Wednesday, January 31, 1996

1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 January 31, 1996 11 11:02 a.m. 12 13 14 REGULAR SESSION 15 16 17 18 LT. GOVERNOR BETSY McCAUGHEY ROSS, President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 come to order. 4 Would everyone please rise and 5 join me in the Pledge of Allegiance. 6 (The assemblage repeated the 7 Pledge of Allegiance to the Flag.) 8 May we bow our heads in a moment 9 of silence. 10 (A moment of silence was 11 observed. ) 12 The reading of the Journal, 13 please. 14 THE SECRETARY: In Senate, 15 Tuesday, January 30th. The Senate met pursuant 16 to adjournment. Prayer by the Reverend Peter G. 17 Young, Blessed Sacrament Church, Bolton 18 Landing. The Journal of Monday, January 29th, 19 was read and approved. On motion, Senate 20 adjourned. 21 THE PRESIDENT: Without 22 objection, the Journal stands approved as read. 23 Presentation of petitions. 1 Messages from the Assembly. 2 Messages from the Governor. 3 Reports of standing committees. 4 Reports of select committees. 5 Communications and reports from 6 state officers. 7 Motions and resolutions. 8 Senator Bruno. 9 SENATOR BRUNO: Madam President, 10 can we at this time take up the non-controvers 11 ial calendar. And Madam President, would you at 12 this time recognize Senator Padavan. 13 SENATOR PADAVAN: Thank you. 14 THE PRESIDENT: Senator Padavan. 15 SENATOR PADAVAN: Madam 16 President, on page 9, I offer the following 17 amendments to Calendar 117, Senate Print Number 18 667, and ask that said bill retain its place on 19 the Third Reading Calendar. 20 THE PRESIDENT: Amendments 21 received. 22 Senator Kuhl. 23 SENATOR KUHL: Yes, Madam 1 President. 2 On behalf of Senator Bruno, on 3 page 5, I offer the following amendments to 4 Calendar Number 58, Senate Print 5597, and ask 5 that the bill retain its place on the Third 6 Reading Calendar. 7 THE PRESIDENT: Amendments 8 received. 9 SENATOR KUHL: Madam President, 10 on behalf of Senator Bruno, on page 6, I offer 11 up the following amendments to Calendar Number 12 59, Senate Print 5598, and ask that said bill 13 retain its place on the Third Reading Calendar. 14 THE PRESIDENT: Amendments 15 received. 16 SENATOR KUHL: Thank you. 17 THE PRESIDENT: The Secretary 18 will read substitutions. 19 THE SECRETARY: On page number 20 11, Senator Skelos moves to discharge from the 21 Committee on Judiciary Assembly Bill Number 4641 22 and substitute it for the identical Third 23 Reading Calendar 141. 1 And on page 15, Senator Velella 2 moves to discharge from the Committee on 3 Insurance Assembly Bill Number 7351-D and 4 substitute it for the identical Third Reading 5 Calendar Number 174. 6 THE PRESIDENT: Substitutions 7 ordered. 8 The Secretary will read the 9 non-controversial calendar. 10 THE SECRETARY: Calendar Number 11 40, by Senator Levy, Senate Print 322-A, an act 12 in relation to requiring the Commissioners of 13 Motor Vehicles, Transportation and Education, to 14 develop a uniform definition of the terms 15 "school" and "school bus". 16 THE PRESIDENT: Read the last 17 section, please. 18 THE SECRETARY: Section 2. This 19 act shall take effect immediately. 20 THE PRESIDENT: Call the roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 33. 23 THE PRESIDENT: The bill is 1 passed. 2 THE SECRETARY: Calendar Number 3 41, by Senator Levy, Senate Print Number 331. 4 THE PRESIDENT: Read the last 5 section. 6 THE SECRETARY: An act to amend 7 the Vehicle and Traffic Law, in relation to 8 distinctive plates. 9 Section 2. This act shall take 10 effect on the 90th day. 11 THE PRESIDENT: Call the roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 33. 14 THE PRESIDENT: The bill is 15 passed. 16 THE SECRETARY: Calendar Number 17 47, by Senator Levy, Senate Print 3488-B, an act 18 to amend the Public Authorities Law, in relation 19 to requiring the Metropolitan Transportation 20 Authority to implement and maintain subway 21 station signs. 22 THE PRESIDENT: Read the last 23 section, please. 1 THE SECRETARY: Section 3. This 2 act shall take effect immediately. 3 THE PRESIDENT: Call the roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 33. 6 THE PRESIDENT: The bill is 7 passed. 8 THE SECRETARY: Calendar Number 9 88, by Senator Marchi, Senate Print Number 10 3367. 11 SENATOR PATERSON: Lay aside, 12 please. 13 THE PRESIDENT: Lay it aside, 14 please. 15 THE SECRETARY: Calendar Number 16 118, by Senator Padavan, Senate Print Number 17 670, an act to amend the Penal Law, in relation 18 to making unlawful immigration a Class C 19 felony. 20 THE PRESIDENT: Read the last 21 section. 22 SENATOR PATERSON: Lay it aside. 23 THE PRESIDENT: Oh, lay it aside, 1 please. 2 THE SECRETARY: Calendar Number 3 121, by Senator Volker, Senate Print Number 4 1113, an act to amend the Penal Law, in relation 5 to the crime of false personation. 6 THE PRESIDENT: Read the last 7 section, please. 8 THE SECRETARY: Section 2. This 9 act shall take effect on the 1st day of 10 January. 11 THE PRESIDENT: Call the roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 33. 14 THE PRESIDENT: The bill is 15 passed. 16 THE SECRETARY: Calendar Number 17 126, by Senator Maltese, Senate Print 4521-A, an 18 act to amend the Penal Law, in relation to 19 increasing the penalty for serious assaults. 20 SENATOR PATERSON: Lay aside. 21 THE PRESIDENT: Lay it aside, 22 please. 23 THE SECRETARY: Calendar Number 1 127, by Senator Volker, Senate Print Number 2 5499-A, an act to enact the Criminal Procedure 3 Law Reform Act of 1996, and to amend the 4 Criminal Procedure Law. 5 THE PRESIDENT: Read the last 6 section, please. 7 THE SECRETARY: Section 11. This 8 act shall take effect immediately. 9 THE PRESIDENT: Call the roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 33. 12 THE PRESIDENT: The bill is 13 passed. 14 THE SECRETARY: Calendar Number 15 174, by the Assembly Committee on Rules, 16 Assembly Print 7351-D, an act to amend the 17 Insurance Law, in relation to extending the 18 expiration date for Article 54 of such law. 19 THE PRESIDENT: Read the last 20 section, please. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 THE PRESIDENT: Call the roll. 1 (The Secretary called the roll. ) 2 THE SECRETARY: Ayes 33. 3 THE PRESIDENT: The bill is 4 passed. 5 THE SECRETARY: Calendar Number 6 175, by Senator Velella, Senate Print 5926, an 7 act to amend the Insurance Law, in relation to 8 determining extent to which a pre-existing 9 condition limitation has been satisfied in 10 certain contracts. 11 THE PRESIDENT: Read the last 12 section, please. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 THE PRESIDENT: Call the roll. 16 (The Secretary called the roll. ) 17 THE SECRETARY: Ayes 40. 18 THE PRESIDENT: The bill is 19 passed. 20 Senator Bruno, that completes the 21 non-controversial reading of the calendar. 22 SENATOR BRUNO: Madam President, 23 can we at this time take up the controversial 1 reading of the calendar. 2 THE PRESIDENT: The Secretary 3 will read. 4 THE SECRETARY: Calendar Number 5 88, by Senator Marchi, Senate Print 3367, an act 6 to repeal Section 630 of the Business 7 Corporation Law, relating to the liability of 8 shareholders for wages due to laborers. 9 SENATOR PATERSON: Explanation. 10 THE PRESIDENT: Senator Marchi. 11 SENATOR MARCHI: This is an old 12 bill, Madam President. We discussed it last 13 year and -- I can't argue the merits. 14 THE PRESIDENT: Excuse me. 15 Senator Bruno. 16 SENATOR BRUNO: Would Senator 17 Marchi suffer an interruption and ask the Chair 18 to recognize Senator DeFrancisco for an 19 announcement. 20 THE PRESIDENT: Senator Marchi, 21 would you like to invite Senator DeFrancisco to 22 make an announcement? 23 SENATOR DeFRANCISCO: Yes, I'd 1 like to call and ask the Majority Leader to call 2 an immediate meeting of the Tourism Committee in 3 the Majority Conference Room. 4 THE PRESIDENT: Senator Bruno. 5 SENATOR BRUNO: We will call that 6 meeting, Madam President. Thank you. 7 THE PRESIDENT: Senator Marchi. 8 SENATOR MARCHI: The current law 9 makes the top ten shareholders of a corporation 10 personally liable for the wages of employees 11 should the corporation go bankrupt. I can't 12 really debate the merits. I wish the state of 13 Delaware changed its laws to conform to what we 14 have here now, but the point is that there are 15 very few incorporations take place in the state 16 of New York. 17 This does not affect publicly 18 held corporations, but the smaller ones that 19 make an end run and incorporate in Delaware or 20 some other jurisdiction and then they can do 21 whatever they want when they come here. There 22 are very, very few incorporations that take 23 place. This would at least bring them back to 1 the state of New York. 2 On the merits, it's easily 3 avoided or evaded. I should say evaded more 4 than avoided. 5 THE PRESIDENT: Thank you, 6 Senator Marchi. 7 Senator Paterson. 8 SENATOR PATERSON: Thank you, 9 Madam President. 10 If Senator Marchi would yield for 11 a couple of questions. 12 SENATOR MARCHI: Yes, Senator. 13 THE PRESIDENT: Senator Marchi 14 will yield. 15 SENATOR PATERSON: O.K. Now, 16 Senator Marchi, we are talking about non-public 17 corporations, I would assume because in the 18 legislation you say that they are quoted -- if 19 they're not quoted on the stock market and 20 they're not listed in the national register so 21 we are talking about non-publicly held 22 corporations. 23 SENATOR MARCHI: Right. 1 SENATOR PATERSON: Thank you very 2 much. 3 If the Senator would continue to 4 yield. 5 THE PRESIDENT: Senator Marchi? 6 SENATOR MARCHI: Certainly. 7 SENATOR PATERSON: Senator, when 8 this section was first adopted, which research 9 reveals was in 1961, can you tell me what the 10 reason was that the Legislature chose to put 11 this section in at that particular time, and I 12 guess what I'm leading up to is why you felt the 13 necessity to change the law. In other words, 14 what has changed from then to now that would 15 necessitate removing the section? 16 SENATOR MARCHI: Well, I can see 17 a good motive for introducing and adopting this 18 legislation. I may have voted for it at the 19 time. I was here, so it's probably on my 20 conscience. But the effect has been, of course, 21 to -- it's easily avoided and evaded by just 22 going to another jurisdiction and then they can 23 do what they want here. There's no liability. 1 Now, if I'm wrong, well, then I 2 stand corrected but these are the -- these are 3 the facts. 4 THE PRESIDENT: Senator 5 Paterson. 6 SENATOR PATERSON: Thank you, 7 Senator. I don't know whether or not you're 8 wrong, Senator Marchi, but let me suggest that 9 wouldn't it be the non-publicly held corporation 10 that would be least likely to conduct this kind 11 of forum shopping based on the fact that they 12 probably don't have the resources to go into 13 another state? 14 SENATOR MARCHI: I - 15 THE PRESIDENT: Senator Marchi. 16 SENATOR MARCHI: I agree that 17 that, on the face of it, it would seem to me 18 that the smaller ones would not go to the 19 bother, but that's not the -- it doesn't prove 20 itself out. The -- they incorporate -- very, 21 very few incorporations take place in the state 22 of New York. 23 There are other provisions in the 1 law that are easily evaded and avoided and this 2 is one of them, and it's not in the record. 3 THE PRESIDENT: Senator 4 Paterson. 5 SENATOR PATERSON: Thank you, 6 Senator. 7 I want to move to the issue of 8 the employees. What remedies do the employees 9 have? In other words, they're not in the 10 financial position we'd assume as the top 10 11 shareholders. What remedies do they have in 12 this period of time where we have spiraling 13 unemployment, where we have a changing labor 14 practice, where we have a number of problems 15 that workers are having? 16 These are just the working 17 people. These are just the individuals who are 18 employed by corporations. The corporation goes 19 under. What remedy do they have to try to get 20 the money that they feel they earn? 21 THE PRESIDENT: Senator Marchi. 22 SENATOR MARCHI: The number of 23 cases that can possibly come up if they happen 1 to incorporate in the state of New York but 2 there are so few that it's not a factor. There 3 just aren't any. I mean they go into another 4 jurisdiction and circumvent that period. 5 THE PRESIDENT: Senator 6 Paterson. 7 SENATOR PATERSON: Thank you, 8 Senator. I actually agree with Senator Marchi, 9 that there have been very few instances where 10 the employees have brought these kinds of 11 actions against the corporation. What I am 12 somewhat concerned about is that at this 13 particular time, with 177,000 New Yorkers having 14 lost jobs recently, a 6.4 percent unemployment 15 rate, that this would become an option that 16 would be exercised by employees and that we're 17 about to remove it from the law. In fact, we 18 have a situation right now where the employees 19 would actually fall and go right alongside the 20 other creditors in this kind of an action and we 21 think that between the shareholders, and we 22 understand the problems they may have and the 23 employees, we would assume the former, under the 1 "deep pocket" theory, to be better able to 2 sustain the loss particularly since the wages 3 were something that were earned and, therefore, 4 I do not encourage the adoption of this 5 legislation, but I do want to thank Senator 6 Marchi for his gracious answers. 7 SENATOR MARCHI: Madam President. 8 THE PRESIDENT: Senator Marchi. 9 SENATOR MARCHI: I just want to 10 add to that, Madam President, that this takes 11 effect prospectively so that at that point, I 12 mean it's a prospective action; there's no one 13 who loses any benefits presently. 14 THE PRESIDENT: Senator 15 Dollinger. 16 SENATOR DOLLINGER: Would the 17 sponsor yield to a couple questions, Madam 18 President? 19 THE PRESIDENT: Senator Marchi? 20 SENATOR MARCHI: I'm sorry. 21 THE PRESIDENT: Would you yield 22 to a couple questions? 23 SENATOR MARCHI: Remember last 1 year on the basic law now. 2 SENATOR DOLLINGER: Yes, I just 3 have two specific questions. 4 THE PRESIDENT: Senator - 5 SENATOR DOLLINGER: Madam 6 President, I'm having some difficulty here. 7 THE PRESIDENT: I'm having some 8 difficulty hearing Senator Marchi, Senator, 9 through the - 10 SENATOR DOLLINGER: Senator, 11 through the President, what is the trend in 12 other states regarding the liability of 13 shareholders for unpaid wages to employees? Do 14 you know whether any other states have removed 15 this kind of worker protection? 16 SENATOR MARCHI: Well, I can't 17 give you precise information on this, but my - 18 from what I understand, there are very, very few 19 who come from other jurisdictions who impose 20 this liability. 21 SENATOR DOLLINGER: Again through 22 you, Madam President. 23 THE PRESIDENT: Senator 1 Dollinger. 2 SENATOR MARCHI: As I said to 3 Senator Paterson, this came in in 1961, in the 4 train of circumstances that called for this type 5 of legislation, but the fact has not been a 6 happy one. 7 SENATOR DOLLINGER: Again through 8 you, Madam President, if Senator Marchi will 9 yield to just one other question. 10 THE PRESIDENT: Senator Marchi. 11 SENATOR DOLLINGER: Under current 12 law, my understanding is that the officers, 13 shareholders and directors of a corporation, 14 small corporation, can be held liable for unpaid 15 taxes, personally liable for unpaid taxes, the 16 theory of that being that their payments to the 17 state of New York - 18 SENATOR MARCHI: Right. 19 SENATOR DOLLINGER: -- are the 20 kind of responsibility that we're not going to 21 allow them to use the corporate form of doing 22 business. 23 SENATOR MARCHI: I wouldn't want 1 to see that changed. 2 SENATOR DOLLINGER: Well, I guess 3 that's my question, Madam President. Why would 4 we protect the State of New York's interest in 5 our income but not protect an individual 6 worker's right to their income? 7 SENATOR MARCHI: The -- I would 8 imagine that every state, acting in some 9 enlightened self-interest, would have similar 10 provisions. 11 SENATOR DOLLINGER: Madam 12 President, I'm having some difficulty. 13 THE PRESIDENT: Yes. Senator 14 Marchi, do you have your mike on? 15 SENATOR MARCHI: Yeah. O.K.? 16 THE PRESIDENT: Thank you. 17 SENATOR MARCHI: I imagine that 18 every state must have comparable legislation to 19 protect their own revenue stream at whatever 20 there is. It's in enlightened self-interest to 21 do it, but the net effect of this is just it's 22 an invitation to go somewhere else, and they do, 23 plain and simple. There are very, very few 1 incorporations take place in that category in 2 this state. 3 SENATOR DOLLINGER: O.K. Madam 4 President, on the bill. 5 THE PRESIDENT: Senator 6 Dollinger. 7 SENATOR DOLLINGER: Senator 8 Marchi, you and I had this discussion last year 9 as you recall, and I think we just have a 10 slightly different philosophical view about what 11 the statute is and what it does. 12 I understand the problem that 13 there may be evasive techniques that 14 corporations can use to avoid the reach of this 15 statute, but I believe that the beneficial 16 purpose that drove this Legislature in 1961, I 17 would assume perhaps even with your consent, 18 Senator, to put this in our law, that that 19 beneficial purpose still exists. 20 The theory is that a worker's 21 payments -- we have a number of worker 22 beneficial provisions in our law -- we require, 23 for example, that they can't be paid by check 1 unless the employee says they're going to be 2 paid by check. You would theoretically have to 3 still pay them by cash. Even today, I think we 4 still have that in our law. We require that 5 they be protected by Workers' Compensation, that 6 they be protected by employment insurance. 7 These are not things that we give 8 corporations options to do because we believe 9 it's someone's right to receive income for their 10 personal services which is perhaps one of the 11 most important, if not the most important, 12 building blocks in our economy. 13 This statute says that a 14 corporation cannot use its corporate form to 15 avoid paying wages. For example, Senator, 16 imagine this circumstance: A corporation is on 17 its last legs. It's producing a final product. 18 It has $100,000 in the bank. It uses all of its 19 employees for two weeks to get the final product 20 out the door. The final payment is made. The 21 president of the corporation and sole 22 shareholder then says, "I've got $100,000 in the 23 bank. I will take that $100,000 out of the 1 bank, give it to myself and the employees will 2 have no recourse except to go to an empty shell 3 of a corporation to try to get paid." 4 It seems to me, Senator, that 5 that would be grossly unfair, that that would 6 violate everyone's fundamental assumption of 7 fairness, and from my point of view that's what 8 this bill allows. It would allow the president 9 of the corporation, its sole shareholder, to 10 take money out of the corporation and to tell 11 the employees, "I'm sorry, you can't get paid," 12 and if that's the direction, and I think it's 13 the direction and the consequence of this 14 change, I am fearful that this will send the 15 wrong pledge to small corporations and what it 16 would send to them is the message that you don't 17 have to pay your employees, and I know that -- I 18 know that you don't agree with that, but I see 19 that this bill inevitably leads to that. 20 SENATOR MARCHI: Senator, you've 21 very lucidly and with great clarity given me aid 22 and comfort for the vote that I cast in 1961, 23 but that's not the experience, and we're better 1 off, I think, in -- unless we have a uniform 2 law, you know, encourage it in that fashion. 3 SENATOR DOLLINGER: And I agree 4 with you, Senator, that I wish we had a uniform 5 law, and the Congress of the United States had 6 the courage to pass this kind of worker 7 protective act for the entire nation. 8 SENATOR MARCHI: Yes, I agree 9 with you. We're together on that. 10 SENATOR DOLLINGER: And I agree 11 with that. I'm just saying that I think that 12 for us, a state that's led the nation in 13 protecting its right for workers to be paid, 14 that for us now to say we're going to remove 15 that protection is taking New York in the wrong 16 direction and, unfortunately, what it does is it 17 protects the small business entrepreneur who 18 doesn't want to pay his employees. 19 We don't want to send that 20 message. We want to send a message that says, 21 if you're using our corporate form, you have to 22 use our employees or you're personally liable 23 for them. 1 THE PRESIDENT: Senator Marchi. 2 SENATOR MARCHI: Madam President, 3 if someone comes to your office and they want to 4 incorporate and they want the best advice 5 possible, the advice they're getting -- I've 6 never had them, but the advice they're getting 7 is to go to another state, and they do. That's 8 what -- that's what happens. We don't get them. 9 So we're on the horns of a dilemma. I agree 10 with you it should be -- it should be a matter 11 of Congressional address, I think. 12 SENATOR DOLLINGER: O.K. And I - 13 just to conclude, I think, I voted against this 14 last year. I think that when we remove personal 15 liability for the payment of individuals' wages 16 we send a wrong message to everybody in this 17 state. We should be sending a message that, if 18 you work for a small corporation, you're not 19 going to allow that corporation to use its 20 corporate shell given to that individual by us 21 through its certificate of incorporation, we're 22 not going to allow that corporate shell to be 23 used as a tool to foil a worker's right to be 1 paid. 2 I think this sends in the wrong 3 direction. I understand the Senator's point 4 about what happens in other states, but I don't 5 think New York should be retreating from its 6 commitment to workers' rights, and the most 7 important right, that to be paid. 8 THE PRESIDENT: Read the last 9 section, please. 10 THE SECRETARY: Section 5. This 11 act shall take effect immediately. 12 THE PRESIDENT: Call the roll, 13 please. 14 (The Secretary called the roll. ) 15 THE SECRETARY: Those recorded in 16 the negative on Calendar Number 88 are Senators 17 Abate, Dollinger, Onorato, Paterson, Santiago 18 and Senator Stachowski. Ayes 46, nays 6. 19 THE PRESIDENT: The bill is 20 passed. 21 THE SECRETARY: Calendar Number 22 118, by Senator Padavan, Senate Print 670, an 23 act to amend the Penal Law, in relation to 1 making unlawful immigration a Class C felony. 2 SENATOR PATERSON: Explanation. 3 THE PRESIDENT: Senator Padavan. 4 SENATOR PADAVAN: Thank you, 5 Madam President. 6 This legislation would make alien 7 smuggling a Class C felony and provide for the 8 seizure of assets and instruments used as part 9 of the smuggling of illegal aliens into this 10 country, into New York State specifically. It 11 would make such seizure part of current 12 forfeiture laws. 13 This bill passed the house last 14 year, was debated and discussed. Be happy to 15 answer any questions. 16 ACTING PRESIDENT KUHL: Read the 17 last - 18 SENATOR WALDON: Mr. President. 19 ACTING PRESIDENT KUHL: Senator 20 Waldon. 21 SENATOR WALDON: Would the 22 Senator yield to a question? 23 ACTING PRESIDENT KUHL: Senator 1 Padavan, do you yield to Senator Waldon? 2 SENATOR PADAVAN: Yes. 3 ACTING PRESIDENT KUHL: Senator 4 yields. 5 SENATOR WALDON: Thank you very 6 much, Senator Padavan. Thank you, Mr. 7 President. 8 Senator, can you tell us how much 9 of what you're attempting to cover in this 10 proposal is currently covered by federal 11 legislation? 12 SENATOR PADAVAN: Senator, we 13 discussed that last year, and I'll be glad to 14 reiterate some of the things that we did talk 15 about. 16 First, the federal government 17 does have the authority to deal with all aspects 18 of illegal aliens, including the apprehension of 19 those who smuggle them into this country for 20 payment, as well as the seizing of those assets, 21 as they do with drugs. 22 In New York, however, we also in 23 the category of drugs, have parallel statutes 1 which serve our best interests in terms of not 2 only keeping those assets but in doing more than 3 the federal government has either had the will 4 or the capacity to do. 5 Currently, in the metropolitan 6 area, we have over half a million illegal 7 immigrants. The economic burden on our city and 8 our state is enormous, runs into the billions of 9 dollars annually. At the same time, we also see 10 all kinds of terrible things happening to aliens 11 who are being smuggled here. You read about it 12 almost every other day in the newspaper -- kept 13 in bondage, ransoms, all kinds of horrible 14 things. 15 Clearly, the federal government, 16 because of the enormity of the problem 17 specifically in certain regions such as New 18 York, has been unable to stem this tide of 19 illegal immigration, to deal effectively with 20 the heavy burdens on our state and our city - 21 economic burdens predominantly, but other issues 22 as well, overtaxing of resources, scarce 23 resources. 1 And so, for these reasons, we 2 think it's appropriate, using the age-old 3 admonition "the good Lord helps those who help 4 themselves," to take action that is for our best 5 interests, desirable and appropriate. 6 SENATOR WALDON: Would the 7 Senator continue to yield? 8 ACTING PRESIDENT KUHL: Senator 9 Padavan, do you continue to yield? 10 SENATOR PADAVAN: Yes. 11 ACTING PRESIDENT KUHL: The 12 Senator continues to yield. 13 SENATOR WALDON: Senator, I have 14 no doubt that the basis for your statements just 15 made in regard to the federal government not 16 clearly carrying out its mandate are based on 17 some data that you've discovered. Would you 18 please give us, if you have it at your finger 19 tips, some indication as to how many cases - 20 potential cases of illegal immigration of the 21 nature described in your proposal, the federal 22 government has failed to prosecute? 23 SENATOR PADAVAN: I can't give 1 you any quantitative number, but I think that 2 the existing statistics illustrate that it is 3 happening in New York City as an example. I 4 said earlier, all one has to do is follow the 5 daily papers and read about alien smuggling 6 going on, and those who suffer the most in many 7 instances are the aliens themselves. 8 So obviously it exists, and it 9 exists in a significant -- to a significant 10 degree. How many individual cases the federal 11 government could have acted upon and did not, is 12 subject to anyone's good judgment, but I would 13 suggest to you that that number is not 14 insignificant. 15 SENATOR WALDON: Mr. President, 16 if I may continue, if the Senator would continue 17 to yield. 18 ACTING PRESIDENT KUHL: Senator 19 Padavan, do you continue to yield? 20 SENATOR PADAVAN: Yes. 21 ACTING PRESIDENT KUHL: Senator 22 continues to yield. 23 SENATOR WALDON: Senator Padavan, 1 as you probably know better than I, we are in 2 the throes of a very acute budgetary crisis. 3 SENATOR PADAVAN: I didn't hear 4 what you said. I'm sorry. 5 SENATOR WALDON: I'm sorry. I 6 suggested, as you know better than I perhaps, we 7 are in the throes of an acute budgetary crisis. 8 Have you or have any of your designees done a 9 cost-effective study as to how much of a 10 financial burden this would place on New York 11 State if this legislation that you propose -- if 12 this bill that you propose should become 13 legislation? 14 SENATOR PADAVAN: We have 15 published two reports, the Majority Task Force 16 on Immigration. The most recent report 17 indicates the net cost of immigration, including 18 and substantially a part of illegal immigration, 19 to the state of New York and to our localities 20 particularly the city of New York. 21 Anything we can do to deter 22 illegal immigration will bring those costs 23 down. When a smuggler knows that the chances of 1 his assets used in the commission of that crime 2 -- and it is a crime under federal law -- may 3 be seized, if he knows that he stands the 4 potential of being incarcerated as a Class C 5 felon, it is logical to assume that that, in 6 itself, would be a deterrent. 7 Carrying that logic one step 8 further, if that is a deterrent and the number 9 of illegal aliens coming into our city and state 10 would thereby be diminished, there would be a 11 net savings to the state of New York. 12 The value of assets seized is not 13 the major issue. Obviously there is value 14 there, but the major savings would be in the 15 effectiveness of reducing the numbers coming 16 into our area, which are a heavy economic 17 burden. 18 So, therefore, to answer your 19 question very directly, it would be a savings, 20 not a cost. 21 SENATOR WALDON: Mr. President, 22 on the bill. 23 ACTING PRESIDENT KUHL: Senator 1 Waldon, on the bill. 2 SENATOR WALDON: Thank you very 3 much, Mr. President. 4 My colleagues, I believe that 5 Senator Padavan's idea is well founded. He's 6 not a person who, to my knowledge, is prone to 7 frivolous activity. However, I think there is a 8 redundancy if we should pass this which is in 9 conflict with what the federal government 10 already provides for in terms of the finding of 11 these acts in terms of the people who commit 12 them, the arrest and prosecution of same. 13 The federal government has 14 greater monetary capacity than does New York 15 State, the Empire State. The federal government 16 has a long history of prosecuting people who 17 violate the immigration laws of this great 18 nation; and so I think, despite what's happening 19 here, meaning people coming across New York's 20 domestic borders in violation of federal crime, 21 it is not our role to substitute New York State 22 for what the federal government already does, 23 and I would encourage us not to accept that 1 burden. 2 I intend to vote no on this 3 proposal. 4 ACTING PRESIDENT KUHL: Is there 5 any other Senator wishing to speak on the bill? 6 Senator Markowitz. 7 SENATOR MARKOWITZ: Thank you 8 very, very much. 9 Senator Padavan, this is not the 10 first time that I've heard you explain bills not 11 only on this issue but any other issues relating 12 to what you see as a problem in New York State 13 as it relates to immigration, and I think some 14 of us, all of us here should express over and 15 over again that immigrants were the ones that 16 made this state great. I know you agree with me 17 on that and I am quite sure, Senator -- in fact, 18 I would challenge any statistic that you have - 19 that the immigrants that have made New York 20 their home have contributed far more than taking 21 from this society, and I think it's important 22 when these bills are presented that we clearly 23 indicate to one and all in our society the 1 important contributions that those that enter 2 our country continue to make to improving the 3 quality of life for all of us. 4 ACTING PRESIDENT KUHL: The Chair 5 recognizes Senator Marchi. 6 SENATOR MARCHI: The knowing 7 violation -- this is with knowledge and with 8 intent, there's no -- this is not even a classic 9 immigration problem, this is a question of 10 federal law, and they're in violation, there's 11 nothing that should impede the state of New York 12 from complementing the efforts of the federal 13 government. It's supportive of the federal 14 effort. 15 I don't -- we haven't seen any 16 messages from them saying, Please don't do it. 17 I think it's supportive action on our part and 18 Senator Padavan, I think, deserves support on 19 this bill. 20 ACTING PRESIDENT KUHL: Secretary 21 -- excuse me. Senator Marcellino. 22 SENATOR MARCELLINO: Yes. This 23 bill deals clearly with those who would 1 perpetrate a crime and that crime is illegal 2 immigration. 3 I'm the product of immigrants 4 that came to this country, and I'm proud of it, 5 and I know of no one in this chamber who would 6 do anything to demean or lessen that impact. We 7 are a nation of immigrants, and I support any 8 law that brings in legal immigration from 9 anywhere, and I believe Senator Padavan does the 10 same. 11 It is illegal immigration that 12 both damages the immigrant and this country and 13 I think anything this state can do to stem that 14 tide and bring in people who want to come here 15 to better their lives legally, should be en 16 couraged. 17 I'll vote yes on this bill. 18 ACTING PRESIDENT KUHL: Is there 19 any other Senator wishing to speak on the bill? 20 Hearing none, the Secretary will read the last 21 section. 22 THE SECRETARY: Section 3. This 23 act shall take effect on the 1st day of 1 November. 2 THE PRESIDENT: Call the roll. 3 (The Secretary called the roll. ) 4 ACTING PRESIDENT KUHL: Announce 5 the results when tabulated. 6 THE SECRETARY: Those recorded in 7 the negative on Calendar Number 118 are Senators 8 Espada, Gonzalez, Markowitz, Montgomery, 9 Paterson, Santiago, Smith and Waldon. Ayes 45, 10 nays 8. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 The Secretary will continue to 14 call the controversial calendar. 15 THE SECRETARY: Calendar Number 16 126, by Senator Maltese, Senate Print 4521-A, an 17 act to amend the Penal Law, in relation to 18 increasing the penalty for serious assaults. 19 SENATOR WALDON: Explanation. 20 ACTING PRESIDENT KUHL: Senator 21 Maltese, an explanation of the bill has been 22 asked for by Senator Waldon. 23 SENATOR MALTESE: Mr. President, 1 this bill -- the purpose of the bill is to 2 increase the penalties for assault resulting in 3 a disfigurement, extreme pain or disability and 4 to reduce the evidentiary threshold to the proof 5 of "physical injury" and "serious physical 6 injury" changing the definition of those two 7 terms that are terms of art and to establish 8 evidentiary standards for such proof. 9 In addition, it lowers the 10 threshold for second and third degree assault by 11 changing those definitions and increases the 12 penalty for assault in the first degree to a B 13 felony from a C felony. 14 Basically the -- there is a great 15 deal of support for the change from a C felony 16 to a B felony, but the changing of the 17 definitions has apparently aroused some 18 inquiry. 19 This is an Association of 20 District Attorneys bill. Just recently we had a 21 press conference that was participated in by the 22 Governor, the Attorney General, Assemblyman 23 Brian McLaughlin, the Assembly sponsor, and many 1 other law enforcement officials including 2 district attorneys from 33 counties. 3 Basically this is a bill that has 4 been adopted by victims' rights groups, espec 5 ially many of the women's groups, because it 6 fits very well by changing the definition into 7 protecting many of the abused spouses and abused 8 children. 9 The change in the definition is 10 one that is recommended in the model statutes. 11 At the Codes Committee meeting, an inquiry was 12 made as to the specific terms within the changed 13 definition, and the definitions are taken from 14 the model statutes, the Model Penal Code as 15 approved by the American Law Institute. Two of 16 the colleagues at the Codes meeting inquired 17 about the specific terminology, and these were 18 rules that replaced the former rules of criminal 19 procedure. These were adopted in 1974, and it 20 was done by the National Conference of Commis 21 sioners on Uniform Law, and they are composed of 22 commissioners from each of the states, the 23 District of Columbia and Puerto Rico. 1 In addition, with reference to 2 this specific terminology and this specific 3 changing of the definitions, I've been advised 4 by "Joe" Hynes, the District -- excuse me, the 5 District Attorney of Kings County, that this 6 language, with minor variation, whether bodily 7 -- replacing "bodily" for "physical" and 8 "physical" for "bodily" which has no real 9 bearing on the definition, has been adopted in 10 26 states. 11 Now, one of the problems we have 12 is that in the law we, I suppose, have a maximum 13 expressio unius est exclusio alterius, which 14 basically says the expression -- expression or 15 mention of one is the exclusion of all others 16 and, therefore, since we have chosen to put the 17 definitions right in the Penal Code, the judges, 18 many of whom are very liberal, end up taking the 19 definitions and twisting them out of all 20 rationality and common sense, and I have two 21 illustrations of those, Mr. President. 22 One is a fairly recent case from 23 the Second Department, April of 1989, and the 1 judge threw out the conviction for assault on 2 the basis that the complainant did not suffer 3 physical injury within the meaning of the Penal 4 Code, and this is -- this is the facts of the 5 case. The name of the case is the People of the 6 state of New York vs. Kenneth Franklin, a Kings 7 County case. 8 The evidence adduced by the 9 prosecution indicated that the complainant was 10 hit on the head and passed out, but regained 11 consciousness a minute later. The complainant 12 testified that he felt dizzy and achy for about 13 four or five hours and there was slight bleeding 14 from his head, and then the judge says, Under 15 these circumstances, the evidence was legally 16 insufficient to establish that the complainant 17 suffered physical injury within the meaning of 18 our present definition. 19 The other case that defies 20 explanation is People of the state of New York 21 vs. Jose Robles. It's a 1991 case from the 22 First Department and this is the reasoning of 23 the learned jurist: "We reduce the assault in 1 the first degree conviction, however, because 2 the evidence does not establish beyond a 3 reasonable doubt that defendant's third victim 4 suffered" -- this is the "serious physical 5 injury" clause, and then the judge recites: 6 "This victim suffered two stab wounds, one at 7 the base of the neck and one on the right 8 shoulder. The record discloses that the wounds 9 required irrigation, suturing and overnight 10 observation in the hospital and that, therefore, 11 the victim had some trouble eating. He also 12 stayed home from work for several weeks because 13 he had difficulty walking," and then after 14 reciting this litany of disability, the judge 15 says, "Taken together, this evidence does not 16 establish a protracted impairment of health or 17 protracted loss or impairment of the function of 18 any bodily organ." 19 So what we're attempting to do by 20 this statute is change the definitions, make 21 them so crystal clear that, in addition to the 22 ordinary citizen understanding them, maybe some 23 of our learned jurists can understand them. 1 ACTING PRESIDENT KUHL: Senator 2 Waldon. 3 SENATOR WALDON: Mr. President, 4 would my learned colleague from my home county 5 of Queens yield to a question? 6 ACTING PRESIDENT KUHL: Are you 7 sure you want to ask? 8 SENATOR WALDON: I'm positive. 9 ACTING PRESIDENT KUHL: Senator 10 Maltese, do you yield too Senator Waldon? 11 SENATOR MALTESE: Yes. 12 ACTING PRESIDENT KUHL: Senator 13 yields. 14 SENATOR WALDON: Senator Maltese 15 -- thank you, Mr. President. 16 Senator Maltese, I'm attempting 17 to understand portions of your proposal, and on 18 line 6 I see the phrase "palpable mark". Can 19 you tell us what that is, what it means? 20 SENATOR MALTESE: Mr. President, 21 anticipating that perhaps my learned colleague 22 from Queens might ask, and since I had very 23 little idea of what "palpable" meant, I looked 1 it up in the dictionary, and "palpable" means 2 "capable of being felt or touched, tangible, 3 easily perceived, plain." 4 So, if we go to the sixth line - 5 I'm informed by Senator Marchi, an eminent 6 linguist as well as a Senator, that it is from 7 the Italian, but I can't pronounce what he just 8 told me. 9 At any rate, so we have physical 10 -- the presence of a "visible or palpable 11 mark". I guess what we're trying to do is make 12 it very plain especially in the case of abused 13 wives that if a victim has a discernible injury 14 which isn't the case now, the -- it would then 15 fall within the statute and satisfy the 16 requirement of physical injury. 17 SENATOR WALDON: Mr. President, 18 if the gentleman would continue to yield? 19 ACTING PRESIDENT KUHL: Senator 20 Maltese, do you continue to yield? 21 SENATOR MALTESE: Yes. 22 ACTING PRESIDENT KUHL: Senator 23 continues to yield. 1 SENATOR WALDON: Senator, on line 2 7, your proposal reads that "the injury may be," 3 and I quote, "established through the testimony 4 of the victim alone." Could the victim alone 5 establish this palpable mark? 6 SENATOR MALTESE: Mr. President, 7 I assume that this would mean that if a victim 8 testified that they suffered various ailments 9 that were only visible to themselves, for 10 instance perhaps as a result of an injury to the 11 abdomen, that they testified that they had 12 recurring pain, stomach upset, none of which 13 would be apparent to the naked eye, that that 14 would be sufficient to -- to qualify as 15 "physical injury", at least within the confines 16 of the law if it be -- if the testifying witness 17 was credible. 18 ACTING PRESIDENT KUHL: Senator 19 Waldon. 20 SENATOR WALDON: Mr. President, 21 would the Senator yield again? 22 ACTING PRESIDENT KUHL: Senator 23 Maltese, do you continue to yield? 1 SENATOR MALTESE: Yes. 2 ACTING PRESIDENT KUHL: Senator 3 continues to yield. 4 SENATOR WALDON: Thank you, Mr. 5 President. Thank you, Senator Maltese. 6 Going down to line 15, your 7 proposal reads "impairment of the function of 8 any bodily member." Suppose someone is kicked 9 in the groin. I'm being very serious now. The 10 pain is severe, but it may not be long lasting. 11 However, if the person giving testimony alone 12 could attest to that kick and say they suffered 13 severe pain, could that not qualify under your 14 proposal for a "serious physical injury" and 15 then result in many, many years of confinement 16 if the person as charged was convicted? 17 SENATOR MALTESE: Well, Mr. 18 President, as far as the -- Madam President, 19 excuse me -- as far as the definition of 20 "serious physical injury" it is not much 21 different than what it replaced which indicated 22 the protracted loss or impairment of the 23 function of any bodily organ. So while the word 1 "protracted" -- and that's one reason we're 2 replacing it -- I'm not sure, by the mere 3 reading of it, why that would be applicable to 4 both loss and impairment, but at any rate, the 5 -- it would not seem that the injury described 6 by my colleague would fall within a category 7 that would either be loss -- loss or impairment 8 of the function unless there were some permanent 9 injury and, if there was a permanent injury that 10 could be adduced by other evidence, it seems 11 that it would certainly be "serious physical 12 injury" considering the specific organ mentioned 13 by the Senator. 14 SENATOR WALDON: If I may 15 continue, Mr. President, if the gentleman 16 continues to yield. 17 ACTING PRESIDENT KUHL: Senator 18 Maltese, continue to yield? Senator continues 19 to yield. 20 SENATOR WALDON: I appreciate 21 your continued indulgence, Senator Maltese. 22 Let's go down to line 18, where 23 it speaks to surgery. For example, someone who 1 is defending himself from an aggressor and 2 has a tooth broken and a tooth is not knocked 3 out cleanly, but it's fractured in the gum and 4 in order to remove the remnants of that tooth 5 one has to go to an oral surgeon. Would that 6 qualify under "surgery" and elevate this act in 7 terms of the penalty to the level that you're 8 proposing? 9 ACTING PRESIDENT KUHL: Senator 10 Maltese, would you - 11 SENATOR MALTESE: It most 12 certainly - 13 ACTING PRESIDENT KUHL: Senator 14 Maltese. Senator Maltese, could you just think 15 about that for a moment, and pardon the 16 interruption, and the Chair recognizes Senator 17 Bruno for an announcement. 18 SENATOR BRUNO: Senator, thank 19 you, and pardon me, but I would like to ask that 20 we call an immediate Rules Committee meeting in 21 Room 332. 22 ACTING PRESIDENT KUHL: There 23 will be an immediate Rules Committee meeting in 1 the Majority Conference Room, Room 332. 2 Immediate Rules Committee meeting in the 3 Majority Conference Room, Room 332. 4 Thank you for suffering the 5 interruption. Senator Maltese, the floor is 6 yours to answer. 7 SENATOR MALTESE: Mr. President, 8 I suppose this is one of those areas that no 9 matter how we go to clarify the law and be 10 specific, that there are some areas that perhaps 11 require some clarification. In this case, I 12 assume that, if I were the lawyer for the 13 defendant, I would argue that that oral surgery 14 did not qualify. Yet, by the terminology, it 15 would seem that it would qualify and just on the 16 merits of the specific case indicated by the 17 Senator, it would seem that the permanent loss 18 or damaging of a permanent tooth would seem to 19 qualify as "serious physical injury". 20 SENATOR WALDON: Mr. President, 21 would the Senator continue to yield? 22 ACTING PRESIDENT KUHL: Senator 23 Maltese, do you continue to yield? 1 SENATOR MALTESE: Yes. 2 ACTING PRESIDENT KUHL: Senator 3 continues to yield. 4 SENATOR WALDON: If you will 5 permit me, Senator, let's create a hypothetical 6 for discussion's sake. Someone wishes to rob 7 me. They have a weapon and, because I'm quick 8 on my feet, we begin to fight. The weapon is 9 dropped, and now we're in a fist fight and 10 because I grew up in Brooklyn and I know a 11 little bit about the streets, I actually am able 12 to get some good shots in on this person, and I 13 injure the initial aggressor. 14 Can I be charged, even though I 15 was the defendant initially, under this statute 16 if I cause "serious physical injury" to the 17 person who initiated the criminal action against 18 me? 19 SENATOR MALTESE: Well, Mr. 20 President, I -- I assume that brings in all the 21 normal defenses, and I think the question would 22 be, I assume, whether the specific injury spoken 23 about would end up qualifying as a "physical 1 injury" or a "serious physical injury". 2 Senator -- Senator Waldon has 3 indicated the one other section, I believe, 4 robbery, that includes the same definitions, 5 "physical injury" and "serious physical injury" 6 so I -- I guess in all these instructions and 7 specific language, what we're attempting to do 8 is clear the law up here in the Legislature so 9 that a judge in the Second Department wouldn't 10 rule any different than a judge in the First 11 Department, at least within the definitions of 12 "physical injury" and "serious physical 13 injury". 14 The cases -- the instances 15 brought up by the Senator would seem to be 16 questions that would come before individual 17 judges. What I am saying, Senator, is that this 18 clarifies the situation and rather than leave an 19 unsettled area so that jurists can make judicial 20 law, what we're attempting to do is to legislate 21 and clarify that within certain parameters for 22 the judges. 23 SENATOR WALDON: May I continue, 1 please? 2 ACTING PRESIDENT KUHL: Senator 3 Maltese, do you continue to yield? Senator 4 continues to yield. 5 SENATOR WALDON: Senator, I'm a 6 little bit baffled and confused. I was really 7 trying to focus on primary aggressor language 8 which really seems to be absent in your proposal 9 so that someone who is an innocent minding his 10 or her own business could not subsequently be 11 charged by police and, in fact, prosecuted when 12 all he or she was merely doing was defending 13 self. I don't see that in here. 14 SENATOR MALTESE: If, Mr. 15 President, what we are -- this is only changing 16 the definitions rather than the prime assault 17 statute. The prime assault statutes are under 18 120, and they speak about the intent to cause 19 physical injury to another person. So the 20 intent, the requisite intent, is still required 21 in -- to cause physical injury so I don't know 22 that -- none of the other law relating to 23 assault, first, second or third degree, is 1 changed in any way except that, one, we're 2 trying to change the definitions and, number 3 two, we're trying to increase the penalty. 4 SENATOR WALDON: Last question, 5 Mr. President, if the learned Senator would 6 yield just one more time. 7 ACTING PRESIDENT KUHL: Senator 8 Maltese, do you continue to yield? Senator 9 continues to yield. 10 SENATOR WALDON: Senator, have 11 you, in your deliberations about this proposal, 12 had any second thoughts regarding the severity 13 of penalties for palpable marks, for serious 14 physical injury, for the fractured tooth, for 15 the inadvertent puncture, someone in a fight as 16 sometimes happens even between spouses, causes 17 some form of injury and yet that can end up in 18 nine years of imprisonment and, under Governor 19 Pataki's new proposal, as much as 25 years of 20 imprisonment? 21 What are we accomplishing by such 22 severe incarceration? 23 SENATOR MALTESE: Well, Mr. 1 President, one of the areas that we're seeking 2 -- if -- if the good Senator means have I 3 discussed this with other Senators, both 4 Minority and Majority, the answer is yes, as 5 well as with himself; whether other Senators on 6 both sides have come up and talked about 7 especially the changing of the terminology, the 8 answer is yes. We've discussed it with various 9 district attorneys that have called expressing 10 support for the bill. 11 As far as the severity of the - 12 the assault statute itself, the assault in the 13 first degree, a similar bill -- well, with 14 everything but the changes in the definitions, 15 was adopted -- was adopted unanimously in the 16 Assembly, so I think that the Assembly at least 17 had no problem with increasing the penalties for 18 first degree assault. 19 Now, if we look at the lowest 20 rate of assault as a former district - 21 assistant district attorney, I know that most of 22 these so-called minor assaults are treated as 23 harassments and they're treated as harassments 1 as a violation with the maximum sentence 15 2 days; so -- so it's 15 days. So rather than 3 have a situation where someone who is either 4 constantly abused as an abused wife or a part... 5 a victim of an assault where there are injuries 6 that fall within these categories, it seems that 7 at least justice would require something more 8 than harassment as a violation. 9 We -- there was a -- a model case 10 where a Marla Hanson was slashed many -- many 11 times in the face and required, I believe at the 12 time it was something like 50 or 55 stitches and 13 they found or at least ruled that it did not 14 qualify as assault in the first degree. It 15 seems, and even though it qualifies -- it would 16 qualify as assault in the second degree, that 17 the penalty did not fit the crime. 18 The assault one is now a Class C 19 violent felony. Assault two is a Class D 20 violent felony and assault three is a Class A 21 misdemeanor. With assault three, what happens 22 is that the -- the average assault does not fit 23 into assault three, and it immediately falls 1 down into harassment as a violation and gets 2 treated very cavalierly by both judges and even 3 prosecutors. 4 The only -- I guess the main 5 point I seek to make in this is that the normal 6 criminal justice system is so beset by 7 multiplicity of suits and causes and defendants 8 and crimes that, before a defendant gets to the 9 point where a district attorney insists on 10 treating even a crime classified as a Class A 11 misdemeanor punishable by up to a year in 12 jail as a misdemeanor, you usually have some 13 prior history of assaults or criminal behavior 14 so that they attempt to treat it as a Class A 15 misdemeanor and just about everybody knows it 16 gets reduced anyway to a Class B or some -- or 17 some violation. 18 So I don't think that the 19 penalties that we're talking about, a Class C 20 violent felony is minimum of one half the 21 maximum and from four and a half to 15 years. A 22 Class B violent felony is one half the maximum 23 but six years to 25 years. 1 We're talking about serious 2 crimes, assault in the first degree, assault in 3 the second degree, and even assault in the third 4 degree which is more than a mere harassment, and 5 what we're seeking to do is have the punishment 6 fit the crime. 7 SENATOR WALDON: Mr. President, 8 on the bill. 9 ACTING PRESIDENT KUHL: Senator 10 Waldon, on the bill. 11 SENATOR WALDON: First, let me 12 thank my colleague, Senator Maltese, for whom I 13 hold the highest esteem. 14 On this particular proposal, I 15 see gaps and it causes me trouble in an 16 intellectual sense. I think that the definition 17 of "physical injury", despite your explanation, 18 Senator, is still unclear. I think the bill 19 lacks "primary aggressor" language. 20 I also have historically, for 21 those of you who have known me a long time, been 22 very reluctant to interfere with judges in terms 23 of their discretion sitting on the bench and 1 viewing a case first-hand. While we deliberate 2 here in this chamber they are actually trying 3 the cases in their chambers. 4 I think the omission of duration 5 al requirements in regard to extreme physical 6 pain and loss of impairment, et cetera, et 7 cetera, is unclear in the bill, and I think the 8 standard of proof of serious physical injury may 9 be unnecessarily low. 10 I understand not only what 11 Senator Maltese is attempting to do but what the 12 prosecutors in this great state are attempting 13 to do, but I find my analysis that they've 14 fallen short and, for those reasons, I will not 15 be able to support this legislation as is 16 proposed now. Perhaps we will get a chance to 17 look at it again somewhere down the road. 18 I intend to vote no. 19 Thank you very much, Mr. 20 President. Thank you, Senator Maltese. 21 ACTING PRESIDENT KUHL: The Chair 22 recognizes Senator Abate. 23 SENATOR ABATE: Yes. Would 1 Senator Maltese yield to a number of questions? 2 SENATOR MALTESE: Yes. 3 ACTING PRESIDENT KUHL: Senator 4 Maltese yields. 5 SENATOR ABATE: Senator, I 6 applaud your bill which does address the need to 7 punish individuals who are charged with heinous 8 assaults, and there is a need to elevate that 9 from a C felony to a B felony. 10 My concerns are around the 11 position you're taking around definitions and, 12 in fact, that the definitions clarify and give 13 enough guidance to the judges and district 14 attorneys to make appropriate decisions. 15 I'm confused about two -- a 16 number of areas, but one in particular. 17 "Physical injury" means, and it lists and it 18 talks about "impairment of physical condition" 19 and then "serious physical injury" talks about 20 "impairment of health". What is the difference 21 between "impairment of physical condition" and 22 "impairment of health" and if that requires 23 physicians' guidance to the judge and district 1 attorney to make a differentiation between 2 what's "physical injury" and what's "serious 3 physical injury"? I'm troubled by that 4 language. 5 SENATOR MALTESE: Mr. President, 6 I -- I'm not a medical expert as my colleagues 7 know. It would seem just on a question of 8 definition, "impairment of physical condition" 9 would seem to be some -- some disabling, whether 10 temporary or permanent, of some function of the 11 body that's ascertainable, and "impairment of 12 health" means, it seems to me the -- some 13 condition not readily apparent, irritability and 14 loss of sleep, illness, nausea, intestinal 15 problems, something that would not be -- the 16 phrase is, the -- the difficulty that my 17 colleague has with the phrases is an attempt by, 18 I assume, these framers of the Model Penal Code 19 to cover every eventuality. 20 I imagine that these 21 commissioners, from all these states, get 22 together, most of them are -- according to the 23 explanation, are judges or attorneys, and I 1 assume they sit around and they try to figure 2 out every phrase that would cover every -- every 3 bit of terminology that would cover what they 4 wanted to cover, and that's why they came up 5 with impairment of -- impairment of health as 6 opposed to impairment of physical condition. 7 I -- as I said, these -- this 8 terminology was suggested by the District 9 Attorneys' Association, and upon our inquiry 10 from our colleagues, they then indicated for the 11 first time to us that it was, in fact, from the 12 Model Penal Code that they had adopted it, so I 13 assume that unless one of them was on the actual 14 conference commission, that they just took it in 15 toto after some deliberation and made it one of 16 their prime statutes for adoption. 17 SENATOR ABATE: Would the Senator 18 continue to yield? 19 SENATOR MALTESE: Yes. 20 ACTING PRESIDENT KUHL: Senator 21 continues to yield. 22 SENATOR ABATE: But I'm 23 confused. I don't know whether "impairment of 1 physical condition" is more serious or less 2 serious than "impairment of health" and we are 3 speaking about judges and district attorneys who 4 do not have medical degrees. They will be 5 relying on lay interpretations, and I don't 6 understand the differentiation between these two 7 medical conditions and why we're now saying that 8 if someone has been impaired, their health is 9 impaired, it's serious physical injury, but if 10 your physical condition has been impaired, it's 11 less serious. 12 I would think that either could 13 be serious or not so serious depending on 14 interpretation. So, Senator, my question, 15 wouldn't it be a better bill putting aside the 16 model code and whatever someone did some place 17 else, wouldn't this be a better bill if we could 18 more clearly define the differences between 19 these two conditions? 20 SENATOR MALTESE: Mr. President, 21 our present -- our present definitions of 22 "physical injury" and "serious physical 23 injury", look at the definition of "physical 1 injury", they have the exact phrase "impairment 2 of physical condition" which we've repeated, so 3 there - 4 SENATOR ABATE: Which I don't 5 have a problem with that. 6 SENATOR MALTESE: What? 7 SENATOR ABATE: But if you look 8 at the "serious physical injury," why did you 9 change "protracted impairment of health?" Why 10 did you eliminate the "protracted"? 11 SENATOR MALTESE: Oh, Mr. 12 President, the reason was that we wanted to make 13 it easier to fit within the definition of 14 "serious physical injury". We wanted to make 15 what was "impairment of physical condition" not 16 fit within a protracted period, so if you have 17 an impairment of -- and I keep going back and 18 forth -- an impairment of physical condition, 19 we, or at least the Model Penal Code -- and I 20 agreed with that section -- did not want to make 21 a requirement of it that it had to extend over a 22 period of time and be protracted. 23 SENATOR ABATE: By definition, 1 could you give me an example of an impairment of 2 a physical condition and what is an example of 3 an impairment of health? I really -- I don't 4 understand the differentiation. 5 SENATOR MALTESE: Well, perhaps 6 an impairment of health would be a sickness, and 7 an impairment of physical condition would be 8 some physical disability, the inability to fully 9 use an arm or a leg, or that would seem at least 10 as a matter of common sense, perhaps not of 11 linguistics, to fit within the -- within the 12 definitions, and so an impairment of health 13 would perhaps be something not readily apparent 14 to the eye, and an impairment of physical 15 condition would be something that would be 16 apparent to any onlooker, I'd assume, or at 17 least be able to be described if not readily 18 apparent. 19 SENATOR ABATE: Senator Maltese, 20 would you consider sending this back to 21 committee, because I think many of us agree 22 there needs to be rewritten definitions, but to 23 try to work on this language so that every lay 1 person -- and we gave guidance to police and 2 district attorneys, that there's a 3 differentiation between impairment of health and 4 physical condition, if we could just look at 5 those words, because I am afraid that one judge 6 in one area will be interpreting the law one 7 way, another judge in another area another, 8 district attorneys likewise, and that we as a 9 Legislature will be creating more chaos instead 10 of more clarity and that people will, in fact, 11 be prosecuted for the wrong crimes. 12 SENATOR MALTESE: Mr. President, 13 I'd be glad in the future to propose -- to 14 examine the proposals and perhaps draft -- have 15 drafted added definitions, I believe most of 16 them are in Section 10 -- to act... to actually 17 define the two conditions spoken of by the 18 Senator. So I think that would be a partial 19 answer. 20 The other more practical answer 21 why I would rather have it passed by this house 22 at the present time is that the Susan Johns bill 23 that was passed unanimously was passed last 1 week, that is without these definitions. Brian 2 McLaughlin, the Assembly sponsor, and I 3 conferred yesterday. He advised me that he had 4 24 Democratic sponsors for the bill as is in the 5 Assembly, so the -- there is no companion for 6 the Susan Johns bill. 7 So I believe that by the passage 8 of this bill today, we would take one step 9 further toward the adoption of perhaps not this 10 exact bill, but a bill that could be reconciled, 11 where language could be reconciled between the 12 two houses, and a bill that could be adopted 13 into law. 14 SENATOR ABATE: Thank you. 15 On the bill, just very, very 16 briefly. 17 ACTING PRESIDENT KUHL: Senator 18 Abate, on the bill. 19 SENATOR ABATE: I asked these 20 questions without having reached a conclusion 21 about whether I was going to support the bill or 22 not. 23 Having heard you speak and with 1 the commitment that there will be an opportunity 2 to redefine and clarify and clean up this bill, 3 I will support it, but I still have reservations 4 around the issues that Senator Waldon raised 5 that maybe there has to be written in the bill 6 that if someone is a primary aggressor, there 7 will be justification that will be viewed early 8 on in the arrest proceeding because what we 9 don't want to do is to have women who have been 10 -- are truly the victim, resist the man, 11 scratch, and then there are cross-complaints and 12 both of them are arrested. 13 We may be able to put in some 14 justification language, some primary aggressor 15 language, and then language that really clears 16 up definitionally what is "physical injury" 17 compared to "serious physical injury". 18 Many of us, I think most of us, 19 agree that the enhancement is a good idea. So 20 with that commitment of mine that we will seek 21 to clean up the language of the bill, again, 22 with reservations, but I support it with the 23 hopes and commitment that the bill will be 1 cleaned up down the road. 2 ACTING PRESIDENT KUHL: Is there 3 any other Senator wishing to speak on the bill? 4 Hearing none, the Secretary will read the last 5 section. 6 THE SECRETARY: Section 4. This 7 act shall take effect on the 1st day of 8 November. 9 ACTING PRESIDENT KUHL: Call the 10 roll. 11 (The Secretary called the roll. ) 12 ACTING PRESIDENT KUHL: Announce 13 the results when tabulated. 14 THE SECRETARY: Those recorded in 15 the negative on Calendar Number 126 are Senators 16 Leichter, Montgomery, Paterson, Smith and 17 Waldon. Ayes 50, nays 5. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 Senator Leichter, why do you 21 rise? 22 SENATOR LEICHTER: May I have 23 unanimous consent to be recorded in the negative 1 on Calendars 88 and 118? 2 ACTING PRESIDENT KUHL: Without 3 objection, hearing none, Senator Leichter will 4 be recorded in the negative on Calendar Number 5 88 and 118. 6 Senator Skelos. 7 SENATOR SKELOS: Mr. President, 8 just a reminder that the 1995-96 Senate picture 9 will be taken Monday promptly at 2:30. The men, 10 the photographer has suggested dark suits and 11 light colored shirts photograph the best. 12 Senator Smith, would you like to 13 comment? 14 SENATOR SMITH: I leave that to 15 Senator Montgomery. 16 SENATOR MONTGOMERY: The women 17 will be wearing their "power" costumes. Thank 18 you. 19 SENATOR SKELOS: Thank you, 20 Senator Montgomery. 21 Is there any housekeeping at the 22 desk? 23 ACTING PRESIDENT KUHL: Senator 1 Abate, why do you rise? 2 SENATOR ABATE: Yes. I would 3 like unanimous consent to be recorded in the 4 negative on Calendar 118. 5 ACTING PRESIDENT KUHL: Without 6 objection, hearing none, Senator Abate will be 7 recorded in the negative on Calendar Number 8 118. 9 There is no housekeeping at the 10 desk. 11 SENATOR SKELOS: There being no 12 further business, I move we adjourn until 13 February 5th, 1996 at 3:00 p.m. sharp, 14 intervening days to be legislative days. 15 ACTING PRESIDENT KUHL: Without 16 objection the Senate will adjourn until February 17 5th at 3:00 p.m. Reminder, 2:30 will be a 18 picture of the chamber. Senate stands 19 adjourned. 20 (Whereupon at 12:15 p.m., the 21 Senate adjourned.) 22 23