACTING PRESIDENT KUHL: Senator 16 Paterson. 17 SENATOR PATERSON: Mr. President, 18 if the sponsor would yield for a question. 19 ACTING PRESIDENT KUHL: Senator 20 Levy, do you yield? 21 SENATOR LEVY: Yes. 22 ACTING PRESIDENT KUHL: Senator 23 yields. 9266 1 SENATOR PATERSON: Senator Levy, 2 last year Senators Dollinger, Jones and Hoffmann 3 voted against this issue of legislation, over an 4 issue, I believe, that has been raised by 5 colleagues on both sides of the aisle this year, 6 which is taking -- putting into effect certain 7 provisions that impede business. 8 I wanted to give you an 9 opportunity to respond to that, because it does 10 seem to be the tenor of the land that we're 11 trying to encourage business in this state. 12 SENATOR LEVY: I certainly don't 13 think the posting of this sign which tells 14 people who are going to buy a bicycle that - 15 that -- what the law does and what the law 16 requires is going to pique business. This isn't 17 aimed at business. The sign is aimed at -- at 18 the consumer and particularly at parents of 19 children of under 14, as well as children 20 themselves so that they know that they've got to 21 wear a helmet. 22 SENATOR PATERSON: Mr. President, 23 if the sponsor would yield for one other 9267 1 question. 2 SENATOR LEVY: Certainly, yes. 3 ACTING PRESIDENT KUHL: Senator 4 Levy continues to yield, Senator Paterson. 5 SENATOR PATERSON: In a 6 discussion I had with Senator Hoffmann, Senator 7 Levy, we were talking about the possibility of 8 an imposition of a penalty for failure to comply 9 with the new regulation. Is there such a 10 penalty? 11 SENATOR LEVY: There is no 12 penalty, Senator. 13 SENATOR PATERSON: All right. 14 Thank you, Senator. 15 ACTING PRESIDENT KUHL: All 16 right. Thank you, Senator Paterson. Secretary 17 will read the last section. 18 THE SECRETARY: Section 4. This 19 act shall take effect on the 90th day. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll. ) 23 ACTING PRESIDENT KUHL: Announce 9268 1 the results when tabulated. 2 Senator Hoffmann to explain her 3 vote. 4 SENATOR HOFFMANN: Thank you, Mr. 5 President. 6 I believe that this is an 7 imposition on businesses, and it would probably 8 be simply a matter of time before sanctions are 9 also imposed on businesses which fail to display 10 yet another state required placard. 11 As a very practical consideration 12 businesses which are in the business of selling 13 either bicycles or bicycle equipment would 14 probably find it in their best interest to make 15 people aware of the need for a helmet based on 16 state law. 17 So it really seems like a 18 superfluous piece of legislation for us to be 19 passing but, more importantly, I'm objecting and 20 voting no based on the fact that I think we have 21 far too many of these regulations that are an 22 imposition on business people in this state and 23 are not found in other states. 9269 1 So in the interest of a better 2 competitive nature and a more compatible 3 business climate in this state, I'm going to 4 vote no, and urge my colleagues to do the same. 5 ACTING PRESIDENT KUHL: Senator 6 Hoffmann will be recorded in the negative. 7 Announce the results -- Senator Gold to explain 8 his vote. 9 SENATOR GOLD: Yeah, I'd like to 10 explain my vote. 11 Mr. President, as part of the 12 budget negotiations we've just completed, we 13 were able to give money to a local hospital in 14 Queens which has been running a program to 15 advertise the benefits of children using 16 helmets. The little bit of money that we gave 17 to them resulted in a 300 percent increase in 18 children using helmets and an enormous decrease 19 in accidents. 20 I vote yes. 21 ACTING PRESIDENT KUHL: Senator 22 Gold will be recorded in the affirmative. 23 Announce the results. 9270 1 Excuse me, Senator Jones to 2 explain her vote. 3 SENATOR JONES: Yes, I voted in 4 the negative last year and my reason, of course, 5 was that I -- I felt the same way that we 6 continued to take away some kind of parental 7 responsibility. I think a parent should know if 8 they have a young child that it's the law and 9 really it's their obligation, not the bicycle 10 seller, to see that that child is wearing a 11 helmet; but since Senator Levy indicates this 12 year that there is no penalty, that it has been 13 removed in this bill, if it's a suggestion then 14 I guess I have no problem with voting for it 15 this time. 16 ACTING PRESIDENT KUHL: Senator 17 Jones will be recorded in the affirmative. 18 Announce the results. 19 THE SECRETARY: Those recorded in 20 the negative on Calendar Number 225 are Senators 21 Hoblock, Hoffmann, Holland, Kuhl, Libous and 22 Maltese. Ayes 48, nays 6. 23 ACTING PRESIDENT KUHL: The bill 9271 1 is passed. 2 THE SECRETARY: Calendar Number 3 241, by Senator Volker, Senate Print 2445, an 4 act to amend the Civil Practice Law and Rules, 5 in relation to limitations on certain actions 6 against professional engineers. 7 ACTING PRESIDENT KUHL: Lay the 8 bill aside temporarily. 9 THE SECRETARY: Calendar Number 10 5.... 11 SENATOR GOLD: Which bill are we 12 talking about? 13 ACTING PRESIDENT KUHL: Calendar 14 Number 241 was laid aside. Senator Volker is in 15 a committee meeting. 16 THE SECRETARY: Calendar Number 17 506, by Senator DeFrancisco, Senate Print 3402A, 18 an act to amend the Uniform City Court Act and 19 the Judiciary, in relation to creating the 20 position of part-time city court judge. 21 SENATOR GOLD: Last section. 22 ACTING PRESIDENT KUHL: Last 23 section? 9272 1 THE SECRETARY: Section 3. This 2 act shall take effect immediately. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 54. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 THE SECRETARY: Calendar Number 10 702, by Senator Velella, Senate Print 3763, an 11 act to amend the Insurance Law, in relation to 12 agent termination reporting requirements. 13 SENATOR GOLD: Explanation. 14 ACTING PRESIDENT KUHL: Lay the 15 bill aside temporarily. 16 THE SECRETARY: Calendar Number 17 728, by Senator Levy, Senate Print 973C, an act 18 to amend the Vehicle and Traffic Law, in 19 relation to operation of a motor vehicle. 20 ACTING PRESIDENT KUHL: Lay the 21 bill aside temporarily. 22 THE SECRETARY: Calendar Number 23 831, by Senator Johnson, Senate Print 4469, an 9273 1 act to amend the Election Law, in relation to 2 the transmitting of certain information. 3 SENATOR JONES: Explanation. 4 ACTING PRESIDENT KUHL: Senator 5 Johnson, an explanation of Calendar Number 831 6 has been asked for, I believe by Senator Jones. 7 SENATOR JOHNSON: Mr. President. 8 ACTING PRESIDENT KUHL: Senator 9 Skelos. 10 SENATOR SKELOS: The Aging 11 Committee will meet now in Room 332 of the 12 Capitol, and following that there will be a 13 meeting of the Mental Health Committee in the 14 same room. 15 ACTING PRESIDENT KUHL: Immediate 16 meeting of the Aging Committee and immediately 17 thereafter, there will be an immediate meeting 18 of the Health Committee in the Majority 19 Confer... Mental Health Committee, excuse me, in 20 the Majority Conference Room, Room 332. 21 SENATOR JOHNSON: Mr. President. 22 ACTING PRESIDENT KUHL: Thank you 23 for the interruption, Senator Johnson. 9274 1 SENATOR JOHNSON: This bill is a 2 rather simple bill providing a cost-efficient 3 and contemporary method of transmitting infor 4 mation required under the "Motor Voter" bill, 5 the national Voter Registration Act, from the 6 Motor Vehicle Bureaus where people do sign up to 7 the county board of elections in Suffolk 8 County. We don't have the employees to do all 9 the paperwork. We've got a new electronic 10 computer transmission system in -- in place and 11 we'd like to use that system for transmitting 12 that information, so that we can comply 13 efficiently and effectively with the law. 14 We're getting about a thousand 15 new registrants every week; we anticipate some 16 400,000 new or changed joint registrations in 17 the year and we don't have the personnel to do 18 it, and this system will allow us to do it, as I 19 said, in a cost-effective and efficient manner. 20 ACTING PRESIDENT KUHL: Chair 21 recognizes Senator Jones. 22 SENATOR JONES: Would the Senator 23 yield to a question, please? 9275 1 ACTING PRESIDENT KUHL: Senator 2 Johnson, do you yield to a question from Senator 3 Jones? 4 SENATOR JOHNSON: Yes, Mr. 5 President. 6 ACTING PRESIDENT KUHL: Senator 7 yields. 8 SENATOR JONES: I notice there is 9 no fiscal note, Senator, and could you tell me 10 if there is a cost to this and if there is, 11 could you tell me who the cost is borne by, the 12 state or the county? 13 SENATOR JOHNSON: You want to 14 know the cost to our county? 15 SENATOR JONES: Or city. Right; 16 is there a cost? My question is, is there a 17 fiscal implication and, if so, is it a state 18 cost or is it a cost to Suffolk County? 19 SENATOR JOHNSON: It's going to 20 let Suffolk County save money, because otherwise 21 they're going to have to hire many more 22 employees to do this work if it's going to be 23 done manually, so I don't think there's any 9276 1 problem with the Motor Vehicles since they're 2 already set up to make this kind of transmission 3 so I'd say it's going to save money, but I can't 4 tell you the exact amount. 5 ACTING PRESIDENT KUHL: Senator 6 Jones. 7 SENATOR JONES: Senator yield to 8 another question? 9 ACTING PRESIDENT KUHL: Senator 10 Johnson, do you continue to yield? 11 SENATOR JOHNSON: Yes, Mr. 12 President. 13 ACTING PRESIDENT KUHL: Senator 14 continues to yield. 15 SENATOR JONES: All right. Is it 16 correct, Senator, that the same material is 17 required of all counties? 18 SENATOR JOHNSON: Well, I mean 19 every county has to comply with the "Motor 20 Voter" law, yes. 21 SENATOR JONES: Thank you, 22 Senator. 23 Mr. President, I believe I have 9277 1 an amendment at the desk. I would waive its 2 reading and - 3 ACTING PRESIDENT KUHL: Senator 4 Jones, there is an amendment at the desk. 5 You're asking that the reading be waived and 6 that you have an opportunity to explain it? 7 SENATOR JONES: Yes. 8 ACTING PRESIDENT KUHL: Reading 9 will be waived, and the Chair recognizes Senator 10 Jones to explain the amendment. 11 SENATOR JONES: Yes. I had 12 spoken to Senator Johnson earlier about this. I 13 have correspondence from the Monroe County Board 14 of Elections who is asking for this same ability 15 to have this material transmitted to them. They 16 have a very efficient system in Monroe County, 17 are well known throughout the state for their 18 board of elections. 19 They're very anxious to have this 20 same service and are requesting that they be 21 included as well in this bill; so I'm asking 22 that it be amended to also include Monroe 23 County. 9278 1 ACTING PRESIDENT KUHL: The 2 question is on the amendment. All those in 3 favor significant -- all those in favor of the 4 amendment signify by saying aye. 5 (Response of "Aye.") 6 Opposed nay. 7 (Response of "Nay.") 8 The amendment is lost. 9 On the bill. The Secretary will 10 read the last section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT KUHL: Call the 14 roll. 15 (The Secretary called the roll. ) 16 ACTING PRESIDENT KUHL: Announce 17 the results when tabulated. 18 Chair recognizes Senator Jones to 19 explain her vote. 20 SENATOR JONES: Yes. I'm going 21 to be voting no on this legislation, not because 22 I think it's wrong but I think there's an issue 23 of fairness here. When one county, my own, says 9279 1 they're ready to go, have the same equipment and 2 I do believe there is a cost to the state 3 involved in this, so I don't see that it's fair 4 that one county should be able to go ahead and 5 do this and another county left out. 6 It's just as costly for Monroe 7 County to have to transmit this material by hand 8 as it is for any other county. There may not be 9 the same large number, but we are processing 10 50,000 of these, and it's -- you know, it seems 11 to me that it's only fair that this county also 12 should be allowed the same thing. 13 ACTING PRESIDENT KUHL: Senator 14 Jones will be recorded in the negative. 15 Announce the results. 16 THE SECRETARY: Ayes 43, nays 17 one, Senator Jones in the negative. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 THE SECRETARY: Calendar Number 21 922, by Senator Cook, Senate Print 2964, an act 22 to amend the Tax Law, in relation to imposing a 23 sales and compensating use tax. 9280 1 SENATOR WALDON: Explanation, 2 please. 3 ACTING PRESIDENT WRIGHT: 4 Explanation has been requested by Senator 5 Waldon. 6 SENATOR SKELOS: Lay it aside. 7 ACTING PRESIDENT WRIGHT: Bill is 8 laid aside. 9 THE SECRETARY: Calendar Number 10 929, by Senator Kuhl, Senate Print 3533A, an act 11 to amend the Alcoholic Beverage Control Law and 12 the Tax Law, in relation to the shipment of 13 wine. 14 ACTING PRESIDENT WRIGHT: 15 Explanation has been called for by Senator 16 Onorato. 17 Senator Kuhl. 18 SENATOR KUHL: Yes, Mr. 19 President. 20 This is a bill that essentially 21 would allow for the out-of-state shipment of 22 wine to states that have a reciprocal piece of 23 legislation allowing for shipment of wine from 9281 1 those particular states. There is a limitation 2 that this sale can only be made to people who 3 are 21 years of age or older, and that there's 4 also a limitation on the number of cases that 5 can be shipped during any one year and that 6 limitation is to two cases of wine any one 7 year. 8 SENATOR ONORATO: Thank you. 9 ACTING PRESIDENT WRIGHT: Chair 10 recognizes Senator Gold. 11 SENATOR GOLD: Thank you very 12 much. 13 Will Senator Kuhl yield to one 14 question? 15 ACTING PRESIDENT WRIGHT: Senator 16 Kuhl, will you yield to one question? 17 SENATOR KUHL: Yes. 18 ACTING PRESIDENT WRIGHT: Senator 19 yields. 20 SENATOR GOLD: What committee 21 does this come out of, Senator? 22 SENATOR KUHL: I can't tell you. 23 SENATOR GOLD: Does it say on the 9282 1 bill? 2 SENATOR KUHL: Yes. It's 3 committed to the Committee on Taxation, 4 Investigations and Government Operations. 5 SENATOR GOLD: Thank you. 6 Senator Goodman yield to a question? 7 SENATOR GOODMAN: Yes. 8 ACTING PRESIDENT WRIGHT: Senator 9 Goodman, will you yield to a question for 10 Senator Gold? 11 Senator Gold. 12 SENATOR GOLD: Senator Goodman, 13 I'm sorry that I didn't see you earlier, but 14 yesterday we had a bill that took care of a 15 particular problem of a particular little area 16 where they wanted to make sales which varied 17 from the norm, so to speak. Today we have 18 Senator Kuhl's bill which wants to authorize 19 some limited sales. 20 Senator Solomon and I -- probably 21 you too, Senator Goodman, unless you haven't 22 been dealing with the issue through no venality 23 reason -- have been very much concerned because 9283 1 through many parts of this state and a lot of 2 them in New York City, there are Orthodox Jews; 3 there are Muslims, there are other people who 4 have, for religious reasons, decided that one 5 day of the week they will be closed. The 6 Orthodox Jewish community, as you very well 7 know, it's on Saturday and then a few times a 8 year, as one example Passover, they will have 9 the necessity because of the way those 10 communities operate, to want to be open on 11 Sunday so that the people that they service can 12 take care of their needs -- or at different 13 times; Passover is only one example -- and 14 Senator Solomon and some others have put in 15 legislation in your committee, Senator Goodman, 16 which would deal with that problem; and what my 17 question really is, is why don't we try, instead 18 of taking an individual approach to this one's 19 problem, whatever, do something of a more 20 general nature so that it's -- we take care of 21 everybody's problems. 22 I mean I know you, Senator 23 Goodman, and I know you are sensitive to the 9284 1 problem Senator Solomon raises. His bill is 2 2461 and I don't want to slow down Senator 3 Kuhl's bill because I respect Senator Kuhl and 4 his fight for his constituents. But, Senator 5 Goodman, I did recall requesting you to yield. 6 The question is really 7 rhetorical, but I believe that before the 8 session ends, your good offices would be very 9 useful in advancing Senator Solomon's bill, 10 2461. It is a real problem and, while some of 11 this happens in Senator Skelos' area, the police 12 and local officials are usually pretty good in 13 terms that, well, they sort of look the other 14 way because they know the needs of the 15 community, but the local police should not have 16 to do that and what happens very often, Senator, 17 is that once in a while a policeman decides that 18 he's going to enforce the law and the Liquor 19 Authority is faced with the situation where they 20 know the store owners are closed 52 days a year, 21 every sabbath, and yet -- what? And all other 22 Jewish holidays, thank you. And yet they are - 23 will not let them service their community. 9285 1 So, Senator Goodman, I'm going to 2 support this bill. Many of my colleagues and I 3 supported yesterday's bill, and I think it 4 really would be a travesty if we ended this 5 session without dealing with the needs of those 6 particular groups that would benefit from Senate 7 2461. 8 ACTING PRESIDENT WRIGHT: Senator 9 Onorato. 10 SENATOR ONORATO: Mr. President, 11 would Senator Kuhl yield to a question? 12 ACTING PRESIDENT WRIGHT: Senator 13 Kuhl, will you yield to a question? 14 SENATOR KUHL: Be happy to. 15 ACTING PRESIDENT WRIGHT: Senator 16 yields. 17 SENATOR ONORATO: The question 18 is, Senator, won't this bill actually hurt the 19 New York State wineries by allowing other states 20 like California which currently share about 60 21 percent of the New York State market of domestic 22 wines? 23 SENATOR KUHL: The people who 9286 1 have and are in support of this bill, Senator, 2 don't believe so, no. They are wineries and 3 there are about a hundred farm wineries now in 4 the state of New York who view this as an 5 opportunity to actually provide their product to 6 people who can't get it now. What you will find 7 is, if you go to other states, there are -- is a 8 limited selection of New York State wine 9 available. 10 What these wineries that I'm 11 talking to and hearing from tell me is that they 12 have a great number of people who come and visit 13 them during the summer, predominantly once our 14 tourism season opens, we have several of what we 15 call wine trails around the Finger Lakes now and 16 I know they do the same in the mid-Hudson, and 17 the Long Island wine industry is flourishing 18 tremendously, and what happens is these people 19 come in and they visit and then they go home, 20 whether it's Pennsylvania or Vermont or Texas or 21 wherever it is, and they say, Gee, would you 22 send me some wine, and the winery has to respond 23 that they cannot do that; it's a violation of 9287 1 law. They cannot do that, so they view that as 2 an opportunity, an additional market for them 3 that's currently not available to them now. 4 They think that, if people are 5 going to buy, say, California wine that they're 6 already going to do that, but these people, who 7 are going to buy California wine will go to the 8 liquor stores in New York City where they can 9 get a competitive price, probably cheaper than 10 the winery, they can get it at Jaffe's or some 11 place like that in New York, and get it cheaper 12 than they can at the wineries themselves, and 13 they buy it when they buy it at the winery 14 they're buying at a retail price not marked down 15 at all, plus they'll have to pay a shipping 16 cost, so they're really not competing with a 17 winery's product except where it's not available 18 and people just don't go out in the wine 19 industry. 20 I don't know how much you're 21 familiar with people who consume wine, but most 22 of them don't just arbitrarily order a wine 23 without knowing what it's like, and so if 9288 1 they've had experience with it, they like it, 2 and they want to continue it and they've had 3 experience with it and they want to continue, 4 that this actually provides an additional market 5 for our wineries. 6 SENATOR ONORATO: Will - 7 Senator, will you continue to yield? 8 ACTING PRESIDENT WRIGHT: 9 Senator, will you continue to yield? 10 SENATOR KUHL: Yes, certainly. 11 SENATOR ONORATO: Is there 12 anything in this bill which would prevent under 13 age people from obtaining this wine through the 14 mail system? 15 SENATOR KUHL: It specifically 16 says it can only be shipped to people who are 21 17 years of age or over and the process is there 18 has to be a means of showing identification at 19 the receipt end of it, so it's shipped by 20 shipper; it requires a person receiving it 21 showing proof of identification of their ages. 22 SENATOR ONORATO: Thank you. On 23 the bill. 9289 1 ACTING PRESIDENT WRIGHT: Senator 2 Onorato, on the bill. 3 SENATOR ONORATO: Mr. President, 4 I have a great deal of concern about this 5 particular bill, not that I'm not willing to 6 help the New York State winery, but I don't 7 think this bill is going to help our New York 8 State wine growers because of the fact that 9 California is the largest producer and seller of 10 wines in this state, and they've done it not 11 because they have so much of a superior product 12 than New York State. 13 The reason that they have the 14 market for it is because of their tremendous 15 amount of advertising, and I'll give you an 16 example. About 10 or 15 years ago we had this 17 little fellow on the airwaves telling you, with 18 a little white suit, have a little wine on the 19 rocks, under the rocks, and he did appear to be 20 the most romantic man in the world surrounded by 21 beautiful women. This wine was imported from 22 Italy, and it happened to be one of the worst 23 products around, but it became the number one 9290 1 seller in the United States only because of the 2 fact that it had a tremendous amount of adver 3 tisement, and I think that this would be the way 4 to help New York State wine growers is by 5 assisting them in their advertisement of our 6 particular product, because I believe that this 7 bill will actually hurt New York State in the 8 loss of a tremendous amount of taxes and perhaps 9 the loss of jobs in our package stores that are 10 currently hurting from the loss of sales right 11 now, and I would really recommend a no vote on 12 this bill. 13 Thank you, Mr. President. 14 ACTING PRESIDENT WRIGHT: Read 15 the last section. 16 THE SECRETARY: Section 5. This 17 act shall take effect on the 120th day. 18 ACTING PRESIDENT WRIGHT: Call 19 the roll. 20 (The Secretary called the roll. ) 21 ACTING PRESIDENT WRIGHT: Results. 22 THE SECRETARY: Those recorded in 23 the negative on Calendar Number 929 are Senators 9291 1 Abate, Onorato and Padavan. Ayes 52, nays 3. 2 ACTING PRESIDENT WRIGHT: The 3 bill is passed. 4 THE SECRETARY: Calendar Number 5 933, by Senator Nozzolio, Senate Print 3875B, an 6 act to amend the Tax Law, in relation to 7 extending the sales tax in the county of 8 Cayuga. 9 SENATOR PATERSON: Explanation. 10 ACTING PRESIDENT WRIGHT: 11 Explanation has been requested by Senator 12 Paterson. 13 Senator Nozzolio. 14 SENATOR NOZZOLIO: Mr. President, 15 my colleagues, this measure extends the sales 16 tax in the county of Cayuga an additional one 17 percent. The extension expires on August 31st, 18 1997 and also allows the city of Auburn to 19 preempt the allowed one percent as set forth in 20 paragraph -- excuse me, 1224 paragraph (a) of 21 the New York State Tax Law. 22 SENATOR JONES: Mr. President. 23 ACTING PRESIDENT WRIGHT: Senator 9292 1 Jones. 2 SENATOR JONES: Would the sponsor 3 yield to a question? 4 ACTING PRESIDENT WRIGHT: 5 Senator, would you yield to a question from 6 Senator Jones. 7 SENATOR NOZZOLIO: Yes, sir. 8 ACTING PRESIDENT WRIGHT: Senator 9 yields. 10 SENATOR JONES: But I -- again I 11 just want to state this has nothing to do with 12 you, Senator, or certainly your county, but I 13 just needed to get a couple things on record. 14 Could you just explain how the substance of your 15 bill, the details of it, were arrived at? 16 SENATOR NOZZOLIO: I don't -- Mr. 17 President, I don't understand the question. 18 SENATOR JONES: Let me rephrase 19 it. 20 The bill, you stated, it says an 21 amount in the county and what the county is 22 going to do. I just wondered how those details, 23 if you could explain how the details in the bill 9293 1 were arrived at. Were they yours -- I guess my 2 question is, did you decide or where did they 3 come from? 4 ACTING PRESIDENT WRIGHT: Senator 5 Nozzolio continue to yield? 6 SENATOR NOZZOLIO: Certainly. 7 ACTING PRESIDENT WRIGHT: 8 Senator? 9 SENATOR NOZZOLIO: Mr. President, 10 I'd be glad to try to answer Senator Jones' 11 question. 12 I -- it has been my philosophy, 13 Senator, that these types of local bills are 14 decided not here in Albany but in this case in 15 Auburn as the County Legislature sits in Auburn. 16 The City Council of Auburn met with the County 17 Legislature and worked out those details amongst 18 themselves. I look at this as a strictly home 19 rule request where it was not my role to get 20 involved in the merits of the decision. 21 The county asked for the 22 authority to raise their taxes. Matter of fact, 23 this is an extender. They raised it, I believe, 9294 1 two years ago. This simply extends that 2 authority, and it's really up to the local 3 governments, because I strongly believe in home 4 rule. I do not get involved in these decisions 5 relative to local government decision-making. 6 I hope that addresses the kinds 7 of matters that you're asking. 8 SENATOR JONES: All right. Thank 9 you, Senator. 10 ACTING PRESIDENT WRIGHT: Senator 11 Jones. 12 SENATOR JONES: Yes, it does. On 13 the bill. 14 ACTING PRESIDENT WRIGHT: Senator 15 Jones, on the bill. 16 SENATOR JONES: I appreciate 17 Senator Nozzolio explaining that. As many of 18 you know, I voted no on many of the sales tax 19 bills this year mostly because there seemed to 20 be some confusion as to whether or not our role 21 was actually imposing a tax or was, as Senator 22 Nozzolio just stated, merely to follow the 23 wishes through a home rule message of what the 9295 1 local community wanted. 2 I totally agree with Senator 3 Nozzolio that this is something that belongs at 4 the local level, that it's their decision, and 5 we really are only accepting what they send us 6 as they do on many other bills, a home rule 7 message. I think maybe even at some time in the 8 future, I know Senator Larkin mentioned that to 9 me that maybe we should be looking at this whole 10 decision process needs to belong to the local 11 government. Perhaps we ought to relook at what 12 our role is, if any, but I, as a result I will 13 vote for this one as well as all the rest of 14 them on the calendar today, and I look forward 15 to doing the same for my own county. 16 ACTING PRESIDENT WRIGHT: Read 17 the last section. 18 THE SECRETARY: Section 5. This 19 act shall take effect immediately. 20 ACTING PRESIDENT WRIGHT: Call 21 the roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 55. 9296 1 ACTING PRESIDENT WRIGHT: The 2 bill is passed. 3 Senator DeFrancisco. 4 SENATOR DeFRANCISCO: Would you 5 recognize Senator Libous. 6 ACTING PRESIDENT WRIGHT: Senator 7 Libous. 8 SENATOR LIBOUS: Thank you, Mr. 9 President. 10 Can I call an immediate meeting 11 of the Committee on Mental Health and 12 Developmental Disabilities in Room 332. 13 ACTING PRESIDENT WRIGHT: There 14 will be an immediate meeting of the Mental 15 Health and Developmental Disabilities Committee 16 in Room 332. 17 Senator Farley, why do you rise? 18 SENATOR FARLEY: I'd like to be 19 recorded in the negative on 225. 20 ACTING PRESIDENT WRIGHT: Without 21 objection, Senator Farley recorded in the 22 negative on Calendar Number 225. 23 Senator Hoffmann, why do you 9297 1 rise? 2 SENATOR HOFFMANN: Mr. President, 3 I request unanimous consent to be recorded in 4 the negative on Calendar Number 833. 5 ACTING PRESIDENT WRIGHT: Without 6 objection, Senator Hoffmann recorded in the 7 negative on Calendar 833. 8 Senator DeFrancisco. 9 SENATOR DeFRANCISCO: Please call 10 up Calendar Number 197. 11 THE SECRETARY: Calendar Number 12 197, by Senator Seward, Senate Print 2016A, an 13 act to amend the Tax Law, in relation to 14 extending the expiration of the provisions 15 authorizing the county of Tompkins. 16 ACTING PRESIDENT WRIGHT: Read 17 the last section. 18 THE SECRETARY: Section 2. This 19 act shall take effect immediately. 20 ACTING PRESIDENT WRIGHT: Call 21 the roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 56. 9298 1 ACTING PRESIDENT WRIGHT: The 2 bill is passed. 3 Senator DeFrancisco. 4 SENATOR DeFRANCISCO: Would you 5 please go back to regular order on the 6 calendar. 7 THE SECRETARY: Calendar Number 8 940, by member of the Assembly Matusow, Assembly 9 Print 6345A, an act to amend the Alcoholic 10 Beverage Control Law, in relation to authorizing 11 farm winery licensees. 12 SENATOR GOLD: Hold on. 13 ACTING PRESIDENT WRIGHT: Read 14 the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT WRIGHT: Call 18 the roll. 19 (The Secretary called the roll. ) 20 THE SECRETARY: Ayes 56. 21 ACTING PRESIDENT WRIGHT: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 9299 1 982, by Senator Farley, Senate Print Number 26A, 2 an act to amend the Banking Law, in relation to 3 enabling mortgage brokers to make Federal 4 Housing Administration loans. 5 ACTING PRESIDENT WRIGHT: Read 6 the last section. 7 SENATOR PATERSON: Hold on a 8 minute. Explanation. 9 ACTING PRESIDENT WRIGHT: 10 Explanation has been requested by Senator Gold, 11 Senator Farley. 12 SENATOR FARLEY: Stachowski. 13 ACTING PRESIDENT WRIGHT: Senator 14 Stachowski requested it. 15 SENATOR FARLEY: He didn't lay 16 aside this bill at all. He's got a phone call 17 out there. 18 Let me just say that this is a 19 bill that the realtors are very interested in, 20 that New York State is one of the only two 21 states in the nation in which mortgage brokers 22 cannot originate an FHA loan and be FHA loan 23 correspondents. 9300 1 The problem here is a conflict 2 between the state and the FHA requirements. New 3 York does not allow a broker to make loans. 4 However, this conflict with the FHA requirement, 5 the brokers must close loans in their own name. 6 The FHA has been unwilling to revise its program 7 to accommodate New York State's law. Therefore, 8 brokers are basically not able to offer FH 9 products -- FHA products to their customers. 10 This bill in particular should 11 provide consumers with additional financial 12 options and enable consumers to benefit from the 13 advantages of an FHA loan. An FHA loan is 14 especially beneficial for first time buyers, 15 minorities, low income borrowers, and so forth. 16 The FHA loan usually has more flexible credit 17 standards and terms. They require a lower down 18 payment and they're more lenient in allowing 19 gifts to be used for down payment. 20 SENATOR TULLY: Very liberal. 21 SENATOR FARLEY: Well, this is a 22 bill that really helps promote first time 23 buyers, and so forth. It's one that brings us 9301 1 in conformity with the rest of the nation, and 2 so forth. I don't -- there's no known 3 opposition that I know of, but I offer the bill 4 to you, Senator Stachowski. 5 SENATOR STACHOWSKI: Explanation 6 satisfactory. 7 ACTING PRESIDENT WRIGHT: Thank 8 you, Senator. 9 Senator DiCarlo, why do you rise? 10 SENATOR DiCARLO: Mr. President, 11 I ask unanimous consent to be recorded in the 12 negative on Calendar 225. 13 ACTING PRESIDENT WRIGHT: Without 14 objection, the Senator is recorded in the 15 negative on Calendar 225. 16 On the bill, read the last 17 section. 18 THE SECRETARY: Section 2. This 19 act shall take effect on the 120th day. 20 ACTING PRESIDENT WRIGHT: Call 21 the roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 56. 9302 1 ACTING PRESIDENT WRIGHT: The 2 bill is passed. 3 THE SECRETARY: Calendar Number 4 987, by Senator Farley, Senate Print 4580A, an 5 act to amend the Banking Law and others, in 6 relation to limited liability investment 7 companies. 8 SENATOR STACHOWSKI: 9 Explanation. 10 ACTING PRESIDENT WRIGHT: 11 Explanation is requested by Senator Stachowski. 12 SENATOR FARLEY: Going to get 13 him. 14 This bill would allow investment 15 companies to form and operate themselves as 16 limited liability investment companies instead 17 of as corporations. This option would only 18 apply to those investment companies which do not 19 accept or maintain credit balances or deposits 20 in the United States, cannot engage in any 21 business activity in the United States except as 22 incident to the international and foreign 23 business operation and they conduct business in 9303 1 compliance with the Banking Law. 2 A limited liability investment 3 company would be subject to virtually all the 4 provisions of the Banking Law which currently 5 apply to corporate foreign investment 6 companies. It would also be subject to all the 7 requirements of the limited liability company 8 law. The Superintendent of Banks is provided 9 with express authority to make rules and 10 regulations to govern limited liability 11 investment companies. 12 Now, this bill would authorize 13 the limited liability company structure for 14 those Article 12 investment companies which are 15 -- serve as holding companies for foreign 16 banking operations. 17 Let me see if I can summarize 18 some of this quickly for you, because it's a 19 little mundane. 20 O.K. I'm trying to summarize 21 this. I've got more than you want to know. 22 These entities are currently subject to both 23 foreign and domestic tax liabilities. This 9304 1 essentially results in double taxation on 2 earnings. However, if the holding companies can 3 organize themselves as limited liability 4 companies, they will be taxed under federal law 5 as a partnership. 6 This would enable these New York 7 firms to credit the foreign tax against their 8 federal tax like any other partnership. In 9 other words, it puts our New York-based 10 companies -- gives them a little bit of an 11 advantage or equalization or level playing field 12 on the federal income tax. 13 ACTING PRESIDENT WRIGHT: Senator 14 Stachowski. 15 SENATOR STACHOWSKI: If Senator 16 Farley would yield to just one question? 17 ACTING PRESIDENT WRIGHT: Senator 18 Farley, will you yield? Senator yields. 19 SENATOR STACHOWSKI: In the case 20 of the current banking chairman, if one of these 21 companies would have to be regulated, he would 22 probably excuse himself seeing as he came from a 23 company of this nature? 9305 1 SENATOR FARLEY: The current 2 banking chairman would excuse himself? 3 SENATOR STACHOWSKI: 4 Superintendent, excuse me, the current Banking 5 Superintendent, if he had to make a decision as 6 you stated earlier, he would be in charge of 7 overseeing this. 8 SENATOR FARLEY: Yes, he would. 9 SENATOR STACHOWSKI: So then who 10 would be in charge? 11 SENATOR FARLEY: The acting 12 deputy. 13 SENATOR STACHOWSKI: That was the 14 question. 15 SENATOR FARLEY: The acting 16 deputy. Very good question. 17 ACTING PRESIDENT WRIGHT: Senator 18 Solomon. 19 SENATOR SOLOMON: Mr. President, 20 would Senator Farley yield? 21 ACTING PRESIDENT WRIGHT: Senator 22 Farley, will you yield? 23 SENATOR FARLEY: Yes. 9306 1 ACTING PRESIDENT WRIGHT: Senator 2 yields. 3 SENATOR SOLOMON: Senator Farley, 4 in view of the fact that this has an impact on 5 the tax structure, your memorandum has fiscal - 6 SENATOR FARLEY: No, it does 7 not. It has no effect on our tax structure, 8 ours. 9 SENATOR SOLOMON: Well, let me 10 finish the question. The memorandum has fiscal 11 impact as minimal, and I'm trying to find out 12 what this "minimal" means in terms of our tax 13 structure if it has minimal impact as stated in 14 the memorandum. 15 SENATOR FARLEY: The formation - 16 this formation at most will only have a minimal 17 impact on New York's tax revenues. In reality, 18 it may prove to have a beneficial impact. The 19 type of entities affected by this bill are 20 basically holding companies for foreign banking 21 operations. As such, they do not have New York 22 source income. Therefore, they generally pay 23 only the minimum corporate franchise tax of 9307 1 $325. 2 It should be noted that there are 3 currently only three investment companies in 4 this state which are eligible for this and only 5 one of these even appears to be interested in 6 pursuing this option. The loss of the minimal, 7 that's 300 bucks, amount of revenue would be 8 partially offset by any application filing fees 9 that we required under our law. 10 In addition, the potential 11 reduction in federal taxes may result in 12 increased distribution to members which could 13 result in potential revenue increases to our 14 state income taxes. So I think it's a net 15 positive. 16 ACTING PRESIDENT WRIGHT: Senator 17 Solomon. 18 SENATOR SOLOMON: Well, Senator, 19 what you just said was more than a mouthful. 20 Someone as simple as -- from my simple area that 21 I come from. 22 SENATOR FARLEY: There's nothing 23 simple about you, Senator Solomon, I'm well 9308 1 aware of that. 2 SENATOR SOLOMON: O.K. Senator, 3 if I may, in terms of what I thought I heard you 4 just say is that they would now pay the 5 alternative minimum tax, corporate tax, and I'm 6 just curious if you could tell me what this one 7 company that shows particular interest in this 8 legislation currently pays. 9 SENATOR FARLEY: Now, they would 10 be taxed as a partnership so that it would be 11 taxed -- their personal income will be taxed at 12 the rate of what is it, 8.75, whatever our 13 maximum is. Those guys are usually at the 14 maximum. 15 SENATOR SOLOMON: It's 7-point - 16 SENATOR FARLEY: They'll be taxed 17 as a partnership now and so, therefore, their 18 personal income tax will be taxed. They'll be 19 taxed through their personal income tax. 20 SENATOR SOLOMON: What do they 21 currently pay, to the best of your knowledge? 22 SENATOR FARLEY: $325. 23 SENATOR SOLOMON: That's what 9309 1 they pay now, or that's what they would pay 2 after the passage of this bill. 3 SENATOR FARLEY: That's what they 4 pay now. 5 SENATOR SOLOMON: O.K. That's 6 what's confusing. Thank you. 7 ACTING PRESIDENT WRIGHT: Read 8 the last section. 9 THE SECRETARY: Section 14. This 10 act shall take effect immediately. 11 ACTING PRESIDENT WRIGHT: Call 12 the roll. 13 (The Secretary called the roll. ) 14 THE SECRETARY: Ayes 56. 15 ACTING PRESIDENT WRIGHT: The 16 bill is passed. 17 Senator DeFrancisco, that 18 completes the calendar. Would you prefer to 19 return to the bills that were laid aside? 20 SENATOR DeFRANCISCO: Would you 21 please take up Calendar Number 241? 22 ACTING PRESIDENT WRIGHT: Excuse 23 me, Senator. May we recognize Senator Espada? 9310 1 SENATOR DeFRANCISCO: Yes, you 2 may. 3 ACTING PRESIDENT WRIGHT: Chair 4 recognizes Senator Espada on a resolution. 5 SENATOR ESPADA: Thank you, Mr. 6 President. 7 Certainly want to thank the 8 entire leadership of this house for the 9 opportunity to speak on the resolution that has 10 passed this house earlier. It has to do with 11 the All Stars Talent Network who are seated up 12 in our gallery. We certainly welcome them. 13 They are representatives of one 14 of the best and most successful anti-violence 15 programs that this nation has to offer. They 16 take anger, frustration, stress from young 17 people in our inner city communities and turn it 18 upside down on its ugly head and give it a 19 beautiful shining face. They performed 500 20 shows in 11 years throughout this nation with no 21 funding from governmental sources, solely 22 supported by contributions of people in our 23 community. 9311 1 And so we take this opportunity 2 to congratulate them, to commend them and to 3 point out that the old African adage that it 4 takes an entire village to raise a child is most 5 apropos and they're living proof that it can 6 happen, and we certainly congratulate you for 7 all your efforts. 8 Thank you, Mr. President. 9 ACTING PRESIDENT WRIGHT: Thank 10 you, Senator Espada. You will note that the 11 resolution was previously passed. We welcome 12 all of these young individuals to the Senate 13 chambers today and our opportunity to recognize 14 and congratulate them on their efforts. 15 Thank you very much and enjoy 16 your day in the Capitol. 17 (Applause) 18 Senator DiCarlo. 19 SENATOR DiCARLO: Mr. President, 20 I would ask unanimous consent to be recorded in 21 the negative on Calendar 128. 22 ACTING PRESIDENT WRIGHT: Without 23 objection, Senator DiCarlo will be recorded in 9312 1 the negative on Calendar Number 128. 2 Senator Maziarz. 3 SENATOR MAZIARZ: Mr. President, 4 with unanimous consent, I'd like to be recorded 5 in the negative on Calendar 225 and 933. 6 ACTING PRESIDENT WRIGHT: Without 7 objection, Senator Maziarz is recorded in the 8 negative on Calendar -- excuse me. There were 9 two numbers, Senator. 10 SENATOR MAZIARZ: 225 and 933. 11 ACTING PRESIDENT WRIGHT: 133? 12 SENATOR MAZIARZ: 933. 13 ACTING PRESIDENT WRIGHT: Senator 14 DeFrancisco. 15 SENATOR DeFRANCISCO: I would 16 request unanimous consent to be recorded in the 17 negative on 228 and 125. 18 ACTING PRESIDENT WRIGHT: Without 19 objection, Senator DeFrancisco in the negative 20 on 228 and 125. 21 SENATOR DeFRANCISCO: Now, could 22 you call up Calendar 241. 23 ACTING PRESIDENT WRIGHT: 9313 1 Secretary will read. 2 THE SECRETARY: On page 7, 3 Calendar Number 241, by Senator Volker, Senate 4 Print 2445, an act to amend the Civil Practice 5 Law and Rules, in relation to limitations on 6 certain actions. 7 SENATOR PATERSON: Explanation. 8 ACTING PRESIDENT WRIGHT: 9 Explanation is requested by Senator Paterson. 10 Senator Volker. 11 SENATOR VOLKER: Senator 12 Paterson, you want me to explain? 13 Mr. President, this is a bill 14 that has been in the process of being worked on 15 for many, many years. In fact, there's several 16 members of this chamber who have introduced 17 similar legislation over the years and have been 18 in and reported out of my committee at one time 19 or another. 20 It is a -- in effect, a bill that 21 a number of professional groups have come 22 together on and agreed to, and that's the legis 23 lation that is presently before us. 9314 1 What it would provide is for a 2 change in the -- basically a change in the 3 statute of limitations for actions brought 4 against engineers, architects, surveyors or 5 construction contractors. 6 Presently, the -- there are two 7 statutes primarily involved. One, of course, is 8 the contract statute, statute of limitations 9 which is six years, and the negligence statute 10 or the tort statute which is three years after 11 the injury occurs or somebody becomes aware of 12 it. 13 What this bill would do is say 14 that, in an action for personal injury or 15 wrongful debt or property damage arising out of 16 a defect in design, planning, supervision or 17 construction, that the action against -- against 18 an engineer, architect, surveyor or contractor, 19 that the action must be brought within seven 20 years except if the action or the injury occurs 21 during the seventh year, then there is a 22 one-year extension. 23 Let me just say that that is not 9315 1 based on just conjecture. The -- the -- there 2 have been studies that have been done, actions 3 involving these kinds of claims, and the study 4 showed that about 85 percent of the claims that 5 arise in this area come in the first seven years 6 and then a small percentage occurs in the next 7 year because of those claims that were 8 discovered in that year, and that's how you get 9 the seven years and one additional year. 10 In addition to that, the bill 11 would require a certificate of merit in such 12 actions, and what this does is mirror the 13 present law, the malpractice law involving 14 doctors, dentists, I believe and podiatrists if 15 I'm not mistaken. So that's what this bill 16 basically does. 17 ACTING PRESIDENT WRIGHT: 18 Recognize Senator Paterson. 19 SENATOR PATERSON: Mr. President, 20 would Senator Volker yield for a couple 21 questions? 22 SENATOR VOLKER: Why, certainly. 23 ACTING PRESIDENT WRIGHT: Senator 9316 1 Volker, would you yield? Senator yields. 2 SENATOR PATERSON: Senator, there 3 are a number of issues that are raised by this 4 type of legislation. The initial one would be 5 the definition of a statute of repose as 6 compared to the statute of limitations. 7 In the statute of repose, what 8 we're really doing is setting a time period by 9 which we will allow for suits to be brought and 10 that period being seven years, whereas the 11 regular statute of limitations in tort 12 liability, with which we're more familiar, that 13 the clock starts running at the point of 14 injury. 15 So suppose we have an incident 16 where we have designed a building and certain 17 parts of the building are not used for a period 18 of time, because let's say they've been vacant 19 and haven't been sold, and at the point that 20 this area starts to be rented out now we start 21 to see where the defect is, the negligence or 22 even malfeasance of duty on the part of the 23 architect or the engineer. 9317 1 What I'm hoping is that I've 2 cited you an example where there is a wrongdoing 3 but there is no real way to measure it because 4 the statute of limitations has expired before 5 not only the injury is actually occurring but 6 before even the incident has taken place. 7 SENATOR VOLKER: Senator, let me 8 just say that, in accordance even with this 9 statute -- hold on a second. 10 ACTING PRESIDENT WRIGHT: Excuse 11 me a second. 12 Senator DeFrancisco. 13 SENATOR DeFRANCISCO: There will 14 be an immediate meeting of the Finance Committee 15 in the Capitol, Room 332; immediate meeting of 16 the Finance Committee, Room 332. 17 ACTING PRESIDENT WRIGHT: 18 Immediate meeting of the Finance Committee in 19 Room 332. 20 Senator Volker. 21 SENATOR VOLKER: Yeah. The 22 situation that you talk about, Senator, which 23 there's an old saying about -- well, there's a 9318 1 couple of old sayings. One talks about tough 2 situations in the law. Would probably be an 3 interesting situation should this eventually, as 4 it will by the way, this will eventually become 5 law. I think the liability issue is such a 6 powerful issue that the cost of construction in 7 the building trades is going to get so out of 8 hand in the next few years that I would predict 9 to you that a statute similar to this is going 10 to become law within a few years. Trial lawyers 11 and so forth aside, it's going to happen. I 12 don't think there's any question the country is 13 headed in that direction, but I think the 14 incidents or the problem that you describe is 15 one that probably will be litigated should this 16 legislation pass as to whether it would be 17 covered under -- under the so-called statute of 18 repose or statute of limitations. 19 I think the issue here is that 20 you have to have some sort of finality on these 21 cases and that waiting 20 to 30 to 40 years and 22 still being able to be sued in these matters 23 does not serve in the long term a public purpose 9319 1 and, very honestly, it may serve a purpose for 2 certain individuals but insurance rates which 3 are based on probabilities have just kicked the 4 costs almost out of control, and I think the 5 answer, Senator, is that that kind of situation, 6 I suppose, could occur and, as I say, it 7 probably might be a situation where somebody 8 could attempt to challenge the statute, but I 9 think the possibility of such a thing, if you 10 know the way modern designs are done, 11 inspections and all the rest of the things that 12 we deal with in our society today, you might 13 have an action against somebody else rather than 14 the building designer for not detecting it, in 15 any case, so I think the answer to that is that 16 it probably wouldn't -- probably wouldn't 17 apply. 18 SENATOR PATERSON: Mr. 19 President. 20 ACTING PRESIDENT WRIGHT: Senator 21 Paterson. 22 SENATOR PATERSON: Through you, 23 you said earlier that a number of our other 9320 1 colleagues have looked at this legislation. 2 Were they able to document that it is 3 unaffordable for architects and engineers and 4 the like, to be engaging in the construction of 5 buildings right now? I know what you said 6 before about suits arising 20 and 30 years 7 later, but there is kind of an expectation that, 8 when a building is erected, that it's going to 9 last for a number of years. 10 SENATOR VOLKER: I'm sorry, 11 Senator, I guess I was -- I missed what you 12 said, I'm sorry. 13 SENATOR PATERSON: I'm sorry. 14 ACTING PRESIDENT WRIGHT: Senator 15 Paterson, if you would repeat the question for 16 Senator Volker, please. 17 SENATOR VOLKER: I didn't hear 18 your question. 19 SENATOR PATERSON: Let me repeat 20 the question for you, Senator. 21 I'm asking if the architects and 22 engineers have documented that there has been 23 such an increase in their insurance premiums 9321 1 that they would need special protection at this 2 point as the doctors raised about ten years ago 3 based on the fact that they are -- it's 4 unaffordable for them to engage in their work? 5 SENATOR VOLKER: Senator, I don't 6 think it's necessarily unaffordable for them to 7 engage in their work, but what the problem is 8 that these people are so necessary to the kinds 9 of things that are done here, that it has 10 dramatically raised the cost of the architects 11 and engineers, and so forth, handling these 12 kinds of things and, as a result, what it does 13 is, although obviously you're going to have to 14 have these people because in many cases the law 15 mandates that you must have architects and 16 engineers to handle this sort of thing, the 17 problem is that it has dramatically, and I think 18 that has pretty clearly been shown over the last 19 few years and there's been -- certainly there's 20 been people that say well, if you really look at 21 it, 4- or 500 percent increase in insurance 22 rates is really not that enormous given the rate 23 increases in other areas; but the truth is that 9322 1 there has been a dramatic increase in the cost 2 of projects built into it because of the issue 3 of liability, and that, I think, is virtually 4 irrefutable. 5 I think there are people that 6 would say, Well, that's something that's come 7 over a period of years, and that's true. It's 8 come over a period of 10 to 15 years and the 9 last couple years, by the way, as we begin to 10 debate these issues of liability insurance 11 companies have not been raising their rates as 12 dramatically, although as one vice-president of 13 an insurance company told me, one of the ways in 14 which some of these issues are being resolved is 15 many companies are saying, We just won't cover 16 those kinds of things. 17 I mean, you take municipal 18 liability, a number of the companies have just 19 got out of the coverage because they say it's 20 just not worth it. So I think the answer is, 21 Senator, that -- and it's pretty well documented 22 not that these people, not that architects and 23 engineers are not going to be available. It's 9323 1 not even that issue of professional engineers, 2 it's an issue of the long-term cost to society 3 and the cost to every individual that this 4 liability issue is doing to all of the people of 5 the state of New York. 6 ACTING PRESIDENT WRIGHT: Senator 7 Paterson. 8 SENATOR PATERSON: I understand 9 the concern that we -- that the professions have 10 on this particular issue. What I'm saying is 11 that seven years is a very short time when 12 you're talking about such projects as erecting a 13 building, to actually know that the building has 14 been constructed without some major defect 15 arising from a malfeasance of duty or from some 16 negligence. 17 If Senator Volker would continue 18 to yield. 19 SENATOR VOLKER: Sure. 20 ACTING PRESIDENT WRIGHT: Senator 21 continues to yield. 22 SENATOR PATERSON: Senator, the 23 Legislature is calling for a certificate of 9324 1 merit enabling the plaintiff to bring an action 2 in court. In previous pieces of legislation, 3 the only time I can think of off the top of my 4 head, when we've had a certificate of merit are 5 in medical malpractice cases. 6 Here we have a number of 7 records. We have documentation; we have 8 specific facts that can be compared with the 9 present case to arrive -- to arrive at a 10 decision as to whether or not a court case is 11 merited. I don't know that we necessarily have 12 that in the construction area or in the 13 specialized profession of engineering that there 14 is really a way necessarily that another 15 profession, you feel, can come in and say yes, 16 based on this criteria, we can actually bring a 17 lawsuit, and since it's so rare that we actually 18 allow this to happen only in medical cases which 19 are highly documented and highly specialized and 20 which bring with it a great degree of detail 21 that can be traced and perused later by the 22 professionals, my question to you is whether or 23 not, or actually why would we want to seek this 9325 1 remedy in this legislation where we don't really 2 have it as a matter of purpose in our law in 3 other areas? 4 SENATOR VOLKER: Senator, you're 5 right about the certificate of merit being used 6 in medical malpractice cases and more dental 7 malpractice, I believe, and podiatrists, and so 8 forth, in that area. The reason that there is a 9 -- the reason we're fighting that, Senator, I 10 think the same sort of issue is involved here 11 and let me just say that, as the statute clearly 12 says, the fact that you can bring the action, it 13 doesn't say that, because you don't have the 14 certificate of merit, that you can't bring the 15 action, but in order to move forward and the 16 reason is because a number of these cases are 17 based on something happens and there is, in 18 effect, what many of the actions move forward in 19 is, Well, somebody had to be negligent here. 20 Somebody had to do something, and we just assume 21 that it's -- it's an architect or an engineer 22 and, at some point down the line, the attorney 23 for the -- as you and I know, the attorney is 9326 1 going to have to prove something and what we're 2 really doing here is in this certificate of 3 merit is saying that the attorney has to go up 4 front with some sort of professional evidence 5 that the people or the person, the individual 6 being sued, had something to do with the 7 potential negligence. 8 One of the reasons for that, 9 Senator, is because you know how lawsuits go as 10 well as I do, and that is you bring all sorts of 11 individuals into it, even though they may really 12 have a remote liability, and I think the concept 13 of this certificate of merit is to allow a 14 professional to make some sort -- to provide 15 some sort of judgment up front so that if the 16 action against engineers or -- or architects or 17 whatever does not really pertain to them, that 18 you can actually get them out of the suit early, 19 save the insurance companies the liability 20 claims and not have to really drag a company 21 through years of litigation and, in the end, 22 find out that they really had nothing to do with 23 it in the first place and that, if there was 9327 1 some negligence, it had to do with somebody else 2 or some other entity or whatever. 3 I think that is the intent here, 4 and I think the issue is certainly serious 5 enough because of the public nature of this and 6 I don't think the certificate of merit is 7 anything, it's really so -- so onerous since a 8 good -- any good person who is bringing such an 9 action is going to do something, basically bring 10 such a -- such evidence in eventually anyway, 11 but maybe not until the time of the trial. 12 ACTING PRESIDENT WRIGHT: Senator 13 Paterson. 14 SENATOR PATERSON: Thank you very 15 much, Senator Volker. 16 Mr. President, on the bill. 17 ACTING PRESIDENT WRIGHT: Senator 18 Paterson, on the bill. 19 SENATOR PATERSON: I understand 20 what Senator Volker is saying, but there was 21 still a very serious and tragic incident 22 happened in my office a couple of years ago and 23 one of the employees in the building was unable 9328 1 to work and is still unable to work, on Work 2 men's Compensation and, as a result of that 3 case, I remember suggesting to this individual 4 that because they couldn't really sue the state 5 on this issue, they had to find the manufacturer 6 or somebody that was responsible for that defect 7 and, in a sense, I was probably making a 8 suggestion that may really have been the reason 9 that the engineers and professionals have this 10 problem. 11 It was a suggestion that, in a 12 sense, you draw everybody into the lawsuit as 13 much as possible and what Senator Volker is 14 trying to do through this legislation is to 15 limit it. 16 I just think this bill has gone a 17 little bit too far. Seven years is a very short 18 period of time. There are some buildings that 19 you wouldn't even know what the defect is 20 because they haven't even rented the space out 21 in the first seven years, and I think that to 22 some degree what this legislation does is, it 23 really cuts off all of the potential suits and 9329 1 raises a very high standard for which the suit 2 can be commenced, and that is the accomplishment 3 of the certificate of merit, which is not as 4 easy as I think the sponsor suggests. 5 I understand that what is trying 6 to be accomplished may be a cap on recovery or 7 something, but there are, in my opinion, some 8 serious questions with this bill. 9 Thank you. 10 ACTING PRESIDENT WRIGHT: Chair 11 recognizes Senator Abate. 12 SENATOR ABATE: Would Senator 13 Volker yield to a question? 14 ACTING PRESIDENT WRIGHT: Senator 15 Volker, will you yield? 16 SENATOR VOLKER: Yes. 17 ACTING PRESIDENT WRIGHT: Senator 18 yields. 19 SENATOR ABATE: The questions I 20 asked were really trying to explore the merits 21 of this bill and to clarify the language of the 22 bill. I came to this chamber really undecided 23 about the language of the bill. 9330 1 You said earlier, Senator Volker, 2 that no other group gets protection such as 3 this, or someone else said that on the floor. 4 Is there any other legislation that provides 5 similar protection? 6 SENATOR VOLKER: You're talking 7 about certificate of merit. That's the same 8 thing. The certificate of merit is involved in 9 medical and dental malpractice. 10 ACTING PRESIDENT WRIGHT: Senator 11 Abate. 12 SENATOR VOLKER: Because one of 13 the ways, if I might just say it, and the issue 14 -- and I remember it because I was here. I've 15 been here long enough to remember a lot of 16 things, I guess, but I remember as that issue 17 developed, and the issue developed because of 18 some of these various -- these same reasons in 19 fact, the enormous costs and the fact that in 20 the long haul, you were going to have to, in a 21 trial, bring in this kind of proof, and one of 22 the reasons for bringing in the certificate of 23 merit and medical and dental malpractice was to 9331 1 cut down the numbers of defendants and the cost 2 and, in effect, to exclude some of the liability 3 companies that were dragged through some of 4 these suits maybe for eight or ten years and 5 then find out that they had very little or 6 nothing to do with the actual negligence action, 7 and I think what you're trying to do here is - 8 and the certificate of merit, quite clearly, in 9 the long run could help some of the so-called 10 plaintiffs because they had found out very early 11 where they stand on a number of these kinds of 12 issues. 13 ACTING PRESIDENT WRIGHT: Senator 14 Abate. 15 SENATOR ABATE: Maybe I'm missing 16 a point, but I thought this legislation is not 17 mandating a certificate of merit but mandating a 18 statute of repose - 19 SENATOR VOLKER: That's right. 20 Yes. 21 SENATOR ABATE: -- which would, 22 in effect, act as a statute of limitation - 23 SENATOR VOLKER: That's true. 9332 1 SENATOR ABATE: -- in certain 2 cases prevent an injured tenant or consumer from 3 bringing suit. 4 SENATOR VOLKER: Correct. 5 SENATOR ABATE: So I see -- and 6 that's how I'm troubled. I'm sympathetic 7 towards many of these architects and engineers 8 that have to stay in business, and their concern 9 is 30, 40 years down the road, a design of their 10 building, why are they held liable, and the cost 11 of their doing business is prohibitive because 12 of that. 13 But I guess my problem is -- I'm 14 further concerned -- is there no distinction 15 between negligence and gross negligence here? 16 So if, in fact, nine years have elapsed, and 17 under this current legislation I am a consumer, 18 whether I'm a tenant of the building, either a 19 commercial tenant or a residential tenant, and 20 in fact the design -- or the architect was 21 engaged in gross negligence. We're not even 22 talking about simple negligence. I would, as a 23 consumer, be foreclosed from entering into any 9333 1 lawsuits. 2 So while I support the concept, 3 I'm very concerned on how broad this legislation 4 is, so I'm very troubled by it and I'm trying to 5 work out where I should be. 6 Would you consider down the road 7 separating out gross negligence from this? 8 SENATOR VOLKER: I don't know how 9 you would do that, Senator. Let me just say is 10 that this is -- this is -- you are smack up 11 against the problem that is always there with 12 statute of limitations. 13 Remember, in the criminal area, 14 we only exclude one crime from the statute of 15 limitations and that's murder. In many other 16 very serious crimes, we have a statute; and if 17 you can uncover evidence after seven years, you 18 can't bring an action against a person, for 19 instance, for some very serious crimes. 20 The truth is the same in other 21 civil statutes of limitations; for instance, 22 contracts, which a lot of these cases actually 23 revolve around contract which is a six-year 9334 1 statute of limitations, keep in mind because 2 contracts -- when they sue, they not only sue 3 for negligence, they also sue on the contract, 4 generally speaking, one way or another, except 5 that they may be barred because of the six-year 6 statute of limitations. So you - 7 My counsel just points out to me, 8 if you allow gross negligence or allow that to 9 be an exclusion on the statute, you might just 10 as well not have the statute because everyone is 11 going to allege gross negligence; and then the 12 issue at the trial obviously would be, "What is 13 the difference between regular negligence and 14 gross negligence?" and you won't really have 15 done anything. 16 So I think if you are going to 17 develop a statute of limitations or statute of 18 repose, whatever you want to call it, you have 19 to set some limitation and the way they arrive 20 at that limitation, as I said, was a study of 21 the cases, and about 85 percent of the cases 22 involving lawsuits against architects, 23 engineers, and professional contractors, and so 9335 1 forth, involve the first seven years of the 2 building's construction and, Senator, I would 3 say to you, as time has gone on, the observation 4 that is done, the inspections that are done on 5 buildings and on bridges, and so forth, has 6 become so much more sophisticated that the 7 possibility of something totally escaping for 8 more than seven years is extremely remote, and 9 it seems to me that we have to set some sort of 10 determination for the common good, and I think 11 that's what this is about. 12 This is not about architects' and 13 engineers' fees as such. This is about what the 14 public is paying because of the broad liability, 15 and it is a public issue, obviously, of epic 16 proportions. It's being debated in Washington 17 right now, and -- as I think we all know, and 18 it's -- so that's what this is really about. 19 ACTING PRESIDENT WRIGHT: Senator 20 Abate. Do you continue to yield, Senator 21 Volker? 22 SENATOR VOLKER: Sure. 23 ACTING PRESIDENT WRIGHT: Senator 9336 1 yields. 2 SENATOR ABATE: Clearly, one of 3 the issues is the consumer, the smaller person 4 on this ladder who may be foreclosed from engag 5 ing a lawsuit, but there's another constituent, 6 the individual that owns the building, the real 7 estate owner. What positions have they taken on 8 this bill? 9 SENATOR VOLKER: Frankly, 10 Senator, we haven't heard from them. 11 Keep in mind that the owner of 12 the building is in a contract situation, though, 13 so that there is already a six-year statute of 14 limitations in that area, so I guess the answer 15 is that this bill, as such, wouldn't have a 16 major impact on them, except somebody could 17 argue -- I suppose someone could argue it would 18 actually extend the statute of limitations from 19 six to seven years if you really followed this 20 through and technically another year after 21 that. Of course, if it was strictly a 22 contractual kind of thing, it would be barred by 23 six years but, if there was something that 9337 1 occurred in that seventh year, certainly that 2 owner of that building would try somehow to get 3 covered under this statute, because obviously it 4 would be advantageous to him. 5 SENATOR ABATE: No further 6 questions. 7 ACTING PRESIDENT WRIGHT: Senator 8 Solomon. 9 SENATOR SOLOMON: Mr. President. 10 If Senator Volker will yield? 11 ACTING PRESIDENT WRIGHT: Senator 12 Volker, will you yield? 13 SENATOR VOLKER: Yes. 14 ACTING PRESIDENT WRIGHT: Senator 15 yields. 16 SENATOR SOLOMON: Senator, do you 17 have any information at hand which indicates 18 what percentage of actions are commenced within 19 seven years - 20 SENATOR VOLKER: Yes. 21 SENATOR SOLOMON: -- for 22 architectural malpractice? 23 SENATOR VOLKER: I think that was 9338 1 the -- yeah, 87. If you add the extra year, 2 that is seven years and then the extra year, it 3 becomes between 85 and 90 percent. Now, 85 4 percent is the number that they used of actions 5 that are commenced within seven years and then 6 there is a -- there is a -- if you add the one 7 extra year, it then moves up another two or 8 three percent, so that you're actually talking 9 close to 90 percent of the actions would be 10 covered by the seven-year statute, plus the 11 additional year. 12 SENATOR SOLOMON: If the 13 additional year is caused by the certificate of 14 merit requirement? 15 SENATOR VOLKER: If the injury 16 occurs during the seventh year - 17 SENATOR SOLOMON: You have 18 another year. 19 SENATOR VOLKER: -- then you have 20 one more year. 21 SENATOR SOLOMON: From that date 22 of injury. Okay. 23 ACTING PRESIDENT WRIGHT: Senator 9339 1 Solomon. 2 SENATOR SOLOMON: If Senator 3 Volker will yield? 4 SENATOR VOLKER: Sure. 5 ACTING PRESIDENT WRIGHT: Senator 6 Volker, will you yield to one further question? 7 SENATOR VOLKER: Sure. 8 ACTING PRESIDENT WRIGHT: Senator 9 yields. 10 SENATOR SOLOMON: I'm inclined to 11 support this bill. The thing that worries me 12 more than anything else is the certificate of 13 merit. If you could tell me why there was a 14 need or they felt that there was a need for the 15 certificate of merit in this case, I would 16 appreciate that. 17 SENATOR VOLKER: Well, I think 18 the certificate of merit in the medical 19 malpractice legislation -- by the way, there are 20 certain provisions in the bill that would allow 21 for some latitude in providing a certificate of 22 merit, if it's unable to be obtained or 23 whatever. If you look at the bill, you will see 9340 1 that there's some limitations there so that you 2 can't have somebody that's -- for one reason or 3 another, it's not possible or unable to do it, 4 it wouldn't stop and exclude somebody from being 5 sued, but the reason for it is, very honestly, 6 the same reason as in medical and dental mal 7 practice and that is that you have a situation 8 here where you have, very often, multiple 9 defendants involved, and very often the 10 professional architect or engineer is not even 11 -- may not even be the source of any kind of 12 negligence at all, and the reason for the 13 certificate of merit is to determine early, 14 based on some real scientific and based on some 15 professional information, whether that 16 individual or those individuals actually have 17 any place in the lawsuit, and it not only 18 obviously makes it easier for the professional 19 engineers and architects, and so forth, but it 20 allows the insurance companies that are 21 obviously involved with those people to exit 22 early from the suit if it's possible. 23 The other part of the thing is, 9341 1 as you well know, if it turns out that there 2 isn't any real evidence of their potential 3 involvement, the people who are bringing the 4 suit are going to have that evidence anyway as 5 part of the certificate of merit. 6 ACTING PRESIDENT WRIGHT: Senator 7 Dollinger. 8 SENATOR DOLLINGER: Will the 9 sponsor yield to just a couple of questions? 10 ACTING PRESIDENT WRIGHT: Senator 11 Volker, will you yield? 12 SENATOR VOLKER: Sure. 13 ACTING PRESIDENT WRIGHT: Senator 14 yields. 15 SENATOR DOLLINGER: Senator, my 16 concern with this bill is the possibility of 17 contractual indemnification from the owner of 18 the building -- or to the owner of the building 19 from the architect. I note in your bill on page 20 2, it says that "No action for recovery of 21 damages or injury to the person or for wrongful 22 death or for damaged property nor any action for 23 contribution or indemnity for damages sustained 9342 1 on account of the injury." 2 My question is this: Does that 3 language void an action brought by the owner 4 against the architect on the basis of a 5 contractual obligation to indemnify which would 6 last more than six years? For example, as you 7 probably know, Senator, when I hire Senator 8 Abate to be my architect and I'm designing a 9 tower, we agree that as part of her 10 responsibilities to me she will indemnify me in 11 the event of Senator Onorato falling through the 12 stairwell, and that could happen 20 years from 13 now, but the contractual obligation to indemnify 14 me still exists. 15 He brings an action against me as 16 the owner. I say, "You're right. I probably 17 should have maintained it," but I also claim it 18 is a flaw on the part of Senator Abate's design 19 and she has posted a policy with me that's good 20 20 years into the future. 21 My question is this: Does my 22 ability to implead or to ask for contribution or 23 indemnification from the architect, which is a 9343 1 contractual obligation, is that voided by this 2 statute? 3 SENATOR VOLKER: No. First of 4 all, I represent Senator Onorato, but on page 5 2 - 6 SENATOR DOLLINGER: We won't pay 7 those exorbitant fees, Senator. 8 SENATOR VOLKER: On page 2 -- now 9 that we're getting paid, at least we're getting 10 something for this. 11 Page 2, Section 3, "The 12 limitations prescribed by this section shall not 13 apply to actions brought: (1) in contractual or 14 professional privity with the engineer, 15 architect, surveyor," and so forth, and it goes 16 on in that section, and that's why that section 17 is there, so that just the scenario that you 18 just suggested would not occur if this bill 19 would become law. 20 SENATOR DOLLINGER: So the owners 21 of property can protect the eventual injured 22 user as well as their own liability by 23 contractual indemnification from the - 9344 1 SENATOR VOLKER: Exactly. 2 SENATOR DOLLINGER: Okay. I 3 think that's critical, at least from my 4 understanding, because that would both give the 5 owner the possibility of obtaining a longer term 6 coverage as well as providing additional 7 protection for the eventual user who might be 8 hurt. 9 My second question is - 10 ACTING PRESIDENT WRIGHT: Senator 11 Dollinger. 12 SENATOR DOLLINGER: I brought 13 this up in committee, and I just want - 14 ACTING PRESIDENT WRIGHT: Senator 15 Volker, do you continue to yield? 16 SENATOR VOLKER: Why, certainly. 17 ACTING PRESIDENT WRIGHT: Senator 18 yields. 19 SENATOR DOLLINGER: Thank you, 20 Mr. President. 21 SENATOR ONORATO: Before you go 22 on to the next question, do I get paid? 23 SENATOR VOLKER: Whichever one of 9345 1 us represents you, I'm sure you'll get paid. 2 ACTING PRESIDENT WRIGHT: Senator 3 Onorato, we resolved that question earlier. 4 Senator Volker. 5 SENATOR DOLLINGER: ... plaintiff, 6 Senator Volker. We found another one. 7 My concern with the certificate 8 of merit is, what happens -- and, again, if you 9 can just address this in the bill on the record, 10 perhaps even just for the purposes of 11 establishing some kind of statutory history. 12 What happens to the lawyer who gets the case and 13 says, "I need documents from the defendant, from 14 the punitive defendant, either from the 15 architect or from the owner in order to be able 16 to give them to my expert so that my expert will 17 render the certificate of merit opinion 18 necessary to bring the action?" Just, if you 19 could, describe for me under the bill how you 20 address that specific problem. 21 SENATOR VOLKER: That's why we 22 put it on page 3 -- and as my counsel points out 23 to me, it's also current law. But we added in 9346 1 -- and I think it's 3, "The attorney was unable 2 to obtain the consultation required in this 3 subdivision, because the attorney had made three 4 separate good faith attempts with three separate 5 physicians and as architects or professional 6 engineers." 7 In other words, we have a -- and 8 if you look at that whole section, it relates to 9 the need for the certificate of merit but allows 10 the attorney to have some way so that if he is 11 unable to obtain it, even though he attempts to, 12 that the attorney would not be barred from 13 continuing with the action. 14 SENATOR DOLLINGER: Just so I 15 understand that, Mr. President, if I can clarify 16 that with Senator Volker? 17 ACTING PRESIDENT WRIGHT: Senator 18 Volker, do you continue to yield? 19 SENATOR VOLKER: Certainly. 20 ACTING PRESIDENT WRIGHT: The 21 Senator yields. 22 SENATOR DOLLINGER: The scenario 23 that I just described; that is, I can't get from 9347 1 the defendant the documents and records 2 necessary to get my architect or engineer to 3 evaluate the work of Senator Abate, or whoever 4 the architect or engineer is, if I can show that 5 I made a good faith attempt to get the defendant 6 -- not just any other party, but the 7 defendant -- to give me the documents necessary 8 to file the -- prepare the certificate of merit, 9 under those circumstances, I would, in essence, 10 have a waiver from this provision to provide it 11 prior to the litigation and would have a 12 sufficient opportunity to get discovery from the 13 defendants in order to determine the merits of 14 going forward. 15 SENATOR VOLKER: Absolutely. 16 That's on page 4 of the bill, the last page of 17 the bill. That talks about the attorney makes a 18 claim under paragraph 3, and the attorney was 19 unable to obtain the required consultation with 20 the architect or professional engineer. The 21 court may, upon request of the defendant made 22 prior to compliance by the plaintiff through 23 provisions, and so forth, require the attorney 9348 1 to divulge to the court the names, and so forth, 2 refusing such consultation. 3 In other words, what the language 4 does in this bill is that if the attorney is un 5 able to comply with the certificate of merit be 6 cause of either the -- being unable to get the 7 professionals involved to give him the informa 8 tion he needs or he can't deal with the defense 9 attorney -- or the -- I mean the -- yes, the 10 defense attorney, then we have a way in this 11 bill that you would not exclude the possibility 12 of the action because you couldn't get the 13 certificate of merit. 14 SENATOR DOLLINGER: Mr. 15 President, just on the bill. 16 ACTING PRESIDENT WRIGHT: Senator 17 Dollinger. 18 SENATOR DOLLINGER: Those are 19 really the two major concerns I have with this 20 bill. I appreciate Senator Volker's answer. It 21 seems to me that if you got contractual 22 indemnity that this bill does not affect the 23 right of an owner to obtain contractual 9349 1 indemnity for a thousand years, if necessary. 2 That principle will protect the eventual user, 3 will also provide protection from the owner and, 4 as I hear Senator Volker explaining the 5 certificate of merit, we have also provided that 6 in the event he doesn't get documents from a 7 reluctant defendant or a noncooperative 8 defendant, be it architect or owner, the 9 plaintiff will nonetheless have the ability to 10 file the action without the certificate of merit 11 and then have a period of time in which, based 12 on court disclosure, disclosure of documents and 13 disclosure of evidence, that the plaintiff will 14 have an opportunity to then obtain the 15 certificate, file it with the court and then the 16 action can go forward. 17 I think that that kind of 18 pretrial, extensive discovery up front is, at 19 least from my point of view, good legal practice 20 and that lawyers ought to be evaluating cases 21 trying to get as much information as possible 22 prior to the case, both for their own good 23 because they don't want to put a lot of fees 9350 1 into a contingent fee case that may not produce 2 a result, but this seems to be a balancing 3 between the two of those. 4 I have to admit this is a close 5 question for me. I don't like the concept of 6 cutting off people's ability to recover but, 7 frankly, under the circumstances, this seems to 8 me to be a reasoned step. It's a close call for 9 me. I'm probably going to vote in favor of it. 10 ACTING PRESIDENT WRIGHT: Read 11 the last section. 12 THE SECRETARY: Section 6. This 13 act shall take effect on the first day of 14 January. 15 ACTING PRESIDENT WRIGHT: Call 16 the roll. 17 (The Secretary called the roll.) 18 ACTING PRESIDENT WRIGHT: 19 Results. 20 THE SECRETARY: Those recorded in 21 the negative on Calendar 241 are Senators Abate, 22 Connor, Paterson, Smith and Waldon. Ayes 53, 23 nays 5. 9351 1 ACTING PRESIDENT WRIGHT: The 2 bill is passed. 3 Senator Kuhl, what's your 4 pleasure? 5 SENATOR KUHL: Yes, Mr. 6 President. Would you call up Calendar 702, 7 please. 8 ACTING PRESIDENT WRIGHT: 9 Calendar 702. Secretary will read. 10 SENATOR PATERSON: Mr. President. 11 ACTING PRESIDENT WRIGHT: Senator 12 Paterson. 13 SENATOR PATERSON: This bill was 14 laid aside by Senator Gold. Can we hold it just 15 a moment? He is in the Finance Committee. 16 ACTING PRESIDENT WRIGHT: Senator 17 Kuhl. 18 SENATOR KUHL: Mr. President. 19 Would you lay that bill aside awaiting Senator 20 Gold's returning to the chamber, and could you 21 call up Calendar Number 922, please. 22 ACTING PRESIDENT WRIGHT: Okay. 23 The bill is laid aside. 9352 1 Calendar 922. The Secretary will 2 read. 3 THE SECRETARY: On page 27, 4 Calendar Number 922, by Senator Cook, Senate 5 Print 2964, an act to amend the Tax Law, in 6 relation to imposing a sales and compensating 7 use tax. 8 ACTING PRESIDENT WRIGHT: Senator 9 Waldon has requested an explanation. 10 Senator Cook. 11 SENATOR COOK: Mr. President. 12 This bill simply provides that items sold within 13 prison commissaries would be sales taxable as 14 are items sold any place else in the state. 15 SENATOR WALDON: Would the 16 Senator yield to a question or two? 17 SENATOR COOK: Sure. 18 ACTING PRESIDENT WRIGHT: Senator 19 Cook will yield. 20 SENATOR WALDON: Senator, are you 21 saying that there is no sales tax now on these 22 items? 23 SENATOR COOK: That's correct. 9353 1 SENATOR WALDON: And if I may 2 continue, Mr. President? 3 ACTING PRESIDENT WRIGHT: You 4 may. 5 SENATOR WALDON: Are you also 6 saying that the cost of each item would go up by 7 the amount of the tax per item? 8 SENATOR COOK: Yes, Senator. 9 SENATOR WALDON: I don't want to 10 -- if I may continue, Mr. President? 11 ACTING PRESIDENT WRIGHT: You 12 may, Senator Waldon. 13 SENATOR WALDON: I don't want to 14 appear inane, but do you have any idea -- and 15 ignorant. Do you have any idea how much each 16 prisoner makes per day while in correctional 17 facilities of the State of New York? 18 SENATOR COOK: Mr. President, I'm 19 not sure that's relevant. I don't think we 20 charge sales tax in stores depending upon what 21 the income is of the people who are buying the 22 items. I think it's taxable because it's 23 taxable. 9354 1 SENATOR WALDON: That wasn't - 2 if I may continue, Mr. President? That wasn't 3 the question. 4 ACTING PRESIDENT WRIGHT: Senator 5 Waldon. 6 SENATOR COOK: I guess, Mr. 7 President, my question is I don't know what the 8 relevance of the question is to the issue at 9 hand. 10 SENATOR WALDON: Are you saying 11 -- Mr. President, if I may continue? 12 ACTING PRESIDENT WRIGHT: 13 Proceed, Senator Waldon. 14 SENATOR WALDON: Are you saying, 15 Senator, that despite your perception of the 16 relevance of the question that I've asked, you 17 refuse to ask it because I asked it? 18 SENATOR COOK: Well, no, Senator, 19 no. The point is that I don't know. I suppose 20 it varies on what the particular prisoner does. 21 I assume there are some prisoners who work 22 rather regularly, for example, in the kitchen 23 and may receive income on an ongoing basis or 9355 1 maybe other people do maintenance jobs and don't 2 work quite as many hours and their income 3 varies. 4 The point is that, if you are 5 buying something in a store, nobody in the store 6 asks you what your income is. They tell you 7 this is the price on the item, and this is the 8 sales tax on it. So I just don't understand the 9 relevance. 10 SENATOR WALDON: If I may 11 continue, Mr. President. Will the Senator 12 continue to yield? 13 ACTING PRESIDENT WRIGHT: Senator 14 Cook, do you continue to yield? 15 SENATOR COOK: Sure. 16 ACTING PRESIDENT WRIGHT: The 17 Senator yields. Senator Waldon. 18 SENATOR WALDON: The learned 19 Senator from Delaware County, can you tell us 20 how much this would increase the coffers of the 21 various counties in which these - 22 SENATOR COOK: Senator, I think 23 the number we have in total is -- I'm sorry. 9356 1 The State's share is estimated at $640,000. 2 Counties, for the most part, collect a slightly 3 smaller sales tax than does the state. So my 4 guess is that the gross amount of this tax 5 collected by both the state and the counties 6 would be probably a million dollars. 7 ACTING PRESIDENT WRIGHT: Senator 8 Waldon. 9 SENATOR WALDON: Thank you very 10 much, Mr. President. 11 Thank you, Senator. 12 ACTING PRESIDENT WRIGHT: There 13 is a local fiscal impact note at the desk. 14 Read the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect 30 days after it shall 17 have become a law. 18 ACTING PRESIDENT WRIGHT: Call 19 the roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes - 22 SENATOR COOK: Mr. President, may 23 I explain my vote? 9357 1 ACTING PRESIDENT WRIGHT: Chair 2 recognizes Senator Cook to explain his vote. 3 SENATOR COOK: Mr. President. 4 With apologies to Senator Waldon, I do find I 5 have a local fiscal impact note. The local 6 impact is estimated at $480,000. 7 With that, I cast my vote in the 8 affirmative. 9 ACTING PRESIDENT WRIGHT: Senator 10 Cook is recorded in the affirmative. 11 Results. 12 THE SECRETARY: Ayes 56, nays 2, 13 Senators Espada and Waldon recorded in the 14 negative. 15 ACTING PRESIDENT WRIGHT: The 16 bill is passed. 17 Senator Kuhl, what's your 18 pleasure? We'll stand at ease for a few 19 minutes? No. 20 SENATOR KUHL: Any housekeeping 21 at the desk to be taken care of? Why don't we 22 take that up right now. 23 ACTING PRESIDENT WRIGHT: Senator 9358 1 Farley. 2 SENATOR FARLEY: Thank you, Mr. 3 President. 4 On behalf of Senator Stafford, 5 Mr. President, I wish to call up his bill, Print 6 Number 4217, which was recalled from the 7 Assembly and which is now at the desk. 8 ACTING PRESIDENT WRIGHT: 9 Secretary will read. 10 THE SECRETARY: Calendar Number 11 1032, by Senator Stafford, Senate Print 4217, an 12 act authorizing the Town of Dannemora, Clinton 13 County, to discontinue use as parklands. 14 SENATOR FARLEY: Mr. President, I 15 now move to reconsider the vote by which this 16 passed. 17 ACTING PRESIDENT WRIGHT: The 18 Secretary will call the roll on reconsideration. 19 (The Secretary called the roll on 20 reconsideration.) 21 THE SECRETARY: Ayes 58. 22 ACTING PRESIDENT WRIGHT: The 23 bill is before the house. 9359 1 Senator Farley. 2 SENATOR FARLEY: Mr. President, I 3 now offer the following amendments to the bill. 4 ACTING PRESIDENT WRIGHT: 5 Amendments received. 6 Senator Paterson. 7 SENATOR PATERSON: Mr. President, 8 may we open the roll on Calendars Number 728 and 9 1269 to allow Senator Waldon to vote? I'm 10 sorry, Mr. President. We haven't done Calendar 11 1269 yet. 12 ACTING PRESIDENT WRIGHT: 13 Senator, I'm informed at the desk that neither 14 one is on the active list or passed at this 15 point in time yet. 16 SENATOR PATERSON: We haven't 17 brought them up yet. 18 ACTING PRESIDENT WRIGHT: That is 19 correct. 20 SENATOR PATERSON: I'm sorry, Mr. 21 President. 22 (Whereupon, at 1:15 p.m., the 23 Senate was briefly at ease.) 9360 1 ACTING PRESIDENT WRIGHT: The 2 Senate will come to order. 3 Senator Kuhl. 4 SENATOR KUHL: Yes, Mr. 5 President. There has been placed on the list of 6 every member -- member's desk -- excuse me, on 7 the desk of every member, a list, what's called 8 an active list. It's a supplemental active list 9 to the one which we're very, very close to 10 completing, and what I would like to do is to 11 have you take up the second active list for the 12 day on a noncontroversial call. 13 So if you could have the 14 Secretary begin the active list for Calendar 15 Number 689, that would be fine. 16 ACTING PRESIDENT WRIGHT: 17 Secretary will read. 18 THE SECRETARY: On page 17, 19 Calendar 689, by Senator Trunzo, Senate Print 20 3577A, an act to amend the Civil Service Law, in 21 relation to providing for binding arbitration. 22 ACTING PRESIDENT WRIGHT: Read 23 the last section. 9361 1 THE SECRETARY: Section 4. This 2 act shall take effect immediately. 3 ACTING PRESIDENT WRIGHT: Call 4 the roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes 58. 7 ACTING PRESIDENT WRIGHT: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 1063, by Senator Maziarz. 11 SENATOR SMITH: Lay it aside, 12 please. 13 ACTING PRESIDENT WRIGHT: Lay it 14 aside. 15 THE SECRETARY: Calendar Number 16 1097, by Senator Tully. 17 SENATOR SMITH: Lay it aside, 18 please. 19 ACTING PRESIDENT WRIGHT: Lay it 20 aside, please. 21 THE SECRETARY: Calendar Number 22 1131, by Senator Maziarz, Senate Print 4435B, an 23 act to amend the Vehicle and Traffic Law, in 9362 1 relation to fees received by county clerks. 2 ACTING PRESIDENT WRIGHT: Read 3 the last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect on the 120th day. 6 ACTING PRESIDENT WRIGHT: Call 7 the roll. 8 (The Secretary called the roll.) 9 THE SECRETARY: Ayes 58. 10 ACTING PRESIDENT WRIGHT: The 11 bill is passed. 12 THE SECRETARY: Calendar Number 13 1170, by Senator Nozzolio, Senate Print 5017A, 14 an act to amend the Correction Law, in relation 15 to providing notification to law enforcement 16 officials. 17 ACTING PRESIDENT WRIGHT: Read 18 the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect immediately. 21 ACTING PRESIDENT WRIGHT: Call 22 the roll. 23 (The Secretary called the roll.) 9363 1 THE SECRETARY: Ayes 58. 2 ACTING PRESIDENT WRIGHT: The 3 bill is passed. 4 THE SECRETARY: Calendar Number 5 1187. 6 SENATOR SMITH: Lay it aside, 7 please. 8 ACTING PRESIDENT WRIGHT: Lay it 9 aside. 10 THE SECRETARY: Calendar Number 11 1259, by Senator Saland, Senate Print 4746A, an 12 act in relation to authorizing the city of 13 Beacon, county of Dutchess, to opt out of the 14 provisions of Chapter 602. 15 SENATOR SMITH: Lay it aside, 16 please. 17 ACTING PRESIDENT WRIGHT: Lay it 18 aside. 19 THE SECRETARY: Calendar Number 20 1261, by Senator Holland, Senate Print 932, an 21 act to amend the Mental Hygiene Law, in relation 22 to the placement of state-owned community 23 residences. 9364 1 ACTING PRESIDENT WRIGHT: Read 2 the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT WRIGHT: Call 6 the roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 58. 9 ACTING PRESIDENT WRIGHT: The 10 bill is passed. 11 THE SECRETARY: Calendar Number 12 1262, by Senator Kuhl. 13 SENATOR SMITH: Lay it aside, 14 please. 15 ACTING PRESIDENT WRIGHT: The 16 bill is laid aside. 17 THE SECRETARY: Calendar Number 18 1265, by Senator Kuhl, Senate Print 5293, an act 19 to amend the Vehicle and Traffic Law, in 20 relation to permitting the use of certain racks. 21 ACTING PRESIDENT WRIGHT: Read 22 the last section. 23 THE SECRETARY: Section 2. This 9365 1 act shall take effect immediately. 2 ACTING PRESIDENT WRIGHT: Call 3 the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 58. 6 ACTING PRESIDENT WRIGHT: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 1266, by Senator LaValle. 10 SENATOR SMITH: Lay it aside, 11 please. 12 ACTING PRESIDENT WRIGHT: Lay it 13 aside. 14 THE SECRETARY: Calendar Number 15 1269, by Senator Holland, Senate Print 2044, an 16 act to amend the Social Services Law, in 17 relation to recovery of certain medical 18 assistance expenses. 19 SENATOR SMITH: Lay it aside, 20 please. 21 ACTING PRESIDENT WRIGHT: Lay it 22 aside. 23 THE SECRETARY: Calendar Number 9366 1 1270, by Senator Velella, Senate Print 2586, an 2 act to amend Chapter 576 of the Laws of 1975, 3 relating to authorizing the Commissioner of 4 Education. 5 SENATOR SMITH: Lay it aside, 6 please. 7 ACTING PRESIDENT WRIGHT: Lay it 8 aside. 9 THE SECRETARY: Calendar Number 10 1271, by Senator Santiago - 11 ACTING PRESIDENT WRIGHT: There 12 is a home rule message at the desk. 13 THE SECRETARY: -- Senate Print 14 3306, an act authorizing the City of New York to 15 reconvey its interest in certain real property 16 acquired by in rem tax foreclosure in the 17 borough of Brooklyn. 18 ACTING PRESIDENT WRIGHT: Read 19 the last section. 20 THE SECRETARY: Section 5. This 21 act shall take effect - 22 ACTING PRESIDENT WRIGHT: Call 23 the roll. 9367 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes 58. 3 ACTING PRESIDENT WRIGHT: The 4 bill is passed. 5 THE SECRETARY: Calendar Number 6 1273, by Senator Kuhl, Senate Print 3831, an act 7 providing for Thomas A. Cassidy credit for 8 past - 9 SENATOR SMITH: Lay it aside, 10 please. 11 ACTING PRESIDENT WRIGHT: Lay it 12 aside. 13 THE SECRETARY: Calendar Number 14 1274, by Senator Hannon, Senate Print 3866, an 15 act to amend the Education Law, in relation to 16 experimental alternative institutional support 17 programs. 18 ACTING PRESIDENT WRIGHT: There 19 is a local fiscal impact note at the desk. 20 Read the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect July 1. 23 ACTING PRESIDENT WRIGHT: Call 9368 1 the roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 58. 4 ACTING PRESIDENT WRIGHT: The 5 bill is passed. 6 THE SECRETARY: Calendar Number 7 1275, by Senator Kuhl, Senate Print 3868, an act 8 to require the New York State and local 9 employees retirement system to accept retirement 10 applications. 11 SENATOR SMITH: Lay it aside, 12 please. 13 ACTING PRESIDENT WRIGHT: Lay it 14 aside. 15 THE SECRETARY: Calendar Number 16 1277, by Senator Maltese, Senate Print 3910, an 17 act to amend the Tax Law, in relation to 18 exempting certain parts, tools, supplies and 19 services relating to tangible personal property. 20 ACTING PRESIDENT WRIGHT: There 21 is a local fiscal impact note at the desk. 22 Read the last section. 23 THE SECRETARY: Section 9. This 9369 1 act shall take effect immediately. 2 ACTING PRESIDENT WRIGHT: Call 3 the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 58. 6 ACTING PRESIDENT WRIGHT: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 1279, by Senator Seward, Senate Print 4568, an 10 act to amend the Civil Service Law, in relation 11 to granting residents of the city of Ithaca in 12 the town of Ithaca a preference in appointment. 13 ACTING PRESIDENT WRIGHT: Read 14 the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT WRIGHT: Call 18 the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 58. 21 ACTING PRESIDENT WRIGHT: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 9370 1 1280, by Senator Libous, Senate Print 4630, an 2 act to amend the Mental Hygiene Law, in relation 3 to limiting the use of state funds for payment 4 of compensation to certain officers and 5 employees of providers of services. 6 ACTING PRESIDENT WRIGHT: Read 7 the last section. 8 THE SECRETARY: Section 4. This 9 act shall take effect immediately. 10 ACTING PRESIDENT WRIGHT: Call 11 the roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes 58. 14 ACTING PRESIDENT WRIGHT: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 1282, by Member of the Assembly Brennan, 18 substituted earlier today, Assembly Print 2788, 19 an act to amend the Mental Hygiene Law, in 20 relation to the employees of the Mental Hygiene 21 Legal Service. 22 ACTING PRESIDENT WRIGHT: Read 23 the last section. 9371 1 THE SECRETARY: Section 2. This 2 act shall take effect immediately. 3 ACTING PRESIDENT WRIGHT: Call 4 the roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes 58. 7 ACTING PRESIDENT WRIGHT: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 1284, by Member of the Assembly Dinowitz, 11 substituted earlier today, Assembly Print 5975, 12 an act to amend the Mental Hygiene Law, in 13 relation to service as president of boards of 14 visitors of hospitals and schools. 15 SENATOR SMITH: Lay it aside, 16 please. 17 ACTING PRESIDENT WRIGHT: Lay it 18 aside. 19 THE SECRETARY: 1285, by Senator 20 Hannon, Senate Print 5026A, an act to amend the 21 Executive Law, in relation to enacting the 22 engineers' and architects' Good Samaritan Act. 23 SENATOR SMITH: Lay it aside. 9372 1 ACTING PRESIDENT WRIGHT: Lay it 2 aside. 3 THE SECRETARY: Calendar Number 4 1286, by Senator Saland, Senate Print 5106A, an 5 act to amend the Social Services Law and the 6 Education Law, in relation to the protection of 7 pupils in public school settings from abuse and 8 maltreatment. 9 SENATOR SMITH: Lay it aside, 10 please. 11 ACTING PRESIDENT WRIGHT: Lay it 12 aside. 13 THE SECRETARY: Calendar Number 14 1288, by Senator Maltese, Senate Print 5273, an 15 act to amend the Vehicle and Traffic Law, in 16 relation to parking violations and red light 17 camera violations. 18 ACTING PRESIDENT WRIGHT: Read 19 the last section. 20 THE SECRETARY: Section 3. This 21 act shall take effect immediately. 22 ACTING PRESIDENT WRIGHT: Call 23 the roll. 9373 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes 58. 3 ACTING PRESIDENT WRIGHT: The 4 bill is passed. 5 THE SECRETARY: Calendar Number 6 1289, by Senator Cook, Senate Print 5282, an act 7 to provide for retirement service credit in the 8 New York State and local police and fire 9 retirement system for Richard C. Paolino. 10 ACTING PRESIDENT WRIGHT: There 11 is a home rule message at the desk. 12 Read the last section. 13 THE SECRETARY: Section 3. This 14 act shall take effect immediately. 15 ACTING PRESIDENT WRIGHT: Call 16 the roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 58. 19 ACTING PRESIDENT WRIGHT: The 20 bill is passed. 21 THE SECRETARY: Calendar Number 22 1290, by Senator Rath, Senate Print 5359, an act 23 to amend the Civil Practice Law and Rules and 9374 1 the Executive Law, in relation to extending the 2 statute of limitations on actions by a victim. 3 SENATOR DOLLINGER: Lay it aside. 4 ACTING PRESIDENT WRIGHT: Lay it 5 aside. 6 THE SECRETARY: Calendar Number 7 1291, by member of the Assembly Kaufman, 8 substituted earlier today, Assembly Print 3411, 9 an act authorizing the city of New York to 10 reconvey its interest in certain real property 11 acquired by in rem tax foreclosure in the 12 borough of the Bronx. 13 ACTING PRESIDENT WRIGHT: There 14 is a home rule message at the desk. 15 Read the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT WRIGHT: Call 19 the roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 58. 22 ACTING PRESIDENT WRIGHT: The 23 bill is passed. 9375 1 Senator Kuhl, that completes the 2 reading of the noncontroversial calendar. 3 SENATOR SEWARD: Mr. President. 4 ACTING PRESIDENT WRIGHT: Senator 5 Seward. 6 SENATOR SEWARD: I would ask 7 unanimous consent to be recorded in the negative 8 on two bills we passed earlier today, Calendar 9 Number 225 and Calendar Number 806. 10 SENATOR KUHL: No objection. 11 ACTING PRESIDENT WRIGHT: Without 12 objection, Senator Seward will be recorded in 13 the negative on Calendar Number 225 and Calendar 14 Number 806. 15 ACTING PRESIDENT WRIGHT: Senator 16 Holland. 17 SENATOR HOLLAND: Mr. President, 18 with unanimous consent, could I be recorded in 19 the negative on 125 and 806? 20 ACTING PRESIDENT WRIGHT: Without 21 objection, Senator Holland is recorded in the 22 negative on Calendar 125 and 806. 23 Senator Saland. 9376 1 SENATOR SALAND: Mr. President, I 2 would like to place a sponsor's star on Calendar 3 1259, Senate 4746A. 4 ACTING PRESIDENT WRIGHT: 5 Sponsor's star will be placed on Calendar Number 6 1259. 7 Senator Rath. 8 SENATOR RATH: Yes, Mr. 9 President. Without objection, I would like to 10 be recorded in the negative on Calendar 689. 11 ACTING PRESIDENT WRIGHT: Without 12 objection, Senator Rath will be recorded in the 13 negative on Calendar Number 689. 14 Senator Dollinger. 15 SENATOR DOLLINGER: Mr. 16 President, could I have unanimous consent of the 17 house to be recorded in the negative on Calendar 18 Number 831? 19 ACTING PRESIDENT WRIGHT: Without 20 objection, Senator Dollinger will be recorded in 21 the negative on Calendar Number 831. 22 Senator Kuhl. 23 SENATOR KUHL: Mr. President, 9377 1 could you call up Calendar Number 1063, please. 2 ACTING PRESIDENT WRIGHT: 3 Calendar Number 1063. Secretary will read. 4 THE SECRETARY: Calendar Number 5 1063, by Senator Maziarz, Senate Print 4018A. 6 SENATOR SMITH: Explanation. 7 ACTING PRESIDENT WRIGHT: Senator 8 Maziarz, an explanation has been requested by 9 Senator Smith. 10 SENATOR MAZIARZ: Yes, Mr. 11 President. The county of Orleans, I believe it 12 was three years ago, asked this body, and this 13 body approved, to implement an extra one percent 14 in their sales tax, bringing their sales tax to 15 8 percent. 16 They estimate -- the county 17 legislature estimates that they have been able 18 through the imposition of this additional one 19 percent sales tax to hold down the property 20 taxes by approximately 25 percent in the County 21 of Orleans. 22 There was a unanimous -- I want 23 to stress "unanimous," Mr. President - 9378 1 resolution passed by the Orleans County 2 Legislature asking me to bring this resolution 3 before this body. 4 ACTING PRESIDENT WRIGHT: Read 5 the last section. 6 THE SECRETARY: Section 3. This 7 act shall take effect immediately. 8 ACTING PRESIDENT WRIGHT: Call 9 the roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 58. 12 ACTING PRESIDENT WRIGHT: The 13 bill is passed. 14 Senator Kuhl. 15 SENATOR KUHL: Would you call up 16 Calendar Number 1262, please. 17 ACTING PRESIDENT WRIGHT: 18 Secretary will read. 19 THE SECRETARY: Calendar Number 20 1262, by Senator Kuhl, Senate Print 5087A, an 21 act to amend the Retirement and Social Security 22 Law, in relation to authorizing the Keuka Lake 23 Watershed Improvement Cooperative. 9379 1 SENATOR SMITH: Explanation, 2 please. 3 ACTING PRESIDENT WRIGHT: Senator 4 Smith has requested an explanation. 5 Senator Kuhl. 6 SENATOR KUHL: Yes, Mr. 7 President. This is a local bill. It is being 8 requested by seven municipal governments. 9 Several years ago, about five, 10 Keuka Lake, which is one of the Finger Lakes - 11 it's shaped like the thumb and the first finger, 12 the Y in your hand -- became -- and the 13 residents surrounding the lake became extremely 14 concerned about the long-term quality of the 15 water. They were running into problems with 16 runoff from the hills, soil erosion, from septic 17 tanks that were not working, and potentially the 18 downgrading of the quality of the water in the 19 lake which would affect things like fishing, 20 recreational use, swimming, and most of the 21 residents around the lake actually use the water 22 as drinking water. 23 And while they may have systems 9380 1 like ultraviolet systems and other kinds of 2 filtration systems to purify it, certainly, if 3 the quality of the water becomes degraded, then 4 essentially there is a tremendous economic loss 5 and personal usage loss of the Lake. 6 These seven municipalities, which 7 are the towns of the two counties and a couple 8 of villages, decided that there was the need for 9 a cooperative effort to essentially establish 10 rules and regulations for people who live around 11 the water body itself and also for people who 12 were in what's called the Keuka Lake watershed. 13 What these communities decided to do was to form 14 an entity to try to control the environment as 15 it relates to this body of water. 16 So they formed an organization 17 called the -- or, what is commonly referred to 18 as KWIC, or the Keuka Lake Watershed Improvement 19 Cooperative, and they unanimously entered into 20 an agreement that would start to establish a 21 methodology by which they would administer 22 certain types of regulations that would control 23 the watershed. 9381 1 What they have done at this point 2 is, each municipality has, voluntarily through 3 their own municipal board, established 4 resources, finances, money, to hire a small 5 staff in the form of one watershed inspector. 6 They decided to, rather than take on every issue 7 of decision with the environment at one time, 8 they would approach it on a piecemeal basis and 9 start with septic system control at first. 10 So they hired a watershed 11 inspector who, in fact, goes around and approves 12 applications, where there's new construction 13 goes in and looks at the plans, approves them or 14 disapproves them, and then follows up on the 15 actual implementation. Where there are reports 16 of, say, sewage being directly dumped into the 17 water, this watershed inspector investigates 18 and, in fact, will follow up with enforcement of 19 the rules and regulations that are in place. 20 A problem has surfaced in that an 21 individual can not participate in the New York 22 State Retirement System unless they are employed 23 by a municipality. This proposal would allow 9382 1 for the employee of this cooperative group of 2 seven municipalities to be included in the New 3 York State retirement system, and that's what 4 the bill is all about. 5 ACTING PRESIDENT WRIGHT: Read 6 the last section. 7 Senator Smith. 8 SENATOR SMITH: Yes. Thank you 9 for that explanation. 10 Can I ask one question, Mr. 11 President? 12 ACTING PRESIDENT WRIGHT: Senator 13 Kuhl, do you yield? 14 SENATOR KUHL: Be happy to. 15 ACTING PRESIDENT WRIGHT: Senator 16 Kuhl yields. 17 SENATOR SMITH: Senator, could 18 you tell me if there is any fiscal implication 19 for the state? 20 SENATOR KUHL: Not that I'm aware 21 of. Not that I'm aware of. 22 SENATOR SMITH: Another question 23 please, would you? 9383 1 ACTING PRESIDENT WRIGHT: Senator 2 Smith. 3 SENATOR KUHL: Be happy to yield. 4 SENATOR SMITH: Thank you. Could 5 you tell me, would the counties bear the expense 6 of KWIC? 7 SENATOR KUHL: Not the counties 8 alone, Senator. There are villages. There's 9 the village of Penn Yan, the village of 10 Hammondsport, the county of Yates, the county of 11 Steuben, and there are several towns that 12 surround or are involved in the watershed who, 13 cooperatively, based on their population 14 contribute to the pot of KWIC, and so that they 15 cooperatively share in the cost and they would 16 be cooperatively and jointly contributing to the 17 retirement system on behalf of or the 18 responsibility of the employer. 19 SENATOR SMITH: Once again, thank 20 you, Mr. President. 21 ACTING PRESIDENT WRIGHT: Senator 22 Stachowski. 23 SENATOR STACHOWSKI: If Senator 9384 1 Kuhl will yield? 2 ACTING PRESIDENT WRIGHT: Senator 3 Kuhl, will you yield? 4 SENATOR KUHL: Happy to yield. 5 ACTING PRESIDENT WRIGHT: Senator 6 yields. 7 SENATOR STACHOWSKI: I'm sorry I 8 got here late, and I don't know if you covered 9 any of this, but I had a couple questions 10 yesterday in Rules on this particular bill, and 11 one of the questions was -- and maybe you 12 covered it in your explanation. Like I said, 13 I'm sorry. I just came in from Finance. 14 There was -- in the bill, I 15 thought I read where people were going to go 16 retroactively all the way back to Tier I, where 17 if they were never state employees and anyone 18 who currently just comes into the state 19 retirement system enters at the current tier, 20 and I believe in that bill, people go into Tier 21 I, Tier II, Tier III and Tier IV. Why wouldn't 22 all these people automatically be in Tier IV 23 since they weren't in the retirement system 9385 1 until this bill will pass? 2 SENATOR KUHL: Senator 3 Stachowski, I didn't cover that in my 4 explanation, but there is currently one employee 5 of Keuka Lake Watershed Improvement Cooperative 6 or Commission, and that individual has prior 7 experience in the New York State Retirement 8 System and was a Tier I employee. 9 So the bill is meant to continue 10 that person with the same benefits that they 11 were in their previous employment, and it's not 12 aimed at any other employee. 13 ACTING PRESIDENT WRIGHT: Senator 14 Stachowski. 15 SENATOR STACHOWSKI: If Senator 16 Kuhl will continue to yield? 17 ACTING PRESIDENT WRIGHT: 18 Senator, do you continue to yield? 19 SENATOR KUHL: Be happy to. 20 ACTING PRESIDENT WRIGHT: Senator 21 yields. 22 SENATOR STACHOWSKI: Then the 23 other part of that would be that the rest of the 9386 1 people that will go in will go in as Tier IV 2 members; is that correct? 3 SENATOR KUHL: Whatever the tier 4 is at the time of their entry, yes, Senator. 5 SENATOR STACHOWSKI: Thank you. 6 ACTING PRESIDENT WRIGHT: Senator 7 Dollinger. 8 SENATOR DOLLINGER: Two quick 9 questions, if the sponsor will yield? 10 ACTING PRESIDENT WRIGHT: Senator 11 Kuhl, will you yield? 12 SENATOR KUHL: Yes, be happy to. 13 ACTING PRESIDENT WRIGHT: Senator 14 yields. 15 SENATOR DOLLINGER: Is the 16 agreement to support KWIC an intermunicipal 17 agreement? Is it a signed contract between all 18 the communities? 19 SENATOR KUHL: That's correct, 20 Senator. 21 SENATOR DOLLINGER: Okay, and 22 again, through you, Mr. President, just one 23 other question. 9387 1 What other state laws would apply 2 to this individual, the Civil Service rules and 3 regulations? Is there any -- we're going to put 4 them in the retirement system, but he or she is 5 sort of out there working for an independent 6 agency? Are they governed by other state 7 rules? Is KWIC's future hiring, if they need 8 more people, done pursuant to the Civil Service 9 Law, or is it just an independent agency without 10 complying with those? 11 SENATOR KUHL: It's really an 12 independent entity, if you will, Senator, that 13 was created as a result of the intermunicipal 14 agreement of the municipalities involved. As 15 far as I know, Civil Service is not a 16 requirement in this particular case. Certainly 17 there are other laws that apply to the towns in 18 their operative participation, but nothing that 19 I know that relates to individual employees. 20 SENATOR DOLLINGER: Mr. 21 President, I think this is a good idea. 22 ACTING PRESIDENT WRIGHT: Senator 23 Dollinger. 9388 1 SENATOR DOLLINGER: I think it's 2 a good community cooperative effort. My concern 3 is more about what happens in the future, but 4 we'll deal with that as it comes up. 5 SENATOR KUHL: Read the last 6 section. 7 ACTING PRESIDENT WRIGHT: Read 8 the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 ACTING PRESIDENT WRIGHT: Call 12 the roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes 58. 15 ACTING PRESIDENT WRIGHT: The 16 bill is passed. 17 SENATOR GOLD: Mr. President. 18 ACTING PRESIDENT WRIGHT: Senator 19 Gold. 20 SENATOR GOLD: Yes, Mr. 21 President. I was at a committee meeting, and 22 with unanimous consent, could I be recorded in 23 the negative on Calendar 241? 9389 1 ACTING PRESIDENT WRIGHT: Without 2 objection, Senator Gold will be recorded in the 3 negative on Calendar Number 241. 4 Senator Kuhl. 5 SENATOR KUHL: Mr. President, 6 would you call up Calendar Number 728, by 7 Senator Levy, please. 8 ACTING PRESIDENT WRIGHT: 9 Secretary will read. 10 THE SECRETARY: Calendar Number 11 728, by Senator Levy, Senate Print 973C, an act 12 to amend the Vehicle and Traffic Law, in 13 relation to operation of a motor vehicle by 14 persons under the age of 21. 15 SENATOR PATERSON: Explanation. 16 SENATOR LEVY: Yes, Senator. 17 ACTING PRESIDENT WRIGHT: Senator 18 Levy. 19 SENATOR LEVY: Senator Paterson, 20 this is the .02 zero-tolerance legislation for 21 operators of motor vehicles under the age of 21, 22 and it provides for administrative suspension 23 for operating a motor vehicle after having 9390 1 consumed alcohol. It is very similar to the 2 bill that we passed last year overwhelmingly in 3 this chamber and, as I'm sure you know, it is 4 illegal for young people under the age of 21 in 5 this state to be consuming alcohol. 6 Twenty-seven other states plus 7 the District of Columbia have enacted laws 8 similar to this bill, and our neighbors in New 9 Jersey and Massachusetts have such laws, and 10 there are bills on the desks of the Governors of 11 Connecticut and Rhode Island to enact similar 12 legislation to this bill. 13 Now, let me just point out, and 14 then I'll be happy to yield to your questions, 15 Senator, that under-age operators comprise 5 16 percent of New York State's drivers. They are 17 involved in 100 percent greater percentage of 18 fatal alcohol-related accidents in the state of 19 New York. 11 percent of those fatalities 20 involve drivers under 21 who have consumed 21 alcoholic beverages. 22 What this bill would do, Senator, 23 is, from a concept standpoint, really extend the 9391 1 concept underlying last year's prompt suspension 2 law to operators of motor vehicles under the age 3 of 21 who have a BAC of between .02 and .07. 4 ACTING PRESIDENT WRIGHT: Senator 5 Paterson. 6 SENATOR GOLD: Mr. President. 7 ACTING PRESIDENT WRIGHT: Senator 8 Gold. 9 SENATOR GOLD: Yes. Senator Levy 10 said he was happy to yield to Senator Paterson. 11 I just want the record to indicate that no one 12 in the chamber right now is happier than Senator 13 Onorato. 14 ACTING PRESIDENT WRIGHT: Thank 15 you, Senator Gold. 16 Senator Paterson. 17 SENATOR PATERSON: If Senator 18 Levy would happily yield for a question? 19 ACTING PRESIDENT WRIGHT: Senator 20 Levy, will you continue to yield? 21 SENATOR LEVY: Certainly. 22 ACTING PRESIDENT WRIGHT: Senator 23 Levy. 9392 1 SENATOR PATERSON: Senator Levy, 2 your bill defines the redress for those who are 3 found with blood alcohol levels of .02 to .07 4 and, of course, the legal limit is 1.0, and so 5 that just begs the obvious question, what is 6 going to happen with those individuals who test 7 from .07 to 1.0 -- to .1? I'm sorry. 8 SENATOR LEVY: Senator, as you 9 know, in New York State, .07 or over is driving 10 while your ability is impaired, .10 and above is 11 driving while intoxicated. Those are both 12 alcohol -- both alcohol-related offenses. 13 What this bill will do between .02 14 and .07, because young people under 21 according 15 to the law are not to be imbibing alcohol, will 16 provide for an administrative suspension of 17 their operating privilege if they are determined 18 to have a BAC of between .02 and .07. 19 SENATOR PATERSON: Okay. 20 Actually, you've answered the question, Senator 21 Levy. If you would yield for another question? 22 SENATOR LEVY: Yes, certainly. 23 ACTING PRESIDENT WRIGHT: Senator 9393 1 Levy, will you continue to yield? 2 Senator yields. 3 SENATOR PATERSON: Is it possible 4 that younger people who might be taking cough 5 medicine or use mouthwash or something else that 6 really would not even alert them to the fact 7 that there is some alcohol content, that that 8 might raise the blood alcohol level to .02, 9 which is really rather low, and, therefore, 10 subject some younger people who are not trying 11 to drive while intoxicated or even drive while 12 drinking to suspension of their licenses? In 13 other words, is .02, in a sense, too low a 14 threshold, whereby it might be achieved through 15 some other source than an alcoholic beverage? 16 SENATOR LEVY: Senator Paterson, 17 other states have gone forward with a zero BAC. 18 The concern that you raise, because the chemical 19 test to detect BAC can detect BAC of .02 and 20 above, that is the reason we have used the .02 21 standard in this bill, to eliminate the concern 22 that you have raised unlike other states that go 23 with a zero BAC. 9394 1 SENATOR PATERSON: And finally, 2 Senator Levy, am I correct that you said earlier 3 that although younger people constitute 5 4 percent of the driving while intoxicated 5 incidents that occur in New York State, that it 6 is -- in other words, they are 5 percent of that 7 number of drivers, that they actually are 8 involved in double the number of accidents? 9 SENATOR LEVY: They are involved 10 in 11 percent of the fatal auto crashes in this 11 state where alcohol has been involved in those 12 crashes, or greater than 100 percent greater 13 than the percentage they represent of total New 14 York State drivers. 15 SENATOR PATERSON: Well, I think 16 that pretty much establishes the strong need for 17 this legislation. I thank the Senator for 18 answering my questions. 19 ACTING PRESIDENT WRIGHT: Senator 20 Marchi. 21 SENATOR MARCHI: I find myself in 22 a rather curious position, because anything that 23 Senator Levy has on his agenda I'm in full 9395 1 support, and especially measures that he has 2 introduced on DWI and so many other approaches 3 that have materially reduced the incidence of 4 fatalities on the highways. 5 But we're back to the 18 and the 6 21. I have never believed in the 21-year-old 7 threshold, regardless of statistics, because 8 when we were keeping statistics and comparing 9 the record of New York State as against other 10 states, the record uniformly, in my experience, 11 showed that New York had a better record. There 12 were those who were going into licensed 13 premises, weren't crossing some sort of a macho 14 threshold to prove their manhood by drinking 15 somewhere. It was something that took place 16 under more normal circumstances. 17 I remember being a Commander at 18 sea with seamen and approaching any one of a 19 number of ports on both the Atlantic and the 20 Pacific where the casualties were frightful in 21 terms of drinking too much, and all with the 22 exception of New York. I didn't have that 23 problem in New York. If the seamen went ashore, 9396 1 they were more likely to come back sober than 2 they were any other states. 3 What it does, I believe -- and 4 this does not dispute the fact that the 5 youngsters do have a higher incidence of alcohol 6 -- have a higher incidence of fatalities on the 7 highways, and this is true irrespective of 8 whatever law is in vogue -- is that it breeds a 9 sense of cynicism. 10 The average youngster throughout 11 the United States with their false IDs, and it's 12 not even a question of trying to enforce, the 13 subterfuges and the circumventions are rank from 14 the Atlantic to the Pacific. I don't think this 15 engenders any confidence, any belief that this 16 builds up a respect for law among young people. 17 This is a law which so many of them take great 18 pride, and they become cynical about the law. I 19 don't know whether that cynicism is attached to 20 other things that we do, but I believe that it 21 certainly is not a good character builder. 22 Yes, even the law that the 23 Senator has proposed would make a great deal of 9397 1 sense, I guess, if it were applied to everybody, 2 but this simply does not meet the test in my 3 book. 4 I remember writing a letter to 5 the Catholic Weekly, who praised Governor Cuomo 6 for signing the 21-year drinking age bill, and I 7 wrote a letter to the Catholic Weekly, and I 8 said that I didn't think the founder of my 9 religion when he performed his miracle at the 10 marriage feast of Cana also checked the ID cards 11 of those who were attending the wedding. It's 12 sobriety that counts, and for far too long I 13 believe that people in our country feel that 14 there is something naughty about drinking, and 15 they also feel that there is something wrong if 16 you don't drink. 17 The mature attitude would be you 18 drink if you'd like to within reason or you 19 don't drink at all. But if you don't drink -- I 20 don't know, how many of you remember the old 21 movies? I haven't been to the movies in years, 22 but someone would walk up to the -- it could be 23 Gary Cooper or one of the stars of the time, and 9398 1 he would order a glass of milk. Everybody would 2 turn around and look at him, and then somebody 3 would shove him, and he would pull his guns out 4 and shoot all the bulbs out. That's the 5 mentality, that he couldn't go up and ask for a 6 glass of milk, where you can in many countries 7 ask for a glass of milk and nobody will look 8 down their noses if you do that. So it's not 9 quite right not to drink and it's not quite 10 right to drink. 11 Sobriety is the ultimate test, 12 and I don't think that legislation of this 13 nature helps it. I say this with greatest 14 deference and apologies to my friend Senator 15 Levy, because he has done so much in this field 16 and so much of it has really showed the country, 17 really, how to approach this problem in a 18 positive way, in a constructive way, but this is 19 one point where I disagree. 20 ACTING PRESIDENT WRIGHT: Senator 21 DiCarlo. 22 SENATOR DiCARLO: Thank you, Mr. 23 President. I'm going to vote no on this bill, 9399 1 and I feel I have to explain the reason why. 2 It's not because I don't believe in punishing 3 people for illegal acts. It's not because I'm 4 soft on DWI. As a matter of fact, this week 5 we're going to be hopefully passing my Deadly 6 Driver Reform Act again this year, which would 7 be the toughest DWI, unlicensed, unregistered 8 driver bill in the country. 9 I agree with Senator Marchi to a 10 great extent. If we were passing legislation 11 that affected all of society equally, I might be 12 supportive. If I were here a number of years 13 ago when they passed the 21 drinking age, I 14 think I would have voted no. I don't think we 15 should be passing laws against individuals and 16 groups in this state. I think we should be 17 passing laws that impact on everybody equally. 18 Somebody who is 20 years old and goes home to 19 their parents or their grandparents and has 20 Sunday dinner and a glass of wine, I don't think 21 it's right that two hours later when they are on 22 the road they lose their license. 23 I think we go a little bit too 9400 1 far in this state. We should be tough on those 2 who flaunt the law, tough on those who are truly 3 a danger in society, but I think when you go too 4 far you minimize those crimes that are truly 5 heinous. We should be keeping those drunks off 6 the road forever, for good, but somebody who 7 goes out after having a glass of wine with their 8 parents or their grandparents on a Sunday 9 afternoon, an hour and a half, two hours later, 10 for this to be treated in this manner, I think, 11 is just not the right thing to do. Let's be 12 tough on those who are truly a danger to society 13 but let's not single out a small group of 14 individuals many of whom are very responsive and 15 responsible in society even if they happen to be 16 between the ages of 18 and 21. 17 ACTING PRESIDENT WRIGHT: Chair 18 recognizes Senator Hoffmann. 19 SENATOR HOFFMANN: I listened 20 with great interest to Senator Marchi's comments 21 on the box in the other room, and it brought 22 back to my memory a debate that we had quite a 23 few years ago in this chamber when this state 9401 1 raised the drinking age to 21. 2 At that time, Senator Marchi and 3 I were among those who voted in opposition to 4 raising the drinking age to 21 and, in fact, the 5 Senior Senator from Staten Island and I 6 attempted to have the state of New York enjoin 7 the South Dakota lawsuit because South Dakota 8 was the only state in the nation that was at 9 that time challenging the federal government's 10 blackmail, the blackmail of every state in the 11 nation to raise the drinking age in order to 12 received continued federal highway assistance, 13 two totally unrelated issues that had been 14 linked by a federal regulation, not legislation 15 but a regulation that forced 50 states in the 16 nation to change their laws relative to behavior 17 by people in the age group of 18 to 21. 18 It troubled me then and it 19 troubles me now that we somehow single out 20 people in that age group as less worthy citizens 21 and we make an assumption that they are 22 incapable of exercising adult responsibility 23 when, in fact, they have done nothing by their 9402 1 own actions to indicate that. They have done 2 nothing as a group of people to indicate that 3 they are irresponsible drinkers, period; and 4 they have certainly done nothing to indicate by 5 their behavior that they are irresponsible to 6 operate motor vehicles when having consumed a 7 tiny portion of alcohol through -- unbelievable 8 as it may sound -- even mouthwash consumption in 9 normal oral hygiene activity or through the 10 consumption of a cough syrup that contains 11 alcohol. Both of these could actually trigger a 12 test which would put a person out of compliance 13 with the law should this law pass. 14 I continue to be appalled that as 15 a state and as a nation we allowed our entire 16 category of young people in the 18- to 21-year 17 age category to be deemed unworthy to consume 18 alcoholic beverages in the first place, and now 19 to further create this rather minuscule 20 prohibition that would allow them to be arrested 21 and subjected to criminal penalties that no 22 other category of New York State citizens would 23 face, I think would be a terrible travesty of 9403 1 justice, so I will vote no, and I will urge my 2 colleagues to vote no as well. 3 ACTING PRESIDENT WRIGHT: Senator 4 Dollinger. 5 SENATOR DOLLINGER: Mr. 6 President, I rise to speak in favor of this 7 bill. I've listened intently to Senator 8 Hoffmann and Senator DiCarlo and Senator Marchi, 9 and I understand that the policy debate about 10 when we prohibit the consumption of alcohol, 11 whether it's 18 or 21 or whatever age we create, 12 involves a certain arbitrary quality and, 13 frankly, oftentimes involves setting limits for 14 the state's exercise of its authority and its 15 power. 16 But the one thing we have done, 17 without question, is we have banned the 18 consumption of alcohol by those -- the purchase 19 of alcohol by those under age 21. In doing 20 that, we sent a message to a generation unlike 21 the one that was sent to me. 22 I agree with Senator Hoffmann 23 there may be even some consistency in changing 9404 1 it from generation to generation. But, 2 nonetheless, a prior Legislature, not one that I 3 participated in, said that if you buy or 4 purchase alcohol under age 21 you are breaking 5 the law, and if you are served alcohol under the 6 age 21 outside the context of the family, which 7 I think is still an exception, you are breaking 8 the law. 9 What this bill does is this 10 simply says that you can't afford the single 11 irresponsible act of an individual between 18 12 and 21, not the irresponsible act of consuming 13 alcohol -- some of them may choose to do that - 14 but driving an automobile while doing it. We 15 can't tolerate one instance of that 16 irresponsibility. 17 The memo from RID that talks 18 about the two high school seniors and football 19 players from Saratoga County who died in a crash 20 after celebrating their team's victory - 21 ACTING PRESIDENT WRIGHT: Senator 22 DeFrancisco, why do you rise? 23 SENATOR DeFRANCISCO: Would 9405 1 Senator Dollinger yield to a question? 2 SENATOR DOLLINGER: I'd be glad 3 to, Mr. President. 4 ACTING PRESIDENT WRIGHT: Senator 5 will yield. 6 SENATOR DeFRANCISCO: Senator 7 Dollinger, is it any less irresponsible for a 8 person aged 65 to get behind a wheel after 9 having drank one or two glasses of alcohol? 10 SENATOR DOLLINGER: It is 11 irresponsible for them to get behind the wheel, 12 that is correct. 13 SENATOR DeFRANCISCO: So do you 14 support amending this bill to include 65-year 15 olds? Well, let's put voting age people, other 16 than the limits we have now 18 to 21. 17 SENATOR DOLLINGER: I'm not sure 18 I understand the question. 19 ACTING PRESIDENT WRIGHT: Senator 20 Dollinger, do you continue to yield? 21 SENATOR DOLLINGER: I'll continue 22 to yield. I just don't - 23 ACTING PRESIDENT WRIGHT: Senator 9406 1 DeFrancisco. 2 SENATOR DeFRANCISCO: Do you 3 support amending this bill to include all voting 4 age people whether you are 18 to 21 or 65 or 45, 5 that they also would have their licenses taken 6 away if found with .02 percent alcohol? 7 SENATOR DOLLINGER: Mr. 8 President, my personal preference would be I 9 wouldn't have any problem with that, no. 10 SENATOR DeFRANCISCO: Thank you. 11 ACTING PRESIDENT WRIGHT: Senator 12 Dollinger. 13 SENATOR DOLLINGER: My personal 14 view, my view about that age group between 18 to 15 21, those who are barred by law from consuming 16 alcohol, I think we can draw a more rigid line 17 for them and impose a more rigid penalty because 18 of the uncontroverted evidence that in that age 19 group their conduct, their irresponsible conduct 20 has more disastrous consequences. 21 I think all we're doing is taking 22 our law, making it conform to what we know is 23 the practical reality, which is, under 21 you 9407 1 can't drink, by law, but yet, if you do and if 2 you're caught driving an automobile, you are 3 going to pay a more severe penalty. I think 4 that sends a message to our kids, one of mine 5 who is about to enter that age group, that 6 driving while drinking is absolutely, totally, 7 completely irresponsible, not something that 8 should start between 18 and 21 and continue 9 beyond 21. It shouldn't start at all. 10 I think we can send that 11 message. We do that by this statute. I urge 12 its approval. 13 ACTING PRESIDENT WRIGHT: Senator 14 DeFrancisco. 15 SENATOR DeFRANCISCO: Yes. I'm 16 going to vote against this bill for many of the 17 reasons that were discussed earlier. It just 18 bothers me that you have a situation where those 19 individuals who have no representation in their 20 age group on this body, those between 18 and 21, 21 get the brunt of some of the social problems. 22 If we ever carved out a class of 23 individuals and said that only as to these class 9408 1 of individuals we are going to apply a certain 2 law and those class of individuals were any 3 class other than 18- to 21-year-old children, 4 young adults, we would have the most vigorous 5 debate that this chamber has ever seen, and to 6 say that the 18- to 21-year-old person is 7 considered to be less responsible, that's a 8 broad generalization, that we would never even 9 consider speaking about any other group in those 10 terms. 11 There are responsible people in 12 every group and irresponsible people in every 13 group. Individuals may be at home having a 14 glass of wine or something with dinner with the 15 approval of their parents and to suggest that we 16 have a standard of .02 -- which I'm not even 17 sure if that's the standard within which there's 18 going to be a legitimate test because there's a 19 standard deviation where these tests have an 20 error to them, whether or not that even fits in 21 with that standard deviation to make it a 22 legitimate test. 23 So, for each of these reasons, I 9409 1 feel that I have to vote against this bill, and 2 no doubt somebody out there somewhere is going 3 to say I'm not tough on DWI. But if you want to 4 be tough on DWI, you got to be tough on every 5 body, not just one small class of individuals 6 who have that same broad section of irrespons 7 ible or responsible people in them, and I would 8 urge others to vote in the same way. 9 ACTING PRESIDENT WRIGHT: Chair 10 recognizes Senator Sears. 11 SENATOR SEARS: Thank you very 12 much, Mr. President. I rise on this bill 13 because I'm not quite sure I understand what 14 we're doing here. 15 You know, in May, around May the 16 8th, we celebrated 50 years of the end of World 17 War II in Europe, and here in a month or so, in 18 August I believe it is -- I don't know the exact 19 date -- we will celebrate 50 years of the end of 20 the war in Japan; and if you have read the 21 papers and you have read what's happened back in 22 those years, when we had the Memorial Day 23 celebration just a few short weeks ago, and it 9410 1 come out in the newspapers again to remind the 2 people of this country that a lot of those 3 people that were killed over there in Europe at 4 Normandy, Iwo Jima, you name it, they were 18 5 and -- between 18- and 21-year-old kids, gave 6 their lives for this country. 7 Now, on the 50th anniversary of 8 this celebration of all the people that got 9 killed, but, of course, we won the war, now 10 we're going to pass legislation that says if you 11 want to go into the armed services at 18 or 19 12 and you are accepted and you get caught under 13 the provisions of this law, these are the things 14 that we're going to do to our youngsters to tell 15 them that they are not responsible. 16 But they were responsible when 17 the time came; and again it could happen, who 18 knows, that these same people of this age might 19 be asked to fight another war, and this is what 20 we're going to impose upon these children. 21 I urge everybody in this chamber 22 to vote against this terrible legislation, which 23 I feel is a terrible affront to anybody that 9411 1 ever served in the armed service of this country 2 during the major wars and to anybody who might 3 in the future. 4 I vote no. 5 ACTING PRESIDENT WRIGHT: Senator 6 Dollinger. 7 SENATOR DOLLINGER: I have a 8 question for Senator DeFrancisco, but he is 9 departed. I will waive, Mr. President. 10 ACTING PRESIDENT WRIGHT: Read 11 the last section. 12 SENATOR LEVY: To explain my 13 vote, Mr. President. 14 THE SECRETARY: Section 14. This 15 act shall take effect on the first day of 16 November. 17 ACTING PRESIDENT WRIGHT: Call 18 the roll. 19 (The Secretary called the roll.) 20 ACTING PRESIDENT WRIGHT: Chair 21 recognizes Senator Levy to explain his vote. 22 SENATOR LEVY: Yes, Mr. 23 President. As we all know, in this state young 9412 1 people from 16 are eligible and, in fact, 2 operate motor vehicles in different parts of 3 this state. In the 27 states that have enacted 4 this law, fatalities involving young people 5 under the age of 21 where they've killed 6 themselves or killed someone else has dropped by 7 one-third, and this group 16 through and 8 including 20 is involved in double, better than 9 double the number of fatalities in comparison to 10 the total number of registered operators of 11 motor vehicles between the ages of 16 and 12 including 20. That is the reason that we're 13 doing this legislation, to save lives and to 14 save serious maiming injuries. 15 ACTING PRESIDENT WRIGHT: Senator 16 Kuhl to explain your vote. 17 Senator Dollinger to explain your 18 vote. 19 SENATOR DOLLINGER: Mr. 20 President, just to explain my vote. 21 Senator Levy couldn't have said 22 it better. This will save lives. I also reject 23 Senator DeFrancisco's -- I would have asked him 9413 1 a question if he was here -- his comparison that 2 we're treating a class of people -- we're 3 assuming that they are irresponsible. 4 We're not assuming that they are 5 irresponsible. We're not assuming they're an 6 irresponsible class. We're simply saying that 7 if you are 18, 19 years old and you have that 8 glass of wine at home, you better think twice or 9 three times before you get behind the wheel of a 10 car because the blood alcohol content will be 11 much lower. That will send a message that they 12 need to be a little bit more responsible 13 because, as Senator Levy points out, in this age 14 group, this is where most of fatalities occur. 15 It is simple social science. 16 We've got the facts to support it. This is a 17 good bill. It will save lives in this state; 18 and, frankly, one of the reasons why I'm going 19 to vote for it because my 16-year-old may be one 20 of them. 21 ACTING PRESIDENT WRIGHT: Senator 22 Dollinger in the affirmative. 23 Senator DiCarlo to explain his 9414 1 vote. 2 SENATOR DiCARLO: Thank you, Mr. 3 President. You know, let's change the laws in 4 this state and say that if we were being honest 5 with ourselves that you did not reach the age of 6 adulthood until 21. Let's change the laws in 7 this state to say that you can't be drafted 8 until you are 21 or enter the armed services. 9 Let's say in the State of New York, you can't be 10 married until you're 21. 11 Let's be honest with ourselves 12 and let's stop playing games with this and 13 singling out a lot of innocent people who are 14 not breaking the laws, who are not a danger to 15 society. If we did that, if we made this law 16 across the board for all people in the state of 17 New York, not just singling out some people who 18 are not represented in this chamber, I would 19 support it. 20 If you said you had a blood 21 alcohol level of .02 and that was against the 22 law to drive in this state, then I would support 23 this bill. But it's wrong to say that these 9415 1 individuals 18 to 21 who can do everything else 2 in the state of New York legally but it's 3 somehow a sin to have a glass of wine on an 4 occasion at home, it's somehow wrong when it's 5 right for everybody else in this state is just 6 bad legislation, and I think we're all kidding 7 ourselves here. 8 I vote no. 9 ACTING PRESIDENT WRIGHT: Senator 10 DiCarlo in the negative. 11 Senator Solomon. 12 SENATOR SOLOMON: Thank you, Mr. 13 President. To explain my vote. 14 SENATOR SOLOMON: I originally 15 voted against raising the drinking age to 21 16 until we had a gun put to our head by the Reagan 17 Administration, which, in fact, said we were 18 going to lose $400 million in state aid unless 19 the state of New York raised the drinking age. 20 But I want to point out as I did 21 several days ago on a piece of legislation, 22 where I had spoken about the fact that it's 23 interesting that they were going to open liquor 9416 1 stores on Sundays because of Christmas and New 2 Year's, yet in my community liquor stores are 3 closed in parts of my district every Saturday 4 during the year, yet they're not allowed to open 5 on Sundays, in addition to other Jewish 6 holidays. 7 In my community, a large part of 8 the population gets married at the age of 18, 9 and they go to weddings of even their brothers 10 or sisters or relatives at the age of 18 or 19. 11 Under this bill, they are not going to be 12 allowed to have a glass of wine at their 13 brother's wedding or their sister's wedding or 14 their relative's wedding and drive home, because 15 if they get stopped, they might fall under the 16 purview of this legislation, and I think what 17 we're doing is we're again discriminating 18 against people. And, yes, there are some 19 statistics that point to, in fact, deaths among 20 this group. 21 But, again, it's a particular 22 concern for me. Drunk driving is not a 23 particular problem in this community that I'm 9417 1 talking about; however, they fall under the laws 2 of the state of New York under these specific 3 laws if we enact this piece of legislation, and 4 it's inherently unfair to people between the 5 ages of 18 to 21. 6 I'm going to vote no. 7 ACTING PRESIDENT WRIGHT: Senator 8 Solomon recorded in the negative. 9 Continue the roll. 10 Senator Paterson, you want to be 11 recognized? 12 SENATOR PATERSON: If Senator 13 Libous would yield to me for just a second? 14 ACTING PRESIDENT WRIGHT: Senator 15 Libous yields. 16 Senator Paterson. 17 SENATOR PATERSON: We would like 18 to have a slow roll call on this issue. 19 ACTING PRESIDENT WRIGHT: A 20 request for a slow roll. Are there five? There 21 are five Senator standing. 22 SENATOR LEVY: Lay the bill 23 aside. 9418 1 ACTING PRESIDENT WRIGHT: The 2 bill is laid aside at the request of the 3 sponsor. 4 ACTING PRESIDENT WRIGHT: Senator 5 Kuhl. 6 SENATOR KUHL: Yes, Mr. 7 President. Would you call up Calendar Number 8 1078, by Senator Bruno, please. 9 ACTING PRESIDENT WRIGHT: 10 Secretary will read. 11 THE SECRETARY: Calendar Number 12 1078, by Senator Bruno, Senate Print 3219B, an 13 act to legalize, validate, ratify and confirm 14 certain actions of the city of Saratoga Springs. 15 ACTING PRESIDENT WRIGHT: We have 16 a home rule message at the desk. 17 Read the last section. 18 THE SECRETARY: Section 3. This 19 act shall take effect immediately. 20 ACTING PRESIDENT WRIGHT: Call 21 the roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes 59. 9419 1 ACTING PRESIDENT WRIGHT: The 2 bill is passed. 3 THE SECRETARY: Senator 4 Hoffmann. 5 SENATOR HOFFMANN: Mr. President, 6 I was out of the chamber earlier today when a 7 vote was taken. I request unanimous consent to 8 be recorded in the negative on Calendar 128. 9 ACTING PRESIDENT WRIGHT: Without 10 objection, Senator Hoffmann will be recorded in 11 the negative on Calendar 128. 12 SENATOR HOFFMANN: Thank you. 13 ACTING PRESIDENT WRIGHT: Senator 14 Kuhl. 15 SENATOR KUHL: Yes, Mr. 16 President. Also I would like to have the record 17 reflect that I was out of the chamber yesterday 18 when Calendar Number 1248 was called and had I 19 been present, I would have voted in the negative 20 on that bill. 21 ACTING PRESIDENT WRIGHT: The 22 record shall so reflect. Senator Kuhl would 23 have voted in the negative on 1248. 9420 1 Senator Kuhl. 2 SENATOR KUHL: Mr. President, 3 could you call up Senator Velella's bill, 4 Calendar Number 702, please. 5 ACTING PRESIDENT WRIGHT: 6 Senator, if you may, I will recognize Senator 7 Montgomery first. 8 Senator. 9 SENATOR MONTGOMERY: Thank you, 10 Mr. President. I would like unanimous consent 11 to be in the negative on Calendar 963. 12 ACTING PRESIDENT WRIGHT: Without 13 objection, Senator Montgomery will be recorded 14 in the negative on Calendar 963. 15 SENATOR MONTGOMERY: Thank you. 16 ACTING PRESIDENT WRIGHT: Thank 17 you. Senator Kuhl, we will now proceed. 18 Secretary will read. 19 THE SECRETARY: Calendar Number 20 702, by Senator Velella, Senate Print 3763, an 21 act to amend the Insurance Law, in relation to 22 agent determination reporting requirements. 23 SENATOR GOLD: Explanation. 9421 1 ACTING PRESIDENT WRIGHT: 2 Explanation has been requested by Senator Gold. 3 Senator Velella. 4 SENATOR VELELLA: Yes, Senator. 5 Under the present law when an agent, an 6 insurance agent, is terminated by a company, 7 they must file a report with the state Insurance 8 Department. Some of the matters that would be 9 contained in that report are barring gross 10 negligence on the part of the reporting company, 11 fraud or a -- or fraud would -- would - 12 Let me start over again. Barring 13 fraud or a gross negligence on the part of the 14 reporting agency to the Insurance Department, we 15 would hold them harmless, the reporting agency, 16 for any comments made in that report. 17 This is done in several other 18 sections of the law. It was omitted in the 19 section in which insurance agents are terminated 20 by the company so that if they made a statement 21 that ultimately and factually become erroneous 22 in reporting it to the state Insurance 23 Department, unless there was fraud or gross 9422 1 negligence on their part, they would not be 2 liable for civil liability. 3 ACTING PRESIDENT WRIGHT: Senator 4 Gold. 5 SENATOR GOLD: Senator yield to a 6 question? 7 SENATOR VELELLA: Yes. 8 ACTING PRESIDENT WRIGHT: Senator 9 Velella, will you yield? 10 SENATOR VELELLA: Yes. 11 ACTING PRESIDENT WRIGHT: Senator 12 yields. 13 SENATOR GOLD: Senator, I just 14 wanted to clarify something, because, as you 15 know, there is a memo in support, but there's 16 also a memorandum in opposition and, basically, 17 as I understand what your bill would do, it 18 basically would set up a kind of immunity for 19 the one who makes the report similar to, for 20 example, if you made a report against an 21 attorney and the charges turned out not to be 22 founded, or against other types of professionals 23 with other licensing departments. Isn't that 9423 1 correct? 2 SENATOR VELELLA: Or similar to 3 the other provisions we have in the Insurance 4 Law, where other reports are filed with the 5 Insurance Department, and the same provisions 6 apply, yes. 7 SENATOR GOLD: Well, Senator - 8 Senator, if you will yield to one more 9 question? 10 SENATOR VELELLA: Sure. 11 SENATOR GOLD: In trying to 12 justify a yes vote in my mind, it's easier for 13 me to get outside the Insurance Law and look at 14 it from the point of view that we would be 15 treating the agents no differently than other 16 licensed kinds of individuals, where, in order 17 to protect the profession itself, you allow 18 misstatements as long as they are not gross 19 negligence or fraudulent, et cetera, et cetera. 20 That would be no different than the way we treat 21 lawyers, doctors or anybody else; isn't that 22 correct? 23 SENATOR VELELLA: If that's the 9424 1 case, Senator. I'm not sure how we treat 2 lawyers and doctors. I'm sure of what we have 3 in the Insurance Law. 4 But that is the intent so that if 5 a particular statement is erroneous, absent bad 6 faith, fraud, or malice on the part of the 7 person making that statement, they would be 8 exempt. 9 ACTING PRESIDENT WRIGHT: Read 10 the last section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT WRIGHT: Call 14 the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 59. 17 ACTING PRESIDENT WRIGHT: The 18 bill is passed. 19 Senator Skelos. 20 SENATOR SKELOS: Mr. President, 21 can we return to reports of standing 22 committees. I believe there is a report from 23 the Finance Committee. 9425 1 ACTING PRESIDENT WRIGHT: Without 2 objection, reports of standing committees. 3 Secretary will read. 4 THE SECRETARY: Senator Stafford, 5 from the Committee on Finance, reports the 6 following nomination: Walter G. Hoefer of East 7 Quoque, Director of the Office for the Aging. 8 ACTING PRESIDENT WRIGHT: 9 Recognize Senator Stafford to move the 10 nomination. 11 SENATOR STAFFORD: Mr. President, 12 once again, I'm standing today and stating what 13 a tremendous group of nominees appeared before 14 the Senate Finance Committee today, and I am 15 pleased to say that I'm saying it again and, as 16 in the past, we have excellent nominees, and the 17 first is Walter G. Hoefer, Director of the 18 Office for the Aging, who was most impressive as 19 were all the others. 20 And I now yield to Senator 21 DiCarlo. 22 ACTING PRESIDENT WRIGHT: Chair 23 recognizes Senator DiCarlo. 9426 1 SENATOR DiCARLO: Thank you, Mr. 2 President. 3 As the chairman of the Committee 4 on Aging, I'm pleased to say that we met earlier 5 today and unanimously supported the nominee. 6 I am pleased to forward the 7 nomination of Walter G. Hoefer of East Quogue, 8 Suffolk County, for the position of Director of 9 the State Office for the Aging. 10 As chairman of the Senate Aging 11 Committee, I have had the opportunity to meet 12 with Mr. Hoefer and discuss with him his role as 13 an advocate, as a coordinator, and as a forward 14 thinker in looking out for the concerns of the 15 elderly. He's a businessman, a former county 16 assistant administrator and budget officer. 17 Mr. Hoefer has successfully 18 managed an $8 million budget with the oversight 19 of five human resource services agencies 20 including Aging, Veterans, and Criminal 21 Justice. He also has a background in many other 22 areas having impact on the senior population of 23 this state, expertise which I believe will make 9427 1 him an effective director of the State Office 2 for the Aging. 3 I am very proud to put forward 4 his name, and I would ask that you now call upon 5 Senator LaValle. 6 ACTING PRESIDENT WRIGHT: Chair 7 recognizes Senator LaValle. 8 SENATOR LAVALLE: Thank you, 9 Senator DiCarlo. 10 Mr. President, colleagues, it 11 really gives me great pleasure to rise today to 12 speak on behalf of the nominee Walter Hoefer 13 from East Quogue. 14 First, let me say, as I think 15 each of you know, that there is probably no 16 greater or important constituency than our 17 senior population, and so I think Governor 18 Pataki has named a nominee that I have known for 19 the last 19 years, who is very, very bright, 20 articulate, is very caring, and I think is a 21 good communicator. 22 For the director of the aging 23 commission -- for Office for the Aging, I can 9428 1 think of no greater skill than one who can 2 communicate with that population, understands 3 the legislative process, understands the issues 4 that we have to deal with, and I can assure you 5 will be communicating and dealing and inter 6 acting with the -- certainly the Governor's 7 Office and members of the Legislature in trying 8 to deal with the population that is so near and 9 dear to all of us. 10 So I am confident that Walter 11 will meet his responsibilities as energetically 12 as he has met all of those endeavors that he has 13 been involved with back in Suffolk County. He 14 will use his sizeable intellect in sorting out 15 the issues and how to address those issues in 16 working with all those individuals who have 17 expertise, and I am confident that together, 18 working together, that we will solve many of the 19 problems and issues that deal with the aging 20 population, and I think Walter showed today in 21 the Finance -- in the Aging Committee that he is 22 able to deal with issues and balance the needs 23 of the constituency within the fiscal realities, 9429 1 and so it's, indeed, a pleasure to speak on his 2 behalf and I might add as a footnote, I think it 3 is the first nominee to come before this body 4 that would be from Peconic County, if there was 5 such an entity, in the east end of the great 6 county of Suffolk. 7 ACTING PRESIDENT KUHL: The Chair 8 recognizes Senator Farley on the nomination. 9 SENATOR FARLEY: Thank you, Mr. 10 President. I rise to support Walter Hoefer as 11 director of the Office for the Aging. 12 If I've had an interest in 13 anything, it's been in aging legislation over 14 the years. I was the first chairman of the 15 Aging Committee and served there for eight 16 years. I find it one of the most rewarding and 17 important areas that we work in in this chamber, 18 and I certainly feel that this young man is an 19 outstanding candidate. 20 Senator LaValle, who has been my 21 classmate and came into the Senate with me, 22 spoke so highly of this nominee that it is with 23 enthusiasm that I support him for director, and 9430 1 I compliment the Governor on this excellent 2 choice. 3 ACTING PRESIDENT KUHL: The 4 question is on the nomination of Walter G. 5 Hoefer of East Quogue to become the director of 6 the Office for the Aging. 7 All in those favor of the 8 nomination, signify by saying aye. 9 (Response of "Aye.") 10 Opposed, nay. 11 (There was no response.) 12 The nominee is confirmed. 13 We're very pleased to have Walter 14 Hoefer in the chamber with us, to your left, my 15 right. 16 Director, congratulations. Good 17 luck in your job. 18 (Applause.) 19 Secretary will read. 20 THE SECRETARY: Senator Stafford, 21 from the Committee on Finance, offers the 22 following nomination: Thomas A. Maul of 23 Schenectady, Commissioner of Mental Retardation 9431 1 and Developmental Disabilities. 2 SENATOR STAFFORD: Mr. President. 3 ACTING PRESIDENT KUHL: Senator 4 Stafford. 5 SENATOR STAFFORD: Commissioner 6 Maul appeared before our committee again. He 7 appeared about a year and a half ago, was 8 unanimously approved, and again today. He's 9 been doing a very, very fine job and, as all the 10 nominees, all have difficult jobs. 11 And I yield to Senator Libous, 12 the Senator from Binghamton. 13 ACTING PRESIDENT KUHL: Chair 14 recognizes Senator Libous. 15 SENATOR LIBOUS: Thank you, Mr. 16 President, and thank you, Senator Stafford. 17 Mr. President. Tom Maul has 18 served with distinction as the Commissioner of 19 OMRDD since 1993 and has been renominated to 20 that position today by Governor George Pataki. 21 Under Tom Maul's leadership, 22 OMRDD has become one of the most efficient and 23 effective agencies in the State of New York. 9432 1 OMRDD has improved the quality of care for 2 thousands of persons with mental retardation and 3 developmental disabilities by bringing them back 4 into contact with friends, family members and 5 their communities. 6 In addition to revitalization of 7 the service and the philosophy of this agency, 8 Commissioner Maul has also been responsible for 9 instituting measures that have saved our state 10 taxpayers million dollars. 11 I can go on and on and tell you 12 about the accomplishments of Tom Maul, and I can 13 read them from a list that is quite lengthy, but 14 I want to tell you how I know Tom Maul and how I 15 am so pleased that Governor Pataki has 16 renominated him. 17 You know, until you actually work 18 with a family who has a child or a relative with 19 a mental or physical disability, you really do 20 not know what type of lifestyle that they have 21 to go through, you don't know the kind of 22 sometimes difficult situations they go through 23 in trying to find help and relief for their 9433 1 loved one who is mentally retarded or who is 2 physically disabled. 3 You know, I said this on the 4 floor about a week ago. Those of us who get up 5 every morning and we just come to work, we kind 6 of take things for granted. We don't often just 7 pause to think about people with mental or 8 physical disabilities who maybe can't get up as 9 easy as we can or just walk into this chamber on 10 their own. 11 Tom Maul -- I have seen him 12 display the kind of warmth and sincerity that a 13 Commissioner needs to do in going out into the 14 community and taking sometimes very hostile 15 environments, where the citizens of our state 16 sometimes don't often understand the kinds of 17 programs we may be putting into the community, 18 and at the end of that meeting, after Tom Maul 19 spends time in speaking to both the citizens and 20 the parents, it's funny how all of a sudden that 21 project works, that project becomes a reality, 22 because this man has just a keen ability to pull 23 all types of people together. 9434 1 And, Mr. President, that's the 2 kind of person we needs to continue in OMRDD as 3 the Commissioner, because it is a very sensitive 4 area. It is an area that requires an individual 5 of very strong leadership, and one that can pull 6 all types of people together so that those 7 people with mental retardation and physical 8 disabilities can live as normal a life as you 9 and I. 10 Mr. President, it is indeed an 11 honor and a privilege to move the nomination of 12 Tom Maul for Commissioner of this office. 13 ACTING PRESIDENT KUHL: Chair 14 recognizes Senator Farley on the nomination. 15 SENATOR FARLEY: Thank you, Mr. 16 President. It is a pleasure for me to get up 17 and move the nomination of Thomas Maul, my 18 constituent and neighbor in Schenectady and 19 somebody who has had 30 years of superb public 20 service. 21 My friend and seat mate and 22 neighbor here, Tom Libous, has spoken so highly 23 of this man and the job that he's done for the 9435 1 people of the state of New York, particularly 2 those with disabilities. He has won awards and 3 served his profession as well as anybody that I 4 think that has ever come before us. 5 It is with a great deal of 6 pleasure and honor that I move his nomination, 7 and I urge the support of Thomas Maul to 8 continue in a job that he has so superbly done 9 over the years. 10 ACTING PRESIDENT KUHL: Senator 11 Spano on the nomination. 12 SENATOR SPANO: Thank you, Mr. 13 President. It's my pleasure to join with my 14 colleagues in seconding the nomination of Tom 15 Maul. 16 When he was first appointed just 17 a little over a year ago by the previous 18 governor, he was confirmed by the members of 19 this Senate in just about 24 hours, because we 20 recognized that he is someone who has served for 21 close to three decades in OMRDD, has been 22 involved in that agency from the days when we 23 had the rigid institution-like settings of 9436 1 Willowbrook, has seen the dismantling of those 2 type of facilities, and has been a part of that 3 agency and has been a part of the change of 4 building the community-based system of care all 5 across this state; most notably, working in 6 making sure that items like the Medicaid waiver, 7 which are so important, have been secured to 8 give us the maximum flexibility in spending the 9 dollars that we have. 10 So he is a person who is held in 11 high esteem by the advocates, by the people we 12 serve, by the members of this house, and it's my 13 pleasure, Mr. President, to join in the second 14 of the nomination of Tom Maul. 15 ACTING PRESIDENT KUHL: Senator 16 Stachowski on the nomination. 17 SENATOR STACHOWSKI: I also rise 18 to second the nomination of Tom Maul. 19 It's been a pleasure since he's 20 been the head of the Department to work with him 21 on the different issues, and I only wish that 22 some of the people who work for him in the field 23 had the same cooperative attitude and sense of 9437 1 how to deal with the community that he has. 2 I think that the fact that this 3 Governor's appointing Tom Maul after he was just 4 appointed by the other governor speaks for 5 itself as far as his qualifications go. I would 6 be remiss if I didn't get up and second anybody 7 who is as big a fan of the Buffalo Bills as Tom 8 Maul, so, obviously, the man has great taste and 9 good judgment also. 10 ACTING PRESIDENT KUHL: Senator 11 Larkin on the nomination. 12 SENATOR LARKIN: Thank you, Mr. 13 President. I don't want to rehash what's been 14 said here, but, you know, Tom Maul is the type 15 of an individual that when you call him up, he 16 doesn't wait five days or six days to call you 17 back. He not only calls you back, but he has 18 the party that you have been dealing with in a 19 conference call. 20 He is very responsive. We have 21 had many incidents that have arisen in our 22 district in the last four years, and I can tell 23 you that Tom has personally put himself into the 9438 1 middle of the project to insure that the 2 individuals that are going to be benefited by it 3 and those in the surrounding communities receive 4 a fair treatment, and his concern has always 5 been for that individual less fortunate than 6 some of us, and I tell you that we're very 7 fortunate in this state to have someone like Tom 8 Maul, and I am honored to second it. 9 ACTING PRESIDENT KUHL: The 10 question is -- excuse me. Senator Holland on 11 the nomination. 12 SENATOR HOLLAND: Mr. President. 13 I'm happy to second the nomination of Tom Maul 14 also. In the number of years I have known Tom, 15 I know he is very competent, does an absolutely 16 great job, and I echo what Senator Larkin says. 17 He is always available. He always returns your 18 call. He always works with you, and not only do 19 I know that but the groups in Rockland County he 20 supports, such as the ARC and Venture, know that 21 as well, and they support him and have been 22 supporting him all along. 23 It is my pleasure to second your 9439 1 nomination, Thomas. 2 ACTING PRESIDENT KUHL: Is there 3 any other Senator wishing to speak on the 4 nomination? 5 (There was no response.) 6 Hearing none, the question is on 7 the nomination of Thomas A. Maul of Schenectady, 8 New York, to become the Commissioner of Mental 9 Retardation and Developmental Disabilities. 10 All in favor of the nomination, 11 signify by saying aye. 12 (Response of "Aye.") 13 Opposed, nay. 14 (There was no response.) 15 The nominee is confirmed. 16 Commissioner Maul is joining us 17 here in the chamber. 18 Commissioner, congratulations and 19 good luck in your job. 20 (Applause.) 21 Secretary will read. 22 SENATOR LEICHTER: Mr. President. 23 ACTING PRESIDENT KUHL: Senator 9440 1 Leichter, why do you rise? 2 SENATOR LEICHTER: Mr. President, 3 may I have unanimous consent to be recorded in 4 the negative on Calendar 241. 5 ACTING PRESIDENT KUHL: Without 6 objection and hearing no objection, Senator 7 Leichter will be recorded in the negative on 8 Calendar Number 241. 9 Senator Leichter. 10 SENATOR LEICHTER: Mr. President, 11 could I also ask the record to reflect that 12 yesterday, on Calendar 1250, I was out of the 13 chamber when this bill passed on a fast roll 14 call. If I had been here, I would have asked to 15 be recorded in the negative. 16 ACTING PRESIDENT KUHL: Senator 17 Leichter, the record will reflect that you were 18 not in the chamber yesterday when the roll call 19 was called on Calendar Number 1250 but, had you 20 been here, you would have voted in the negative. 21 Secretary will read. 22 THE SECRETARY: Senator Stafford, 23 from the Committee on Finance, offers the 9441 1 following nomination: Jean Somers Miller of 2 Albany, Commissioner of Alcoholism and Substance 3 Abuse Services. 4 ACTING PRESIDENT KUHL: Senator 5 Stafford, on the nomination. 6 SENATOR STAFFORD: Thank you, Mr. 7 President. 8 Jean Somers Miller appeared 9 before us today, and I'm sure that she, as her 10 predecessors have done, add a great deal of life 11 into many, many years. In this day and age when 12 we're very interested in adding years onto life 13 -- and I'm not against that at all. In fact, I 14 have been an advocate. But on the other hand, 15 Commissioner Miller will be dealing with 16 individuals who will be receiving that life they 17 have lost. 18 Commissioner Miller has been 19 counsel to the Division of-- what's the name of 20 it? -- Alcoholism and Substance Abuse. 21 Ever since F.D.R., you get 22 confused with all these names and letters so you 23 have to make sure. 9442 1 But on a serious note, this 2 division, I'm sure, will do a great deal under 3 Commissioner Miller as it has in the past. She 4 is well educated and, as she mentioned, she in 5 later years decided to go to school, and I think 6 that's to be complimented. She, obviously, has 7 a law agree being a counsel. 8 But I would finally say that in a 9 very, very complex field it's always refreshing 10 for someone to say, "I will get you the answer," 11 because there are many times -- and it's 12 important that we know how to get the answer, 13 and she has proven that she does. 14 And, with that, I yield to the 15 Senator from the north, Senator Wright. 16 SENATOR WRIGHT: I thank my 17 colleague from the North Country. 18 ACTING PRESIDENT KUHL: Chair 19 recognizes Senator Wright on the nomination. 20 SENATOR WRIGHT: Mr. President, 21 I'm pleased to rise as chair of the Senate 22 Committee on Alcoholism and Substance Abuse in 23 support of the nomination of Jean Miller as 9443 1 Commissioner. 2 New York State boasts one of the 3 largest and most advanced treatment systems 4 within the nation. New York State is currently 5 going through a consolidation of the alcohol and 6 substance abuse fields and will be moving ahead 7 on the issues of consolidating licensure, 8 consolidating credentials. 9 In this budget that we adopted 10 upon the recommendation of the Governor and 11 yesterday we passed legislation in this house 12 establishing the need for a study on the 13 effectiveness of the treatment programs that 14 will be conducted over a multi-year period and, 15 equally important, within this budget and 16 supported by the Governor and this house, we're 17 establishing an intensive treatment program at 18 the Willard facility that is very unique and may 19 serve well as a national model in terms of the 20 coordination of the alcohol treatment agency, 21 Corrections and Parole. 22 For all of those reasons, the 23 position of Commissioner is one of challenge in 9444 1 the next upcoming years and, as a result, we 2 need to bring to that agency someone who has the 3 experience and the background of having worked 4 in that agency. In Jean Miller the Governor has 5 found an individual. Jean has served as counsel 6 within the agency, has served as chief counsel. 7 She has also served as the Deputy Executive 8 Commissioner and since January of this year, 9 upon the designation of the Governor, has been 10 serving as the Acting Commissioner. 11 I think you can all see that on 12 the basis of that kind of background and 13 experience, she is eminently qualified to serve 14 in the role of Commissioner. I might also point 15 out for those of you who have had the 16 opportunity to review Jean's resume that she 17 also spent some time working as a staff member 18 of this house also, and so she brings that 19 background to her position also, an awareness of 20 the legislative process, if you will. 21 I have had the occasion to work 22 with Jean, both as counsel and most recently in 23 her capacity as Acting Commissioner. She has 9445 1 been extremely responsive to our concerns and 2 needs. As a result, I want to extend my 3 congratulations. I think Jean -- and I look 4 forward to her leadership and guidance - 5 exemplifies the bipartisan and professional 6 nature of the nominees that Governor Pataki has 7 recommended. 8 I'm very pleased to move the 9 nomination of Jean Miller for Commissioner of 10 Alcohol and Substance Abuse Services. 11 Thank you. 12 ACTING PRESIDENT KUHL: Chair 13 recognizes Senator Libous on the nomination. 14 SENATOR LIBOUS: Thank you, Mr. 15 President. I, too, rise to second the 16 nomination of Jean Miller. 17 My colleague and chairman of the 18 Alcoholism and Drug Abuse Committee, Senator 19 Wright, talked about Jean Miller's qualifica 20 tions and the kinds of things that it will take 21 to lead this agency over the coming years, but 22 Jean Miller said in the Finance Committee that 23 she came to the agency in 1989 and I, too, came 9446 1 to the Senate that year and became chairman of 2 this committee, and I can tell you that I had 3 the pleasure of working with her as counsel and 4 crafting a number of different things, including 5 the famous consolidation or merger of the two 6 agencies that at times got a little hectic from 7 the different people and the different groups 8 that we worked with. We also worked together in 9 crafting what we call the famous accountability 10 measures and bills to help correct some of the 11 flaws in the system at that time. 12 So, Mr. President, I think that 13 the Governor, once again, as mentioned earlier, 14 has picked an outstanding nominee to lead this 15 agency, and I just want to stand here and say 16 that I second this nomination. 17 ACTING PRESIDENT KUHL: Chair 18 recognizes Senator Volker on the nomination. 19 SENATOR VOLKER: Mr. President, I 20 also want to second the nomination of Jean 21 Somers Miller. 22 As Senator Padavan and I were 23 just discussing here, Senator Padavan was a long 9447 1 time chairman of Mental Hygiene through the '70s 2 and the '80s, into the early '80s, and I was his 3 -- the chairman of the Subcommittee on 4 Alcoholism until the subcommittee was, of 5 course, abolished when the new full committee 6 took over, and I have always had an immense 7 interest in the alcohol and drug area, and I 8 know of Jean's work in furthering the battle 9 against alcohol and drugs, and I would 10 especially like to thank her -- and Senator 11 Wright, rightfully, mentioned the issue of the 12 Willard -- former Willard Psychiatric Center, 13 that now is going to become the center of 14 alcohol and drug treatment for inmates in this 15 state, and I would like to, as I did in the 16 committee when she was sent to the floor, thank 17 her for the work that she did during the 18 negotiations with the Senate, the Assembly, and 19 the Governor on dealing with the Willard issue, 20 on the sentencing issue, and Jean and her staff 21 was extremely helpful. 22 This is a delicate matter, and 23 one I think is -- as Senator Wright said, that 9448 1 hopefully will set a standard for the country in 2 dealing with drug and alcohol addicted inmates. 3 So my congratulations to the 4 Governor for making such a fine appointment. 5 I wish you the best of luck, and 6 I know that you will do the job in the same 7 efficient manner that you have done in the 8 past. Good luck. 9 ACTING PRESIDENT KUHL: Senator 10 Oppenheimer on the nomination. 11 SENATOR OPPENHEIMER: Much has 12 been said of Jean Miller's competence and 13 capability in this position to which she is 14 being -- for which she is being nominated. 15 I would just like to mention 16 another facet, which is Jean is a very hard 17 worker, a very sincere human being who devotes 18 herself to her programs and her projects with 19 100 percent effort and, in addition, I know her 20 as a friend for many years, and she is a woman 21 who is sincere, rounded and a person who is 22 trustworthy and a very fine human being, and I'm 23 proud to be here to support her nomination. 9449 1 ACTING PRESIDENT KUHL: The 2 question is on the nomination of Jean Somers 3 Miller to become the Commissioner of Alcoholism 4 and Substance Abuse Services. 5 All those in favor of the 6 nomination, signify by saying aye. 7 (Response of "Aye.") 8 Opposed, nay. 9 (There was no response.) 10 The nominee is confirmed. 11 We're very pleased to have Jean 12 Somers Miller with us in the chamber. 13 Congratulations, Jean. Good luck 14 in your job. 15 (Applause.) 16 SENATOR STAVISKY: Mr. 17 President. 18 ACTING PRESIDENT KUHL: Senator 19 Stavisky, why do you rise? 20 SENATOR STAVISKY: Without 21 objection, may I be recorded in the negative on 22 Calendar Number 241. 23 ACTING PRESIDENT KUHL: Without 9450 1 objection. Hearing no objection, Senator 2 Stavisky will be recorded in the negative on 3 Calendar Number 241. 4 The Secretary -- the Secretary 5 will read. 6 THE SECRETARY: Senator Stafford, 7 from the Committee on Finance, offers the 8 following nomination: James W. McMahon of 9 Ballston Lake, Superintendent of State Police. 10 ACTING PRESIDENT KUHL: The Chair 11 recognizes Senator Stafford on the nomination. 12 SENATOR STAFFORD: Mr. President, 13 it's a pleasure to yield to the Majority Leader 14 who will move the confirmation of Superintendent 15 McMahon who has done a tremendous job. He 16 appeared before our committee for the second 17 time. 18 I yield to Senator Bruno. 19 ACTING PRESIDENT KUHL: Senator 20 Bruno, on the nomination. 21 SENATOR BRUNO: Thank you very 22 much, Senator Stafford. 23 Mr. President, my colleagues, it 9451 1 is an honor for me to stand in support of this 2 nomination of a gentleman who is as qualified as 3 the Superintendent before us. 4 He has served in the previous 5 administration. He is a true professional. He 6 puts the needs of the people ahead of his 7 personal needs. He is really representative of 8 the people, the 4,000 State Police, the people 9 that help him be effective in serving the public 10 and the people in New York State. 11 He brings credit to the force, I 12 think to the Governor that has the wisdom to 13 move this appointment and he brings credit to 14 his family and to himself and to all of the 15 people of New York State that he truly 16 represents. 17 So it's my privilege to rise in 18 support of Superintendent McMahon. 19 ACTING PRESIDENT KUHL: Senator 20 Nozzolio on the nomination. 21 SENATOR NOZZOLIO: Thank you, Mr. 22 President. 23 Mr. President, my colleagues, I 9452 1 certainly wish to echo the comments of our 2 Majority Leader, Senator Bruno, in praising the 3 qualifications of Superintendent James McMahon. 4 This is the second opportunity I 5 have had to serve on the Crime and Corrections 6 Committee when the Superintendent has come 7 before us, and in each case, I can tell you that 8 that vote is cast with a great deal of pride 9 because of the Superintendent's grasp of his 10 duty, the responsibility he shows to the people 11 of this state and his overall leadership 12 demeanor that I know is appreciated, not only by 13 members of the Legislature, but by the troops 14 who are out there serving the public day in and 15 day out placing their lives on the line because 16 I know in talking with many of them, they are 17 thrilled and have been thrilled with the 18 leadership Superintendent McMahon has shown 19 during these short 14 months of his tenure. 20 They know he is a man who has been with them and 21 is by all accounts in all of the greatest 22 respect a trooper's trooper. 23 I'm very pleased to second the 9453 1 nomination and urge my colleagues to support 2 this fine nominee and congratulate the Governor 3 for his choice of professionalism in the New 4 York State Police. 5 ACTING PRESIDENT KUHL: Senator 6 Hoffmann on the nomination. 7 SENATOR HOFFMANN: Thank you, Mr. 8 President. 9 I have had the pleasure over the 10 last 11 years of serving on the Crime and 11 Corrections Committee to come to know this 12 Superintendent and previous superintendents and 13 to have developed a working relationship on 14 behalf of my constituents, and one of the things 15 that is immediately apparent for any of us who 16 have had dealings with Superintendent McMahon is 17 that he has a true earnest interest in 18 maintaining a close relationship with local law 19 enforcement agencies. He is responsive to their 20 concerns. He recognizes the various command 21 officers across the state, greets them with 22 warmth, understands the problems they face, and 23 he has done a great deal to move the State 9454 1 Police forward as an assist mechanism for local 2 law enforcement. 3 It is this spirit of cooperation 4 that we should be fostering at the state level 5 in all aspects of government and we can be proud 6 of the leadership by Superintendent McMahon in 7 bringing this type of cooperation through the 8 State Police. 9 One of the more difficult 10 problems that the Superintendent has had to face 11 in his relatively short tenure is dealing with 12 an unfortunate persecution complex that some 13 members of the media have lodged against the 14 State Police. We might like to forget about it, 15 but it has become a source of ongoing concern 16 and suspicion in -- in some media outlets in the 17 state that there have been problems within the 18 past in the State Police due to only a couple of 19 individuals, but yet virtually everything the 20 State Police do today -- the State Police as an 21 entity does today can be greeted with some 22 suspicion by people who would like to make it 23 their issue to find some wrongdoing, and yet 9455 1 Superintendent McMahon has handled this with 2 remarkable aplomb. He has been totally 3 guileless, willing to speak candidly, openly, to 4 answer questions. He clearly has nothing to 5 hide and he is willing to show the utmost 6 respect for the men and women within the ranks 7 of the State Police and to very calmly and 8 sensibly explain the operations of the State 9 Police to those who are willing to listen. 10 So I continue to be very proud of 11 the job that he has done. He is truly a 12 leader. If leading by example is what we should 13 aspire to in law enforcement, then he stands as 14 an excellent example of what every law 15 enforcement official should be today. So I'm 16 pleased also to support the nomination of 17 Superintendent McMahon for continued tenure as 18 Superintendent of the State Police. 19 ACTING PRESIDENT KUHL: Senator 20 Larkin on the nomination. 21 SENATOR LARKIN: Mr. President, I 22 proudly rise to second the nomination of James 23 McMahon as Superintendent of State Police. 9456 1 My association with the 2 Superintendent goes back to the time he was his 3 own lieutenant in Monroe, New York, which is now 4 my district and at the time I was a town 5 supervisor with a very small police department 6 and not very well trained. I went to see Jim 7 McMahon and I said I had a problem. He didn't 8 try to figure out how to get around it. He 9 said, Let's sit down. Let's discuss it. We sat 10 around and reorganized the police department 11 which is now considered one of the best in the 12 counties, and all the officials that have dealt 13 with him, whether they be from the military at 14 West Point where he had tremendous responsibil 15 ities, and the Secret Service that are stationed 16 at Stewart, their comments were always of the 17 highest order. 18 He's a team player. He wants to 19 cooperate. He wants to assist. He wants law 20 enforcement to be the most respected that it can 21 be. In my area, they tell me, Jim McMahon is a 22 trooper's trooper. 23 I'm very proud to stand here and 9457 1 second the nomination of an individual extremely 2 qualified by his training and his experience and 3 commitment to the public safety of the people of 4 the state of New York. 5 ACTING PRESIDENT KUHL: Senator 6 Volker on the nomination. 7 SENATOR VOLKER: Mr. President, 8 it's certainly all been said, I guess, but I 9 want to give my endorsement of Jim who I have 10 known for many, many years. 11 In the administration of the 12 previous superintendent, Jim was sort of the 13 nuts and bolts and, as has been mentioned, I 14 think by Senator Hoffmann, one of the things 15 that Jim was asked to do by Tom Constantine was 16 to go out and try to get better relationships 17 with local departments, and having come from a 18 local department in the -- in days gone by, 19 there was a lot of problems with not only local 20 departments, but even more so with sheriff's 21 departments and as Jim McMahon knows well, one 22 of the areas where there's been a problem is my 23 own area of Buffalo where the sheriff's 9458 1 department and State Police sometimes, shall we 2 say, disagreed a little bit, but Jim was one of 3 the people who was dispatched to various places 4 to try to iron out problems and to try to 5 rationally come up with solutions to law 6 enforcement problems. Probably was more 7 successful than anybody I know of because he was 8 so well respected by not only the State Police 9 themselves, but also by the other law 10 enforcement officers who realized immediately 11 that he was a person who was more interested in 12 the integrity of the job and in solving problems 13 than he was in showing his own importance. 14 There's no question that he is 15 considered to be a trooper's trooper. I have 16 always said that -- and I guess having come from 17 a family -- my father once told me the story 18 that he and Malcolm Wilson went to the then 19 Governor Thomas E. Dewey and said to the 20 Governor during a fiscal crisis when the 21 administration was in the process of cutting the 22 State Police and limiting their salaries, and my 23 father said to Tom Dewey, "Look, either pay them 9459 1 or disband them and you're not going to disband 2 them, so you might just as well pay them" and, 3 of course, he did and the State Police as the 4 saying goes, the rest is history. 5 Probably the finest law 6 enforcement organization, I believe, in the 7 country, certainly the finest State Police 8 organization, and we're proud -- I am proud to 9 say that I know Jim McMahon as my friend and 10 that I know him as an excellent Superintendent. 11 The Governor couldn't have picked a better 12 gentleman than Jim McMahon, and I wish you the 13 best of luck in the future, Jim. 14 ACTING PRESIDENT KUHL: Senator 15 Farley on the nomination. 16 SENATOR FARLEY: Thank you, Mr. 17 President. 18 I rise to support the nomination 19 of Jim McMahon from Saratoga County and Ballston 20 Lake, even though I have the town of Ballston - 21 Senator Bruno and I share that county, whose 22 constituent he is, he's Senator Bruno's, but 23 he's very close to being mine. 9460 1 Not only that, I have heard 2 several times and it's hard to -- I don't want 3 to replow the ground that's been said about him, 4 but he's a trooper's trooper. I think I've 5 heard three or four Senators say that. 6 He is admired and respected by 7 his men and I think that's -- and his women that 8 serve in the -- one of the finest police forces 9 in the United States. I think it's a credit to 10 Jim McMahon that not only was he unanimously 11 confirmed in the other administration, but he's 12 a reappointment because of the job that he's 13 done. 14 He's an outstanding 15 Superintendent. He's a credit to the New York 16 State Police. He's been a career man who's had 17 a distinguished career and he's also a decent 18 person and a great family man with three 19 children, and it's with enthusiasm that I 20 support his nomination. 21 ACTING PRESIDENT KUHL: Senator 22 Dollinger on the nomination. 23 SENATOR DOLLINGER: Mr. 9461 1 President, I rise to second this nomination. 2 Before he was either involved in 3 a dispute between Senator Farley and Senator 4 Bruno over whose constituent he was, Jim McMahon 5 was born in the city of Rochester and raised in 6 the city of Rochester in a little neighborhood 7 called Bull's Head which is in the north part of 8 the 19th ward in the city of Rochester, and he 9 picked up his early education in the 19th Ward, 10 and I think it was a good one. 11 I would also point out that he is 12 probably among the half dozen most, in my 13 judgment anyway, celebrated graduates of Monroe 14 Community College, which is our community 15 college in Monroe County. 16 His resume, as Senator Nozzolio 17 suggests, is the height of professionalism, 18 rising from a trooper -- starting off as a 19 trooper and becoming the Superintendent. He's 20 been a role model for people in the State 21 Police. He's been a role model of public 22 servants and he will continue to be a strong 23 role model for my community in his continued 9462 1 growth and development as the Superintendent of 2 the State Police. 3 So my congratulations go out to 4 him, and I wish him well in his tenure. 5 ACTING PRESIDENT KUHL: Is there 6 any other Senator wishing to speak on the 7 nomination? 8 (There was no response.) 9 Hearing none, the question is on 10 the nomination of James W. McMahon of Ballston 11 Lake to be the Superintendent of State Police. 12 All those in favor of the nomination signify by 13 saying aye. 14 (Response of "Aye".) 15 Opposed, nay. 16 (There was no response.) 17 The nominee is confirmed. 18 The Superintendent is with us in 19 the chamber. Congratulations, Superintendent. 20 I thought there would be more people speaking, 21 but I forgot that the 65-mile-an-hour speed 22 limit had been raised -- it had been raised to 23 65. 9463 1 Congratulations. 2 (Applause.) 3 The Secretary will read. 4 THE SECRETARY: Senator Stafford, 5 from the Committee on Finance, offers the 6 following nomination: John L. Buono of 7 Castleton, Director of the Facilities 8 Development Corporation and member of the New 9 York State Medical Care Facilities Finance 10 Agency. 11 ACTING PRESIDENT KUHL: The 12 question is on the confirmation of John L. Buono 13 to be member -- a member of the state Medical 14 Care Facilities Finance Agency and also Director 15 of the Facilities Development Corporation. All 16 those in favor of the nomination signify by 17 saying aye. 18 (Response of "Aye".) 19 Opposed, nay. 20 (There was no response.) 21 The nominee is confirmed. 22 The Chair recognizes Senator 23 Bruno. 9464 1 SENATOR BRUNO: Mr. President, 2 can we at this time return to the controversial 3 calendar. 4 ACTING PRESIDENT KUHL: The 5 Secretary will read the controversial calendar. 6 THE SECRETARY: Calendar Number 7 1097, by Senator Tully, Senate Print 3848, an 8 act to amend the Environmental Conservation Law 9 and State Finance Law, in relation to enacting 10 the Voluntary Remediation Act of 1995. 11 SENATOR OPPENHEIMER: 12 Explanation, please. 13 ACTING PRESIDENT KUHL: Senator 14 Tully, an explanation of Calendar Number 11... 15 excuse me, 1097 has been asked for by Senator 16 Oppenheimer. 17 SENATOR TULLY: Yes, Mr. 18 President. This legislation amends the 19 Environmental Conservation Law by adding a new 20 Title 14 to Article 27. It establishes a 21 voluntary remediation program within the 22 Department of Environmental Conservation. 23 SENATOR OPPENHEIMER: Would the 9465 1 Senator please yield for a question? 2 ACTING PRESIDENT KUHL: Senator 3 Tully, do you yield to Senator Oppenheimer? 4 SENATOR TULLY: Yes, Mr. 5 President. 6 ACTING PRESIDENT KUHL: The 7 Senator yields. 8 SENATOR OPPENHEIMER: I don't 9 understand, Senator Tully, why this is 10 necessary, because the DEC already has the legal 11 authority to enter into agreements with private 12 parties for the -- for remediation of these 13 inactive hazardous waste sites, so I'm 14 questioning what's the need for this? Doesn't 15 it already exist, the opportunity for DEC to do 16 this? 17 SENATOR TULLY: Mr. President, 18 this deals particularly with sites that do not 19 pose an imminent danger to the public health or 20 the environment and only they can take part in 21 this remediation program. Presently, 20 other 22 states have implemented this type of legisla 23 tion, voluntary cleanup programs, including 9466 1 Massachusetts, Connecticut, New Jersey, Indiana 2 and Ohio. 3 SENATOR OPPENHEIMER: Thank you, 4 Senator. 5 I'm still not certain why -- why 6 it's necessary, because I believe it is also - 7 it's already possible under the DEC's legal 8 authority, but let me ask you another question. 9 ACTING PRESIDENT KUHL: Senator 10 Tully, do you continue to yield? 11 SENATOR TULLY: Yes, Mr. 12 President. 13 ACTING PRESIDENT KUHL: The 14 Senator continues to yield. 15 SENATOR OPPENHEIMER: Why should 16 someone who has contaminated their property be 17 held exempt from all future liability as long as 18 they participate in this voluntary cleanup 19 program? 20 SENATOR TULLY: This basically 21 applies, Mr. President, to situations dealing 22 with "brownfield" type operations where there 23 might have been an industrial area previously 9467 1 used with contamination and subsequently there 2 is a new owner who had nothing to do with the 3 original contamination and this is to provide 4 and allow them to participate voluntarily in the 5 cleanup. 6 ACTING PRESIDENT KUHL: Senator 7 Oppenheimer. 8 SENATOR OPPENHEIMER: Well, I 9 believe it is a lesser standard and that is not 10 being addressed. 11 Let me ask it another way. Why 12 should known polluters who voluntarily clean up 13 their property be held to the lesser standard of 14 cleanup than other polluters who are being 15 forced to comply with the laws? 16 SENATOR TULLY: That's a good 17 question, Mr. President. If they were the 18 polluters, I could understand the gravamen 19 behind the question, but since these are people 20 who have acquired it subsequent to whatever 21 alleged pollution took place, they are being 22 given this opportunity. 23 To respond further back to your 9468 1 original question, the covenant not to sue does 2 not apply to future liability to a condition or 3 to the extent of a continue that was present on 4 the site but not known to the department at the 5 time the certificate of completion was issued. 6 ACTING PRESIDENT KUHL: Senator 7 Oppenheimer. 8 SENATOR OPPENHEIMER: This 9 voluntary -- if the Senator would yield for 10 another question, please. 11 SENATOR TULLY: Yes, Mr. 12 President. 13 SENATOR OPPENHEIMER: A voluntary 14 remediation program that circumvents existing 15 hazardous waste cleanup programs, to my way of 16 thinking, the program permits a lesser standard. 17 Do you have any strong or quantifiable evidence 18 that the state or the federal Superfund program 19 has been an insurmountable obstacle to the 20 development of "brownfield" sites? 21 SENATOR TULLY: Well, currently, 22 state law, Mr. President, does nothing to 23 encourage voluntary cleanups of contaminated 9469 1 property from financial assistance to limiting 2 liability for cleanups, and I think the fact 3 remains that each and every one of us in our own 4 communities are aware of sites that deserve 5 cleanup and, in many cases, the funding is not 6 readily available to take care of that cleanup. 7 I think the fact that this legislation provides 8 for voluntary cleanup, it provides a financial 9 mechanism which allocates a quarter of a million 10 dollars from the 1986 Environmental Quality Bond 11 Act to DEC to start up the program is a 12 refreshing opportunity to preserve our 13 environment. 14 SENATOR OPPENHEIMER: Thank you, 15 Senator Tully. 16 On the bill. 17 ACTING PRESIDENT KUHL: Senator 18 Oppenheimer, on the bill. 19 SENATOR OPPENHEIMER: I think 20 most everyone would agree that the cleanup in 21 New York State of these contaminated sites has 22 moved much too slowly and, therefore, I think 23 many of us would agree that we should try and 9470 1 expedite them. 2 I think the problem with this 3 bill -- and I think that's why it has rated a 4 big three chimney stacks, which is about as bad 5 as you can get, is because of the way that it 6 has been chosen in this bill to lessen the 7 requirements for improving the quality of these 8 sites. It has lessened the environmental 9 protections on these sites and there are ways 10 that this could have been accomplished. 11 Voluntary compliance could have 12 been accomplished through other means, perhaps 13 through a tax break, perhaps through some 14 economic development source of funds. The fact 15 is that this bill chooses to do it through 16 lessening the protections of the environment and 17 I think it's unfortunate that these voluntary 18 cleanups will be held to a much lower 19 standard and - 20 ACTING PRESIDENT KUHL: Excuse 21 us, Senator Oppenheimer. 22 I want to thank you and Senator 23 Connor and the entire Senate Minority for making 9471 1 sure that a short stick is never present at the 2 podium again. We will control this chamber 3 (Laughter). There was a little giggling going 4 on in this chamber. I want to get some things 5 in order in this chamber. Please excuse the 6 interruption. 7 SENATOR OPPENHEIMER: I'm not 8 going to make any comment on lengths of things 9 anymore, but I must say that looks more like a 10 croquet mallet than it does like a -- okay. 11 Where was I? 12 I think we are rewarding the 13 polluters who now only have to remediate the 14 waste site at a much lower level and I think it 15 does harm to our environment, to our ecosystems 16 and what if, Lord forbid, the property use 17 changes from being commercial to being 18 residential, in which case, the cleanup -- the 19 earlier cleanup will have been totally 20 inadequate. 21 We support the idea that DEC 22 produce a voluntary -- voluntary cleanup bill 23 that will provide a degree of consistency and 9472 1 certainty that is beneficial. It would enable 2 some new cleanup money to come into the equation 3 which is essential. However, to diminish the 4 protection of human beings and of the 5 environment is atrocious and, therefore, we feel 6 this bill is very harmful and should be 7 rejected. 8 I will be voting no. 9 ACTING PRESIDENT KUHL: Senator 10 Espada. 11 SENATOR ESPADA: Would the 12 sponsor yield to a question? 13 ACTING PRESIDENT KUHL: Senator 14 Tully, do you yield to Senator Espada? 15 SENATOR TULLY: Yes, Mr. 16 President. 17 ACTING PRESIDENT KUHL: The 18 Senator yields. 19 SENATOR ESPADA: Thank you, 20 Senator Tully. 21 The bill on page 7, line 50 22 speaks to -- speaks to reasonable cost that 23 would be reimbursed to DEC for said cleanup, and 9473 1 my question is why that kind of discretionary 2 standard versus the more actual cost method of 3 reimbursing DEC? 4 SENATOR TULLY: Yes, Mr. 5 President. It's not really discretionary. If 6 you'll go further to page 8 of the bill and get 7 to line 46, "establishing the voluntary 8 remediation fund", you'll see that this program 9 requires that the owner/operator or prospective 10 operator in participating must include a 11 preliminary environmental assessment, and when 12 they enter into this agreement, part and parcel 13 of it is that it will be funded by this 14 voluntary remediation fund. 15 SENATOR ESPADA: The -- if I may, 16 Mr. President, the public involvement in this 17 voluntary program, could you explain what 18 provision has been made for -- for public 19 involvement and while we're on public 20 involvement, a related matter of notice to the 21 public, if you would, please? 22 SENATOR TULLY: The Department is 23 required to publish a notice requesting comments 9474 1 on any proposed remedial plan in the 2 Environmental Notice Bulletin, and this gives 3 the Department authority to hold a public 4 meeting if it finds that the comments received 5 raise substantive and significant issues 6 relating to the adequacy of the proposed 7 remedial plan. 8 Basically, Senator Espada, the 9 thrust behind this legislation is the fact that 10 there are many, many small towns in our state 11 that are losing jobs and population and when we 12 lose our competitive edge, so does the rest of 13 our state, and this is due, in no small part, to 14 the abandonment of previously used commercial 15 and industrial property which may contain 16 environmental contamination. 17 SENATOR ESPADA: Mr. President, 18 if we could continue for one more question. 19 ACTING PRESIDENT KUHL: Senator 20 Tully, do you continue to yield? 21 SENATOR TULLY: Yes, Mr. 22 President. 23 ACTING PRESIDENT KUHL: The 9475 1 Senator continues to yield. 2 SENATOR ESPADA: Senator Tully, 3 we're certainly cognizant and very appreciative 4 of your comments with respect to smaller towns, 5 but large inner city communities with industrial 6 sites, particularly my own. I represent an area 7 that has 40 waste stations, an incinerator, 8 medical waste plant, and I can go on. 9 The issue of lessening or 10 lowering of standards is of tremendous concern, 11 because this bill would set up a standard that 12 relies on the pre-release conditions on 13 relations -- on the proposed use rather than 14 some objective standards that take in nearby 15 uses, like, i.e., residential communities, so 16 the concern here is that if we rely on the 17 standards inherent in this bill, that they will, 18 in fact, be, if not a lessening of standards, 19 certainly we will ignore nearby uses and, in 20 particular, residential neighborhoods. 21 SENATOR TULLY: Thank you, 22 Senator Espada, and that's a good question. The 23 use is recorded in the land reference initially, 9476 1 and if the use changes, the standard changes as 2 well. 3 SENATOR ESPADA: Thank you, 4 Senator, for his responses. 5 ACTING PRESIDENT KUHL: The 6 Secretary will read the last -- excuse me. 7 Senator Leichter. 8 SENATOR LEICHTER: Senator Tully, 9 would you please yield? 10 ACTING PRESIDENT KUHL: Senator 11 Tully, do you yield to Senator Leichter? 12 SENATOR TULLY: Yes, Mr. 13 President. 14 ACTING PRESIDENT KUHL: The 15 Senator yields. 16 SENATOR LEICHTER: It's 17 remarkable, Mr. President, when this bill 18 originally initiated, this was no opposition 19 memo from EPL. There were only memos in support 20 from the Business Council and the Conference of 21 Mayors, but one little three smoke tack memo, 22 remarkable how it peaks the curiosity of some 23 people this this chamber, and I would be 9477 1 delighted to respond to Senator Leichter. 2 ACTING PRESIDENT KUHL: The 3 Senator yields. 4 SENATOR LEICHTER: Senator, my 5 curiosity, indeed, increases the more I look at 6 the bill, and that's why I rise to ask you a 7 question and maybe you can satisfy my 8 curiosity. 9 On page 7, Section -- Section 9, 10 beginning on line 24, what is the intent and 11 what is the meaning of that provision as you 12 read it? 13 SENATOR TULLY: That's a very 14 interesting question. So far, Senator Leichter, 15 this legislative intent question is always 16 fascinating. I'm trying to get to the bottom of 17 it for you. If you'll bear with me for a 18 moment. 19 SENATOR LEICHTER: Maybe I can 20 sharpen my -- my question, if that would help or 21 I could wait until - 22 SENATOR TULLY: If you would 23 sharpen your question, that would be even 9478 1 better. You'll probably sharpen the wits of 2 those surrounding me. 3 SENATOR LEICHTER: As I read 4 this, an affected person who implements a 5 voluntary remedial program and who's subject to 6 a covenant not to sue, is he, in a sense, 7 immunized then for claims that could be brought 8 for damages that have occurred as a consequence 9 of some act of pollution, of creating this 10 hazardous site that that person would otherwise 11 be responsible for? 12 SENATOR TULLY: Mr. President, 13 the covenant not to sue does not require the 14 future liability for a condition or the extent 15 of a condition that was present on the site but 16 not known to the Department at the time the 17 certificate of completion was issued, lest the 18 burden is on the affected party to ensue - 19 ensure that all contamination on the site is 20 discovered and included in the plan. 21 ACTING PRESIDENT KUHL: Senator 22 Leichter. 23 SENATOR LEICHTER: Senator, it 9479 1 may well be, as I read the consequence of a - 2 the covenant not to sue that we're giving 3 protection to the affected person for claims, 4 not by the Department. I have no problem if the 5 Department or the state of New York says, 6 "Listen, you voluntarily clean this up 7 according to a plan we approved, we're not going 8 to go after you. We're not going to sue 9 you." But you seem to go beyond that. You seem 10 to be taking away the rights of third persons, 11 of you and me, to sue for damages that have 12 occurred or to seek contribution and, frankly, 13 that troubles me. 14 SENATOR TULLY: I understand your 15 concern, Senator Leichter, and I might indicate 16 to you that you're fully familiar with the 17 provision in law that everyone has the right to 18 alienate their property, and if the property has 19 been examined, if an existing condition has been 20 corrected through voluntary remediation and if 21 the Department issues to the affected party a 22 certificate of completion and a covenant not to 23 sue, both of these are definitely transferable 9480 1 when you alienate the property and that's as it 2 should be. 3 SENATOR LEICHTER: But the - 4 Senator, if you could continue to yield. 5 ACTING PRESIDENT KUHL: Senator 6 Tully, do you continue to yield? 7 SENATOR TULLY: I do, Mr. 8 President. 9 ACTING PRESIDENT KUHL: The 10 Senator continues to yield. 11 SENATOR LEICHTER: What I'm 12 concerned about is that now this tortfeasor may, 13 as I read this, under some circumstances at 14 least may be shielded from being sued for the 15 wrongs that he did. 16 SENATOR TULLY: No, no. I think 17 there is a misunderstanding there, Senator 18 Leichter. If some new incident arises to create 19 a new contamination, that person is not 20 shielded. In many cases, the individual who is 21 getting the certificate of completion from the 22 DEC and the covenant not to sue was not in any 23 way involved in the first instance in the 9481 1 creation of the problem. They were someone who 2 acquired the property unknowingly and didn't 3 know that this condition existed. Now they 4 volunteer to clean it up so they can utilize the 5 property, develop some type of commercial 6 commerce, develop some jobs, and after they 7 clean it up, they now get the covenant not to 8 sue and the certificate of completion and I 9 think that's exactly what the bill is about. 10 SENATOR LEICHTER: Excuse me. If 11 you'll continue to yield, Senator. 12 ACTING PRESIDENT KUHL: The 13 Senator continues to yield. 14 SENATOR TULLY: I do, Mr. 15 President. 16 SENATOR LEICHTER: Senator, I 17 understand your sympathy to the person who's an 18 innocent party, he's acquired this property, but 19 as you define "affected person," that could also 20 be the polluter. I mean, you failed to 21 distinguish between the affected -- you could 22 have used language "affected person who is 23 responsible for the condition" or "affected 9482 1 person who acquires the land or was not 2 responsible", but you give the tortfeasor the 3 same protection, and that's the problem that I 4 have. 5 SENATOR TULLY: The tortfeasor, 6 Mr. President, would have no protection 7 whatsoever unless they clean the property up, 8 unless they got the certificate of completion 9 from the DEC, meaning if they have complied with 10 all the requirements that exist under the laws 11 of this state as they relate to the DEC. 12 SENATOR LEICHTER: Well, let me 13 ask you the specific question. 14 ACTING PRESIDENT KUHL: Senator 15 Tully, do you continue to yield? 16 SENATOR TULLY: Yes. 17 ACTING PRESIDENT KUHL: The 18 Senator continues - 19 SENATOR TULLY: I might say, 20 Senator Leichter, that the suit is only barred 21 for contribution from other responsible parties 22 because the affected party has paid his share - 23 his or her share in cleaning the contamination 9483 1 up. 2 SENATOR LEICHTER: Well, let me 3 -- let me see if I can phrase a -- an example 4 of what concerns me. You have an affected 5 party, and that affected party was a tortfeasor, 6 now enters into a remedial program, completes 7 the remedial program and gets a certificate, 8 that is a covenant not to sue, however that's 9 called. 10 Somebody now brings an action 11 because either their person or their property 12 was injured, and that person sues another 13 tortfeasor or alleged tortfeasor. That alleged 14 -- other alleged tortfeasor now tries to bring 15 in the affected party. 16 As I read this bill, that cannot 17 be done because you cannot have contribution. 18 SENATOR TULLY: That is not so, 19 Mr. President, as I indicated earlier, that the 20 covenant not to sue does not apply to future 21 liability for a condition present on the site 22 but not known to the Department at the time the 23 certificate of the completion was issued. If 9484 1 they issue a certificate of completion and they 2 say that this job has been cleaned up and 3 there's no longer any problem, then the burden 4 is on the affected party to ensure all 5 contamination on the site is discovered and 6 included in the plan. 7 SENATOR LEICHTER: Mr. President 8 -- Senator Tully, I'm dealing with a condition 9 that was known to the Department. Let's say 10 some hazardous material was put in there, but a 11 person whose condition or whose injury didn't 12 manifest itself until after the implementation 13 of the plan, so it's a pre-existing condition; 14 it's not a future liability. I understand 15 future liability, but this was a pre-existing 16 condition. The Department knew that this 17 hazardous material was in there, but this 18 particular person, let's say it was asbestos or 19 something, it took seven or eight years for the 20 condition to manifest itself, now he wants to 21 sue the affected person or he wants -- or he 22 wants to sue the affected person of somebody 23 else or he sues somebody else and that third 9485 1 party wants to bring in the affected person, but 2 you seem to be shielding the affected person 3 that, in my example, the affected person is the 4 tortfeasor. Should we give that sort of 5 protection? 6 SENATOR TULLY: Yes, Mr. 7 President. This is -- this legislation, in no 8 way is to release him from liability from the 9 injured party. The ban on contribution only 10 applies once he's cleaned up so far that the 11 other responsible party pays without 12 contribution from the volunteer. 13 SENATOR LEICHTER: Well, Senator, 14 just one other question on another section, if 15 you would continue to yield, please. 16 If you would look at number 7, 17 this would seem to shield the affected party 18 while he's implementing a voluntary remedial 19 program. Nobody can sue him to compel that he 20 do any action other than as provided in the plan 21 of remediation. Even another governmental 22 agency couldn't sue him; is that correct? 23 SENATOR TULLY: That's correct, 9486 1 Mr. President. 2 SENATOR LEICHTER: Here too, 3 Senator -- I just want to ask you. Are we 4 giving - 5 ACTING PRESIDENT KUHL: Senator 6 Tully, do you continue to yield? 7 SENATOR TULLY: Yes, I do, Mr. 8 President. 9 ACTING PRESIDENT KUHL: The 10 Senator continues to yield. 11 SENATOR LEICHTER: Senator, are 12 we giving protection to the affected person that 13 really goes beyond a reasonable incentive to get 14 him to do this cleanup voluntarily? 15 SENATOR TULLY: Mr. President, I 16 can see the argument being made if it were not 17 true that 20 other states have implemented 18 voluntary cleanup programs just as this one. 19 There's been no indication from the legislation 20 that's been activated in these states that there 21 are any of the problems that you're referring 22 to. 23 SENATOR LEICHTER: Senator, I may 9487 1 just ask you on this particular point, do 2 remedial -- voluntary remediation is one thing. 3 I think we all agree that that's something that 4 should be done and, in fact, the Department 5 presently has the power to enter into a 6 voluntary remediation plan. In those 20 states, 7 do they all have the same provisions that you 8 and I have just been discussing? 9 SENATOR TULLY: Most of the 20 10 states do, I'm advised by counsel, Senator 11 Leichter. 12 SENATOR LEICHTER: Thank you very 13 much, Senator Tully. 14 SENATOR TULLY: You're welcome. 15 SENATOR LEICHTER: I have no 16 problem with an effort to try to get more 17 voluntary remediation, and obviously to get 18 something to somebody to do voluntary 19 remediation, you got to give up something. It's 20 a compromise, and I can see having some 21 inducement, having the Department give up 22 certain rights protecting the affected person, 23 even if it's the tortfeasor, from certain action 9488 1 that the state would take. 2 What I'm concerned about in this 3 particular bill is that we give a degree of 4 protection, of immunization, to the affected 5 person and the affected person is not, as 6 Senator Tully first says, always an innocent 7 party who acquired the land. It may well be the 8 tortfeasor. It may be the person who dumped 9 those chemicals on the land who failed to abide 10 by proper environmental standards. Now while he 11 does the clean-up, nobody can sue him for 12 remediation. 13 Secondly, he -- as I read this, 14 he may not be sued for contribution by somebody 15 else who's alleged to be a tortfeasor for 16 pre-existing conditions. I just think that 17 we're giving away too much. That's my problem 18 with this particular bill. You say 20 states 19 have it, but you acknowledge that at least not 20 all of them have these far-reaching provisions. 21 I think it's a question, have we 22 struck a good deal? And I would say that we 23 bend over too far. I want to get voluntary 9489 1 remediation, but I don't want to give up as much 2 as this bill gives up. 3 And, therefore, I agree with 4 Senator Oppenheimer, that it's not a wise bill 5 and I'm going to vote against it. 6 ACTING PRESIDENT KUHL: Senator 7 Paterson. 8 SENATOR PATERSON: Mr. President, 9 if Senator Tully would just yield for one 10 question. 11 SENATOR TULLY: Yes, Mr. 12 President. 13 ACTING PRESIDENT KUHL: The 14 Senator yields. 15 SENATOR PATERSON: Senator Tully, 16 a number of these -- a number of these areas lie 17 in heavily minority districts and under 18 privileged areas. With a standard such as 19 voluntary remediation, do you think that we may 20 risk the possibility of individuals who don't 21 live in the afflicted area in a sense polluting 22 the area, sort of quasi-environmental racism, so 23 to speak, and really bringing a great deal of 9490 1 harm on those particular premises that the 2 polluter may not reside or may not feel that the 3 polluter has -- the individual has any real 4 connection with the population that lives 5 there? 6 SENATOR TULLY: Thank you, 7 Senator Paterson. 8 The point to be remembered with 9 respect to this legislation, I think, is that 10 only sites which do not pose an imminent danger 11 to the public health or the environment can take 12 part in the first instance in the voluntary 13 remediation program. 14 SENATOR PATERSON: Thank you, 15 Senator. 16 ACTING PRESIDENT KUHL: The 17 Secretary will read the last section. 18 THE SECRETARY: Section 7. This 19 act shall take effect on the 90th day. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll.) 23 ACTING PRESIDENT KUHL: Announce 9491 1 the results when tabulated. 2 THE SECRETARY: Those recorded in 3 the negative on Calendar 1097 are Senators 4 Abate, Connor, Espada, Jones, Leibell, Leichter, 5 Markowitz, Onorato, Oppenheimer, Paterson, 6 Stachowski and Stavisky. Ayes 48, nays 12. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 Senator Leichter, why do you 10 rise? 11 SENATOR LEICHTER: I ask for 12 unanimous consent to be voted in the negative on 13 Calendar 929, please. 14 ACTING PRESIDENT KUHL: Without 15 objection, Senator Leichter will be recorded in 16 the negative on Calendar Number 929. 17 Senator Gold, I see you 18 motioning. Would you want the same request? 19 SENATOR GOLD: 1097. 20 ACTING PRESIDENT KUHL: Without 21 objection, Senator Gold will be recorded in the 22 negative on Calendar Number 1097. 23 The Chair recognizes Senator 9492 1 Wright. 2 SENATOR WRIGHT: Mr. President, I 3 request unanimous consent to be recorded in the 4 negative on Calendar Number 225, Senate 90... 5 975-B. 6 ACTING PRESIDENT KUHL: Without 7 objection, Senator Wright will be recorded in 8 the negative on Calendar Number 225. 9 The Secretary will continue to 10 call the controversial calendar. 11 THE SECRETARY: Calendar Number 12 1187, by Senator Hoblock, Senate Print 5173-A, 13 an act to amend the Criminal Procedure Law and 14 the Penal Law, in relation to the definition of 15 juvenile offender. 16 SENATOR PATERSON: Explanation. 17 ACTING PRESIDENT KUHL: Senator 18 Hoblock, an explanation of Calendar Number 1187 19 has been asked for by the Acting Minority 20 Leader, Senator Paterson. 21 SENATOR HOBLOCK: Mr. President, 22 this bill amends the Criminal Procedure Law and 23 the Penal Law and extends the definition of 9493 1 juvenile offender for the violation of certain 2 crimes to include 12- and 13-year-olds. 3 Right now, the definition of a 4 juvenile offender for certain crimes are persons 5 14 or 15 years old who are found criminally 6 responsible. This extends the certain crimes to 7 juveniles that are 12 and 13 as well as 14 and 8 15. 9 ACTING PRESIDENT KUHL: Senator 10 Paterson. 11 SENATOR PATERSON: Mr. President, 12 if the sponsor would yield. 13 ACTING PRESIDENT KUHL: Senator 14 Hoblock, do you yield to Senator Paterson? 15 SENATOR HOBLOCK: Yes. 16 ACTING PRESIDENT KUHL: The 17 Senator yields. 18 SENATOR PATERSON: Thank you, 19 Senator. 20 I don't see any great desire on 21 the part of the Law Enforcement Council to pass 22 this legislation. I was wondering, Senator 23 Hoblock, if could you tell us who was actually 9494 1 advocating to include 12- and 13-year-olds under 2 the juvenile status? 3 SENATOR HOBLOCK: This proposal, 4 Senator Paterson, came from the chief 5 administrator of the courts upon the 6 recommendations of an advisory committee on 7 criminal law and procedure following a study 8 they did on the use -- on the possession and use 9 of firearms among juveniles. 10 SENATOR PATERSON: One thing, Mr. 11 President, that I would like to point out is 12 that I prefer this type of legislation a lot 13 more to the ones that we've seen earlier where 14 we kind of unilaterally started changing 15 particular laws to include, in some cases, 16 12-year-olds and 12- and 13-year-olds, but if 17 the sponsor would yield to another question. 18 ACTING PRESIDENT KUHL: Senator 19 Hoblock, do you continue to yield? The Senator 20 continues to yield. 21 SENATOR PATERSON: In this 22 particular bill, the firearms section of the 23 bill, isn't that separate from what the rest of 9495 1 the law would allow in terms of the 2 reclassification of juvenile offender status to 3 12- and 13-year-olds? 4 SENATOR HOBLOCK: I'm not sure if 5 I understand your question, Senator Paterson, 6 but what it does do is that it amends the 7 definition of juvenile offender, then adds a 8 number of sections of the Penal Law for which 9 those 12- or 13-year-olds will be held 10 criminally responsible. 11 SENATOR PATERSON: I guess what 12 I'm really asking, Senator, is the status going 13 to be uniform? 14 SENATOR HOBLOCK: Status 15 uniform? 16 SENATOR PATERSON: In other 17 words, are 12- and 13-year-olds going to be 18 classified this way for all offenses? 19 SENATOR HOBLOCK: For those 20 listed in this bill, yes. 21 SENATOR PATERSON: Right. So 22 what I'm asking you is why do we want to do this 23 in some ways and not in others; In other words, 9496 1 where we don't have a clear standard what age it 2 is that we're going to start classifying younger 3 persons as juvenile offenders. 4 SENATOR HOBLOCK: Well, the ages 5 of 12 and 13, adding to 14- and 15-year-olds 6 which is already in the bill was as a result of 7 these studies that were done about the 8 possession and use of firearms in these 9 particular age groups. 10 I think that we -- I don't know 11 how much studying we need to do, but you pick up 12 newspapers from around this state and you find 13 that, unfortunately, 12- and 13-year-old kids 14 are carrying weapons into the classroom and 15 carrying them on the streets and in other 16 places, and it's unfortunate that this is 17 occurring, but it is occurring, and what we need 18 to do is to give the courts the necessary 19 ability to process these types of cases in this 20 age group. 21 ACTING PRESIDENT KUHL: Senator 22 Paterson. 23 SENATOR PATERSON: But, Senator, 9497 1 the point I'm trying to make is that 12- and 2 13-year-olds, even though they are engaging in 3 the vehemently anti-social behavior that you 4 have just described, they are still 12 and 13. 5 In other words, the standard by which we are 6 actually holding them to based on their -- their 7 age is one that, in spite of the fact that there 8 are increases in these types of offenses, what I 9 would like to know is where -- the research does 10 not show that 12- and 13-year-olds are any more 11 mature than they have been in the past. 12 Obviously, pretty much quite to the opposite, 13 and what I'm saying is that we're now opening 14 the door to a panoply of crime that 12- and 15 13-year-olds can be linked to 14- and 16 15-year-olds and treated as adults. By the 17 adoption of this legislation, we are going to 18 now treat them as adults, and what I'm saying is 19 does the research demonstrate that they are 20 culpable or have the requisite knowledge that we 21 should be treating them as adults? 22 SENATOR HOBLOCK: As far as I 23 know, Senator Paterson, they do. You know, 9498 1 unfortunately as has been pointed out by the 2 chief administrator, that these 12- and 3 13-year-old kids that used to settle their 4 arguments not too long ago with their fists are 5 now using knives and other types of weapons, and 6 what this legislation does, it talks about 7 criminal possession of a weapon in the third 8 degree, criminal possession of a dangerous 9 weapon in various degrees, the use of a firearm 10 in various degrees. It would seem to me that if 11 a 12- or 13-year-old child is mature enough to 12 know how to use one of these weapons to bring 13 about some criminal action, then they're old 14 enough to be tried for that particular offense. 15 ACTING PRESIDENT KUHL: Senator 16 Paterson. 17 SENATOR PATERSON: Senator, the 18 Office of Court Administration did certainly 19 recommend this to be applied to 14- and 20 15-year-olds. Now, to reach down and include 21 12- and 13-year-olds -- and again, I would tell 22 you that you are making the case and you are 23 very much defining what the problem is, but what 9499 1 I'm saying is that a proliferation of these 2 types of violent situations doesn't necessarily 3 establish to me that the individuals involved 4 have the -- the understanding of what they're 5 doing at the level that they should fully be 6 treated as a result. 7 My question to you then is do you 8 know what DFY or any of the youth agencies feels 9 about this type of legislation? 10 SENATOR HOBLOCK: No, I really 11 haven't, Senator Paterson, but let me again 12 emphasize that, you know, if they're mature 13 enough and able to handle one of these weapons 14 and bring about some kind of an assault or 15 perhaps even a death, I think that's got to be 16 dealt with and unless you have some suggestions 17 on how we can try to deter these young people 18 from picking up these types of weapons, not only 19 possessing, but using them, instead of carrying 20 on as they used to, we're seeing that that is 21 being down -- brought down into these various 22 age categories. The statistics show that the 23 leading cause of death for teenage blacks has 9500 1 been the use of these types of weapons. The 2 third leading cause for white teenagers has been 3 the use of these weapons in these age 4 categories. 5 SENATOR PATERSON: Thank you, 6 Senator. 7 On the -- Mr. President, on the 8 bill. 9 ACTING PRESIDENT KUHL: Senator 10 Paterson on the bill. 11 SENATOR PATERSON: Senator 12 Hoblock has defined a very serious problem and I 13 think his initial attempt to address it should 14 be commended. 15 What he's saying is that this is 16 a problem that's gotten out of hand and he wants 17 to address it, and I think we can all understand 18 the fact that he wants to do that. 19 What we are saying, though, is 20 that young people, unfortunately, are characters 21 of mimicry. If it's 12- and 13-year-olds today, 22 I guess we wouldn't want it to be 10- and 23 11-year-olds tomorrow, but the fact that they're 9501 1 engaging in this kind of behavior, does not 2 necessarily mean that they would be held as 3 culpable as adults. It's standard in our 4 criminal justice system and has always been 5 through the history of the implementation of 6 criminal justice punishment that we have always 7 applied the punishment to the crime and also to 8 the knowledge of the criminal at the time that 9 the crime is committed, and I think that in many 10 situations we have individuals who we are 11 saddling with harsh and inhumane penalties when 12 they really could be dealt with in our 13 correctional facilities. 14 In answer to Senator Hoblock's 15 question, I don't know that I really have the 16 answer, Senator Hoblock. I really don't know, 17 to be perfectly honest with you, but we do have 18 a new Division for Youth Commissioner, Mr. 19 Johnson. We do have a whole agency that's been 20 set up. I would be very curious to understand 21 what they think about this, what their 22 recommendations are, and I think that that would 23 be something that would be aptly incorporated in 9502 1 the research that would go into putting this 2 bill forth. We don't want to do anything that 3 is going to harden some younger people who may 4 really be off course and, in a sense, could 5 actually be saved through the correct 6 remediation, and that is the reason that I raise 7 the issue of including 12- and 13-year-olds with 8 the 14- and 15-year-olds who we now treat as 9 adults. 10 ACTING PRESIDENT KUHL: Senator 11 Leichter, why do you rise? 12 SENATOR LEICHTER: Mr. President, 13 I wanted to ask Senator Hoblock to yield, 14 please. 15 ACTING PRESIDENT KUHL: Senator 16 Leichter, I do have a list. 17 SENATOR LEICHTER: Oh, I'm 18 sorry. 19 ACTING PRESIDENT KUHL: Senator 20 Abate is next on the list. 21 SENATOR ABATE: On the bill. 22 ACTING PRESIDENT KUHL: Senator 23 Abate on the bill. 9503 1 SENATOR ABATE: First, would 2 Senator Hoblock yield to a question? 3 ACTING PRESIDENT KUHL: Senator 4 Hoblock, do you yield to Senator Abate? 5 SENATOR HOBLOCK: Yes. 6 ACTING PRESIDENT KUHL: The 7 Senator yields. 8 SENATOR ABATE: What was your 9 rationale for combining -- I mean, there are two 10 major initiatives here. One is expanding the 11 list of felonies that relate to 14- and 12 15-year-olds. Now we have arson and robberies 13 and everything else, included in that list, 14 felony possession of weapons and the use of 15 those weapons; that's one issue. And then you 16 took on another very major issue is including 17 the 12- and 13-year-olds in that eligibility 18 group. Why did you do that together? Why did 19 you see it was necessary to do that? 20 SENATOR HOBLOCK: Well, 21 originally, the bill -- because now it's an "A" 22 print, the original bill had the first scenario 23 as you described adding to the 14- and 9504 1 15-year-olds. The "A" print added the 12 and 13 2 which was an attempt to conform with Senator 3 Larkin's legislation that we spoke about I 4 believe yesterday. 5 SENATOR ABATE: Aren't you - 6 would you continue to yield? 7 ACTING PRESIDENT KUHL: Senator 8 Hoblock, do you continue to yield? 9 SENATOR HOBLOCK: Sure. 10 ACTING PRESIDENT KUHL: The 11 Senator continues to yield. 12 SENATOR ABATE: I understand and 13 there's been a lot of discussion and debate 14 around particularly 14- and 15-year-olds and 15 expanding that category. There's been some 16 debate and discussion because of the rise in the 17 use of weapons, it may be appropriate to include 18 those additional charges, but there hasn't been 19 a lot of debate and hearing -- and particularly 20 when we're looking at reforming the entire 21 juvenile justice system, aren't you in effect 22 saying let's put the 12- and 13-year-olds, now 23 treat them as adults because there's no 9505 1 possibility of reforming how DFY operates their 2 facilities; there's no place now for juveniles 3 in Family Court? Aren't you, in one fell swoop, 4 saying reform isn't doing any good, so let's 5 push all these 12- and 13-year-olds into DOCS, 6 into the adult system? Let's treat them as 7 adults because there's no hope to rehabilitate 8 them in Family Court. 9 SENATOR HOBLOCK: First of all, 10 Senator, I'm not sure about the mandate. We're 11 talking about here the definition of a juvenile 12 offender. Obviously, they've got to be 13 determined to be a juvenile offender to begin 14 with, but it would seem to me if a 12- or 15 13-year-old child today -- and let's -- I think 16 we can agree that there are a number of them 17 that are very sophisticated at 12 or 13, 18 particularly in criminal activity and there's a 19 lot of 12- or 13-year-olds that obviously are 20 not, but those that are and choose to violate 21 these particular provisions of law and, if found 22 guilty as a juvenile offender, then perhaps 23 that's what we ought to be doing. 9506 1 I mean, it's unfortunate but, 2 yes, they are becoming much more mature at an 3 earlier age today, and I think that not only - 4 I don't think we need to sit down and need to 5 have a study and go through a number of hearings 6 and testimonies and all of that. I think we 7 witness it day in and day out, and just to say 8 that we're going to take every 12- or 9 13-year-old under this piece of legislation is 10 not absolutely true. What we are going to do is 11 take those sophisticated 12- or 13-year-olds 12 that choose to commit these particular offenses 13 and are found to be juvenile offenders that, 14 yes, they will be treated accordingly. 15 SENATOR ABATE: Is the 16 rationale - 17 ACTING PRESIDENT KUHL: Senator 18 Hoblock, do you continue to yield? 19 SENATOR HOBLOCK: Yes. 20 ACTING PRESIDENT KUHL: The 21 Senator continues to yield. 22 SENATOR ABATE: Thank you, 23 Senator. 9507 1 Is the rationale for including 2 the 12- and 13-year-olds because you do not feel 3 the sentences are long enough in Family Court? 4 These individuals could get 18 months even 5 beyond that up to 21. Do you feel that the 6 sentences are not sufficient and, therefore, you 7 want them prosecuted as adults so they can spend 8 longer periods of time incarcerated? Is that 9 the philosophy behind the changes? 10 SENATOR HOBLOCK: That's part of 11 it, Senator. I think, again, if they act like 12 an adult, they ought to be treated like an adult 13 in this particular arena in criminal activity, 14 yes, and perhaps -- perhaps they could be given 15 that additional assistance if we have them 16 longer than what they should be there. 17 SENATOR ABATE: Thank you, 18 Senator. 19 On the bill. 20 ACTING PRESIDENT KUHL: Senator 21 Abate on the bill. 22 SENATOR ABATE: I would be less 23 troubled by this legislation if the two issues 9508 1 were separated out, If what we had before us was 2 the inclusion of felony possession of weapon 3 charges for 14- and 15-year-olds, but this bill 4 goes well beyond that and now is including 12 5 and 13-year-olds to be eligible as adult 6 juvenile offenders, and the problem that I have 7 is at a time when we have a statewide debate 8 around the need for juvenile justice reform, we 9 are now single-handedly taking a very critical 10 piece from that debate. 11 I think we as the Senate - 12 because I think this is a very serious issue - 13 should not deal with juvenile justice reform 14 piecemeal. This should be done comprehensively, 15 and I would like this issue to be dealt with and 16 discussed in connection with other issues. 17 Should we be fingerprinting adult -- I'm sorry. 18 Should we be fingerprinting juvenile felons? 19 Should we be looking at the sentence length in 20 the Division For Youth facilities? Is 18 months 21 enough or should we be asking if 18 months is 22 sufficient, why are young kids only doing only 23 six months? Maybe we should be looking at what 9509 1 happens in Family Court and the Division For 2 Youth facilities before we transfer the 12- and 3 13-year-olds into the adult system. We should 4 be looking and discussing supervision after 5 release from a facility. Speedy trial issues, 6 treatment issues, rehabilitation issues, 7 resources in the Family Court, resources in 8 probation, drug treatment. There are a lot of 9 issues that need to be dealt with on a law 10 enforcement end, prevention end and treatment 11 end before we separate out and do in a very, I 12 think haphazard manner, an issue so important as 13 juvenile justice reform. 14 Again, if it were dealing with 15 the existing category of 14- and 15-year-olds, I 16 think that's a reasonable debate and discussion, 17 and I think a lot of the members across the 18 aisle, both sides of the aisle would support 19 that. I think this legislation goes too far and 20 we need to look at this issue comprehensively. 21 ACTING PRESIDENT KUHL: The 22 Secretary will read the last section. 23 SENATOR LEICHTER: Mr. President. 9510 1 ACTING PRESIDENT KUHL: Senator 2 Leichter, why do you rise? 3 SENATOR LEICHTER: Yes. Would 4 Senator Hoblock yield? 5 ACTING PRESIDENT KUHL: Senator 6 Hoblock, do you yield to a question? 7 SENATOR HOBLOCK: Yes. 8 ACTING PRESIDENT KUHL: The 9 Senator yields. 10 SENATOR LEICHTER: Yes, Senator. 11 I must say, I think that Senator Abate makes a 12 lot of sense and I am concerned, frankly, that 13 you would subject 12- or 13-year-olds to being 14 treated in the Criminal Court, but I'm surprised 15 at your memo which says the chief administrator 16 of the courts was the one who made -- who made 17 this request, and I'm not -- first of all, I'm 18 not sure the title, whom you refer to. Are you 19 saying this is an OCA bill? 20 SENATOR HOBLOCK: That's correct. 21 SENATOR LEICHTER: This bill was 22 proposed by the Office of Court Administration? 23 Because I don't see their memo here. 9511 1 SENATOR HOBLOCK: Yes, that's 2 correct. 3 SENATOR LEICHTER: That this came 4 up from Judge Milonas? I just haven't seen any 5 proposal of this sort ever before by -- by OCA. 6 I would -- I certainly accept your word, if you 7 say that's what it is. It just surprises me 8 coming in this form and, frankly, I'm also 9 surprised that OCA would make a recommendation 10 of this sort. 11 SENATOR HOBLOCK: I don't have a 12 letter, Senator Leichter, with me or any kind of 13 a cover memo, but that's -- that's the -- that's 14 the genesis of this. 15 SENATOR LEICHTER: Okay. Mr. 16 President, just briefly on the bill. 17 ACTING PRESIDENT KUHL: Senator 18 Leichter, on the bill. 19 SENATOR LEICHTER: I would just, 20 frankly, be dismayed if we give up on 12- or 21 13-year-olds to the extent of saying that 22 they're mature enough to be treated in the 23 Criminal Courts. Senator Hoblock certainly 9512 1 addresses a very serious problem. I don't think 2 there's anybody here who is saying that the 3 rising tide of violence among very young people 4 isn't a serious problem or doesn't have to be 5 dealt with, but it seems to me to deal with it 6 in the context of the Criminal Court when this 7 society and most other societies have recognized 8 what I think is indisputable that there are such 9 things as children who are not held to the same 10 level and standard of conduct and maturity as 11 people who are older who, at least in their 12 upper teens or have reached the age of maturity, 13 and to think that in some way by dealing with 14 this problem through the criminal courts that 15 we're going to be able to resolve it, to my 16 mind, frankly, is mind boggling and that's why I 17 was very surprised that OCA would come up and 18 say this is the way to deal with crimes among 19 the very young. 20 I just don't think it is. I 21 don't think we can give up on these young people 22 and think that by treating them as we treat - 23 as we treat mature people and holding them 9513 1 responsible under the Criminal Law is a way to 2 deal with this problem. 3 I think we're just going to make 4 the problem worse. I think we need to bring 5 resources. We need to bring effort to help to 6 deal with these young people, but certainly 7 you're not going to find that in the Criminal 8 Courts or I think that this is just not the 9 answer to the problem that we have. 10 ACTING PRESIDENT KUHL: Is there 11 any other Senator wishing to speak on the bill? 12 Senator Montgomery. 13 SENATOR MONTGOMERY: Thank you, 14 Mr. President. 15 I wonder if the sponsor would 16 yield for a couple of questions of 17 clarification. 18 ACTING PRESIDENT KUHL: Senator 19 Hoblock, do you yield to Senator Montgomery? 20 SENATOR HOBLOCK: Yes, I will. 21 ACTING PRESIDENT KUHL: The 22 Senator yields. 23 SENATOR MONTGOMERY: Thank you. 9514 1 Senator Hoblock, does this mean 2 then that the 12- and 13-year-olds would be 3 housed with adults; is that what happens? 4 SENATOR HOBLOCK: Senator 5 Montgomery, the memo in support of this 6 legislation says juvenile weapon offenses could 7 still be initiated in Family Court, and even if 8 charges were initially brought into Criminal 9 Court, juvenile offender actions could still be 10 removed to Family Court and then the 11 disposition, sentencing as an adult in those 12 types of facilities will occur in Family Court 13 as opposed to Criminal Court. 14 SENATOR MONTGOMERY: So the case 15 could still be brought to the Family Court? 16 SENATOR HOBLOCK: The case would 17 probably be brought initially in Criminal Court 18 but could be removed to Family Court. 19 SENATOR MONTGOMERY: I see. But 20 where does the young person end up? 21 SENATOR HOBLOCK: I'm sorry? 22 SENATOR MONTGOMERY: Where does 23 the young person end up? 9515 1 SENATOR HOBLOCK: That would 2 obviously depend on what court they're in and 3 the decision of the judge. 4 SENATOR MONTGOMERY: So if the 5 court proceeds in Criminal Court, they could 6 theoretically end up in DOCS as -- as an adult 7 criminal? 8 SENATOR HOBLOCK: They would no 9 doubt be lined up in some juvenile detention 10 facility. 11 SENATOR MONTGOMERY: All right. 12 Senator Hoblock, if you would continue to yield. 13 ACTING PRESIDENT KUHL: Senator 14 Hoblock, do you continue to yield? The Senator 15 continues to yield. 16 SENATOR MONTGOMERY: It is my - 17 my impression that one of the reasons that 18 12-year-olds end up being involved in criminal 19 activity is that they're like little mules, if 20 you know what I mean, and so, therefore, they 21 are acting on behalf of or in concert with some 22 -- some adult or some older person who would be 23 subject to the law. For that reason or -- let 9516 1 me just ask if there is any law which 2 criminalizes any person or business that has a 3 young child participating in crime on their 4 behalf including a business that sells weapons, 5 would they -- would they be in any way liable if 6 a young person happens to get one of these 7 weapons, these machine guns and - 8 SENATOR HOBLOCK: Not under this 9 legislation, Senator Montgomery. 10 SENATOR MONTGOMERY: Are there 11 any legislation in this state? Do we have any 12 such law that says that if a person or if any 13 weapon is sold and ends up in the hands of a 14 12-year-old that that business is going to be 15 held liable for the use of that weapon? 16 SENATOR HOBLOCK: No more than 17 what's under current law, which I understand 18 would be contributing to the delinquency of a 19 minor or something like that, but I don't know 20 of any particular law that specifically deals 21 with giving or selling a weapon. 22 SENATOR MONTGOMERY: That ends up 23 in the hands of a 12-year-old. 9517 1 SENATOR HOBLOCK: That's 2 correct. Now, as you may recall, Senator 3 Montgomery, we tried to increase the offenses 4 for the sale of drugs - 5 SENATOR MONTGOMERY: Yes, I'm 6 aware of that. 7 SENATOR HOBLOCK: -- to minors on 8 certain properties in the last couple of weeks 9 that a lot of people had objection to and I 10 would not be adverse to legislation penalizing 11 those that take that drastic step by putting 12 weapons into the hands of our young people. 13 SENATOR MONTGOMERY: Okay. Thank 14 you. 15 Mr. President, on the bill 16 briefly. 17 ACTING PRESIDENT KUHL: Senator 18 Montgomery, on the bill. 19 SENATOR MONTGOMERY: Obviously, 20 this bill is very troublesome and I don't have 21 in front of me the figures and I don't know if 22 anyone in the room has at the moment, but it 23 seems to me that while we are withdrawing 9518 1 support in the way of funding from prevention, 2 from youth programs, we do not have in the state 3 of New York, to my knowledge at this time, a 4 program or a funding stream that is directed to 5 fund programs for youth, and we do not have a 6 funding stream that is targeted at developing 7 youth facilities throughout the state for youth 8 recreational purposes, while at the same time - 9 -- and we do not have strong anti-gun control 10 legislation. We don't have on the books as 11 Senator Hoblock has just indicated any law that 12 says if you sell a weapon and that weapon ends 13 up in the hands of a 12-year-old, you will be 14 held liable for a crime. We don't have such a 15 law as that. And at the same time, we have 16 various streams of funding going into the 17 criminal justice system, 200 -- $250 million, I 18 believe it is, that we have just passed in our 19 budget to buy two prisons from New York City, 20 and we spend about $8 million every 24 hours on 21 DOCS and I see trailers, tractor -- I see 22 trailers up and down the highway transporting 23 prisoners and prisoners -- the items that 9519 1 prisoners manufacture and we have plenty of 2 activity around the prison system. Almost 3 70,000 people in the prison system, and here we 4 are today saying that we have no answers for 5 12-year-olds. They're not even teenagers. They 6 are not even yet teenagers. We have no answers 7 in this state for 12-year-olds except we're 8 going to put them in the DOCS system, that we're 9 already bankrupting ourselves on continuing to 10 expand. It's exploding. 11 We cannot -- Senator Hoblock - 12 Mr. President, we cannot afford to continue 13 along these lines. We will not have anything 14 except a huge, huge DOCS system consuming huge 15 amounts of money, and a major percentage of our 16 state budget going into this system and we won't 17 have a higher education system that is premiere 18 in this country and we won't have a premiere 19 health system and, you know, we won't have much 20 else in New York State to boast about except our 21 premiere DOCS system. 22 So this is very troublesome. I 23 -- I know that I'm talking to myself. I feel 9520 1 like I'm singing in the wind like the birds on 2 the highway that I pass up, but I feel compelled 3 to say it. This, to me, is just like a 4 conspiracy and I'm not one to believe in 5 conspiracy theories, but it is the closest thing 6 that I have seen to be a conspiracy to 7 essentially railroad as many young people as we 8 can, and we know who is in the DOCS. We know 9 who's there. It's African-American and Latino 10 primarily males, and we're just going to 11 continue to run them in there and run them 12 through there and cycle them through there and I 13 don't know, but it does not sound to me like a 14 humanitarian approach to our future or our 15 society. 16 So, Mr. President, I really -- I 17 feel so strongly about this. This is the wrong 18 thing to do. It is not -- it does not deter 19 crime because we're not talking about the source 20 of crime. We are just talking about doing 21 something very heinous with the little victims 22 who have already started off on the wrong track 23 and we're saying, there's nothing that we can 9521 1 do. We are not trying to intercede. We are 2 just going to throw you in with the rest of the 3 people who already have been in the system. 4 So I oppose it and I hope that 5 some of my colleagues will be against this awful 6 piece of legislation. 7 Thank you. 8 ACTING PRESIDENT KUHL: The Chair 9 recognizes Senator Volker. 10 SENATOR VOLKER: Mr. President, I 11 would try to contain myself a little bit. I get 12 a little irritated and I know that, Senator 13 Montgomery, you mean very well. I listened to 14 the debate earlier today on assault weapons and 15 I did not speak because I felt that it was 16 really a political issue and it wasn't a good 17 time to get into it. 18 We have the toughest gun laws in 19 the United States of America, in this state. 20 Don't let anybody kid you with all of this 21 nonsense. It isn't assault weapons that kill 22 people, by the way, it is other weapons that are 23 the main source of it and, by the way, Senator, 9522 1 you probably didn't have the opportunity because 2 I was here many years ago and I talked to this 3 little gentleman that you talked about who, at 4 12 years old, had killed about a dozen people. 5 He admitted when he was 14 he killed 14 people. 6 The person involved was the subject of a major 7 inquiry in 1978 and what brought on some of the 8 juvenile statutes in this state. I can assure 9 you some of the 12-year-olds that I met way back 10 when and that are around today are far more 11 dangerous than many of the people that have been 12 in our DOCS system for 20 or 30 years. It is a 13 scary situation. 14 But, Senator, you mentioned, we 15 don't have any youth facilities. We have them 16 all over the state, Senator. We spent millions 17 and millions of dollars on youth facilities. In 18 our budget that we just passed, there's still 19 millions of dollars for youth facilities and for 20 youth funding. 21 Senator, we spend about 30 times 22 as much on education in this state, something to 23 that effect as we spend on the Corrections 9523 1 Department. That's the way it should be. I'm 2 talking about overall funding, the state of New 3 York and local governments. The only reason I 4 mention that is we also, by the way, spend a 5 huge amount more on social services, mental 6 hygiene, and so forth. Yes, some of the funding 7 has been cut, but there's absolutely no 8 comparison between the amount of money that we 9 spend on education, on welfare, on all those 10 kinds of things. Prisons really represent a 11 comparatively miniscule amount, much too big, 12 but a comparatively miniscule amount. 13 Now, what Senator Hoblock is 14 talking about here is dealing with an aspect of 15 the criminal justice system which is in the 16 school and with guns that has become a 17 particular problem, and we have tried all sorts 18 of things to deal with this kind of thing, and 19 this doesn't say, by the way, these people are 20 going to the DOCS system. It does not 21 criminalize. It puts them in the juvenile 22 offender status, which is a different kind of 23 status. The problem is that we have tried all 9524 1 sorts of things. 2 Senator Abate, you talked about 3 it comprehensively. We have been looking 4 comprehensively at this issue for a long, long 5 time and there's just varying philosophies on 6 how we deal with it, but slowly but surely the 7 state is moving toward tougher penalties and a 8 more firm stance for younger people because, 9 unfortunately, the amount of young people who 10 are committing crimes in this state, serious 11 crimes, has become somewhat alarming. So we are 12 very concerned about it; but, Senator 13 Montgomery, to say -- and I know your 14 frustration because I know the kind of district 15 you have -- to say that we haven't tried all 16 sorts of programs and -- to deal with these 17 kinds of things is really I don't think quite 18 accurate and let me point out, we just had a 19 study done of the youth facilities in this state 20 and I think you know that it did not come out 21 very well, to the point where we are seriously 22 looking at shifting the secured facilities under 23 the aegis of DOCS because, frankly, it appeared 9525 1 that they were being managed much, much better 2 and we were able to get a much better result 3 from the DOCS facilities. 4 Now, that - 5 ACTING PRESIDENT KUHL: Senator 6 Montgomery -- excuse me. 7 SENATOR VOLKER: -- is being 8 reviewed. Now we have a new commissioner and 9 all of that, that's fine, but I must remind you, 10 these are not necessarily the little ones. 11 These are pretty tough people in many cases, and 12 you can't blame it on -- just on society because 13 many of the kids that come from single-parent 14 families turn out very well. They come from 15 difficult families, but some don't. Some of 16 these kids, by the way, are wealthy kids. 17 They're not necessarily poor kids. 18 ACTING PRESIDENT KUHL: Excuse 19 me. Senator Montgomery, why do you rise? 20 SENATOR MONTGOMERY: Would 21 Senator Volker yield for just one - 22 SENATOR VOLKER: Sure. 23 ACTING PRESIDENT KUHL: The 9526 1 Senator yields. 2 SENATOR MONTGOMERY: Senator 3 Volker, when I say "youth facilities", I'm 4 talking about youth cultural centers, centers 5 where youth can go and have cultural and 6 recreational and other kinds of activities. Are 7 those -- did we just spend millions of dollars 8 on constructing centers like that? 9 SENATOR VOLKER: Now, what you're 10 talking about is we have built in the past youth 11 facilities all over the state as I think you're 12 aware, but what you're saying is that there was 13 a -- the huge funding stream set up here a 14 couple years ago and, as I understand it in this 15 budget, that funding stream has been -- has been 16 frozen, that's true, but what I'm saying to you 17 is that there's been millions of dollars and 18 still continues to be spent on the youth in the 19 budget that just passed and we have already 20 provided an enormous amount of funding over the 21 years to try to deal with the issue of youths, 22 and what I'm pointing out is that you can't say 23 that we haven't made an attempt to deal with 9527 1 that. 2 It's like saying in a state -- in 3 the city of New York where for a long period you 4 couldn't even get a gun because they weren't 5 issuing licenses for guns, to say that somehow 6 we haven't been tough on the gun issue, it's 7 absolutely not true. That's all I'm saying and 8 I understand your concern. We have a concern, I 9 think all of us do, but I think the one thing 10 that you should -- it seems to be careful of is 11 -- is that these are not necessarily kids. 12 Despite the fact that they may be young in age, 13 some of them are extremely dangerous people, and 14 when we deal with these people and -- we had 15 better deal with them with a healthy respect 16 because, unfortunately, there are people that, 17 whether they're white or black or whatever they 18 are, and I can say people there's upstate and 19 downstate, all over the place, that I think we 20 have to deal with in a different manner than we 21 have in the past. 22 ACTING PRESIDENT KUHL: Senator 23 Montgomery. 9528 1 SENATOR MONTGOMERY: Mr. 2 President, I just wanted to see if Senator 3 Volker would yield. I wanted to ask him another 4 question related to - 5 ACTING PRESIDENT KUHL: Senator 6 Volker, do you yield to Senator Montgomery 7 again? 8 SENATOR MONTGOMERY: Senator 9 Volker, the -- there was a hearing in 10 Westchester County, I think, held by Senator 11 Oppenheimer, and one of the people who was very 12 much involved in after school programs - 13 there's an organization of after school programs 14 -- reported that there are some 600,000 15 children who have no place to go after school in 16 the state. Did we expand the funding for after 17 school programs in this state which, by the way, 18 after school programs take children in up until 19 the age of 12 in this state. Did we expand that 20 funding this year? 21 SENATOR VOLKER: Frankly, I don't 22 believe we did. 23 SENATOR MONTGOMERY: We didn't. 9529 1 SENATOR VOLKER: But I don't know 2 where that number of 600,000 after school 3 children, in fact, came from. Frankly, I never 4 saw that number, but I'm sure there are some 5 kids who don't have regular after school 6 programs. When you and I were younger, I don't 7 think we had any programs either. We just found 8 programs for ourselves, I guess, but it may well 9 be true that, I guess under the modern 10 circumstance, we're probably going to have to 11 look maybe for additional funding in many ways 12 which some cities are doing, but I don't think 13 there was an expansion of those programs, but 14 there are already programs statewide that -- I 15 don't know where that 600,000 figure would come 16 from, but I suppose there are a lot of kids that 17 don't have after school programs, but that 18 doesn't mean that we can necessarily justify the 19 fact that some of the kids and not others are 20 committing very serious crimes and I think 21 that's what Senator Hoblock was trying to deal 22 with. 23 ACTING PRESIDENT KUHL: Senator 9530 1 Montgomery. 2 SENATOR MONTGOMERY: Just 3 briefly, I just want to point out to the Senator 4 and my colleagues that a portion of those 5 children who now have no program to go to after 6 school, they are essentially latch key children, 7 some of those children end up on the streets. 8 Some of them are 10-, 11-, 12-year-olds and they 9 will eventually be swept into this program that 10 Senator Hoblock is proposing, and I just -- the 11 reason I raise this is because the further away 12 we move from the issue of prevention and the 13 issue of support for the family and support for 14 young people at a time when it makes a 15 difference, the more and more difficult it is 16 and the more costly it is to deal with them once 17 they have crossed over into the neverland of 18 criminal behavior and what have you. 19 So we need to know -- we need to 20 know how much money we're spending on 21 prevention, Senator Volker. We need to know how 22 many children don't have an after school to go 23 to. That should be the obligation. We don't - 9531 1 we should not only know how many 12-year-olds 2 commit heinous crimes. We should also know how 3 many 10- and 11-year-olds and 8- and 9-year-olds 4 that we can prevent from participating in that 5 kind of behavior and what we should be doing 6 about it. That is our responsibility too, and I 7 hope that we will begin to deal with that 8 because the front end is the most efficient way 9 to deal with young people, not just looking for 10 them on the back end when it's time for them to 11 go into prison, and we all know that they're 12 more likely to go if we do not invest in them up 13 front. 14 ACTING PRESIDENT KUHL: Senator 15 Gold, why do you rise? 16 SENATOR GOLD: Yeah. I wanted to 17 ask Senator Volker if he would yield to a 18 question. 19 ACTING PRESIDENT KUHL: Senator 20 Volker, do you yield to Senator Gold? The 21 Senator yields. 22 SENATOR GOLD: Senator, I just 23 want to clear the air on something which I don't 9532 1 understand. There was a remark made earlier by 2 Senator Bruno and since you made reference to 3 it, I want to ask you. 4 There are a number of times when 5 Senator Maltese, my dear friend from Queens, 6 brings bills to the floor which I don't agree 7 with, he's very sincere about concern issues and 8 in my voting no, I feel a little queasy about 9 it. Will people understand the issue? But I 10 have an opinion and Senator Maltese, who I 11 certainly do respect, has an opinion. 12 Now, Senator Bruno said earlier 13 today that the Dollinger motion had only one 14 purpose and that was to embarrass Republicans. 15 Will you explain to me how, if a member stands 16 up and votes his or her conscience and explains 17 intellectually how they feel, how is that an 18 embarrassment, Senator? 19 SENATOR VOLKER: Senator, let me 20 just say to you, we're talking about another 21 bill and what I was talking about -- what 22 Senator Bruno was talking about, the bill was 23 introduced after my committee went out of 9533 1 business. It was directly to Rules. To my 2 knowledge, it was never requested out of 3 committee. It was only introduced after it was 4 passed by the Assembly by a vote of just barely 5 76 votes and the Assembly Democratic Committee 6 is now sending letters all over the state trying 7 to drum up support, including to my district, 8 and listing Senator Dollinger, as the discussion 9 was -- the vote on this was going to be today. 10 Now, I mean, Senator, obviously 11 it has become a political issue. What I think 12 Senator Bruno was saying is that the issue 13 wasn't being brought to the floor; it was an 14 issue of a motion. That's all that was being 15 said. 16 Whether Senator Dollinger -- and 17 I sincerely believe that he has great feeling 18 for the issue, but the point I think Senator 19 Bruno was trying to make was that as far as this 20 particular motion -- he didn't say that he 21 wasn't sincere as far as the bill, but as far as 22 the particular motion was concerned -- it was a 23 political issue; that's all he was trying to 9534 1 say -- that was being tried to be made. That's, 2 I think, what he was talking about. 3 SENATOR GOLD: Thank you, 4 Senator. 5 ACTING PRESIDENT KUHL: Senator 6 Leichter, why do you rise? 7 SENATOR LEICHTER: I want to ask 8 Senator Hoblock to yield, because - 9 ACTING PRESIDENT KUHL: Senator 10 Hoblock, do you yield? 11 SENATOR LEICHTER: Senator, I 12 think a clarification is in order. We've 13 checked with OCA. This is not an OCA bill, 14 Senator. I did not believe it was an OCA bill 15 because I don't think OCA would come up with 16 this sort of a proposal. Moreover, Senator, it 17 wasn't on the form that OCA uses. It referred 18 wrongly to the chief administrator of the 19 courts. I don't believe that's the exact title, 20 but in any event, we have checked with OCA, it's 21 not an OCA bill and what I would like -- maybe 22 you have had a chance to check your records. I 23 appreciate that you, like me, are handed things 9535 1 by counsel, and so on, and sometimes there's 2 errors. I, by no means, mean to imply that this 3 was in any way intentional, and so on, but I 4 think the record ought to be made clear for this 5 chamber that this is not an OCA bill. 6 SENATOR HOBLOCK: Senator 7 Leichter, after you and I spoke, I did find in 8 my file a previous memo from OCA, because I 9 picked this bill up on OCA stationery setting 10 forth what's in this support memo. 11 SENATOR LEICHTER: But, Senator, 12 if you would be so good enough to yield. 13 ACTING PRESIDENT KUHL: Senator 14 Hoblock, do you continue to yield? The Senator 15 yields. 16 SENATOR LEICHTER: That's not the 17 bill that's before us. 18 SENATOR HOBLOCK: Yes, it is. 19 SENATOR LEICHTER: Well, Senator, 20 I submit to you it is not. Let me ask you about 21 the bill. I have two bills here that were 22 introduced on the same day. One is 5173, your 23 bill dated May 15th, 1995 and the other one is a 9536 1 bill that is before us, 5173-A, and 5173-A adds 2 12- and 13-year-olds. That was not in the 3 original bill. 4 SENATOR HOBLOCK: I think I 5 answered that to Senator Abate's question, 6 that's correct. 7 SENATOR LEICHTER: Was that done 8 at the request of OCA? 9 SENATOR HOBLOCK: No it wasn't. 10 I think I stated to Senator Abate that was done 11 to conform with Senator Larkin's legislation 12 which passed by OCA, and I didn't say this, OCA 13 had no objections, but I did answer the question 14 that there are two matters in this legislation 15 and I did mention that there were -- there was 16 an original print and an "A" print, and I did 17 state what they were about, that's correct. 18 SENATOR LEICHTER: Senator, but 19 that's not the issue. The issue is whether the 20 "A" print which is before us is an OCA bill. 21 OCA advises me that it is not. 22 SENATOR HOBLOCK: I think I said 23 that, Senator Leichter. 9537 1 SENATOR LEICHTER: No, you said 2 the opposite. You said exactly the opposite. 3 ACTING PRESIDENT KUHL: 4 Gentlemen, if you could, Senator Leichter, are 5 you asking Senator Hoblock to yield? 6 SENATOR LEICHTER: Yes. Senator, 7 will you yield? 8 ACTING PRESIDENT KUHL: Senator 9 Hoblock -- excuse me, Senator Leichter. I have 10 a big weapon up here this time. 11 Senator Hoblock, do you continue 12 to yield? 13 SENATOR HOBLOCK: Yes, I do. 14 ACTING PRESIDENT KUHL: The 15 Senator continues to yield. 16 SENATOR LEICHTER: Senator, you 17 distinctly said on a number of occasions that 18 the bill before us was an OCA bill. All I'm 19 trying to establish is that it is not an OCA 20 bill. If you say, "You're right, Leichter, it's 21 not an OCA bill", I'm satisfied. 22 SENATOR HOBLOCK: Senator 23 Leichter, perhaps you and I aren't communicating 9538 1 correctly. I don't know if you listened to my 2 answers to Senator Abate's questions about how 3 we got to the "A" print. When we got talking 4 about the juvenile offense or the offenses added 5 to the definition of "juvenile", that's when it 6 was said it's an OCA bill. Perhaps you and I 7 weren't communicating correctly. I'm telling 8 you again what it was I said before. Now, if 9 you choose not to accept that, I can't help it. 10 I'm just telling you what I said. 11 SENATOR LEICHTER: Senator, after 12 you had your discussion with Senator Abate - 13 and maybe I should have listened more closely - 14 but I got up and I asked you whether this was an 15 OCA bill because, frankly, it didn't have the 16 form of an OCA bill. I know Judge Milonas. I 17 didn't think he would put forward this sort of a 18 proposal that I find, frankly, appalling and 19 since it wasn't in the form in which bills 20 generally come from -- to us from OCA, I asked 21 you on the floor whether the bill before us was 22 an OCA bill. Your answer was yes. 23 SENATOR HOBLOCK: I probably did 9539 1 answer that in connection with those questions 2 and I apologize if I misled you, Senator 3 Leichter, and I apologize that the "A" print 4 that you did not understand when I answered the 5 question of how that came about. 6 SENATOR LEICHTER: Okay. 7 Senator - 8 SENATOR HOBLOCK: I think it was 9 clear -- I think it was clear the 12- or 10 13-year-olds was added as a result of trying to 11 conform with Senator Larkin's legislation. 12 SENATOR LEICHTER: Fine. 13 Senator, you owe me absolutely no apology. 14 SENATOR HOBLOCK: I'm not 15 apologizing, Senator Leichter. I'm just saying 16 there was a miscommunication, okay? 17 SENATOR LEICHTER: Okay. 18 Senator, I just want to make sure that my 19 colleagues are clear, as I am clear now and as I 20 believe you've made clear, that the bill we have 21 before us is not an OCA bill, and I think that's 22 significant and important, and if anybody was in 23 any way influenced in their consideration of 9540 1 this bill, whether this came from OCA, they 2 ought to be very clear and ought to understand 3 it is not an OCA bill. 4 That's -- having established 5 this, I am satisfied and having the floor, I 6 just want to say a couple of other things about 7 the bill and I thank you, Senator Hoblock. 8 ACTING PRESIDENT KUHL: Senator 9 Leichter on the bill. 10 SENATOR LEICHTER: Because I 11 think this is a radical departure from the way 12 we have tried to deal in our society with young 13 people and, frankly, I think it's almost a 14 savage response, if you will, to what is 15 undoubtedly a very serious problem and I don't 16 think, Senator Volker, that Senator Montgomery 17 in any way said that it wasn't a problem. 18 On the contrary, it's a very 19 serious problem, one that all of us, not only as 20 New York State legislators, as Americans, have 21 to be very concerned about as I refer to the 22 rising tide of crime and particularly the 23 growing violence where kids used to fight with 9541 1 their fists; they now pull out knives and guns, 2 and so on, and there are 12-year-olds, Senator 3 Volker, you're absolutely correct, that are 4 extremely dangerous, that action has to be taken 5 to separate them from society, but whether you 6 do that through the Criminal Court and treat 7 these people as adults, that's what we object 8 to, because we don't feel that's the way to do 9 it, and I think Senator Montgomery made, I 10 thought, a very persuasive, to my mind, an 11 indisputable point that what we need to do is to 12 keep children from becoming violent, and I would 13 hope that everybody would agree and then that's 14 where our resources should be put in. 15 I don't know. I think if I stay 16 here long enough -- I hope I don't, but if I 17 stay here much longer, I wouldn't be surprised 18 if the Republicans put forward the Islamic code 19 and we're going to have bills here soon calling 20 for cutting off peoples' hands and gouging out 21 their eyes. Really, you're going for the sort 22 of savagery that, frankly, I find appalling to 23 say a 12- or 13-year-old is going to be treated 9542 1 like an adult and be subject in the Criminal 2 Court to the processes and the penalties of a 3 mature person, I think is -- is a terrible 4 abdication of what has been, I think, a moral 5 standard that we have had in this state and in 6 this country. 7 ACTING PRESIDENT KUHL: The Chair 8 recognizes Senator Abate. 9 SENATOR ABATE: Yes. Would 10 Senator Hoblock yield to two more questions? 11 ACTING PRESIDENT KUHL: Senator 12 Hoblock, do you yield to Senator Abate? 13 SENATOR ABATE: Since I don't 14 believe this will be the end of this debate 15 today, there are a couple of other issues that 16 maybe you can help us with. Are there any other 17 states that now currently prosecute 12- and 18 13-year-olds and what are those states' 19 experiences? 20 SENATOR HOBLOCK: I'm not aware. 21 SENATOR ABATE: To my knowledge, 22 I'm not aware of any other state. 23 SENATOR HOBLOCK: Could very well 9543 1 be. 2 SENATOR ABATE: If you learn of 3 that experience, it would be very helpful if you 4 could share that. So we might be the first 5 state if we -- if this law was passed, we might 6 become the first state to prosecute 12- and 7 13-year-olds. 8 Let me -- the second question is 9 -- so I understand, I asked you the question 10 previously -- is what was the rationale for 11 moving the 12- and 13-year-olds from Family 12 Court into Criminal Court and I asked the 13 question, is it because the sentences are too 14 lenient in Family Court? 15 SENATOR HOBLOCK: That's part of 16 the reason and it was also, as I stated earlier, 17 to conform with the legislation we had talked 18 about, introduced and debated by Senator Larkin, 19 and also I was responding -- it's coincidental 20 that on the day that this 5173-A is dated is the 21 same date of a local newspaper article talking 22 about weapons found in schools in 52 and 57 23 counties. 9544 1 SENATOR ABATE: I'm not talking 2 about the weapons part. I'm talking about the 3 12- and 13-year-olds. 4 SENATOR HOBLOCK: You asked me 5 the question of how I arrived at it and I'm 6 trying to explain to you how I did that. It's 7 from those various sources that the amendment 8 was put in for 12- and 13-year-olds. 9 SENATOR ABATE: And the second 10 part - 11 ACTING PRESIDENT KUHL: Senator 12 Hoblock, do you continue to yield? The Senator 13 continues to yield. 14 SENATOR ABATE: I think we all 15 recognize these young people need to be 16 punished. It's really a question of where 17 they're punished, how they're punished and 18 effectively, so they can change the way they 19 think about themselves and the world about them. 20 If -- in fact, right now as 21 you're aware, the juvenile offenders can do up 22 to five years. If they are prosecuted as an 23 adult, they could do up to five years. If the 9545 1 sentences were lengthened as for a JD, a person 2 is prosecuted as a juvenile in Family Court and 3 the sentences were lengthened beyond 18 months 4 to as great as five years, what would be then 5 the rationale to prosecute the 12- and 6 13-year-olds as adults? 7 SENATOR HOBLOCK: Senator, I 8 think as I said before, you know, there are lots 9 of things that we can do. I think this juvenile 10 justice area has been discussed. I could 11 remember back 15 years ago when I was in the 12 Assembly it was discussed then too, and we're 13 having basically the same types of debate. 14 We're now having several years 15 later, we not only have the problem, it's 16 magnified in spite of all the efforts that are 17 being done. I think it has to be accomplished 18 on both ends, a lot of what Senator Montgomery 19 talked about and a lot of what we're talking 20 about. There's got to be a certain amount of 21 deterrence, that there are numbers of 22 sophisticated 12- and 13-year-olds as pointed 23 out in this article and the 14- -- over 14,000 9546 1 teachers and school staffs that have been 2 subject to violence in the schools, let alone 3 the other victims in the school grounds and 4 elsewhere. We can do -- we can build all of the 5 youth centers and all of the playgrounds and 6 everything else, it's not going to eliminate all 7 of it and we've got to do something about 8 treating these young people who are really not 9 young people. 10 We talk about these 12- and 11 13-year-olds as we know 12- and 13-year-olds, 12 and if a 12- or 13-year-old wants to commit an 13 adult crime, has the maturity to do it, then 14 perhaps we ought to start considering treating 15 them as adults for the punishment, and also to 16 worry about the victim, to worry about society a 17 little -- as much as we worry about the 18 offender. That's all I'm saying. 19 Am I going to stand here and tell 20 you that this is the answer? The problem is 21 going to go away? No. But neither is your 22 answer going to make the problem go away. 23 SENATOR ABATE: I guess I have 9547 1 two and a half questions, another half question 2 to follow up. 3 ACTING PRESIDENT KUHL: Senator 4 Hoblock, do you continue to yield? 5 SENATOR ABATE: Do you continue 6 to yield? 7 SENATOR HOBLOCK: Sure. 8 ACTING PRESIDENT KUHL: The 9 Senator continues to yield. 10 SENATOR ABATE: I want to put 11 aside the scope of punishment because let's make 12 the assumption that the scope of punishment is 13 the same in Family Court for the serious cases, 14 is the same in Family Court as it is in Criminal 15 Court. Let's say they both could get four 16 years, the person -- the same individual. So my 17 question is, isn't the Family Court which judges 18 are specifically trained to deal with youth, the 19 secured facilities that have been dealing with 20 youth, the youth providers that target youth in 21 that population, probation that works in Family 22 Court are particularly trained. You have a 23 whole system trained around adolescent behavior, 9548 1 what to do to prevent it, how to treat it, how 2 to provide transition services so when they go 3 back into their families and schools, they can 4 do better. 5 What about this bill or what 6 about your thinking if the scope of punishment 7 is the same, how can DOCS and Criminal Court be 8 better equipped to deal with this youth when 9 it's not their mission? They don't have the 10 same kind of training; they don't have the same 11 kind of experience. Now, I recognize there 12 needs to be reforms in Family Court and there 13 needs to be better management in DFY facilities, 14 et cetera, but if you can produce that better 15 management, why do you want to take the youth 16 out of a system that was organized around 17 dealing with youth and move them to an adult 18 system when you don't have to? 19 SENATOR HOBLOCK: Perhaps I 20 could try to answer that - 21 SENATOR ABATE: Still talking 22 about punishment. We're not saying these kids 23 are babies, let's let them off the hook. We 9549 1 won't do anything with them. We're saying how 2 do we be effective in punishing these young 3 people? In my assumption, we could be more 4 effective in punishing 12- and 13-year-olds in 5 Family Court. 6 SENATOR HOBLOCK: I'll try to 7 answer that two ways: One, this legislation 8 does not prohibit the initiation or removal of 9 these cases to Family Court and, number two, the 10 scenario that you describe as to all that's 11 available in Family Court is a perfect world, 12 and I can tell you that in my area, the 13 resources that you describe available in 14 juvenile court or Family Court and perhaps in 15 New York City and only in those courts and not 16 in the Criminal Court is not the case up here. 17 We have as many of those same 18 resources, if not more, in those criminal courts 19 because we're dealing with the same Probation 20 Department. We're dealing the same Division For 21 Youth individuals and people in that particular 22 arena. They go to Family Court. They go to 23 criminal court, same office. We don't have 9550 1 perhaps what you have in New York City. I know 2 this, that in this particular area, if not in 3 most areas upstate, those resources are 4 available. 5 SENATOR ABATE: Thank you very 6 much. 7 I'm not going to go on the bill 8 other than one comment to say then maybe we 9 should rethink where we put our resources. I 10 have been always an advocate, even though I have 11 been working at the back end of the system in 12 probation and correction that the money should 13 be put into the front end of the system and 14 every dollar spent in Family Court not only 15 saves families, saves lives, saves victims and 16 maybe we should reorder our priorities. 17 ACTING PRESIDENT KUHL: The 18 Secretary will read the last section. 19 THE SECRETARY: Section 5. This 20 act shall take effect 60 days after it shall 21 have become law. 22 ACTING PRESIDENT KUHL: Call the 23 roll. 9551 1 (The Secretary called the roll.) 2 ACTING PRESIDENT KUHL: Announce 3 the results when tabulated. 4 SENATOR GOLD: Slow roll call. 5 ACTING PRESIDENT KUHL: We have 6 two, three, four. One more member want a slow 7 roll call? I got four. Are there five members 8 in the chamber requesting a slow roll call? 9 One, two, three, four, five. 10 Thank you. 11 The Secretary will call the roll 12 slowly. 13 THE SECRETARY: Senator Abate. 14 SENATOR ABATE: No. 15 THE SECRETARY: Senator Babbush. 16 SENATOR BABBUSH: No. 17 THE SECRETARY: Senator Bruno. 18 (Affirmative indication.) 19 THE SECRETARY: Aye. 20 Senator Connor. 21 (Negative indication.) 22 THE SECRETARY: No. 23 Senator Cook. 9552 1 SENATOR COOK: Yes. 2 THE SECRETARY: Senator 3 DeFrancisco. 4 SENATOR DeFRANCISCO: Yes. 5 THE SECRETARY: Senator DiCarlo. 6 (There was no response.) 7 Senator Dollinger. 8 SENATOR DOLLINGER: Yes. 9 THE SECRETARY: Senator Espada. 10 ACTING PRESIDENT KUHL: Senator 11 Espada to explain his vote. 12 SENATOR ESPADA: Thank you, Mr. 13 President. 14 Very briefly, I had sat back, 15 heard the debate, and I think that Senator 16 Montgomery hit it right on the head. When she 17 didn't get into it necessarily -- she's not a 18 lawyer, neither am I -- issues of punishment, 19 degrees of punishment and what system, but, in 20 fact, she hit the nail on the head when she 21 talked about our priorities as a society. 22 There is a general glorification 23 of violence which we are all concerned about, 9553 1 not just in terms of inner city violence but 2 throughout New York State and America. There 3 are these savage inequalities, though, that 4 disturb me very greatly when our colleagues get 5 up and talk as though we have fully invested in 6 prevention when we are fully investing in the 7 kinds of youth opportunity centers and other 8 kinds of necessities that Senator Montgomery 9 talked about. She comes from a very, very poor 10 district, and so do I. 11 When I look at our budget line by 12 line, I go through it and the message is very 13 clear. Young people are not a priority in the 14 fiscal scheme of things in our budget or in our 15 deliberations. We talked about punishment. We 16 talked about how people should be in jail, a 17 build-up of jails as though we haven't done that 18 for the last ten years, a build-up in our prison 19 capacity in this state that almost doubles all 20 of the build-up throughout America in the last 21 decade. So we have tried that already. 22 What we haven't tried and what 23 people cannot get away with saying is that we 9554 1 have actually made young people and children a 2 priority. Children in this state, percentages 3 of children who are poor in this state rivals at 4 or exceeds that of any other state and perhaps 5 another -- any other country on this planet. 6 So the savage inequalities, the 7 misplaced priorities are an aspect to this whole 8 issue. If we did both at one time, we would 9 find that people on this side of the aisle could 10 be as macho and as tough on kids as you seem to 11 be, but the fact of the matter is that we're not 12 doing both. It's one, be tough, be punitive and 13 no investment in prevention and that is not a 14 level playing field that we can support. 15 We vote no. 16 ACTING PRESIDENT KUHL: Senator 17 Espada will be recorded in the negative. 18 The Secretary will continue to 19 call the roll. 20 THE SECRETARY: Senator Farley. 21 SENATOR FARLEY: Yes. 22 THE SECRETARY: Senator Galiber, 23 excused. 9555 1 Senator Gold. 2 SENATOR GOLD: No. 3 THE SECRETARY: Senator Gonzalez. 4 (There was no response.) 5 Senator Goodman. 6 (There was no response.) 7 Senator Hannon. 8 (There was no response.) 9 Senator Hoblock. 10 SENATOR HOBLOCK: Mr. President. 11 ACTING PRESIDENT KUHL: Senator 12 Hoblock to explain his vote. 13 SENATOR HOBLOCK: Very briefly, 14 Mr. President. 15 One thing that, as I hear 16 comments, I don't want to convey the impression 17 or if anyone is reading this legislation that 18 it's an attempt to take all 12- or 13-year-olds, 19 regardless of their criminality, no discretion, 20 mandatory that they be put into the criminal 21 justice/criminal court system, but rather this 22 legislation sets up the proviso that, if -- if 23 they are, then this is how they will be 9556 1 treated. It's not mandatory. 2 Those 12-, 13-, 14-, 15-year-olds 3 can still be treated in Family Court but not as 4 juvenile offenders. 5 ACTING PRESIDENT KUHL: Senator 6 Hoblock will be recorded in the affirmative. 7 The Secretary will continue to 8 call the roll slowly. 9 THE SECRETARY: Senator Hoffmann. 10 SENATOR HOFFMANN: No. 11 THE SECRETARY: Senator Holland. 12 SENATOR HOLLAND: Yes. 13 THE SECRETARY: Senator Johnson. 14 SENATOR JOHNSON: Aye. 15 THE SECRETARY: Senator Jones. 16 (Affirmative indication.) 17 Senator Kruger. 18 (There was no response.) 19 Senator Kuhl. 20 SENATOR KUHL: Aye. 21 THE SECRETARY: Senator Lack. 22 (There was no response.) 23 Senator Larkin. 9557 1 SENATOR LARKIN: Aye. 2 THE SECRETARY: Senator LaValle. 3 SENATOR LAVALLE: Aye. 4 THE SECRETARY: Senator Leibell. 5 SENATOR LEIBELL: Aye. 6 THE SECRETARY: Senator Leichter. 7 SENATOR LEICHTER: No. 8 THE SECRETARY: Senator Levy. 9 SENATOR LEVY: Aye. 10 THE SECRETARY: Senator Libous. 11 (There was no response.) 12 Senator Maltese. 13 SENATOR MALTESE: Aye. 14 THE SECRETARY: Senator 15 Marcellino. 16 SENATOR MARCELLINO: Aye. 17 THE SECRETARY: Senator Marchi. 18 SENATOR MARCHI: Aye. 19 THE SECRETARY: Senator 20 Markowitz. 21 SENATOR MARKOWITZ: To explain my 22 vote. 23 ACTING PRESIDENT KUHL: Senator 9558 1 Markowitz to explain his vote. 2 SENATOR MARKOWITZ: Thank you 3 very much. 4 First off, I wish my colleague 5 was in the room right now, Senator Volker. He 6 mentioned that we have one of the toughest 7 states in the nation as it relates to gun laws, 8 and that is true for some people who 9 legitimately attempt to gain a license and we do 10 have strict laws because some of those 11 entrepreneurs or other business interests may 12 not have a justifiable reason to want a firearm 13 and the police department of New York City or 14 anywhere else in the state of New York has a 15 right to be strict, but if you want a gun 16 illegally, New York is Dodge City. You could 17 buy a gun in almost any urban area easily, 18 quickly and cheaply. You ask kids in public 19 schools, whether they're in Bay Ridge or even 20 here in Albany, where one could purchase a gun 21 and it's amazing how they know faster than 22 perhaps law enforcement, and that is something 23 that we have to really give an awful lot of 9559 1 weight to. 2 The gun companies, manufacturers 3 know the amount of guns that they're selling in 4 the society. Certainly they have to realize 5 that those guns are not all going into the hands 6 of people that are using them legitimately. And 7 so we are a far way, a far, far way in providing 8 real gun control laws in our society. 9 Now, I bring this back to younger 10 people and this bill that Senator has been - 11 Hoblock has introduced. Senator, I wish that 12 this was the answer. None of us Republicans or 13 Democrats are in favor of 12- and 13-year-olds 14 acting in a violent way and going unpunished, 15 but the bottom line is that before a 12-, 13- or 16 14-year-old begins to shoot away, they begin to 17 show anti-social behavior before that, and then 18 what is society doing at the time that child 19 begins to show the kind of behavior that will 20 not lead to a conducive life? 21 What are we doing as a society; 22 and that is the problem, my fellow colleagues. 23 We are not doing nearly enough at all to try to 9560 1 prevent that younger person from beginning a 2 life that will surely lead to violence, not only 3 for the victims which we're all concerned about 4 but also the person who has committed the crime; 5 and so I would love to vote on a bill as I have 6 in many other instances in cracking down on 7 violent offenders. For sure, all of us feel 8 that way and our votes demonstrate that, but 9 until I'm convinced, Senator, that we're 10 providing enough assistance and that our school 11 system, our mental health facilities, our 12 school-based programs, our criminal justice 13 system, our youth groups are able to have the 14 resources necessary to identify those young 15 people that have begun to show anti-social 16 behavior and try to prevent it from coming to 17 this point where you want to pass this 18 legislation, I don't think we're doing our 19 society any justice. 20 ACTING PRESIDENT KUHL: How do 21 you vote? 22 SENATOR MARKOWITZ: I vote no. 23 ACTING PRESIDENT KUHL: Senator 9561 1 Markowitz will be recorded in the negative. 2 The Secretary will continue to 3 call the roll. 4 THE SECRETARY: Senator Maziarz. 5 SENATOR MAZIARZ: Yes. 6 THE SECRETARY: Senator Mendez. 7 ACTING PRESIDENT KUHL: Senator 8 Mendez to explain her vote. 9 SENATOR MENDEZ: To explain my 10 vote. 11 I am voting in the negative. The 12 assumption behind this bill is that practically 13 all 12- and 13-year-olds are incorrigible, that 14 practically all 12- and 13-year-olds are 15 carrying guns. I haven't seen any hard data to 16 that effect. 17 Yes, our society has been 18 increasingly becoming violent. Nobody has 19 mentioned here today the effect it has on kids, 20 these horrible movies that they sell violence 21 since the very first time the movie starts until 22 it ends. There are a lot of societal factors 23 influencing negative behavior on children. For 9562 1 one, in our public school system, something has 2 to be done because in the final analysis, kids 3 are not learning. Kids are not learning and 4 we're pouring monies into the school, regardless 5 how much the city of New York is short changed, 6 but the plain fact is that in any school system 7 where 40 percent of kids do not graduate, 8 something is horribly wrong. 9 I don't think that by being this 10 severe on this group of kids, 12- or 13-year 11 olds, we are resolving the problem. I think 12 that, in fact, we are -- we are simplifying the 13 nature of the problem so, therefore, I vote in 14 the negative. 15 ACTING PRESIDENT KUHL: Senator 16 Mendez will be recorded in the negative. 17 The Secretary will continue to 18 call the roll slowly. 19 THE SECRETARY: Senator 20 Montgomery. 21 SENATOR MONTGOMERY: Mr. 22 President. 23 ACTING PRESIDENT KUHL: Senator 9563 1 Montgomery, to explain her vote. 2 SENATOR MONTGOMERY: Yes, Mr. 3 President, I just thank you and I -- this is - 4 there is a bill -- there is a bill which would 5 allow ultimately a local school board to 6 override the Regents and allow commercial 7 television in classrooms. This would be the 8 Channel 1 in the classroom. Now, many of us are 9 adamantly opposed to it, but let me just say to 10 Senator Hoblock and my colleagues that Channel 1 11 would be advertising two minutes, four 30-second 12 spots, every single day in every classroom where 13 there was a television in any district, where 14 this program would be advertising $100 sneakers 15 and everything else that is top of the line for 16 young people to aspire to attain and to 17 possess. 18 So while we say we want to put 19 12-year-olds in the criminal court, run them 20 through the criminal court we, at the same time, 21 are saying that we're willing to entertain 22 having -- putting before them -- making it 23 possible to put before them this kind of 9564 1 advertising, this kind of enticement and this - 2 this kind of suggestion that these are the 3 important things for you to acquire. And how 4 does one acquire these things? You have to have 5 money. You have to have a way of getting 6 money. If your family doesn't have that money, 7 you figure out a way to get it. 8 So until we are willing to 9 address that part of it and to address the fact 10 that we have the highest murder rate in the 11 world because we have over 200 million guns on 12 the streets, then I'm not comfortable with 13 saying that we want to now send babies into 14 criminal court. 15 So I remain opposed to this. I 16 think it is immoral, and I hope that my 17 colleagues will reject this motion. 18 I vote no, Mr. President. 19 ACTING PRESIDENT KUHL: Senator 20 Montgomery will be recorded in the negative. 21 Secretary will continue to call 22 the roll slowly. 23 THE SECRETARY: Senator Nanula. 9565 1 SENATOR NANULA: No. 2 THE SECRETARY: Senator 3 Nozzolio. 4 SENATOR NOZZOLIO: Aye. 5 THE SECRETARY: Senator Onorato. 6 SENATOR ONORATO: Aye. 7 THE SECRETARY: Senator 8 Oppenheimer. 9 SENATOR OPPENHEIMER: I'll 10 explain my vote. 11 ACTING PRESIDENT KUHL: Senator 12 Oppenheimer, to explain her vote. 13 SENATOR OPPENHEIMER: Most of you 14 know that I'm normally interested in seeing that 15 punishment be commensurate with crime, so I'm 16 usually fairly strict on that punishment, but I 17 think to attribute the kind of adult punishment 18 to a child 12 and 13 years old only will assure 19 us that we're going to have hardened criminals 20 when they grow up. 21 I would support increasing the 22 punishment, but I would do it within the 23 juvenile justice arena and not with adults. The 9566 1 thought of 12-and 13-year-olds in a prison with 2 hardened criminals is a fairly scary thing and 3 frightens me, and I know that we would then 4 produce just more hardened criminals. 5 I'm going to be voting no. 6 ACTING PRESIDENT KUHL: Senator 7 Oppenheimer will be voting in the negative. 8 Secretary will continue to call 9 the roll. 10 THE SECRETARY: Senator Padavan. 11 SENATOR PADAVAN: No. 12 THE SECRETARY: Senator 13 Paterson. 14 SENATOR PATERSON: Yes -- no. 15 THE SECRETARY: Senator Present. 16 SENATOR PRESENT: Aye. 17 THE SECRETARY: Senator Rath. 18 SENATOR RATH: Aye. 19 THE SECRETARY: Senator Saland. 20 SENATOR SALAND: Aye. 21 THE SECRETARY: Senator 22 Santiago. 23 (There was no audible response. ) 9567 1 Senator Sears. 2 SENATOR SEARS: Aye. 3 THE SECRETARY: Senator Seward. 4 SENATOR SEWARD: Aye. 5 THE SECRETARY: Senator Skelos. 6 SENATOR SKELOS: Aye. 7 THE SECRETARY: Senator Smith. 8 SENATOR SMITH: No. 9 THE SECRETARY: Senator Solomon. 10 SENATOR SOLOMON: No. 11 THE SECRETARY: Senator Spano. 12 SENATOR SPANO: Aye. 13 THE SECRETARY: Senator 14 Stachowski. 15 SENATOR STACHOWSKI: Yes. 16 THE SECRETARY: Senator 17 Stafford. 18 SENATOR STAFFORD: Aye. 19 THE SECRETARY: Senator 20 Stavisky. 21 SENATOR STAVISKY: Yes. 22 THE SECRETARY: Senator Trunzo. 23 (There was no response. ) 9568 1 Senator Tully. 2 SENATOR TULLY: Yes. 3 THE SECRETARY: Senator Velella. 4 SENATOR VELELLA: Yes. 5 THE SECRETARY: Senator Volker. 6 SENATOR VOLKER: Yes. 7 THE SECRETARY: Senator Waldon. 8 SENATOR WALDON: Yes. 9 THE SECRETARY: Senator Wright. 10 SENATOR WRIGHT: Aye. 11 ACTING PRESIDENT KUHL: Secretary 12 will call the absentees. 13 THE SECRETARY: Senator DiCarlo. 14 SENATOR DiCARLO: Aye. 15 THE SECRETARY: Senator 16 Gonzalez. 17 (There was no response. ) 18 Senator Goodman. 19 (There was no response. ) 20 Senator Hannon. 21 (There was no response. ) 22 Senator Kruger. 23 (There was no response. ) 9569 1 Senator Lack. 2 SENATOR LACK: Yes. 3 THE SECRETARY: Senator Libous. 4 SENATOR LIBOUS: Aye. 5 THE SECRETARY: Senator Trunzo. 6 (There was no response. ) 7 ACTING PRESIDENT KUHL: Announce 8 the results. 9 THE SECRETARY: Ayes 40, nays 10 15. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 SENATOR SOLOMON: Mr. President. 14 ACTING PRESIDENT KUHL: Senator 15 Solomon, why do you rise? 16 SENATOR SOLOMON: Yes, Mr. 17 President. I'd like unanimous consent to be 18 recorded in the negative on Calendar Number 19 1097. 20 ACTING PRESIDENT KUHL: Without 21 objection. 22 SENATOR MENDEZ: Mr. President. 23 ACTING PRESIDENT KUHL: Hearing 9570 1 no objection, Senator Solomon will be recorded 2 in the negative on Calendar 1097. 3 Senator Mendez, why do you rise? 4 SENATOR MENDEZ: I also, Mr. 5 President, is requesting unanimous consent to be 6 recorded in the negative in Calendar Number 7 1097. 8 ACTING PRESIDENT KUHL: Without 9 objection, hearing no objection, Senator Mendez 10 will be recorded in the negative on Calendar 11 Number 1097. 12 Senator Dollinger, why do you 13 rise? 14 SENATOR DOLLINGER: Mr. 15 President, if I could also have unanimous 16 consent to be recorded in the negative on 17 Calendar Number 1097, I'd appreciate it. 18 ACTING PRESIDENT KUHL: Without 19 objection, hearing no objection, Senator 20 Dollinger will be recorded in the negative on 21 Calendar Number 1097. 22 Senator Marcellino. 23 SENATOR MARCELLINO: Mr. 9571 1 President, we announce a meeting of the Rules 2 Committee at 5:00 p.m., promptly, in Room 332. 3 ACTING PRESIDENT KUHL: There 4 will be a meeting of the Rules Committee at - 5 in six minutes, at 5:00 p.m., in the Majority 6 Conference Room, Room 332. Rules Committee at 7 5:00 p.m., Room 332. 8 Senator Maltese, why do you 9 rise? 10 SENATOR MALTESE: Mr. President, 11 I request unanimous consent to be recorded in 12 the negative on Calendar Number 128. 13 ACTING PRESIDENT KUHL: Without 14 objection, Senator Maltese will be recorded in 15 the negative on Calendar Number 128. 16 Senator Montgomery. 17 SENATOR MONTGOMERY: Thank you, 18 Mr. President. I would like to be recorded in 19 the negative on Calendar Number 1097. 20 ACTING PRESIDENT KUHL: What 21 number was that again, Senator Montgomery? 22 SENATOR MONTGOMERY: 1097. 23 ACTING PRESIDENT KUHL: Without 9572 1 objection, hearing no objection, Senator 2 Montgomery will be recorded in the negative on 3 Calendar Number 1097. 4 Senator Nanula. 5 SENATOR NANULA: Mr. President, I 6 too would like to request unanimous consent to 7 be recorded in the negative on Calendar Number 8 1097. 9 ACTING PRESIDENT KUHL: Without 10 objection, hearing no objection, Senator Nanula 11 will be recorded in the negative on Calendar 12 Number 1097. 13 Senator DeFrancisco, why do you 14 rise? 15 SENATOR DeFRANCISCO: May I have 16 unanimous consent to be recorded in the negative 17 on Calendar Number 241. 18 ACTING PRESIDENT KUHL: Without 19 objection, Senator DeFrancisco -- and hearing no 20 objection, Senator DeFrancisco will be recorded 21 in the negative on Calendar Number 241. 22 Secretary will continue to call 23 the controversial calendar. 9573 1 THE SECRETARY: Calendar Number 2 1266, by Senator LaValle. 3 SENATOR MARCELLINO: Lay it aside 4 for the day, please. 5 ACTING PRESIDENT KUHL: Lay the 6 bill aside for the day. 7 THE SECRETARY: Calendar Number 8 1269, by Senator Holland, Senate Print 2044, an 9 act to amend the Social Services Law, in 10 relation to recovery of certain medical 11 assistance expenses. 12 SENATOR PATERSON: Explanation. 13 ACTING PRESIDENT KUHL: There's a 14 local fiscal impact note at the desk. Senator 15 Holland, an explanation of Calendar Number 1269 16 has been asked for by the Acting Minority 17 Leader, Senator Paterson. 18 SENATOR HOLLAND: Mr. President, 19 under current law, if there is a personal injury 20 and there is a court case and the individual 21 goes to Medicaid and recovers some funds, if the 22 individual is over 21 years of age, Medicaid or 23 DSS can put a lien against that money and 9574 1 recover the money. However, if the individual 2 is under 21, right now, what happens is that the 3 attorney sets up a trust or the attorney sets up 4 or puts the money in pain and suffering, and we 5 can not put a lien against the money. 6 Now, we do not, Senator, want to 7 put a lien against the money and take everything 8 away from the individual. We want the 9 individual to have enough money to -- to -- as 10 necessary, but if there is excess money, we 11 believe a lien should be placed against some of 12 the funds so that the Medicaid or DSS can be 13 reimbursed. 14 SENATOR PATERSON: Mr. 15 President. 16 ACTING PRESIDENT KUHL: Senator 17 Paterson. 18 SENATOR PATERSON: Assured that 19 Senator Holland celebrated his birthday in spite 20 of my persistent questions, I wonder if he would 21 turn today and answer a few more questions. 22 SENATOR HOLLAND: Sure, yes. 23 ACTING PRESIDENT KUHL: Senator 9575 1 says he'll yield, Senator Paterson. 2 SENATOR PATERSON: Mr. President, 3 my first question for Senator Holland is, 4 Senator, in many respects, I understand what 5 you're trying to accomplish, and it was some 6 thing that you were also seeking in legislation 7 yesterday, and it really is to prevent double 8 dipping, to prevent double recovery in these 9 types of situations. But the courts don't 10 structure the -- the courts don't structure the 11 remediation in the way that I think this bill is 12 suggesting. 13 It would be very possible under 14 this legislation for us to be taking away what 15 might be slight recovery from the victim, in 16 this case the child. Let me cite an example for 17 you. 18 Suppose a child is in a car 19 accident and is injured as a result of 20 wrongdoing by a drunk driver, a third party, and 21 at trial the victim wins $100,000 worth of pain 22 and suffering, $100,000 worth of medical 23 expenses and $100,000 worth of perceived wages 9576 1 from future work. 2 Now, under your legislation, if 3 the drunk driver can't really afford beyond the 4 10- to $20,000 insurance policy that they may 5 have already taken out, what you may have is the 6 Department of Social Services putting in the 7 lien against the $10,000 because the individual 8 who caused the accident doesn't have any 9 resources, and now we're going after the slight 10 amount of money that was accrued in insurance 11 to, in a sense, pay back what were the costs of 12 health preservation that the Department of 13 Social Services shelled out in the beginning. 14 So what I'm saying to you is that 15 I think the bill is somewhat defective and 16 probably needs an amendment. The amendment I 17 would suggest and the amendment that the New 18 York State Trial Lawyers would propose would be 19 one that sets forth that the recovery for 20 medical assistance would be secondary to the 21 original recovery of pain and suffering and 22 perceived future wage losses. 23 SENATOR HOLLAND: Senator, that's 9577 1 what's happening today and that's what we're 2 trying to correct. New York State Notebook 3 provides $50,000 to cover medical expenses, I 4 guess you know that, and our intention is not to 5 -- to take excess money. It's only to take 6 excess money away from the young person, not to 7 take enough -- to take more money than the young 8 person will need. I hope that answers your 9 question. 10 ACTING PRESIDENT KUHL: Senator 11 Paterson. 12 SENATOR PATERSON: You have, 13 Senator, but don't you think if the injuries to 14 a young person in an accident were approaching 15 what would be catastrophic injury situations 16 where this person is going to need lifelong care 17 that it really would be, you know, patently 18 unfair for us to be taking any money away from 19 them at that point? 20 SENATOR HOLLAND: We're not - 21 SENATOR PATERSON: And under your 22 bill, I'm suggesting that that could happen. 23 SENATOR HOLLAND: I don't believe 9578 1 so, Senator. I don't believe so at all, and DSS 2 does not intend to do that. We don't intend to 3 do that. I don't believe that is the case at 4 all, Senator, and the bill is not designed that 5 way. 6 ACTING PRESIDENT KUHL: Senator 7 Paterson. 8 SENATOR PATERSON: Well, Senator, 9 even before you just explained to - 10 ACTING PRESIDENT KUHL: Senator 11 Holland continue to yield? Senator continues to 12 yield, Senator Paterson. 13 SENATOR PATERSON: Oh, thank you, 14 Mr. President. 15 Senator, before you even 16 explained that, I perceived that you didn't 17 intend that. What I'm saying is that I just 18 feel that your bill -- I don't think I'm ob 19 jecting at all to your intent. I'm saying that 20 the bill isn't specific enough, and I don't 21 think it would take that much more from what you 22 have already set forth to just address those 23 situations so that we don't leave it open to 9579 1 interpretation which could inure to the 2 detriment of a child who is injured in a 3 accident. 4 SENATOR HOLLAND: Maybe I can 5 answer the question differently then. Already 6 in section -- in C.P.L.R. Section 1207 and 1208, 7 an infant -- an infant compromise order must 8 contain the facts of a settlement and the court 9 must approve the order. In reviewing the order, 10 the judge must make sure the infant's financial 11 rights are protected. 12 This bill does not preclude the 13 court's discretion and that's what we're trying 14 to do, and it's already -- I think the answer to 15 your question is in the C.P.L.R. 16 ACTING PRESIDENT KUHL: Senator 17 Paterson. 18 SENATOR PATERSON: Senator, what 19 I'll do is, I will take that information that 20 you've given me that I didn't have before, and I 21 will look into it, but if you are right that 22 would certainly address the situation, but I'm 23 just suggesting from my own understanding of 9580 1 what we're trying to do with section 104 (b) of 2 the Social Services Law is that it's -- it's not 3 clear enough, but I would not think that you 4 would want to -- to create a situation where the 5 victim of an accident would be suffering further 6 because we took a lien against some of the 7 benefits that would accrue and, you know, 8 relying on that - 9 SENATOR HOLLAND: The only thing 10 we want to do is stop the attorneys from forcing 11 the money into pain -- the pain and suffering 12 section and protecting them on into a trust 13 fund. 14 ACTING PRESIDENT KUHL: Senator 15 Paterson. 16 SENATOR PATERSON: Maybe you 17 could answer this, Senator, and maybe this might 18 clear the whole thing up. We already have a 19 lien law against the medical benefits, as I 20 understand it. What I'm saying is that it seems 21 to me that the legislation as proposed takes a 22 broader approach, in other words, allows us to 23 go further out into that plain of what could be 9581 1 other recoveries. Do you agree with that? 2 SENATOR HOLLAND: Say it again. 3 I was listening to two people at once, Senator; 4 I'm sorry. 5 ACTING PRESIDENT KUHL: Senator 6 Paterson. 7 SENATOR PATERSON: Tell you 8 what. 9 SENATOR HOLLAND: I'm sorry. 10 SENATOR PATERSON: Just looking 11 at a Court of Appeals case, Baker v. Sterling, 12 it allows us to collect -- to recover medical 13 services already in these types of structured 14 settlements that we're talking about, but what 15 I'm saying is, it appears to me that what your 16 legislation is doing is, in a sense over 17 reaching that case and going into what might 18 possibly be other recoveries. 19 SENATOR HOLLAND: I don't think 20 so. Senator. I don't think so at all. The 21 Baker vs. Sterling, in many cases settlements 22 are structured so that no amount or fraction of 23 the amount of actual medical costs is 9582 1 appropriated for medical expenses, thus 2 defeating the Medicaid lien, and we're trying to 3 get around that. We're trying to put in statute 4 something that will get us around that. 5 SENATOR PATERSON: Taking the 6 information that I'm stating right here, 7 Senator, from your memorandum which is, in a 8 sense, somewhat critical of the judge's 9 structuring of these actual settlements and 10 saying that the judges are not structuring these 11 settlements in such a way that we need 12 legislation to accomplish the goal of making 13 sure that the Department of Social Services gets 14 an opportunity to have their money refunded, and 15 so what I'm saying is that just coming from your 16 memo that it -- it seems to me, and you know, 17 I'm certainly hoping to be corrected, but it 18 certainly seems to me that you're -- you're 19 going into that area. In other words, you're 20 trying to broaden it. 21 SENATOR HOLLAND: I'm sorry. I 22 don't understand the question. You want to try 23 it again, please? What -- what we're trying to 9583 1 do is clarify. I know Baker vs. Sterling. I 2 know what the court said there, and what's 3 actually happening is, and the court said we 4 could do it but what's actually happening is the 5 lawyers are protecting the money, even an excess 6 amount of money, by putting it in a trust fund 7 and it could be and may be and many times 8 there's no money set aside for any medical 9 expenses at all. 10 Therefore, the state, the 11 taxpayers are picking up the expenses and that's 12 unfair. 13 SENATOR PATERSON: All right, 14 Senator. It probably is unfair where the 15 lawyers are doing that. Don't the judges still 16 have the jurisdiction to reject that from the 17 structured settlement? 18 SENATOR HOLLAND: As we said 19 before, yes, they do and we read you the section 20 of the C.P.L.R., but it's not happening and 21 that's what we're trying to correct in this 22 legislation. 23 SENATOR PATERSON: And so what 9584 1 I'm saying, Senator, is that, because we're 2 unhappy with how the judges have ruled in this 3 area, our attempt to actually codify it is - 4 and this is the question that I've caused you 5 some confusion on a moment ago, what I'm saying 6 is because the judges have not responded in the 7 fashion that you feel it would be consistent 8 with what a case -- and basically Sterling - 9 allows, now, what we're doing is we're drawing 10 up a statute, and all I'm saying is that if we 11 would just amend the statute to such an extent 12 to really specify what the protections will be 13 for the younger people, I would just feel a 14 little more comfortable with -- with your 15 legislation. 16 I don't really have a problem 17 with the end result and, you know, it's kind of 18 like the end resource, the end result in the 19 source rule, which is where you have these 20 double recoveries and in this particular case, I 21 think you're absolutely right but what I'm 22 saying is, I don't want to open the door to 23 individuals, in a sense, being denied recovery 9585 1 for other issues such as the ones arising from 2 pain and suffering and the ones arising from 3 perceived losses of income because the injured 4 party can't work. 5 As a result of your legislation, 6 and you have said quite graciously that you 7 don't want to do it either, and all I'm 8 suggesting to you is the way the legislation 9 reads right now, these same judges who made the 10 underacting in such a sense that you feel the 11 necessity to address it in legislation may over 12 react and then draw the lines in such a fashion 13 to deny recovery. 14 SENATOR HOLLAND: But you see, 15 Senator, I think we have answered that already 16 in mentioning Sections 1207 and 1208 of the 17 C.P.L.R. They are protected, and all we're 18 doing really, understanding 1207 and 1208, is 19 giving DSS some more leverage in collecting some 20 of the excess funds in repayment of the loan for 21 Medicaid after the court case is over. 22 SENATOR PATERSON: Well, I guess 23 I'll close on the bill, Mr. President. 9586 1 ACTING PRESIDENT KUHL: Senator 2 Paterson, on the bill. 3 SENATOR PATERSON: And I 4 understand what Senator Holland is saying and in 5 some respects, there are two ways to look at 6 this. One is that, when Senator Holland quotes 7 C.P.L.R. 1207 and 1208, we might ask ourselves 8 why do we need to legislate now because we 9 already have -- have put laws on the books that 10 would be directing the judges, and we would have 11 to assume since we've been nominating judges 12 here and we feel that they are individuals that 13 understand the law, that they are trying to be 14 sensitive to the needs of the victim. 15 On the other hand, I guess it has 16 to be stated to be fair, that perhaps the law is 17 not working and this is the reason that Senator 18 Holland has brought this bill out to try to, in 19 a sense, recodify the law even, if anything, to 20 state and restate the principle to drive the 21 point home to judges. 22 I think in these situations, we 23 have to be extremely careful because, again, as 9587 1 I said yesterday, Senator Holland, we're not 2 talking about people who are avoiding the 3 opportunity to work; we're not talking about 4 people who have misused our system of award from 5 the Department of Social Services. We're 6 talking about people who are unfortunately the 7 victims of accidents. 8 ACTING PRESIDENT KUHL: Secretary 9 will -- excuse me. Senator Stavisky. 10 SENATOR STAVISKY: Mr. President, 11 on a previous bill, I voted with the sponsor 12 because there are instances where minors, 13 unfortunately, given the opportunity to use 14 weapons, will, in fact, injure or kill other 15 human beings, including minors as well as adults 16 and so, in what appeared to be perhaps in my own 17 thinking an inconsistent vote with the position 18 that I normally take, I voted for the previous 19 bill because that finger on that firearm trigger 20 can do irreparable damages to other people. 21 This is a different situation. 22 Here is a case where a child who obviously 23 cannot recover and prove that there is a loss of 9588 1 earnings, who obviously did not ask for the 2 accident to occur, who is injured, tragically 3 injured, permanently injured by a vehicle owned, 4 let us say, by a large corporation and has very 5 limited family resources so that there might be 6 a Medicaid coverage. We are now making that 7 victim, that child who did not ask for the 8 accident to occur, now asking for that victim to 9 be victimized again. 10 The net effect of this bill, for 11 whatever purpose intended, may be to victimize 12 the victim all over again and may result in 13 legislation to cause injustice to babies, and 14 that is an important consideration. We may be 15 dealing with minors who are the victims and 16 since there is no loss of earnings, that cannot 17 be considered and I believe that if the judges 18 cannot adequately interpret the law, then let us 19 be more careful in the selection of judges by 20 whatever method, election or appointment. 21 We have an obligation as 22 legislators not to destroy the rights of babies 23 or minors who did not ask for the injury to 9589 1 occur, but we inadvertently may be causing 2 additional financial strain on that child and 3 that family if there is, in fact, a family. 4 And so let us not meddle simply 5 to close what appears to be a state budget 6 deficit, that appears to be a state budget 7 deficit in a year when we gave existing tax 8 revenue away to benefit people who are not 9 indigent, to benefit people because we allegedly 10 were trying to help with the trickle-down theory 11 to give money sometimes to affluent 12 individuals. 13 Let us not make the Department of 14 Social Services bill collectors. Let us not 15 destroy the rights of minors, and let us not 16 victimize the victims all over again. This is a 17 bad bill, a bad precedent, that we should not be 18 pursuing but rather we should be looking for 19 revenue that is legitimately due because there 20 is fraud. These babies have not committed fraud 21 but deserve our protection and our understanding 22 and I hope there will be sufficient votes on 23 both sides of the aisle to demonstrate that we 9590 1 should not be robbing babies with such 2 legislation. 3 ACTING PRESIDENT KUHL: Secretary 4 will read the last section. 5 THE SECRETARY: Section 2. This 6 acted shall take effect immediately. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll. ) 10 ACTING PRESIDENT KUHL: Announce 11 the results when tabulated. 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 1269 are 14 Senators Connor, Dollinger, Espada, Gold, 15 Kruger, Montgomery, Nanula, Paterson, Smith, 16 Solomon, Stavisky and Waldon, also Senator 17 Abate. Ayes 47, nays 13. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 Senator Kruger, why do you rise? 21 SENATOR KRUGER: Mr. President, I 22 would ask unanimous consent to be recorded in 23 the negative on Calendar Number 1097. 9591 1 ACTING PRESIDENT KUHL: Without 2 objection, hearing no objection, Senator Kruger 3 will be recorded in the negative on Calendar 4 Number 1097. 5 Secretary will continue to call 6 the roll. 7 THE SECRETARY: Calendar Number 8 1270, by Senator Velella, Senate Print 2586, an 9 act to amend Chapter 576 of the Laws of 1975 10 relating to authorizing the Commissioner of 11 Education to contract with certain schools. 12 SENATOR MARCELLINO: Lay it aside 13 for the day. 14 ACTING PRESIDENT KUHL: Lay the 15 bill aside. 16 THE SECRETARY: Calendar Number 17 1273, by Senator Kuhl, Senate Print 3831, an act 18 providing to Thomas A. Cassidy credit for past 19 service. 20 ACTING PRESIDENT KUHL: Secretary 21 will read the last section. 22 SENATOR PATERSON: Explanation. 23 ACTING PRESIDENT KUHL: Oh, hold 9592 1 on. 2 Senator Gold, why do you rise? 3 SENATOR GOLD: Last section. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the last section. 6 THE SECRETARY: Section 6. This 7 act shall take effect immediately. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 60. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 1275, by Senator Kuhl, Senate Print 3868, an act 16 to require the New York State and local 17 retirement system to accept retirement 18 applications. 19 ACTING PRESIDENT KUHL: Secretary 20 will read the last section. 21 THE SECRETARY: Section 3. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 9593 1 roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 60. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 1284, by member of the Assembly Dinowitz, 8 Assembly Print 5975, an act to amend the Mental 9 Hygiene Law, in relation to service as president 10 of boards of visitors. 11 SENATOR MARCELLINO: Lay it 12 aside. 13 ACTING PRESIDENT KUHL: Lay the 14 bill aside. 15 THE SECRETARY: Calendar Number 16 1258, by Senator Hannon, Senate Bill 1226-A. 17 SENATOR MARCELLINO: Lay it aside 18 for the day, please. 19 ACTING PRESIDENT KUHL: Lay the 20 bill aside for the day. 21 THE SECRETARY: Calendar Number 22 1226, by Senator Hannon or Senator Saland, 23 excuse me. Senate Print 5601A, an act to amend 9594 1 the Social Services Law and the Education Law, 2 in relation to the protection of pupils. 3 SENATOR GOLD: Explanation. 4 ACTING PRESIDENT KUHL: Senator 5 Saland, an explanation of Calendar Number 1286 6 has been asked for. 7 SENATOR SALAND: Thank you, Mr. 8 President. 9 Mr. President, this bill creates 10 a mechanism whereby we will be able to determine 11 who within the ranks of school employees, par 12 ticularly school teachers, school administrators 13 may, in fact, have been guilty of either 14 sexually abusing or physically abusing students 15 within their charge, and what we're doing in 16 this bill is to create a screening mechanism 17 starting off initially by requiring on 18 certification, teacher certification, a 19 screening against the central registry of abuse 20 and neglect to determine if, in fact, there has 21 been any evidence of child abuse. 22 We are creating a means by which 23 we will be able at long last to have a central 9595 1 repository, a registry again for those who, in 2 fact, have engaged in acts of abuse against 3 children within a school setting. 4 What we're doing is creating a 5 mechanism whereby the school administrator would 6 be responsible to report to district attorneys, 7 to law enforcement personnel, where an incident 8 had occurred within a school grounds or within a 9 school program that, in effect, would be lodged 10 with the Department of Education of where, in 11 fact, a conviction had resulted. Where there 12 would be no conviction or there would be an 13 acquittal or a dismissal, that record would be 14 expunged. 15 We're not dealing here with the 16 types of things such as are found in Article 10 17 of the Family Court Act which constitute 18 neglect. As I said in my earlier comments, 19 we're talking about abuse, physical abuse and 20 sexual abuse. 21 We are creating a mechanism which 22 is intended to do away with that rather onerous 23 silent resignation where a teacher or a school 9596 1 administrator has been charged with some act of 2 abuse against a child within his or her charge 3 and, in fact, remedies what appears to be that 4 person's problem by a so-called "silent 5 resignation" whereby it's agreed that everything 6 be dropped quietly. In return for no charges 7 being lodged, that person gets to go into 8 another school district with no record of this 9 event or incident having occurred, nobody having 10 any knowledge of it, where there they may then 11 again create the same type of gross misconduct 12 on the innocent children with whom they're 13 dealing. 14 Mr. Speaker, Mr. President, 15 excuse me. This -- this bill certainly com 16 ports well with the bill that Senator Nozzolio 17 passed earlier, I believe perhaps as recently as 18 yesterday in this house, and I think it's a bill 19 whose time has not merely come but is long over 20 due, particularly given some of the terrible 21 accounts we've seen in the media over the course 22 of the past several months, a number of events 23 having occurred out of the city of New York. 9597 1 ACTING PRESIDENT KUHL: Thank 2 you, Senator Saland. I can understand why my 3 antics today would have probably brought you 4 back some fond memories of having served in the 5 Assembly, but I would remind you that this is 6 the Senate. 7 SENATOR SALAND: Mr. President, 8 you would have stood with the best of them, 9 sir. 10 ACTING PRESIDENT KUHL: Senator 11 Paterson. 12 SENATOR PATERSON: Thank you, 13 sir. If now Senator Saland would like to yield 14 for a question. 15 ACTING PRESIDENT KUHL: Senator, 16 do you yield? 17 SENATOR SALAND: I yield, sir. 18 ACTING PRESIDENT KUHL: Senator 19 yields. 20 SENATOR PATERSON: Senator 21 Saland, the statewide child abuse registry, if 22 I'm correct, does not reveal any information 23 about allegations that have been made against 9598 1 individuals in their employment in the school 2 system. It has to do with family offenses, is 3 that not correct? 4 SENATOR SALAND: That's correct. 5 SENATOR PATERSON: In addition to 6 that, Senator, isn't it true that these offenses 7 were not necessarily sustained but they were 8 later -- they may have been, but they also may 9 include what are merely allegations, is that 10 true? 11 SENATOR SALAND: That's also 12 true, but I believe our bill has been crafted in 13 such fashion as to make sure that, in fact, 14 there's been a finding in the particular case 15 where those allegations have been made. 16 SENATOR PATERSON: Because one of 17 the things that worries me, if the Senator 18 continues to yield. 19 ACTING PRESIDENT KUHL: Do you 20 continue to yield? Senator Saland, do you 21 continue to yield? 22 SENATOR SALAND: Yes. 23 ACTING PRESIDENT KUHL: Senator 9599 1 yields. 2 SENATOR PATERSON: Often in a lot 3 of matrimonial actions, particularly custody 4 disputes, what often happens in the contentious 5 atmosphere is that the spouses get, you know, 6 some anonymous person to call up the child abuse 7 hot line and report the other one, and now 8 you've got these allegations against 9 individuals, neither of whom probably have 10 abused the child, but what it does, in my 11 opinion, maybe jeopardizes their future 12 employment because they're now on the child 13 abuse registry. 14 Isn't that a possibility that 15 that could happen? 16 SENATOR SALAND: No, that will 17 not happen here, and the key word, I would call 18 your attention on page 2, the second line, is an 19 "indicated child abuse report". The require 20 ment that the report be an indicated report 21 means, in fact, that it has been post 22 investigation and there has been a finding that 23 there was, in fact, an incident that warranted 9600 1 being maintained on the central registry as 2 distinguished from having been expunged. 3 ACTING PRESIDENT KUHL: Senator 4 Paterson. 5 SENATOR PATERSON: Mr. President, 6 if the Senator would continue to yield. 7 ACTING PRESIDENT KUHL: Senator 8 Saland, you continue to yield? 9 SENATOR SALAND: Yes, Mr. 10 President. 11 ACTING PRESIDENT KUHL: Senator 12 continues to yield. 13 SENATOR PATERSON: What I'd like 14 to ask you about is, in case there's a lawsuit 15 against the superintendent and the school 16 district, since the information is turned over 17 to law enforcement, you seem to have protected 18 the superintendent in your legislation. What 19 happens to the school district? 20 SENATOR SALAND: I'm not quite 21 sure I understand your question. Could you 22 repeat it or rephrase it? 23 SENATOR PATERSON: In other 9601 1 words, if the individual who is seeking the 2 employment or if their report is made against an 3 individual and they are now saying that the 4 report is fraudulent and they now sue on their 5 own behalf, the superintendent seems to be 6 covered under your legislation because the 7 superintendent has turned this information over 8 to law enforcement, but you -- I'm getting the 9 impression that the school district itself is 10 culpable or at least is a prospective party in 11 the lawsuit, and I want to know how you protect 12 the school district in this legislation. 13 SENATOR SALAND: Are you talking 14 within the context of the -- of the pre- -- the 15 pre-certification screen by the Department of 16 Education, or are you talking about the registry 17 where an incident has been reported and logged 18 under this new Article 23-B? 19 SENATOR PATERSON: Actually, I'm 20 talking about the incident that's logged. 21 SENATOR SALAND: Well, the only 22 thing that's going to be logged on that -- in 23 that particular registry is an incident that has 9602 1 resulted in a conviction because, if there is no 2 conviction, it's provided for in this bill that 3 the record be expunged. 4 ACTING PRESIDENT KUHL: Senator 5 Paterson. 6 SENATOR PATERSON: Senator, I 7 understand that. Maybe I'm just a little 8 confused and, believe me, after about seven 9 hours here, it is entirely possible that I am, 10 but what I'm really asking is that, if the 11 record is now expunged where, for the benefit of 12 the individual now, the individual seeks to sue 13 civilly because of damage to their reputation 14 and a number of tort actions that they might 15 pursue, what I'm asking you is, who would be 16 liable under the lawsuit? 17 In other words, the information 18 is erroneous, and now the individual is suing. 19 Who would be jeopardized by the law suit? 20 People do sue when they are -- feel they've been 21 wrongfully accused and they feel the information 22 is fraudulent and I'm just asking you who would 23 have to defend against such a lawsuit, if it was 9603 1 brought civilly? 2 SENATOR SALAND: I'm looking for 3 the section. There is a section here that 4 provides for immunity, and I believe it talks in 5 terms - 6 SENATOR PATERSON: Yes, but 7 Senator, that's what I'm saying before, the 8 immunity, I'm trying to get the section for 9 you. It's a little unfair to just haphazardly 10 ask you about some section of the bill, but what 11 I'm saying to you, the immunity seems very clear 12 from your legislation regarding the 13 superintendent. 14 Now, I'm asking you about the 15 actual district. 16 SENATOR SALAND: I would think 17 that the superintendent, acting on behalf of the 18 school district, certainly would be, if in 19 effect real -- a real party in interest and 20 certainly would be -- the school district 21 certainly would be inasmuch as he is the 22 principal agent, something akin to the CEO of a 23 school district, entitled to the very same - 9604 1 the very same immunity that we've provided for 2 here in the person of the -- of that 3 superintendent. 4 SENATOR PATERSON: Yes, Mr. 5 President, through you, Senator Stafford, I 6 would agree with that. I would just ask that 7 you take a look at it because some of the 8 educational associations have opposed the bill 9 feeling that they are left open to attack in 10 spite of the fact that once a report is made, 11 they turn the whole case over to law enforce 12 ment and so, you know, if you wouldn't mind just 13 checking to make sure that that's the case, that 14 that was an issue that was actually raised. 15 Mr. President, it's under section 16 1135 for Senator - 17 SENATOR SALAND: I just found it, 18 lines 38 to 42. 19 SENATOR PATERSON: Finally, 20 Senator - 21 ACTING PRESIDENT KUHL: Senator 22 Paterson. 23 SENATOR PATERSON: -- if you 9605 1 would yield to one last question. 2 ACTING PRESIDENT KUHL: Do you 3 yield to one last question? 4 SENATOR SALAND: Yes, Senator. 5 ACTING PRESIDENT KUHL: Senator 6 yields. 7 SENATOR PATERSON: Senator, how 8 do you assess the projected costs to the 9 district as to this administrative procedure? 10 SENATOR SALAND: Well, I'd assume 11 that the costs would be at best nominal. The 12 forms would be the report to the Department of 13 Education. The number of reported cases, using 14 the city of New York as an example, there are 15 some I believe 3689 cases that were reported 16 last year. I have to assume that we're talking 17 perhaps no more than dozens of cases. 18 The school district is no more 19 than a conduit for the placing of -- of the - 20 the complaint, the real work associated, the 21 investigative or investigatory work that's being 22 done is going to be done by the law enforcement 23 personnel so it's really no more than -- more 9606 1 than administrative on the part of the school 2 district. 3 SENATOR PATERSON: So the -- the 4 law enforcement personnel will man the -- and 5 will attend, I should say, to the telephone 6 calls? 7 SENATOR SALAND: No, no, no, no, 8 no. What I'm saying is, what the -- excuse me 9 for interrupting you, I'm sorry. I gave you a 10 series of noes and I didn't let you complete 11 your comment or question. 12 SENATOR PATERSON: No, no, no. 13 Go ahead. I think you understood what I was 14 saying. 15 SENATOR SALAND: The law 16 enforcement personnel will effectively be 17 determining through both their investigation 18 and, if appropriate, prosecution whether or not 19 this teacher or administrator is in fact going 20 to be found guilty. Once they're found guilty, 21 that gets logged on the registry. It gets 22 logged on the registry because they have to be 23 notified by the -- "they" being the school 9607 1 district has to be notified by the district 2 attorney that, in fact, this conviction has 3 occurred. Whatever the school district will do 4 will be again primarily ministerial, and so our 5 limited information available to us which comes 6 again primarily out of the experience in the 7 City, we're not talking -- certainly not talking 8 thousands of cases. We're probably not talking 9 hundreds of cases. I think we're talking more 10 something in the nature of dozens of cases, and 11 those types of cases would merely be reported. 12 It would not take a tremendous 13 amount of personnel or tremendous amount of 14 effort on the part of the school system to do 15 that. 16 SENATOR PATERSON: Thank you, 17 Senator. 18 ACTING PRESIDENT KUHL: Secretary 19 will read the last section. 20 Senator Dollinger. 21 SENATOR DOLLINGER: Will the 22 sponsor yield to a question? 23 ACTING PRESIDENT KUHL: Senator 9608 1 Saland, do you yield to Senator Dollinger? 2 SENATOR SALAND: Yes, Senator. 3 ACTING PRESIDENT KUHL: Senator 4 Saland yields. 5 SENATOR DOLLINGER: Senator, the 6 first question I have is, does this bill apply 7 to abuse only by an employee of the school 8 district against a student in the school, or 9 does -- do these obligations attach if the 10 school district becomes aware of abuse of the 11 child by some other third party that's not an 12 employee of the school district? 13 SENATOR SALAND: This applies 14 only to school employees. 15 SENATOR DOLLINGER: Mr. 16 President, through you, if the sponsor will 17 yield. 18 ACTING PRESIDENT KUHL: Senator 19 Saland, do you continue to yield? 20 SENATOR SALAND: There would be 21 -- I would assume if the school were -- if an 22 employee was aware of the fact that a child was 23 being abused, they would seek, in an environment 9609 1 outside of the school district, they would seek 2 to report that to the central registry or to 3 local law enforcement. 4 This is -- this bill is an effort 5 to deal with the abuse that has occurred from 6 time to time in schools, in different locations 7 throughout this state, and to create a mechanism 8 to not only try and curb that abuse by creating 9 a deterrent, but also to be able to determine 10 and follow those who engage in the abuse by 11 creating a registry so that they can't go from 12 one school district to another there to create 13 or perform similar offenses in another school 14 district. 15 SENATOR DOLLINGER: Right. 16 Through you, Mr. President, I concur with much 17 of the intent of this bill. I just want to make 18 sure I understand who it applies to and how it 19 works. 20 Again, if Senator Saland will 21 yield, Mr. President. 22 ACTING PRESIDENT KUHL: Senator 23 Saland? 9610 1 SENATOR SALAND: Yes, Mr. 2 President. 3 ACTING PRESIDENT KUHL: Senator 4 continues to yield. 5 SENATOR DOLLINGER: So could you 6 tell me what the current law provides if a 7 school employee determines that a child has been 8 abused outside the school setting? What 9 obligations are there on the school employee now 10 to report to law enforcement? 11 SENATOR SALAND: I don't believe 12 they're mandated reporting and, again, we are 13 not dealing within the context of this bill with 14 or attempting to deal with anything other than 15 abuse that's occurring within the confines of 16 school grounds or some sanctioned school program 17 or activity which would involve school 18 personnel. 19 SENATOR DOLLINGER: O.K. Again 20 through you, Mr. President, if Senator Saland 21 will continue to yield. 22 ACTING PRESIDENT KUHL: Senator 23 Saland, do you continue to yield. Senator 9611 1 continues to yield. 2 SENATOR SALAND: All of these 3 things, by the way, if I may just, are beyond 4 the current purview of the hotline reporting 5 system. 6 SENATOR DOLLINGER: Correct, and 7 I understand this goes -- the hotline reporting 8 system is you report to the hotline and the hot 9 line will try to assist the child or who's ever 10 reporting it, get details, and then get 11 information and get child neglect or child 12 protective services to come to the assistance of 13 the child. That's my understanding of at least 14 what happens in Monroe County. 15 But my second question is, I note 16 that in the bill there's a provision that deals 17 with penalties for school administrators to make 18 the report to the superintendent and then for 19 the superintendent to make a report to law 20 enforcement. Is -- my question is, is it your 21 intention to create civil liability on the part 22 of the school administrator, the school 23 superintendent and the school district if, for 9612 1 some reason, that doesn't happen? 2 SENATOR SALAND: If you're 3 talking about a situation in which, as 4 unfortunately seems to occur today where an 5 individual, in effect, negotiates either himself 6 or herself or through his or her attorney with 7 the school board or the school board's attorney, 8 where the allegations are hanging over his or 9 her head of child abuse or child sexual abuse 10 and the deal is cut for the charges to be 11 dropped because the school does not want the 12 notoriety associated with that particular type 13 of a situation then and that person is permitted 14 to resign and walk away scotfree, then my answer 15 -- then go to the next school district and 16 engage in the same type of mistreatment or mal 17 treatment, my answer to your question is yes. 18 SENATOR DOLLINGER: Through you, 19 one other - 20 ACTING PRESIDENT KUHL: Senator 21 Saland, you continue to yield? 22 SENATOR SALAND: Yes, Mr. 23 President. 9613 1 ACTING PRESIDENT KUHL: Senator 2 Saland continues to yield. 3 SENATOR DOLLINGER: One -- two 4 other questions. One is, this bill does not 5 require any threshold determination to be made 6 by anyone before it triggers the obligation to 7 report to additional agencies, is that correct? 8 For example, there's no requirement in this bill 9 that the school administrator determine that 10 there's reasonable cause to conclude that child 11 abuse has occurred and there's no requirement 12 that the superintendent of schools conclude that 13 there's reasonable evidence to support a 14 conclusion that the child abuse has occurred. 15 This bill simply says, if the allegation is 16 made, the allegation gets transmitted from 17 school administrator to the superintendent to 18 law enforcement to the commissioner without any 19 threshold determination of the reasonableness of 20 that allegation; is that correct? 21 SENATOR SALAND: Yes, that is - 22 that's correct, but we're not expecting these 23 people to be either judge or jury in making the 9614 1 determination. The determination as to whether 2 or not this conduct has been, in fact, engaged 3 in or it's more appropriate that the misconduct 4 will be engaged in, will be determined by law 5 enforcement personnel and where appropriate a 6 court, and there is provision for the record to 7 be expunged where, in fact, that -- there has 8 been a lack of evidence or insufficient evidence 9 to bring in a conviction or a plea. 10 SENATOR DOLLINGER: But in the 11 meantime, again through you, Mr. President, if 12 the Senator will yield. 13 ACTING PRESIDENT KUHL: Senator 14 Saland, do you continue to yield? 15 SENATOR DOLLINGER: Meantime, the 16 accused has all this information passed to all 17 these levels of government without one person 18 ever having decided that there's any reasonable 19 basis or, for that matter, any evidence other 20 than the simple allegation that says this person 21 committed child abuse. 22 SENATOR SALAND: Well, if we're 23 talking about physical abuse or child sexual 9615 1 abuse, and that's all we're talking about in 2 this bill, by definition, it would seem to me 3 that a prima facie case could well be made 4 either in the presence of a battered child, in 5 the person of a battered child or in the person 6 of a -- an abused, sexually abused child, and I 7 would assume that it's not the kind of thing 8 that (a) occurs indiscriminately and (b) when it 9 does occur, that the superintendent would 10 certainly, for the very reasons that you've 11 expressed or intimated your concern, that 12 superintendent would not willy-nilly lodge a 13 complaint unless there was some nexus, and again 14 that superintendent is not law enforcement. 15 That superintendent is not a prosecutor. 16 What this bill says, Mr. or Mrs. 17 or Ms. Superintendent, you will forward that 18 information and you will advise the appropriate 19 authorities and then the appropriate authorities 20 will step in and the appropriate authorities 21 will notify you at the conclusion as to whether 22 or not this has resulted in a plea or 23 conviction. 9616 1 SENATOR DOLLINGER: Again, Mr. 2 President, just so I clarify. Is -- Senator, I 3 don't see anything in this bill that says there 4 has to be any nexus or any objective evidences 5 or any reasonable evidence other than the actual 6 allegation to support the transfer of this 7 information. That's why, and my concern about 8 this is, here's my concern is that this 9 information, child comes to their gym teacher 10 and says, The assistant gym teacher touched me 11 in an inappropriate place. 12 Under your bill, that 13 administrator doesn't conduct any investigation, 14 doesn't have to get any other evidence. Under 15 your bill, it says that's an allegation made by 16 the child reported to the superintendent. The 17 superintendent gets the allegation, says, Is it 18 true? Is there any evidence of it? Is there any 19 indication; is there any corroboration? 20 The superintendent, under this 21 bill, would say, Doesn't matter, I got to call 22 the police. They call the police. The police 23 come out and begin to conduct an investigation. 9617 1 Meanwhile the commissioner knows, the 2 superintendent knows, the board of education 3 knows; but my question is no one has sat down 4 and said, What evidence do we have to support 5 this other than the allegation of the child? 6 SENATOR SALAND: Senator, I would 7 suggest to you that, if you're proposing to 8 superimpose some type of pre... prefiling or 9 investigation on the part of the superintendent, 10 you're attempting to impose a burden that we 11 impose nowhere else in the world. We don't 12 require anybody else, under any other facts and 13 circumstances, to pre-clear the filing or 14 lodging of a criminal instrument. 15 The prosecution -- the 16 prosecution of law enforcement personnel will 17 evaluate and make that decision whether or not 18 to go forward; so if you happen to be in a store 19 and walk into a store and see somebody lying - 20 lying at your feet and identify somebody running 21 away and you call, you're not responsible for 22 doing anything more than responding to what you 23 observed. If that person calls out to you and 9618 1 says, Mr. Dollinger, you know, John Jones did 2 it, please get to the phone, and you go to the 3 phone and you do it. Law enforcement then has 4 the responsibility of proving beyond a 5 reasonable doubt that that, in fact, is what 6 occurred. 7 I'm not prepared to say in these 8 circumstances that the perhaps most vulnerable 9 people on the face of this earth, young people 10 in a school setting, in the presence of people 11 to whom they've been told they can repose their 12 trust and confidence, that these young people 13 are going to be further victimized by creating 14 another hurdle in the way of -- of the effort to 15 try and provide them protection. 16 This provides protection right 17 down to expungement of records, and it also does 18 away with, I think, one of the most treacherous 19 -- or attempts to do away with one of the most 20 treacherous and heinous abuses of the system, 21 which is that so-called "silent resignation". 22 SENATOR DOLLINGER: You talk 23 about the silent resignation -- if I could, Mr. 9619 1 President, if Senator Saland would yield to one 2 other question. 3 ACTING PRESIDENT KUHL: Senator 4 Saland, you yield to one more question from 5 Senator Dollinger? 6 SENATOR SALAND: Yes, Mr. 7 President, I will. 8 ACTING PRESIDENT KUHL: Senator 9 yields. 10 SENATOR DOLLINGER: In my 11 experience, since I've represented a number of 12 teachers in "silent resignations" accused of 13 abuse, one of the things I've tried to determine 14 is whether the child would be able to withstand 15 cross-examination either in a criminal or civil 16 context as to whether or not they could truth 17 fully testify with enough conviction, for lack 18 of a better term, to obtain either a civil 19 determination that the teacher was incompetent 20 or engaged in inappropriate behavior or for that 21 matter obtain a criminal conviction that would 22 be supported by proof beyond a reasonable 23 doubt. 9620 1 My personal experience is that 2 this is terribly traumatic for children to have 3 to testify, and my question is, who makes that 4 determination in -- under your bill about 5 whether or not it's worthwhile for the child to 6 have to go to trial and face cross-examination 7 by a defense lawyer, cross-examination by a 8 lawyer under -- who's working on behalf of the 9 defendant, and who decides whether that's 10 appropriate or not? 11 SENATOR SALAND: Let me suggest 12 to you, at the expense of appearing 13 inappropriate, I would much prefer that someone 14 standing in your shoes not be the one who would 15 do that because I don't feel that you have - 16 whenever I say "you," someone representing the 17 school board really brings to the issue the kind 18 of detached professionalism, and I say that very 19 guardedly, that I think a district attorney 20 would bring to the issue working in conjunction 21 with the interested parties, which assumedly 22 would be the family of the child. 23 We've endeavored to provide 9621 1 mechanisms that make that less traumatic through 2 the use of cameras in courtrooms to remove the 3 child, being mindful of the right of 4 confrontation, from that particularly anguishing 5 type of an experience. But I would be reluctant 6 -- and I certainly do not mean this in any way, 7 shape or form as anything personal -- I would be 8 reluctant to recommend that the person who 9 advises people to make -- what decisions to make 10 in those situations, be somebody who is in 11 effect an agent of a school board. 12 SENATOR DOLLINGER: Again, 13 through you, Mr. President, if the sponsor will 14 continue to yield. 15 ACTING PRESIDENT KUHL: Senator 16 Saland, do you continue to yield? Senator 17 continues to yield. 18 SENATOR DOLLINGER: What do you 19 do in that situation if the parent of the child 20 says, "I don't believe my child is telling the 21 truth and I don't want them to testify?" 22 SENATOR SALAND: The parent is, 23 under this construct, a party to this proceed 9622 1 ing. You don't get that far unless the parent 2 has made the allegation. 3 SENATOR DOLLINGER: But doesn't 4 this provide that the child can make the 5 allegation? 6 SENATOR SALAND: We're - 7 SENATOR DOLLINGER: I believe on 8 page 3, line 45, it says the child can make the 9 allegation, and it doesn't suggest that the 10 parent can overrule the child or the parent 11 would have any role - 12 SENATOR SALAND: The bill talks 13 in terms of the child or the child's parent 14 making the allegation, and that would be in 15 section 1126 starting at line 7. 16 SENATOR DOLLINGER: And, Senator, 17 I apologize. What page? 18 SENATOR SALAND: Page 3, section 19 1126, starting at line 27. 20 SENATOR DOLLINGER: I believe 21 that's in section 1126. In 1128, it talks about 22 allegations. 23 SENATOR SALAND: 1128 defines 9623 1 further whenever the allegation has been made by 2 a child. 3 SENATOR DOLLINGER: Right, but my 4 question is, does the parent have no role in 5 that process if the child makes the allegation? 6 What do you do if the parent says, "I don't 7 think my child is telling the truth? I don't 8 think there's any evidence of abuse at all." 9 SENATOR SALAND: I would think 10 that that would be something which would be 11 resolved, as would a similar situation in a 12 non-school district setting be resolved -- would 13 be resolved between the parents and the 14 prosecutor. A prosecutor -- if a prosecutor 15 determines that they don't have the ability to 16 establish their case and, if the parents of the 17 child in question are either affording evidence 18 to the contrary or are suggesting for whatever 19 reason that the child is unreliable, I would 20 assume that would be a factor that the district 21 attorney would consider and certainly would not 22 waste resources in a -- in a case in which given 23 the burden of beyond a reasonable doubt, they 9624 1 had evidence indicating that they couldn't quite 2 make that burden. 3 SENATOR DOLLINGER: One more 4 question, Mr. President. If all these cases are 5 going to be resolved by the district attorney, 6 what happens if, in the case I just described; 7 that is, the parent doubts the child's word, and 8 we go to the district attorney, the district 9 attorney listens to the parent, concludes that 10 the child is not credible and so the district 11 attorney takes no action, does the school board 12 -- how does the school board discipline that 13 teacher if the district attorney has already 14 said, We're not going to prosecute them? They 15 can't discipline the teacher at all, can they, 16 even if there might be a preponderance of the 17 evidence that suggests they might be guilty? 18 SENATOR SALAND: The school board 19 is in no way, shape or form, by reason of this 20 bill, in any way, shape or form prevented from 21 doing whatever it is that they would do now. I 22 have no idea what they would do, but there's 23 nothing here that increases that burden or 9625 1 diminishes that burden. 2 If, in fact, there's reason to 3 believe that there is a preponderance of 4 evidence indicating that the teacher has engaged 5 in some conduct -- misconduct, but it's not 6 adequate for a district attorney to prove their 7 case beyond a reasonable doubt, I don't know if 8 a 30.20(a) hearing would be appropriate, I 9 really don't have any idea. I really don't 10 possess that kind of expertise, but we've done 11 nothing to change the existing law. 12 If this law wasn't on the books 13 and someone filed a complaint directly with the 14 district attorney and the district attorney 15 said, scratching their head, "Well, it doesn't 16 seem quite right, but we really can't prove our 17 case, you'd be putting yourselves and a child 18 through a tremendous ordeal with very little 19 likelihood of a conviction, I'm -- I'm afraid 20 this would be too much for you," and the family 21 decides they don't want to pursue it any 22 further, what would a school district do now? 23 SENATOR DOLLINGER: At that 9626 1 point, Mr. President, that's, I guess, what my 2 question is. At that point, the school board 3 has no leverage at all to try to impose any 4 discipline at all. The whole reason why the 5 silent resignation has at least resulted in a 6 penalty for a teacher and at least in my 7 district someone leaves after 20 years of 8 teaching in a school district, you know every 9 school superintendent in the community knows 10 that you don't leave a job you've been in 20 11 years for no reason at all, you left because 12 there was a problem and in most cases, the 13 school superintendents know that that problem 14 exists. 15 The problem is, the leverage in 16 those negotiations is you leave because we will 17 take you to trial, we'll take you to a 30.20 (a) 18 and we're going to put this child on the stand 19 and have him testify against you. You use the 20 leverage to get the result. It may not be 21 perfect and it may not achieve the goal that you 22 want to achieve which, by the way, Senator, I'll 23 say is a very proper goal. If there is a way to 9627 1 protect children from child abuse by school 2 officials in this state, we ought to do it, and 3 I support that. 4 Parts of this bill will achieve 5 that, but my concern is, and I'm not quite sure 6 how I'm going to vote on this, but I'm concerned 7 about the question of whether this bill really 8 gets to that goal. If we put all our eggs in 9 the criminal prosecution basket as this bill 10 suggests we should, we run the risk that, if 11 they decide not to prosecute because we got to 12 prove by that -- beyond a reasonable doubt 13 standard in many cases based on the testimony of 14 the child alone, and I'll just tell you in my 15 experience the most horrid case I dealt with 16 involved 12- and 13-year-old girls who were at 17 high risk categories who had had all kinds of 18 physical and psychological abuse, made an 19 allegation against a teacher. We conducted a 20 two-month investigation. That school district 21 spent $30,000 paying me and other people to 22 interview the witnesses, to find out whether it 23 was true, and I finally made a report to the 9628 1 school district that said, I think this witness 2 is probably telling the truth, but the stories 3 changed three or four times, and I'm afraid that 4 this child will be subjected to even worse abuse 5 when she has to try to recount it on the stand 6 consistently and hold up to cross-examination. 7 We ended that case with a silent 8 resignation. It may not have been the right 9 thing to do. It was what we tried to do under 10 the system, and I think this bill has some good 11 parts to it. I think it's got some questionable 12 parts to it. I just don't know whether it gets 13 to that goal. I appreciate you trying to 14 address this, because this is a terrible issue 15 and, frankly, that teacher should never, never 16 teach again. Fortunately, the best of my 17 information he hasn't, and we did everything we 18 could to make sure that he wouldn't, but I'm 19 just not so sure that, given the way this bill 20 is constructed, that it will achieve that goal. 21 I, frankly, don't know how I'm 22 going to vote, but I wanted you to hear my 23 concerns with it. 9629 1 SENATOR STAVISKY: Mr. President. 2 ACTING PRESIDENT KUHL: Senator 3 Stavisky. 4 SENATOR STAVISKY: Will the 5 sponsor yield to a very few questions, and I'll 6 make it brief. 7 ACTING PRESIDENT KUHL: Will the 8 Senator yield? Senator yields. 9 SENATOR STAVISKY: Senator 10 Saland, what does your legislation do in 11 creating a procedure for reporting and 12 investigating child abuse by employees in 13 non-public schools? 14 SENATOR SALAND: This bill does 15 not address the non-public school. 16 SENATOR STAVISKY: I know it 17 doesn't. Do you think that it should? 18 SENATOR SALAND: It probably 19 should, but it doesn't. 20 SENATOR STAVISKY: What would you 21 suggest to cover and protect children in all 22 types of educational institutions? 23 SENATOR SALAND: I would assume 9630 1 that it would be appropriate to -- to cover 2 anybody and everybody. Child abuse is child 3 abuse, whether it's in a public or a private 4 school. 5 SENATOR STAVISKY: Would you 6 favor broadening your bill to include such 7 situations? 8 SENATOR SALAND: I certainly, 9 when we finish with this leg of it, I certainly 10 will be more than happy to bring back something 11 dealing with private schools as well. 12 SENATOR STAVISKY: Thank you. 13 ACTING PRESIDENT KUHL: Secretary 14 will read the last section. 15 THE SECRETARY: Section 5. This 16 act shall take effect on the 1st day of 17 January. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll. ) 21 ACTING PRESIDENT KUHL: Announce 22 the results. 23 THE SECRETARY: Ayes 60. 9631 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 SENATOR PATERSON: No. 4 SENATOR MARCELLINO: Mr. 5 President. 6 ACTING PRESIDENT KUHL: Senator 7 Marcellino. 8 SENATOR MARCELLINO: Before 9 Senator Paterson rises in abject indignation, 10 may we recognize Senator Santiago, please. 11 ACTING PRESIDENT KUHL: The Chair 12 recognizes Senator Santiago. 13 SENATOR SANTIAGO: Mr. President, 14 I'd like to be recognized in the negative on 15 Calendar Number 1269 and 1097, please. 16 ACTING PRESIDENT KUHL: Without 17 objection, Senator Santiago, and hearing no 18 objection Senator Santiago will be recorded in 19 the negative on Calendars Number 1269 and 1097. 20 Senator Mendez. 21 SENATOR MENDEZ: Mr. President, I 22 was out of the chamber in a meeting of the Rules 23 Committee. I would like to be recorded in the 9632 1 negative on bill number, Calendar Number 1269. 2 ACTING PRESIDENT KUHL: Without 3 objection, hearing no objection, Senator Mendez 4 will be recorded in the negative on Calendar 5 Number 1269. 6 Secretary will continue to call 7 the controversial calendar. 8 THE SECRETARY: Calendar Number 9 1290, by Senator Rath, Senate Print 5359, an act 10 to amend the Civil Practice Law and Rules and 11 the Executive Law, in relation to extending the 12 statute of limitations. 13 ACTING PRESIDENT KUHL: Secretary 14 will read the last section. 15 THE SECRETARY: Section 3. This 16 act shall take effect January 1. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the roll. ) 20 THE SECRETARY: Ayes 60. 21 ACTING PRESIDENT KUHL: The 22 bill's passed. 23 Senator Marcellino. 9633 1 SENATOR MARCELLINO: Mr. 2 President, may we please return to reports of 3 standing committees? I believe there is a 4 report of the Rules Committee at the desk. 5 ACTING PRESIDENT KUHL: You're 6 correct, Senator Marcellino, there is a report 7 of the Rules Committee at the desk. We'll 8 return to the reports of standing committees. 9 The Secretary will read the Rules report. 10 THE SECRETARY: Senator Bruno, 11 from the Committee on Rules, reports the 12 following bills: 13 Senate Print 701, by Senator 14 Padavan, an act to amend the Social Services 15 Law, in relation to ineligibility of lawfully 16 admitted aliens; 17 1297A, by Senator Lack, an act to 18 amend the Surrogate's Court Procedure Act, in 19 relation to the statute of limitations; 20 2829, by Senator Skelos, an act 21 to amend the General Obligations Law, in 22 relation to compensation for injury; 23 3092, by Senator Padavan, an act 9634 1 to amend the Social Services Law, in relation to 2 the exclusion of illegal aliens; 3 3093, by Senator Padavan, an act 4 to amend the Social Services Law, in relation to 5 the exclusion of illegal aliens from receiving 6 public assistance and care; 7 3251, by Senator Paterson, an act 8 to authorize the city of New York to reconvey 9 certain real property; 10 3520, by Senator DeFrancisco, an 11 act to amend the Social Services Law, in 12 relation to the transportation of certain 13 persons; 14 3882B, by Senator Rath, an act to 15 amend the Tax Law, in relation to extending the 16 effectiveness of the one percent increase in 17 sales and compensating use tax in Genesee 18 County; 19 3883, by Senator Rath, an act to 20 amend the Tax Law, in relation to imposing a 21 hotel and motel tax in the county of Genesee; 22 3908, by Senator Leibell, an act 23 to amend the Local Finance Law, in relation to 9635 1 contracting indebtedness; 2 4170, by Senator Cook, an act to 3 amend the Tax Law, in relation to the imposition 4 of additional taxes in the county of Ulster; 5 4509, by Senator Saland, an act 6 to amend the Not-For-Profit Corporation Law, in 7 relation to eliminating limitations; 8 4513A, by Senator Seward, an act 9 to amend the Executive Law, in relation to fire 10 prevention and building code standards; 11 4805, by Senator Maziarz, an act 12 to amend the Public Health Law, in relation to 13 notification of parents; 14 4811A, by Senator Maziarz, an act 15 to authorize and validate the creation of a 16 volunteer firefighter service award program; 17 4871A, by Senator Cook, an act to 18 amend the Tax Law, in relation to the rate of 19 sales and compensating use tax; 20 4902A, by Senator Sears, an act 21 in relation to the calculation of average daily 22 attendance and minimum days of session for an 23 experimental kindergarten program; 9636 1 4958A, by Senator Skelos, an act 2 to amend the Public Service Law, in relation to 3 the elimination of the mandate for the Public 4 Service Commission; 5 4960A, by Senator Skelos, an act 6 to amend the Arts and Cultural Affairs Law, in 7 relation to copyrights; 8 5045, by Senator Velella, an act 9 to amend the Vehicle and Traffic Law, in 10 relation to authorizing a residential parking 11 system; 12 5172, by Senator Hoblock, an act 13 to amend the Tax Law, in relation to the 14 imposition of sales and use taxes by the county 15 of Albany; 16 5286A, by Senator Leibell, an act 17 to amend the Private Housing Finance Law, in 18 relation to tax exemption; 19 5304, by Senator Seward, an act 20 to amend the Tax Law, in relation to extending 21 the expiration of provisions; 22 5308, by Senator Kuhl, an act to 23 amend the Public Health Law, in relation to 9637 1 continuing the Agricultural Health and Safety 2 Advisory Board; 3 5310, by Senator Velella, an act 4 to amend the Workers' Compensation Law, in 5 relation to permitting the State Insurance Fund 6 to enter agreements; 7 5327, by Senator Sears, an act to 8 amend the Tax Law, in relation to extending the 9 effectiveness of provisions authorizing the 10 county of Oneida to impose an additional one 11 percent of sales and compensating use taxes; 12 5352, by Senator Stachowski, an 13 act to authorize the city of Buffalo, Erie 14 County, to lease certain park lands; 15 5366, by Senator Saland, an act 16 to amend the Environmental Conservation Law, in 17 relation to taking of Atlantic menhaden and 18 mullets; 19 And 4546, by Senator Jones, an 20 act authorizing the town of Irondequoit, Monroe 21 County, to make available to Samuel Soprano, 22 Jr., membership in the optional 20-year 23 retirement plan for firemen and policemen. 9638 1 All bills reported directly for 2 third reading. 3 ACTING PRESIDENT KUHL: Senator 4 Marcellino. 5 SENATOR MARCELLINO: Mr. 6 President, move to accept the report of the 7 Rules Committee. 8 ACTING PRESIDENT KUHL: The 9 motion is to accept the report of the Rules 10 Committee. 11 All in favor say aye. 12 (Response of "Aye.") 13 Opposed nay. 14 (There was no response.) 15 The Rules Committee report is 16 accepted. 17 SENATOR MARCELLINO: Is there any 18 housekeeping at the desk? 19 ACTING PRESIDENT KUHL: Yes there 20 is. The Chair would recognize Senator Saland. 21 SENATOR SALAND: On behalf of 22 Senator Levy, I would move to amend Senate Print 23 3176A by striking out the amendments made on May 9639 1 12th and restoring it to its original print 2 3176. 3 ACTING PRESIDENT KUHL: 4 Amendments are received and adopted; bill will 5 return to its original print. 6 Senator Saland. 7 SENATOR SALAND: Mr. President, 8 on behalf of Senator Libous, on page 46, I offer 9 the following amendments to Calendar Number 663, 10 Senate Print 3929, and ask that the bill retain 11 its place on Third Reading Calendar. 12 ACTING PRESIDENT KUHL: 13 Amendments to 363 are received and adopted. The 14 bill will retain its place on the Third Reading 15 Calendar. 16 Senator Marcellino. 17 SENATOR MARCELLINO: Mr. 18 President, there being no further business, I 19 move we adjourn until Wednesday, June 14th, at 20 10:00 a.m., and please don't break the hammer. 21 ACTING PRESIDENT KUHL: Without 22 objection, the Senate stands adjourned until 23 tomorrow, June 14th, at 10:00 a.m. 9640 1 (Whereupon at 6:03 p.m., the 2 Senate adjourned.) 3 4 5 6 7