Wednesday, March 20, 1996

2444 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 March 20, 1996 10 11:03 a.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR JOHN R. KUHL, JR., Acting President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 2445 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: The 3 Senate will come to order. Ask the members to 4 find their places, the staff to find their 5 places. Ask everybody in the chamber to rise 6 and join with me in saying the Pledge of 7 Allegiance to the Flag. 8 (The assemblage repeated the 9 Pledge of Allegiance to the Flag.) 10 In the absence of clergy, may we 11 bow our heads in a moment of silence, please. 12 (A moment of silence was 13 observed.) 14 Reading of the Journal. 15 THE SECRETARY: In Senate, 16 Tuesday, March 19th. The Senate met pursuant to 17 adjournment, prayer by the Reverend Father Peter 18 G. Young, Blessed Sacrament Church, Bolton 19 Landing. The Journal of Monday, March 18th, was 20 read and approved. On motion, the Senate 21 adjourned. 22 ACTING PRESIDENT KUHL: Hearing 23 no objection, the Journal stands approved as 2446 1 read. 2 Presentation of petitions. 3 Messages from the Assembly. 4 Messages from the Governor. 5 Reports of standing committees. 6 Reports of select committees. 7 Communications and reports from 8 state officers. 9 Motions and resolutions. 10 The Chair recognizes Senator 11 Farley. 12 SENATOR FARLEY: Thank you, Mr. 13 President. 14 On behalf of Senator Saland, on 15 page 18, I offer the following amendments to 16 Calendar Number 432, Senate Print 1436, and I 17 ask that that bill retain its place on the Third 18 Reading Calendar. 19 ACTING PRESIDENT KUHL: The 20 amendments to Calendar Number 432 are received 21 and adopted. The bill will retain its place on 22 the Third Reading Calendar. 23 Senator DeFrancisco. 2447 1 SENATOR DeFRANCISCO: Mr. 2 President, on page 19, I offer the following 3 amendments to Calendar Number 442, my Senate 4 Bill Print Number 4686, and ask that the bill 5 retain its place on third reading. 6 ACTING PRESIDENT KUHL: The 7 amendments to Calendar Number 442 are received 8 and adopted. The bill will retain its place on 9 the Third Reading Calendar. 10 Senator Connor. 11 SENATOR CONNOR: Mr. President, 12 there's a privileged resolution at the desk, and 13 I'd ask that it be called up, its title be read 14 and it be moved for adoption. 15 ACTING PRESIDENT KUHL: The 16 privileged resolution is at the desk. I'll ask 17 the Secretary to read the title. 18 THE SECRETARY: By Senator 19 Connor, Legislative Resolution honoring Leonard 20 Greher, Principal of P. S. 34, in recognition of 21 his prompt and heroic efforts to save the life 22 of a young student who was a victim of choking. 23 ACTING PRESIDENT KUHL: The 2448 1 question is on the resolution. All those in 2 favor signify by saying aye. 3 (Response of "Aye".) 4 Opposed, nay. 5 (There was no response.) 6 The resolution is adopted. 7 Senator Bruno. 8 SENATOR BRUNO: Mr. President, I 9 believe there is a resolution at the desk by 10 Senator Cook. I would move at this time that it 11 be read in its entirety and moved for adoption. 12 ACTING PRESIDENT KUHL: The 13 Resolution Number 2578 is at the desk. I'll ask 14 the Secretary to read the resolution in its 15 entirety. 16 THE SECRETARY: By Senator Cook, 17 Legislative Resolution Number 2578, commending 18 the New York Association for Continuing/ 19 Community Education and the 1996 Students of the 20 Year. 21 WHEREAS, the Legislature of the 22 state of New York is pleased to welcome the New 23 York Association for Continuing/Community 2449 1 Education and proud to commend the 1996 Students 2 of the Year for their outstanding work as adult 3 learners; and 4 WHEREAS, these students, all 5 honored recipients of the Student of the Year 6 Award, have been selected to receive this 7 esteemed distinction because of their 8 demonstrated outstanding perseverance and 9 dedication. 10 The 1996 Students of the Year 11 worked hard and overcame a myriad of challenges 12 and in doing so, developed within themselves a 13 strong sense of independence, self-reliance and 14 self-sufficiency which can never be taken away. 15 The 1996 Students of the Year 16 have confirmed, through their earnest commitment 17 and will to succeed, that they should be looked 18 upon as positive role models, not only to other 19 adult learners but to their community as well. 20 The Legislature of the state of 21 New York also pays tribute to the teachers, 22 coordinators, administrators and trainers of 23 these students for their selfless dedication to 2450 1 the students and whose work has brought hope 2 into the lives of many, an accomplishment that 3 cannot be measured; and 4 WHEREAS, the Legislature of the 5 state of New York also honors the board members 6 for their guidance of the New York Association 7 for Continuing/Community Education and for their 8 continued dedication to education in New York 9 and to all the individuals on the Awards Day 10 Committee who worked diligently in order to 11 ensure these students receive their recognition 12 that they deserve; now, therefore, be it; 13 RESOLVED, that this legislative 14 body pause in its deliberation to commend the 15 New York Association for Continuing/Community 16 Education and the 1996 Students of the Year for 17 their tenacity and remarkable accomplishments; 18 and be it further 19 RESOLVED, that copies of this 20 resolution, suitably engrossed, be transmitted 21 to each of the Students of the Year, Board 22 President Amy Peritsky and the Awards Day 23 Chairperson, Lin Wishchhusen. 2451 1 ACTING PRESIDENT KUHL: Senator 2 Cook, on the resolution. 3 SENATOR COOK: Mr. President, I 4 won't be redundant by repeating all of the 5 details that were in the resolution, except to 6 say that we are, indeed, very proud and 7 privileged to have with us today these 8 outstanding students. I think most of them are 9 here with us. A number of them are teachers, 10 leaders. 11 This is a program which recog 12 nizes individuals who not only have accomplished 13 but have accomplished in spite of some real 14 hardships, and I think we should be somewhat in 15 awe that they have accomplished what they have 16 under some rather telling circumstances. 17 So I would appreciate it, Mr. 18 President, if you would welcome them here 19 today. I think perhaps some of the other 20 members have some -- some special greetings they 21 want to add as well. 22 ACTING PRESIDENT KUHL: The Chair 23 recognizes Senator DeFrancisco on the 2452 1 resolution. 2 SENATOR DeFRANCISCO: Yes, Mr. 3 President. I'm honored to have a constituent, 4 Melonise Felton, who's in the front row in the 5 gallery here as one of the honored students. 6 I wish I could share with you on 7 the floor what she overcame in order to get to 8 the point she is in her life right now. It's 9 truly -- it was truly a heroic effort that she 10 made to overcome some circumstances that I don't 11 believe many here could have overcome, and now 12 she is now well on her way to bigger and better 13 things. She set goals that probably were not 14 even thought about a few years ago in her life 15 and goals that I know from meeting her today 16 that she's going to achieve, and the same is 17 true for all the other honorees today. 18 She lives very close to me, less 19 than a half a mile from where I live, and she 20 has demonstrated through all of her efforts that 21 she probably will be a registered nurse very 22 soon. That's her goal, and I expressed to her 23 that anything that I could do to try to help her 2453 1 reach that goal, we will continue to do so and 2 I'm sure she will have some items for all of us 3 to consider about how we could help other people 4 similarly situated as she is. 5 So I'm pleased and I'm really 6 proud that a member of my district living so 7 close to home that has achieved what she has 8 achieved in such a short time, and I wish her 9 the best of luck and success in all of her 10 future goals. 11 ACTING PRESIDENT KUHL: Senator 12 Maziarz. 13 SENATOR MAZIARZ: Thank you, Mr. 14 President. 15 I too want to join my colleagues 16 in congratulating all of the student honorees 17 who are with us today. I particularly want to 18 recognize James Mills of Gasport, New York, who 19 lives in my district and Jim is with us here 20 this morning, and Jim overcame some -- some 21 great obstacles at a later age and with the help 22 of a lot of good instructors and of literacy 23 volunteers, overcame some really, really great 2454 1 obstacles and it was a big challenge for Jim to 2 do at this stage of his life, and I just want to 3 publicly congratulate him and his instructors 4 for their time and effort that they put into 5 Jim's goal and just to add to that, our 6 congratulations. 7 Thank you, Mr. President. 8 ACTING PRESIDENT KUHL: Any other 9 Senator wishing to speak on the resolution? 10 (There was no response.) 11 The resolution was previously 12 adopted on March 5th, so there's no need to 13 proceed in that line, but on behalf of Senator 14 Cook, Senator DeFrancisco, Senator Maziarz, 15 Senator Bruno and all of the members of the 16 Senate, we're just absolutely pleased that you 17 chose today to come join us. We wish you good 18 luck in your future endeavors and congratulate 19 you on what you've done in the past. Keep up 20 the good work. Make us proud as you have 21 already. 22 Thank you for being here. 23 (Applause) 2455 1 Senator Skelos, that brings us to 2 the calendar. 3 SENATOR SKELOS: If we could take 4 up the non-controversial calendar. 5 ACTING PRESIDENT KUHL: The 6 Secretary will read the non-controversial 7 calendar. 8 THE SECRETARY: On page 13, 9 Calendar Number 379, by Senator Holland - 10 SENATOR GOLD: Lay it aside. 11 ACTING PRESIDENT KUHL: Lay the 12 bill aside. 13 THE SECRETARY: Calendar Number 14 399, by Senator Nozzolio, Senate Print 4923. 15 SENATOR PATERSON: Lay it aside. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside. 18 THE SECRETARY: Calendar Number 19 415, by Senator Cook, Senate Print 3603, an act 20 to amend the General Business Law, in relation 21 to the licensing of barbers. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the last section. 2456 1 THE SECRETARY: Section 2. This 2 act shall take effect on the 60th day. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll.) 6 ACTING PRESIDENT KUHL: Announce 7 the results when tabulated. 8 THE SECRETARY: Ayes 44, nays 1, 9 Senator Tully recorded in the negative. 10 ACTING PRESIDENT KUHL: The bill 11 is passed. 12 THE SECRETARY: Calendar Number 13 419, by Senator Cook, Senate Print 5760, an act 14 to amend the General Business Law, in relation 15 to requiring certain notification to callers of 16 contests. 17 ACTING PRESIDENT KUHL: The 18 Secretary will read the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect 180 days. 21 ACTING PRESIDENT KUHL: Call the 22 roll. 23 (The Secretary called the roll.) 2457 1 THE SECRETARY: Ayes 47. 2 ACTING PRESIDENT KUHL: The bill 3 is passed. 4 THE SECRETARY: Calendar Number 5 427, by Senator Johnson, Senate Print 5764, an 6 act authorizing the Commissioner of 7 Transportation to acquire in fee certain lands 8 in the county of Suffolk. 9 ACTING PRESIDENT KUHL: The 10 Secretary will read the last section. 11 THE SECRETARY: Section 3. This 12 act shall take effect immediately. 13 ACTING PRESIDENT KUHL: Call the 14 roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 47. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 433, by Senator DeFrancisco, Senate Print 1972. 21 SENATOR CONNOR: Lay it aside. 22 ACTING PRESIDENT KUHL: Lay the 23 bill aside. 2458 1 THE SECRETARY: Calendar Number 2 438, by the Assembly Committee on Rules, 3 Assembly Print Number 7535, an act to amend the 4 Civil Practice Law and Rules, in relation to the 5 recording of judicial rulings and orders. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect on the first day of 10 January. 11 ACTING PRESIDENT KUHL: Call the 12 roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes 47. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 439, by the Assembly Committee on Rules, 19 Assembly Print Number 7539, an act to amend the 20 Civil Practice Law and Rules, in relation to 21 non-joinder and misjoinder of parties. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the last section. 2459 1 THE SECRETARY: Section 3. This 2 act shall take effect immediately. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes 49. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 THE SECRETARY: Calendar Number 10 440, by Senator Libous, Senate Print 4439, an 11 act to amend the Criminal Procedure Law, in 12 relation to venue for an application for an 13 order of retention. 14 ACTING PRESIDENT KUHL: The 15 Secretary will read the last section. 16 THE SECRETARY: Section 4. This 17 act shall take effect immediately. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 49. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 2460 1 THE SECRETARY: Calendar Number 2 463, by Assemblyman Feldman, Assembly Print 3 Number 8882, an act to amend Chapter 887 of the 4 Laws of 1983, amending the Correction Law. 5 ACTING PRESIDENT KUHL: The 6 Secretary will read the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT KUHL: Call the 10 roll. 11 (The Secretary called the roll.) 12 THE SECRETARY: Ayes 49. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 500, by the Assembly Committee on Rules. 17 SENATOR VOLKER: Mr. President, 18 can we lay this bill aside for the day? 19 ACTING PRESIDENT KUHL: Lay the 20 bill aside for the day at the request of the 21 sponsor. 22 Senator Skelos, that completes 23 the non-controversial calendar. 2461 1 SENATOR SKELOS: Could we please 2 have the controversial calendar read. 3 ACTING PRESIDENT KUHL: The 4 Secretary will read the controversial calendar. 5 THE SECRETARY: Calendar Number 6 379, by Senator Holland, Senate Print 2046-B, an 7 act to amend the Social Services Law and the 8 Workers' Compensation Law, in relation to liens 9 for public assistance and care. 10 SENATOR STACHOWSKI: Explanation. 11 ACTING PRESIDENT KUHL: Senator 12 Holland, an explanation of Calendar Number 379 13 has been asked for by the Minority Leader. 14 SENATOR HOLLAND: Yes, Mr. 15 President. This bill allows the Department of 16 Social Services to place a lien on Workers' 17 Compensation benefits to recoup public 18 assistance payments made while someone was 19 awaiting a retroactive payment of compensation 20 benefits. 21 SENATOR STACHOWSKI: Mr. 22 President. 23 ACTING PRESIDENT KUHL: Senator 2462 1 Stachowski. 2 SENATOR STACHOWSKI: Would 3 Senator Holland yield for a question? 4 ACTING PRESIDENT KUHL: Senator 5 Holland, do you yield to a question from Senator 6 Stachowski? 7 SENATOR HOLLAND: Yes, sir. 8 ACTING PRESIDENT KUHL: The 9 answer is yes, Senator Stachowski. The Senator 10 yields. 11 SENATOR STACHOWSKI: Senator, in 12 proposing this bill, I take it then you feel 13 that these people that are awaiting a pending 14 Workers' Compensation decision that are put into 15 terrible financial straits because they have no 16 income coming in, that they have to go on public 17 assistance, that that is an undeserved benefit 18 and that they should put a lien on this when the 19 judgment comes through so that that's paid back, 20 and these workers aren't entitled to collecting 21 public assistance even though for all their life 22 they worked or however long they worked and paid 23 into the system through taxes, et cetera, that 2463 1 they shouldn't be allowed to collect when they 2 haven't chosen to be there but they were put 3 there because they were hurt and because of 4 whatever reason this case is pending and they're 5 not getting a decision most likely because the 6 insurance company is fighting it and choking 7 them off and now they're forced because of no 8 income to collect public assistance; you think 9 this is an unfair accrued benefit and it should 10 be paid back? 11 SENATOR HOLLAND: No, sir, I do 12 not think it's an unearned benefit. I think 13 that's what we're here for. When people are 14 injured and need assistance, that's what social 15 services is here for. They come to the social 16 services. We help them with payments and 17 medical, but then when the insurance company 18 finally decides how the case is going to be 19 decided -- or the judge finally decides how the 20 case is going to be decided and if there is a 21 payment due to that individual, then I believe 22 the individual should pay back the loan that was 23 made. 2464 1 I think this is double dipping, 2 Senator. That's what I think it is, and I have 3 no problem with paying them and helping them 4 when they need the assistance, but then when the 5 court and the insurance company decides that 6 they should get the payment, I believe that they 7 should pay that back to the Department. 8 SENATOR STACHOWSKI: Mr. 9 President, on the bill. 10 ACTING PRESIDENT KUHL: Senator 11 Stachowski on the bill. 12 SENATOR STACHOWSKI: We have no 13 trouble with the part of the bill that says that 14 the medical Medicaid section for any kind of 15 medical payments should be paid back when that 16 judgment is finally rendered. We have a 17 terrible problem with the idea that somebody 18 that is forced because they're hurt and they 19 aren't collecting any kind of money and they 20 have rent bills or they have mortgage payments. 21 They have car payments. They have food and 22 clothing bills to pay. They might have kids in 23 school. They have all these bills of just 2465 1 everyday living and we're going to tell them now 2 that we think this -- you getting public 3 assistance -- which most workers don't want to 4 take in the first place, but they have no choice 5 because they're put out there, hurt, no family 6 income or possibly even if they live by 7 themselves, no source of income, they're put out 8 there. They have all these bills. They're 9 finally forced to go on social services, 10 something that most working men and women never 11 want to be on, so they're forced to be a 12 recipient of social services and because of the 13 nature of this bill, we now consider that a loan 14 to these particular individuals that have worked 15 all their life and through no fault of their 16 own, they're hurt, and when they receive this 17 benefit, unlike anybody else receiving this 18 benefit, because they have a case pending that 19 some insurance company doesn't want to pay off 20 on and it makes them go on social services 21 because they're hurt and they don't want to pay 22 off, now they do pay off, we're considering that 23 they receive this loan from the state of New 2466 1 York. We think that's something that they 2 worked all their lives and they're entitled to 3 those benefits and that they get an award from 4 an insurance company because of an injury, that 5 doesn't make up for the loss of whatever 6 physical problem they now have the rest of their 7 life, or it doesn't make up -- that award 8 doesn't make up for the fact that they can never 9 work again the rest of their lives in most 10 cases, and then we're telling them on top that, 11 You are in this bad situation, even though 12 you're one of the hard-working men and women of 13 the state of New York in whatever field you were 14 in before you got hurt, so you don't deserve the 15 right to have been on social services and in 16 your case, because you win this insurance award 17 out of a compensation injury which you are 18 injured still -- you know, when you get the 19 award, you're not suddenly whole and you're not 20 suddenly rich, and it will never pay you back 21 for the loss you have in both dignity and the 22 fact that you can't work again when you want to 23 work and probably never attain the life style 2467 1 that you previously had, but because of that and 2 because you got this award, in your case, you 3 should pay back the state for social services. 4 I'm sorry. I find that callous. 5 I find that terribly unthoughtful. I find it 6 terrible unfair, and I just find it extremely 7 mean-spirited and a slap in the face to the 8 working men and women in the state of New York, 9 and I hope that people in the chamber will vote 10 no on this bill. 11 ACTING PRESIDENT KUHL: Is there 12 any other Senator wishing to speak on the bill? 13 The Chair recognizes Senator 14 Paterson. 15 SENATOR PATERSON: Thank you, Mr. 16 President. 17 If Senator Holland would yield 18 for a question. 19 ACTING PRESIDENT KUHL: Senator 20 Holland, do you yield? 21 SENATOR HOLLAND: Yes. 22 ACTING PRESIDENT KUHL: The 23 Senator yields. 2468 1 SENATOR PATERSON: Senator, I was 2 wondering -- and thank you for yielding. I was 3 wondering what had changed in the law that 4 brings us to this position today where we would 5 want to deny these benefits when the Legislat 6 ure, in its wisdom years ago, specifically in 7 Section 104(b) of the Social Services Law, 8 excluded Workers' Compensation benefits and - 9 for volunteer police and social services and 10 volunteer police and firefighters. 11 Now, I see that you have left 12 volunteer police and firefighters in and have 13 taken individuals who, I think both you and I 14 would admit, were not seeking to be on social 15 services, were often driven into the program 16 because the employer didn't pay the benefit. 17 The employer fights the benefit, puts these 18 people in a terrible position for long periods 19 of time, sometimes up to a year, restricting the 20 reward to two-thirds of their salary with a cap 21 of $400 a week. I mean, these are some severe 22 circumstances that these individuals are going 23 through, so to use the term "double dipping", I 2469 1 think is a little unfair, Senator, because I 2 associate the term "double dipping" with a 3 person who is deriving a benefit; in other 4 words, someone's who's, you know, to use the 5 street vernacular, getting over. These people 6 are never even getting back to where they 7 started, and it didn't become this way because 8 of any action they took. It became this way 9 because of an accident and then the fact that 10 the employer fought the claim. So they're in a 11 real bad position to start out with. 12 These are not the people that you 13 hear being stigmatized quite often when we talk 14 about welfare cheats and that kind of thing. 15 There are very few individuals who are in this 16 kind of position and, you know, to change this 17 law after the Legislature looked at it some 18 years ago and determined that this was one of 19 the cases we would exclude from having to 20 reimburse, my -- you know, I guess my question 21 to you after all of this is what has changed? 22 Why would we want to do that now? 23 SENATOR HOLLAND: I missed the 2470 1 end of it, Senator. I'm sorry. I listened to 2 all of it except the end of it. 3 SENATOR PATERSON: I'm sorry, 4 Senator. My question is what has changed today 5 from the laws that we enacted years ago that 6 makes us have to do this to these individuals 7 who I think you would admit were taxpayers; they 8 were hard-working. I can't explain it any 9 better than Senator Stachowski did. What's 10 changed that we want to do this to them? 11 SENATOR HOLLAND: Nothing has - 12 you know, the law was done years ago, as you 13 say, and I think it was a mistake. That's why I 14 brought it to the floor. I really believe it is 15 double dipping, Senator. 16 Let's talk to you and Senator 17 Stachowski's question about the workers and what 18 they deserve. How about the other workers who 19 are injured on the job and receive assistance - 20 or do not receive assistance, rather, but 21 accumulate bills and maybe their mortgage is 22 three months in arrears or their rent is three 23 months in arrears and they have to borrow from 2471 1 their family and friends and the bank until they 2 get the award from the courts, then what do they 3 do? They pay off those loans. They pay off the 4 mortgage. They take that from the courts and 5 pay off those things. I'm only trying to make 6 it fair for everybody. 7 I have no problem, nor do I think 8 anybody in this room does, in taking care of the 9 people that need to be taken care of. However, 10 when the insurance company is required to make 11 the payment, I feel at that point that these 12 people should pay back the loans that they got 13 just like anybody else who wasn't forced to go 14 on social services. 15 SENATOR PATERSON: Senator. 16 SENATOR HOLLAND: Yes, sir. 17 SENATOR PATERSON: First of all, 18 I think we're disagreeing on what the social 19 services award is. I don't see it as a loan. 20 If they lose the Workers' Comp' claim, it's 21 certainly not a loan; they stay on social 22 services. So I'm saying that I don't understand 23 us classifying that as a loan. 2472 1 Now, because it's not a loan - 2 and maybe if we can agree on this point, perhaps 3 we'll reach an understanding and, what do you 4 know, maybe we'll lay this bill aside -- because 5 it's not a loan, it's not in the mind of the 6 individual who receives the money that they're 7 going to wind up paying other monies back so 8 they would do what anybody else would do at a 9 point that they had been working. They're now 10 injured on the job. They're receiving social 11 services. They're going to take what meager 12 awards they get from social services and they're 13 going to try to pay their bills. They're going 14 to try to do anything they can do to survive. 15 As for the other workers you're 16 referring to, they have a right to apply for 17 social services too. Some of them don't because 18 they get their Workers' Compensation money up 19 front because the employer doesn't fight it. So 20 I'm saying, these are the specific cases where 21 the individuals were driven onto social services 22 because the employer fought the claim but the 23 employer turned out to be maybe not wrong but 2473 1 we'll just say that the employee won. So now 2 the employee is -- has an award and we're 3 considering it a loan, but you can never 4 consider it a loan at the time they first got 5 it. Would you agree with that? 6 SENATOR HOLLAND: No, not 7 exactly, Senator. I -- I feel that we should 8 take care of the workers, as I said, but if 9 there is a payment by the courts, then it is a 10 loan. 11 Let's go back to the other 12 workers who don't have to go on Social Security 13 -- social services. They have to pay back all 14 the loans they take, whether it's from their 15 family or the bank or mortgage payments or lease 16 payments. I don't see the difference, Senator, 17 and if they do, as you say, have to stay on 18 social services, I don't have a problem with 19 that either. I would rather not have them 20 there. I'd like them to work their way off, but 21 if they can't repay the loan and there is no 22 settlement from the insurance companies, I do 23 not have a problem with that. If there is a 2474 1 settlement from the companies, then I believe 2 that they are double dipping and they should 3 repay the money that the taxpayers of this state 4 have loaned them during that period of time. 5 ACTING PRESIDENT KUHL: Senator 6 Paterson. 7 SENATOR PATERSON: Thank you very 8 much, Senator. 9 Mr. President, on the bill. 10 ACTING PRESIDENT KUHL: Senator 11 Paterson, on the bill. 12 SENATOR PATERSON: I think that 13 I've loaned a little money in my time and I may 14 have borrowed some, and I sure knew when I 15 loaned the money out that it was a loan, and 16 when I didn't know when I borrowed it, I sure 17 got reminded that it was a loan. 18 This is a contingent award that, 19 if Senator Holland believes should be so 20 described, I would suggest that we might need to 21 change the Social Services Law, because at the 22 time the person applies for social services, no 23 one tells them, "By the way, if you win your 2475 1 Workers' Comp' claim, we're going to take the 2 money and then apply it to whatever money you 3 receive for social services." I think that in 4 the technical sense of what Senator Holland is 5 proposing, that it is not illogical. I think it 6 does make sense, but there are two 7 distinguishing issues. 8 The former would be that the 9 social services award itself, at the time that 10 it's awarded, is not a loan. It's like anyone 11 else going to social services, and when we look 12 at it later on, we're talking about people who 13 have lost often two-thirds of their salary. 14 They've lost everything, and they didn't lose 15 everything because they were unwilling to work. 16 They didn't lose anything because they didn't 17 care about working. They were injured. They 18 were injured on the job. 19 It's one of those situations that 20 I think would be understood better by the 21 sponsors if it actually happened to somebody 22 that they knew. I think then they would start 23 to understand why the Legislature years ago 2476 1 specifically deleted these types of situations 2 from the regular recovery, not because 3 technically they may have gotten an award from 4 social services and went on to get an award from 5 Workers' Compensation, but that collectively, 6 those two awards probably didn't even help 7 them. They were still seriously in debt and 8 would relish the opportunity to go back to 9 work. This is not in any way fostering or 10 enhancing or encouraging individuals who are on 11 social services to stay there. These are 12 specific individuals who probably have some of 13 the same contempt for the system that they have 14 to seek because they have no other choice. They 15 were driven there by their employers. Later on 16 they win their recovery, and the first thing 17 that happens is we come by and pick up part of 18 the check as part of the social services award. 19 If it was a benefit they were receiving, then I 20 would agree with Senator Holland, but there's no 21 benefit. They're often very much in debt. 22 And finally, Mr. President, I 23 would just really want to point out that we're 2477 1 hurting workers. We're hurting taxpayers 2 through this. We're hurting individuals who 3 have fought and suffered and paid for it, and 4 they don't have the money to meet some of their 5 most essential needs, and this, as I agree with 6 Senator Stachowski, is not the way to treat 7 individuals who have been such contributors to 8 our society as they have. 9 And as for the other workers who 10 either have a right to apply and don't apply or 11 didn't apply because they got paid their 12 Workers' Compensation, I don't think that it's 13 apt to make a comparison between the other 14 workers because if they're put in the same 15 situation, they also have the right to apply for 16 social services. 17 ACTING PRESIDENT KUHL: The Chair 18 recognizes Senator Smith. 19 SENATOR SMITH: Thank you, Mr. 20 President. 21 I would just like to reiterate 22 and thank my colleague, Senator Paterson, for 23 bringing out the fact that at no time can you 2478 1 receive more than $400 under an award, and the 2 maximum award is two-thirds of your income for 3 -- on a weekly basis. Therefore, anyone 4 receiving an award would be indebted and could 5 not possibly be double dipping, as my colleague 6 would like to think of it. 7 The amounts are so menial that 8 anyone that is maimed or hurt would be put in a 9 situation where they could no longer take care 10 of their home or their family with such a menial 11 amount of money and, therefore, I encourage all 12 of my colleagues to vote against this bill. 13 ACTING PRESIDENT KUHL: Senator 14 Waldon. 15 SENATOR WALDON: Thank you very 16 much, Mr. President. 17 Actually, Senator Smith just 18 covered the points that I wanted to make, but I 19 would like to ask the learned Senator from 20 Orange County, Senator Holland, to yield to just 21 perhaps one or two questions. 22 ACTING PRESIDENT KUHL: Senator 23 Holland, do you yield? 2479 1 SENATOR HOLLAND: Yes, sir. 2 ACTING PRESIDENT KUHL: The 3 Senator yields. 4 SENATOR WALDON: Thank you very 5 much, Mr. President. 6 Senator Holland, have you ever 7 been unemployed? 8 SENATOR HOLLAND: Oh, yes. 9 SENATOR WALDON: Were you while 10 unemployed in need of unemployment insurance? 11 SENATOR HOLLAND: I'm sorry. I 12 can't hear you, Senator. 13 SENATOR WALDON: While you were 14 unemployed, did you have a need for and did you 15 apply for unemployment insurance? 16 SENATOR HOLLAND: No, sir. 17 SENATOR WALDON: You have never 18 -- let me retract that. Have you ever had a 19 need in your life, as a result of "missed meal" 20 cramps or any other kind of condition, to apply 21 for assistance of any form outside of perhaps 22 your family? 23 SENATOR HOLLAND: Yes. 2480 1 SENATOR WALDON: If I may, Mr. 2 President, one last question. 3 ACTING PRESIDENT KUHL: Senator 4 Holland, do you continue to yield? 5 SENATOR HOLLAND: Yes. 6 ACTING PRESIDENT KUHL: The 7 Senator continues to yield. 8 SENATOR WALDON: Senator Holland, 9 being that you are the sponsor of this proposal, 10 I have to assume that you understand very well 11 the points that Senator Smith and Senator 12 Paterson made and Senator Stachowski in more of 13 a philosophical approach made in regard to the 14 money that you can receive from social services 15 while -- retract that -- from compensation never 16 equals what you were actually earning -- maybe 17 "never" is not a correct term -- so you're 18 always in the hole. Do you understand that 19 concept, that you can only receive two-thirds or 20 whatever the amount of money is for the 21 particular situation? 22 SENATOR HOLLAND: I do. I 23 understand what you're trying -- what you're 2481 1 saying, yes. I would hope that many times it 2 would cover the repayment and/or be a little 3 extra, depending upon what they were making when 4 they were working. 5 SENATOR WALDON: But if the 6 assumption is that you can never receive what 7 you were, in fact, earning in this hypothetical 8 sense, would one not always be in the hole; if 9 you're unemployed due to this injury for four 10 months, five months, six months, wouldn't your 11 best guesstimate say that you're going to be in 12 the hole once the settlement actually happens? 13 SENATOR HOLLAND: To tell you the 14 truth, I do not know, Senator, but if the 15 settlement does not cover everything that they 16 owe DSS, they would not be required to pay 17 anything additional. If it was excess, then 18 they would keep the excess. 19 SENATOR WALDON: Mr. President, 20 thank you very much. 21 Thank you very much, Senator 22 Holland. 23 ACTING PRESIDENT KUHL: Is there 2482 1 any other Senator wishing to speak on the bill? 2 (There was no response.) 3 Hearing none, the Secretary will 4 read the last section. 5 SENATOR STACHOWSKI: Slow roll 6 call, please. 7 THE SECRETARY: Section 4. This 8 act shall take effect immediately. 9 ACTING PRESIDENT KUHL: Call the 10 roll. 11 (The Secretary called the roll.) 12 ACTING PRESIDENT KUHL: Call the 13 roll slowly. There are five Senators 14 requesting. Ring the bells. 15 THE SECRETARY: Senator Abate. 16 SENATOR ABATE: No. 17 THE SECRETARY: Senator Alesi. 18 SENATOR ALESI: Yes. 19 THE SECRETARY: Senator Babbush. 20 (There was no response.) 21 Senator Bruno. 22 (Affirmative indication.) 23 Senator Connor. 2483 1 (Negative indication.) 2 Senator Cook. 3 SENATOR COOK: Yes. 4 THE SECRETARY: Senator 5 DeFrancisco. 6 SENATOR DeFRANCISCO: Yes. 7 THE SECRETARY: Senator DiCarlo. 8 (There was no response.) 9 Senator Dollinger. 10 SENATOR DOLLINGER: Explain my 11 vote, Mr. President. 12 ACTING PRESIDENT KUHL: Senator 13 Dollinger to explain his vote. 14 SENATOR DOLLINGER: Mr. 15 President, I couldn't agree more with Senator 16 Stachowski who quite eloquently summed up my 17 view about this bill. 18 I guess the other thing that I'm 19 astounded at is that for some reason in this 20 state, we don't ask major corporations that get 21 grants for job development; we don't ask people 22 who get enormous tax cuts, rich and wealthy 23 people who get enormous tax cuts, we don't 2484 1 consider that public benefit alone, but yet when 2 someone has the misfortune of being hurt on the 3 job and needs money to survive, what we do is we 4 treat their welfare recipience or their 5 transitional benefit as a loan. It just seems 6 to me -- I agree with Senator Stachowski. It's 7 mean-spirited. It's hard-hearted, and why do we 8 do this to the working people of this state? We 9 don't do it to anybody else. It's nonsensical. 10 I'm voting no. 11 ACTING PRESIDENT KUHL: Senator 12 Dollinger will be recorded in the negative. 13 Announce the results. I tried. I tried. 14 Continue to call the roll. 15 Senator Paterson, why do you 16 rise? 17 SENATOR PATERSON: Mr. President, 18 with the permission from the Majority, would we 19 allow Senator Montgomery to vote right now? She 20 has an important issue that she has to - 21 ACTING PRESIDENT KUHL: Senator 22 Skelos, do you have no -- no objection. 23 The Secretary will call - 2485 1 Senator Montgomery, how do you vote? 2 SENATOR MONTGOMERY: No. 3 ACTING PRESIDENT KUHL: Senator 4 Montgomery will be recorded in the negative. 5 The Secretary will continue to call the roll 6 slowly. 7 THE SECRETARY: Senator Espada. 8 SENATOR ESPADA: No. 9 THE SECRETARY: Senator Farley. 10 Senator Farley. 11 SENATOR FARLEY: Aye. 12 THE SECRETARY: Senator Gold. 13 SENATOR GOLD: Senator Farley was 14 in the affirmative? In the negative. 15 THE SECRETARY: Senator Gonzalez. 16 SENATOR GONZALEZ: No. 17 THE SECRETARY: Senator Goodman. 18 SENATOR GOODMAN: Yes. 19 THE SECRETARY: Senator Hannon. 20 SENATOR HANNON: Yes. 21 THE SECRETARY: Senator Hoblock. 22 SENATOR HOBLOCK: Yes. 23 THE SECRETARY: Senator Hoffmann. 2486 1 SENATOR HOFFMANN: No. 2 THE SECRETARY: Senator Holland. 3 SENATOR HOLLAND: Yes. 4 THE SECRETARY: Senator Johnson. 5 SENATOR JOHNSON: Aye. 6 THE SECRETARY: Senator Kruger. 7 SENATOR KRUGER: No. 8 THE SECRETARY: Senator Kuhl. 9 SENATOR KUHL: Aye. 10 THE SECRETARY: Senator Lachman. 11 SENATOR LACHMAN: No. 12 THE SECRETARY: Senator Lack. 13 SENATOR LACK: Yes. 14 THE SECRETARY: Senator Larkin. 15 (There was no response.) 16 Senator LaValle. 17 SENATOR LAVALLE: Aye. 18 THE SECRETARY: Senator Leibell. 19 SENATOR LEIBELL: Aye. 20 THE SECRETARY: Senator Leichter. 21 SENATOR LEICHTER: No. 22 THE SECRETARY: Senator Levy. 23 SENATOR LEVY: Aye. 2487 1 THE SECRETARY: Senator Libous. 2 (There was no response.) 3 Senator Maltese. 4 (There was no response.) 5 Senator Marcellino. 6 SENATOR MARCELLINO: Yes. 7 THE SECRETARY: Senator Marchi. 8 SENATOR MARCHI: No. 9 THE SECRETARY: Senator 10 Markowitz. 11 SENATOR MARKOWITZ: No. 12 THE SECRETARY: Senator Maziarz. 13 SENATOR MAZIARZ: Aye. 14 THE SECRETARY: Senator Mendez. 15 SENATOR MENDEZ: No. 16 THE SECRETARY: Senator Nanula. 17 SENATOR NANULA: No. 18 THE SECRETARY: Senator Nozzolio. 19 SENATOR NOZZOLIO: Aye. 20 THE SECRETARY: Senator Onorato. 21 SENATOR ONORATO: No. 22 THE SECRETARY: Senator 23 Oppenheimer. 2488 1 SENATOR OPPENHEIMER: No. 2 THE SECRETARY: Senator Padavan. 3 SENATOR PADAVAN: Yes. 4 THE SECRETARY: Senator Paterson. 5 SENATOR PATERSON: No. 6 THE SECRETARY: Senator Present. 7 SENATOR PRESENT: Aye. 8 THE SECRETARY: Senator Rath. 9 SENATOR RATH: Aye. 10 THE SECRETARY: Senator Saland. 11 SENATOR SALAND: Aye. 12 THE SECRETARY: Senator Santiago. 13 SENATOR SANTIAGO: No. 14 THE SECRETARY: Senator Seabrook. 15 SENATOR SEABROOK: No. 16 THE SECRETARY: Senator Sears. 17 SENATOR SEARS: Aye. 18 THE SECRETARY: Senator Seward. 19 SENATOR SEWARD: Yes. 20 THE SECRETARY: Senator Skelos. 21 SENATOR SKELOS: Yes. 22 THE SECRETARY: Senator Smith. 23 SENATOR SMITH: Nay. 2489 1 THE SECRETARY: Senator Spano. 2 SENATOR SPANO: Aye. 3 THE SECRETARY: Senator 4 Stachowski. 5 SENATOR STACHOWSKI: Explain my 6 vote. 7 ACTING PRESIDENT KUHL: Senator 8 Stachowski to explain his vote. 9 SENATOR STACHOWSKI: I made some 10 points earlier. I would just like to read 11 briefly in explaining my vote a section from the 12 AFL-CIO opposition memo, and the points are that 13 the real issue on this hardship associated with 14 this controversial claim is "being forced into 15 public assistance is demeaning to injured 16 workers and their families. Demeaning workers 17 is a technique used to encourage such injured 18 workers not to pursue legitimate claims", and 19 it's for that reason that the law was developed 20 to shield Workers' Compensation claims from the 21 lien process. That's why the law is like it is, 22 to help injured workers to feel free to go after 23 the claims that they have justly -- should 2490 1 justly receive because of the fact they were 2 injured. I just find it amazing that all of 3 these people can put a bill up like this -- and 4 I can understand -- the only part of this bill I 5 could see that possibly could be considered 6 double dipping would be if the medical expenses 7 -- you were paid twice for those, but that's 8 not the problem in this bill. 9 The problem is if you have to go 10 on social services, people don't want to do 11 that. People that work every day for a living 12 don't want to do that. An iron worker that 13 falls, other members of the building trades that 14 get hurt on the job and get hurt seriously, they 15 don't want to go on social services but they 16 have to, and to tell them then that they got 17 maybe $10,000 because they lost their right arm, 18 that out of that $10,000 that their family is 19 expected to live on from then on, they should 20 pay whatever social services they got, that's a 21 disgrace. I'm sorry. People may be happy with 22 their vote, but I think this is a real sad day 23 in the Senate. 2491 1 I vote no. 2 ACTING PRESIDENT KUHL: Senator 3 Stachowski will be recorded in the negative. 4 The Secretary will continue to 5 call the roll slowly. 6 THE SECRETARY: Senator Stafford. 7 SENATOR STAFFORD: Aye. 8 THE SECRETARY: Senator Stavisky. 9 SENATOR STAVISKY: No. 10 THE SECRETARY: Senator Trunzo. 11 SENATOR TRUNZO: Yes. 12 THE SECRETARY: Senator Tully. 13 SENATOR TULLY: Aye. 14 THE SECRETARY: Senator Velella. 15 SENATOR VELELLA: Yes. 16 THE SECRETARY: Senator Volker. 17 SENATOR VOLKER: Yes. 18 THE SECRETARY: Senator Waldon. 19 (Negative indication.) 20 Senator Wright. 21 SENATOR WRIGHT: Aye. 22 ACTING PRESIDENT KUHL: The 23 Secretary will call the absentees. 2492 1 THE SECRETARY: Senator Babbush. 2 SENATOR BABBUSH: No. 3 THE SECRETARY: Senator DiCarlo. 4 SENATOR DiCARLO: Aye. 5 THE SECRETARY: Senator Larkin. 6 (There was no response.) 7 Senator Libous. 8 (There was no response.) 9 Senator Maltese. 10 SENATOR MALTESE: Aye. 11 ACTING PRESIDENT KUHL: Announce 12 the results. 13 THE SECRETARY: Ayes 34, nays 25. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 The Secretary will continue to 17 call the controversial calendar. 18 Senator Santiago, why do you 19 rise? 20 SENATOR SANTIAGO: Mr. President, 21 I would like the record to show that if I had 22 been in the chamber when Senate Bill 5395-A was 23 voted on, I would have voted in the negative. 2493 1 That's Calendar 182. That was yesterday. 2 ACTING PRESIDENT KUHL: Senator 3 Santiago, the calendar will -- the record will 4 reflect that had you been in the chamber 5 yesterday, you would have voted in the negative 6 on Calendar Number 182, as the record will so 7 reflect. 8 The Secretary will continue to 9 read the calendar. 10 THE SECRETARY: Calendar Number 11 399, by Senator Nozzolio, Senate Print 4923, an 12 act to amend the Executive Law, in relation to 13 appeals to the state Board of Parole. 14 SENATOR PATERSON: Explanation, 15 please. 16 ACTING PRESIDENT KUHL: Senator 17 Nozzolio, an explanation of Calendar Number 399 18 has been asked for by the Acting Minority 19 Leader, Senator Paterson. 20 SENATOR NOZZOLIO: Thank you, Mr. 21 President. 22 This measure reinstates -- it 23 closes an inequity in the law that unfairly has 2494 1 the burden of representation of indigent 2 parolees in the county of Cayuga, in terms of 3 bearing the entire cost by the county. 4 When the indigent counsel program 5 in Cayuga County was established, it was first 6 requested to represent parolees in connection 7 with their final revocation hearings and 8 appeals. It was assured to the county of Cayuga 9 that the state of New York would reimburse the 10 program 100 percent because it was a state 11 rather than local function. Although the 12 requirement for representation was included in 13 the Executive Law, reimbursement was not. This 14 simply reimburses the county for that duty. 15 ACTING PRESIDENT KUHL: Senator 16 Paterson. 17 SENATOR PATERSON: If Senator 18 Nozzolio would yield for a question. 19 SENATOR NOZZOLIO: Yes, Mr. 20 President. 21 ACTING PRESIDENT KUHL: The 22 Senator yields. 23 SENATOR PATERSON: Thank you so 2495 1 much, Senator Nozzolio. 2 As much as it reimburses the 3 county of Cayuga, what it really does is it 4 spreads the cost around to the other counties 5 for which the individual is incarcerated, am I 6 not correct? 7 SENATOR NOZZOLIO: Yes. 8 SENATOR PATERSON: Does this put 9 a burden on all of the counties? In other 10 words, are we taking a problem and just 11 spreading it out among other counties that are 12 now going to have to share the cost? 13 SENATOR NOZZOLIO: Senator 14 Paterson, it makes those counties with parolees 15 as their -- within that as responsible for the 16 cost of their representation. Cayuga County is 17 now bearing the entire cost of the region in an 18 inordinate, unfair fashion. So rather than say 19 it spreads the burden, frankly, it takes the 20 unfairness away from the current policy and it 21 presents it in a more fair, equitable and 22 appropriate way. 23 ACTING PRESIDENT KUHL: Senator 2496 1 Paterson. 2 SENATOR PATERSON: Thank you, 3 Senator. 4 Mr. President, these appeals are 5 now all held in Auburn - 6 SENATOR NOZZOLIO: Yes. 7 SENATOR PATERSON: -- in Cayuga 8 County? 9 SENATOR NOZZOLIO: Yes. 10 SENATOR PATERSON: So there 11 wouldn't be a desire to actually farm out where 12 the actual appeals are being held, would there? 13 SENATOR NOZZOLIO: It actually is 14 a cost savings to the state, David, if the - 15 SENATOR PATERSON: To have them 16 all in one county. 17 SENATOR NOZZOLIO: To have them 18 consolidate in the county, even though they may 19 be from around -- inmates all scattered across 20 the correctional facilities all across the 21 region. 22 Also, I should add parenthet 23 ically that when they're held in Cayuga County, 2497 1 even though the site is -- of the hearing is in 2 the county of Cayuga, the parolee may be located 3 30, 40, 50 miles away, necessitating counsel to 4 drive out to visit the indigent and in order to 5 represent them, that entails additional costs 6 that is also borne by the county of Cayuga. 7 SENATOR PATERSON: So now -- if 8 the Senator would continue to yield. So now - 9 ACTING PRESIDENT KUHL: Do you 10 continue to yield, Senator Nozzolio? 11 SENATOR NOZZOLIO: Yes, Mr. 12 President. 13 ACTING PRESIDENT KUHL: The 14 Senator continues to yield. 15 SENATOR PATERSON: When the 16 lawyer travels -- I'm sorry. When the lawyer 17 travels to Cayuga County, the county from which 18 the lawyer traveled will have to pay that 19 expense. 20 SENATOR NOZZOLIO: I'm sorry, 21 David. 22 SENATOR PATERSON: In other 23 words, the county will have to pay for the 2498 1 lawyer to travel to Cayuga to resolve this legal 2 proceeding. 3 SENATOR NOZZOLIO: Either that or 4 -- no, no, not at all, Senator Paterson. The 5 attorney still would be from the Cayuga County 6 indigent counsel program. They now would be 7 reimbursed by the state rather than have the 8 county bear the entire cost. 9 ACTING PRESIDENT KUHL: Senator 10 Paterson. 11 SENATOR PATERSON: Finally - 12 last question. Are there any lawyers that do 13 travel from the other counties to come to Cayuga 14 to handle these cases? 15 SENATOR NOZZOLIO: No, because 16 it's -- the county was given the responsibility 17 to represent the indigents, and as part of the 18 Cayuga County indigent counsel program, they 19 were told you must represent the indigent 20 parolee when, in fact, the indigent parolee was 21 from another county. 22 So, no, David, the Cayuga County 23 lawyers in the indigent counsel program are 2499 1 doing all the representation, all the work, all 2 the travel and the county of Cayuga is bearing 3 all the expense. 4 ACTING PRESIDENT KUHL: Senator 5 Paterson. 6 SENATOR PATERSON: I understand. 7 Thank you very much, Senator. 8 SENATOR NOZZOLIO: Thank you. 9 ACTING PRESIDENT KUHL: The 10 Secretary will read the last section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT KUHL: Call the 14 roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 61. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 Senator Larkin, why do you rise? 20 SENATOR LARKIN: Mr. President, I 21 was out of the chamber when Calendar Number 379, 22 by Senator Holland, was called and had I been in 23 the chamber, I would have voted yes. 2500 1 ACTING PRESIDENT KUHL: Senator 2 Larkin, the record will reflect that had you 3 been in the chamber when the roll call was 4 called on Calendar Number 379, that you would 5 have voted in the affirmative. 6 The Secretary will continue to 7 call the controversial calendar. 8 THE SECRETARY: Calendar Number 9 433, by Senator DeFrancisco, Senate Print 1972, 10 an act to amend the Criminal Procedure Law, in 11 relation to access to sealed records. 12 SENATOR PATERSON: Explanation. 13 ACTING PRESIDENT KUHL: Senator 14 DeFrancisco, an explanation of Calendar Number 15 433 has been asked for by the Acting Minority 16 Leader, Senator Paterson. 17 SENATOR DeFRANCISCO: This bill 18 provides for the procedure whereby an individual 19 agency or department that's charged with the 20 regulation of certain professionals, including 21 lawyers, teachers and the like that are listed 22 in the bill, to apply to the court for access to 23 sealed records upon notice to the individual 2501 1 about whom they request the information, and the 2 purpose of the bill is to provide disciplinary 3 agencies and regulatory agencies that are 4 concerned about maintaining the public trust - 5 maintaining the quality of professionals who 6 must have the public trust so that they have a 7 vehicle to do that. 8 SENATOR PATERSON: Mr. President, 9 with your permission and with - 10 ACTING PRESIDENT KUHL: Senator 11 Paterson. 12 SENATOR PATERSON: -- Senator 13 DeFrancisco's, I would like to clarify a couple 14 of the definitions in the legislation. 15 ACTING PRESIDENT KUHL: Senator 16 DeFrancisco, do you yield to a question? 17 SENATOR DeFRANCISCO: Yes, I do. 18 ACTING PRESIDENT KUHL: The 19 Senator yields. 20 SENATOR PATERSON: Thank you, 21 Senator. 22 My reading of this legislation 23 would -- since it amends the Criminal Procedure 2502 1 Law, would lead me to conclude that this only 2 applies to criminal cases. 3 SENATOR DeFRANCISCO: That's 4 correct. 5 SENATOR PATERSON: Thank you. 6 If the Senator would continue to 7 yield. 8 SENATOR DeFRANCISCO: Yes. 9 ACTING PRESIDENT KUHL: The 10 Senator continues to yield. 11 SENATOR PATERSON: Senator, can 12 you describe for me an extraordinary 13 circumstance whereby we would want to take a 14 look at the sealed documents? 15 SENATOR DeFRANCISCO: Well, the 16 -- I guess the key point in this whole issue is 17 the fact that a criminal standard is to prove a 18 case beyond a reasonable doubt, and it's 19 conceivable that an attorney representing a 20 client who -- and the attorney may have been 21 charged with embezzlement from a client's trust 22 fund or escrow account, and for some reason the 23 jury doesn't believe that beyond a reasonable 2503 1 doubt that the defendant is guilty. The fact 2 that there was an allegation and the fact that 3 there was some information that was generated in 4 the course of that investigation or in the 5 course of the lawsuit that may prove that the 6 individual maybe by not beyond a reasonable 7 doubt, but by a preponderance of the evidence, 8 the weight of the evidence, did do something 9 that was not in accordance with the fiduciary 10 duty of the attorney, under those circumstances, 11 I think the disciplinary agency should have the 12 opportunity to at least review that information. 13 Now, the procedural safeguard is 14 to provide -- to do it only by motion to a judge 15 and by due notice to the attorney in that case 16 who would have the opportunity to bring whatever 17 arguments that he or she wanted to, to the 18 presiding judge to deny the application to 19 review the records that had been sealed. 20 ACTING PRESIDENT KUHL: Senator 21 Paterson. 22 SENATOR PATERSON: Thank you, 23 Senator. 2504 1 I want to give you, if you'll 2 continue to yield - 3 SENATOR DeFRANCISCO: Sure. 4 SENATOR PATERSON: -- my 5 interpretation of what sealed records are and 6 ask you to comment. You see, I think that's 7 exactly why the record -- the criminal records 8 are sealed, because perhaps there was a 9 preponderance of the evidence, perhaps the 10 attorney should have been sued more than tried 11 in a criminal court, but because of the fact 12 that the attorney is not convicted under our 13 criminal standard, in the criminal records, we 14 seal them. 15 What I'm saying is my fear about 16 the legislation -- while I understand what 17 you're trying to accomplish is that we're 18 actually taking the civil standard and applying 19 it to a criminal case so, in other words, we're 20 almost creating a presumption criminally that 21 may have actually existed civilly but we're now 22 opening the records up so people can find it 23 out, contravening, in my opinion, what -- the 2505 1 whole idea of sealing records, the public policy 2 that formed it. 3 I just wanted you to give me your 4 idea of why the sealed records should be 5 opened. 6 SENATOR DeFRANCISCO: Well, 7 whenever you do any legislation, you're 8 balancing competing interests, and it seems to 9 me that the state has a genuine and legitimate 10 interest in making sure that professionals - 11 and that's all this deals with -- certain 12 professions that are regulated by the state, 13 that professionals are truly professionals and 14 they don't practice, whether it's law or some 15 other profession, in a manner that's unethical 16 and that's -- that could harm clients. 17 So in balancing that interest, 18 all that we're saying is that a court should 19 have the opportunity to review an application 20 by, say the state Education Department, to 21 determine -- concerning an attorney that they 22 may be investigating and to determine what the 23 circumstances were around that criminal 2506 1 prosecution and -- but a court would have to 2 review that, and I think balancing the competing 3 interest that we have a group of people that we 4 have to protect against unscrupulous 5 professionals that deserve some protection and 6 an agency that's got to investigate that, 7 balancing those interests, I think in this 8 situation, it is appropriate to allow for a 9 review, provided the proper procedural 10 safeguards are provided. 11 ACTING PRESIDENT KUHL: Senator 12 Paterson. 13 SENATOR PATERSON: Thank you, 14 Senator DeFrancisco. 15 Mr. President, on the bill. 16 ACTING PRESIDENT KUHL: Senator 17 Paterson, on the bill. 18 SENATOR PATERSON: Senator 19 DeFrancisco was very scrupulous in his 20 definitions and took a lot of care in the 21 description of what I think is the key issue 22 which is the balancing test that must be used 23 here. He clearly recognizes what the anxieties 2507 1 might be about abuse of this type of procedure, 2 and it is clear that he's trying to balance 3 them. 4 My fear is that the individuals 5 who will apply this legislation as it's passed 6 will not be as clear and will not exercise the 7 same kind of sensitivity to the freedoms that 8 are retained by sealing records, such as in a 9 case where an individual is adjudged on a 10 misdemeanor, for instance, to be unable to stand 11 trial, and so what we're really saying is the 12 person may have done it like a trespass, but it 13 may be that way because the person isn't fit to 14 go to trial, so we dismiss the charges. We seal 15 the record, and so years later now, the person 16 who is a professional has to have this part of 17 their life brought up when the court sealed the 18 records to try to shield it. 19 I think if Senator DeFrancisco 20 himself was the one making the decisions, we 21 would be all right, but I think that there are 22 times that there is a notion on the part of 23 agencies that we should know everything that was 2508 1 in a court record when our -- when we have 2 determined in the past that we want to seal 3 these records. 4 ACTING PRESIDENT KUHL: The 5 Secretary will read the last section. 6 THE SECRETARY: Section 3. This 7 act shall take effect immediately. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 61. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 Senator Skelos, that completes 15 the controversial calendar. 16 SENATOR SKELOS: Mr. President, 17 on behalf of Senator Bruno, I hand up the 18 following resolution amending the Senate rules 19 and ask that it be read and move for its 20 immediate adoption. 21 ACTING PRESIDENT KUHL: We'll 22 return to motions and resolutions. I'll ask the 23 Secretary to read. 2509 1 THE SECRETARY: Senator Bruno, 2 Senate resolution amending Section 1 of Rule VII 3 of the Senate rules, in relation to the 4 membership of certain standing committees. 5 RESOLVED, that Section 1 of Rule 6 VII of the Senate rules is amended to read as 7 follows: 8 Section 1, there shall be the 9 following standing committees which shall serve 10 and shall continue throughout the year: 11 To consist of 28 Senators: 12 Finance; 13 To consist of 18 Senators: 14 Banks, Codes, Judiciary and Rules; 15 To consist of 16 Senators: 16 Education; 17 To consist of 15 Senators: 18 Insurance, Racing, Gaming and Wagering and 19 Transportation; 20 To consist of 14 Senators: Crime 21 Victims, Crime and Correction and Environmental 22 Conservation; 23 To consist of 13 Senators: 2510 1 Commerce, Economic Development and Small 2 Business, Energy and Telecommunications, Health, 3 Higher Education, Housing and Community 4 Development, Labor and Tourism, Recreation and 5 Sports Development; 6 To consist of 12 Senators: 7 Aging, Alcoholism and Drug Abuse, Civil Service 8 and Pensions, Consumer Protection, Elections, 9 Investigations, Taxation and Government 10 Operations, Mental Health and Developmental 11 Disabilities and Veterans and Military Affairs; 12 To consist of ten Senators: 13 Agriculture, Children and Families and Cities; 14 To consist of nine Senators: 15 Corporations, Authorities and Commissions, Local 16 Government and Water Resources; 17 To consist of eight Senators: 18 Ethics and Social Services. 19 The Temporary President, the 20 Vice-president Pro Tempore, the Temporary 21 Majority Leader for Legislative Operations and 22 the Minority Leader and Deputy Minority Leader 23 shall be non-voting ex-officio members of all 2511 1 standing committees of the Senate of which they 2 are not actual members. 3 ACTING PRESIDENT KUHL: The 4 question is on the resolution. All those in 5 favor signify by saying aye. 6 (Response of "Aye".) 7 Opposed, nay. 8 (There was no response.) 9 The resolution is adopted. 10 Senator Skelos. 11 SENATOR SKELOS: Mr. President, 12 on behalf of Senator Bruno, I hand up the 13 following committee changes for filing. 14 ACTING PRESIDENT KUHL: The 15 committee changes are received and will be filed 16 in the record. 17 Senator Skelos, we have a report 18 of standing committees here. Also we have a 19 motion from Senator Marcellino, if you would 20 like to take that at the current time. 21 SENATOR SKELOS: Would you please 22 recognize Senator Marcellino. 23 ACTING PRESIDENT KUHL: The Chair 2512 1 recognizes Senator Marcellino. 2 SENATOR MARCELLINO: Mr. 3 President, on behalf of Senator Padavan, on page 4 number 14, I offer the following amendments to 5 Calendar Number 385, Senate Print Number 4507 6 and ask that said bill retain its place on the 7 Third Reading Calendar. 8 ACTING PRESIDENT KUHL: The 9 amendments to Calendar Number 385 are received 10 and adopted. The bill will retain its place on 11 the Third Reading Calendar. 12 Senator Skelos. 13 SENATOR SKELOS: We have a report 14 from standing committees. If we could turn to 15 reports of standing committees then. 16 ACTING PRESIDENT KUHL: We'll 17 return to reports of standing committees. I'll 18 ask the Secretary to read. 19 THE SECRETARY: Senator Maltese, 20 from the Committee on Elections, reports the 21 following bills: Senate Print 1861, by Senator 22 Farley, an act to amend the Election Law and the 23 State Finance Law, in relation to requiring 2513 1 proposition authorizing the creation of a state 2 debt; 3 4470, by Senator Johnson, an act 4 to amend the Election Law, in relation to 5 distributing the names of inactive voters to the 6 polling places in the county of Suffolk. All 7 bills ordered directly for third reading. 8 ACTING PRESIDENT KUHL: The bills 9 are ordered directly to third reading. 10 The Chair recognizes Senator 11 Skelos. 12 SENATOR SKELOS: Would you please 13 recognize Senator Marchi. 14 ACTING PRESIDENT KUHL: The Chair 15 recognizes Senator Marchi. 16 SENATOR MARCHI: Mr. President, 17 our procedures, our protocol and rules do not 18 permit us to advance resolutions that call on 19 Congress or bodies that are outside of our own 20 jurisdiction and beyond our own control, direct 21 control, in an attempt to keep the focus 22 properly in place on those things that we have 23 jurisdiction. However, it does not provide 2514 1 either - 2 ACTING PRESIDENT KUHL: Senator 3 Marchi. 4 SENATOR MARCHI: -- and it does 5 allow - 6 ACTING PRESIDENT KUHL: Senator 7 Marchi, excuse me. Are you asking permission to 8 make a statement, a unanimous statement, at this 9 time? Does anybody have an objection? 10 SENATOR MARCHI: Well, yes, the 11 formulation would be that Senator Bruno was 12 going to start, but I'll make that motion, yes. 13 ACTING PRESIDENT KUHL: All 14 right. Does anybody have an objection to 15 Senator Marchi making a statement at this time? 16 (There was no response.) 17 No objection being heard, Senator 18 -- the Chair recognizes Senator Marchi for the 19 position - 20 SENATOR MARCHI: Thank you again, 21 Mr. President. 22 ACTING PRESIDENT KUHL: -- for 23 making a statement. 2515 1 SENATOR MARCHI: We don't -- we 2 still have feelings and we are not insensitive 3 to events that take place outside our immediate 4 province, and there is nothing that exists in 5 our rules that would suffuse the expression - 6 that expression -- and that's my purpose in 7 getting up. 8 Senator Bruno would have spoken 9 to this subject very briefly before yielding to 10 me, and I'm not going to be long because the - 11 I believe the subject matter is well-known to 12 everyone in this chamber and is troublesome to 13 every member of this chamber and those who are 14 our guests, and that has to do with the conduct 15 of free elections in Taiwan. 16 It is a matter of common feeling 17 that the franchise -- the ballot -- is the 18 keystone that sustains the whole structure of a 19 free society. Without it, it deprives a society 20 of those elements which allow for change, which 21 allow for consultation and which recognizes the 22 inherent power of the people to have a 23 significant and decisive voice on the conduct of 2516 1 the affairs of that society. 2 The people of Taiwan have been 3 subjected to unconscionable pressures by the 4 massive presence of flotillas, aircraft and 5 other means of intimidation within visual sight 6 of the island of For... I was going to say 7 Formosa. I'm a little dated -- Taiwan, in the 8 Straits of Taiwan, and the President, to his 9 credit and to the American people and to the 10 Congress, giving full support, has dispatched a 11 carrier force to discourage any adventures in 12 that sector of the world that would frustrate 13 the conduct of free and open elections which are 14 scheduled to take place on March 23rd. 15 In saying the things that I've 16 said, that we are very, very displeased that - 17 without ritually repeating it, that any American 18 I've met, any individual that I've met is very 19 sympathetic to the effort of the People's 20 Republic -- the Republic of China to conduct 21 their elections free of intimidation, free of 22 coercion, and that this process be allowed to go 23 forward. 2517 1 When it does take place, I 2 believe the factor that we are present and in 3 the area -- not in the straits but in the area 4 immediately adjacent to the island of Taiwan 5 will have a sobering effect on many people and 6 certainly gives great credit to the people of 7 Taiwan that they are now engaged in very honest 8 colloquy and discussion about the conduct of the 9 public affairs of the island of Taiwan in the 10 future, and it will also have a very sobering 11 effect on the mainland, and it's to be sincerely 12 hoped that this example that is being furnished 13 and is enjoying a kind of auspices and certainly 14 discouragement to any adventurous spirit that 15 might prompt the mainland. 16 There are elements in the 17 mainland who had expressed themselves so freely 18 at T'ien An Men Square, a great personal 19 sacrifice and some of them are still paying the 20 penalty, but this is a spirit that is growing in 21 dimensions within the mainland itself, and the 22 fact that they are making these maneuvers, 23 firing missiles and doing everything that's 2518 1 offensive in a brutalitarian way to discourage 2 the exercise of the franchise shows that they 3 are very nervous about it because they know that 4 it has a very direct impact -- this example does 5 have a very direct impact on the people of the 6 People's Republic of China. So that I am just 7 satisfied to express this sentiment because I 8 believe it reflects the sentiment of everyone 9 within the range of my voice and certainly 10 outside. 11 We prayerfully hope that this 12 spirit and this ability to conduct this election 13 and all of the colloquy and discussions that 14 precede it take place in an orderly manner and 15 that they will make their judgment according to 16 their own likes as to what is in the best 17 interests of that island, and it is my prayerful 18 hope, and I think it is the prayerful hope of 19 Americans generally, because even in a fractious 20 year such as this where we have political 21 confrontation, we have a unanimity of view on 22 the value of that ballot and of the franchise 23 and of the people exercising it, that it have a 2519 1 salutary effect and encourage those forces that 2 are within China itself that are aspiring to the 3 same experience and that will accelerate and 4 speed up the process by which freedom and a free 5 ballot will be entertained on the mainland and 6 that China perhaps will be united once the 7 circumstances or the pre-conditions are 8 established, the foundations laid for the 9 joinder of a society that can function freely 10 and openly in the spirit that is being 11 exemplified in the island of Taiwan. 12 Thank you, Mr. President. 13 ACTING PRESIDENT KUHL: The Chair 14 recognizes Senator Skelos. 15 SENATOR SKELOS: Is there any 16 housekeeping at the desk, Mr. President? 17 ACTING PRESIDENT KUHL: There is 18 none. 19 SENATOR SKELOS: There being no 20 further business, I move we adjourn until 21 Monday, March 25th, 1996, at 3:00 p.m. sharp, 22 intervening days to be legislative days. 23 ACTING PRESIDENT KUHL: Without 2520 1 objection, the Senate will stand adjourned until 2 Monday, March 25th, at 3:00 p.m.. 3 (Whereupon, at 12:16 p.m., the 4 Senate adjourned.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23