Tuesday, May 14, 1996

4945 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 May 14, 1996 10 3:05 p.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 4946 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. I'd ask all of you to rise, including 6 those people in the gallery, and join with me in 7 saying the Pledge of Allegiance, and please 8 remain standing for the invocation. 9 (The assemblage repeated the 10 Pledge of Allegiance to the Flag.) 11 We're very pleased to have the 12 Reverend Peter G. Young of the Blessed Sacrament 13 Church of Bolton Landing to deliver the 14 invocation. 15 Reverend Young. 16 REVEREND PETER YOUNG: Let us 17 pray. May we pray for the officers and for the 18 sheriffs and for correction officers too who are 19 remembered in special ceremonies on this most 20 important day of honor. These dedicated public 21 servants are deserving of our prayers so they 22 may compassionately monitor the behavior of 23 those that are hungry, those that are homeless, 4947 1 those who are denied dignity and those who have 2 no hope, that this legislative body will improve 3 the condition of both the custodians and those 4 who are in custody, that their condition and our 5 compassionate efforts will remove the causes of 6 their suffering. We ask You this now and 7 forever more. Amen. 8 ACTING PRESIDENT KUHL: Thank 9 you. 10 Reading of the Journal. 11 THE SECRETARY: In Senate, 12 Monday, May 13th. The Senate met pursuant to 13 adjournment. The Journal of Sunday, May 12th, 14 was read and approved. Upon motion, the Senate 15 adjourned. 16 ACTING PRESIDENT KUHL: Hearing 17 no objection, the Journal stands approved as 18 read. 19 Presentation of petitions. 20 Messages from the Assembly. 21 Messages from the Governor. 22 Reports of standing committees. 23 Reports of select committees. 4948 1 Communications and reports from 2 state officers. 3 Motions and resolutions. 4 The Chair recognizes Senator 5 Farley. 6 SENATOR FARLEY: Thank you, Mr. 7 President. 8 On behalf of Senator Cook, would 9 you please remove the sponsor's star from 10 Calendar 412. 11 ACTING PRESIDENT KUHL: At the 12 request of the sponsor, Calendar Number 412 is 13 unstarred. 14 SENATOR FARLEY: On behalf of 15 Senator Goodman, on page 18, I offer the 16 following amendments to Calendar 493, Senate 17 Print 3040, and I ask that that bill retain its 18 place on the Third Reading Calendar. 19 ACTING PRESIDENT KUHL: The 20 amendments to Calendar Number 493 are received 21 and adopted. The bill will retain its place on 22 the Third Reading Calendar. 23 Senator Tully. 4949 1 SENATOR TULLY: Thank you, Mr. 2 President. 3 I believe I have a resolution at 4 the desk. May I have that resolution read in 5 its entirety, after which I would like to make a 6 few brief comments. 7 ACTING PRESIDENT KUHL: There is 8 a privileged resolution. 9 Senator DeFrancisco. 10 SENATOR DeFRANCISCO: Mr. 11 President, I'd suggest that before we read that 12 privileged resolution, that on behalf of Senator 13 Marchi, I would be able to call an immediate 14 meeting of the Finance Committee in Room 332. 15 ACTING PRESIDENT KUHL: There 16 will be an immediate meeting of the Senate 17 Finance Committee in the Majority Conference 18 Room, Room 332. Immediate meeting of the Senate 19 Finance Committee in Room 332, the Majority 20 Conference Room. 21 Thank you for the announcement, 22 Senator DeFrancisco. 23 There is a privileged resolution, 4950 1 Senator Tully, at the desk. 2 Senator DeFrancisco. 3 SENATOR DeFRANCISCO: Please read 4 the privileged resolution. 5 ACTING PRESIDENT KUHL: I'll ask 6 the Secretary to read the privileged resolution 7 in its entirety. 8 THE SECRETARY: By Senator Tully, 9 Legislative Resolution commending the 1996 10 Senior Class of Henry Viscardi School of 11 Albertson, New York, upon the occasion of their 12 visit to the New York State Legislature on 13 Tuesday, May 14th, 1996. 14 WHEREAS, it is the sense of this 15 legislative body that the character and quality 16 of life in this great Empire State is abundantly 17 enriched by organizations which selflessly serve 18 to promote the health and welfare of the 19 citizenry. 20 This legislative body is justly 21 proud to commend the 1996 Senior Class of Henry 22 Viscardi School, Albertson, New York upon the 23 occasion of their visit to the New York State 4951 1 Legislature on Tuesday, May 14th, 1996. 2 The Henry Viscardi School is a 3 New York State chartered, tuition-free school 4 educating more than 220 children between the 5 ages of 3 to 21 and with severe orthopedic 6 disabilities, over two-thirds of the school's 7 graduates go on to higher education, which is 8 more than three times the national average of 20 9 percent. 10 The Henry Viscardi School 11 provides a full range of educational, remedial, 12 therapeutic, social and recreational services 13 provided through preschool, kindergarten, 14 elementary and secondary school programs and 15 extended-year summer programs. 16 The National Center for 17 Disabilities Services founded by Henry Viscardi 18 had its humble beginnings in 1952 operating out 19 of a garage in West Hempstead and now occupies a 20 14-acre wooded campus in Albertson, New York 21 serving over 4,000 adults and children annually. 22 The Center is a non-profit agency 23 dedicated to empowering people with disabilities 4952 1 to be active, independent and self-sufficient 2 participants in our society. It accomplishes 3 its missions through education, training, 4 research, leadership and example. 5 The Center is internationally 6 known and hosts visitors from around the world 7 who come to learn about its successes in 8 preparing individuals for meaningful careers. 9 Its visitors have included the Emperor and 10 Empress of Japan. 11 The Center received one of the 12 highest honors last September 14th, 1995 when it 13 received the United States Department of Labor 14 Exemplary Public Interest Contribution Award. 15 This award is based on nationwide competition 16 and is presented annually to organizations who 17 exhibit unparalleled leadership in assisting 18 disadvantaged Americans into competitive 19 employment. 20 The Center's work is conducted 21 through the Henry Viscardi School, the Career 22 and Employment Institute which evaluates, trains 23 and counsels adults with disabilities and the 4953 1 Research and Training Institute which conducts 2 research on the education, employment and career 3 development of persons with disabilities. 4 The members of the 1996 Senior 5 Class of the Henry Viscardi School include 6 Daniel Abroff, Stephen Anderson, Tara Baird, 7 Jeffrey Betts, Jennifer Bryan, Ben Chan, Rachael 8 Eriksen, Keith Gaynor, Michael Macaluso, Michael 9 Muller, Wesley Nepomuceno, Jon Paul Povoromo, 10 Dorsey Ross, Jason Sawyer, Tyree Simpson, Kelly 11 Smith and Meredith Stanley; now, therefore, be 12 it 13 RESOLVED, that this legislative 14 body pause in its deliberations to express its 15 appreciation to Henry Viscardi School for 16 meeting the special needs of hundreds of 17 children in New York State and to extend a warm 18 welcome to the faculty and students on their 19 visit to Albany; and be it further 20 RESOLVED, that copies of this 21 resolution, suitably engrossed, be transmitted 22 to the students and faculty of Henry Viscardi 23 School, Willets Road, Albertson, New York. 4954 1 ACTING PRESIDENT KUHL: Senator 2 Tully, on the resolution. 3 SENATOR TULLY: Thank you, Mr. 4 President. 5 Today we have the honor of 6 hosting Dr. Andrew Rothstein and the Senior 7 Class of the Henry Viscardi School as our guests 8 in the chamber. The Henry Viscardi School in 9 Albertson, New York specializes in educating 10 students with severe physical disabilities from 11 throughout the New York Metropolitan region. 12 This year, the senior class 13 decided to come to Albany to witness the New 14 York State Senate in action. These students 15 whose special brand of strength and determin 16 ation has enabled them to overcome their 17 disabilities and instead focus on their 18 abilities and talents, are among the most gifted 19 students that I have ever met. 20 This year's class has 17 21 graduating seniors, all of whom have made 22 post-graduate plans. Some have made plans to go 23 to college and some have made plans for a 4955 1 transition into vocational training programs. 2 Whatever their intention, knowing these young 3 adults in the school from which they come, I'm 4 sure that each will be an important and 5 productive member of society. 6 Mr. President, I hope all of my 7 colleagues will join me in welcoming the Senior 8 Class of the Henry Viscardi School to Albany. 9 ACTING PRESIDENT KUHL: Senator 10 Marcellino on the resolution. 11 SENATOR MARCELLINO: Yes, Mr. 12 President. I rise to speak on behalf of the 13 Henry Viscardi School. At Senator Tully's 14 request, I was given a tour, amongst others, of 15 this very fine institution, and I had a chance 16 to meet Mr. Viscardi himself, who is well and we 17 wish him well and many, many more years of 18 active services of our communities. 19 The Viscardi school is a gem. 20 It's one of those institutions that makes Long 21 Island one of the finest places in our state to 22 live and raise a family, and it's a pleasure to 23 rise in support of this resolution, and I thank 4956 1 Senator Tully for bringing it to the attention 2 of this chamber. 3 ACTING PRESIDENT KUHL: Is there 4 any other Senator wishing to speak on the 5 resolution? 6 Senator Hannon on the resolution. 7 SENATOR HANNON: Yes. I just 8 wanted to join with Senator Tully, join with the 9 seniors today. Congratulations on your 10 achievements. Best wishes to the future. As 11 Senator Marcellino said, you are a part of a 12 school that does us all proud, and we're 13 delighted you took the time to come and join us 14 here and make us aware of what a fine 15 institution you have in Long Island. 16 Thank you. 17 ACTING PRESIDENT KUHL: Senator 18 Smith, on the resolution. 19 SENATOR SMITH: Thank you, Mr. 20 President. 21 I too would like to join with my 22 colleagues in welcoming the Henry Viscardi 23 School to Albany. Last year I had the pleasure 4957 1 of meeting one of the students, Dean Maiorano, 2 who then became my scholarship awardee for 1995 3 who has gone on to college. 4 Dean is doing a wonderful job, 5 and I expect the same from each and every one of 6 you because you are capable of doing whatever it 7 is you want to do, and it's because of the Henry 8 Viscardi School that you will be able to go on 9 and have a productive life, and we thank them 10 for all that they do. 11 ACTING PRESIDENT KUHL: Any other 12 Senator wishing to speak on the resolution? 13 (There was no response.) 14 This resolution was previously 15 adopted in the chamber on April 30th, but on 16 behalf of Senator Tully and all the Senators, 17 Senator Bruno, we welcome the 1996 Senior Class 18 from Henry Viscardi School of Albertson, New 19 York here in the chamber today. Hope you enjoy 20 your day and thank you for sharing a little bit 21 of your life with us. Thank you. 22 (Applause) 23 Senator DeFrancisco. 4958 1 SENATOR DeFRANCISCO: I believe 2 there's a privileged resolution at the desk by 3 Senator Spano, and I'd move that the title be 4 read and move for its adoption. 5 ACTING PRESIDENT KUHL: Senator 6 DeFrancisco, there is a privileged resolution at 7 the desk. 8 I'll ask the Secretary to read 9 the title. 10 THE SECRETARY: By Senator Spano, 11 Legislative Resolution welcoming Eastchester 12 Police Officer Richard Morrissey to the state 13 Capitol and expressing sincerest sorrow upon the 14 death of his heroic comrade, Police Officer 15 Michael Frey of Yonkers, New York. 16 ACTING PRESIDENT KUHL: Senator 17 Spano, on the resolution. 18 SENATOR SPANO: Thank you, Mr. 19 President. 20 My colleagues, on March 21st, we 21 all remember too vividly the headlines across 22 New York State when a police officer was killed 23 in Westchester County, and it was that day that 4959 1 it was Eastchester Town Police Officer Rich 2 Morrissey and his fellow officer, Michael Frey, 3 who responded to what they thought was initially 4 just a routine police call about a man acting 5 suspiciously in a neighborhood. 6 Moments after Officers Frey and 7 Morrissey arrived, a sniper opened fire from a 8 second floor window of his house in Eastchester. 9 Officer Frey was shot and killed in that 10 incident, and Officer Morrissey was shot from 11 that gunfire and has since been recovered, and 12 the gunman, of course, then killed himself some 13 14 hours after ambushing these police officers. 14 I'm pleased that Officer 15 Morrissey is with us today in the chamber. I 16 can say that with him, with his wife Mary, with 17 his beautiful daughter Margaret, Officer 18 Morrissey, you are a living symbol of every 19 police officer who every day puts a badge and a 20 gun and uniform on and is just not sure what 21 kind of day they're going to have, and that 22 there are people in this community and 23 communities all across this state and nation 4960 1 where trouble and danger just lurk even from 2 what is the most seemingly routine of calls that 3 they may be responding to. 4 So it's my pleasure, Mr. 5 President, my colleagues, to offer this 6 resolution on this day where we memorialize the 7 ultimate sacrifice that police officers have 8 made in this state of New York and to say that 9 we join with the Attorney General today who 10 presented Officer Morrissey with the Law and 11 Order Award, along with seven other police 12 officers in this state, and I'll ask all of you 13 to please join me in recognizing a person who's 14 a real hero, Officer Richard Morrissey, his wife 15 Mary and their daughter Margaret. 16 Thank you, Mr. President. 17 (Applause) 18 ACTING PRESIDENT KUHL: Any other 19 Senator wishing to speak on the resolution? 20 (There was no response.) 21 The question is on the 22 resolution. All those in favor signify by 23 saying aye. 4961 1 (Response of "Aye".) 2 Opposed, nay. 3 (There was no response.) 4 The resolution is adopted. 5 Senator DeFrancisco. 6 SENATOR DeFRANCISCO: Mr. 7 President, at this time may we adopt the 8 Resolution Calendar. 9 ACTING PRESIDENT KUHL: The 10 question is to adopt the Resolution Calendar. 11 All those in favor signify by saying aye. 12 (Response of "Aye".) 13 Opposed, nay. 14 (There was no response.) 15 The Resolution Calendar is 16 adopted. 17 Senator DeFrancisco, there are a 18 couple of substitutions at the desk we could 19 take up at this time, if you desire. 20 SENATOR DeFRANCISCO: Please make 21 the substitutions. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the substitutions. 4962 1 THE SECRETARY: On page 55, 2 Senator Maltese moves to discharge from the 3 Committee on Rules, Assembly Bill Number 5501-B 4 and substitute it for the identical Senate Bill 5 3082. 6 On page 55, Senator Maltese moves 7 to discharge from the Committee on Rules, 8 Assembly Bill 5502-B and substitute it for the 9 identical Senate Bill 6994. 10 ACTING PRESIDENT KUHL: The 11 substitutions are ordered. 12 SENATOR DeFRANCISCO: Mr. 13 President, at this time would you read the 14 non-controversial calendar. 15 ACTING PRESIDENT KUHL: The 16 Secretary will read the non-controversial 17 calendar. 18 THE SECRETARY: On page 13, 19 Calendar Number 333, by - 20 SENATOR GOLD: Lay it aside, 21 please. 22 THE SECRETARY: -- Senator 23 Volker, Senate Print 6041, an act to amend the 4963 1 Criminal Procedure Law, in relation to the 2 authority of police officers to investigate 3 criminal activity. 4 ACTING PRESIDENT KUHL: Lay the 5 bill aside. 6 THE SECRETARY: Calendar Number 7 631, by Senator Levy, Senate Print 6592-A, an 8 act to amend the Vehicle and Traffic Law, in 9 relation to authorizing and directing the 10 Department of Motor Vehicles to develop and 11 implement a demonstration project. 12 ACTING PRESIDENT KUHL: The 13 Secretary will read the last section. 14 THE SECRETARY: Section 4. This 15 act shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 49. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 THE SECRETARY: Calendar Number 23 636, by Senator Hoblock, Senate Print 6736, an 4964 1 act to amend the Transportation Law, in relation 2 to regulation of motor buses. 3 ACTING PRESIDENT KUHL: The 4 Secretary will read the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 SENATOR GOLD: Lay it aside. 8 ACTING PRESIDENT KUHL: Lay the 9 bill aside. 10 THE SECRETARY: Calendar Number 11 651, by Senator Holland, Senate Print 5789-A, an 12 act to amend the General Municipal Law, in 13 relation to indexing the interest rate on 14 judgments. 15 SENATOR GOLD: Lay it aside. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside. 18 THE SECRETARY: Calendar Number 19 671, by Senator Holland, Senate Print 201, an 20 act to amend the Vehicle and Traffic Law, in 21 relation to optional equipment for omnibuses. 22 SENATOR PATERSON: Lay it aside. 23 ACTING PRESIDENT KUHL: Lay the 4965 1 bill aside. 2 THE SECRETARY: Calendar Number 3 686, by Senator Maziarz, Senate Print 6893, an 4 act to amend the Highway Law, in relation to 5 designating a portion of the state highway 6 system. 7 SENATOR PATERSON: Lay it aside. 8 ACTING PRESIDENT KUHL: Lay the 9 bill aside. 10 THE SECRETARY: Calendar Number 11 692, by Senator Libous, Senate Print 4472, an 12 act to amend the Penal Law, in relation to 13 increasing the penalties for repeat convictions 14 of assault. 15 SENATOR PATERSON: Lay it aside. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside. 18 THE SECRETARY: Calendar Number 19 728, by Member of the Assembly Vitaliano, Assem 20 bly Print 9530, an act to amend the Retirement 21 and Social Security Law, in relation to 22 retirement allowance option. 23 ACTING PRESIDENT KUHL: The 4966 1 Secretary will read the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT KUHL: Call the 5 roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 50. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 743, by Senator Maltese, Senate Print 490, an 12 act to amend the Public Authorities Law, in 13 relation to providing for free passage for 14 active duty military personnel. 15 SENATOR PATERSON: Lay it aside. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside. 18 THE SECRETARY: Calendar Number 19 745, by Senator LaValle, Senate Print 3508, an 20 act to amend the Vehicle and Traffic Law, in 21 relation to distinctive plates for widows or 22 widowers. 23 ACTING PRESIDENT KUHL: The 4967 1 Secretary will read the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT KUHL: Call the 5 roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 51. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 754, by Senator Kuhl, Senate Print 1716, an act 12 to amend the General Business Law, in relation 13 to automobile auctioneers. 14 ACTING PRESIDENT KUHL: The 15 Secretary will read the last section. 16 THE SECRETARY: Section 2. 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 51. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 4968 1 THE SECRETARY: Calendar Number 2 755, by Senator Farley, Senate Print 6129, an 3 act to repeal Section 392-a of the General 4 Business Law, relating to the manufacture and 5 sale of used or secondhand hats. 6 ACTING PRESIDENT KUHL: The 7 Secretary will lay the bill aside. 8 THE SECRETARY: Calendar Number 9 756, by Senator Nozzolio, Senate Print 6589, an 10 act to amend the General Business Law, in 11 relation to unlawfully installing or maintaining 12 a video recording device. 13 ACTING PRESIDENT KUHL: The 14 Secretary will read the last section. 15 THE SECRETARY: Section 3. This 16 act shall take effect on the first day of 17 November. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 52. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 4969 1 THE SECRETARY: Calendar Number 2 760, by Senator Seward, Senate Print 6140-A, an 3 act to amend the Public Services Law, in 4 relation to property transfers requiring 5 commission approval. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the last section. 8 THE SECRETARY: Section 3. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 THE SECRETARY: Ayes 53. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 761, by Senator Seward, Senate Print 6143, an 17 act to amend the Public Services Law, in 18 relation to cellular telephone services. 19 SENATOR PATERSON: Lay it aside. 20 ACTING PRESIDENT KUHL: Lay the 21 bill aside. 22 THE SECRETARY: Calendar Number 23 768, by Senator Velella, Senate Print 6961, an 4970 1 act to amend the Public Authorities Law, in 2 relation to directing the Metropolitan 3 Transportation Authority to direct. 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 53. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 776, by Senator Saland, Senate Print 1434-B, an 16 act authorizing the Commissioner of General 17 Services to sell certain land to the city of 18 Beacon. 19 SENATOR PATERSON: Lay it aside. 20 ACTING PRESIDENT KUHL: There is 21 a home rule message at the desk, but the bill is 22 laid aside for the day. 23 THE SECRETARY: Calendar Number 4971 1 779, by Senator Goodman, Senate Print 6305, an 2 act to amend the Tax Law, in relation to 3 utilizing machine-sensible technologies to 4 receive, record and maintain tax. 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 53. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 780, by Senator Goodman, Senate Print 6369, an 17 act to amend the Tax Law, in relation to 18 authorizing the filing of state tax warrants. 19 ACTING PRESIDENT KUHL: The 20 Secretary will read the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 4972 1 roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 53. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 782, by Senator Seward, Senate Print 6538-A, an 8 act to amend the Tax Law, in relation to the 9 collection by public utility of the tax imposed 10 by Section 189 thereof. 11 ACTING PRESIDENT KUHL: The 12 Secretary will read the last section. 13 SENATOR DeFRANCISCO: Lay that 14 bill aside for the day. 15 ACTING PRESIDENT KUHL: Lay the 16 bill aside for the day. 17 THE SECRETARY: Calendar Number 18 794, by Senator LaValle, Senate Print 7231, an 19 act to amend the Education Law, in relation to 20 requiring higher education report cards. 21 SENATOR GOLD: Lay it aside. 22 ACTING PRESIDENT KUHL: Lay the 23 bill aside. 4973 1 THE SECRETARY: Calendar Number 2 795, by Senator Larkin, Senate Print 7018, an 3 act to repeal Section 2327 of the Insurance Law, 4 in relation to establishment of rates for 5 product liability insurance. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes 53. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 796, by Senator Alesi, Senate Print 7270, an act 18 to amend the Insurance Law, in relation to 19 satellite offices. 20 ACTING PRESIDENT KUHL: The 21 Secretary will read the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 4974 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 53. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 903, by Senator Nozzolio, Senate Print 7092, an 9 act to amend the Real Property Law, in relation 10 to rules and regulations of mobile homes. 11 SENATOR NOZZOLIO: Lay it aside 12 for the day. 13 ACTING PRESIDENT KUHL: Lay the 14 bill aside for the day at the request of the 15 sponsor. 16 Senator DeFrancisco, that 17 completes the non-controversial reading. 18 SENATOR DeFRANCISCO: May we 19 please have the reading of the controversial 20 calendar. 21 ACTING PRESIDENT KUHL: The 22 Secretary -- Senator Hoffmann, why do you rise? 23 SENATOR HOFFMANN: Yesterday I 4975 1 was out of the chamber, Mr. President, when a 2 vote was taken on Calendar Number 1215. I would 3 request that the record reflect that had I been 4 in the chamber, I would have voted in the 5 negative. 6 Thank you. 7 ACTING PRESIDENT KUHL: Without 8 objection, and hearing no objection, the record 9 will reflect that had Senator Hoffmann been in 10 the chamber yesterday when Calendar Number 1215 11 was called up for a vote, that she would have 12 voted in the negative. 13 The Secretary will now read the 14 controversial calendar beginning with Calendar 15 Number 333, by Senator Volker. 16 THE SECRETARY: On page 13, 17 Calendar Number 333, by Senator Volker, Senate 18 Print 6041, an act to amend the Criminal 19 Procedure Law, in relation to the authority of 20 police officers to investigate criminal 21 activity. 22 SENATOR VOLKER: Mr. President. 23 ACTING PRESIDENT KUHL: Senator 4976 1 Volker, multiple explanations have been asked 2 for on Calendar Number 333. 3 SENATOR VOLKER: Mr. President, 4 this bill is known as the Police and Public 5 Protection Act of 1996. You know, as we were 6 out this afternoon at the police memorial 7 service, I was thinking about some of the people 8 who I have known over the years who have said 9 exactly what I think was said at that memorial 10 service, and that is that legislators and judges 11 have a lot of time to contemplate the law and 12 its ramifications and the individual -- and the 13 actions of law enforcement officers who are on 14 the scene of some incident when the law 15 enforcement officer, in many cases, has only a 16 matter of minutes or sometimes even seconds to 17 make a split second decision that may cost him 18 his life and also may determine whether, in many 19 cases, evidence that he may be seeking or trying 20 to determine is either allowed in or excluded, 21 but let me say having said that, that as 22 legislators -- and I don't have to tell anybody 23 here -- it's our duty to make decisions based on 4977 1 rational, legal terms and try to protect not 2 only the law enforcement officers but also the 3 people who those law enforcement officers are 4 dealing with. 5 This bill, the Police and Public 6 Protection Act of 1996, is a bill that was sent 7 to us as a program bill from the Governor back 8 in February, lest there be anybody that says 9 that it's been thrust upon us in the middle of 10 the night or something of that nature and no 11 one's had a chance to contemplate it. It was 12 reported out of our committee some time ago, and 13 as I assured my colleagues on the committee, 14 there would be ample time to review the bill and 15 to study it and make some determinations. 16 We're now in May, and I think 17 it's time to do that, and interestingly enough, 18 some of the things that were discussed in the 19 committee, we have hashed over and we have 20 researched ourselves. For instance, probably 21 the main argument in our committee over this 22 bill related to Section 4 of the bill that some 23 of the members of the committee felt in a sense 4978 1 was abrogating the authority of the Court of 2 Appeals as regards to the Fourth Amendment of 3 the Constitution, exclusion of evidence, and as 4 I discussed since then with some of the members 5 of the committee, we have researched that 6 ourselves and we have come up with even more 7 cases relating to this matter, and what this is 8 is the issue of good faith in exclusion of 9 evidence, suppression of evidence. I think some 10 of you may have heard it on a national level 11 where there's been a great deal of discussion 12 about the exclusionary rule. 13 What we found was that there were 14 a number of Court of Appeals cases that dealt 15 with this very issue, in other words, our own 16 Court of Appeals, that stated that it is the 17 Legislature's prerogative to make decisions on 18 issues where the -- rather than the judiciary 19 could make decisions where the intent of the 20 Constitution is clear. 21 So that everybody understands, 22 the article of the Constitution that is involved 23 here that is discussed is exactly -- it is 4979 1 identical to the federal constitutional 2 language, and there has been several cases that 3 have indicated that the Court of Appeals -- of 4 late that have indicated that the Court of 5 Appeals has decided that in certain cases that 6 the state Constitution, despite the fact that 7 its language is identical to the federal 8 Constitution, should be interpreted, shall we 9 say more conservatively or liberally, depending 10 on your position. 11 What we found is that there are 12 several Court of Appeals cases, one as late as 13 1985 that basically said that there were some 14 attempts by constitutional conventions to abro 15 gate the provision -- this constitutional pro 16 vision and, in effect, say that the state con 17 stitutional provisions should be determined to 18 be more restrictive than the federal Constitu 19 tion, and those constitutional challenges as 20 part of a constitutional convention were turned 21 down and that the Court of Appeals in several 22 decisions said it's really up to the Legislature 23 to make decisions in this area where the clear 4980 1 meaning of the Constitution has been stated. 2 Let me just start out -- and I 3 will -- because there is a great deal of 4 material involved here and just let me go 5 through it. There are three main sections to 6 this bill, and I know that many of you have gone 7 over this, and rather than go on for too long, 8 I've tried to break it down into those three 9 sections. 10 Section 2 of the bill, which is 11 the opening section, relates to encounters 12 between police and suspected criminals or 13 suspects on the street, and in all other states 14 and in the federal courts, encounters between 15 police and suspected criminals are analyzed by 16 the courts on a three-tier system, "to approach 17 and ask questions, take such other appropriate 18 actions that are not inconsistent with 19 constitutional limitations. The police are not 20 required to justify their actions on the basis 21 of facts indicating criminal conduct." 22 In New York, the Court of Appeals 23 recently has established a four-tier system. 4981 1 "Police officers must have a founded suspicion 2 that criminality is afoot before they ask more 3 pointed questions of an individual." It's been 4 difficult to determine exactly what that means. 5 This bill would say that such 6 questions when a police officer -- when a police 7 officer makes these questions, he must have an 8 objective, credible reason not necessarily 9 indicative of criminality. In effect, the bill 10 gives police officers the common law right of 11 inquiry that they have in virtually every state 12 in the Union. This is not New York embarking 13 off on its own. This is basically giving New 14 York police officers, law enforcement people 15 basically the same rights, the same authority as 16 police officers in every state in the Union. 17 Section 3 of the bill which - 18 Subdivision (3), this section would codify in 19 statute a decision handed down ironically 20 recently by the Court of Appeals on May 2nd, 21 1996 in People versus Mimms. This bill in the 22 Court of Appeals requires that a court hearing 23 on a suppression motion must make findings on 4982 1 the record that a defendant had a legitimate 2 explanation -- expectation of privacy in the 3 place or item that was searched, identify the 4 object of the defendant's expectation of privacy 5 and determine whether the circumstance would 6 lead society to regard defendant's expectation 7 as reasonable. What that is is a test that is 8 being used virtually all over the country, 9 probably is -- maybe even a stricter test is 10 being used in some parts of the country to 11 determine the legality of searches. 12 Finally, Section 4 -- which has 13 -- some have termed the most controversial - 14 this section directs that the courts follow 15 prior decisions of the Court of Appeals which 16 interpreted Section 12 of Article I of the New 17 York Constitution. The language of Article I, 18 Section 12, is exactly the same as the language 19 in the Fourth Amendment of the U.S. 20 Constitution. 21 In People versus Richters 22 Jewelers decided in 1943 and more recently, 23 People versus Johnson in 1985, Court of Appeals 4983 1 traced the history of that language in Article 2 I, Section 12, and Judge Titone in his decision 3 said "Exclusion of evidence is not a command of 4 the New York State Constitution, Article I, 5 Section 12. Rather, it is a judicially declared 6 rule of evidence which the Legislature is free 7 to abrogate." 8 This bill implements the 9 statement of Judge Titone -- or implements the 10 statement of Judge Titone and directs the courts 11 to follow the Fourth Amendment of the U.S. 12 Constitution in determining a suppression 13 motion. 14 There's a reason why I wanted to 15 read this into the record also because I want to 16 make it clear that there is no attempt here to 17 somehow be flippant with the rights of anybody. 18 There's no attempt here to go way beyond the 19 normal bounds of constitutional limits or an 20 attempt to say that the Court of Appeals 21 shouldn't have any authority to deal with sup 22 pression issues, and it shouldn't have authority 23 to deal with "stop and frisk" and things of that 4984 1 nature. There is a reasonable basis behind this 2 bill, and the reasonable basis is that what is 3 needed is a reasonable approach, not only to 4 confrontations on the street but also to 5 suppression of evidence because the times demand 6 it. The nation as a whole is in a -- is in sync 7 with this kind of legislation. I think what it 8 does is, it's designed not only to protect the 9 individuals in society, individuals who may, in 10 fact, be engaged in criminal conduct, but 11 obviously it's designed also to protect the 12 public and the law enforcement people who have 13 to enforce the statutes of this state. 14 ACTING PRESIDENT KUHL: The Chair 15 recognizes Senator Waldon. 16 SENATOR WALDON: Thank you very 17 much, Mr. President. 18 Would the chairman of our Codes 19 Committee, the learned gentleman from Niagara 20 Falls, Niagara-Buffalo area, yield to a question 21 or two? 22 SENATOR VOLKER: Certainly. 23 ACTING PRESIDENT KUHL: Senator 4985 1 Volker, do you yield? 2 SENATOR VOLKER: Certainly. 3 ACTING PRESIDENT KUHL: The 4 Senator yields. 5 SENATOR VOLKER: I don't know how 6 learned I am, but I'll yield. 7 SENATOR WALDON: What was that? 8 I'm sorry, Senator. 9 ACTING PRESIDENT KUHL: The 10 Senator yields, Senator. 11 SENATOR VOLKER: I said I didn't 12 know how learned I was, but I'll certainly 13 yield. 14 SENATOR WALDON: Well, I'll 15 assure you, Senator, I worked with you now for a 16 number of years and your reputation precedes 17 you. You are very learned. 18 Something you said in your 19 opening remarks, before I begin the line of 20 questioning that I have, if I may, I would like 21 to bring to your attention because sometimes we 22 say things that we don't mean in the passion of 23 discussions and debate on this floor. You said, 4986 1 and I quote, "Section 2 of the bill denies - 2 deals with encounters between police and 3 suspected criminals", but the bill doesn't say 4 anything about the persons who may be stopped 5 under this bill are, in fact, suspected 6 criminals. If I read it correctly, it does not 7 say that at all. Was that a faux pas? 8 SENATOR VOLKER: I don't think 9 it's a faux pas. I think that when a law 10 enforcement officer stops someone on the street, 11 there is always the possibility that that 12 person's conduct could lead to some sort of 13 criminal conduct. I think what you are saying 14 to me is -- and we're not accusing anybody 15 necessarily of a crime. What we're saying is 16 we're trying to give law enforcement officers a 17 reasonable ability to deal with the possibility 18 or the probability, in some cases, that someone 19 may have maybe then or maybe at some immediate 20 time participated in some conduct that could be 21 considered to be unlawful. It doesn't 22 necessarily mean that that person at that 23 immediate time is committing a crime, but as you 4987 1 and I are very well aware, the general law of 2 this country has said that we give within 3 reasonable bounds the ability of law enforcement 4 people to make reasonable discussions with 5 people who may -- who may be in that kind of 6 situation. 7 SENATOR WALDON: If I may 8 continue, Mr. President. 9 ACTING PRESIDENT KUHL: Senator 10 Volker, do you continue to yield? 11 (Senator Volker nods head.) 12 ACTING PRESIDENT KUHL: The 13 Senator continues to yield. 14 SENATOR WALDON: But the bill 15 says, if I am correct, Senator Volker, that the 16 bill would allow police to approach a person 17 based upon an objective, credible reason, not 18 necessarily indicative of criminality, and so I 19 just don't understand your statement, and that 20 was your statement was written down just as you 21 said it, what the bill prescribes because the 22 bill does not say that the person has to 23 evidence any outward manifestation of 4988 1 criminality. 2 SENATOR VOLKER: That's right. 3 SENATOR WALDON: Can you rectify 4 the statement of the bill and your - 5 SENATOR VOLKER: No. I think 6 what I'm saying is that they don't necessarily 7 have to evince outward manifestations of 8 criminality, but that does not mean -- I think 9 you know why I'm saying this because obviously 10 what the law enforcement officer is attempting 11 to do is to obtain some sort of information or 12 to discuss with that person something that has 13 caught the eye of the law enforcement officer. 14 That is right. It may have nothing to do with 15 criminality. On the other hand, it may also, 16 and it may have to do, in fact, with the public 17 safety of some kind. I suppose you could say 18 that that is also the charge of a police officer 19 and I would accept that, but I think that what 20 we are trying to do here is create a situation 21 where a law enforcement officer is not put in a 22 position where he or she is absolutely unable to 23 question someone for fear that anything that is 4989 1 discussed or obtained or whatever could not be 2 used in any criminal case. 3 SENATOR WALDON: Would the 4 gentleman continue to yield? 5 ACTING PRESIDENT KUHL: Senator 6 Volker, do you continue to yield? 7 (Senator Volker nods head.) 8 ACTING PRESIDENT KUHL: The 9 Senator continues to yield. 10 SENATOR WALDON: I had thought 11 about asking questions along the line that I'm 12 going to jump to, Senator Volker, much later in 13 our dialogue, but because of what just 14 transpired, I would like to go to a different 15 area right away, and that is this: Are you 16 aware of the National Institute of Justice? 17 SENATOR VOLKER: Certainly. 18 SENATOR WALDON: Are you aware of 19 a statistical report -- or a report which 20 contains certain statistics regarding arrests 21 and the ability of officers in police 22 departments across this country to make arrests 23 that occurred or which was published in 1983? 4990 1 SENATOR VOLKER: No, I don't 2 think I really am aware of it. 3 SENATOR WALDON: If I may then, 4 let me just read this to you - 5 SENATOR VOLKER: Certainly. 6 SENATOR WALDON: -- so that not 7 only you but I and our colleagues will be 8 edified. 9 The statistical phenomenon is 10 reported by a 1983 National Institute of Justice 11 study that examined policing in seven 12 jurisdictions around the United States. In each 13 of these jurisdictions, a small percentage of 14 police officers between 8 and 19 percent 15 accounted for 50 percent of the arrests 16 resulting in conviction. 17 In Manhattan, for example, 18 approximately eight percent of the police 19 officers were responsible for 50 percent of the 20 arrests resulting in conviction. The study 21 further concluded that the superior performance 22 of the high conviction officers was related to 23 more rigorous procedures and techniques for 4991 1 obtaining evidence and locating witnesses, 2 techniques and procedures that could be 3 implemented more widely with better training, 4 and let me just cut to the chase to another 5 page. This is a quote again, "To set the record 6 straight and to demythologize the war on crime, 7 one must take a hard look at some numbers. 8 First and foremost, one must recognize that of 9 all adult felony crimes that are committed in 10 this country, FBI data show that only about 20 11 percent result in arrest. This arrest rate for 12 all reported adult felonies has been consistent 13 over the last three decades, the last 30 years. 14 Moreover, of the 20 percent of felony crimes 15 that do result in arrest, the Justice Department 16 figures for 1988 reveal that in New York County, 17 more than 4 of 10, 44 percent of the adult 18 felony arrests were either dismissed by the 19 courts or subject to a decision not to prosecute 20 by district attorneys." Then it furthers states 21 -- oh, here it is -- "The Bureau of Justice 22 Statistics data show that in 1988, only two 23 percent of felony arrests in Manhattan were 4992 1 declined for prosecution as a result of due 2 process violation problems." 3 Now that I've given you this 4 information -- and I will have my office give 5 you a full copy of this report, Senator. I'm 6 sorry I couldn't do that before we got here, 7 though I would wish to share everything with 8 you, simply because I just got it myself, and so 9 I apologize for that. However, recognizing if 10 this information from the bureau and from 11 Washington is accurate, that the need to do what 12 we're doing with this Police and Public 13 Protection Act may, in fact, not exist, and I'm 14 going to ask you the question because 8 to 19 15 percent of the police are really doing the job, 16 and what we need to do is to elevate the 17 capability of all of the police officers to 18 function in that manner so that 80 percent of 19 those crimes reported will now perhaps result in 20 arrests, and we don't have to be too truly - 21 really concerned about this exclusionary piece 22 that we're going to deal with today because 23 capable police officers would make the necessary 4993 1 arrests. Do you find it possible to agree with 2 anything that I've said in here? 3 SENATOR VOLKER: Well, first of 4 all, I - 5 SENATOR WALDON: I love to listen 6 to the smile on your face. You don't know; it 7 makes my day. 8 SENATOR VOLKER: I would agree 9 with virtually everything you say on most 10 occasions. Let me just say this, Senator, and 11 you as a former law enforcement officer, as I 12 am, know full well that there is a good reason 13 why a small percentage of police officers make a 14 good many of the arrests because they are in a 15 position to do that. Most police officers - 16 most police arrests are not made by 17 happenstance. They're made by police officers 18 who are in a position -- for instance, many of 19 the sweeps that are made in the city of New York 20 are done by a small percentage of police 21 officers who are involved in squads that make 22 those arrests on the street. Certainly training 23 is a help, but one of the problems has been - 4994 1 and let me say about that study -- it was a very 2 interesting study. Of course, it was made a 3 long time ago. It was made, what, 13 years ago, 4 and the law since then in this state I think 5 unfortunately has taken a turn away from what 6 was the fact in 1983, and what we're trying to 7 do in this statute is get a law back to where, 8 in effect, I think many would say we were better 9 off in 1983, and that is in a situation where 10 suppression is not as easy as it is in this 11 state, where law enforcement people won't feel 12 that they are in a position where they can't 13 question virtually anybody on the street without 14 totally objective evidence of criminality and in 15 -- where they'll be able to feel much more 16 comfortable that they can do something which is 17 reasonable. 18 When I was a police officer, one 19 of the biggest complaints -- and that was many 20 years ago -- one of the biggest complaints was, 21 of many police officers, that they had to 22 understand too many technical things, and the 23 reason they said that was that there were many 4995 1 court cases that were throwing out arrests that 2 were made by these law enforcement officers on 3 what they called technicalities. In some cases, 4 by the way, let me say, they were valid 5 technicalities. In other cases, I think they 6 were questionable, but what I used to tell many 7 of the law -- and I went to law school while I 8 was a police officer -- I would tell them, Look, 9 you do what's reasonable. You do what's 10 reasonable under the circumstances, which is the 11 best way to deal with these kind of things. The 12 problem that many of us see who have been in the 13 street and who have represented people as well 14 as, in effect, prosecuted them is that a police 15 officer, such as in the Torres case where he 16 found the gun and the drugs, a police officer 17 did what was reasonable under the circumstances 18 and a judge said, Well, maybe it wasn't exactly 19 reasonable because the fellow really probably 20 wasn't in danger even though this guy had a gun 21 because he didn't have ready access to it. It 22 was a case that this fellow had in his 23 possession, things of that nature. 4996 1 Senator, I think what we're 2 trying to deal with in this bill -- and you can 3 give me all the statistics you want and I 4 understand that -- it may say that certain 5 police officers maybe are doing and arresting 6 and making more arrests. That doesn't mean 7 other police officers are not capable. It may 8 also mean that in our society, we need to do 9 more things of this nature that give our police 10 officers the tools and the ability to deal with 11 the criminal element so that instead of only 12 arresting and only convicting a small percentage 13 of those that commit these felonies, we're able 14 to do it on a much better basis and we're able 15 to make convictions stick. 16 SENATOR WALDON: Mr. President. 17 ACTING PRESIDENT KUHL: Senator 18 Waldon. 19 SENATOR WALDON: Will the Senator 20 continue to yield? 21 ACTING PRESIDENT KUHL: Senator 22 Volker, do you continue to yield? 23 (Senator Volker nods head.) 4997 1 ACTING PRESIDENT KUHL: The 2 Senator continues to yield. 3 SENATOR WALDON: Thank you very 4 much, Mr. President. 5 Senator, you're not saying that 6 there should be a lesser standard in regard to 7 the encounters on the street or there should be 8 a lesser standard in regard to training. 9 Historically, the police of this nation have 10 always aspired to be the best. We call New York 11 City's "the finest", and we're not saying that 12 in your response that the standards should be 13 less than or we should not properly train our 14 officers or they should not always aspire to the 15 very highest professional standard in their 16 capacity as police officers. You're not saying 17 that, are you? 18 SENATOR VOLKER: I'm absolutely 19 not saying that. I'm saying we have the best 20 trained and in most cases, the best equipped law 21 enforcement officers in the United States of 22 America in the state. I am saying that we not 23 only should continue that training but should 4998 1 make it even better, and I am not saying that we 2 should lower any standards, but I am saying that 3 the standards that we set should not be so 4 overly technical and so ambiguous that a 5 reasonable law enforcement officer couldn't 6 possibly understand them and, in effect, that 7 standard should be so strict as to be beyond any 8 state -- in certain cases, any state in the 9 Union. That doesn't really make sense, not just 10 for police officers, but for the people of New 11 York State who these police officers are 12 protecting. 13 SENATOR WALDON: Would the 14 gentleman continue to yield, Mr. President? 15 SENATOR VOLKER: Certainly. 16 ACTING PRESIDENT KUHL: The 17 Senator continues to yield. 18 SENATOR WALDON: Senator Volker, 19 it is my understanding that everything we do, 20 even in this great chamber, everything that is 21 done in this nation emanates from a sole 22 source. In the inception of this nation, we 23 wrote a great document, the Constitution, and 4999 1 that Constitution is the fundamental governing 2 document for this nation, and really all of the 3 standards that we set, all of the standards we 4 aspire to really somehow are connected to that 5 original document, which is the bedrock of the 6 United States, and early on in this nation's 7 history, there was a case, Marbury versus 8 Madison. I'm sure you recall that from your 9 days in law school. Can you tell us what that 10 case stands for? 11 SENATOR WALDON: Well, I think 12 the rights of -- okay. Is this going to - 13 SENATOR WALDON: Is Senator 14 Leichter going to pitch in for you on this? 15 SENATOR VOLKER: I think to boil 16 it down, what you're talking about is the right 17 of the states to make determinations -- and the 18 right of the federal government, but also the 19 right of states to make determinations by 20 themselves but, of course, that stat... that 21 case also, as you well know, did uphold the 22 right of the federal Constitution to oversee 23 things and, as you said and I happen to agree 5000 1 with you, that the bedrock is the Constitution 2 of the United States, but it's absolutely true 3 that we have the right as an individual state to 4 make certain decisions but in keeping with the 5 federal Constitution, and I think that's what - 6 I think that's what you're getting to, and I 7 agree with that. I don't think there's anything 8 in this bill that changes that. 9 SENATOR WALDON: If I may, Mr. 10 President. 11 ACTING PRESIDENT KUHL: Senator 12 Volker, do you continue to yield? 13 SENATOR VOLKER: Certainly. 14 ACTING PRESIDENT KUHL: The 15 Senator continues to yield. 16 SENATOR WALDON: I was really 17 listening intently for separation of powers, but 18 being that it did not emanate, I will put it on 19 the ether myself, and under the doctrine of 20 separation of powers, are there not limitations 21 on each branch of government and if you recall 22 that such is the case, which branch of 23 government is specifically mandated to interpret 5001 1 and apply the law? 2 SENATOR VOLKER: Senator, the 3 branch of government that is mandated to 4 interpret is -- in this state is the courts, 5 obviously, but let me tell you something, 6 Senator. I happen to agree with that. Remember 7 when I read my statement in the beginning about 8 the -- this bill and its relationship to the law 9 of this state, I read you various Court of 10 Appeals decisions and various decisions by the 11 courts of this state that are reflected in this 12 bill, and the reason I did that was that I 13 happen to agree -- and I probably was being a 14 little facetious in not -- I knew exactly what 15 you were talking about, the separation of 16 powers, but what we have done here is not, as I 17 think has been alleged by some people, to 18 totally abrogate the Court of Appeals. There's 19 no way we can do that. We are a separate 20 institution, but what we have done here, what 21 the Governor's bill does and what the bill that 22 I sponsor here does is to attempt to deal with 23 some decisions of the Court of Appeals that have 5002 1 made changes that this Legislature I think has 2 the right to make decisions on and that there 3 are Court of Appeals cases, the highest court in 4 this land and in this state and the Supreme 5 Court of the United States has said that we have 6 the right to make both under the federal and the 7 state Constitutions. So that separation of 8 powers or not, we are in a position where these 9 decisions can be made here logically, legally, 10 and I think rightfully to protect not only law 11 enforcement officers but obviously, more 12 importantly, to protect the people of this 13 state. 14 SENATOR WALDON: Mr. President, 15 may I continue? 16 ACTING PRESIDENT KUHL: Senator 17 Volker, do you continue to yield? 18 SENATOR VOLKER: Sure. 19 ACTING PRESIDENT KUHL: The 20 Senator continues to yield. 21 SENATOR WALDON: Senator, when 22 you spoke earlier about the Courts of Appeals 23 cases, you mentioned, I believe Torres and 5003 1 perhaps Holmes. I'm not sure. There were four 2 -- three or four cases you mentioned. I have 3 here a whole slew of "bad cop" cases, but I 4 don't think we're talking about "bad cop" cases 5 or really the three cases in terms of search and 6 seizure that you mentioned. 7 I think the issue that we're 8 really trying to address today, at least from my 9 perspective, is the separation of powers, is 10 whether or not one branch of government will 11 dictate the rhythm of other branches of 12 government. 13 Recently as I read in the press, 14 the Governor criticized Judge Duckman. He 15 removed District Attorney Robert Johnson, and 16 he's done some other things in regard to the 17 Executive Branch, in my opinion, intruding into 18 the work of other areas of government, 19 specifically precluded by the separation of 20 powers mandate, and I was just wondering if you 21 have an opinion in regard to that. Could -- and 22 I respectfully will accept whatever your answer 23 is. I'm not here to put you on the spot other 5004 1 than for us to discourse, but could the 2 Governor's recent actions regarding Judge 3 Duckman, regarding D.A. Johnson be characterized 4 as intimidation, as violative of the separation 5 of powers? That's the real question. 6 SENATOR VOLKER: Let me just say, 7 I think we may be getting a little bit far 8 afield from the bill, but let me say this: I 9 think what the Governor was saying in the 10 Duckman, as well as the Johnson case was that - 11 was not the issue of whether they had the power 12 or the authority. That's clear. The issue of 13 the separation of powers is very clear. The 14 reason I mentioned the cases and the 15 jurisdiction when we started was to show that we 16 are not abrogating the authority of the Court of 17 Appeals to make decisions but as a Legislature, 18 we have not only the authority but the right to 19 set policy and to make decisions based on the 20 Constitution of this state and the Governor, by 21 the way, has a responsibility as the chief 22 executive officer to express himself where he 23 believes that not the judges are making bad 5005 1 decisions necessarily, but whether they're not 2 necessarily following the law or following their 3 oath as an elected or appointed official. 4 I think the thing that bothered 5 the Governor in the Johnson case was not the 6 question of whether the district attorney in 7 that case decided whether the death penalty or 8 the life without parole or whatever should be - 9 was the statement by the district attorney that 10 he didn't believe that he should ever have the 11 death penalty or should ever use it, and the 12 question that the Governor I think expressed was 13 the issue of whether that person was violating, 14 in effect, the law, that is was not following 15 the law, and I think in the Duckman case -- and 16 as you know, ultimately he referred it to the 17 Commission on Judicial Conduct -- I think he was 18 concerned that the Commission on Judicial 19 Conduct might not follow through with its 20 responsibilities, and I think that's where I 21 think the Governor interjected. 22 It seems to me -- and I am very, 23 very reluctant as a legislator, as I know 5006 1 Senator Lack is as chairman of Judiciary, to get 2 involved in these kind of issues, except for one 3 thing. As I told a friend of mine from the City 4 who is with the New York City Bar, unfortunately 5 for us, we are the ones who are elected by the 6 people of the state of New York -- fortunately, 7 not unfortunately, but it is our responsibility 8 if someone we believe is not following their 9 responsibilities, not necessarily whether 10 they're right or wrong in their decisions, but 11 if they're not following their responsibilities, 12 it seems as if it's our responsibility to try to 13 make sure that those individuals do follow the 14 responsibilities. 15 In this bill, I think what we are 16 doing is attempting to speak out as -- for the 17 people of the state of New York that we think 18 that some decisions may not have been appropri 19 ate and that under our power as a Legislature, 20 that we can make these decisions and should make 21 these decisions. We're not abrogating the power 22 of the Court of Appeals. We are directing the 23 law in a way that I think is in the best 5007 1 interests of the people of this state, and I 2 think we have not only the right to do it, but I 3 think we have the responsibility. 4 SENATOR WALDON: Mr. President, 5 if I may continue. 6 ACTING PRESIDENT KUHL: Senator 7 Volker, do you continue to yield? 8 SENATOR VOLKER: Certainly. 9 ACTING PRESIDENT KUHL: The 10 Senator continues to yield. 11 SENATOR WALDON: Senator, I think 12 I heard a message to the Court of Appeals in 13 what you just said. I don't know if that's 14 appropriate behavior by those of us who sit in 15 this legislative chamber, but let me share a 16 quote with you that I think speaks to the 17 essence of Al Waldon's perception of the court. 18 This is a quote from the great Justice Felix 19 Frankfurter, and it says his words. 20 "The Supreme Court's authority 21 to possess neither the purse nor the sword 22 ultimately rests on sustained public confidence 23 in its moral sanction. Such feeling must be 5008 1 nourished by the court's complete detachment in 2 fact and appearance from political entanglements 3 and by abstention from injecting itself into the 4 clash of political forces and political 5 settlements." 6 If I may, Senator Volker, if I 7 extend that credo, the statement by Justice 8 Frankfurter to our Court of Appeals, could we 9 not characterize the Governor's action and, in 10 fact, our action if this one-house bill were to 11 become the law of the state of New York as 12 violating what Justice Frankfurter said in these 13 very significant words? 14 SENATOR VOLKER: Senator, first 15 of all, let me maybe start out just by answering 16 the question directly. I have immense respect, 17 obviously, for Justice Cardozo. I happen to 18 agree entirely - 19 SENATOR WALDON: Justice 20 Frankfurter. 21 SENATOR VOLKER: Or Justice 22 Frankfurter. Cardozo is another one. I know. 23 I'm aware. I happen to agree with that 5009 1 assessment. I do not believe that's what we are 2 doing here in any way, shape, form or manner. 3 However, let me follow up by saying that 4 "political" is an interesting word. I don't 5 think the Governor was challenging the right of 6 judges to make decisions or the kind of 7 decisions they made. What the Governor was 8 challenging was -- in one case with a district 9 attorney and in another case with a judge was 10 the issue of the propriety of how those 11 decisions were arrived at and whether the person 12 -- the individual followed the procedures that 13 were mandated under the law and correctly 14 applied those procedures. 15 I do not believe -- and by the 16 way, you'd best be careful of the one-house bill 17 nature of this. It's very possible, I think, 18 that a facsimile of this bill may still have a 19 chance in the Assembly. I don't -- I'm not 20 convinced this is necessarily a one-house bill 21 because I think that the impetus of this 22 proposal is much stronger than I think maybe 23 both of us realize, but I do believe that this 5010 1 bill is not by any means a challenge to the 2 Court of Appeals but maybe a challenge to us all 3 to look at the state of the law in this state 4 and make decisions not based on some sort of 5 technical interpretation of the world out there 6 but on the real world of protections, not just 7 for police officers obviously, but for the 8 individuals involved, but looking at what the 9 Court of Appeals itself has said about itself 10 and about the Legislature, not overriding or 11 overruling the direction of the Court of Appeals 12 except where it may have moved in a direction 13 that is in violation or in abrogation of what 14 the clear meaning of the Legislature was. 15 We passed a statute here last 16 year -- I think it was last year. I'm pretty 17 sure it was last year, Senator -- that changed 18 the -- changed -- in effect, changed the court 19 decision on drug possession, and the reason was 20 that it was the interpretation of this 21 Legislature and the Governor that a court 22 decision was not in keeping with what -- the 23 clear meaning of a legislative statute, which 5011 1 was passed in this Legislature years back in 2 both houses and signed by the then governor, 3 that a decision by the Court of Appeals was not 4 in keeping with the clear meaning of that 5 statute and we rewrote the statute, in effect, 6 and said, Here's what the meaning is, and the 7 Governor -- I believe you voted for that bill as 8 I did. The Governor signed that bill and, to my 9 knowledge, the Court of Appeals has made no 10 attempt to challenge that interpretation because 11 upon our passing a second statute that basically 12 said, Here's what we meant in the first place 13 and your interpretation of it was not what the 14 clear meaning of the statute was, I think we 15 have every right to do that, and I think the 16 Court of Appeals has acknowledged our right to 17 do that. So I don't think we're doing anything 18 that abrogates the Court of Appeals' authority. 19 SENATOR WALDON: Mr. President, 20 would the gentleman continue to yield? 21 ACTING PRESIDENT KUHL: Senator 22 Volker, do you continue to yield? 23 SENATOR VOLKER: Sure. 5012 1 ACTING PRESIDENT KUHL: The 2 Senator continues to yield. 3 SENATOR WALDON: Senator, thank 4 you very much for your -- okay. Can we go now? 5 SENATOR VOLKER: Go ahead. I'm 6 sorry. 7 SENATOR WALDON: Was that Ryan? 8 SENATOR VOLKER: Ryan. You have 9 a much better memory than I do. People versus 10 Ryan. 11 SENATOR WALDON: Senator, I just 12 wanted to cover a couple of points in the bill, 13 some of which we've discussed outside of the 14 chamber, and I've recently obtained some 15 information, but one I was not able to obtain 16 information on. Do you know of any definition 17 for "bad faith"? I did not find one. 18 SENATOR VOLKER: "Bad faith", I 19 think - 20 SENATOR WALDON: As depicted in 21 the bill. 22 SENATOR VOLKER: No. I don't 23 think the bad faith -- by the way, the "bad 5013 1 faith" word is used, I believe by the Supreme 2 Court and is in federal statutes. I don't think 3 there is any actual definition. I think it's 4 another one of those words of art or phrases of 5 art that have been used in the law and that have 6 not been specifically identified. My counsel 7 says the totality of the circumstances 8 determines good and bad faith, and I don't have 9 a specific definition, yes. 10 SENATOR WALDON: Senator, the 11 proposed bill speaks to an officer in a public 12 place, and I since looked up because we had a 13 conversation about could someone come into your 14 home, and under 240 of the CPL, the lobby and 15 stairwell of New York City Housing Authority 16 projects are considered public places; 17 therefore, it seems to me that the police could 18 go into the lobby, and in the projects -- I 19 lived in one -- there are apartments on the 20 first floor right off of the lobby. You step 21 into the lobby, there's an apartment right here 22 in some of them, an apartment right there to 23 your right. So those are public places and 5014 1 under this bill, the police could then make an 2 intrusion into the person's home as I understand 3 it. 4 SENATOR VOLKER: No, Senator. 5 SENATOR WALDON: If I may 6 continue, Mr. President. 7 SENATOR VOLKER: If I might 8 follow up on that. I disagree, and the reason 9 is because the issue of the dwelling is -- is a 10 very clearly defined piece of the law. The fact 11 that you could enter into -- and that's true, 12 and I think that's by statute that we declared 13 lobbies of buildings -- of public buildings or 14 apartment buildings to be public places, and 15 specifically we did that, I believe because of 16 potential problems involving intoxicated persons 17 and disorderly persons, and so forth, if my 18 recollection is correct -- dating way back years 19 ago, if my recollection is correct, but that 20 would have no meaning, as far as the actual 21 dwelling places because there is no place that 22 I'm aware of any place in the law that would say 23 a dwelling, whether it's adjacent to a foyer or 5015 1 whatever it is, could ever be declared to be a 2 public place. Dwellings are specifically 3 excluded from the public place provisions, and 4 in that statute, by the way -- and I vaguely 5 remember passing it many years ago -- we were 6 pretty specific as to what would be considered a 7 public place for that very reason, so that no 8 one could interpret that statute to mean you 9 could walk into somebody's house, arrest them 10 for public intoxication or disorderly conduct or 11 whatever based on the fact that their own 12 dwelling was a public place. 13 SENATOR WALDON: Mr. President, 14 may I continue? Would the gentleman continue 15 to - 16 ACTING PRESIDENT KUHL: Senator 17 Volker, do you continue to yield? 18 (Senator Volker nods head.) 19 ACTING PRESIDENT KUHL: The 20 Senator continues to yield. 21 SENATOR WALDON: Thank you, Mr. 22 President. Thank you, Senator Volker. 23 Senator, I wish I had your 5016 1 confidence that some zealous police officer - 2 over-zealous police officer might not -- if not 3 properly trained, as I suggested moments ago, 4 ten, fifteen moments ago in our dialogue, that 5 the bottom line is this should not be the 1996 6 Police and Public Protection Act that we're 7 dealing with. We should be dealing with the 8 1996 Police Training Act to bring everyone up to 9 the standard where their behavior would be such 10 that even those who are in the squad would have 11 to be a little anxious because the guys in the 12 street would be making as many arrests as they 13 were, those who are assigned to just fundament 14 ally make arrests. I think that would be of 15 great assistance to us. 16 I don't think that there will be 17 no exceptions to the interpretation that the 18 lobby is not a place that will allow them to 19 invade someone's dwelling even though the law 20 may be very clear about that, but what I really 21 want to do now is ask a couple of questions, if 22 I may, which I'm sure you know the answers to, 23 but I want to set -- I want to accomplish 5017 1 something here, if you will permit me to follow 2 this train of thought. 3 How many people are in New York 4 State's prisons? 5 SENATOR VOLKER: Excuse me. In 6 New York State prison? 7 SENATOR WALDON: Yes. 8 SENATOR VOLKER: About 70,000, a 9 little bit under 70,000, in the state itself, 10 prisons, just about 69-, about 70-. 11 SENATOR WALDON: Mr. President, 12 may I continue? 13 ACTING PRESIDENT KUHL: Senator 14 Volker, do you continue to yield? 15 SENATOR VOLKER: Sure. 16 ACTING PRESIDENT KUHL: The 17 Senator continues to yield. 18 SENATOR WALDON: Senator Volker, 19 how many are in our local jails? 20 SENATOR VOLKER: Oh, I am really 21 not sure. I believe almost as many, if I'm 22 not - 23 SENATOR WALDON: Would 90,000 5018 1 sound like - 2 SENATOR VOLKER: You mean in the 3 local jails? I would think it's at least - 4 SENATOR WALDON: It is about 5 90,000, Senator. 6 SENATOR VOLKER: George tells me 7 it's 89,786. He just counted them. 8 SENATOR WALDON: You know, George 9 knows - 10 SENATOR VOLKER: Right. I think 11 it's somewhere between 70- and 90-. 12 SENATOR WALDON: -- about numbers 13 and things. He really knows. 14 SENATOR VOLKER: Absolutely. 15 SENATOR WALDON: Can you tell us, 16 if you know, Senator Volker, the racial makeup 17 of New York State's prison population? 18 SENATOR VOLKER: I believe the - 19 the last that I saw -- and I -- my recollection 20 is it was about 60 percent. I think my last 21 recollection, it was somewhere around 60 percent 22 to 65 percent minority, if I'm not mistaken. 23 Maybe even a little bit higher. You're talking 5019 1 about New York State as a state? 2 SENATOR WALDON: The state's 3 prison population. 4 SENATOR VOLKER: I think it was 5 -- it seems to me it was 60-. I'm not sure. I 6 really haven't looked at it lately. 7 SENATOR WALDON: I'm not 8 absolutely sure myself, Senator, but I think 9 that blacks occupy 12 percent of the state's 10 population, Hispanics, 11 percent, 11.3 percent, 11 and blacks are 50 to 55 percent of the state's 12 prison population and the Latino community has 13 33 percent of that number which would put us 14 somewhere around 88 percent -- 85 to 88 15 percent. That may or may not be accurate, but 16 if I may, Mr. President -- if I may continue. 17 SENATOR VOLKER: Sure. 18 ACTING PRESIDENT KUHL: Senator 19 Volker, do you continue to yield? 20 SENATOR VOLKER: Certainly. 21 ACTING PRESIDENT KUHL: The 22 Senator yields. 23 SENATOR WALDON: Are you aware of 5020 1 the recent report by Mr. Schectman from CJS in 2 regard to racial disparities? 3 SENATOR VOLKER: If you mean the 4 report -- one of the reports that was put out 5 recently that was one of the few reports that we 6 have seen that indicates any kind of racial 7 disparity -- and that was in the paper. It was 8 distributed to a whole bunch of people back in 9 October, and the media characterized it as a 10 secret report even though it was distributed to 11 about 350 or 360 people and did show some 12 indication of possible racial disparity -- and 13 by the way, that's the first one that DCJS has 14 done. DCJS didn't do it. The person who did it 15 did show some variables in racial disparity, but 16 I have to tell you, we checked it out and since 17 you bring it up, there were some real questions 18 about the criteria that was used in that report, 19 but it was a report that was authorized 20 initially by the Cuomo administration and did 21 show some potential disparity, but as is usual 22 in those cases and being from the death penalty 23 era, I can tell you that fluctuations of reports 5021 1 are pretty easy in this area, but it was a 2 legitimate report that showed some disparity, 3 not a lot, but some disparity in the criminal 4 justice area. 5 SENATOR WALDON: Mr. President, 6 may I continue? 7 ACTING PRESIDENT KUHL: Senator 8 Volker, do you continue to yield? 9 SENATOR VOLKER: Sure. 10 ACTING PRESIDENT KUHL: The 11 Senator continues to yield. 12 SENATOR WALDON: Senator Volker, 13 if I ever go to a ball, I want to take you 14 because you really know how to dance. I want 15 you to know that. 16 What effect, Senator, do you 17 think this Police and Public -- let me rephrase 18 that. Are you able to predict the impact, if 19 implemented into law, the Police and Public 20 Protection Act of 1996 will have on the prison 21 population of New York State? 22 SENATOR VOLKER: On the prison 23 population, you know, Senator, I would be very 5022 1 honest with you, and I'm not trying to be coy by 2 any means. I don't think this bill will have 3 any -- certainly any immediate appreciable 4 effect just as -- by the way, the statute that 5 we passed last year, sentencing statute has very 6 little immediate effect because the main effect 7 of that statute comes in about three years down 8 the line. If this -- remember, someone arrested 9 today, particularly in New York City, would take 10 a year to two or maybe two years before the 11 actual impact on the prison system of the state 12 of New York is immediately forthcoming. 13 I personally think that what will 14 happen here is that assuming that this statute 15 is enacted into law, I think that we will see 16 some people who now may be able to evade even 17 prosecution but more so conviction. Some people 18 will probably go to jail. We would hope that 19 what it would mean is that some criminal conduct 20 will also be deterred which seems to be 21 something, by the way, that many people forget 22 about, and that is that when you are able to get 23 swifter and more certain punishment and when you 5023 1 are able to deal with criminal activity in a 2 more forthright manner, that it does tend to 3 discourage criminal activity in some cases and 4 that, although we may get more people put in 5 jail as an overall amount, we may well, in fact, 6 see fewer people entering into the criminal 7 justice system. 8 One of the interesting things as 9 you know that's happening, Senator, is we're 10 getting in many cases as many parole violators 11 now as we are new inmates into our system and - 12 because of the drop in the number of arrests 13 over the last few years and the drop in 14 convictions, but I would be the first to say to 15 you that hopefully better law enforcement will, 16 although it may mean some additional people in 17 our prison system, hopefully it will mean a 18 better respect for the law and will help some of 19 the public in deterring crime and meaning less 20 crime in our streets. 21 SENATOR WALDON: Thank you very 22 much, Senator. 23 Mr. President, if I may now, on 5024 1 the bill. 2 ACTING PRESIDENT KUHL: Senator 3 Waldon, on the bill. 4 SENATOR WALDON: Mr. President, 5 my colleagues, I think what we're doing here 6 today with this proposal is an attempt to 7 circumvent the basic fabric and undergirding of 8 this nation, our Constitution and its 9 guarantees. 10 I think that this article that 11 I'm going to read from momentarily which has 12 words of the great Senator from Delaware, Joe 13 Biden, are very poignant in regard to the 14 attempt to usurp the powers of the court. This 15 is an end run around the court and an end run 16 around the process which amends the Constitution 17 of not only the United States but this state. 18 In regard to interfering and 19 intruding into the judiciary, Senator Biden said 20 and I quote, "All judges, including 21 conservatives rail against government when it 22 violates the Constitution. Many judges, 23 Republicans and Democratic, sometimes decide 5025 1 cases in favor of criminal defendants. This 2 includes judges recommended by Dole." He was 3 talking about the federal Judiciary. "For 4 example, Dole recommended Deanell" -- I want to 5 pronounce this name correctly -- "Reece Tacha", 6 T-a-c-h-a -- "to former President Ronald Reagan 7 for the 10th Circuit. In 1994, Tacha wrote an 8 opinion suppressing "crack" cocaine discovered 9 during a traffic stop after the officer 10 initially and incorrectly thought the 11 defendant's motor vehicle registration was 12 invalid." The Senator then says, "This does not 13 mean that Tacha is soft on crime." 14 My opposition to this bill does 15 not mean that Al Waldon is soft on crime. Those 16 in the Democratic Conference and those in the 17 Republican Conference who will vote against this 18 bill does not mean that we are soft on crime. 19 Senator Biden continues by saying, "It is a 20 judge's job to keep the government from 21 violating a citizen's constitutional rights even 22 when this means giving a criminal a new trial." 23 My colleagues, we are first and 5026 1 foremost a nation of laws. Our political system 2 was founded upon a body of fundamental laws, the 3 Constitution. That Constitution was set up and 4 sets us apart from the despotic regimes of 5 Europe over 200 years ago. It was unique. It 6 ensured that the people were not ruled through 7 fiat and capriciousness. The guarantees of the 8 Constitution are still what set us apart from 9 the modern dictatorship, from authoritarian 10 regimes, from totalitarianism and from so-called 11 banana republics. Why do so many people want to 12 come here to America? Because our system is 13 still, 220 years later, the beacon to which all 14 nations aspire. 15 The police in this nation cannot 16 -- cannot, must not, legally act arbitrarily. 17 They are a disciplined, dedicated group of 18 professionals, proud of their professionalism 19 and their service to the public as was I when I 20 served as a police officer. I protest this 21 undermining of the most fundamental document in 22 the history of this nation, our Constitution. I 23 protest this canard that the police have their 5027 1 hands tied under current law and court precedent 2 and that justice is not prevailing in our courts 3 but, most of all, I protest that we are here 4 today practicing obfuscation 101. We are 5 saying, Watch my hands. Hear my shibboleths. 6 Read my lips but don't ask us, this Legislature, 7 this Governor, where's the budget? Steve 8 "Bantu" Biko said the most -- and I quote, "The 9 most potent weapon in the hands of the oppressor 10 is the mind of the oppressed", and so I refuse 11 to surrender my mind even to people as clever as 12 those here. I refuse to surrender the will and 13 the needs of the 300,000 in the 10th Senatorial 14 District. I refuse to believe that political 15 expediency is the right way, that wrong because 16 some one person wants to make it so is now 17 right. I refuse to surrender the lives and 18 spirit and futures of countless black and 19 Hispanic young men. 20 The Police and Public Protection 21 Act of 1996 will not protect the public. It 22 will explode our prison population, drain our 23 resources, make all of us more fearful and 5028 1 insecure by reducing the constitutional 2 protection and protections which have made this 3 nation so great. When you couple this act with 4 the Governor's desire to build 8,800 prison 5 cells, the only growth phase of his budget, when 6 you couple this with Schectman's report, the 7 possibility of prison yards, as dreams deferred 8 of blacks and Hispanics become abundantly real 9 and abundantly more possible, I yield not my 10 mind. I do not fail to protest. I have 11 confidence in the moral sanction of the court. 12 I thank you, my colleagues. 13 ACTING PRESIDENT KUHL: Chair 14 recognizes Senator Abate. 15 SENATOR ABATE: Thank you. Would 16 Senator Volker yield to one question? 17 ACTING PRESIDENT KUHL: Senator 18 Volker yield to Senator Abate? 19 SENATOR VOLKER: Yes. 20 ACTING PRESIDENT KUHL: Senator 21 yields. 22 SENATOR ABATE: Senator, if I can 23 preface my question. I enjoyed your rendition 5029 1 of a number of Court of Appeals cases. I know 2 that you are now going to have the ability if 3 you ever leave this Legislature to teach 4 Criminal Procedure Law or jurisprudence, but I 5 did enjoy your knowledge of criminal law and 6 procedure. 7 My first question, Senator 8 Volker, if the reason behind the exclusionary 9 rule, whether it be the state exclusionary rule 10 or the federal, is to strike a balance between 11 the ability of law enforcement to carry out its 12 function and balancing that right with the obli 13 gation to protect the public from unreasonable 14 intrusions, unreasonable searches and seizures, 15 clearly the intent of this legislation is your 16 concern to correct this balance, but don't you 17 think as a result of this legislation there will 18 be more unwarranted intrusions? 19 SENATOR VOLKER: If I did think 20 that, I wouldn't be sponsoring this legislation, 21 Senator. Let me just say, remember what I 22 stated before and that is that, by doing this 23 bill, we are, in effect, getting New York law 5030 1 back in sync with the rest of the country. 2 In other words, what we are 3 saying here is that we are -- that the New York 4 statute has gone -- or the New York -- the cases 5 that this statute aims at were cases that put 6 the New York situation at a higher standard than 7 not only the federal Constitution but by far the 8 rest of the country. Now, unless the assumption 9 is that the rest of the country is completely 10 unfair and that the Constitution of the United 11 States doesn't adequately protect individuals, 12 then I think you would have to assume that we 13 have gone beyond what the rest of the country 14 believes is proper conduct. 15 What we're saying in this bill is 16 not that we're going to allow improper conduct 17 but that we are going to allow reasonable 18 conduct, and reasonable, it seems to me, is 19 something that we have to deal with. No one is 20 saying that illegally obtained evidence, where 21 there is a showing of lack of reasonableness - 22 the Court of Appeals clearly can throw those 23 cases out, this legislation or not depending on 5031 1 the situation, as they can under the federal 2 Constitution, by the way. 3 I think what we should really all 4 understand here is that there is no absolute bar 5 for making reasonable determinations. What we 6 are saying here in this statute, that we think 7 that certain decisions in certain cases may have 8 gone too far and that we are making sure that 9 our Constitution is upheld as well as the 10 federal Constitution at the same time that the 11 people of this state are protected and that the 12 law enforcement people who enforce the law are 13 protected. 14 SENATOR ABATE: Would Senator 15 Volker yield to another question? 16 SENATOR VOLKER: Sure. 17 ACTING PRESIDENT KUHL: Senator 18 Volker, do you continue to yield? 19 SENATOR VOLKER: M-m h-m-m. 20 ACTING PRESIDENT KUHL: Senator 21 continues to yield. 22 SENATOR ABATE: My concern is 23 that you use the language "reasonable," and yet 5032 1 there is no definition in the legislation to 2 define what is "bad faith". Bad faith in whose 3 eyes? If the officer feels subjectively they've 4 acted not in bad faith, what does that mean? 5 SENATOR VOLKER: Well, first of 6 all - 7 SENATOR ABATE: How do you define 8 "bad faith" in this legislation? 9 SENATOR VOLKER: How would you 10 define "good faith"? I mean, the point is good 11 faith is the reverse of bad faith, and that's 12 not a determination to be made necessarily by a 13 police officer. In the long haul, that's going 14 to be made by a court. 15 We ask a law enforcement officer 16 to act reasonably. If his or her mistake is 17 considered to be one that was deliberately done 18 and not done in a proper manner, certainly that 19 would be -- I think would be considered bad 20 faith. In fact, I suppose if we define bad 21 faith in the statute that means as long as the 22 person didn't deliberately mean to harass -- or 23 put some language in -- I think that would be a 5033 1 better argument, frankly, that we were intruding 2 on the separation of powers. 3 Remember, if we were to very 4 strictly define what "bad faith" meant -- and 5 that might be difficult to do since no one has 6 tried to do that, but, if we did, we would be 7 restricting and tying the very hands of the 8 court that we're talking about giving authority 9 to deal with it. 10 SENATOR ABATE: Because of the 11 vagueness of the language and in terms of how 12 one will interpret bad faith, it will give very 13 little guidance to the police department as to 14 what their appropriate actions should be. 15 How can the police department 16 now, given this what I call vagueness, know what 17 is appropriate and allowable and what is not? 18 Basically, it can only be decided by the 19 individual officer acting on what they may or 20 may not perceive to be reasonable at the time. 21 So I'm concerned about what 22 guidance are we giving to the police department 23 with a bad faith exception? 5034 1 SENATOR VOLKER: Senator, I think 2 the guidance we're giving them is to -- the 3 judge is going to have to look at the totality 4 of the evidence, and what we're saying here is 5 that we have a -- and, by the way, this is not 6 something -- the bad faith interpretation is not 7 something that we pulled or was pulled whole 8 cloth and just used here. It is being used on 9 the federal level also, as you know. It was 10 quoted in the Supreme Court of the United 11 States. 12 SENATOR ABATE: Well, no, that 13 was more restrictive than the Supreme Court 14 because the Supreme Court talks about a good 15 faith exception that applies to search warrant 16 cases. It seems to me that we're going beyond 17 even the federal standards in this legislation. 18 SENATOR VOLKER: No, I don't 19 think we are, Senator. I think we are pretty 20 well right with the federal standard with this 21 legislation. I think if you look at the 22 totality of what's being done nationwide and in 23 the federal courts as well as the -- well, in 5035 1 Congress, I don't think we're going beyond 2 here. In fact, probably we're not going as far 3 as some states have done and as far as some 4 parts of the federal courts have moved. 5 I think that it is pretty clear 6 what the meaning of this statute is, and a court 7 will interpret it based not necessarily on what 8 the law enforcement officer thought but based on 9 the totality of the circumstances and whether 10 that evidence should be allowed in or not. 11 SENATOR ABATE: Will the Senator 12 yield to another question? 13 SENATOR VOLKER: Sure. 14 SENATOR ABATE: Why then did you 15 chose the language of "bad faith" when the 16 federal Supreme Court has used the words of 17 "good faith" exception? Obviously, there is a 18 difference in terminology. If you are trying to 19 make our state interpretation consistent with 20 the federal interpretation, why do you use 21 different terminology? 22 SENATOR VOLKER: I think that the 23 good faith/bad faith determination, I think, is 5036 1 the federal terminology and is the state 2 terminology. Maybe you juxtapose it, but I 3 think the issue of what constitutes good faith 4 and what constitutes bad faith is an issue that 5 has to be determined. To a law enforcement 6 officer, whether you say you must exercise good 7 faith or you shouldn't exercise bad faith, I 8 don't see where that's going to make any 9 difference in the long run, and I think the 10 direction of the court in interpreting the 11 statute is clear under either case. 12 SENATOR ABATE: Will the Senator 13 yield to another question? 14 ACTING PRESIDENT KUHL: Senator 15 Volker, do you yield to another question? 16 SENATOR VOLKER: Sure. 17 ACTING PRESIDENT KUHL: Senator 18 yields. 19 SENATOR ABATE: It is my 20 understanding that the Court of Appeals will not 21 be in a position to suppress evidence unless 22 after a hearing it is found that bad faith was 23 committed on the part of the police officer. 5037 1 Who carries the burden? Does the 2 defendant who has little knowledge of what's in 3 the mind of the police officer have to prove 4 that that officer acted unreasonably in bad 5 faith? I mean isn't this an impossible burden 6 due to over - 7 ACTING PRESIDENT KUHL: Senator 8 Abate, excuse the interruption just a minute. 9 Senator Holland, why do you 10 rise? 11 SENATOR HOLLAND: Could we have 12 the last section read so a member can vote on 13 this bill, please. 14 ACTING PRESIDENT KUHL: The 15 Secretary will read the last section. 16 THE SECRETARY: Section 5. This 17 act shall take effect immediately. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 ACTING PRESIDENT KUHL: Senator 22 Nanula, how do you vote? 23 SENATOR NANULA: No. 5038 1 ACTING PRESIDENT KUHL: Senator 2 Nanula will be recorded in the negative. 3 The roll call is withdrawn. 4 Thank you, Senator Volker and 5 Senator Abate, for allowing the interruption. 6 Senator Abate. 7 SENATOR ABATE: Who carries -- to 8 rephrase it, who carries the burden of proof and 9 how can the defendant possibly prove what's in 10 the mind of that officer? 11 SENATOR VOLKER: I don't think 12 it's the mind of the officer. I think it's the 13 totality of the evidence. If you look at these 14 kinds of cases and if you look at the 15 interpretations, there are far more than the 16 issue of what is in the mind of the law 17 enforcement officer. The Torres case, for 18 instance, there was a mountain of circumstantial 19 evidence brought in on the very issue of the 20 evidence that was obtained which is the normal 21 -- is the normal case, and I would think that 22 that would be the case under any circumstances 23 and that the -- what would have to happen is 5039 1 that the prosecution would bear the burden of 2 proving that there was no bad faith by the law 3 enforcement officers. Because, remember, there 4 has already been a determination that -- well, 5 presumably a determination that this evidence is 6 illegal; because if it's not directly illegal 7 evidence, then it has to be directly entered. 8 So once that is done, then the prosecution has 9 to move and show that there is no bad faith. 10 SENATOR ABATE: That was helpful, 11 Senator. So it is your understanding of this 12 legislation, since this is your legislation, 13 that the burden of proof would be on the 14 prosecution to come forward to show that the 15 stop was made in good faith? 16 SENATOR VOLKER: Yes, I think so. 17 SENATOR ABATE: The reason that 18 I'm concerned about -- of this whether it's 19 coming forward by the prosecution and the burden 20 shifting to the defendant, I read this 21 legislation that there has to be no indication 22 of criminality. The officer can stop someone, 23 just so it's not in bad faith, for any reason or 5040 1 no reason at all. So it's very broad what the 2 authority of the officer is in terms of 3 stopping, and that is my concern. How do we 4 accomplish the dual mission of balancing law 5 enforcement efforts and protecting citizens 6 at-large? 7 SENATOR VOLKER: First of all, 8 let's -- there are two pieces. You have moved, 9 then, from the issue of illegally excludes 10 evidence to the issue of stopping. 11 The bill would allow question 12 when the police officer has objective, credible 13 reason not necessarily indicative of 14 criminality. So I think we are, in a sense, 15 dealing with two different pieces of the bill. 16 The issue of exclusion of 17 evidence, although it obviously could hinge on, 18 in certain cases, the stopping, that is a bit of 19 a different issue, and depending on what the 20 police officer finds in his questioning would 21 then determine how he would move on, and there 22 still could be an illegal seizing of evidence 23 despite the fact that maybe the police officer 5041 1 under the rules was able to stop that person, 2 but there would still be an issue as to whether 3 the evidence was either seized or obtained 4 legally. 5 For instance, the issue, as I 6 think in some of these cases is, when you find 7 that someone may have committed some criminal 8 conduct and you go to his house and you enter 9 his house, the question is, "Did he actually 10 agree to allow you to do that?" He wasn't under 11 arrest. You can't just walk into someone's 12 house. He can say, "The guy let me in," but if 13 the guy says, "Well, I didn't really let him 14 in," anything found in that house couldn't be 15 used as evidence under this bill or under the 16 statute as it is right now. 17 SENATOR ABATE: Except I read the 18 language -- and please correct me -- that the 19 Court can not get involved in suppressing this 20 evidence if two conditions have to be apparent; 21 one, that the officer acted in bad faith and, 22 secondly -- I read not and/or -- "and not in 23 whole or in part for the purpose of protecting 5042 1 the safety or an act of another person." 2 Anyone who is a law enforcement 3 officer in uniform or conceivably in undercover 4 work, their whole function is to protect the 5 public. So even if they act in bad faith and 6 it's consistent with their law enforcement 7 functions, it seems as though the prosecutor has 8 met their burden, because it talks about bad 9 faith and not in whole or in part. 10 SENATOR VOLKER: No, I think that 11 it's pretty clear what the clear meaning is, and 12 I still think you have to look at the totality 13 of the incident to make a determination whether 14 the evidence would be included, and I don't 15 think that this language is unreasonable. 16 I think it basically is what 17 generally is not only the law or has been 18 previously considered to be the law of New York 19 but also has been considered to be the law of 20 the land, and I don't think, really, we're 21 reaching much farther than what is generally 22 considered to be the law now in most 23 jurisdictions. 5043 1 SENATOR ABATE: I disagree, 2 Senator. 3 ACTING PRESIDENT KUHL: Senator 4 Volker, do you continue to yield? 5 Are you asking the Senator a 6 question? 7 SENATOR ABATE: Yes, please. 8 ACTING PRESIDENT KUHL: Senator 9 Volker, do you continue to yield? 10 Senator continues to yield. 11 SENATOR ABATE: Senator, I don't 12 understand. If, in fact, the legislation was 13 going to address and the burden was going to be 14 to look at the totality of the circumstances, I 15 would think there would be some language in this 16 legislation that explicitly talks about the 17 totality. It doesn't talk in that respect, and 18 please correct me. What I read is, "was 19 committed in bad faith and not in whole or in 20 part for the purposes of protecting the safety 21 of an act or another person." It does not talk 22 about totality of the circumstances. 23 I guess, please explain to me how 5044 1 this burden could ever be met, because in every 2 instance there could be an allegation made that 3 a law enforcement officer is on the street to 4 protect the public. 5 SENATOR VOLKER: Senator, I think 6 that you and I both know that we do not have to 7 -- that a court will interpret this based on - 8 when you say, "bad faith," they will clearly 9 interpret it based on the circumstances and not 10 the subjective mind of a law enforcement 11 officer. That's not the way it works, Senator. 12 I realize when you are looking at 13 this, you are thinking in those terms. That's 14 not the way it works in reality. In reality, 15 the courts have and will continue to have a 16 right to look at the totality of the 17 circumstances and make determinations. We don't 18 have to tell them that in the statute, because 19 the fact that we have stated in here what the 20 circumstances must be, I think, gives the court 21 the ability to make a determination and moves 22 the prosecution, by the way, to move forward to 23 show that there was not bad faith. 5045 1 And keep in mind here, Senator, 2 you've got to put these two sections together 3 and realize that what you're saying here is that 4 you already had a determination in one way or 5 another of illegally seized evidence, and then 6 that would trip off the issue of whether there 7 was bad faith and the issue of the law 8 enforcement officer's own situation under the 9 circumstances. 10 SENATOR ABATE: Senator Volker, 11 would you yield. 12 ACTING PRESIDENT KUHL: Senator 13 Volker, do you continue to yield? 14 Senator continues to yield. 15 SENATOR ABATE: On the one hand, 16 we do not trust the Court of Appeals to 17 interpret the Constitution and on the other hand 18 we are writing language so broad that talks 19 about -- language, as I stated, in line 15 and 20 16, and we're trusting the Court of Appeals to 21 interpret the intent of the Legislature. So as 22 far as I'm concerned, it seems very ironic. On 23 the one hand, we can't trust them to protect 5046 1 us. On the other hand, we think they can do 2 everything right in interpreting the intent of 3 our laws. 4 But let me get back to - 5 SENATOR VOLKER: Senator, I don't 6 agree with that, by the way, and let me say that 7 we can't exclude the Fourth Amendment of the 8 Constitution here. I think, Senator, you are 9 isolating this piece as if it somehow sits out 10 there by itself. The Fourth Amendment to the 11 Constitution is still there. The issue of 12 illegal search and seizure is clearly still 13 there. We are moving - 14 SENATOR ABATE: Under the federal 15 Constitution. 16 SENATOR VOLKER: Under federal. 17 That's what I'm saying, under the federal 18 Constitution, and we are not abrogating that, 19 clearly and were we to try to do that, we would 20 be subject to a constitutional challenge, which 21 I don't think that this statute would allow 22 that, and I don't think we're giving an enormous 23 amount of latitude to the Court of the Appeals. 5047 1 They have taken that latitude anyways, and I 2 guess I don't exactly see where the problem is 3 except in terms of the fact that you are looking 4 at it, I think, in terms of what the Court of 5 Appeals, in several cases, has already said, 6 while in other cases, they have said some other 7 things. 8 What we're trying to do is make 9 it much more clear as to what the clear meaning 10 of the Constitution is and the clear meaning of 11 Court of Appeals cases are so that there is no 12 confusion. 13 SENATOR ABATE: Senator Volker, 14 would you yield to my last question? 15 SENATOR VOLKER: Certainly. 16 ACTING PRESIDENT KUHL: Senator 17 yields. 18 SENATOR ABATE: Senator, you 19 agree that the responsibility of the Legislature 20 is to write laws; and, recently, when we 21 overturned the Court of Appeals case in the Ryan 22 case, we did that because the Court of Appeals 23 misinterpreted or we felt that the Court of 5048 1 Appeals misinterpreted a law that was passed, 2 and there was a need to clarify that law. 3 SENATOR VOLKER: Right. 4 SENATOR ABATE: So I think we're 5 in agreement that our responsibilities are to 6 write the laws. I don't understand where in 7 statutory authority the Legislature has the 8 authority to interpret the Constitution. Isn't 9 that the sole responsibility of the courts to 10 interpret the law and interpret the 11 Constitution? It is not within the realm of the 12 Legislature. 13 SENATOR VOLKER: Let me just read 14 you Justice Titone in the Johnson case, 15 "Exclusion of evidence is not a command of the 16 New York State Constitution, Article I, Section 17 12. Rather, it is a judicially declared rule of 18 evidence which the Legislature is free to 19 abrogate." 20 That was Justice Titone in the 21 concurring decision in People -- for the Johnson 22 case back in 1985, and the reason -- there are 23 other cases, but I use this because it 5049 1 specifically is in point here; and that is, that 2 it is the -- the Legislature has the authority. 3 And the Court of Appeals, by the way, on more 4 than one occasion -- this is only one of the 5 occasions. In fact, the Governor -- in the memo 6 the Governor cites another case rather than this 7 Johnson case, and we -- Richter Jewelers case, 8 which is a much earlier case, and a history has 9 been developed here. 10 We are not, in reality, 11 abrogating the Court of Appeals. We are 12 directing the Court of Appeals, in effect, using 13 their own cases and saying, "Look! This is the 14 plain meaning of the Constitution." We can't 15 abrogate the federal or the state Constitution. 16 We don't intend to. We just want to make sure 17 that wherever possible that the interpretations 18 fit in with what this Legislature has passed and 19 what the people of this state intended to do 20 when we passed this legislation and to make 21 sure, I think, that the people of this state are 22 properly protected. 23 I think we have the authority to 5050 1 do it, and I think we are doing something which 2 clearly is within our power. 3 SENATOR ABATE: Thank you, 4 Senator. On the bill. 5 ACTING PRESIDENT KUHL: Senator 6 Abate, on the bill. 7 SENATOR ABATE: Not to be 8 dramatic, but this is heartfelt. Both, I think, 9 my knowledge of the criminal justice system, my 10 work on the streets, that this could be one of 11 the darkest moments in legislative history if we 12 pass this legislation today. 13 We are all concerned with crime, 14 and we all wince when we hear of reports when a 15 guilty person and a criminal takes advantage of 16 the Constitution and takes advantage of the 17 criminal justice system, when we hear reports 18 that someone is set free because of the Fourth 19 Amendment. But regardless of these few cases 20 and these few occasions where criminals take 21 advantage of the Constitution, I have not heard 22 today any rationale based on full cases that 23 have been articulated to make such a radical 5051 1 change in our constitutional protections. 2 Certainly, we can't argue -- and 3 I believe law enforcement today is more than 4 willing and able and fully prepared to follow 5 the Fourth Amendment, and we can't argue the 6 police are so handicapped that they can't make 7 arrests. We can't argue that not enough people 8 are getting convicted. We can't argue that most 9 cases are suppressed after a suppression 10 motion. We know that's not the case. 11 If you've ever done defense, it's 12 an extraordinary situation when a motion to 13 suppress is granted. It's certainly an 14 exception. It's a minutiae of the totality of 15 cases that are heard on motion to suppress 16 issues. 17 And, certainly, we can't argue in 18 law enforcement in our criminal justice system, 19 we are not doing a splendid job of first 20 arresting, convicting and imprisoning huge 21 numbers of people. 22 What we're doing today is 23 forgetting what the origin of the exclusionary 5052 1 rule was. It's not to protect criminals. It's 2 to protect innocent people, and we always think 3 about the exclusionary rule within the context 4 of the criminal justice system. But what we 5 should be thinking about is all those innocent 6 people that walk down their streets, live and 7 work in their communities every day, and should 8 they be subjected to unwarranted intrusions 9 because the officer has a hunch based on, let's 10 say, good faith, based on a reason that he can 11 articulate or can't articulate? 12 Should individual innocent people 13 be subjected to these unwarranted intrusions? 14 And that is what will happen. The exclusionary 15 rule will hurt innocent people throughout the 16 state. We never hear about the officers 17 stopping innocent people. They act on a hunch 18 and no one gets arrested because the innocent 19 person didn't have drugs, didn't have guns, 20 wasn't involved in criminal activity. There are 21 thousands of cases like that where we can't give 22 a voice. We can't measure that harm. 23 So I submit what we're doing 5053 1 today is not helping the few criminals that get 2 off. We're hurting the huge numbers of people 3 who are innocent and need to be protected in 4 terms of their privacy rights. 5 I believe this legislation would 6 be a virtual abolition of the state exclusionary 7 rule, I believe, as it's written, in terms of 8 the bad faith exception and in addition, the 9 proof has to show that the officer was not 10 involved in legitimate law enforcement duties. 11 If an officer has a uniform, they are out there 12 doing legitimate work, conceivably. How will 13 the defendant ever be able show that there was 14 bad faith? 15 In essence, what we're doing, 16 we're saying now to the Court of Appeals, "Do 17 not get involved in protecting the rights of 18 citizens. It's no longer your job." And that's 19 what this legislation is doing. 20 I think it's a frontal attract on 21 the doctrine of separation of powers. It is a 22 frontal attack on the independence of the 23 judiciary, and we in the Legislature, by passing 5054 1 this, are treading on the authority of the Court 2 of Appeals to interpret the laws of the state. 3 We can have an active and legitimate role in 4 this area. Let's not overstep our bounds. We 5 can say the Court should interpret the rules 6 and, if we object to the way they interpret the 7 Constitution, we can amend the Constitution to 8 make it clearer. That is what our role in the 9 Legislature is, for legitimate purposes to amend 10 the Constitution, not to intervene and to take 11 away the authority of the courts. 12 And we should ask ourselves who 13 is in the best position to protect the citizens 14 of New York State? Is it people in Washington, 15 or should we ignore 20 years of jurisprudence 16 and say that the judges we elect and appoint do 17 not understand our traditions, do not understand 18 the law of New York State? I mean, repeatedly, 19 we as Republicans and Democrats talk about state 20 rights, the ability of the states to be able to 21 fashion their own laws to protect their 22 citizens. Why in this instance are we saying we 23 are not able to protect ourselves and must rely 5055 1 on federal guidelines? 2 I believe the outcome of this 3 legislation if it's passed will invite more 4 unwarranted intrusions. It's so broadly 5 drafted, law enforcement officers can stop 6 people for no reason or any reason at all. 7 There does not have to be any indication of 8 criminality and, moreover, it will not give 9 guidance to the police department so they can be 10 trained and that there is an actual accurate 11 description of what is allowable under the law. 12 So if you talk to police 13 commissioners over the last 20 years -- and 14 there's some documentation -- they wanted the 15 courts -- they wanted clear guidance as to how 16 they should train their officers. 17 So let me just end and when I 18 started that this is a -- I think, a grim day 19 because I believe the Constitution is not just 20 an inconvenience. It's not just a piece of 21 paper. It's not something we can hold up as 22 true on one day and discard on another, that it 23 is a precious document that should be cherished 5056 1 and that it should not be tampered with, and it 2 should withstand the whims and changing views of 3 the populace. 4 And so when I heard today that 5 the times demand it, that is exactly the reason 6 why we should not tamper with the Constitution. 7 Yesterday may demand something differently, 8 today something else, and tomorrow a different 9 result, and that's why we have a Constitution 10 that we do not change it willy-nilly at whim, 11 and there is a process available to the 12 Legislature if we want to clarify or change that 13 Constitution. 14 We should not destroy the 15 doctrine of separation of powers and the 16 independence of the judiciary. This is a very 17 dangerous path we're embarking upon. I hope all 18 of you will give it a second thought. We all 19 care about law enforcement. We all care about 20 stopping crime on the street, but there must be 21 a balance, a reasonable balance between law 22 enforcement and the protection of innocent - 23 and let me underscore, innocent people that walk 5057 1 and live on our streets. 2 So I hope many of you who might 3 have been predisposed to vote for this 4 legislation will consider voting against it. 5 Take another look. Again this is a dangerous 6 course, and it needs to be stopped. 7 Thank you. 8 ACTING PRESIDENT KUHL: Chair 9 recognizes Senator Dollinger. 10 But before that, Senator 11 Holland. 12 SENATOR HOLLAND: Could we read 13 the last section and let Senator Santiago vote, 14 please. 15 ACTING PRESIDENT KUHL: Secretary 16 will read the last section. 17 THE SECRETARY: Section 5. This 18 act shall take effect immediately. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll.) 22 Senator Santiago, how do you 23 vote? 5058 1 SENATOR SANTIAGO: In the 2 negative. 3 ACTING PRESIDENT KUHL: Senator 4 Santiago will be recorded in the negative. 5 The roll call is withdrawn. 6 We're back on debate. 7 Chair recognizes Senator 8 Dollinger for the floor. 9 SENATOR DOLLINGER: Will Senator 10 Volker yield for a couple of questions? 11 ACTING PRESIDENT KUHL: Senator 12 Volker, do you yield to a couple of questions 13 from Senator Dollinger? 14 Senator yields. 15 SENATOR DOLLINGER: Senator, I 16 appreciate the courtesy that you gave to the 17 members of the Codes Committee in delaying this 18 debate. As you may know, I sent a memo to your 19 office, and we've reviewed, and I think your 20 counsel has reviewed. 21 What I would like to do is focus, 22 if I could, with a series of questions about 23 just one portion of the bill to try to highlight 5059 1 one of the points Senator Abate made, which is 2 how the drafting of this bill is just going to 3 punt to the courts all kinds of critical 4 determinations that are not really specified in 5 the bill. 6 So with that in mind, through 7 you, Mr. President, can I turn your attention to 8 line 12 in the bill which talks about criminal 9 law enforcement duties. It says that when 10 engaged in criminal law enforcement duties - 11 this deals with the section that gives officers 12 the right to stop people and ask questions. 13 Does it mean that -- does this section mean that 14 it only applies if they are involved in criminal 15 law enforcement duties? What happens if they 16 are enforcing traffic laws and they want to stop 17 someone and ask them a question but they are 18 only giving out traffic tickets? Are they 19 permitted to then ask the questions and follow 20 the course of conduct described in the bill? 21 SENATOR VOLKER: I don't think 22 that the issues that are involved in this bill 23 have generally come up on traffic stops, but I 5060 1 think what you'll find that if you follow the 2 Vehicle and Traffic Law you will find there are 3 criminal offenses within the Vehicle and Traffic 4 Law. So when a police officer is involved in 5 enforcing the Vehicle and Traffic Law, he is 6 also involved in the -- engaged in criminal law 7 enforcement. So I think the answer to that is 8 it would be included, although these kinds of 9 issues generally don't come up unless there's 10 something more than just traffic involved. But 11 I think the answer is you will find clearly that 12 criminal law is involved in traffic enforcement 13 also. 14 SENATOR DOLLINGER: But, again 15 through you, Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 Volker, do you continue to yield? 18 SENATOR VOLKER: Yes. 19 ACTING PRESIDENT KUHL: Senator 20 yields. 21 SENATOR DOLLINGER: All of the 22 issues in this portion of the statute, as you 23 know, will be litigated to death in the courts 5061 1 of this state because sooner or later some 2 police officer is going to stop someone, ask him 3 a series of questions, arrest him. They'll find 4 out he or she has drugs on them or some other 5 contraband and, lo and behold, the question will 6 be the validity of the stop and the validity of 7 the questioning, all of which hinge on the 8 specific, very narrowly construed language in 9 this statute; isn't that correct? 10 SENATOR VOLKER: Yes, it is, but 11 I can't imagine -- and, of course, I suppose you 12 could have a judge that would say, "Well, 13 there's criminal penalties in the Vehicle and 14 Traffic Law and any time that you are involved 15 with the automobile in traffic that the criminal 16 law could be involved, but we don't think that 17 it's specific enough." Sure, you could, but I 18 think, in general, that would be considered to 19 be unreasonable. 20 And it seems to me when you get 21 too specific that's when you get into problems, 22 and I think I could make the reverse argument to 23 what you are making that I think it is specific 5062 1 enough. In fact, you might have a problem if we 2 talked about the V&T law with just the V&T Law 3 and whether these issues should involve just the 4 V&T Law. 5 So I think that this statute does 6 apply to what you are talking about but only in 7 a very narrow manner, so I think the issue of 8 V&T stops is very clear. That's already in the 9 law. The issue of the criminal law would occur 10 afterwards. 11 SENATOR DOLLINGER: Again, 12 through you, Mr. President. 13 What happens if the person under 14 this statute refuses to answer the question? 15 What's the consequence to the individual? 16 SENATOR VOLKER: The answer, I 17 think, to that would depend on the 18 circumstances. If the law enforcement officer 19 stops somebody and can find nothing wrong, if 20 the person doesn't want to answer, there's very 21 little that police officer can do. If the 22 person -- if the law enforcement officer directs 23 him to do something and he absolutely refuses, I 5063 1 suppose he could -- in the Vehicle and Traffic 2 Law, he could bring some violation against him 3 if he was blocking traffic or something of that 4 nature. 5 But, generally speaking, the 6 truth is, Senator, if without -- if there is no 7 violation, there is no criminal conduct, and it 8 did happen to me at times. When I asked 9 somebody some questions and they wouldn't tell 10 me, if I didn't find anything wrong, I just let 11 him go. 12 SENATOR DOLLINGER: Well, then I 13 guess my question is, what does this statute 14 add, then, to the laws of this state? 15 SENATOR VOLKER: Well, what it 16 adds, Senator, is if there is some sort of 17 criminal conduct, then you have -- I mean, 18 Senator, I think the thing is you are looking at 19 it from the law student side. I am looking at 20 it from what really happens out in the street, 21 and that's what this statute is about, and I 22 think that is the trouble. The trouble is that 23 we must look at it not from the standpoint of 5064 1 what lawyers think in the courtroom but what 2 really happens on the street. 3 What this statute involves is the 4 issue of somebody stopping a person, and there 5 is a standard for what is involved in that stop, 6 and we don't have a judge standing there, of 7 course, looking over his shoulder and saying, 8 This is what you should do or you should do that 9 right here. So we have to set standards. What 10 this bill attempts to do is set standards. 11 SENATOR DOLLINGER: Again through 12 you, Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Volker, do you continue to yield? 15 SENATOR VOLKER: Certainly. 16 ACTING PRESIDENT KUHL: Senator 17 yields. 18 SENATOR DOLLINGER: I guess my 19 question is, what standard is set when it says, 20 "when he has an objective, credible reason not 21 necessarily indicative of criminality"? 22 SENATOR VOLKER: Right. 23 SENATOR DOLLINGER: What does 5065 1 that mean? 2 SENATOR VOLKER: That means it's 3 an objective, credible reason not necessarily 4 indicative of criminality. I think that's 5 pretty clear. If there's a reason -- and, by 6 the way, if he can't show that, then it's 7 probably going to be thrown out. 8 SENATOR DOLLINGER: But I guess 9 my question is, if he believes that there's 10 criminal conduct, he clearly has a right to ask 11 questions. He has a right to apprehend. Now we 12 have laws that define when he can apprehend for 13 misdemeanors, when for felonies. 14 But my question is, "an 15 objective, credible reason which is not 16 necessarily indicative of criminality," could 17 that be the presence of an African-American in a 18 predominantly white neighborhood? 19 SENATOR VOLKER: I think the 20 answer to that is that, if that were to be 21 determined to be, the answer would be no. There 22 isn't a court in this state that would say that 23 kind of a stop would be legal. 5066 1 SENATOR DOLLINGER: All right. 2 But if he has an objective, credible reason but 3 it doesn't relate to anything criminal but it 4 relates to something else, what is that 5 something else that would promote, would trigger 6 the application of this statute? 7 It's obviously not a crime. He 8 has done nothing wrong. There is no evidence 9 he's done anything wrong. But for some reason 10 this bill would give the police the ability to 11 say to somebody, "I know you have done nothing 12 wrong but I have a clearly objective reason to 13 ask you a series of questions," to which, I 14 would assume, the individual would say, "What 15 have I done wrong, officer?" The officer would 16 say, "Nothing, but you've still got to answer my 17 questions." 18 I guess my question is, when 19 would he do that? 20 SENATOR VOLKER: What you just 21 said is not correct, by the way. Let me just 22 say that no one is saying that anybody 23 necessarily is allowed to ask a series of 5067 1 questions unless there's some reason for it. 2 You are saying, what is that reason? I don't 3 know what that reason would be and that's one of 4 the reasons we have this in the law. 5 And by the way, we are, in effect 6 -- remember, the statute is already there. No 7 one is saying, even the Court of Appeals has not 8 said that a person can't be confronted and 9 questioned. The issue is what the standards 10 are. 11 For instance, you mentioned a 12 traffic stop. The issue of whether you can stop 13 a car is pretty clear. Obviously, you can stop 14 a car if a person violates a V&T statute or 15 there is an indication that that person may have 16 violated the V&T, or even if not. You can just 17 stop a car to check that vehicle out for various 18 reasons, for plates and things of that reason. 19 The right to do that for a law enforcement 20 officer is clear, and the questions about the 21 person's driving are clear. Then comes the 22 indication, though, that if there's something 23 potentially, for one reason or another, is a 5068 1 person lying on the other side of the car who is 2 drunk, for instance, just as a example, and then 3 the issue is, is that person all right, is that 4 person sick, things of that nature. 5 SENATOR DOLLINGER: Right, but 6 again through you, Mr. President. 7 ACTING PRESIDENT KUHL: Senator 8 Dollinger, just let me interrupt for one minute 9 because there have been several inquiries from 10 members. Debate on this issue started at 3:38, 11 so we're about 18 minutes away from the two-hour 12 time limit, and Senator Leichter has indicated a 13 desire to speak also. I just bring that to your 14 attention. 15 Senator Volker, do you yield to 16 another question? 17 SENATOR VOLKER: Sure. 18 ACTING PRESIDENT KUHL: Senator 19 yields. 20 SENATOR DOLLINGER: Under the 21 circumstances that you've just described, those 22 would all involve indications of criminality, 23 drunkenness, public intoxication, driving while 5069 1 intoxicated, violations of the Vehicle and 2 Traffic Law. This statute envisions some other 3 objective, credible reason for which an officer 4 can stop someone, ask him a series of questions 5 and then, it seems to me, Senator, the critical 6 issue then is, what happens if the individual 7 says, "Go to hell?" What happens? 8 SENATOR VOLKER: If there is no 9 criminality and if there is no indication that 10 there is anything improper, illegal, or in 11 violation of any statute, I presume that law 12 enforcement officer would have to let that 13 person go. 14 SENATOR DOLLINGER: Well, then, 15 how does this change current law? 16 SENATOR VOLKER: When it changes 17 current law is in the issue -- how it really 18 changes current law is when you find somebody 19 who has actually either done something or has 20 some sort of evidence or something that there's 21 some reason for obviously arresting him, and the 22 criteria is set out, by the way, already now. 23 It was set out in the Court of Appeals case. 5070 1 The Constitution is still there. 2 The Fourth Amendment, all that sort of stuff, is 3 still there. All we are doing here, in fact, is 4 setting a specific standard by which that person 5 or the law enforcement person would make some 6 judgment. 7 What you are saying to me, 8 Senator, is -- let me tell you something. If 9 you don't trust law enforcement officers, then 10 no standard is going to be used. This doesn't, 11 by the way, substantially change what has been 12 the law in this state for some years, except 13 that some very technical Court of Appeals cases 14 have added some additional problems to the 15 ability of law enforcement people to challenge 16 people. 17 Now, Senator, if you don't trust 18 law enforcement officers, then nothing we will 19 do here is going to be acceptable. My attitude 20 is -- have there been some illegal searches over 21 the years? When I was a police officer, I saw 22 some. They were thrown out, by the way, then 23 just as they could be thrown out under this 5071 1 bill. 2 Should law enforcement officers 3 be properly trained? Of course, they should. 4 Is this legislation -- are we opening up the 5 Pandora's box? We're not changing the 6 Constitution. 7 What you're saying to me is, your 8 trust for law enforcement officers is such that 9 you are afraid that this is going to be abused. 10 Senator, that's not really the issue. The issue 11 is we have a standard here, and we are setting 12 up a standard which I think is reasonable. You 13 don't agree. I understand that. 14 But, Senator, I don't think this 15 is lacking in definity, as you may think. I 16 like to think that I'm a decent lawyer. I think 17 I know what this statute says, what this 18 provision says, and I think that it's something, 19 I think, that not only can stand up -- stand the 20 test of the court, but I think it can stand the 21 test of reasonableness. 22 SENATOR DOLLINGER: Just so you 23 know, Senator, it's not law enforcement I don't 5072 1 trust. It's the government that I don't trust. 2 It's the government that makes -- I think law 3 enforcement does what government tells it to 4 do. It's the notion of government taking away 5 people's civil liberties that makes me so 6 distrustful. 7 On the bill, Mr. President. 8 This debate is not new in New 9 York. As Senator Volker probably knows, there 10 was a lively debate in 1938 when the 11 constitutional amendment that we talk about 12 today was passed. I think it might be 13 appropriate just to read the sort of blunt 14 language of that amendment. 15 It says -- this is Article I, 16 Section 12, of the Constitution. It is 17 identical to the Fourth Amendment of the United 18 States Constitution. It starts off with a very 19 interesting phrase. It says, "The right of the 20 people to be secure in their persons, their 21 houses, their papers and effects, against 22 unreasonable searches and seizures shall not be 23 violated, and no warrant shall issue but upon 5073 1 probable cause supported by oath or affirmation 2 and particularly describing the place to be 3 searched and the persons or things to be 4 seized." 5 As Senator Volker, I believe, 6 knows, in 1938, when that amendment was passed, 7 there was a proposal in the Constitutional 8 Convention to create an exclusionary clause, and 9 there was a very wonderful debate which -- I've 10 got the constitutional records here. I would 11 just like to read, I guess, the section that 12 perhaps agrees with my position today. 13 This is from a man named Osborn, 14 who had grown up in Germany. He talked about 15 how those who favor the exclusionary rule were 16 oftentimes accused of being soft on crime. He 17 follows with this commentary. 18 He says, "Then the person who 19 opposes me asks, 'Who are the people who would 20 be protected by these proposals?' and answers 21 himself in these words, 'Call the roll. Al 22 Capone, Lucky Luciano, Waxy Gordon, Dutch 23 Schultz, Toosie Herbert, and all the others.' I 5074 1 resent any distinguished prosecutor or any other 2 person saying or implying that I have any 3 interest in Al Capone, Toosie Herbert, or their 4 brothers in crime. I resent having my picture 5 attached to this rogue's gallery because I 6 happen to differ with the distinguished 7 prosecutors. My family has lived long and 8 honorably in the State of New York. Through my 9 late father, I have been intimately connected 10 with the problem of crime prevention and crime 11 elimination. The imputation that because I 12 favor this proposal I am participating in a plot 13 to slip through a joker that will protect the 14 criminal is as false as it is unwarranted. If 15 every person who dares to disagree with the 16 prosecutor is to be consigned to the criminal 17 classes, then free speech and free thought are 18 dead in this state. This cruel and deceptive 19 contention is the strongest argument advanced 20 yet for the inclusion of a forceful search and 21 seizure provision in our Constitution to protect 22 the honest, respectable, law-abiding citizens 23 from unscrupulous and overzealous officials who, 5075 1 wrapping themselves in the cloak of 2 infallibility, look upon every man as guilty 3 until proven innocent. But there is the more 4 fundamental aspect of this question. We want no 5 racketeers or mobsters or gangsters in this 6 country, but neither do we want to open the door 7 one millionth of an inch to racketeers of 8 intolerance, hatred, and political oppression 9 such as control Germany today, and I know no 10 better way to open that door than to sanctify 11 their methods by our agreement. Some day, of 12 course, the fundamentally great German people 13 will rise and banish the metaled and uniformed 14 gunmen who are their present leaders and make 15 William of Hohenzollern and his Junkers look 16 like honest, just, and upright gentlemen. But 17 the choice for us is clear between traditional 18 American methods and the methods of Nazi 19 tyranny. There can be no autocratic shortcuts 20 for democracy. There is no hope for democracy 21 save more democracy; and when a democracy finds 22 it necessary to resort, however discretely, to 23 the favored instruments of the GPU and the 5076 1 Gestapo, it risks dangers far worse than the 2 greatest criminal wave that this country has 3 ever known. Such dangers seem remote as we sit 4 here today. I hope they are, but they exist, 5 and we should never forget now, as always, 6 eternal vigilance is the price of liberty." 7 It's a wonderful debate. It's a 8 wonderful commentary. It seems to me that what 9 we've done in this legislation is we came up 10 with a nice little epigram. Described it "The 11 Police Protection Act." Of course, everybody 12 believes in police protection. Those who are 13 going to oppose this bill were against 14 protecting the police. I can read the 15 television commercials. I know what all the 16 printed material is going to say, "That Rick 17 Dollinger, he voted against the police." 18 He didn't vote against the 19 police. He voted because he believes that this 20 bill is wrong-headed; that the power that 21 Senator Volker wants to give to people to stop 22 and ask is a power in this bill that defies 23 definition. If it's a crime, you can stop, you 5077 1 can ask, you can search. You can do it under 2 reasonable suspicion. You can do it under 3 probable cause to believe that there's a crime. 4 Police have great latitude. 5 What this statute says is, even 6 though you have no evidence of criminality - 7 there is none -- you can nonetheless have a 8 police officer who might not even be wearing a 9 uniform, who might look just like me, stand up 10 to someone and say, "I got a couple questions 11 for you, guy. If you don't answer, I'm going to 12 take you down to the station." It sounds like a 13 time long ago that we buried that kind of 14 governmental abuse, not the police abusing it, 15 but government abusing its prerogatives. 16 And it seems to me, further, that 17 the notion that Senator Abate talked about, the 18 question of good and bad faith shifts to the 19 person who is accused the obligation to prove 20 that government has acted inappropriately. It 21 seems to me that in order to justify evidence, 22 in order to take evidence into our courts, the 23 exclusionary rule adopted by the United States 5078 1 Supreme Court 70 years ago has stood the test of 2 time. 3 And it seems to me, although I 4 would be the first to perhaps disagree with my 5 colleagues, Senator, who say that we don't have 6 the constitutional right to do this, I think we 7 do have the constitutional right to do it. We 8 can say to any Court in this state, "We have 9 looked at your remedy applied to your 10 constitutional harm, and we've decided that we 11 want to enact a different remedy." I think we 12 could pass this and perhaps make it 13 constitutional. 14 But more importantly, it seems to 15 me, it sends the wrong message about the role of 16 government in our society. It seems to me we 17 turn the criminal justice system on its head. 18 It seems to me we send a message that the 19 precious liberties, the precious rights that 20 were so deeply fought for in this country will 21 be lost. 22 I will close with Justice 23 Brandeis. We're all quoting judges these days, 5079 1 let me just quote him. "Decency, security and 2 liberty alike demand that government officials 3 shall be subjected to the same rules of conduct 4 that are commands to the citizen. In a 5 government of laws, existence of the government 6 will be imperiled if it fails to observe the law 7 scrupulously. Our government is the potent, the 8 omnipotent teacher. For good or ill, it teaches 9 the whole people by its example. Crime is 10 contagious. If the government becomes a law 11 breaker, it breeds contempt for law. It invites 12 every man to become a law unto himself. It 13 invites anarchy. To declare that in the 14 administration of the criminal law the end 15 justified the means, to declare that the 16 government may commit crimes to secure the 17 conviction of a private criminal would bring 18 terrible retribution. Against that pernicious 19 doctrine, this court should resolutely set its 20 face." 21 Reluctantly, Mr. Chairman and Mr. 22 President, I will be voting in the negative. 23 ACTING PRESIDENT KUHL: Senator 5080 1 Leichter on the bill. 2 SENATOR LEICHTER: Thank you, Mr. 3 President. 4 I think all of us accept that our 5 first duty and obligation is to protect the 6 public safety, and I think all of us appreciate 7 the concerns that exist in this society about 8 the high level of violence, the high level of 9 crime, although fortunately in this state, in my 10 city and throughout the nation, crime has been 11 declining, probably for demographic reasons but 12 it has been declining. 13 But, nevertheless, we want to 14 continue to see that where we can strengthen law 15 enforcement, we will do this, and I don't think 16 there's any difference here among us on this. I 17 think the one thing that if you really are 18 concerned about law enforcement that you ought 19 to hold sacred is that you will not politicize 20 it; that will you will not make it such a 21 partisan issue that you don't really care about 22 law enforcement; what you care about are votes. 23 I must say that as I read this 5081 1 bill it was either drafted with blatant politics 2 in mind or sheer ignorance. This is, without 3 question, the worst drafted bill that I can 4 remember seeing in many a year, and I can not 5 believe with all the disagreements I have with 6 the second floor that anybody on the second 7 floor could have drafted this. And I've been 8 thinking here, "Who could have drafted this?" 9 Now, I know Dale Volker didn't 10 draft it because I've worked with him. We 11 differ, but his workmanship, his quality, is 12 fine, and I came up with only one name, only one 13 person that could have drafted this. I think 14 this bill was drafted by Bill Powers, the 15 Republican State Chairman, because no way can 16 you otherwise explain what is a bill that really 17 makes so little sense, that has so many 18 loopholes, that's clearly unconstitutional. 19 And I want to say to you, Senator 20 Volker, I have the world of respect for you 21 because you stood up very manfully. You 22 defended this bill. You did it as skillfully as 23 could be done, and I didn't see any colleague 5082 1 from your side of the aisle get up and give you 2 any help for good reason. 3 And, Senator, I want to make it 4 very clear. In no way am I in any way 5 denigrating your good work, and if we ask you 6 questions and try to show up what we see are 7 inconsistencies in the bills and flaws, it's not 8 in any way criticism of you. 9 With that in mind, I just want to 10 ask you just a couple of questions on one aspect 11 of the bill. 12 ACTING PRESIDENT KUHL: Senator 13 Volker, do you yield? 14 SENATOR VOLKER: Sure. 15 ACTING PRESIDENT KUHL: Senator 16 Volker yields. 17 SENATOR LEICHTER: Thank you, 18 Senator. This is Section 4, which starts on 19 page 9 and which deals with the circumstances 20 under which a court can suppress evidence. 21 And as I read it, and tell me if 22 I'm correct, the suppression of evidence may not 23 occur under two specific circumstances, right, 5083 1 or unless two specific circumstances are met? 2 SENATOR VOLKER: Right. 3 SENATOR LEICHTER: One of them 4 relates to Section 12 of Article I of the 5 Constitution, and I think Senator Abate asked 6 you about that, and I think raised some very 7 significant questions. I want to ask you about 8 the second part. 9 Now, the two are distinct, 10 because the wording is not "and" but "or", so 11 under either one of these. 12 Now, under the second one, it 13 seems to say that any statute of this state that 14 we enact on or after the effective date of this 15 particular bill, if it becomes law, that any - 16 where we say that you can not suppress or, 17 rather, on the other hand, it's really the other 18 thing; that unless we say suppression can occur, 19 the Court may not suppress the evidence. 20 Right? 21 SENATOR VOLKER: Yes. I think 22 that's correct. But, of course, it would still 23 be governed by the Fourth Amendment to the 5084 1 Constitution and so that we would be limited in 2 what we could do, but that's correct, yes. 3 And remember that we're talking 4 about "or" and we are still governed by number 5 1, the first paragraph of the Constitution. So, 6 yes, that's true, and this is "or," but we're 7 still going to be governed. 8 SENATOR LEICHTER: Senator, I'm 9 glad you at least concede at least to this 10 extent that we will be governed by the 11 Constitution. But this bill is an effort, is it 12 not, to tell the courts how to interpret the 13 Fourth Amendment and to, in fact, change the way 14 the courts have been interpreting the Fourth 15 Amendment and how the courts have been 16 suppressing evidence? 17 SENATOR VOLKER: No, I don't 18 think it's an attempt to interpret the Fourth 19 Amendment. I think it's an attempt to clarify 20 the way in which the courts have actually dealt 21 with Section 12 of Article I of the 22 Constitution. As you, I'm sure, were listening, 23 I related to you the People versus Johnson case 5085 1 and other cases where the Court of Appeals 2 specifically said that the Legislature has the 3 right to determine how this evidence can be 4 admitted; that it is a judicially declared rule 5 of evidence that the Legislature is free to 6 abrogate. I think that's what we're referring 7 to in 2 also, and we're following that with this 8 provision. 9 SENATOR LEICHTER: Well, Senator, 10 you know, you have given us a lot of, "Well, 11 what we really meant" or how it should be 12 interpreted, but as you read this language, on 13 the face of it, it says that this Legislature by 14 statute can tell the Court that you shall only 15 permit the suppression of evidence under 16 circumstances that we permit. Isn't that what 17 the language states? 18 SENATOR VOLKER: Well, we are 19 taking what the courts have already said. We 20 are not -- once again, let me say we are not 21 abrogating either the Constitution, the Fourth 22 Amendment of the Constitution, obviously, or the 23 section of the Constitution which is identical 5086 1 in the state Constitution. We are saying that 2 the Legislature has the right -- where a court 3 goes even farther in interpretations, has the 4 right to make decisions in this area, and there 5 is a Court of Appeals case, as I said, that 6 specifically says that that's correct. 7 SENATOR LEICHTER: Well, Mr. 8 President, on the bill, and my thanks - 9 ACTING PRESIDENT KUHL: Senator 10 Leichter on the bill. 11 SENATOR LEICHTER: And my thanks 12 to my colleague. 13 I must say that, certainly, 14 listening to the questions of Senator Waldon and 15 Abate and Senator Dollinger and hearing the 16 answers, it seems clear to me that either this 17 bill in certain respects says absolutely nothing 18 or that it's a very blatant attempt to interfere 19 with the judiciary and to change the 20 Constitution by statute. I think this is an 21 effort to overrule the Court's interpretation of 22 the Fourth Amendment and of Article I, Section 23 12 of the state Constitution -- or Section 12 of 5087 1 Article I of the state Constitution. 2 And let me just say that I know 3 that the Governor and Senator Volker have pulled 4 out one or two cases where, on the face of it 5 without all the facts being made clear, it may 6 seem that the Court suppressed evidence which 7 allowed somebody who appeared to be guilty to go 8 free, and I'm sure that any court under any 9 document at some times will make mistakes. 10 But there's nothing worse that we 11 could do than to take what is the greatest 12 document in the history of this world for the 13 governing of a society's affairs and to change 14 the shining jewel of that document, the Bill of 15 Rights -- and that is true whether we speak of 16 the U.S. Constitution or we speak of the state 17 Constitution, and nobody here has shown a 18 problem. If there was a problem, then maybe 19 you'd amend the Constitution. 20 Because nobody has said or shown 21 or can reasonably claim that in some ways we're 22 endangered as a society or that the level of 23 crime relates to the fact that the suppression 5088 1 of evidence is making it impossible for law 2 enforcement officials to do their jobs and 3 protect the public. The fact is there is a 4 minuscule number of cases that are thrown out on 5 suppression of evidence, and in those minuscule 6 cases you can only find minuscule numbers where 7 you could possibly disagree with the Court. 8 But what is important are 9 constitutional protections. We ought to embrace 10 this Constitution. We ought to worship it. We 11 ought to uphold it. We ought to defend it. We 12 ought to protect it and not to undermine it as 13 this bill seeks to do. 14 Senator Volker, at one time, I 15 think when you were answering questions by 16 either Senator Waldon or Senator Abate, I think 17 you stated that we, we the Legislature, have the 18 right to interfere when the Court isn't doing 19 its job. I don't know what that means. I don't 20 think we do. The separation of power doesn't 21 permit that. The Court may be wrong and, if 22 it's wrong when it involves an interpretation of 23 a statute, we can change that statute. But when 5089 1 it involves the Constitution -- and you may 2 disagree and I may disagree -- we can certainly 3 change the composition of the court, and that's 4 a legitimate way to change public policy, but we 5 can't by statute overrule constitutional 6 interpretations, and that's what you seek to do 7 and that involves something even more serious, 8 something that is more dangerous than maybe some 9 criminals getting off, and that is that you are 10 tampering with the basic protections of people 11 in our society. 12 I remember at some period of time 13 after I came to this country, I heard somebody 14 say, and I thought it was the most wonderful 15 statement, that the laws of this country and our 16 law enforcement and judicial system would rather 17 let 100 guilty people go than to convict one 18 innocent person. Yes. That means that we 19 probably under our laws let people go that in a 20 less democratic or liberty-oriented system would 21 be held guilty, and in that way -- maybe it's 22 true. People say there was less crime in Nazi 23 Germany than there is now in Germany. 5090 1 But the fact is that by doing 2 this, we're protecting basic rights of people to 3 be free. You who claim always -- you, the 4 Republicans, that you are concerned about the 5 interference of government in the affairs of 6 people, yet here you want to take away one of 7 the most sacred rights. Unlawful search and 8 seizure is banned. 9 So let me just say, as a 10 political document, I can understand it. As 11 Senator Farley said -- those are immortal words, 12 Senator, which we keep on quoting -- "We're not 13 voting on bills; we're voting on issues." If 14 you want to vote on issues, the political issue, 15 you've got it and you can use this. 16 But let me just tell you. The 17 lovers of liberty, the protectors of democracy, 18 the protectors of the public, are the ones who 19 will vote against this bill. 20 ACTING PRESIDENT KUHL: Read the 21 last section. 22 THE SECRETARY: Section 5. This 23 act shall take effect immediately. 5091 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 48. 5 ACTING PRESIDENT KUHL: Senator 6 Montgomery to explain her vote. 7 SENATOR LEICHTER: Slow roll 8 call. 9 ACTING PRESIDENT KUHL: The 10 Secretary will call the roll slowly. Ring the 11 bells. 12 THE SECRETARY: Senator Abate. 13 SENATOR ABATE: No. 14 THE SECRETARY: Senator Alesi. 15 SENATOR ALESI: Yes. 16 THE SECRETARY: Senator Babbush. 17 (There was no response.) 18 Senator Bruno. 19 (Affirmative indication.) 20 THE SECRETARY: Senator Connor. 21 (Negative indication.) 22 THE SECRETARY: Senator Cook. 23 SENATOR COOK: Yes. 5092 1 THE SECRETARY: Senator 2 DeFrancisco. 3 (There was no response.) 4 Senator DiCarlo. 5 (There was no response.) 6 Senator Dollinger. 7 SENATOR DOLLINGER: Mr. 8 President, just briefly to explain my vote. 9 ACTING PRESIDENT KUHL: Senator 10 Dollinger to explain his vote. 11 SENATOR DOLLINGER: I was very 12 simple, Mr. President. This isn't a vote 13 against my lack of faith in law enforcement. 14 This is my lack of faith in the government and 15 my belief that the powers of the majority 16 expressed in government can not -- can not and 17 never should take away the precious rights that 18 the people of this state put into Article I, 19 Section 12 of the state Constitution. We 20 shouldn't do it. It's the wrong thing to do. 21 No. 22 ACTING PRESIDENT KUHL: Senator 23 Dollinger in the negative. 5093 1 Secretary will continue to call 2 the roll slowly. 3 THE SECRETARY: Senator Espada. 4 SENATOR ESPADA: No. 5 THE SECRETARY: Senator Farley. 6 SENATOR FARLEY: Aye. 7 THE SECRETARY: Senator Gold. 8 SENATOR GOLD: In the negative. 9 THE SECRETARY: Senator Gonzalez, 10 excused. Senator Goodman. 11 (There was no response.) 12 Senator Hannon. 13 (There was no response.) 14 Senator Hoblock. 15 SENATOR HOBLOCK: Yes. 16 THE SECRETARY: Senator 17 Hoffmann. 18 (There was no response.) 19 Senator Holland. 20 SENATOR HOLLAND: Yes. 21 THE SECRETARY: Senator Johnson, 22 excused. 23 Senator Kruger. 5094 1 (There was no response.) 2 Senator Kuhl. 3 SENATOR KUHL: Aye. 4 THE SECRETARY: Senator Lachman. 5 SENATOR LACHMAN: Nay. 6 THE SECRETARY: Senator Lack. 7 SENATOR LACK: Aye. 8 THE SECRETARY: Senator Larkin. 9 SENATOR LARKIN: Aye. 10 THE SECRETARY: Senator LaValle. 11 SENATOR LAVALLE: Aye. 12 THE SECRETARY: Senator Leibell. 13 (There was no response.) 14 Senator Leichter. 15 SENATOR LEICHTER: Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 Leichter to explain his vote. 18 SENATOR LEICHTER: I'm sorry, I 19 have forgotten to do something. Since everybody 20 has been quoting judges and they are great 21 constitutional judges, I'm going to quote a 22 judge who may not be -- certainly known here but 23 may not be known throughout the nation, but he 5095 1 deserves to be quoted, and it's Judge Simons of 2 the Court of Appeals, a Republican judge from 3 upstate New York, and he states in a decision 4 writing for the Court of Appeals where - 5 upholds the suppression of evidence, upholds 6 Section 12 of Article I, and he says -- first, 7 I'm sorry, before I read Judge Simons, just 8 reading from a decision of the Court of 9 Appeals -- I'm sorry from the U.S. Supreme Court 10 which says, a, quote, "'good faith' ", unquote, 11 "exception on the other hand will tend to put a 12 premium on police ignorance of the law." 13 Unquote. 14 Just very briefly from Judge 15 Simons. He says, "The exclusionary rule's 16 purpose is completely frustrated. A premium is 17 placed on the illegal police action, and a 18 positive incentive is provided to others to 19 engage in civil, less lawless acts in the 20 future." A good Republican judge on the Court 21 of Appeals. 22 Thank you, Mr. President. 23 I vote in the negative. 5096 1 ACTING PRESIDENT KUHL: Senator 2 Leichter will be recorded in the negative. 3 Continue the slow roll call. 4 THE SECRETARY: Senator Levy. 5 SENATOR LEVY: Aye. 6 THE SECRETARY: Senator Libous. 7 SENATOR LIBOUS: Aye. 8 THE SECRETARY: Senator Maltese. 9 SENATOR MALTESE: Aye. 10 THE SECRETARY: Senator 11 Marcellino. 12 SENATOR MARCELLINO: Yes. 13 THE SECRETARY: Senator Marchi. 14 SENATOR MARCHI: Aye. 15 THE SECRETARY: Senator 16 Markowitz. 17 (There was no response.) 18 Senator Maziarz. 19 SENATOR MAZIARZ: Aye. 20 THE SECRETARY: Senator Mendez. 21 SENATOR MENDEZ: No. 22 THE SECRETARY: Senator 23 Montgomery. 5097 1 ACTING PRESIDENT KUHL: Senator 2 Montgomery to explain her vote. 3 Senator Markowitz, would you 4 please take your seat. 5 SENATOR MONTGOMERY: Thank you, 6 Mr. President. 7 I look at this legislation, and 8 it's particularly threatening to certain of my 9 constituents as I interpret what I read here, 10 especially the part that says that a police 11 officer - 12 ACTING PRESIDENT KUHL: Senator 13 Montgomery, excuse me just a minute. 14 It's extremely noisy in here. 15 SENATOR MONTGOMERY: Thank you, 16 Mr. President. 17 ACTING PRESIDENT KUHL: Thank 18 you. 19 Senator Montgomery. 20 SENATOR MONTGOMERY: A police 21 officer may approach a person in a public place 22 located within the geographic area of such 23 officer's employment when he has an objective, 5098 1 credible reason not necessarily indicative of 2 criminality, and to the full extent permissible 3 under the Constitution may ask such questions 4 and take such other actions as the officer deems 5 appropriate. 6 So there was a young man in my 7 district just a week ago who was harassed by the 8 police as he was walking down one of the tree 9 lined streets in my district that is part of the 10 historically landmarked area. This youngster 11 was walking from high school and was fixing the 12 buckle on his belt, was stopped by the police 13 and essentially frisked and harassed by the 14 police for no apparent reason. 15 This law seems to put in statute 16 the right of that police officer to do that kind 17 of stopping and harassing of young African 18 American males, in particular, even more than 19 they do already. So I think this is a 20 particularly ominous piece of legislation, and I 21 would hope that all of my colleagues would vote 22 against it as I am because we can not create 23 this kind of police state atmosphere in the 5099 1 communities within our districts in the state. 2 So, Mr. President, I'm voting no. 3 ACTING PRESIDENT KUHL: Senator 4 Montgomery will be recorded in the negative. 5 Continue the slow roll. 6 THE SECRETARY: Senator Nanula 7 voting in the negative earlier today. 8 Senator Nozzolio. 9 SENATOR NOZZOLIO: Aye. 10 THE SECRETARY: Senator Onorato. 11 SENATOR ONORATO: Aye. 12 THE SECRETARY: Senator 13 Oppenheimer. 14 SENATOR OPPENHEIMER: Aye. 15 THE SECRETARY: Senator Padavan. 16 SENATOR PADAVAN: Yes. 17 THE SECRETARY: Senator Paterson. 18 SENATOR PATERSON: No. 19 THE SECRETARY: Senator Present. 20 SENATOR PRESENT: Yes. 21 THE SECRETARY: Senator Rath. 22 SENATOR RATH: Yes. 23 THE SECRETARY: Senator Saland. 5100 1 SENATOR SALAND: Aye. 2 THE SECRETARY: Senator Santiago 3 recorded in the negative earlier today. 4 Senator Seabrook. 5 SENATOR SEABROOK: No. 6 THE SECRETARY: Senator Sears. 7 SENATOR SEARS: Aye. 8 THE SECRETARY: Senator Seward. 9 SENATOR SEWARD: Aye. 10 THE SECRETARY: Senator Skelos. 11 (There was no response.) 12 Senator Smith. 13 SENATOR SMITH: No. 14 THE SECRETARY: Senator Spano. 15 SENATOR SPANO: No. 16 THE SECRETARY: Senator 17 Stachowski. 18 SENATOR STACHOWSKI: Yes. 19 THE SECRETARY: Senator Stafford 20 excused. 21 Senator Stavisky excused. 22 Senator Trunzo. 23 SENATOR TRUNZO: Yes. 5101 1 THE SECRETARY: Senator Tully. 2 SENATOR TULLY: Aye. 3 THE SECRETARY: Senator Velella. 4 SENATOR VELELLA: Yes. 5 THE SECRETARY: Senator Waldon. 6 Volker, I'm sorry. 7 Senator Volker. 8 SENATOR VOLKER: Yes. 9 THE SECRETARY: Senator Waldon. 10 SENATOR WALDON: No. 11 THE SECRETARY: Senator Wright. 12 SENATOR WRIGHT: Aye. 13 ACTING PRESIDENT KUHL: Secretary 14 will call the absentees. 15 THE SECRETARY: Senator Babbush. 16 (There was no response.) 17 Senator DeFrancisco. 18 SENATOR DeFRANCISCO: No. 19 THE SECRETARY: Senator DiCarlo. 20 SENATOR DiCARLO: Aye. 21 THE SECRETARY: Senator Goodman. 22 (There was no response.) 23 Senator Hannon. 5102 1 SENATOR HANNON: Yes. 2 THE SECRETARY: Senator 3 Hoffmann. 4 (There was no response.) 5 Senator Kruger. 6 SENATOR KRUGER: No. 7 THE SECRETARY: Senator Leibell. 8 SENATOR LEIBELL: Aye. 9 THE SECRETARY: Senator 10 Markowitz. 11 SENATOR MARKOWITZ: No. 12 SENATOR PATERSON: Mr. 13 President. 14 ACTING PRESIDENT KUHL: Senator 15 Paterson. 16 SENATOR PATERSON: Mr. President, 17 it's taking a long time to count these votes, 18 don't you think? 19 ACTING PRESIDENT KUHL: You know, 20 I've been trying to educate the clerk on 21 counting, and we were trying to do it on fingers 22 and hands, and we ran out once. Right now we're 23 still trying to calculate. We still got a 5103 1 couple of members to call. We'll be with you in 2 just a minute, Senator Paterson. I may have to 3 take my shoes off to get to my toes, and there's 4 a serious objection up here at the desk about me 5 removing my shoes. But we'll be just a minute. 6 SENATOR GOLD: Mr. President. 7 ACTING PRESIDENT KUHL: Senator 8 Gold, why do you rise? 9 SENATOR GOLD: Well, because 10 there's an unfairness. I mean if Senator Tully 11 was up there, and he's used to counting higher 12 on a golf course than you are, you know, he 13 wouldn't need so many toes. 14 THE SECRETARY: Senator Skelos. 15 SENATOR SKELOS: Yes. 16 ACTING PRESIDENT KUHL: Announce 17 the results. 18 THE SECRETARY: Ayes 36, nays 19 18. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 Secretary will continue to call 23 the controversial calendar, the nine remaining 5104 1 bills. 2 THE SECRETARY: Calendar Number 3 636, by Senator Hoblock, Senate Print 6736, an 4 act to amend the Transportation Law, in relation 5 to regulation of motor buses. 6 ACTING PRESIDENT KUHL: Secretary 7 will read the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 57. 14 ACTING PRESIDENT KUHL: The 15 bill's passed. 16 SENATOR GOLD: Hold on. 17 ACTING PRESIDENT KUHL: Senator 18 Gold. 19 SENATOR GOLD: Yeah. No, Mr. 20 President. Mr. President, I just want to ask 21 the sponsor a quick question of explanation. 22 ACTING PRESIDENT KUHL: Withdraw 23 the roll call. We're now -- or we can -- motion 5105 1 is to reconsider the vote by which the bill 2 passed the house. Secretary will call the roll 3 on reconsideration. 4 (The Secretary called the roll on 5 reconsideration. ) 6 THE SECRETARY: Ayes 57. 7 ACTING PRESIDENT KUHL: Bill is 8 before the house. The Chair recognizes Senator 9 Gold. Senator Hoblock, will you respond to a 10 question? 11 SENATOR HOBLOCK: Yes, Mr. 12 President. 13 ACTING PRESIDENT KUHL: Senator 14 yields. 15 SENATOR GOLD: Yeah, Senator. I 16 know it's late but, very briefly, could you just 17 tell us why we are making this exemption, and I 18 understand that there are other places that have 19 made the exemption but why are we making the 20 exemption? If these regulations went in for 21 safety reasons, then why, if we do your bill 22 which I believe is going to conform to what 23 other people have done, why are we doing it if 5106 1 the original regulations were for the safety of 2 people? 3 SENATOR HOBLOCK: Well, the 4 current exemption applies to operation in a city 5 or unincorporated village. We're adding a 6 county or the jurisdictional area of a 7 transportation authority because what we've been 8 told now is that these motor buses go to a line 9 at the end of the city and, you know, their area 10 may be across the county line but they can't 11 go. What this does is, it gives the 12 transportation authority more flexibility with 13 their bus routes now. 14 SENATOR GOLD: Mr. President, 15 will the Senator yield to one more question? 16 ACTING PRESIDENT KUHL: Senator 17 Hoblock, do you continue to yield? 18 SENATOR HOBLOCK: Yes. 19 ACTING PRESIDENT KUHL: Senator 20 yields. 21 SENATOR GOLD: Senator, I 22 understand what you're saying in terms of if 23 there are places -- and I believe the city of 5107 1 New York is one -- where the regulations do not 2 apply. 3 SENATOR HOBLOCK: Right. 4 SENATOR GOLD: But the question I 5 had, and I know there are other Senators on both 6 sides that have it, and it's just a question to 7 explain. We could conform everybody by making 8 the city of New York and others abide by the 9 standards and that would be a conforming 10 factor. 11 In conforming it the way you're 12 doing it, we are apparently taking out some 13 protection. Now, the answer that would make me 14 feel comfortable is that maybe the protections 15 aren't needed because they've done it another 16 way, et cetera, et cetera, but if it's just 17 conforming it, why do we want to conform it if 18 we're taking away some protections to riders? 19 SENATOR HOBLOCK: Well, the 20 question is whether or not you are taking away 21 protection. What's happened is that, due to 22 federal cutbacks, many of these authorities had 23 to cut routes. They just did it here locally in 5108 1 the tri-county area. Here in the Capital 2 District crossing county lines is like less than 3 half across the city of New York and larger 4 cities in this state, and in order to become a 5 little bit more efficient and to economize, this 6 is what management would like. This is what the 7 drivers would like so they could be a little bit 8 more flexible in operating within that area. 9 Now, keep in mind it's within a 10 county or the jurisdictional area of the 11 authority. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 57. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 THE SECRETARY: Calendar Number 23 651, by Senator Holland, Senate Print 5789A, an 5109 1 act to amend the General Municipal Law, in 2 relation to indexing the interest rate on 3 judgments. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the last section. 6 SENATOR LEICHTER: Explanation. 7 ACTING PRESIDENT KUHL: Senator 8 Holland for an explanation. 9 SENATOR HOLLAND: The Senator 10 knows that the General Municipal Law says that 11 now interest can be no more -- shall not exceed 12 9 percentum on judgments against municipalities. 13 This bill says that it will be the prime 14 interest rate but no more than 9 percent. 15 In the past, up until 1982, the 16 interest rate was 3 percent when the prime 17 interest rate was running at 13 percent or 20 18 percent. So this Legislature raised it to 9 19 percent or not to exceed 9 percent. Therefore, 20 the judges are setting it always at 9 percent 21 and, if we say the prime interest rate, the 22 taxpayers of the individual municipalities will 23 save some money. 5110 1 SENATOR LEICHTER: Mr. President. 2 ACTING PRESIDENT KUHL: Senator 3 Leichter. 4 SENATOR LEICHTER: Mr. President, 5 yes, if Senator Holland would yield, please. 6 ACTING PRESIDENT KUHL: Senator 7 Holland, do you yield to Senator Leichter? The 8 Senator yields. 9 SENATOR LEICHTER: Senator, just 10 to explore the technical language of your bill, 11 you refer to the "Federal Reserve prime lending 12 rate". What is the "Federal Reserve prime 13 lending rate?" I know what the prime rate is 14 but I don't think I know what the Federal 15 Reserve prime lending rate is. 16 SENATOR HOLLAND: I can not tell 17 you exactly, but the -- I can't tell you. 18 SENATOR LEICHTER: Well, may I 19 respectfully suggest that you lay the bill aside 20 until tomorrow, take a look. I think there's a 21 prime rate. I do not believe -- I may be wrong, 22 but I don't believe there's such a thing as a 23 "Federal Reserve prime lending rate". I'll ask 5111 1 the distinguished chairman of the Banking 2 Committee if he knows any such technical gauge 3 or guide of a rate of interest. 4 ACTING PRESIDENT KUHL: Senator 5 Leichter, you have the floor. Senator Farley, 6 under the rule of the house, currently cannot 7 yield to a question because he hasn't spoken on 8 the bill, and I'm a little bit reluctant to bend 9 the rules for the sake of this. 10 Are you asking Senator Holland to 11 lay the bill aside, Senator Leichter? 12 SENATOR LEICHTER: I'm just 13 suggesting that we get, since Senator Holland 14 didn't seem to have an answer to it - 15 SENATOR HOLLAND: I am told that 16 the Federal Reserve sets their own rate and that 17 is what the bill is referring to. 18 SENATOR LEICHTER: Mr. President, 19 if Senator Holland will continue to yield. 20 ACTING PRESIDENT KUHL: Senator 21 Holland, you continue to yield? Senator 22 continues to yield. 23 SENATOR LEICHTER: The Federal 5112 1 Reserve has numerous rates. It has the discount 2 rate; it has the overnight lending rate, and so 3 on. I don't believe that there is anything such 4 as the Federal Reserve prime rate. If there is 5 anybody in the house that says, yes, there is 6 this and this, I'll certainly accept it, but my 7 belief or my - 8 SENATOR HOLLAND: I know what you 9 want. You want the other 9 percent changed also 10 but I will -- I will lay it aside until tomorrow 11 at your suggestion. 12 ACTING PRESIDENT KUHL: Bill is 13 laid aside at the request of the sponsor. 14 SENATOR LEICHTER: I will 15 appreciate it. 16 ACTING PRESIDENT KUHL: Bill is 17 laid aside at the request of the sponsor. 18 Secretary will continue to call 19 the controversial calendar. 20 THE SECRETARY: Calendar Number 21 671, by Senator Holland, Senate Print 201, an 22 act to amend the Vehicle and Traffic Law, in 23 relation to optional equipment. 5113 1 SENATOR DOLLINGER: Explanation. 2 ACTING PRESIDENT KUHL: 3 Explanation has been asked for, Senator 4 Holland. 5 SENATOR HOLLAND: This was 6 suggested by a senior citizens group in 7 Hillburn, New York, where they have buses that 8 pick them up and bring them to the Senior 9 Citizens Center. Because the senior citizens 10 are not as agile, do not hear as well, may not 11 see as well, their suggestion was -- and I agree 12 with their suggestion -- that localities should 13 have the option of having -- of putting the same 14 red light system on the senior citizen buses 15 that are on school buses so that drivers would 16 stop behind the senior citizens' buses, and 17 that's what the bill does. 18 ACTING PRESIDENT KUHL: Senator 19 Dollinger? Senator Stachowski? Senator 20 Leichter? 21 SENATOR DOLLINGER: Mr. 22 President. 23 ACTING PRESIDENT KUHL: Senator 5114 1 Dollinger. 2 SENATOR DOLLINGER: Would Senator 3 Holland yield to a question? 4 ACTING PRESIDENT KUHL: Senator 5 Holland, will you yield to Senator Dollinger? 6 SENATOR HOLLAND: Yes. 7 ACTING PRESIDENT KUHL: Senator 8 yields. 9 SENATOR DOLLINGER: In this bill, 10 is there any distinctive marking on this bus to 11 know -- to trigger the responsibility to stop as 12 you approach it? With a school bus, they're 13 big, they're yellow, they're easily 14 identifiable. I know that in my -- in my home 15 town we have a bus that transports senior 16 citizens that, frankly, looks like just about 17 any other kind of van, and it might be very 18 difficult to distinguish them visually as you 19 approach. You see flashing red lights on a gray 20 pick-up truck or a gray van, you wouldn't 21 necessarily conclude that that's a school bus or 22 the equivalent of a school bus, and it triggers 23 your obligation to stop and not pass it in the 5115 1 oncoming direction. 2 SENATOR HOLLAND: Same type of 3 light system, Senator, that's on the school 4 buses. 5 SENATOR DOLLINGER: Right, but is 6 there any provision in the bill that would 7 require different markings on the bus so you'd 8 be able to recognize what the bus was? The 9 advantage of a school bus is, I think almost 10 everywhere in this state they're painted yellow, 11 they say "school" on it. 12 I'm just concerned that a driver 13 approaching would -- would not, I think, as many 14 drivers do, he sees the yellow school bus, he 15 sees the light flashing and he immediately 16 concludes he's got to stop. You see the light 17 flashing but don't see a yellow school bus, 18 would you come to the same conclusion? 19 SENATOR HOLLAND: That's what the 20 bill says, Senator, have the same flashing red 21 lights as a school bus, and I hope and believe 22 that everyone in the state understands that you 23 must stop behind those red lights. 5116 1 SENATOR DOLLINGER: O.K. Again 2 just for perhaps if this goes to conference or 3 if this comes to the Senate again, I would just 4 think it would be a stronger bill if there were 5 some identifiable markings on the bus so that 6 the whole driving public who is so used to 7 stopping when they're big and yellow when the 8 lights go on, would be able to make the same 9 conclusion. 10 Otherwise, you may have a hollow 11 safety protection for the elderly because the 12 voter or the driver just doesn't recognize the 13 fact that this is the equivalent of a school bus 14 for purposes of stopping. 15 ACTING PRESIDENT KUHL: Senator 16 Stachowski. 17 SENATOR HOLLAND: Let me just 18 finish that if I could, Mr. President. 19 The bill says that the 20 regulations shall be set up by the 21 Commissioner. Hopefully, that will cover your 22 concern. 23 ACTING PRESIDENT KUHL: Senator 5117 1 Stachowski. 2 SENATOR STACHOWSKI: I don't know 3 if I want to ask a question. 4 I just want to maybe clarify that 5 this problem here is, and it's among the 6 transportation people also, is that all these 7 buses that different cities, different towns, 8 use to transport seniors are all different. 9 They're painted different. They look different 10 and when suddenly red lights start flashing on 11 them, I don't think that that alone is going to 12 have a driver awareness that, as Senator 13 Dollinger pointed out, the big yellow bus with 14 "school" on it and the arm that comes down and 15 then the red lights go on, that people are 16 acutely aware that that's a school bus and 17 they're prepared that they might have to stop 18 behind it, where this -- this will be a 19 different -- different kind of bus any place. 20 If you're a visitor in the town and all of a 21 sudden red lights go on a bus that's completely 22 foreign to you, and I don't know as it always - 23 is it mini-buses that they use to do seniors, 5118 1 large buses? Would even senior vans fall under 2 this? And then you'd have to wonder if the van 3 in front of you is going to start flashing red 4 lights. 5 I think the problem here is the 6 concern that there's no uniformity in the 7 vehicle used to transport seniors. I don't 8 think there's an argument on this side that we 9 don't want to provide the same protection or the 10 people that are asking the question, whether 11 that protection should be provided for seniors 12 that are being transported, but isn't there a 13 danger if we have multi-colored, multi 14 dimensional vehicles with flashing red lights 15 and what's going to happen to all the people 16 that are driving and either one realizes that 17 it's going to happen, the other one is from out 18 of town and he probably piles into the car in 19 front of him because he's not ready for that 20 kind of bus to suddenly flash red lights? 21 I think there's a little bit of a 22 problem here and that's just what we're trying 23 to get at, and that's the only question we had 5119 1 is how do we get around this and the fact that 2 the Department is going to come up with the 3 rules, I don't know that that alleviates that 4 problem. 5 ACTING PRESIDENT KUHL: Senator 6 Holland, would you like to address the issue and 7 close debate? 8 SENATOR HOLLAND: Well, again, 9 the Commissioner -- the bill says the regulation 10 is prescribed by the Commissioner. The 11 Commissioner hopefully would solve those 12 problems that you're looking at, and again I 13 certainly believe and hope that everyone in this 14 state and for that fact, other states know that 15 when you come up upon the rear part of a bus 16 with red lights flashing that you stop. 17 ACTING PRESIDENT KUHL: Any other 18 Senator wishing to speak on the bill? 19 Secretary will read the last 20 section. 21 THE SECRETARY: Section 4. This 22 act shall take effect on the 1st day of 23 September. 5120 1 SENATOR LEICHTER: Well, just 2 very briefly, I just want to say to Senator 3 Holland, as I read this bill, this bill would 4 apply to any bus that could transport somebody 5 60 years of age. Doesn't say exclusively, so 6 any bus -- I'm over 60 years. I get on any bus. 7 That bus going to have to have flashing red 8 lights? Because if you'll see at the beginning 9 of the section, it says, any omnibus having seat 10 capacity more than *** and used exclusively and 11 then it says to trans... exclusively, and then 12 it lists various people, but then you go on to 13 say *** "and" after the listing of the people so 14 the "exclusive" as I read it no longer applies 15 to the change that you're making, so it would 16 seem to be that any bus in the state of New York 17 since it could take somebody who is 60 years of 18 age or older, will have to have flashing red 19 lights. 20 ACTING PRESIDENT KUHL: Secretary 21 will read the last section. 22 THE SECRETARY: Section 4. This 23 act shall take effect on the 1st day of 5121 1 September. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll. ) 5 ACTING PRESIDENT KUHL: Announce 6 the results when tabulated. 7 THE SECRETARY: Ayes 56, nays 8 one, Senator Leichter recorded in the negative. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 Secretary will continue to call 12 the controversial calendar. 13 THE SECRETARY: Calendar Number 14 686, by Senator Maziarz, Senate Print 6893, an 15 act to amend the Highway Law, in relation to 16 designating a portion of the state highway 17 system the Senator Ralph Quattrociocchi Memorial 18 highway. 19 ACTING PRESIDENT KUHL: Senator 20 Maziarz, on the bill. 21 SENATOR MAZIARZ: Thank you, Mr. 22 President. 23 Mr. President, this legislation 5122 1 designates State Route 531 Extension which runs 2 in the western portion of Monroe County as the 3 Ralph Quattrociocchi Memorial Highway. 4 Mr. President, shortly after my 5 election to this great institution, I sat down 6 with Senator Ralph Quattrociocchi who had 7 several years ago represented the west side of 8 Monroe County, and Ralph Quattrociocchi provided 9 me in probably the three or four hours that we 10 were together, a great education, an education 11 not only about western Monroe County, Monroe 12 County in general, but also about this 13 institution, and the last thing that Ralph 14 Quattrociocchi said to me was that he not only 15 loved his years of service here, but he loved 16 the New York State Senate as an institution. He 17 loved the individuals that he served with. 18 I was very fortunate about a 19 month before Ralph unexpectedly passed away to 20 have run into him unexpectedly. Ironically 21 enough, it was at a volunteer fire company 22 function. Ralph Q, as he was more affection 23 ately known on the west side of Monroe County, 5123 1 was still out there, still attending the 2 volunteer fire company functions and the church 3 functions and the things that he did so well 4 when he represented western Monroe in this great 5 institution; and he told me then, we had an 6 occasion, as I said, unexpectedly to sit down 7 and to talk for about an hour. He reiterated 8 all those things that he told me about this 9 great house of the Legislature, and he mentioned 10 several names, names on both sides of the aisle, 11 names like George Onorato and Bill Stachowski 12 that he worked with, that worked with him, and I 13 know after speaking to Ralph's wife after he 14 passed away, the great love that he had for this 15 institution, and I think it's only fitting that 16 one project that Senator Quattrociocchi worked 17 on almost his entire career in this house was 18 the extension of Route 531 on the west side of 19 Monroe County, and that road extension has 20 opened up almost all of western Monroe and 21 hopefully will in the future go further west and 22 open up more commerce and business and provide 23 more jobs to people in western Monroe County and 5124 1 provide firms like Kodak and Xerox and Bausch & 2 Lomb areas for expansion on the west side. 3 I know that, when I asked Senator 4 Quattrociocchi the last time I spoke to him, 5 when I asked him what he considered to be his 6 greatest accomplishment during his tenure in the 7 New York State Legislature, he mentioned the 8 extension of Route 531 and he said to me, he 9 said, "In fact, I will tell you that the 10 greatest accomplishment that I had in all my 11 years of public service, both in the county 12 legislature and in the state legislature was the 13 extension of 531" because the extension of 531 14 provided -- opened up western Monroe County to 15 commerce, development and jobs, and that's what 16 Ralph Quattrociocchi was all about. 17 I know that Senator 18 Quattrociocchi or Ralph Q, as he was more 19 affectionately known, had a reputation on the 20 west side of Monroe County for attending each 21 and every event regardless of how small or how 22 large that event would be and as I know some of 23 the people who served with him in this body know 5125 1 full well, that we're certainly going to miss 2 him. The people of Monroe County are going to 3 miss him, and I know that I as a -- as a new 4 legislator here am certainly going to miss the 5 counsel and advice that he provided to me, and I 6 think it's only a fitting tribute, Mr. 7 President, that we adopt this bill today, and I 8 would also invite all of my colleagues in the 9 Legislature to sign onto this bill as 10 co-sponsors for a very worthy tribute to a very 11 worthy colleague here. 12 Thank you, Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Dollinger. 15 SENATOR DOLLINGER: On the bill, 16 Mr. President. 17 I appreciate Senator Maziarz' 18 warm words about Ralph Quattrociocchi. I knew 19 Ralph for a long time, and I shared a ballot 20 with him on three separate occasions; but I just 21 rise because I -- I can't let this moment go 22 without talking about perhaps what, in my 23 judgment, might have been the ultimate tribute 5126 1 to Ralph Quattrociocchi. 2 I don't believe, and I went back 3 through my records, I believe Ralph Quattro 4 ciocchi passed one bill in this house and I, for 5 one, can't believe that in the eight years he 6 spent here, he only had one good idea, and I'm 7 disappointed, I guess, that we have a system 8 that somehow says all the ideas, all the names 9 on bills are on the Republican side and, for 10 some reason, even a bill like this doesn't in 11 its first distribution get the people who shared 12 many a meal with him on this side of the aisle 13 -- I mean George Onorato, Bill Stachowski, Fred 14 Ohrenstein -- who shared many a meal with him, 15 and I guess I share Senator Maziarz' tribute to 16 Ralph, and he certainly deserves to have this 17 highway named after him, but perhaps the most 18 fitting tribute we could give Ralph 19 Quattrociocchi is to forever put away the notion 20 that somehow -- and I believe this is equally 21 appropriate in the Assembly -- that the notion 22 that somehow all the bills have to have Majority 23 names on them, don't get circulated among the 5127 1 Minority, is the wrong idea. 2 I know Senator Velella has talked 3 to me a number of times that this is extremely 4 prevalent in the Assembly. I don't condone it; 5 in fact, I condemn it. It makes silly sense 6 over there; it makes no more sense over here, 7 and my regret is that, frankly, the names of 8 those who shared many a meal with him over here 9 are on not on this bill in the first instance. 10 I don't fault the sponsor. I 11 think, unfortunately perhaps, sometimes our 12 staffs and sometimes through inadvertence, 13 sometimes because it's the end of the year and 14 we want to get this stuff done, we forget those 15 courtesies, but it would seem to me that we 16 would all be paying tribute to Ralph 17 Quattrociocchi by abandoning that silly notion 18 forever and getting used to the notion that we 19 can all work together and create the legislation 20 that will benefit the people of this state and 21 remember a man who made a contribution not only 22 to New York State but to the people in the town 23 of Greece that I represent, and all of western 5128 1 New York State, by pushing for Route 531. 2 ACTING PRESIDENT KUHL: The Chair 3 would just note that, even though the sponsor 4 has indicated he's willing to accept, that this 5 is not something that the desk can do directly. 6 You'll have to file the co-sponsorship form and 7 get the sponsor's signature on it. So the 8 information has to be submitted to Senator 9 Maziarz. 10 The Secretary will read the last 11 section. 12 THE SECRETARY: Section 4. This 13 act shall take effect immediately. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll. ) 17 THE SECRETARY: Ayes 57. 18 ACTING PRESIDENT KUHL: The bill 19 is passed unanimously. 20 Secretary will continue to call 21 the controversial calendar. 22 THE SECRETARY: Calendar Number 23 692, by Senator Libous, Senate Print 4472, an 5129 1 act to amend the Penal Law, in relation to 2 increasing the penalties for repeat convictions 3 of assault. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the last 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 THE SECRETARY: Ayes 57. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 743, by Senator Maltese, Senate Print 490, an 17 act to amend the Public Authorities Law, in 18 relation to providing for free passage for 19 active duty military personnel. 20 SENATOR LEICHTER: Explanation. 21 ACTING PRESIDENT KUHL: Senator 22 Maltese, an explanation of Calendar Number 743 23 has been asked for by Senator Leichter. 5130 1 SENATOR MALTESE: Mr. President, 2 as the bill indicates, this would grant free 3 passage over bridges and tunnels operated by the 4 Triborough Bridge and Tunnel Authority to 5 servicemen and servicewomen stationed in New 6 York City. The bridges and tunnels under the 7 jurisdiction of the Authority are the Triboro 8 Bridge, Throgs Neck Bridge, Verrazano Narrows 9 Bridge, Bronx Whitestone Bridge, Cross Bay 10 Veterans Memorial Bridge, Henry Hudson Bridge, 11 Marine Parkway Gil Hodges Memorial Bridge, 12 Brooklyn Battery Tunnel, Queens Midtown Tunnel, 13 and the fare is $3.50. 14 There are precedents for 15 discounted fares in the Public Authorities Law 16 for the Verrazano Narrows Bridge, the Cross Bay 17 Veterans Memorial Bridge and the Marine Parkway 18 Gil Hodges Bridge. This bill was originally 19 requested by the commander of the Atlantic 20 Fleet, and there are other jurisdictions, other 21 states that provide for free transportation for 22 servicemen, active duty military personnel. 23 SENATOR LEICHTER: Mr. President. 5131 1 ACTING PRESIDENT KUHL: Senator 2 Leichter. 3 SENATOR LEICHTER: Senator 4 Maltese, I have a memorandum in opposition to a 5 somewhat similar bill by the MTA. I want to ask 6 you if you know of any opposition to this bill. 7 SENATOR MALTESE: I don't know of 8 any op... Mr. President, I don't know of any 9 opposition. The number that was given to us of 10 active duty personnel, seriously reduced by the 11 way, is approximately 15,000 active duty 12 personnel in the entire city of New York, so I 13 -- I don't think that too many people would be 14 availing themselves. They'd be -- they'd have 15 to be serving in New York City. 16 SENATOR LEICHTER: Mr. President, 17 on the bill. 18 I just wish to point out - 19 ACTING PRESIDENT KUHL: Senator 20 Leichter, on the bill. 21 SENATOR LEICHTER: -- that there 22 was a memorandum in opposition to a similar bill 23 by Senator Marchi which provided for toll-free 5132 1 passage over the Verrazano Narrows Bridge to 2 vehicles identified as belonging to members of 3 the armed forces or their dependents. 4 Excuse me, Senator Maltese. If 5 you'd yield just for one more question. 6 ACTING PRESIDENT KUHL: Senator 7 Maltese, do you yield? 8 SENATOR MALTESE: Yes. 9 ACTING PRESIDENT KUHL: Senator 10 yields. 11 SENATOR LEICHTER: Yes, I know 12 you read off a list of bridges. Is one of those 13 the Verrazano Bridge? 14 SENATOR MALTESE: Yes, it is. 15 SENATOR LEICHTER: All right. 16 Mr. President, I assume that the Authority would 17 also be in opposition to this bill, although I 18 must say this was -- I think this memo was -- I 19 can't really tell. It was FAXed to me, and I 20 can't tell what year this was, so it's 21 questionable that the MTA would not -- is not 22 opposing this bill, but, Mr. President -- yeah. 23 But, Mr. President, the reason 5133 1 stated in this memo, the reasons that concern me 2 is that we would be subsidizing the federal 3 government. Senator Maltese, I would love to 4 let all our veterans ride free, and I suggest 5 that the federal government, which has a lot 6 more money than we do, provide a means by which 7 those soldiers and sailors and other members of 8 the armed services, men and women who need to go 9 across bridges in the city of New York which is 10 under the jurisdiction of the Triborough Bridge 11 and Tunnel Authority, that it afford them the 12 means to do so without having to pay it out of 13 their own pocket, but I don't think we're in a 14 position to do it, much as I would like to help 15 the veterans. This is not veterans, much as I'd 16 like to help the members of the active armed 17 services, we just don't have the money. We're 18 short of money as it is, Senator. You know the 19 shortfall that the MTA has. You know the 20 decline in service in the Transit Authority in 21 your district and my district and throughout New 22 York. 23 Now, you're -- you're reducing 5134 1 the amount available to support transit by many 2 millions of dollars more. In this particular 3 memo, the Transit -- the MTA says that this will 4 cost millions of dollars per year. Maybe their 5 figures are wrong. It's certainly going to have 6 some cost. That cost ought to be borne by the 7 federal government. 8 As it is, New York State gets, I 9 think, short-changed by the federal government 10 and even more so under the Newt Gingrich 11 Congress. So why should we act like the big 12 shot and say, Here's money that we don't have? 13 I think it's well intentioned but fiscally 14 unwise, Senator. 15 ACTING PRESIDENT KUHL: Senator 16 Marchi. 17 SENATOR MARCHI: I'd like to 18 indicate my support for this legislation. 19 Military personnel especially -- well, we have a 20 situation, even on Staten Island, where there's 21 a split jurisdiction between the Brooklyn side 22 and the Staten Island side. For them to come 23 across it's a $7 hit. Now, a lot of families 5135 1 just can't afford that. 2 The mistake they made, and I've 3 impressed them, why didn't you exact this before 4 you came in? In California, in San Francisco, 5 they have that privilege of going back and forth 6 and they exacted that in negotiations when they 7 were coming in. We have considered their 8 presence a boon to the respective communities 9 wherever they are located, and to deny them 10 this, I mean they -- frankly, we're not -- I 11 don't know, maybe we ought to exempt admirals if 12 they have to pay or something, but really, I 13 don't see any justification for -- for doing 14 something that other communities have done 15 voluntarily in an attempt to induce the presence 16 of -- of the military, and they're paying a 17 heavy price. It's -- it's heavy duty and it's 18 costly to the military people. I know sometimes 19 when they've had a massive transfer of a naval 20 base to a southern port, they were relieved 21 because of the cost elements. They were very 22 happy where they were, but the costs are 23 aggravated when they're in a high expense, high 5136 1 cost area such as our own and where we can 2 facilitate that, this is not -- this is not a 3 heavy exaction. It is something that we would 4 voluntarily and happily have given to them had 5 it been made a condition for their arrival. 6 So I certainly support Senator 7 Maltese's legislation. 8 SENATOR LEICHTER: Mr. 9 President. Mr. President. 10 ACTING PRESIDENT KUHL: Senator 11 Leichter. 12 SENATOR LEICHTER: Would Senator 13 Marchi yield? 14 SENATOR MARCHI: Yes. 15 ACTING PRESIDENT KUHL: Senator 16 Marchi, do you yield? 17 SENATOR LEICHTER: Senator, I 18 appreciate your goodheartedness, but let me ask 19 you why don't you include allowing them the 20 right to ride free on the subway and the buses? 21 Where's the distinction? Why just the bridges? 22 How about those that have to ride the subway and 23 the buses? Why not say - 5137 1 SENATOR MARCHI: Well, that's 2 next year's bill, Senator, I'll introduce - 3 it's a heavy hit. I can see it graphically in 4 that area where you're crossing a bridge or 5 something that the tolls are very high. They're 6 much higher than a subway or a bus or anything 7 else, very high, and if you're a young enlisted 8 man with a family, boy, you're really, really 9 suffering. 10 ACTING PRESIDENT KUHL: Secretary 11 will read the last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect on the 30th day. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll. ) 17 ACTING PRESIDENT KUHL: Announce 18 the results when tabulated. 19 THE SECRETARY: Those recorded in 20 the negative on Calendar Number 743 are Senators 21 Leichter and Paterson. Ayes 55, nays 2. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 5138 1 Continue to call the 2 controversial calendar. 3 THE SECRETARY: Calendar Number 4 755, by Senator Farley, Senate Print 6129, an 5 act to repeal Section 392-a of the General 6 Business Law, relating to the manufacture and 7 sale of used or second-hand hats. 8 ACTING PRESIDENT KUHL: Senator 9 Farley, the day you've been waiting for. 10 SENATOR FARLEY: Thank you, Mr. 11 President. 12 You know, this bill repeals an 13 archaic law, to say the least, that regulates 14 the advertising and sale of used hats. 15 Under the current law sellers of 16 used hats such as antique stores, used clothing 17 stores, charities such as the Salvation Army, 18 St. Vincent DePaul and Junior League's Next to 19 New store, and those sort of things, they must 20 post a sign that's visible from 30 feet and they 21 almost -- they also must announce that on this 22 sign that used hats or second-hand hats are sold 23 at this store, and every hat must be permanently 5139 1 labeled as such, and a violation of this is a 2 misdemeanor, and I don't want Bishop Hubbard or 3 anybody else to go to jail because there isn't a 4 sign posted outside the St. Vincent DePaul 5 store, and this law when it was enacted in 1933, 6 the consumers were potentially defrauded because 7 the hats were refelted, and there may have been 8 some lice in them, I don't know, and they were 9 sold as new to unsuspecting customers. 10 Today, however, fortunately, is 11 not 1930 and many small businesses and charities 12 are at risk because they are unaware of the 13 law. I haven't seen one of those signs in my 14 whole lifetime. Enforcement of this law would 15 lead to higher cost. We don't have a hat police 16 any more, and incidentally I've contacted the 17 Retail Council, the Millinery Information 18 Institute, and neither of them have any 19 objection to repealing this law, and the bill is 20 carried in the Assembly by the Majority Leader, 21 Mr. Bragman, who thinks it's essential that we 22 repeal this law. 23 Are there any questions? 5140 1 ACTING PRESIDENT KUHL: Senator 2 Dollinger. 3 SENATOR DOLLINGER: Could they be 4 called second-head hats instead of second-hand 5 hats? 6 SENATOR FARLEY: Whatever you'd 7 like. 8 SENATOR DOLLINGER: Good. I'll 9 vote in favor. 10 ACTING PRESIDENT KUHL: Senator 11 Marchi. 12 SENATOR MARCHI: Would Senator 13 Farley yield? 14 ACTING PRESIDENT KUHL: Senator 15 Farley, do you yield to Senator Marchi? 16 SENATOR MARCHI: Do you have a 17 message of necessity from Bishop Hubbard? 18 SENATOR FARLEY: I'm sure that 19 Bishop Hubbard would have no objection to this 20 because I'm quite sure the St. Vincent DePaul 21 store has no sign out front. 22 SENATOR MARCHI: You've convinced 23 me. 5141 1 ACTING PRESIDENT KUHL: Any other 2 Senator wishing to speak on the bill? 3 The Secretary will read the last 4 section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 57. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 761, by Senator Seward, Senate Print 6143, an 15 act to amend the Public Service Law, in relation 16 to cellular telephone services. 17 SENATOR PATERSON: Explanation. 18 ACTING PRESIDENT KUHL: Lay the 19 bill aside. 20 SENATOR TULLY: Lay the bill 21 aside. 22 ACTING PRESIDENT KUHL: Lay the 23 bill aside for the day. 5142 1 Secretary will continue to call 2 the controversial calendar. 3 THE SECRETARY: Calendar Number 4 794, by Senator LaValle, Senate Print 7231, an 5 act to amend the Education Law, in relation to 6 requiring higher education report cards. 7 ACTING PRESIDENT KUHL: Secretary 8 will read the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 ACTING PRESIDENT KUHL: Call the 12 roll. 13 (The Secretary called the roll. ) 14 THE SECRETARY: Ayes 57. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 Senator Tully. 18 SENATOR TULLY: May we please 19 return to reports of standing committees? 20 ACTING PRESIDENT KUHL: Return to 21 reports of standing committees. There's a 22 report of the Senate Finance Committee at the 23 desk. I'll ask the Secretary to read. 5143 1 THE SECRETARY: Senator Stafford, 2 from the Committee on Finance, offers up the 3 following bill directly for third reading: 4 Senate Print 7542, by Senator 5 Volker, an act to provide heroism, valor and 6 outstanding performance awards to certain 7 members of the State Police and making an 8 appropriation therefor. 9 ACTING PRESIDENT KUHL: Without 10 objection, the report of the Senate Finance 11 Committee is received. The bill is reported 12 directly to third reading. 13 Secretary will read the title. 14 THE SECRETARY: Calendar Number 15 1218, by Senator Volker, Senate Print 7542, an 16 act to provide heroism, valor and outstanding 17 performance awards to members of the State 18 Police. 19 ACTING PRESIDENT KUHL: Senator 20 Tully. 21 SENATOR TULLY: Yes, Mr. 22 President. Are there messages of necessity and 23 appropriation at the desk? 5144 1 ACTING PRESIDENT KUHL: There is 2 a message of appropriation and necessity at the 3 desk, Senator Tully. 4 SENATOR TULLY: I move we accept 5 the message. 6 ACTING PRESIDENT KUHL: Motion is 7 to accept the message of necessity and 8 appropriation at the desk relative to Calendar 9 Number 1218. All those in favor signify by 10 saying aye. 11 (Response of "Aye.") 12 Opposed nay. 13 (There was no response. ) 14 The message is accepted. 15 The Secretary will read the last 16 section. 17 THE SECRETARY: Section 3. This 18 act shall take effect April 1st. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes 57. 23 ACTING PRESIDENT KUHL: The bill 5145 1 is passed. 2 Senator Tully. 3 SENATOR TULLY: Is there any 4 housekeeping at the desk? 5 ACTING PRESIDENT KUHL: There is. 6 Like to return to motions and resolutions. 7 Chair recognizes Senator Farley. 8 SENATOR FARLEY: Thank you, Mr. 9 President. On behalf of Senator Marcellino, on 10 page 17, I offer the following amendments to 11 Calendar Number 449, Senate Print 6213, and I 12 ask that bill retain its place. 13 ACTING PRESIDENT KUHL: 14 Amendments to Calendar Number 449 are received 15 and adopted. Bill will retain its place on the 16 Third Reading Calendar. 17 Senator Farley. 18 SENATOR FARLEY: Also on behalf 19 of Senator Marcellino, on page 67, I offer the 20 following amendments to Calendar 1042, Senate 21 Print 7132, and I ask that that bill retain its 22 place on the Third Reading Calendar. 23 ACTING PRESIDENT KUHL: 5146 1 Amendments to Calendar Number 1042 are received 2 and adopted. Bill will retain its place on the 3 Third Reading Calendar. 4 Chair recognizes Senator 5 Paterson. 6 SENATOR PATERSON: Mr. President, 7 there was to be a legislative briefing for the 8 Minority after session today. But due to the 9 lateness of the hour, conflicting schedules and 10 the Fourth Amendment to the Constitution, that 11 briefing has been postponed to a date which I'm 12 not certain. 13 ACTING PRESIDENT KUHL: Thank 14 you, Senator Paterson, for that announcement. 15 Chair recognizes Senator Tully. 16 SENATOR TULLY: Thank you, Mr. 17 President. 18 There being no further business, 19 I move we adjourn until Wednesday, May 15th, at 20 at 11:00 a.m. 21 ACTING PRESIDENT KUHL: Without 22 objection, the Senate stands adjourned until 23 tomorrow Wednesday, May 15th, at 11:00 a.m. 5147 1 (Whereupon at 6:30 p.m., the 2 Senate adjourned.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23