Tuesday, January 30, 1996

1 2 3 4 5 6 7 ALBANY, NEW YORK 8 January 30, 1996 9 3:01 p.m. 10 11 12 REGULAR SESSION 13 14 15 16 LT. GOVERNOR BETSY McCAUGHEY ROSS, President 17 STEPHEN F. SLOAN, Secretary 18 19 20 21 22 23 P R O C E E D I N G S 1 THE PRESIDENT: The Senate will 2 come to order. Would everyone please rise and 3 join with me in the Pledge of Allegiance. 4 (The assemblage repeated the 5 Pledge of Allegiance to the Flag.) 6 The invocation today will be 7 given by the Reverend Peter Young of the Blessed 8 Sacrament Church in Bolton Landing. 9 REVEREND PETER YOUNG: Let us 10 pray. Dear God, we come before You scarcely 11 knowing when and how to ask Your guidance on our 12 charge to bring to our New York State industries 13 and labor coalitions a fresh touch of Your 14 life-giving spirit. We pray for those whose 15 skill and training and talents are used, that 16 they may obtain the dignity of work. Grant us 17 what is required for the life to which You call 18 us, not because we ask wisely Your will, but 19 because we have the boundless compassion -- know 20 of Your boundless compassion that You have made 21 known to us by Your good work. We ask You this 22 now and forever in Your name. Amen. 23 THE PRESIDENT: The reading of 1 the Journal. 2 THE SECRETARY: In Senate, 3 Monday, January 29th. The Senate met pursuant 4 to adjournment. The Journal of Friday, January 5 26th, was read and approved. On motion, the 6 Senate adjourned. 7 THE PRESIDENT: Without 8 objection, the Journal stands approved as read. 9 Presentation of petitions. 10 Messages from the Assembly. 11 Messages from the Governor. 12 Reports of standing committees. 13 The Secretary will read. 14 THE SECRETARY: Senator Stafford, 15 from the Committee on Finance, offers up the 16 following nomination: Member and Chairman of 17 the New York State Thruway Authority, Howard 18 Steinberg of Kings Point. 19 THE PRESIDENT: Senator Stafford. 20 SENATOR STAFFORD: Thank you, 21 Madam President. 22 It's a pleasure for me to report 23 first that it was so good for some of us who 1 have been here awhile to have someone exhort the 2 name of Thomas E. Dewey. We don't hear that 3 very often anymore around here, but some of us 4 remember well, but Senator Steinberg was 5 reported out of our committee unanimously today, 6 and I yield to Senator Tully. 7 THE PRESIDENT: Senator Tully. 8 SENATOR TULLY: Thank you, Madam 9 President. 10 I rise to support the nomination 11 of Howard Steinberg as member and chairman of 12 the New York State Thruway Authority. Mr. 13 Steinberg is a constituent of mine. I'm not so 14 certain, although I have seen his birthdate on 15 his resume, as to whether or not he really 16 remembers Dewey/Truman in 1948 or not, but I can 17 tell you that whatever he's found in the lovely 18 area of the town of North Hempstead -- which is 19 part of my constituency, in particular, Kings 20 Point -- I wish he could bottle it because there 21 are many of us who would like to utilize it 22 because he epitomizes what we used to call the 23 Fountain of Youth. Yet with that youthful 1 appearance comes a great deal of experience in 2 the area in which he's going into. 3 He is a partner in a New York law 4 firm which specializes in corporate and securi 5 ties law. He's also had extensive experience in 6 public finance. He's been active in the Bar 7 Association of the city of New York, in their 8 Committees on Corporation Law, Securities 9 Regulations and the Committee on Federal 10 Legislation. He is eminently qualified by both 11 academic and professional experience, and I'm 12 privileged to move his nomination as a member 13 and chairman of the New York State Thruway 14 Authority, and I would ask you, Mr. President, 15 if you would also welcome his lovely wife and 16 daughter who are in the gallery with him. 17 ACTING PRESIDENT MAZIARZ: Thank 18 you, Senator. 19 Is there anyone else wishing to 20 speak on the nomination? 21 Senator Farley. 22 SENATOR FARLEY: Yes. Thank you, 23 Mr. President. 1 I would like to rise to second 2 the nomination of Mr. Steinberg. Having the 3 Thruway district, my counties that I represent 4 go right along the Thruway through the Mohawk 5 Valley, and what an important part of the state 6 and it is the artery of economic opportunity for 7 New York State and, of course, it's the way that 8 so many of my constituents from Schenectady get 9 to work every day coming over here to Albany. I 10 wish more were going the other way, but they 11 seem to be coming this way, but let me just say 12 to the new chairman of the Thruway Authority, 13 that is a very, very important artery for our 14 state. 15 Mr. Steinberg, we wish you well. 16 I know that this house and the entire Legislat 17 ure is going to cooperate with you to support 18 what you're trying to do with this. You have 19 also taken on the canals, which are a very large 20 part of my district and yours also, John, and 21 we're anxious to see some progress being made 22 there, and we wish you well in your appointment, 23 and I'm have pleased to support your nomination. 1 ACTING PRESIDENT MAZIARZ: Thank 2 you, Senator Farley. 3 On the nomination, Senator 4 Dollinger. 5 SENATOR DOLLINGER: Thank you, 6 Mr. President. 7 I rise in support of this nominee 8 as well, with exemplary credentials for this 9 position, and I simply want to explain that 10 during the Committee on Finance discussion, 11 Senator Leichter and I both brought up an issue 12 relating to the fund-raising that might be 13 associated with this. This nominee has given us 14 an answer that I think is on point, and when he 15 said that he hadn't engaged in that in the past, 16 he wasn't waiving anything in the future, he 17 would conform his conduct to that expected under 18 the Public Officers Law, and I think this is a 19 good, high quality nominee. I think our concern 20 as evidenced in that committee remains present, 21 but certainly none of the questions that I 22 asked, nor from Senator Leichter, should be in 23 any way any impugning of the integrity and skill 1 and character of this nominee. 2 I wish him well and I wish him 3 the best in success in working with Bill Warren, 4 who is Rochester's nominee on the Thruway 5 Authority as well. 6 ACTING PRESIDENT MAZIARZ: The - 7 I'm sorry. 8 Senator DeFrancisco. 9 SENATOR DeFRANCISCO: Yes. I 10 would like to add my support to the nominee. 11 Although we've never met, I've read his resume 12 and his credentials. It's always good to have a 13 lawyer on our boards to make sure it's done 14 properly, but most importantly, being chairman 15 of the Tourism Committee, I think it's extremely 16 important to have someone with his capabilities 17 and his background to understand how important 18 it is to develop these tourist destinations 19 along the canal and to bring this resource to 20 bring people to the state of New York, and we'll 21 be having many discussions about that. I'm just 22 pleased that we have this high caliber of a 23 candidate in order to lead this very, very 1 important agency, and I urge unanimous approval. 2 ACTING PRESIDENT MAZIARZ: Thank 3 you. 4 The question is on the 5 confirmation of Howard Steinberg as member and 6 chairman of the New York State Thruway 7 Authority. All in favor signifying by saying 8 aye. 9 (Response of "Aye".) 10 Opposed? 11 (There was no response.) 12 Howard Steinberg is hereby 13 confirmed as a member and chairman of the New 14 York State Thruway Authority. Mr. Steinberg is 15 joined in the chambers with his wife, Judy 16 Steinberg and his daughter, Kathy. 17 Mr. Steinberg. 18 (Applause) 19 We have reports of select 20 committees. 21 Communications and reports from 22 state officers. 23 The Chair recognizes Senator 1 Skelos. 2 SENATOR SKELOS: Mr. President, 3 there will be an immediate meeting of the 4 Racing, Gaming and Wagering Committee in Room 5 332 of the Capitol. 6 ACTING PRESIDENT MAZIARZ: 7 There's an immediate meeting of the Racing, 8 Gaming and Wagering Committee in Room 332. 9 Return to the reports of standing 10 committees. The Secretary will read. 11 THE SECRETARY: Senator Stafford, 12 from the Committee on Finance, offers up the 13 following bill directly for third reading: 14 Senate Print 3978, by Senator 15 Volker, an act amending the Executive Law, in 16 relation to the organization of the New York 17 State Police. 18 Senator Lack, from the Committee 19 on Judiciary, hands up the following bills 20 directly for third reading: Senate Print 397, 21 by Senator Skelos, an act to amend the Real 22 Property Law, in relation to the priority of the 23 lien of a reverse mortgage; 1 1296, by Senator Lack, concurrent 2 resolution of the Senate and Assembly, proposing 3 amendments to Article VI of the Constitution; 4 1743-A, by Senator Skelos, an act 5 to amend the General Obligations Law, in 6 relation to certain crime victims; 7 2109, by Senator Saland, an act 8 to amend the Surrogate's Procedure Court Act and 9 the Domestic Relations Law; 10 5489-A, by Senator Marcellino, an 11 act to amend the Municipal Law; 12 5757, by Senator Saland, an act 13 to confirm the existence and boundaries of the 14 Craryville fire department; 15 Senator Cook, from the Committee 16 on Education, offers up the following bills 17 directly for third reading: 18 Senate Print 2345-A, by Senator 19 Cook, an act to amend the Education Law, in 20 relation to the district funds; 21 2453, by Senator Cook, an act to 22 amend the Education Law, in relation to 23 procedures for the submission of propositions; 1 2902-A, by Senator Cook, an act 2 to amend the Education Law, in relation to 3 authorizing electronic funds; 4 3913, by Senator Cook, an act to 5 amend the Education Law, in relation to the 6 transportation of pupils. 7 Senator Marcellino, from the 8 Committee on Conservation, offers up the 9 following bills: 10 3644, by Senator Tully, an act to 11 amend the Public Authorities Law; 12 4423, by Senator Tully, an act to 13 amend the Environmental Conservation Law; 14 4533, by Senator Marchi, an act 15 to amend the Environmental Conservation Law, in 16 relation to the general powers of the New York 17 State Environmental Facilities Corporation. 18 Senator Goodman, from the 19 Committee on Investigations, Taxation and 20 Government Operations, offers up the following 21 bills: 22 267-A, by Senator Farley, an act 23 to amend the Arts and Cultural Affairs Law; 1 628, by Senator Stafford, an act 2 to amend the Tax Law, in relation to the 3 distribution of additional mortgage recording 4 tax; 5 By Senator Cook, 2964, an act to 6 amend the Tax Law, in relation to imposing a 7 sales and compensating use tax. 8 All bills reported directly for 9 third reading. 10 ACTING PRESIDENT MAZIARZ: 11 Without objection, all bills directly to third 12 reading. 13 Motions and resolutions. 14 Senator Tully. 15 SENATOR TULLY: Yes, Mr. 16 President. 17 On behalf of Senator Lack, on 18 page 4, I offer the following amendments to 19 Calendar Number 10, Senate Print Number 1621-A, 20 and ask that said bill retain its place on the 21 Third Reading Calendar. 22 ACTING PRESIDENT MAZIARZ: The 23 amendments are received. 1 The Chair recognizes Senator 2 Skelos. 3 SENATOR SKELOS: Mr. President, 4 on behalf of Senator Saland, would you star his 5 bill, Calendar Number 137, Senate 3501. 6 ACTING PRESIDENT MAZIARZ: The 7 bill is starred at the request of the sponsor. 8 SENATOR SKELOS: Mr. President, 9 at this time if we could adopt the Resolution 10 Calendar. 11 ACTING PRESIDENT MAZIARZ: All in 12 favor of adopting the Resolution Calendar 13 signify by saying aye. 14 (Response of "Aye".) 15 Opposed? 16 (There was no response.) 17 The Resolution Calendar is 18 adopted. 19 SENATOR GOLD: Mr. President. 20 ACTING PRESIDENT MAZIARZ: The 21 Chair recognizes - 22 SENATOR GOLD: I understand that 23 Senator Maltese's resolution on the Queens 1 Tribune, he would not mind opening it up to the 2 Queens members, and I know -- oh, okay. 3 ACTING PRESIDENT MAZIARZ: The 4 Chair recognizes Senator Maltese. 5 SENATOR MALTESE: Thank you. 6 With respect to Resolution 7 JR2286, that is open to any members that would 8 wish to be on, commemorating the 25th 9 anniversary of the Queens Tribune. 10 Thank you, Mr. - 11 ACTING PRESIDENT MAZIARZ: 12 Senator Skelos. 13 SENATOR SKELOS: Mr. President, 14 we just adopted Senator Bruno's Resolution 2289 15 which expresses sorrow upon the occasion of the 16 death of Major General John C. Baker. If any 17 individual would like to co-sponsor it, if they 18 could inform the desk, Senator Bruno has 19 consented to that. 20 ACTING PRESIDENT MAZIARZ: 21 Senator Skelos. 22 SENATOR SKELOS: All right. At 23 this time, if we could take up the non 1 controversial calendar. 2 ACTING PRESIDENT MAZIARZ: The 3 Secretary will read. 4 THE SECRETARY: Calendar Number 5 29, by Senator Skelos, an act to amend the 6 Executive Law, in relation to the search of 7 criminal history records. 8 ACTING PRESIDENT MAZIARZ: Read 9 the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect on the 1st day of 12 November. 13 ACTING PRESIDENT MAZIARZ: Call 14 the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 49. 17 ACTING PRESIDENT MAZIARZ: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 88, by Senator Marchi, Senate Print - 21 SENATOR SKELOS: Lay it aside for 22 the day. 23 ACTING PRESIDENT MAZIARZ: The 1 bill is laid aside for the day. 2 THE SECRETARY: Calendar Number 3 93, by Senator Farley, Senate Print 2674, an act 4 to amend the Personal Property Law and the 5 General Municipal Law and Business Law, in 6 relation to the taking of a purchase money 7 security interest. 8 SENATOR PATERSON: Lay it aside. 9 ACTING PRESIDENT MAZIARZ: Lay 10 the bill aside. 11 THE SECRETARY: Calendar 100, by 12 Senator Seward, Senate Print 3432-A, an act to 13 amend the Public Service Law, in relation to 14 increasing the statutory ceiling for non-major 15 changes. 16 ACTING PRESIDENT MAZIARZ: Read 17 the last section. 18 THE SECRETARY: Section 5. This 19 act shall take effect immediately. 20 ACTING PRESIDENT MAZIARZ: Call 21 the roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes 49. 1 ACTING PRESIDENT MAZIARZ: The 2 bill is passed. 3 THE SECRETARY: Calendar 103, by 4 Senator Cook, Senate Print 4864-B, an act to 5 amend the Public Authorities Law, in relation to 6 the defense of members. 7 ACTING PRESIDENT MAZIARZ: Read 8 the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 ACTING PRESIDENT MAZIARZ: Call 12 the roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes 49. 15 ACTING PRESIDENT MAZIARZ: The 16 bill is passed. 17 THE SECRETARY: Calendar 106, by 18 Senator Farley, Senate Print 1290, an act to 19 amend the Public Authorities Law, in relation to 20 annual commuter car pool permits. 21 ACTING PRESIDENT MAZIARZ: Read 22 the last section. 23 THE SECRETARY: Section 2. This 1 act shall take effect on the 60th day. 2 ACTING PRESIDENT MAZIARZ: Call 3 the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 49. 6 ACTING PRESIDENT MAZIARZ: The 7 bill is passed. 8 THE SECRETARY: Calendar 111, by 9 Senator Volker, Senate Print 197 - 10 SENATOR GOLD: Lay it aside. 11 ACTING PRESIDENT MAZIARZ: Lay 12 the bill aside. 13 THE SECRETARY: Calendar 113, by 14 Senator Present, Senate Print 503, an act to 15 amend the Penal Law, in relation to lawful 16 possession of weapons by persons 11 years of 17 age. 18 ACTING PRESIDENT MAZIARZ: Read 19 the last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect on the first day of 22 November. 23 ACTING PRESIDENT MAZIARZ: The 1 Chair recognizes Senator Paterson. 2 SENATOR PATERSON: I just vote 3 no, Mr. President. 4 ACTING PRESIDENT MAZIARZ: Read 5 the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect on the first day of 8 November. 9 ACTING PRESIDENT MAZIARZ: Call 10 the roll. 11 (The Secretary called the roll.) 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 113, Senator 14 Connor and Paterson. Ayes 47, nays 2. 15 ACTING PRESIDENT MAZIARZ: 16 Senator Connor is to be recorded -- the bill is 17 passed. 18 THE SECRETARY: Calendar 114, by 19 Senator Cook - 20 SENATOR GOLD: Lay it aside. 21 ACTING PRESIDENT MAZIARZ: The 22 bill is laid aside. 23 THE SECRETARY: Calendar 115, by 1 Senator Volker, Senate Print 587, an act to 2 amend the Penal Law, in relation to the theft of 3 telecommunication services. 4 ACTING PRESIDENT MAZIARZ: Read 5 the last section. 6 THE SECRETARY: Section 7. This 7 act shall take effect on the 1st day of 8 November. 9 ACTING PRESIDENT MAZIARZ: Call 10 the roll. 11 (The Secretary called the roll.) 12 THE SECRETARY: Ayes 56. 13 ACTING PRESIDENT MAZIARZ: The 14 bill is passed. 15 THE SECRETARY: Calendar 116, by 16 Senator DiCarlo, Senate Print 637-A, an act to 17 amend the Penal Law, in relation to unlawful 18 possession of a box cutter. 19 ACTING PRESIDENT MAZIARZ: Read 20 the last section. 21 THE SECRETARY: Section 5. This 22 act shall take effect on the 1st day of 23 November. 1 ACTING PRESIDENT MAZIARZ: Call 2 the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 56. 5 ACTING PRESIDENT MAZIARZ: The 6 bill is passed. 7 THE SECRETARY: Calendar 119, by 8 Senator Saland, Senate Print 692-A, an act to 9 amend the Penal Law, in relation to the minimum 10 period of imprisonment. 11 ACTING PRESIDENT MAZIARZ: Read 12 the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect on the 1st day of 15 November. 16 ACTING PRESIDENT MAZIARZ: Call 17 the roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 57. 20 ACTING PRESIDENT MAZIARZ: The 21 bill is passed. 22 THE SECRETARY: Calendar 120, by 23 Senator Spano, Senate Print 1088-A, an act to 1 amend the Penal Law, in relation to the crime of 2 criminal employment of a minor. 3 ACTING PRESIDENT MAZIARZ: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the 1st day of 7 November. 8 ACTING PRESIDENT MAZIARZ: Call 9 the roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 57. 12 ACTING PRESIDENT MAZIARZ: The 13 bill is passed. 14 Senator Skelos, that completes 15 the non-controversial. 16 SENATOR SKELOS: Take up the 17 controversial calendar, Mr. President. 18 ACTING PRESIDENT MAZIARZ: The 19 Secretary will read. 20 THE SECRETARY: Calendar Number 21 93, by Senator Farley, Senate Print 2674, an act 22 to amend the Personal Property Law and the 23 General Business Law, in relation to the taking 1 of a purchase money security interest. 2 SENATOR PATERSON: Explanation, 3 please. 4 ACTING PRESIDENT MAZIARZ: The 5 Senate will stand at ease for a minute. 6 The Chair recognizes Senator 7 Skelos. 8 SENATOR SKELOS: Mr. President, 9 if we could at this time bring up Senator Cook's 10 bill, Calendar Number 114, I believe Senator 11 Volker is at a committee meeting right now. 12 ACTING PRESIDENT MAZIARZ: The 13 Secretary will read. 14 SENATOR SKELOS: Senator Farley, 15 rather. 16 THE SECRETARY: Calendar Number 17 114, by Senator Cook, Senate Print 561, an act 18 to amend the Criminal Procedure Law, in relation 19 to denial of bail. 20 SENATOR PATERSON: Explanation. 21 ACTING PRESIDENT MAZIARZ: 22 Senator Paterson has requested an explanation. 23 Senator Cook. 1 SENATOR COOK: Mr. President, 2 this bill would change the basis for granting of 3 bail in the state of New York so that it would 4 include a consideration of the potential danger 5 to society if the person were released on bail. 6 There are those who contend that 7 this is already done. I think that's highly 8 questionable, particularly in light of at least 9 one Supreme Court decision in New York State 10 which found that setting bail inordinately high 11 was a violation of the law which said that the 12 only reason for bail in New York was to ensure 13 that the person would appear at the time it was 14 set for trial. 15 I think that there's another 16 reason, and I think that there ought to be 17 another reason, and I think that reason is that 18 we have a responsibility to protect people on 19 the streets from individuals who have a record 20 which indicates that they have a particularly 21 high potential for being an endangerment to 22 society, and that is based upon an established 23 record where these folks had been involved in 1 serious crimes against the person of individuals 2 previously. So this bill makes it real clear to 3 a judge that it's his responsibility in the 4 decision as to whether to grant bail, that he 5 consider not only -- he or she consider not only 6 the question of whether the individual is apt to 7 show up for trial but that, indeed, to consider 8 the potential endangerment to society. 9 I will say, I found it kind of 10 interesting as -- during the years since this 11 bill was originally proposed, and there was a 12 great hue and cry on the part of some of the 13 people that we've heard the concept now being 14 repeated and suggested by other people in our 15 context through the years and, indeed, it's 16 something that seems to me is gaining an 17 increasing acceptance by -- by folks who are 18 concerned about protecting the safety of people 19 on our streets. I think it's time for New York 20 to put this into statute so that our citizens 21 have the same protections. 22 ACTING PRESIDENT MAZIARZ: The 23 Chair recognizes Senator Paterson. 1 SENATOR PATERSON: Thank you very 2 much, Mr. President. 3 If the Senator would yield for a 4 question. 5 SENATOR COOK: Yes. 6 ACTING PRESIDENT MAZIARZ: 7 Senator Cook, would you yield? 8 SENATOR COOK: Yes. 9 SENATOR PATERSON: Thank you, Mr. 10 President. 11 My question to Senator Cook 12 involves the issue of judicial discretion. Is 13 it not true, Senator Cook, that even in the 14 federal system where the restrictions are very 15 similar to what you're proposing in this bill, 16 that the federal judge can still evaluate the 17 dangerousness of the perpetrator, or the accused 18 in the case, whereas in your legislation, all of 19 that is set forth in statute? 20 SENATOR COOK: Mr. President, 21 Senator, that is correct up to a point, so long 22 as you realize that it's in the area of 23 presumption, refutable presumption, if you will, 1 because the defense has an opportunity to, in 2 effect, present reasons to the judge why the 3 individual ought to be -- ought to be granted 4 the bail. So it's not an open or closed 5 automatic decision. It's a decision that 6 stands, assuming it's not challenged, by the 7 defense. 8 ACTING PRESIDENT MAZIARZ: 9 Senator Paterson. 10 SENATOR PATERSON: Thank you, Mr. 11 President. 12 My fear is that we are actually 13 turning the presumption of innocence on its head 14 and now making it, as Senator Cook just stated, 15 really the burden of the defense to now prove 16 that it is not the case, even if it's a 17 rebuttable presumption, but it's not the case 18 that this defendant should be held for bail. If 19 the Senator would continue to yield, then my 20 question at that point, Senator Cook, involves 21 just the determination itself that's made by the 22 judge. Isn't it really set forth more in 23 statute? I mean, once you've established a 1 criteria that there should not be any bail, then 2 there isn't going to be anything the judge has 3 to do other than just fill in the blanks in the 4 form as to whether or not there is either a 5 previous conviction or a -- another charge that 6 is existing at the time of the actual -- that 7 the bail hearing is held; is that not correct? 8 SENATOR COOK: Senator, it's true 9 that the presumption is there. In other words, 10 if somebody has a record of violent crimes 11 against people, the judge certainly is -- is 12 predisposed by virtue of the statute not to 13 grant the bill, but as I indicated before, as in 14 the federal court, there is a -- an ability on 15 the part of the defense to argue that, due to 16 some circumstance, the individual ought to be 17 released. So it's not -- not an automatic, and 18 I really argue it's not a presumption of guilt, 19 because this is a case where we are -- where we 20 know the individual is, in one case, either out 21 on bail, due to a previous charge, or that there 22 is somebody who has a record where they have, in 23 fact, been convicted of these types of crimes in 1 the past and, therefore, it's a reasonable 2 concern that if they are released on the street, 3 that they may well constitute an endangerment to 4 folks who are out there. 5 ACTING PRESIDENT MAZIARZ: 6 Senator Paterson. 7 SENATOR PATERSON: Thank you, Mr. 8 President. Through you to Senator Cook. 9 Senator, I appreciate your 10 recognition in this legislation, that you do not 11 believe that it establishes a presumption of 12 guilt, because then I think we have a basis that 13 we can perhaps reach some kind of an agreement 14 here and that is that, if there is no presump 15 tion of guilt, then we would turn ourselves to 16 the answer of the question as to what is bail 17 for, and I think the Eighth Amendment states 18 pretty clearly that bail is not really for 19 preventive detention. It really is there to 20 ensure the presence of the defendant during 21 trial. The preventive detention comes in when 22 we believe the defendant will not be present. 23 So I maintain that in a case of a previous 1 conviction, even if we were to accept that in 2 your legislation, how can we come to the point 3 of view that we have to have preventive 4 detention when all we have, in some cases, is 5 the accusation of another crime which could even 6 be related to the crime that the individual is 7 being held for bail in this instance? 8 So my question to you is how can 9 there be a presumption of innocence and at the 10 same time, use this procedure to establish 11 bail? 12 SENATOR COOK: Mr. President, I 13 think that there are cases in -- in our history, 14 and we know that there are cases that have been 15 upheld by the courts because this very type of 16 statute has been upheld by the courts, where the 17 concern that society be protected has been 18 considered to be more important, if you will, 19 than the procedural issue. 20 Now, recognizing the bill also 21 provides for speedy trial -- which is, of 22 course, an important part of it, but one of the 23 cases when we were having hearings on this was 1 in Buffalo when the accused person who 2 eventually ended up killing a police officer had 3 a string of 11 con... I'm sorry, 11 indictments 4 for violent attacks on people, and he had been 5 repeatedly released on the street on the 6 assumption that he would show up for trial, 7 because that was and, indeed, as you stated, is 8 the presumption that's in the law books of the 9 state of New York today, but that the judge had, 10 in each case said, "Look, I know this guy is a 11 violent person and that there is, indeed, the 12 danger of that person being out on the street, 13 that we're going to have more attacks, but I am 14 powerless to do anything about it because the 15 statute, the presumption in the state of New 16 York is and has been that the only basis for 17 denied bail is a presumption that the person 18 might not appear at the time of the trial. 19 ACTING PRESIDENT MAZIARZ: 20 Senator Paterson. 21 SENATOR PATERSON: Thank you, Mr. 22 President. 23 I think that in the case that 1 Senator Cook describes, there certainly has got 2 to be some sobriety that one derives from 3 hearing of a situation where an individual who 4 had been charged 11 times previously and now out 5 on bail, murdered a police officer. It's a 6 heinous crime and it's something that, 7 unfortunately, could also have happened any time 8 after the tenth indictment because, unfortun 9 ately, we were not able to convict this person 10 who we'll concede apparently was a violent felon 11 who, for some reason, managed not to be 12 convicted. 13 So the flaw, as I see it, Senator 14 Cook, was not so much in the bail proceeding, 15 but the fact that somehow we just weren't able 16 to convict this person, and I'm wondering if we 17 haven't legislated a tough case here. We've 18 legislated a case in which our hearts must go 19 out to the families of the victim, and it does 20 seem like a cruel irony on society that this 21 kind of thing could happen, but my concern is 22 that under our Constitution, in this country, 23 that we provide a presumption of innocence and 1 we also provide mechanisms through the Sixth and 2 Eighth Amendments to allow for a speedy trial 3 and bail, and that what we're going to have is a 4 presumption made against what you might call the 5 "usual suspects", the people who will get a 6 certain amount of attention paid to them every 7 time there is a crime but, in fact, have not 8 been convicted and may, indeed, actually be 9 innocent of the crimes; and so my fear about 10 passing this kind of legislation lies in the 11 difference between Senator Cook's interpretation 12 of the previous case law and my own. 13 I think the previous case law 14 does establish that Senator Cook is right with 15 the respect that you can, for purposes of 16 protection of society, require stricter bail, 17 but where I don't think the courts go along with 18 Senator Cook, most respectfully, is that I don't 19 think that they have made an interpretation that 20 there should be no judicial expression, no 21 judicial discretion and no judicial action that 22 demonstrates the individual case, vis-a-vis all 23 the cases, and that the real meaning of the 1 Eighth Amendment then becomes lost to guarantee 2 the defendant's presence during the trial but 3 rather the bail hearing becomes more of a test 4 of the -- of the previous crimes or accusations 5 made against the defendant. 6 And so for that reason, I cannot 7 support this bill, even though the intent 8 certainly is to protect members of the society. 9 I think that our form of government is really 10 one that guarantees the accused at least the 11 opportunity to come to trial without a stigma 12 being attached. 13 ACTING PRESIDENT DiCARLO: 14 Senator Cook. 15 SENATOR COOK: I'm going to 16 violate the rule of quitting while you're ahead 17 and make one more statement, and it really is 18 kind of unrelated, but I think it is related 19 intellectually, and that is in the area of 20 mental health, we made findings that certain 21 individuals may be an endangerment to themselves 22 or to society or to others and that, for that 23 reason, there is justification for keeping them, 1 if not incarcerated, at least keeping them under 2 guard. It seems to me that it is not 3 unreasonable for that same test to be applied to 4 people who either have histories of violent 5 crimes for which they have been convicted or who 6 have been repeatedly arrested for crimes which 7 are crimes of the person and which are violent 8 in nature. 9 ACTING PRESIDENT DiCARLO: 10 Senator Paterson. 11 SENATOR PATERSON: Thank you, Mr. 12 President. 13 I certainly am not quitting while 14 I'm ahead. I would respond exactly, I'm losing, 15 as usual, but what I would like to say in 16 response to what Senator Cook has asserted here 17 is that we have a procedure for the treatment of 18 mental health cases in the criminal justice 19 system, the first of which is we examine them 20 for -- on the basis of their fitness to proceed 21 to trial. We want to know with a reasonable 22 degree of certainty whether or not a physician 23 can determine that the defendant understands the 1 nature of the charges against him and can assist 2 in his own defense, and we hold that under 3 Section 730 of the Criminal Procedure Law. 4 Now, there are also orders of 5 retention that we have in the mental health 6 system under Section 330-20 of the Criminal 7 Procedure Law where we've determined that this 8 individual is a danger to society, and we've 9 even made mental health determinations in the 10 Civil Law under Sections 9.31 and 9.35 of the 11 Mental Health Law where we will detain a person 12 up to 15 days prior to two physicians signing a 13 statement. We can keep them longer, but these 14 are procedures that we establish where there is 15 a determination by doctors that the person is 16 dangerous that, if they're not treated with 17 certain types of medications, that they can be 18 certainly an -- individuals who could be harmful 19 to society if allowed back out to the streets or 20 into society, but in the case of criminal 21 defendants, we are making that determination 22 based on, in one case, charges, not even 23 conduct. I'll accept that the previous 1 convictions do examine conduct, but a previous 2 indictment is really just a charge. In other 3 words, a person is being held on one crime, they 4 get arrested for another and, therefore, they 5 can't receive any bail because there's a 6 determination that since the two incidents 7 occurred so close together, in a way, there's a 8 chance that they might be guilty and might do it 9 again. I don't know that that coincides with 10 the actions that we take with respect to mental 11 health patients or the examination of whether or 12 not an individual is fit to go to trial. We 13 detain them based on a reasonable degree of 14 medical certainty. Here we're doing it based on 15 really an assumption even more than a 16 presumption that we're making about these 17 individuals. 18 ACTING PRESIDENT DiCARLO: Read 19 the last section. 20 THE SECRETARY: Section 11. This 21 act shall take effect on the 1st day of 22 January. 23 ACTING PRESIDENT DiCARLO: Call 1 the roll. 2 (The Secretary called the roll.) 3 SENATOR WALDON: Explain my vote. 4 ACTING PRESIDENT DiCARLO: 5 Senator Waldon to explain his vote. 6 SENATOR WALDON: Thank you very 7 much, Mr. President. 8 I apologize for being out of the 9 chamber, but we were called out by the chairman 10 of the committee I sit upon. I would have 11 welcomed the opportunity to be here. I was 12 advised that Senator Paterson, in his eloquence, 13 touched on the issues that I would have raised, 14 and I appreciate that very much, Senator 15 Paterson. 16 I would just like to say to my 17 colleagues, any time that there is an 18 interference with judicial discretion, I think 19 that we are skating on very thin ice, and are we 20 going to accomplish more by removing judges from 21 the positions that they've trained for and 22 worked so hard at all of their lives which 23 brings a sense of balance in a social sense to 1 the state, or are we going to allow them to do 2 their job? I would encourage us to allow judges 3 to do their job, and I most respectfully vote no 4 on this bill. 5 Thank you, Mr. President. 6 ACTING PRESIDENT DiCARLO: 7 Results. 8 THE SECRETARY: Those recorded in 9 the negative on Calendar Number 114 are Senators 10 Abate, Connor, Gold, Paterson, Santiago, 11 Waldon. Ayes 50, nays 6. Also, Senator 12 Leichter; also, Senator Montgomery, Senator 13 Leichter. Ayes 48, nays 8. 14 ACTING PRESIDENT DiCARLO: The 15 bill is passed. 16 The Secretary will read. 17 Senator Skelos, would you like to 18 go back to Calendar 93 at this time? 19 SENATOR SKELOS: Yes. 20 ACTING PRESIDENT DiCARLO: The 21 Secretary will read. 22 THE SECRETARY: Calendar Number 23 93, by Senator Farley, Senate Print 2674, an act 1 to amend the Personal Property Law and the 2 General Business Law, in relation to the taking 3 of a purchase money security interest. 4 ACTING PRESIDENT DiCARLO: 5 Senator Farley, an explanation has been asked 6 for. 7 SENATOR FARLEY: Thank you, Mr. 8 President. 9 This is a bill that passed rather 10 overwhelmingly last year. It's -- it got lost 11 in the last few days of negotiations. It's 12 sponsored in the Assembly by Assemblymen 13 Feldman, Farrell, Lafayette, Green, Kaufman, 14 Ramirez and almost became law, expected to 15 become law this year. 16 Actually, what this does is it 17 enables the retail merchants of this state to 18 take a security interest in high value 19 merchandize sold under a revolving credit 20 agreement. 49 states out of 50 allow this 21 revolving credit agreement, and it allows people 22 with limited resources to be able to buy a high 23 value piece of merchandise. It's based, 1 incidentally, on the premise that somebody that 2 buys a high priced piece of merchandise is 3 expected that it will be paid for, and this is a 4 very, very important bill to the retail 5 industry, which is one of the largest industries 6 in this state, and incidentally, this bill 7 contains consumer protection provisions far in 8 excess of any other state. They have been 9 described by a committee of the State Bar 10 Association as landmark in nature. 11 It's essentially the same bill 12 that passed both houses in 1992 and was vetoed. 13 The veto referenced the overall interest rate 14 deregulation issue, and that issue was resolved 15 in the state of New York by the adoption of 16 Chapters 1 and 2 of 1994, so the objection of 17 the particular bill has been taken care of. 18 ACTING PRESIDENT DiCARLO: Excuse 19 me, Senator. 20 Senator Skelos, why do you rise? 21 SENATOR SKELOS: Yeah. If I 22 could just interrupt, Senator Farley. There'll 23 be an immediate meeting of the Insurance 1 Committee in Room 332 of the Capitol. 2 Thank you, Senator Farley. 3 ACTING PRESIDENT DiCARLO: 4 Senator Farley. 5 SENATOR FARLEY: You know, not 6 only has there become an immediate decline in 7 the retail industry as a result of serious job 8 losses and a broader loss to the overall state's 9 economy, but a sense that New York is no longer 10 the center of the nation's retail trade, which 11 may lead other stores to leave the state. 12 Now, there's a number of factors 13 that go into that, we know that, tax on clothing 14 and a few other things, but the New York Times 15 has characterized the situation as the plight 16 among the area's traditional merchants which was 17 reaching a crisis and damaging New York as the 18 capital of the global retail industry. I think 19 this would help merchants; it would help the 20 consumer, and it's a good piece of legislation. 21 I urge its passage. 22 ACTING PRESIDENT DiCARLO: 23 Senator Paterson. 1 SENATOR PATERSON: Mr. President, 2 I really dislike having to interrupt Senator 3 Farley, but might we read the last section for 4 Senator Onorato who has to go to a meeting? 5 SENATOR SKELOS: No objection. 6 ACTING PRESIDENT DiCARLO: 7 Without objection, read the last section. 8 THE SECRETARY: Section 3. This 9 act shall take effect on the 90th day. 10 ACTING PRESIDENT DiCARLO: Call 11 the roll. 12 (The Secretary called the roll.) 13 ACTING PRESIDENT DiCARLO: 14 Senator Onorato, how do you vote? 15 (Indication of "No".) 16 Withdraw the roll call. 17 Senator Markowitz - 18 SENATOR MARKOWITZ: Thank you 19 very much, if I may. 20 ACTING PRESIDENT DiCARLO: -- why 21 do you rise? 22 SENATOR MARKOWITZ: Because of 23 our policy of calling committee meetings off the 1 floor, forgive me that I had two in a row. May 2 I vote in the negative on Calendar Number 115. 3 Voting negative, even though I know Senator 4 Farley, I love you and respect you, I still 5 respectfully vote no on your bill, 93, and I 6 have a hunch the committee meeting will be on 7 for a bit, so 111, if I may also vote in the 8 negative as well. 9 SENATOR SKELOS: Senator 10 Markowitz, we will give you unanimous consent to 11 be recorded in the negative on Calendar Number 12 114. Certainly you can vote in the negative on 13 Calendar Number 93, but the other bill has not 14 been called up. 15 SENATOR MARKOWITZ: Okay, fine. 16 Thank you very much. 17 ACTING PRESIDENT DiCARLO: 18 Without objection. 19 Senator Farley. 20 SENATOR FARLEY: Well, I think I 21 already urged its passage, and you can see I got 22 two negative votes in a row on that one. I 23 think I better sit down. (Laughter) 1 ACTING PRESIDENT DiCARLO: 2 Senator Paterson, why do you rise? 3 SENATOR PATERSON: Mr. 4 President. I haven't made up my mind, Senator 5 Farley. I'm going to stay here, and if you 6 would yield for a couple of questions. 7 ACTING PRESIDENT DiCARLO: 8 Senator Farley, do you yield? 9 (Senator Farley nods head.) 10 Senator Farley yields. 11 SENATOR FARLEY: Very 12 encouraging, Senator Paterson. 13 SENATOR PATERSON: Thank you. 14 Senator Farley, there is 15 notification, am I not correct, at the time the 16 consumer signs the purchase money security 17 interest, is that correct? 18 SENATOR FARLEY: Yes. 19 SENATOR PATERSON: Senator 20 Farley, is there any notification -- through 21 you, Mr. President -- at the time that the 22 actual repossession is going to occur? 23 SENATOR FARLEY: I presume - 1 well, just give me a second. I've got about 2 five pages of notes on this. 3 SENATOR PATERSON: Mr. President. 4 SENATOR FARLEY: I can't answer 5 that at this point, whether the -- I would 6 presume that the person knows very well that 7 this is a security interest where the goods, if 8 you will, may be repossessed. I'm sure that 9 they would be aware of the fact that it's going 10 to be repossessed. You're talking about 11 notification that they're going to repossess 12 it? I think that would be done in the normal, 13 ordinary course of business, but I don't think 14 there's -- to my knowledge, I don't think 15 there's anything in the legislation as far as 16 that. 17 ACTING PRESIDENT DiCARLO: 18 Senator Paterson. 19 SENATOR PATERSON: I agree with 20 you, Senator Farley. Let me cite an example of 21 how I think it could become an issue. Since you 22 have a revolving agreement - 23 SENATOR FARLEY: M-m h-m-m. 1 SENATOR PATERSON: -- you have an 2 individual signing at the time of the purchase 3 money security interest, say a few years down 4 the road they purchase a refrigerator and let's 5 say the refrigerator costs $1,000, so they pay 6 back the thousand dollars in the 60-day 7 requirement, but they neglect to remember that 8 they actually have a couple hundred dollars that 9 they owe on other items, and so unbeknownst to 10 them, they are in violation of the security 11 interest as we've defined it, and the next thing 12 they know, somebody's at their door to pick up 13 the refrigerator. 14 SENATOR FARLEY: Let me try to 15 answer that. I might be able to answer that, 16 because I just found something that addresses 17 this question. The seller must obtain a court 18 order to repossess, and no repossession may be 19 made without the written consent of the buyer. 20 SENATOR PATERSON: So, in other 21 words, Senator Farley, the buyer knows that the 22 court order is coming very much like an 23 eviction? 1 SENATOR FARLEY: I would think 2 so, yes. 3 SENATOR PATERSON: Thank you very 4 much, Senator Farley. 5 A question in terms of how this 6 is going to affect the interest rates. In other 7 words, we were hoping this would bring the 8 interest rates down. Is there anything to know 9 that, and is there anything in the legislation 10 that helps to bring the interest rates down, 11 because that is the greatest concern that the 12 consumers have. 13 SENATOR FARLEY: Your point is 14 well taken. As you know, as I said earlier, the 15 reason that this bill did not become law was 16 that Governor Cuomo was anxious, and I think 17 supportive because he signed the legislation to 18 deregulate interest rates, and what this will do 19 -- of course, we know that the retail industry 20 -- and we certainly have one of the most 21 competitive in the nation -- is very 22 competitive, and I think that the interest rates 23 that will be charged on a security interest will 1 be highly advertised and competitive from the 2 point of view of -- unless the merchant has a 3 competitive interest rate, he's not going to get 4 that security. 5 SENATOR PATERSON: In the 6 legislation as it stands right now, based on 7 previous law that we have made right here in 8 this chamber, there is no regulation. Isn't it 9 possible the security interest rate will go up? 10 SENATOR FARLEY: Yes. In a 11 deregulated industry, it could go up and it can 12 go down, just like the stock market. 13 SENATOR PATERSON: Well, then, 14 Senator Farley, my question to you is, is there 15 anything tangible that you can tell me that is 16 set forth in this bill that is going to benefit 17 the consumer? 18 SENATOR FARLEY: Yes, I think 19 there is because -- let me just say this: 49 20 other states have this legislation. No other 21 state in the nation has put in the consumer 22 protection factors that are in this 23 legislation. No one has that. The New York 1 State Bar Association has lauded it. It's 2 landmark legislation for the consumer, and what 3 we're talking about, what benefits the consumer 4 here has -- a consumer with particularly limited 5 assets would live in a credit, and so forth - 6 let's say troubled credit can now go out and buy 7 a secure... merchandise costing more than $200 8 that he perhaps would never have access to, and 9 I think that's an advantage, not only to the 10 retailer, but it's an advantage to the consumer 11 that they'll be able to buy a refrigerator, that 12 they'll be able to buy a television set for - 13 that they'll be able to buy a large ticket item 14 that they would never have access to because of 15 their -- maybe their credit problems, their 16 financial situation, and so forth, and it gives 17 the merchant who is selling it the security, 18 generally speaking. In reality, the merchant is 19 very reluctant to repossess the merchandise. 20 It's only used as more or less a -- I would say 21 a threat than it is a reality. I once worked in 22 the retail business after -- after high school 23 and seldom did I ever see that really happen, 1 repossessions. 2 ACTING PRESIDENT DiCARLO: 3 Senator Paterson. 4 SENATOR FARLEY: I think there is 5 that advantage. That was back in -- these guys 6 are nasty over here. 7 SENATOR PATERSON: They weren't 8 much better over here, Senator. 9 I want to thank Senator Farley, 10 Mr. President, for the answers. They were very 11 persuasive. However, I don't see anything in 12 this legislation -- we're not preventing the 13 retailer from selling the merchandise to the 14 consumer. The retailer can still sell the 15 merchandise to the consumer. What we're 16 allowing for is for a money security interest to 17 allow for repossession. 18 There are just a couple things I 19 want to point out. Only the English language is 20 used in the original requirements that the - 21 that the consumer would sign. There's also the 22 issue that if the consumer becomes bankrupt, 23 that this jumps this particular retailer higher 1 up on the list, which I don't necessarily 2 oppose, but it does change the order of the 3 first meeting of creditors. 4 And finally, we just don't see 5 any way that it benefits the consumer, and we 6 certainly respect the 49 other states who do see 7 it and also Senator Farley, but I'm going to 8 vote against this bill and keep New York in the 9 forefront -- in the forefront of consumer 10 protection as the only state that recognizes the 11 reasons why we wouldn't want to have the 12 purchase money security. 13 ACTING PRESIDENT DiCARLO: 14 Senator Abate. 15 SENATOR ABATE: Yes. Would 16 Senator Farley yield to just a couple 17 questions? 18 ACTING PRESIDENT DiCARLO: 19 Senator Farley, do you yield? 20 SENATOR ABATE: I have a couple 21 concerns and my questions will reflect that. 22 This bill does not differentiate between a 23 consumer who has -- or tell me otherwise - 1 between a consumer who over the course of many 2 months has paid what he owes to the retailer, 3 but by the second month because of very short 4 term fiscal problems, let's say owes $10 on a 5 large item. The bill does not differentiate 6 from that individual and an individual who, from 7 the get go, refuses to pay his or her debt month 8 after month, and then the retailer has to recoup 9 his losses. Here, an individual can owe -- only 10 owe one dollar and after 60 days, the retailer 11 can repossess that item. Is there a reason that 12 the bill does not differentiate between the two 13 consumers? 14 SENATOR FARLEY: I think it does 15 in a number of ways. Let me just discuss - 16 SENATOR ABATE: And if it does, 17 Senator, if you could explain how it does that. 18 SENATOR FARLEY: Let me just - 19 let me just talk about the default things. 20 Again, there are a number of consumer protection 21 things in this legislation which currently does 22 not exist in the law. "Extended notices of 23 default and the ability to cure requirements 1 will make repossession by a merchant selling 2 under a revolving credit agreement more 3 difficult than is the case for goods sold with a 4 security interest under the closed end contract 5 in the current law. The account must be in 6 default for 30 days before a notice is even sent 7 and then the buyer must be given an additional 8 30 days in which to pay before any action may be 9 taken. A court order -- the seller must obtain 10 a court order in order to repossess. No 11 repossessions may be made without the written 12 consent of the buyer", and let me tell you, 13 Senator Abate, I'm confident that no merchant is 14 going to repossess for one dollar that is owed 15 on merchandise, and incidentally, full 16 disclosure is required of every merchant selling 17 or taking a security interest, and I truly 18 believe that this is a reasonable piece of 19 legislation. 20 I understand that there's a memo 21 against it, I believe it's by -- is it by NYPIRG 22 or something, but I really don't think that 23 their point is well taken. There's very little 1 opposition to this that I've heard of from many 2 consumers. As I say, I think it opens up 3 opportunity to a number of consumers that might 4 not be able to buy a large ticket item 5 otherwise. 6 SENATOR ABATE: Mr. President, 7 would Senator Farley yield for a question? 8 ACTING PRESIDENT DiCARLO: 9 Senator Farley, do you continue to yield? 10 SENATOR FARLEY: Sure. 11 ACTING PRESIDENT DiCARLO: Yes, 12 he does, Senator. 13 SENATOR ABATE: By your 14 explanation, is it the case then if an 15 individual who has been paying month after 16 month, let's say a large ticket item of over 17 $1,000 month after month, in the eighth month, 18 they default for 60 days and they pay -- make 19 only partial payment, and that consumer has a 20 good faith intention to live up to the agreement 21 but there's a fiscal crisis in that family, 22 there would be no situation then -- I mean, 23 under the law, that a retailer could come in and 1 repossess that item, even though there was a 2 long-term, good faith commitment; it was lived 3 up to month after month, and there was a short 4 term financial disability, that product would be 5 dispossessed -- would be repossessed under this 6 legislation? 7 SENATOR FARLEY: Let's -- I can't 8 disagree with what you're saying. This could 9 happen, but you have to realize that most 10 merchants are interested in trying to keep their 11 customers, and if there is a customer and 12 there's been a communication between the two 13 about the financial crisis and one that may - 14 could be -- resolve itself, I'm confident that 15 the merchant would -- would go along with that. 16 That's what -- credit departments of different 17 stores that would investigate this. It's really 18 -- that's the whole point of it. 19 Now, I realize that there are - 20 people come into financial crises all the time 21 and, unfortunately, that's what happens when 22 they repossess a car. That's what happens when 23 they foreclose on a mortgage of a house, but do 1 we want to -- somebody to pay for a house for 20 2 years and in the 21st year they run into a 3 financial crisis and they foreclose on the 4 house? I mean, it's -- it's pretty terrible. 5 We understand that, but that's -- that's the way 6 business is done. 7 This is just moving such large 8 ticket items back to the retail merchant, and 9 it's done all over the nation. We haven't had 10 problems in 49 other states. It's just that New 11 Yorkers that are poor or New Yorkers that have 12 troubled credit cannot participate in buying a 13 large ticket item. I think this is reasonable. 14 We've tried to do all that we can. Assemblyman 15 Feldman has done all that he can to put in a 16 number of consumer protections. I think it's a 17 good piece of legislation. It's passed here 18 rather overwhelmingly every time it's come 19 before the Senate. I can understand your 20 concerns. 21 ACTING PRESIDENT DiCARLO: 22 Senator Abate. 23 SENATOR ABATE: Yes. Would the 1 Senator yield to a question? 2 ACTING PRESIDENT DiCARLO: 3 Senator Farley, do you continue to yield? 4 SENATOR ABATE: All of us are not 5 unsympathetic to the plight of retailers. They 6 have to run a business and make sure their 7 products are quality products, if they're going 8 to stay in business and that their prices are 9 reasonable. My concern is that this bill would 10 be a better bill if it had some mechanism for 11 that individual who's suffering from temporary 12 financial hardship, that they can go into a 13 special procedure so they could protect their 14 interests in the product they bought. There's 15 nothing in this bill that has that kind of 16 language, and I -- Senator Farley, is there a 17 reason there was not inclusion for the kind of 18 situation I'm talking about? This bill could be 19 changed to reflect that consumer concern. 20 SENATOR FARLEY: I suppose that 21 we could put in the bill if somebody does not 22 meet their contractual obligations, that the 23 contractual obligations do not apply. Is that 1 what you're saying? 2 SENATOR ABATE: That there are 3 situations where a consumer, month after month, 4 has been in compliance with the contract, is 5 paying; they come forward to the retailer and 6 say, "For two months, three months, I can't pay 7 the full amount. I won't --" 8 SENATOR FARLEY: We just took two 9 out of three of those things that you asked and 10 put it in here. He's got two months before he 11 has to start paying. 12 SENATOR ABATE: Well, two months 13 is not a very long period of time given that 14 there might be some financial disability during 15 that short period of time, and then the retailer 16 can come in even though - 17 SENATOR FARLEY: You know, he 18 could make one payment after two months and he's 19 good for another two months. 20 SENATOR ABATE: Right. They're 21 in default after 30 days and after the other 22 grace period of 30 days, the -- my understanding 23 is - 1 SENATOR FARLEY: That's right. 2 SENATOR ABATE: -- the retailer 3 could move in to repossess. 4 Let me go on to another area. 5 SENATOR FARLEY: The only thing I 6 think that could satisfy your concern is that 7 they can't repossess. They don't have the 8 option. You're saying that they're not able to 9 repossess. 10 SENATOR ABATE: May the Senator 11 -- I'll ask the Senator to yield to - 12 ACTING PRESIDENT DiCARLO: 13 Senator Farley, do you continue to yield? 14 SENATOR FARLEY: Sure. 15 ACTING PRESIDENT DiCARLO: The 16 Senator yields. 17 SENATOR ABATE: My understanding 18 -- and please correct me -- that the buyer - 19 if the buyer consents, a judicial proceeding 20 would be waived, so repossession would occur 21 without a judicial proceeding only if the buyer 22 consents. 23 SENATOR FARLEY: Yep. 1 SENATOR ABATE: Right. And the 2 buyer would consent - 3 SENATOR FARLEY: That's to the 4 advantage of the consumer, wouldn't you agree? 5 SENATOR ABATE: Absolutely. My 6 concern is there's nothing written in the 7 legislation that requires an oral explanation of 8 what this means. There's nothing -- or correct 9 me -- am I wrong? Is there anything in the 10 legislation that says that this clause has to be 11 in larger print, in multiple languages so, in 12 fact, this provision is one that people can 13 truly consent to because they understand the 14 language, they understand the import of the 15 provision? 16 My concern is that many buyers 17 will sign on the bottom line and not know that 18 they waived judicial proceedings - 19 ACTING PRESIDENT DiCARLO: 20 Senator Farley. 21 SENATOR ABATE: -- before the 22 repossession would take place. 23 SENATOR FARLEY: Okay. Let me 1 just say that the bill very clearly says -- or 2 the law says, "Unless the seller obtains a court 3 order to repossess, no repossession may be made 4 without the written consent of the buyer." Now, 5 if you're saying that the buyer was induced to 6 sign something that he didn't understand he was 7 signing, that's another matter. You know, I'm 8 sure that -- Senator, that when it says -- when 9 the law says that "without the written consent 10 of the buyer", it means just that. Now, is 11 there things that it has to be put in a special 12 language or he's got to be orally told what it 13 means? No, but if he hasn't given his consent 14 to the repossession, the repossession is not 15 valid. 16 SENATOR ABATE: Would the consent 17 be the same if the individual signs the contract 18 saying that he owes money over a period of time; 19 would there have to be a separate signature and 20 a separate document that says that the consumer 21 understands the language and, therefore, waives 22 his or her right to a judicial proceeding, or is 23 it part and parcel of the same contract? If 1 it's contemporaneous but also part of the same 2 document, it might be a likely scenario that the 3 consumer would not understand the provision 4 within the contract and, thereby, would be 5 signing the contract without understanding 6 they're giving up the right to a judicial 7 proceeding. 8 SENATOR FARLEY: I think it's a 9 separate signing, if I understand your question, 10 which I'm having trouble following, but I think 11 it's to the point that there's a separate 12 signing. Again, unless the seller obtains a 13 court order, no repossession can take place 14 without the consent of the buyer. I think what 15 you're asking, can they presuppose that somebody 16 waives all rights to a court order? No, I don't 17 see that in the law. 18 SENATOR ABATE: Is there 19 somewhere in the legislation that says it's a 20 separate document that has to be signed by the 21 consumer? 22 SENATOR FARLEY: I think that's 23 the legislative intent, so that's already made 1 part of the law. I say that as the sponsor. 2 SENATOR ABATE: That it is the 3 legislative intent that there would be a 4 separate document signed by the consumer? 5 SENATOR FARLEY: I don't know if 6 it's a separate document. I think that he has 7 to have written consent -- written consent of 8 the buyer. 9 SENATOR ABATE: Okay. On the - 10 on the bill. Thank you very much, Senator. 11 ACTING PRESIDENT DiCARLO: 12 Senator Abate on the bill. 13 SENATOR ABATE: I won't go on and 14 elaborate. I think I've raised, through my 15 questioning, some of my concerns. I believe 16 there has to be some balance reached to 17 accommodate the needs of the retailers but not 18 at the expense of the consumer. I'm very 19 concerned about how broadly drafted this bill 20 is, particularly concerned about the waiving of 21 the judicial proceeding, under what 22 circumstances, how the individual is advised, 23 how the consent is reached, and unless that is 1 clarified in some detail in the statute, I 2 believe that many consumers will unknowingly 3 give their consent, will be faced -- after 30 4 days and then the additional 60 days, will be 5 faced with repossession, even though, in fact, 6 they have been paying what they owe over a long 7 period of time, and it may be a minimal amount 8 they owe, and I think what will be occurring 9 will be anti-consumer actions, in many cases. 10 I think the bill could be 11 strengthened in terms of consumer protection. 12 If it does not pass this year, I hope Senator 13 Farley will take into consideration some of the 14 issues raised today. 15 Thank you very much. 16 ACTING PRESIDENT DiCARLO: 17 Senator Leichter. 18 SENATOR LEICHTER: Yeah. Mr. 19 President, if Senator Farley would yield. 20 ACTING PRESIDENT DiCARLO: 21 Senator Farley, will you yield? Senator Farley 22 yields. 23 SENATOR FARLEY: I'm pleased to 1 yield to a friend of the retail industry. 2 SENATOR LEICHTER: And of 3 business in the state generally, Senator Farley, 4 you might state, but - 5 SENATOR FARLEY: That's correct. 6 SENATOR LEICHTER: -- let me ask 7 you one thing which concerns me. First, let me 8 address something that Senator Abate addressed, 9 and I think she makes a good point that you 10 could certainly clarify that you should have a 11 separate writing where the buyer consents to the 12 repossession. Now, you try to deal with it, you 13 say, "Well, it's got to be contemporaneous", so 14 I assume if I signed a contract that has a 15 provision in there that says, "I agree to 16 repossession without judicial process" and then 17 it's two years later, I think it's clear that 18 that's not contemporaneous, but I'm somewhat 19 troubled by the word "substantially" 20 contemporaneous. I think that's a -- that 21 invites all sorts of problems, all sorts of 22 court involvement. Why not just say 23 "contemporaneous"? What's "substantially 1 contemporaneous"? Is it 30 days, is it 60 days, 2 is it 5 days? I think you're asking for a lot 3 of trouble on that. I would urge that at least 4 in that respect, you just say "contemporaneous" 5 and say a separate writing other than a -- other 6 than the contract. 7 SENATOR FARLEY: You don't like 8 "substantially contemporaneous"? 9 SENATOR LEICHTER: Well, you tell 10 me what's "substantial". How many days is 11 "substantial"? 12 SENATOR FARLEY: Well, this 13 debate is substantial. 14 SENATOR LEICHTER: Well, your 15 bills, Senator, are substantial bills. 16 SENATOR FARLEY: Well, thank you. 17 SENATOR LEICHTER: They deserve 18 substantial consideration. 19 SENATOR FARLEY: No, I hear what 20 you're saying. It may be redundant of sorts. 21 SENATOR LEICHTER: Well, it's not 22 redundant. I believe on the contrary, it isn't 23 redundant. It makes -- when you say 1 "contemporaneous", contemporaneous means at the 2 same time. Now you have something, it's - 3 well, substantially at the same time, and I 4 think that leads to a vagueness and ambiguity 5 that doesn't do credit to the precise and clear 6 way that we like to legislate. 7 SENATOR FARLEY: I see what 8 you're saying. I don't fully agree, but I 9 understand. I'll bring that up with Assemblyman 10 Feldman. 11 SENATOR LEICHTER: Okay. Let me 12 -- if you would be good enough to continue 13 to - 14 ACTING PRESIDENT DiCARLO: 15 Senator Leichter, do you -- Senator Farley, do 16 you continue to yield? 17 SENATOR FARLEY: Yep. 18 ACTING PRESIDENT DiCARLO: Yes, 19 he does. 20 SENATOR LEICHTER: Senator, 21 you're very fair, you're very forthright, but 22 let me ask you about some - 23 SENATOR FARLEY: I'm a great 1 admirer of yours also. 2 SENATOR LEICHTER: Thank you. 3 Senator, under our system where 4 somebody has a security interest, we require a 5 filing because we want to protect a purchaser in 6 good faith. I'm concerned that the system that 7 you set up does not protect the purchaser in 8 good faith. Let's say somebody purchases or - 9 a big expensive freezer or maybe a home 10 entertainment system, quite a few thousand 11 dollars, you know. College kids do this and 12 after two years they sell it to someone. 13 However, it turns out that the person hasn't 14 paid the full amount. What happens to the 15 repossession then? How do we protect the 16 purchaser without notice in good faith? 17 SENATOR FARLEY: Wait a second. 18 As I understand your question, you're telling me 19 the buyer sold the merchandise. 20 SENATOR LEICHTER: Right. 21 SENATOR FARLEY: That's a no-no. 22 SENATOR LEICHTER: Senator, why 23 is - 1 SENATOR FARLEY: And it would 2 seem to me that the merch... the retailer is 3 going to get an outstanding lawyer like yourself 4 to find out where that merchandise went, and 5 he's got an action -- incidentally, that will 6 travel -- that security interest travels with 7 the merchandise, if we can find it. 8 SENATOR LEICHTER: Senator - 9 SENATOR FARLEY: That's one of 10 the risks that the retailer takes, to be very 11 honest with you. The scenario that you're 12 drawing, I think the retailer is stuck, don't 13 you? 14 ACTING PRESIDENT DiCARLO: 15 Senator Leichter. 16 SENATOR LEICHTER: Senator, if 17 you'll continue to yield. I'm concerned that 18 we're not protecting the buyer in good faith. 19 In all other systems that I know of, Senator, 20 where somebody retains a security interest, 21 let's say it's a mortgage on real property - 22 SENATOR FARLEY: Or an 23 automobile. 1 SENATOR LEICHTER: -- or an 2 automobile, there's a filing so that the 3 purchaser has a chance to determine whether or 4 not there's a security interest in the 5 property. Under your system, there's no 6 protection at all, as I understand it, for the 7 purchaser in good faith, although I don't know, 8 it may not be clear. It may be that the court 9 will say, "If you sold it, the retailer loses 10 his interest." I'm not sure that your bill is 11 totally clear on this, but I assume its intent 12 is that the buyer, in good faith, is not 13 protected. 14 SENATOR FARLEY: You know, I know 15 that you check all these filings, and so forth, 16 but the average guy that goes out and buys a car 17 and he buys one that has an interest on it, 18 needless to say, he's bought himself a bad car. 19 I would say when we're talking about merchandise 20 2- and $300, or something like that, and the 21 buyer sells that merchandise, has it stolen and 22 then refuses to pay for it, just in my opinion, 23 the retailer, unfortunately, is going to be 1 stuck, and the security interest that he had is 2 going to be rather difficult to -- to repossess 3 the item that he can't even find anywhere, but 4 that's the chance that the retailer takes, and I 5 guess they're willing to take that. 6 Now, is this a business that 7 everybody wants to get into; no, but it's very 8 important to the retail industry. They feel 9 that they want to do this like they do it in 49 10 other states, and they feel that they can handle 11 it and, by and large, having been in the retail 12 industry at one time, I think that they - 13 again, they don't really intend to repossess. 14 I've seen that time and time again. It's more 15 or less a convincing argument to the buyer that 16 they'll repossess if they don't start paying, 17 and they'll give them all kinds of latitude for 18 mispayments or financial crises as long as they 19 can keep them paying, and I really -- I think 20 you're trying to really make more of this. Will 21 this bill protect every bona fide purchaser or 22 something? No. I can't take care of all the 23 problems, the third-hand buyer, and so forth. 1 We -- nobody can take care of all of that, 2 Franz. 3 ACTING PRESIDENT DiCARLO: 4 Senator Leichter. 5 SENATOR LEICHTER: Mr. President, 6 just one final question. I appreciate your 7 answer, Senator, and it may be that on balance, 8 you may decide that, obviously a system of 9 filing for heavy property that's worth more than 10 $200 would be so cumbersome, it might not be 11 worthwhile, but I think it is a -- it is a 12 problem, particularly when we're talking not of 13 the -- let's say the small refrigerator that 14 costs $250, but you're talking about, as I 15 mentioned, a home entertainment system which 16 goes for many thousands of dollars which are 17 sold continuously, so it's a problem. 18 Let me ask you one other 19 question, if you would be good enough to yield. 20 ACTING PRESIDENT DiCARLO: 21 Senator Farley, do you continue to yield? 22 SENATOR FARLEY: I'm not going to 23 keep loving you. Go ahead. 1 ACTING PRESIDENT DiCARLO: Yes, 2 he does. 3 SENATOR FARLEY: I will. I'll 4 yield. 5 SENATOR LEICHTER: Senator, who 6 does the repossession? Now, I assume if you 7 have a - 8 SENATOR FARLEY: The sheriff, I 9 guess. I don't know. 10 SENATOR LEICHTER: It's clear the 11 repossession, whereby - 12 SENATOR FARLEY: We have 13 repossession -- I don't know. That's -- were 14 you interested in becoming a repossessor or 15 what? 16 SENATOR LEICHTER: Well, 17 Senator - 18 SENATOR FARLEY: I think it's 19 open to you. I would think that you - 20 SENATOR LEICHTER: Did you say 21 you would give me a recommendation? 22 SENATOR FARLEY: I'll give - 23 I'll give you a recommendation. (Laughter) 1 ACTING PRESIDENT DiCARLO: 2 Senator Leichter. 3 SENATOR LEICHTER: Well -- all 4 right. It's clear, in other words, unless the 5 buyer has agreed to the repossession, that it 6 has to be as authorized by law, so we're not 7 going to find, you know, some gun-toting cowboy 8 type going in and trying to make a business out 9 of these repossessions and creating more 10 problems than we're ever going to solve in this 11 bill. 12 SENATOR FARLEY: You know, 13 Senator Leichter, you and I both live in the 14 real world. If you think that the average 15 retailer is going to go get a court order, go 16 out and hire somebody to repossess for an item 17 that originally costs $200; it might have a 18 value of ten bucks or maybe it would even cost 19 you that to get rid of it, I don't think you're 20 going to see too many repossessions but, you 21 know, I could be wrong. Again, I think it's a 22 device that can be used to help a consumer who 23 has rather troubled credit, a consumer who 1 doesn't have the cash to buy a large ticket 2 item. I think it's a reasonable piece of 3 legislation, and I think it's going to become 4 the law of New York State. 5 SENATOR LEICHTER: Mr. President. 6 ACTING PRESIDENT DiCARLO: 7 Senator Leichter. 8 SENATOR LEICHTER: I thank 9 Senator Farley, and I'm still struggling with it 10 but, Senator, the one thing I think we need not 11 do in describing the bill, as you just did, that 12 this is to help the consumer. I mean, it 13 doesn't help the consumer. Let's at least be 14 honest about it. 15 Thank you. 16 ACTING PRESIDENT DiCARLO: 17 Senator Padavan. 18 SENATOR PADAVAN: Senator Farley, 19 would you yield to a question? 20 ACTING PRESIDENT DiCARLO: 21 Senator Farley, do you yield? 22 SENATOR FARLEY: I'm delighted. 23 You're here to help me, aren't you, Senator? 1 Senator Padavan, yes. 2 SENATOR PADAVAN: Well, I don't 3 know if I'm here to help you. I'm not the repo' 4 man, I'll tell you that much. 5 Senator, in the case of using 6 some of the examples you've heard already of an 7 appliance being bought that may have cost $1,000 8 with 12 payments, the last two payments are not 9 made, the provisions you articulated in your 10 bill are implemented, the 30-day notice, the 11 conspicuous or substantially contemporaneous 12 writing was signed and that product is 13 repossessed, what compensation is there in the 14 legislation, or perhaps in current law, that 15 would relate to that buyer who no longer has the 16 refrigerator and has paid 11 of the 12 payments, 17 along with finance charges that are generally 18 quite high? 19 SENATOR FARLEY: M-m h-m-m. I 20 know -- I understand your question. In other 21 words, what you're saying to me is if they -- in 22 essence, I think what you're asking, if the 23 merchant takes that item and sells the item and 1 gets his $2 that is owed on it, does the 2 remainder go to the - 3 SENATOR PADAVAN: Senator, what 4 you said earlier -- while you're trying to look 5 that up, let me just elaborate for the reasons I 6 asked the question. 7 SENATOR FARLEY: You have asked 8 the one question I don't have an answer to. I 9 don't think there's any - 10 SENATOR PADAVAN: Well, I think 11 it's an important one. Just to give you -- put 12 this in context - 13 SENATOR FARLEY: I don't see 14 that. 15 SENATOR PADAVAN: Just to put the 16 question in context, Senator - 17 SENATOR FARLEY: Go ahead. 18 SENATOR PADAVAN: -- while you 19 talk about the average retailer -- and I would 20 agree with you, the average retailer in this 21 state is an honest, law-abiding person who tries 22 to demonstrate good will and obviously tries to 23 deal with people fairly, but unfortunately in 1 the city that I come from, we have an entirely 2 different sort in some communities. They're 3 usually communities that have people who perhaps 4 are not versed in the English language, don't 5 really know what they're signing, communities 6 where people are just unsophisticated in these 7 matters, and many of those retailers don't make 8 their money on the product; they make their 9 money on the finance charge and the finance 10 charge, with some of these finance companies - 11 which, in my view, shouldn't even be in business 12 -- really are a drain on the consumer. 13 Now, you can't solve that 14 problem, nor can I. Certainly, it seems to me 15 if we're going to provide a mechanism to seize a 16 refrigerator or a kitchen set or whatever that 17 person may have purchased, there ought to be 18 something in there that says if they paid for 90 19 percent of it, that they're going to get 20 something back. 21 The Consumer Affairs Commission 22 in the city of New York recently took action 23 against a number of retailers who were 1 advertising appliances as new but they were all 2 used. He had acquired them -- or they had 3 acquired them in some fashion or another, 4 perhaps through repossession, fixed them up, put 5 them in the window in the showroom and sold them 6 as new. So there is a market for this stuff and 7 that, by the way, is illegal, but nevertheless, 8 it happens. So that's why I'm asking you this 9 question. 10 SENATOR FARLEY: No, I understand 11 what you're saying. Generally speaking, I was 12 going through what -- Assemblyman Feldman 13 addressed that same question that most of the 14 security interest would be on furniture and 15 refrigerators, et cetera, and so forth, and the 16 cost of repossessing that -- the cost of re 17 possessing that and the very rapid depreciation 18 of furniture -- and I'm just using his words - 19 would make it -- there really would be very 20 little value in it. Again, it goes back to the 21 point that I think it's almost a persuasive way 22 to get somebody to pay. I don't think you're 23 going to see massive repossessions. Again, 1 that's the best that I can say on that issue 2 that you're asking. 3 ACTING PRESIDENT DiCARLO: 4 Senator Onorato. 5 SENATOR ONORATO: Senator Farley, 6 would you yield to a question? 7 SENATOR FARLEY: Certainly. 8 SENATOR ONORATO: Senator Farley, 9 is the -- is equipment such as orthopedic and 10 prosthetics covered under this bill? What if I 11 purchased an artificial leg or a pacemaker, how 12 do you go about repossessing that? (Laughter) 13 Is it covered under your legislation? 14 SENATOR FARLEY: You don't have a 15 shred of decency. 16 SENATOR ONORATO: Or if I have a 17 denture, you know, the one size that fits all. 18 SENATOR FARLEY: We would 19 repossess that one leg at a time. 20 ACTING PRESIDENT WRIGHT: Read 21 the last section. 22 THE SECRETARY: Section 3. This 23 act shall take effect on the 90th day. 1 ACTING PRESIDENT WRIGHT: Call 2 the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Those recorded in 5 the negative on Calendar Number 93 are Senators 6 Abate, Gold, Leichter, Markowitz, Mendez, 7 Montgomery, Onorato, Padavan, Paterson, 8 Santiago, Smith. Ayes 45, nays 11. 9 ACTING PRESIDENT WRIGHT: The 10 bill is passed. 11 THE SECRETARY: Excuse me. Also, 12 Senator Waldon. Ayes 44, nays 12. 13 ACTING PRESIDENT WRIGHT: The 14 bill is passed. 15 The Secretary will read. 16 THE SECRETARY: Calendar Number 17 111, by Senator Volker, Senate Print 197, an act 18 to amend the Penal Law, in relation to resisting 19 arrest. 20 ACTING PRESIDENT WRIGHT: The 21 Chair recognizes Senator Volker. 22 SENATOR VOLKER: Mr. President, 23 this is a bill that has passed this house on 1 several occasions and I'm hoping that this will 2 be the last time that it will pass this house, 3 because we are in communication with the 4 Assembly and I'm very hopeful that this bill 5 will become law. 6 Very quickly, it came as a result 7 of a number of cases involving law enforcement 8 officers, chief -- chiefly in Long Island and in 9 New York City, where judges have and continue, 10 in fact, to determine that police officers, to 11 maintain charges of assault, have to be 12 substantially injured, in other words have to 13 have a serious injury before you can maintain 14 virtually any assault charge, and the resisting 15 arrest presently, the maximum under any 16 circumstances is a misdemeanor. 17 What this bill would do is to 18 upgrade the penalty for resisting arrest. If 19 physical force is used on a police officer or 20 peace officer, it, in effect, takes the second 21 degree charge, which is now the maximum charge, 22 a Class A misdemeanor, and upgrades it to an E 23 felony if physical force is used on a police 1 officer or a peace officer. That's basically 2 what it does. 3 ACTING PRESIDENT WRIGHT: The 4 Chair recognizes Senator Waldon. 5 SENATOR WALDON: Thank you very 6 much, Mr. President. 7 Would Senator Volker engage in 8 some dialogue? 9 ACTING PRESIDENT WRIGHT: Senator 10 Volker, will you yield? 11 SENATOR VOLKER: Yes. 12 ACTING PRESIDENT WRIGHT: The 13 Senator yields to the question. 14 SENATOR WALDON: Thank you very 15 much, Mr. President. 16 Before I ask the question, 17 Senator, as you know, we discussed this at 18 committee and at that time, you raised a very 19 valid concern as to how do we define physical 20 force, and since that time, I must admit, we 21 have not come up with a precise definition. 22 However, in looking at this, I tried to imagine 23 -- and I would ask you to respond to this -- if 1 someone merely went limp as the arrest was being 2 made, could that be characterized as sufficient 3 to warrant a Class E felony? 4 SENATOR VOLKER: No, absolutely 5 not. That's passive and that, I think is the - 6 is the problem with the present law, and that is 7 that no matter what the person does in resisting 8 arrest, it -- the maximum charge that can be 9 laid is a Class A misdemeanor. 10 Traditionally, the resisting 11 arrest -- the incident that you just identified 12 is what sometimes happens and, in fact, 13 traditionally, the only time a person gets 14 charged with resisting arrest under those 15 circumstances, very honestly, is where other 16 charges would fall away or something of that 17 nature because normally, where there isn't any 18 real resistance, physical resistance the police 19 officer generally won't make the charge anyway, 20 but he could if the person falls limp and if 21 they had to be carried away or whatever. 22 Let me just say -- and if I 23 might, on the issue of physical force, we've 1 done some more work on it, as you know, and Ken 2 Connolly went over it again and we've done about 3 two years' worth of research on this -- on the 4 issue of physical force, and we don't find any 5 cases, by the way -- and physical force is 6 listed in the Penal Law in several places where 7 it's used as part of -- as part of the 8 definitions. 9 For example, first degree rape, 10 sodomy and sexual abuse all involve forcible 11 compulsion which means to compel by the use of 12 physical force. The courts have regularly 13 examined defendants' conduct to determine 14 whether physical force was used. There doesn't 15 appear to be any place in the Penal Law or cases 16 involving those definitions that have had - 17 where the court has had any trouble, as a matter 18 of fact, whether physical force was used or 19 not. We have tried to find any place that we 20 could where a case revolved on that issue. We 21 haven't been able to find any, and we also find 22 no place where a formal definition is used. 23 Incidentally, in talking to the people that 1 delivered this bill to us initially, the law 2 enforcement people, they told us that initially 3 when they went to the Assembly with this bill, 4 the language they used was "striking, shoving, 5 pushing or kicking" to -- you know, to upgrade 6 it. The Assembly staff people who researched 7 this said, "Lookit. That's not sufficient. Go 8 to physical force. It's the best way to do it. 9 It's the cleanest way," and their research 10 apparently showed that their feeling was at the 11 time that that was the best way to do it. 12 Now, the Assembly -- in all 13 candor, the Assembly has not passed this the way 14 it is now, but that was apparently what was 15 recommended to them when they came to us. So I 16 just wanted to point that out to you. I didn't 17 mean to -- because I know that was one of your 18 main questions -- issues on physical force, but 19 Ken did some more work on it and that's - 20 Connolly, my counsel -- and that's what we 21 found. 22 SENATOR WALDON: Would the 23 learned Senator yield - 1 SENATOR VOLKER: I'll yield. 2 SENATOR WALDON: -- for another 3 question? 4 ACTING PRESIDENT WRIGHT: The 5 Senator continues to yield. 6 Senator Waldon. 7 SENATOR WALDON: I appreciate 8 your sharing that information with us, Senator 9 Volker. Mike Fallon on our staff apparently 10 found a similar source in terms of the 11 recommendations to me, and I was wondering if we 12 were to -- let me say this: Did you just say 13 that in your opinion, the Assembly would not 14 pass it in any form except the one that we have 15 before us? 16 SENATOR VOLKER: No, I didn't. 17 The people that brought this bill to us, the law 18 enforcement people, the Assembly people, staff 19 people that reviewed the bill initially said 20 that they thought it would be better to do this 21 used as physical force rather than those other 22 -- what I said -- the other definitions that we 23 had before because the other definitions would 1 be too limiting and they thought "physical 2 force" would be a better definition. I think, 3 very honestly, if, as I suspect this year, 4 there's going to be some changes in the assault 5 statute, there's going to be some sort of 6 upgrading, my guess is, from some information I 7 have, the Assembly probably will look at this 8 bill too and may well consider doing an upgrade 9 in this one too, so we may be able to do 10 something. I'm not saying it will be exactly 11 what this is, but we probably will have a chance 12 of doing it this year. 13 SENATOR WALDON: Would the 14 Senator continue to yield, Mr. President? 15 SENATOR VOLKER: I'll continue to 16 yield, yes. 17 SENATOR WALDON: Senator, in your 18 opinion then, would -- someone who performs some 19 form of active physical resistance but not 20 striking or kicking the police officer, would 21 that be a more severe situation than the first 22 one we spoke about but less severe than when 23 there is biting, punching, striking, kicking, et 1 cetera? 2 SENATOR VOLKER: I think what - 3 as a practical matter, unless you have something 4 -- physical force is physical force. You have 5 to have some -- some -- some evidence of it and, 6 of course, any police officer would know if you 7 don't have something that you can -- you can 8 testify to, the chances of maintaining it are 9 very slim, and you and I know, by the way, 10 whenever you go to a felony, the proof becomes 11 more difficult anyway, and that has been one of 12 the -- one of the real problems in a number of 13 areas. So I think the answer is that you're 14 going to have to have some substantial evidence 15 of real force in order to maintain a Class E, 16 anyway. 17 SENATOR WALDON: Mr. President, 18 last question or last series of questions, if I 19 may. 20 ACTING PRESIDENT WRIGHT: Senator 21 Waldon, Senator Volker continues to yield. 22 SENATOR WALDON: Senator, I don't 23 know if it's appropriate for us to do this now. 1 Maybe we need to pass this and then revisit it 2 with your expectations in regard to what's going 3 to come out of the Assembly, but I have looked 4 at this as a result of careful analysis by 5 staff, and they suggested to me and I will 6 suggest to you, that we maintain a three-level 7 action regarding this particular area, and that 8 the first would still be a Class B misdemeanor, 9 someone just lies limp, but when someone 10 actively resists without upgrading their action 11 to the point of kicking, biting, et cetera, et 12 cetera, that becomes the Class A misdemeanor, 13 but if, in fact, they kick, they bite, they 14 strike, they punch, then it is unquestionably 15 active resistance with physical force, and that 16 becomes the Class E felony. Might we be able to 17 consider that scenario? 18 SENATOR VOLKER: Yes, Senator. 19 We'll look at that, but I think the problem is 20 that there appears to be, in talking with people 21 who have looked at this issue, that the more you 22 try to define something which maybe is 23 indefinable, the more difficult it becomes, and 1 the -- in a sense, the more you create a problem 2 for yourself, because one of the reasons they 3 add kicking and shoving and all of that stuff 4 was that you don't define everything. In other 5 words, if you don't use language that covers 6 just about any kind of situation, it probably 7 wouldn't apply, but we certainly can look at 8 that. That may be one of the things that we can 9 talk to the Assembly about. I honestly think 10 that this definition is about -- at this point 11 seems to be about the best that we can do at 12 this point, but certainly we'll look at it, and 13 I appreciate your suggestion. We'll take a look 14 at it. 15 SENATOR WALDON: Mr. President, 16 on the bill. 17 ACTING PRESIDENT WRIGHT: Senator 18 Waldon on the bill. 19 SENATOR WALDON: First, Senator 20 Volker, let me thank you for being divined by 21 the same spirit that was divined on this side of 22 the aisle in terms of coming up with your 23 analysis, but to be very serious, I appreciate 1 your looking at the bill as a result of what we 2 discussed in committee. It shows that you were 3 sensitive to the dialogue that we experienced at 4 that time. I further appreciate the fact that 5 you might revisit it with our colleagues in the 6 Assembly so that we can have a statute which 7 will achieve the best ends for the people of the 8 state of New York. 9 To be very candid, amongst those 10 with whom I have discussed this issue, there was 11 some fear that there wasn't sufficient 12 delineation, so that the police officers could 13 not become creative in a fictional sense as 14 sometimes officers do; I'm not saying all 15 officers. Certainly 99 percent of the people 16 who do what they have to do do the right thing, 17 hopefully, but I think that if you can revisit 18 it, if our Assembly colleagues can become in 19 sync' with the thoughts that we've shared here 20 today, we'll end up with a statute that will 21 really work on behalf of the people of the state 22 of New York, and with that in mind, I will vote 23 for this legislation and we can move forward on 1 it. 2 ACTING PRESIDENT WRIGHT: Senator 3 Montgomery. 4 SENATOR MONTGOMERY: Yes. Mr. 5 President, I would like to know if the sponsor 6 would yield for a question. 7 ACTING PRESIDENT WRIGHT: Senator 8 Volker, will you yield to a question? 9 SENATOR VOLKER: Sure. 10 SENATOR MONTGOMERY: Thank you. 11 ACTING PRESIDENT WRIGHT: The 12 Senator yields. 13 SENATOR MONTGOMERY: Senator, 14 this -- your bill raises the crime from a 15 misdemeanor to a felony. It's currently now a 16 misdemeanor? 17 SENATOR VOLKER: With physical 18 force. The maximum that any kind of resisting 19 arrest can have at this point is -- is an A 20 misdemeanor. What we are saying here is that 21 you have the same circumstances as with an A 22 misdemeanor, except that if physical force is 23 added to it on the police officer, law 1 enforcement officer, then it would elevate it to 2 a Class E felony. 3 SENATOR MONTGOMERY: Okay. If 4 you'll yield to another question. 5 SENATOR VOLKER: Sure. 6 SENATOR MONTGOMERY: What is the 7 relationship between this and the crime of an 8 out-and-out assault of a police officer? Is 9 there any difference? 10 SENATOR VOLKER: Assault on a 11 police officer is a different crime, which is 12 one of the difficulties because the courts have 13 so -- so interpreted assault on a police officer 14 that you have to have virtually a serious 15 injury, a reasonably serious injury for the 16 courts to even maintain any kind of an assault 17 charge against a police officer. In New York 18 City, that's especially true and it's on Long 19 Island -- and I'm not saying just in New York 20 City, but it appears to be throughout the state 21 and most of the courts, just recently, I think a 22 couple of them, so-called assault third cases, 23 that is lesser assault, so to speak, on police 1 officers, have been thrown out because the 2 interpretation was that the assault third 3 statute was really not supposed to be for police 4 officers. It was supposed to be for assaults on 5 individuals and, therefore, even though it was 6 considered to -- at least to the judges a lesser 7 assault, they threw it out. That's one of the 8 reasons why the -- the law enforcement people 9 have looked to a resisting arrest because 10 they're caught in that -- in that vacuum between 11 the assault -- assault cases and the weak 12 statute on resisting arrest, and that's what 13 this is all about. 14 SENATOR MONTGOMERY: Okay. Mr. 15 President, if he would just continue to yield. 16 SENATOR VOLKER: Sure. 17 ACTING PRESIDENT WRIGHT: The 18 Chair recognizes Senator Montgomery. Senator 19 Volker continues to yield. 20 SENATOR MONTGOMERY: Thank you. 21 It sounds, Senator Volker, then 22 like you -- to get a charge of assault on a 23 police officer, there has to be -- there is a 1 standard of proof -- of evidence of what the 2 assault -- the results of the assault, wherein 3 with resisting arrest, there is not the same 4 level of proof. 5 SENATOR VOLKER: Well, first of 6 all, assault second is a -- is a more serious 7 felony. 8 SENATOR MONTGOMERY: Excuse me? 9 SENATOR VOLKER: Assault second 10 is a more serious felony to start with. It's 11 already a felony. In other words, resisting 12 arrest is only a misdemeanor now. We're beefing 13 it up to a Class E felony. Assault is a more 14 serious charge -- assault second is a more 15 serious felony. In fact, our proposal, as you 16 know that's been around, is to -- is to move it 17 up even in another grade, but the reason for the 18 physical force is to show that you have to have 19 some sort of active resistance so that person 20 can be charged; a charge can be maintained of a 21 resisting arrest, that's correct. 22 SENATOR MONTGOMERY: Okay. 23 SENATOR VOLKER: It's different, 1 as Senator Waldon said, if somebody falls limp 2 or just doesn't want to go. In demonstrations, 3 it happens all the time, people lie on the 4 street or whatever, and they're dragged off. 5 Generally, they're not charged with resisting 6 arrest, but occasionally they are if they're 7 particularly belligerent or whatever. This 8 wouldn't change that. Those would still be 9 Class A misdemeanors because the people just 10 were passively resistant. 11 SENATOR MONTGOMERY: Does your 12 bill place this particular resisting arrest 13 charge at the same level as an assault? In 14 other words, is an assault a Class E felony or 15 is it a higher - 16 SENATOR VOLKER: It's a higher 17 felony. 18 SENATOR MONTGOMERY: It's a 19 higher felony. 20 SENATOR VOLKER: Assault second 21 is a higher felony. That's -- I think the point 22 is that, if you can maintain that assault 23 charge, you don't need this at all, but the 1 assaults on police officers, in order to 2 maintain them, you virtually have to have a 3 serious injury. The interpretations of these 4 cases have been that -- almost that the police 5 officers get to expect to be assaulted, and 6 unless he or she has a broken bone or -- or has 7 severe lacerations or whatever, almost no courts 8 will maintain an assault -- an assault second. 9 SENATOR MONTGOMERY: Thank you 10 very much, Senator Volker. 11 Mr. -- Mr. President, on the 12 bill, I just briefly want to express my 13 opposition to this legislation, and the reason 14 that I do is that I fear that it is another 15 opportunity for people, particularly young 16 people, many of whom in my -- my district are 17 arrested and charged with some sort of -- some 18 sort of resisting arrest charge, and oftentimes 19 when I have pursued this charge or these kinds 20 of arrests of young people, in particular, I 21 have found that there is no evidence of the 22 police officer having been assaulted, even 23 though that it -- that they have placed that as 1 one of the charges, and it is a very, very 2 frequently used charge just as an excuse to haul 3 people in, particularly teenagers, particularly 4 black males in my district, to haul them in and 5 give them an arrest charge, and they then have 6 to go to court, and so forth. 7 So this is the lowest level of 8 arrest that I'm familiar with that is the first 9 step into the door of the criminal justice 10 system, particularly for young African-American 11 males, and I think we have to be very careful. 12 We have to be absolutely -- understand that the 13 criminal justice system does not view every 14 single person equally in the society. It's very 15 unfortunate. We all don't like it, but it is 16 the truth. I am not viewed on the New York 17 State Thruway the same as Senator Volker is 18 viewed on the New York State Thruway. I have 19 been stopped by the New York State Police to 20 examine my credentials because of the fact that 21 I'm driving a car with those plates. So -- and 22 that's just a fact of life. 23 So I'm just warning my colleagues 1 that this is a very serious issue. I deal with 2 it frequently in my district as a problem that 3 relates to how the police have a small handle to 4 -- to have an excuse to arrest people, and we 5 should not -- we should make sure that if, in 6 fact, we are going to increase this to a felony 7 -- because once it becomes a felony, it's much 8 more difficult to deal with in terms of 9 supporting a young person and trying to keep him 10 out of the system, working with a D.A., with the 11 local police department, and what have you, once 12 it becomes a felony charge, it's more difficult. 13 So I think we have to be very 14 careful, Senator Volker. I understand what 15 you're trying to do. We want to protect the 16 police officers, but I think we have protections 17 for police officers. It requires a level of 18 proof. I think that is appropriate, and if we 19 are -- certainly if we're going to do this, we 20 should at least require a level of proof so that 21 it does not become a subjective charge that a 22 police officer can make on a person without 23 sufficient evidence that it, in fact, happened 1 and so that it can snare a person unnecessarily 2 into the system. 3 Mr. President, I'm voting no on 4 this legislation. 5 ACTING PRESIDENT WRIGHT: The 6 Chair recognizes Senator Volker. 7 SENATOR VOLKER: Mr. President, 8 let me just tell you, Velmanette, that I have 9 been stopped on the Thruway a number of times 10 too, I can assure you. Whether I was a former 11 police officer or not, I have been stopped and 12 -- for various reasons. 13 Senator Montgomery, I don't think 14 you're completely aware of the way this works. 15 If you cannot maintain another charge, another 16 -- the charge here is resisting arrest. If the 17 initial charge does not -- is not abided by, the 18 resisting arrest will fall with it. We are not 19 reducing any standards here as far as proof. 20 You still have to prove it. Many young people 21 are arrested, by the way, for disorderly conduct 22 or something of that nature. Maybe it's true 23 that some of them are arrested without total 1 cause, although I must tell you, in my years 2 experience, almost half the people that I picked 3 up were totally innocent; they never did 4 anything. If you talk to them afterwards, you 5 would think that they were -- they were 6 cherubic, and so forth, but, unfortunately, if 7 you were there, you would have found out there 8 was some different -- little different facts 9 than are very often used. 10 I think what you should also 11 understand is once you do reach a felony -- and 12 this is particularly true in New York City, and 13 I don't necessarily say that it's necessarily 14 bad -- it's very difficult to maintain a felony 15 -- a low level felony case in New York City 16 unless you've got a lot of proof because there 17 are -- admittedly are a lot of them, and it's no 18 secret that in some cases you can't get a D.A.'s 19 attention unless you have a felony to start 20 with, which is another reason why we have 21 reasonably serious cases. It is a wise idea to 22 make a penalty sufficient to cover the case 23 involved but, Senator, keep in mind that this is 1 not something that stands or falls by itself. 2 It depends on the initial arrest. In other 3 words, you don't just charge somebody with a 4 resisting arrest as the only charge. You can't 5 really do that. You must have -- you must have 6 another charge that starts out, and then you've 7 got to prove it, and if you can't show any real 8 physical force -- just the testimony of a police 9 officer is very tough to maintain -- to maintain 10 those kinds of charges, and the same thing is 11 true in the assault cases, I must be honest with 12 you. It is very difficult to do, and I 13 understand your concern, and you have a right to 14 be concerned and your -- with some of the 15 problems, but it seems to me that I don't -- I 16 guess where we fault and disagree is I don't 17 think police officers do have sufficient 18 protection. Unfortunately, what is happening is 19 they've become targets, and it seems to me that 20 we have to give them the best protection we can 21 and make sure at the same time that there's a 22 level of evidence sufficient so that people get 23 their fair due in court, but I do think we've 1 got to give them protection they need, and I 2 think this is one of the areas that will do 3 that. 4 ACTING PRESIDENT WRIGHT: Read 5 the last section. 6 THE SECRETARY: Section 3. This 7 act shall take effect on the first day of 8 November. 9 ACTING PRESIDENT WRIGHT: Call 10 the roll. 11 (The Secretary called the roll.) 12 ACTING PRESIDENT WRIGHT: Senator 13 Abate, why do you rise? 14 SENATOR ABATE: Yes, I would like 15 to explain my vote. 16 ACTING PRESIDENT WRIGHT: Senator 17 Abate to explain her vote. 18 SENATOR ABATE: I share with 19 Senator Volker the concern that we need to 20 protect officers and that, in the law, we have 21 to ensure that, when individuals assault 22 officers, they be appropriately punished. I 23 believe this legislation puts the cart before 1 the horse. I would support, as I suggested last 2 year, legislation that enhances the penalties 3 and maybe facilitates the prosecution of 4 assaults on officers. This, however, I believe, 5 attacks the wrong conduct. 6 What we want to do is attack the 7 heinous assault on officers. What this does is 8 take a class A misdemeanor, where the scope of 9 punishment is one year, and says to the Court 10 that if you resist in some way, if it's a hip 11 check -- and that's easy. If it's a hip check 12 or a shoulder check or it's biting or punching 13 or whatever, if it doesn't result in physical 14 injury to that officer, all those variations, 15 the broad definition of "physical force" will be 16 the same whether it's a hip check or a punch - 17 and they are really different gradations of 18 conduct -- that they would be eligible for four 19 years in prison. 20 I believe the scope of punishment 21 is sufficient. It's a year in jail. We're 22 talking about cases where the officer is not 23 physically assaulted; because if they are 1 physically assaulted, two crimes are charged, 2 resisting arrest and assault on the officer. If 3 we have a problem in prosecuting the assault on 4 the officer, let's deal with that problem in a 5 separate part of legislation. 6 And, for these reasons, I vote 7 no. 8 ACTING PRESIDENT WRIGHT: Senator 9 Abate in the negative. 10 Results. 11 Senator Smith. 12 SENATOR SMITH: Mr. President, I 13 request unanimous consent to be recorded in the 14 negative on Calendar Number 114. 15 ACTING PRESIDENT WRIGHT: Senator 16 Smith, if you may, we want to finish this. 17 Results, please. 18 THE SECRETARY: Those recorded in 19 the negative on Calendar 111 are Senators Abate, 20 Connor, Espada, Leichter, Markowitz, Mendez, 21 Montgomery, Paterson, Santiago and Smith. 22 Ayes 46, nays 10. 23 ACTING PRESIDENT WRIGHT: The 1 bill is passed. 2 Senator Smith. 3 SENATOR SMITH: Mr. President, I 4 request unanimous consent to be recorded in the 5 negative on Calendar Number 114. 6 ACTING PRESIDENT WRIGHT: Without 7 objection, Senator Smith will be recorded in the 8 negative on Calendar 114. 9 Senator Oppenheimer. 10 SENATOR OPPENHEIMER: I would 11 like unanimous consent also for Calendar Number 12 93. 13 ACTING PRESIDENT WRIGHT: Without 14 objection, Senator Oppenheimer will be recorded 15 in the negative on Calendar Number 93. 16 Senator Skelos, that completes 17 the controversial reading of the calendar. 18 SENATOR SKELOS: Mr. President, 19 if we can return to reports of standing 20 committees, I believe there's a report from the 21 Insurance Committee at the desk. 22 ACTING PRESIDENT WRIGHT: I 23 believe, Senator Skelos, there's also a report 1 from the Social Services Committee. 2 Without objection, reports of 3 standing committees. 4 The Secretary will read. 5 THE SECRETARY: Senator Holland, 6 from the Committee on Social Services, hands up 7 the following bills directly for third reading: 8 Senate Print 2478, by Senator 9 Holland, an act to repeal Section 147 of the 10 Social Services Law, relating to misuse of food 11 stamps; 12 Senate Print 2999, by Senator 13 Holland, an act to amend the Social Services 14 Law, in relation to authorizing the Commissioner 15 of Social services to enter into an agreement; 16 and 17 5344A, by Senator Johnson, an act 18 to amend the Social Services Law and the 19 Criminal Procedure Law, in relation to 20 recipients of public assistance. 21 Also, Senator Velella, from the 22 Committee on Insurance, hands up the following 23 bills directly for third reading: 1 Senate Print 5926, by Senator 2 Velella, an act to amend the Insurance Law, in 3 relation to determining the extent to which a 4 preexisting condition limitation has been 5 satisfied in certain contracts; 6 5925, by Senator Velella, an act 7 to amend the Insurance Law, in relation to 8 extending the expiration date for Article 54. 9 All bills directly for third 10 reading. 11 ACTING PRESIDENT WRIGHT: Without 12 objection, bills directly to third reading. 13 Senator Skelos. 14 SENATOR SKELOS: Mr. President, I 15 just want to remind the members of the Senate 16 that the Senate picture will be taken this 17 Monday, February 5th, promptly at 2:30, and we 18 would like to have everybody on time. Dark 19 suits. I forget whether it's white shirts or 20 blue shirts. 21 SENATOR STACHOWSKI: Light 22 shirts. 23 SENATOR SKELOS: Light shirts. 1 Light shirts. Thank you, Senator Stachowski. 2 And if we can be on time -- the photographer is 3 on a tight schedule. 4 Is there any housekeeping at the 5 desk? 6 ACTING PRESIDENT WRIGHT: There 7 is none. 8 SENATOR SKELOS: Then I -- Mr. 9 President, I move we adjourn until tomorrow, 10 Wednesday, January 31st, 1996, at 11:00 a.m. 11 sharp. 12 ACTING PRESIDENT WRIGHT: Without 13 objection, the Senate stands adjourned. 14 Excuse me. Senator Montgomery. 15 SENATOR MONTGOMERY: May I just 16 correct the Majority Leader. The women don't 17 wear dark suits. We wear our power color, and 18 the women know what color that is. 19 ACTING PRESIDENT WRIGHT: Duly 20 noted, Senator Montgomery. Thank you. 21 Without objection, the Senate 22 stands adjourned until Wednesday, January 31st, 23 at 11:00 a.m. sharp. 1 (Whereupon, at 4:55 p.m. the 2 Senate adjourned.) 3 4 5 6 7 8