Wednesday, May 15, 1996

5148 1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 May 15, 1996 11 11:00 a.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR JOSEPH R. HOLLAND, Acting President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 5149 1 P R O C E E D I N G S 2 ACTING PRESIDENT HOLLAND: The 3 Senate will come to order. 4 Would everyone rise and join me 5 in the Pledge of Allegiance to the nation's 6 flag. 7 (The assemblage repeated the 8 Pledge of Allegiance to the Flag. ) 9 In the absence of clergy, can we 10 all bow our heads in prayer, please. 11 (A moment of silence was 12 observed.) 13 Thank you. Reading of the 14 Journal. 15 THE SECRETARY: In Senate, 16 Tuesday, May 14th. The Senate met pursuant to 17 adjournment, Senator Kuhl in the Chair upon 18 designation of the Temporary President. Prayer 19 by the Reverend Peter G. Young, Blessed 20 Sacrament Church, Bolton Landing. The Journal 21 of Monday, May 13th, was read and approved. On 22 motion, Senate adjourned. 23 ACTING PRESIDENT HOLLAND: 5150 1 Hearing no objection, the Journal stands 2 approved as read. 3 The order of business: 4 Presentation of petitions. 5 Messages from the Assembly. 6 Messages from the Governor. 7 Reports of standing committees. 8 Reports of select committees. 9 Communications and reports from 10 state officers. 11 Motions and resolutions. 12 Senator Skelos. 13 SENATOR SKELOS: Mr. President, 14 please remove the sponsor's star from Calendar 15 Number 347. 16 ACTING PRESIDENT HOLLAND: The 17 star will be removed. 18 Senator Saland. 19 SENATOR SALAND: Mr. President, 20 will you please star Calendar 1094, Senate 4059. 21 ACTING PRESIDENT HOLLAND: Senate 22 4059 will be starred at the request of the 23 sponsor. 5151 1 SENATOR SALAND: Yes, Mr. 2 President. It's my bill, not yours. 3 ACTING PRESIDENT HOLLAND: I 4 know. 5 Senator Skelos. 6 SENATOR SKELOS: Mr. President, I 7 hand up the following resolution on behalf of 8 Senator Bruno and ask that the title be read and 9 move for its immediate adoption. 10 ACTING PRESIDENT HOLLAND: 11 Secretary will read, please. 12 THE SECRETARY: By Senator Bruno, 13 Legislative Resolution commending Carl W. Risch, 14 Lodge Secretary and Post Exalted Ruler of the 15 Clifton Park Lodge 2466 B.P.O.E., upon the 16 occasion of his installation as state 17 vice-president for the Northeast District of the 18 New York State Elks Association, May 18, 1996. 19 ACTING PRESIDENT HOLLAND: The 20 question is on the resolution. All in favor say 21 aye. 22 (Response of "Aye.") 23 Opposed nay. 5152 1 (There was no response. ) 2 The resolution is adopted. 3 Senator Skelos. 4 SENATOR SKELOS: Mr. President, 5 on behalf of Senator Bruno, I hand up a 6 resolution and ask that the title be read and 7 move its immediate adoption. 8 ACTING PRESIDENT HOLLAND: 9 Secretary will read. 10 THE SECRETARY: By Senator Bruno, 11 Legislative Resolution memorializing the 12 Honorable George E. Pataki to proclaim the month 13 of May 1996 as Arthritis Month in the state of 14 New York. 15 ACTING PRESIDENT HOLLAND: The 16 question is on the resolution. All in favor say 17 aye. 18 (Response of "Aye.") 19 Opposed nay. 20 (There was no response. ) 21 The resolution is adopted. 22 Senator Sears? 23 Senator Skelos. 5153 1 SENATOR SKELOS: Mr. President, I 2 believe there's a privileged resolution at the 3 desk by Senator Saland. May we please have the 4 title read and move for its adoption, but prior 5 to its adoption would you please recognize 6 Senator Saland. 7 ACTING PRESIDENT HOLLAND: 8 Secretary will read. 9 THE SECRETARY: By Senator 10 Saland, Legislative Resolution extending the 11 grateful appreciation of the Senate of the state 12 of New York to Angelo M. Nero, Sergeant-at-Arms, 13 in recognition of his faithful service. 14 ACTING PRESIDENT HOLLAND: 15 Senator Saland. 16 SENATOR SALAND: Mr. President, 17 thank you for recognizing me. 18 It is indeed an extraordinary 19 pleasure for me to rise and say some genuinely 20 fond things about a man who has served us well 21 as a Sergeant-at-Arms, now for I think quite 22 longer than we even deserve, Angelo. We know 23 we're not the easiest people at times to serve. 5154 1 You've been a marvelous 2 gentleman, a man who has -- has enriched and 3 every day contributed to really the well-being 4 of this house. 5 The resolution at great length 6 talks in terms of your valuable contributions to 7 your community, talks about your life of public 8 service. While we certainly would like to join 9 with you in any number of those endeavors that 10 you've been involved in, there's one particular 11 ly that I would hope that none of us ever have 12 the opportunity to have the benefit of your fine 13 work, and that is your position as Columbia 14 County Coroner. That I would hope would befall 15 others. 16 Angelo has served us and served 17 this institution with the kind of quiet 18 competence, general good will, certainly a 19 willingness to work with and work for each and 20 every member of this house, 61 strong. He's 21 been a credit to the entire staff of the 22 Sergeant-at-Arms who serve us so admirably. 23 He's been really a credit to this institution. 5155 1 We thank you for everything that 2 you have done for us. We -- I'm sorry to see 3 you depart, but we know that it's only for the 4 best of reasons, because short of falling on 5 bended knee, I'd love to have you stay, Angelo. 6 We wish you nothing but the best and thank you 7 and we'll always remember your service with the 8 greatest of appreciation. 9 Mr. President, I would like to 10 open this resolution to all the members and 11 certainly I would welcome their joining in 12 honoring Angelo as he departs this institution. 13 ACTING PRESIDENT HOLLAND: I'm 14 sure all members would like to be placed on this 15 resolution, Senator Saland. If not -- Senator 16 Gold. 17 SENATOR GOLD: Thank you. I 18 obviously would like to be on it, and this is 19 the kind of one that makes us smile because in a 20 very, very, very, very political environment 21 it's nice that there are people here who love 22 the institution and treat all of us the same. 23 I remember that day when I put my 5156 1 Diet Coke down for a minute and Senator Skelos 2 went for it, and Angelo slapped his hand, even 3 though he was a Republican. I was very grateful 4 for that; but the bottom line, that there really 5 are a lot of political things that happen here 6 but there are some staff, the desk staff and the 7 Sergeant-at-Arms, and Angelo particularly shows 8 this in his personality, who make some of us in 9 the Minority feel like we are Senators on a 10 day-to-day basis and we are certainly very, very 11 grateful for that, and I know I wish him well. 12 ACTING PRESIDENT HOLLAND: 13 Senator Skelos? Senator Farley. 14 SENATOR FARLEY: Thank you, Mr. 15 President. 16 Angelo, I'd have to say, you 17 know, in this partisan house you're certainly 18 very non-partisan and everyone loves you and 19 what you've done for us as Senators and the 20 professional way that you've handled that little 21 lounge in there, Angelo's Boutique, whatever you 22 want to call it. You've been a dear friend. We 23 all hate to see you leave. As a matter of fact, 5157 1 we were going to try to hope that you wouldn't 2 leave because you've done such a great job. 3 We're certainly going to miss 4 you, but I can't recall a single time when you 5 lost patience, and there's a lot of times that 6 you could be impatient but -- with this crew as 7 they hang around the table there, and he has to 8 keep restocking it and doing all of those things 9 that make our life a little bit more pleasant 10 around here. 11 We're proud of you. We're 12 grateful to you, and we wish you well. All the 13 best wishes to you, Angelo. 14 ACTING PRESIDENT HOLLAND: 15 Senator Skelos. 16 SENATOR SKELOS: Mr. President, 17 just following up on Senator Gold's comments, I 18 want to assure Senator Gold that I treat him no 19 differently than I treat Senator Stachowski. 20 But this is a wonderful - 21 wonderful institution, and one of the reasons 22 why we have a great institution is the staff and 23 the Sergeant-of-Arms and all the people that 5158 1 really accommodate us on a daily basis and make 2 our lives so much better and, Angelo, you've 3 been an integral part of that. 4 If there was a place to go in and 5 have a little peace and quiet, it wasn't 6 necessarily in the lounge part but by where you 7 were. You treat us with respect, you treat us 8 well. You've got decaffeinated coffee for me 9 which I do appreciate, and on behalf of Senator 10 Bruno, we just want to say thank you as a body 11 for the great service that you have given us and 12 again for making our life a lot more pleasant. 13 We thank you and we wish you good 14 health. 15 ACTING PRESIDENT HOLLAND: The 16 question is on the resolution. All in favor 17 signify by saying aye. 18 (Response of "Aye.") 19 Opposed nay. 20 (There was no response. ) 21 The resolution is adopted. 22 Angelo, on behalf of all the 23 members, thank you for being with us. 5159 1 (Standing applause. ) 2 Senator Skelos. 3 SENATOR SKELOS: I believe there 4 are some substitutions at the desk. Can we 5 please make them? No? No substitutions. 6 ACTING PRESIDENT HOLLAND: No 7 substitutions, Senator. 8 SENATOR SKELOS: O.K. Is there 9 any other motions or resolutions? Then, Mr. 10 President, if we could take up the 11 non-controversial calendar. 12 ACTING PRESIDENT HOLLAND: 13 Secretary will read. 14 THE SECRETARY: On page 30, 15 Calendar Number 800, by Senator Velella, Senate 16 Print 4451-C, an act to amend the Retirement and 17 Social Security Law, in relation to making 18 certain technical corrections. 19 ACTING PRESIDENT HOLLAND: Read 20 the last section. 21 SENATOR PATERSON: Lay it aside. 22 ACTING PRESIDENT HOLLAND: Laid 23 aside. 5160 1 THE SECRETARY: Calendar Number 2 801, by Senator Maltese, Senate Print Number 3 4722-A. 4 SENATOR PATERSON: Lay aside. 5 ACTING PRESIDENT HOLLAND: Lay 6 the bill aside. 7 THE SECRETARY: Calendar Number 8 802, by Senator Maltese, Senate Print Number 9 4725-A. 10 ACTING PRESIDENT HOLLAND: Lay 11 the bill aside. 12 THE SECRETARY: Calendar Number 13 804, by Senator Maltese, Senate Print Number 14 5911, an act to allow correction members of the 15 New York City retirement system. 16 ACTING PRESIDENT HOLLAND: Read 17 the last section. 18 THE SECRETARY: Section 2. This 19 act shall take effect immediately. 20 ACTING PRESIDENT HOLLAND: There 21 is a home rule message at the desk. Call the 22 roll. 23 (The Secretary called the roll. ) 5161 1 THE SECRETARY: Ayes - 2 SENATOR LEICHTER: Is this 802? 3 ACTING PRESIDENT HOLLAND: This 4 is 804, Senator. 5 SENATOR LEICHTER: O.K., what 6 happened to 802? 7 ACTING PRESIDENT HOLLAND: 802 8 was laid aside, Senator. 9 SENATOR LEICHTER: Thank you. 10 THE SECRETARY: Ayes 34. 11 ACTING PRESIDENT HOLLAND: Was 12 there a request to lay this bill aside? 13 SENATOR LEICHTER: Yes. 14 ACTING PRESIDENT HOLLAND: Lay 15 the bill aside. 16 THE SECRETARY: Calendar Number 17 805, by Senator Larkin, Senate print 6866, an 18 act to amend the Retirement and Social Security 19 Law, in relation to the borrowing of 20 contributions. 21 ACTING PRESIDENT HOLLAND: Read 22 the last section. 23 THE SECRETARY: Section 3. This 5162 1 act shall take effect immediately. 2 ACTING PRESIDENT HOLLAND: Call 3 the roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 34. 6 ACTING PRESIDENT HOLLAND: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 806, by Senator Trunzo, Senate Print 7042, an 10 act to amend the Education Law, in relation to 11 the benefits to be provided. 12 ACTING PRESIDENT HOLLAND: Read 13 the last section. 14 THE SECRETARY: Section 3. This 15 act shall take effect immediately. 16 ACTING PRESIDENT HOLLAND: Call 17 the roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 34. 20 ACTING PRESIDENT HOLLAND: The 21 bill is passed. 22 THE SECRETARY: Calendar Number 23 812, by Senator Skelos, Senate Print 744, an act 5163 1 to amend the Vehicle and Traffic Law, in 2 relation to out-of-state convictions. 3 ACTING PRESIDENT HOLLAND: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the 1st day of 7 November. 8 ACTING PRESIDENT HOLLAND: Call 9 the roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 35. 12 ACTING PRESIDENT HOLLAND: The 13 bill is passed. 14 THE SECRETARY: Calendar Number 15 813, by Senator Wright, Senate Print 2262, an 16 act to amend the Vehicle and Traffic Law, in 17 relation to having care or control of a motor 18 vehicle. 19 ACTING PRESIDENT HOLLAND: Read 20 the last section. 21 THE SECRETARY: Section 3. This 22 act shall take effect on the 1st day of 23 November. 5164 1 ACTING PRESIDENT HOLLAND: Call 2 the roll. 3 (The Secretary called the roll. ) 4 THE SECRETARY: Ayes 37. 5 ACTING PRESIDENT HOLLAND: The 6 bill is passed. 7 THE SECRETARY: Calendar Number 8 818, by Senator Levy, Senate Print 6492, an act 9 to amend the Vehicle and Traffic Law, in 10 relation to periods of license revocation. 11 ACTING PRESIDENT HOLLAND: Read 12 the last section. 13 THE SECRETARY: Section 3. This 14 act shall take effect on the 1st day of 15 November. 16 ACTING PRESIDENT HOLLAND: Call 17 the roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 37 - 20 Senator Gold. 21 SENATOR GOLD: If I could briefly 22 explain my vote. 23 ACTING PRESIDENT HOLLAND: 5165 1 Senator Gold to explain his vote. 2 SENATOR GOLD: Yeah, I know I'm 3 not the only one here, and it's both sides of 4 the aisle, but when I see the last three bills 5 it's very depressing. I know we have passed a 6 number of bills unanimously and now this is a 7 new one dealing with the area of driving, 8 driver's license, and it's depressing to me that 9 we keep seeing them and we don't seem to get a 10 breakthrough, and I'm not blaming certainly the 11 members in this house. 12 I don't know where the blame 13 falls, but as recently as I think this last 14 week, a pregnant -- seven-month pregnant woman 15 in the city of New York was mowed down by an 16 auto accident that occurred between someone 17 whose license had been suspended three times and 18 someone whose license had been suspended 12 19 times. The seven-month fetus was killed; the 20 woman has been in the hospital in serious 21 condition. I don't know the latest on her, but 22 the point is that I just don't think it's enough 23 for one-house bills, and I put no blame on 5166 1 Senator Levy or anybody in the Majority, but I 2 think that wherever the fault lies, this maybe 3 ought to be the year to stop it. 4 There's no way to explain to the 5 public-at-large why people whose licenses are 6 constantly suspended are allowed to continue 7 driving, or why, as Senator DiCarlo and I have 8 suggested, the automobiles are not taken away 9 and forfeited; why some of these people are not 10 put in jail for drunk driving on the first 11 occasion or that we do something. 12 We are allowing citizens to be 13 mowed down every day, and it is our joint 14 responsibility. 15 I vote yes. 16 THE SECRETARY: Ayes 37. 17 ACTING PRESIDENT HOLLAND: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 823, by Senator DiCarlo, Senate Print 7068, an 21 act to repeal paragraph (l) of Subdivision 4 of 22 Section 541 of the Executive Law. 23 ACTING PRESIDENT HOLLAND: Read 5167 1 the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT HOLLAND: Call 5 the roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 38. 8 ACTING PRESIDENT HOLLAND: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 837, by Senator Maziarz, Senate Print 6874, an 12 act to amend the Highway Law and others, in 13 relation to filing of appropriation maps. 14 ACTING PRESIDENT HOLLAND: Read 15 the last section. 16 THE SECRETARY: Section 20. This 17 act shall take effect immediately. 18 ACTING PRESIDENT HOLLAND: Call 19 the roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 38. 22 ACTING PRESIDENT HOLLAND: The 23 bill is passed. 5168 1 THE SECRETARY: Calendar Number 2 847, by Senator Levy, Senate Print 7352, an act 3 to amend the Vehicle and Traffic Law, in 4 relation to civil penalties. 5 ACTING PRESIDENT HOLLAND: Read 6 the last section. 7 THE SECRETARY: Section 3. This 8 act shall take effect on the 1st day of 9 September. 10 ACTING PRESIDENT HOLLAND: Call 11 the roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 38. 14 ACTING PRESIDENT HOLLAND: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 851, by Senator Saland, Senate Print 1437-A, an 18 act to amend the Penal Law, in relation to 19 certain consecutive sentences of imprisonment. 20 ACTING PRESIDENT HOLLAND: Read 21 the last section. 22 THE SECRETARY: Section 4. This 23 act shall take effect on the 1st day of 5169 1 November. 2 ACTING PRESIDENT HOLLAND: Call 3 the roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 38. 6 ACTING PRESIDENT HOLLAND: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 852, by Senator Velella, Senate Print 1851, an 10 act to amend the Penal Law and the Criminal 11 Procedure Law, in relation to forgery and 12 illegal possession. 13 ACTING PRESIDENT HOLLAND: Read 14 the last section. 15 THE SECRETARY: Section 5. This 16 act shall take effect on the 1st day of 17 November. 18 ACTING PRESIDENT HOLLAND: Call 19 the roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 39. 22 ACTING PRESIDENT HOLLAND: The 23 bill is passed. 5170 1 THE SECRETARY: Calendar Number 2 865, by Senator Velella, Senate Print 7118, an 3 act to amend the Penal Law, in relation to 4 including certain documents. 5 ACTING PRESIDENT HOLLAND: Read 6 the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect on the 1st day of 9 November. 10 ACTING PRESIDENT HOLLAND: Call 11 the roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 39. 14 ACTING PRESIDENT HOLLAND: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 880, by Senator Skelos, Senate Print 1965-A, an 18 act to amend the Vehicle and Traffic Law, in 19 relation to distinctive license plates for gold 20 star mothers. 21 ACTING PRESIDENT HOLLAND: Read 22 the last section. 23 THE SECRETARY: Section 2. This 5171 1 act shall take effect January 1. 2 ACTING PRESIDENT HOLLAND: Call 3 the roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 39. 6 ACTING PRESIDENT HOLLAND: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 889, by member of the Assembly Pordum, Assembly 10 Print 8844, an act to redistribute 1996 bond 11 volume allocations. 12 ACTING PRESIDENT HOLLAND: Read 13 the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 ACTING PRESIDENT HOLLAND: Call 17 the roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 39. 20 ACTING PRESIDENT HOLLAND: The 21 bill is passed. 22 THE SECRETARY: Calendar Number 23 903, by Senator Nozzolio, Senate Print 7092, an 5172 1 act to amend the Real Property Law, in relation 2 to rules and regulations. 3 ACTING PRESIDENT HOLLAND: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the 30th day. 7 ACTING PRESIDENT HOLLAND: Call 8 the roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 39. 11 ACTING PRESIDENT HOLLAND: The 12 bill is passed. 13 THE SECRETARY: Calendar Number 14 950, by Senator Larkin, Senate Print 6150, an 15 act to amend the Election Law, in relation to 16 the hours for voting at primary elections. 17 SENATOR PATERSON: Lay aside. 18 ACTING PRESIDENT HOLLAND: Lay 19 the bill aside. 20 THE SECRETARY: Calendar Number 21 959, by Senator Saland, Senate Print 3623-B, an 22 act to amend the Insurance Law, in relation to 23 permitting an employer or employer-sponsored 5173 1 irrevocable trust. 2 ACTING PRESIDENT HOLLAND: Read 3 the last section. 4 THE SECRETARY: Section 6. This 5 act shall take effect immediately. 6 ACTING PRESIDENT HOLLAND: Call 7 the roll. 8 (The Secretary called the roll. ) 9 THE SECRETARY: Ayes 40. 10 ACTING PRESIDENT HOLLAND: The 11 bill is passed. 12 THE SECRETARY: Calendar Number 13 989, by Senator Spano, Senate Print 6209. 14 SENATOR SKELOS: Lay aside for 15 the day. 16 ACTING PRESIDENT HOLLAND: Lay 17 the bill aside for the day. 18 THE SECRETARY: Calendar Number 19 1015, by Senator Maziarz, Senate Print 7431, an 20 act to authorize the construction of new school 21 facilities. 22 ACTING PRESIDENT HOLLAND: Read 23 the last section. 5174 1 THE SECRETARY: Section 10. This 2 act shall take effect immediately. 3 ACTING PRESIDENT HOLLAND: Call 4 the roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 40. 7 ACTING PRESIDENT HOLLAND: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 1024, by Senator Holland, Senate Print 2245, an 11 act relating to solid waste treatment and 12 disposal in Orange County. 13 ACTING PRESIDENT HOLLAND: Read 14 the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT HOLLAND: Call 18 the roll. 19 (The Secretary called the roll. ) 20 THE SECRETARY: Ayes 40. 21 ACTING PRESIDENT HOLLAND: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 5175 1 1032, by Senator Skelos, Senate Print 6170-A, an 2 act authorizing the assessor of the county of 3 Nassau to accept applications. 4 ACTING PRESIDENT HOLLAND: Read 5 the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT HOLLAND: Call 9 the roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 40. 12 ACTING PRESIDENT HOLLAND: The 13 bill is passed. 14 THE SECRETARY: Calendar Number 15 1033, by Senator LaValle, Senate Print 6196, an 16 act to amend Chapter 767 of the Laws of 1987, 17 amending the Town Law. 18 ACTING PRESIDENT HOLLAND: Read 19 the last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 ACTING PRESIDENT HOLLAND: Call 23 the roll. 5176 1 (The Secretary called the roll. ) 2 THE SECRETARY: Ayes 40. 3 ACTING PRESIDENT HOLLAND: The 4 bill is passed. 5 THE SECRETARY: Calendar Number 6 1036, by Senator Cook, Senate Print 6634, an act 7 to amend the General Municipal Law, in relation 8 to establishing the Fallsburg-Liberty-Thompson 9 Industrial Development Agency. 10 ACTING PRESIDENT HOLLAND: There 11 is a home rule message at the desk. Read the 12 last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT HOLLAND: Call 16 the roll. 17 (The Secretary called the roll. ) 18 THE SECRETARY: Ayes 41, nays 1, 19 Senator Leichter recorded in the negative. 20 ACTING PRESIDENT HOLLAND: The 21 bill is passed. 22 THE SECRETARY: Calendar Number 23 1037, by Senator Maziarz, Senate Print 6694, an 5177 1 act to amend the General Municipal Law, in 2 relation to the creation of a special study 3 commission. 4 ACTING PRESIDENT HOLLAND: Read 5 the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT HOLLAND: Call 9 the roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 42. 12 ACTING PRESIDENT HOLLAND: The 13 bill is passed. 14 THE SECRETARY: Calendar Number 15 1040, by Senator Holland, Senate Print 6927-A, 16 an act authorizing the issuance of bonds. 17 ACTING PRESIDENT HOLLAND: There 18 is no home rule message at the desk. Lay the 19 bill aside. 20 THE SECRETARY: Calendar Number 21 1044, by Senator Tully, Senate Print 7336-A, an 22 act authorizing the assessor of the county of 23 Nassau. 5178 1 ACTING PRESIDENT HOLLAND: Read 2 the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT HOLLAND: Call 6 the roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Ayes 42. 9 ACTING PRESIDENT HOLLAND: The 10 bill is passed. 11 THE SECRETARY: Calendar Number 12 1082, by Senator Sears, Senate Print 7033, an 13 act to amend the Tax Law and Chapter 644 of the 14 Laws of 1984. 15 ACTING PRESIDENT HOLLAND: Read 16 the last section. 17 THE SECRETARY: Section 3. This 18 act shall take effect immediately. 19 ACTING PRESIDENT HOLLAND: Call 20 the roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 42. 23 ACTING PRESIDENT HOLLAND: The 5179 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 1105, by Senator Saland. 4 SENATOR GOLD: Lay aside. 5 ACTING PRESIDENT HOLLAND: Lay 6 the bill aside. 7 Senator Skelos, that completes 8 the non-controversial reading of the calendar. 9 SENATOR SKELOS: Mr. President, 10 if we could take up the controversial calendar 11 at this time. 12 ACTING PRESIDENT HOLLAND: The 13 Secretary will read. 14 THE SECRETARY: On page 30, 15 Calendar Number 800, by Senator Velella, Senate 16 Print Number 4451-C, an act to amend the 17 Retirement and Social Security Law. 18 SENATOR LEICHTER: Explanation. 19 ACTING PRESIDENT HOLLAND: 20 Senator Velella, an explanation has been 21 requested. 22 SENATOR VELELLA: Could we lay 23 that aside temporarily until I have a chance to 5180 1 get my file on it. I'll be back with it in five 2 minutes. 3 THE SECRETARY: Calendar - 4 ACTING PRESIDENT HOLLAND: Lay 5 aside temporarily. 6 THE SECRETARY: -- Number 801, by 7 Senator Maltese, Retirement and Social Security 8 Law. 9 SENATOR LEICHTER: Explanation. 10 ACTING PRESIDENT HOLLAND: There 11 is a home rule message at the desk. 12 Senator Maltese. He has asked 13 for an explanation. 14 SENATOR MALTESE: Mr. President, 15 this bill would allow Tier II and Tier III New 16 York City correction officers below the rank of 17 captain who participate in the 20-year improved 18 benefit retirement plan to borrow against their 19 own accumulated contributions. 20 This bill was requested by the 21 Correction Officers Benevolent Association and 22 is backed by the Correction Captains 23 Association. 5181 1 Tier I and II, New York City 2 employees are now granted this right to borrow 3 against their accumulated member contributions 4 and this would give equity to these correction 5 officers. 6 The fiscal implications have been 7 estimated as approximately $300,000, and the 8 bill is supported -- the bill is opposed by the 9 city of New York. 10 ACTING PRESIDENT HOLLAND: 11 Senator Leichter. 12 SENATOR LEICHTER: Yes, Mr. 13 President. 14 If Senator Maltese would yield. 15 Senator, I want to direct your attention to the 16 memorandum in opposition of the City. Let me 17 read sections of it, and I'd appreciate your 18 comments on it. 19 The memorandum states, and I 20 quote from a paragraph: "This bill will result 21 in a large increase in costs to the City if it 22 is enacted. On that basis alone, the City 23 strongly opposes its passage by the 5182 1 Legislature. However, the City's opposition is 2 further strengthened by the fact that this bill 3 would further circumvent and negate the terms of 4 various collective bargaining agreements entered 5 into by the City and the unions representing 6 employees in Department of Correction titles." 7 And then it goes on to say, "In 8 the letter attached to each of these agreements, 9 the City and these unions agreed to jointly 10 support legislation which provides pension Tier 11 II and Tier III correctional personnel with an 12 enhanced half pay pension plan after 20 years of 13 service. These increased benefits are funded 14 solely from pension contributions made by the 15 participants. In the negotiation of the 16 agreement, the parties clearly agreed that the 17 City would not incur any costs for these 18 enhanced benefits. The subsequent legislation 19 enacted these improved pension plans in strict 20 adherence to the term of the agreements between 21 the parties." 22 Senator, do you know whether 23 there was such an agreement between the unions 5183 1 and the City which was part of a collective 2 bargaining agreement? 3 SENATOR MALTESE: Mr. President, 4 I am advised that there was, in fact, such an 5 agreement. 6 SENATOR LEICHTER: If there was 7 such an agreement, Senator, on what basis are we 8 now, the Legislature, disregarding that 9 agreement that was apparently entered into by 10 the union, and enacting a benefit that the union 11 agreed to forego? 12 SENATOR MALTESE: Mr. President, 13 it's on the basis of equity. This benefit is 14 now granted to other similarly situated 15 employees of the City and there's a feeling that 16 this disparity, this inequity should be 17 corrected by giving the Correction Officers 18 Benevolent Association and their members the 19 same benefit. 20 The City traditionally opposes 21 these changes in the -- in the law on the basis 22 of cost. The -- while the City's estimate of 23 cost is somewhat different than the cost 5184 1 estimated by the proponents of the bill, at the 2 same time it does not seem an inordinately large 3 sum to correct a benefit that, subsequent to the 4 agreement, was in fact granted to other 5 employees similarly situated. 6 ACTING PRESIDENT HOLLAND: 7 Senator Leichter. 8 SENATOR LEICHTER: If you'd 9 continue to yield, Senator Maltese, let me see 10 if I understand this and everybody understands 11 it. 12 There was an agreement between 13 the city of New York and the union in which the 14 union explicitly agreed that it would not seek 15 this particular benefit for some of its workers, 16 and that was reached through collective 17 bargaining. Whether it was a wise agreement on 18 the part of the City and/or the union, I do not 19 know, but I know it was reached. It is reduced 20 to writing, and you're saying now that the 21 Legislature is going to tear up this agreement 22 that the union made and give the union a benefit 23 that, through collective bargaining, it agreed 5185 1 not to seek. 2 SENATOR MALTESE: Mr. President, 3 I have not examined the agreement per se as a - 4 and I would respectfully ask Senator Leibell - 5 I'm sorry, Senator Leichter, if he in fact has 6 examined the agreement. 7 I think, like many agreements, it 8 could very well be subject to various 9 interpretations. If I had the agreement before 10 me, I would be glad to study the individual 11 paragraphs and sections and what have you, but 12 the fact of the matter is that the correction 13 officers and the correction captains have 14 requested this. 15 There has been a considerable 16 period of time for the City to -- to bring these 17 agreements up to Albany. Their representative, 18 Robert Harding, sees us on a weekly basis. The 19 agreements themselves were not -- were not 20 provided to me, and I can only act on the basis 21 of correcting an inequity that I believe is the 22 Legislature's function, and that's why this bill 23 is on the calendar today. 5186 1 SENATOR LEICHTER: Mr. President, 2 if I could ask Senator Maltese to continue to 3 yield. 4 ACTING PRESIDENT HOLLAND: 5 Senator Maltese, you continue to yield? 6 SENATOR MALTESE: Excuse me? 7 ACTING PRESIDENT HOLLAND: Do you 8 continue to yield? 9 SENATOR MALTESE: Yes. 10 SENATOR LEICHTER: Senator, I 11 just read you a statement by the City where the 12 City stated explicitly that there was such an 13 agreement. I asked you if that is so, and you 14 said yes. Now, you tell me, well, you're really 15 not sure, you have not read the agreement. I 16 have not read the agreement. I just read your 17 memo and the City's memo earlier today. 18 In view of that, Senator, and it 19 may well be that there was not an agreement, I 20 haven't talked to the proponents of this 21 legislation, I'm going to ask you if you will 22 kindly lay it aside so that you and I will have 23 a chance to look at the agreement. After you 5187 1 look at the agreement, you may wish to modify 2 your position. There may be an answer to it, 3 but I certainly think that we have an obligation 4 as legislators to know whether, in fact, there 5 was such an agreement which you seem to say 6 there was. We ought to look at that agreement 7 because certainly if there was an agreement that 8 explicitly -- where the union explicitly agreed 9 not to seek this benefit, then I think that's 10 something that all of the members here ought to 11 know. 12 SENATOR MALTESE: Mr. President, 13 the -- the bill has been in print since May 14 3rd. The City Council of the city of New York 15 who is in the best -- that is in the best 16 position to look over the ramifications of the 17 agreement and the fiscal aspects of the 18 agreement, provided a home rule message. In 19 their collective wisdom, they have in effect 20 supported the bill. Only for the support of the 21 two associations representing those persons 22 affected, I feel that that is adequate support 23 for the bill, in my view. 5188 1 SENATOR LEICHTER: Senator, if 2 you'd continue to yield. While I share your 3 high opinion of the City Council of New York, 4 and I understand what you're saying is, if the 5 City Council put its imprimatur on it that's 6 like gold, that's good enough for you and, 7 Senator, I wouldn't disagree with you because my 8 respect for that body is unbounded. 9 Nevertheless, you and I or 10 Senator DiCarlo and all of us have responsi 11 bilities. We're voting on this now, and I don't 12 think it's asking too much of you if you would 13 please put this aside so that we may look at the 14 agreement. I think that this Legislature and 15 everybody here, I know I have been embarrassed 16 time and time again voting on pension bills 17 where we find out that the situation is somewhat 18 different than represented. We have all acted 19 in good faith but we didn't really fully know 20 and understand it, and I accept your statement 21 that you have not looked at the underlying 22 agreement which is really essential. 23 So I'm going to ask you please to 5189 1 lay it aside until Monday. That's not going to 2 affect this bill as far as the effective date, 3 because I think you and I should look at the 4 agreement and then proceed from there. 5 I really think that's the 6 responsible thing to do and, Senator, while you 7 and I differ with substantive issues, I've 8 always known you to be extremely fair-minded and 9 certainly you try to be responsible, and I think 10 the responsible thing for us at the very least 11 is to look at the agreement. Maybe it doesn't 12 do what the City says. Maybe there's an answer 13 to it. Maybe it does do what the City says and 14 we ought to know that, so I'm going to renew my 15 request that you please lay this aside. 16 SENATOR MALTESE: Mr. President, 17 the -- the interpretation of agreements is 18 always something that is made by individuals. 19 We could arrive -- we could put this over and, 20 at the same time, come to different conclusions 21 as to what is contained within the parameters of 22 the agreement. At the same time, we have a 23 collective responsibility here to pass 5190 1 legislation that we feel is -- requires passage 2 and enactment into law. Rather than lay this 3 aside, I'd prefer for it to remain and to be 4 voted on by our house today. 5 SENATOR LEICHTER: Mr. 6 President. Let me just -- just ask one final 7 question, Senator Maltese. Senator Maltese, 8 it's perfectly true that agreements could be 9 subject to different interpretations but they 10 are parts of agreements that cannot. 11 If an agreement says this shall 12 be done by May 15th, you can't argue, Well, I 13 can do it by June 15th. There are provisions of 14 agreements that are very clear and explicit. 15 The city of New York seems to say -- doesn't 16 seem to say, it says bluntly and directly that 17 there was an agreement here where the union 18 agreed, consented to give up the very benefit 19 that you are pursuing here. 20 Maybe that's wrong. Maybe it's 21 subject to interpretation, and I may very well 22 on Monday, if you lay the bill aside and we look 23 at the agreement, say to you, Yes, Senator, I 5191 1 understand why you're doing this, but I -- I 2 think for you to publicly say and, frankly, to 3 bring all of the members along with you, Well, 4 we really don't know what we're saying but the 5 City Council said it was O.K., I don't think we 6 want to be in that position. 7 So I know three times you're out, 8 and this may be the third -- third time, but I 9 really ask again, out of a sense of responsibil 10 ity -- I'm not asking it for myself or any 11 collegiality -- I'm just saying I think as far 12 as the obligation that we have as a body to know 13 what we're doing. 14 This -- this bill does carry with 15 it significant financial impact for your city 16 and my city, a city that is in financial 17 trouble. Let's at least be one hundred percent 18 sure that we know what we're doing. I don't 19 think it's asking too much to say to look at the 20 agreement, particularly since you've said, "I 21 have not looked at it," and I certainly haven't, 22 and I don't believe there's any member here that 23 has seen the agreement, and that really goes to 5192 1 the very heart of what we're doing by this 2 bill. 3 So, a third attempt, Senator 4 Maltese, to appeal to your sense of responsi 5 bility and fairness. Will you please lay this 6 bill aside so we may look at the agreement? 7 SENATOR MALTESE: Mr. President, 8 I have a great deal of respect for Senator 9 Leichter and a respect for his responsibility, 10 but I feel in this case that while I 11 specifically personally have not looked over the 12 agreement, I have had counsel review the 13 agreement with the counsels for the correction 14 captains, with the counsels for the correction 15 officers. 16 They have indicated that they 17 were, in fact, satisfied that this corrected an 18 inequity, that the City subsequently -- subse 19 quent to the -- to the agreement, granted those 20 rights to other people -- to other officers 21 similarly situated, and, therefore, I respect 22 fully decline my distinguished colleague's 23 request to lay the bill aside. 5193 1 SENATOR LEICHTER: Senator 2 Maltese, I thank you. I acknowledge that three 3 times and you're out. 4 But I do regret it, and I think 5 you do a disservice not to me, Senator, but I 6 think to this body and to, I think, the 7 obligation that we have to the people of the 8 state of New York and here specifically to the 9 people of the city of New York. 10 I think, when the city of New 11 York says in a memorandum -- and I just want to 12 bring this to the attention of everybody, and I 13 don't think there's anybody in this chamber, I 14 certainly will not take second place to anybody 15 in my support of employees and public employees, 16 and I appreciate what they do and certainly the 17 correction officers, they got an extremely 18 difficult job and we ought to be as supportive 19 as we can be -- but if a union, through 20 collective bargaining, agrees to a particular 21 provision and then comes up to this Legislature 22 and says, Well, you know, it really isn't fair. 23 We ought to change it, and so on, that I think 5194 1 is wrong. We shouldn't do that. 2 Now, maybe we're not doing that 3 here, but, Senator, in view of your inability to 4 tell us that the agreement is either subject to 5 different interpretation or doesn't state what 6 the City says -- and I want to remind you, your 7 first statement when I read the City's 8 memorandum to you was, Yes, that's correct, 9 there was an agreement where the union 10 specifically agreed to forego the benefit that 11 it now seeks through this legislation. 12 If we then just disregard this - 13 and all I ask for, I didn't take the City's 14 memorandum as gospel. I said let's look at 15 the agreement. You refuse to do so for reasons 16 that, frankly, I don't understand, and I think 17 it's somewhat an aberration of your usual 18 collegial and fair style, but be that as it may, 19 we're now asked to vote on it and in view of 20 somebody not being in a position to say, Hey, 21 the City's memorandum is wrong, I have to up 22 hold the collective bargaining agreement. 23 I think too often, I guess out of 5195 1 our sense of generosity and our sense of support 2 for public employees and other employees, 3 sometimes employees of this chamber or of the 4 Assembly, we have voted benefits that are 5 totally outrageous, that then embarrass each and 6 every one of us. 7 You, Senator, claim to be a 8 fiscal conservative. You claim to pay attention 9 to home rule, and I appreciate the City Council 10 said they'd like to see this passed, but the 11 Mayor said, Please don't do this; this is going 12 to cost me money, and you agree that this bill 13 carries a price tag with it. Let's at least be 14 sure that what we're doing is right, is fair, is 15 in accordance with law or in accordance with the 16 collective bargaining agreement and it - 17 Senator, in view of your inability to show that 18 this is a right action on our part, I'm going to 19 vote against it, and I just think the 20 responsible thing for any member here is to vote 21 against this bill. 22 ACTING PRESIDENT HOLLAND: Read 23 the last section. 5196 1 THE SECRETARY: Section 6. This 2 act shall take effect immediately. 3 ACTING PRESIDENT HOLLAND: Call 4 the roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 52, nays 7 two, Senators Leichter and Waldon recorded in 8 the negative. 9 ACTING PRESIDENT HOLLAND: The 10 bill is passed. 11 Senator Velella. 12 SENATOR VELELLA: Mr. President, 13 my bill, Calendar Number 800, would you lay that 14 bill aside until Monday. We're waiting for some 15 additional information. 16 ACTING PRESIDENT HOLLAND: 17 Certainly. 18 The Secretary will continue to 19 read, please. 20 THE SECRETARY: Calendar Number 21 802, by Senator Maltese, Senate Print 4725A, an 22 act to amend the Administrative Code of the city 23 of New York. 5197 1 ACTING PRESIDENT HOLLAND: There 2 is a home rule message at the desk. 3 SENATOR LEICHTER: Lay aside - 4 well, I'm sorry. Which bill is this? 5 SENATOR ABATE: 802. 6 SENATOR LEICHTER: Explanation. 7 ACTING PRESIDENT HOLLAND: 8 Explanation has been requested. 9 SENATOR MALTESE: Mr. President, 10 I could -- I could ask the stenographer to read 11 back the debate from the prior bill, but I will 12 explain -- seek to explain this bill. 13 This permits uniform members of 14 the New York City Department of Corrections, 15 only those appointed prior to July 1st, 1976, to 16 purchase credit for up to six months service 17 rendered prior to joining the New York City 18 Retirement System. The members would have one 19 year to purchase this time, and this time would 20 count towards retirement credit. 21 The justification for the 22 legislation is again that an inequity exists for 23 those few members who joined the department 5198 1 prior to July 1st, 1976, but did not immediately 2 join the retirement system. The bill would 3 enable them to purchase credit for that period 4 of continuous prior service. 5 The fiscal note attached to this 6 legislation, and I also pointed out that this 7 also received a home rule message from the City 8 Council, is approximately $35,000. The bill is 9 supported by the correction officers, and it's 10 supported by the correction captains and the 11 exact same opportunity was given to Housing and 12 Transit Police officers. 13 SENATOR LEICHTER: If Senator 14 Maltese will yield? 15 SENATOR MALTESE: Yes. 16 ACTING PRESIDENT HOLLAND: 17 Senator will yield. 18 SENATOR LEICHTER: Senator, in 19 view of the productive exchange we had last 20 time, let me call to your attention again the 21 memorandum of opposition of the city of New York 22 and just ask your comments on it. 23 The City's reasons for opposition 5199 1 as it states are, "This bill would allow for 2 bought back service time of up to six months to 3 be counted towards a minimum active membership 4 period for entitlement to a service pension for 5 correction officers. NYCERS generally require a 6 minimum of five years active service out of ten 7 years of paid contribution in order to entitle a 8 member to vest in the system. This measure 9 would cause a minimum membership period to be 10 shortened and would result in an increase in 11 cost to the City resulting from the earlier 12 vesting (and potential retirement) of members 13 who elect to repurchase the time." 14 Doesn't seem as if we have an 15 agreement here, Senator, not that that would 16 matter very much anyhow, but I would be 17 interested in your comments. 18 SENATOR MALTESE: Mr. President, 19 according to the memos that have been supplied 20 me, this would -- and I would try to determine 21 exactly how many members would be -- would fall 22 into this. Now, we got the figure. It is less 23 than a hundred members who would be eligible and 5200 1 whether all the hundred would take advantage of 2 that is problematic. The -- it is employees who 3 would have been in the system before July 1st, 4 20 years ago, not a great deal of members. 5 The City did not provide any 6 fiscal estimate. The correction officers and 7 the City Council provided a fiscal note 8 approximately 35,000 in expense. The same 9 opportunity was offered Housing and Transit 10 Police officers. 11 The City's memo is five or six 12 paragraphs shorter than the other one in 13 opposition, so perhaps they don't have as many 14 good reasons in opposition, so I would 15 respectfully indicate that despite the City's 16 memo, this is something that should be passed by 17 the state Senate. 18 SENATOR LEICHTER: Mr. President, 19 if Senator Maltese would continue to yield. 20 ACTING PRESIDENT HOLLAND: You 21 continue to yield, Senator? 22 SENATOR MALTESE: Yes. 23 SENATOR LEICHTER: Senator, you 5201 1 know whether other members of the correction 2 officers -- well, whether other correction 3 officers, other than those in Tiers I and II can 4 purchase credits of up to six months of service? 5 SENATOR MALTESE: Since the only 6 -- the only officers that were indicated to me 7 who -- who could do this, who would fit into 8 this window, was Transit and Housing, I would 9 say the answer is probably no. 10 SENATOR LEICHTER: If you'd 11 continue to yield. 12 SENATOR MALTESE: Yes. 13 SENATOR LEICHTER: Senator, the 14 last bill you presented to us there is a matter 15 of equity, you wished to give benefits to 16 correction officers who were not in Tier I and 17 II the benefits of those in Tiers I and II. 18 Now, after you give this benefit, 19 are we then going to find a bill that out of 20 equity is going to give these benefits to other 21 officers? 22 Mr. President, it would appear 23 that since this is going to affect a relatively 5202 1 small number of people, that is a possibility 2 but not a possibility or probability that would 3 entail a great deal of expense to the city of 4 New York. 5 SENATOR LEICHTER: Mr. 6 President. Senator, you're actually correct. 7 The amount seems to be minuscule which makes me 8 think we're trying, in effect, to benefit one 9 specific person or two specific people. Do you 10 know, has it been brought to your attention 11 whether there is a specific individual or two 12 specific individuals that are seeking to benefit 13 here? 14 SENATOR MALTESE: Mr. President, 15 no. It was only today that, in contacting the 16 representatives, that we ascertained that it was 17 less than a hundred who would be eligible. We 18 don't know how many, of course, would take 19 advantage of the opportunity, but I don't know 20 of any specific individual who would be 21 eligible. 22 SENATOR LEICHTER: Let's see. 23 ACTING PRESIDENT HOLLAND: 5203 1 Senator Leichter. 2 SENATOR LEICHTER: Yeah. If 3 Senator Maltese would just bear with me a 4 second. I'm -- I haven't had a chance to study 5 the bill, but I see the memo says that this 6 seeks to benefit appointed correction officers 7 who, through inadvertence or misinformation, 8 failed to join the pension system until up to 9 six months after appointment. 10 Are they going to have to 11 establish under this bill if it becomes law that 12 indeed they failed to receive the information, 13 or through inadvertence, or will this be 14 automatic? 15 SENATOR MALTESE: Mr. President, 16 I'm advised that the terminology "misinformed or 17 failure to take action" was the same rationale 18 when the Transit and Housing officers were given 19 the benefit of -- I don't know what procedures 20 would be in effect in order to apply. I'm sure 21 they would have to prove that they were, in 22 fact, in that category, that as far as the time 23 factor is concerned, but usually, I'm advised in 5204 1 these cases the statement that they were 2 misinformed or otherwise advised that they 3 didn't fit into the appropriate category would 4 ordinarily be sufficient to have them fall 5 within that category of eligible employees. 6 SENATOR LEICHTER: Mr. President, 7 again, if Senator Maltese would continue to 8 yield. I just wish to point out, Senator 9 Maltese, looking through your bill quickly, I 10 don't see anything in the bill which states that 11 these members would have to show that they were 12 given misinformation or that there was some 13 inadvertence on their part. I think it's 14 automatic to anyone who wishes to buy back. 15 Thank you. 16 Mr. President, on the bill. 17 ACTING PRESIDENT HOLLAND: 18 Senator Leichter, on the bill. 19 SENATOR LEICHTER: Not only 20 because the City's memo is only one paragraph 21 whereas the other one was longer, I mean in the 22 other instance where the City says there was a 23 collective bargaining agreement, here Senator 5205 1 Maltese makes the point that this benefit has 2 been given to other employees. 3 The cost to the City is fairly 4 minimal, so I will support this bill. 5 ACTING PRESIDENT HOLLAND: Read 6 the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT HOLLAND: Call 10 the roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 54, nays 1, 13 Senator Goodman recorded in the negative. 14 ACTING PRESIDENT HOLLAND: The 15 bill is passed. 16 Senator Goodman. 17 SENATOR GOODMAN: May I please be 18 recorded in the negative on the bill which 19 preceded this, Calendar Number 801. 20 ACTING PRESIDENT HOLLAND: 21 Without objection, Senator Goodman will be 22 recorded in the negative on the previous bill. 23 Secretary will continue to read. 5206 1 THE SECRETARY: Calendar Number 2 804, by Senator Maltese, Senate Print Number 3 5911, an act to allow correction members of the 4 New York City Employees Retirement System. 5 SENATOR LEICHTER: Explanation. 6 ACTING PRESIDENT HOLLAND: 7 Senator Maltese. 8 SENATOR MALTESE: Mr. President, 9 this bill would allow correction members of the 10 New York City Employees Retirement System to 11 elect the benefits provided by Chapter 936. The 12 purpose is to permit correction members who 13 failed to elect to make the additional employee 14 contributions required in order to be eligible 15 to retire after 20 years of service before the 16 expiration of the window period, to make such an 17 election retroactive to the effective date of 18 the legislation, December 19, 1990 for 19 correction officers, November 1st, 1992 for 20 correction members in the rank of captain and 21 above. 22 The justification is that these 23 members would be assessed contributions 5207 1 retroactive to the original effective date of 2 the legislation and the fiscal -- as far as 3 fiscal note, the -- despite the claims to the 4 contrary from the mayor's memorandum, the 5 indication is that there would be no cost to the 6 City and this, again, was endorsed by the City 7 Council with their home rule message. 8 SENATOR LEICHTER: Mr. President. 9 ACTING PRESIDENT HOLLAND: 10 Senator Leichter. 11 SENATOR LEICHTER: Yes, if 12 Senator Maltese would yield. 13 SENATOR MALTESE: Yes. 14 ACTING PRESIDENT HOLLAND: 15 Senator will yield. 16 SENATOR LEICHTER: Senator 17 Maltese, we do have another memo in opposition 18 on the part of the City. First of all, the City 19 says that this will result in a significant cost 20 to the City. I see the -- the fiscal note says 21 that there will be no cost to the City in the 22 fiscal year 1996-1997, but is it possible there 23 will be a cost in subsequent years or is it your 5208 1 position that the City is absolutely wrong in 2 stating that there's any cost? 3 SENATOR MALTESE: I'm advised 4 that the requirement is to state it if there is 5 a fiscal cost for subsequent years so apparently 6 what we have is the City on one side indicating 7 that there is a cost and the correction officers 8 and captains and the City Council accepting the 9 -- the fiscal cost as being -- as being de 10 minimus. 11 SENATOR LEICHTER: Well, Mr. 12 President, if Senator Maltese will continue to 13 yield. 14 ACTING PRESIDENT HOLLAND: 15 Senator Maltese, do you continue to yield? 16 SENATOR MALTESE: Yes. 17 ACTING PRESIDENT HOLLAND: He 18 does. 19 SENATOR LEICHTER: Senator, it's 20 hard for me to see how there would not be an 21 increased cost to the city of New York because 22 of these people enrolling in an enhanced pension 23 plan. 5209 1 Now, I can understand the fiscal 2 note, and it very specifically states there will 3 be no cost in 1996-1997 because I guess until 4 these people enroll and they retire, that 5 probably cannot occur in the present fiscal year 6 or in 1996-1997. 7 But certainly subsequently to say 8 that there will be no cost whatsoever to the 9 City defies logic, reason and belief. 10 SENATOR MALTESE: Mr. President, 11 they -- in order to avail themselves of this 12 opportunity, they would have to make payments 13 retroactive. I'm not aware if those payments 14 would have to be enhanced by any possible or 15 probable interest that may have been accumulated 16 by the pension fund in the intervening years, 17 but the intervening years are fairly -- is a 18 fairly short period of time, so I don't believe 19 that amount would be very appreciable, but aside 20 from that possible loss in amount since they are 21 making the contributions in order to -- in order 22 to participate in this plan, I -- I still would 23 adhere to the -- to the merits of the correction 5210 1 officers' memo rather than that of the city of 2 New York. 3 SENATOR LEICHTER: Well, let me 4 read you this paragraph from the City's memo and 5 see if you -- if that changes your response that 6 you just made: This bill would allow correction 7 members of NYCER to enroll in the enhanced 8 pension system where such person established by 9 existing law during a new open enrollment period 10 which would expire on December 31st, 1996. 11 The original legislation provided 12 for finite enrollment periods as agreed to by 13 the parties and the levels of the members' 14 additional contributions were premised on these 15 time limits. Any re-opening of the enrollment 16 periods would wholly undermine the premise on 17 which the enhanced plans are based and the 18 adverse selections that would result would lead 19 to an increase in cost to the City which is 20 estimated by the City's Office of Management and 21 Budget to be approximately 3- to $4 million per 22 year. 23 These increased costs to the City 5211 1 are in clear contradiction of the agreement 2 between the City and the unions, namely, that 3 the entire cost to the enhanced pension plans 4 would be borne by the employees who opted to 5 enroll in them. 6 SENATOR MALTESE: Mr. President, 7 accepting that paragraph with the exception of 8 the monetary amount at face value, it would seem 9 to me in analyzing a pension plan and its 10 benefits that the figures are based on those 11 eligible to participate. Since we take for 12 granted that these people who would now opt, and 13 it is the fact, would have been eligible at that 14 period in time, they had to be factored in, it 15 would seem to me at the -- in the original 16 calculations as most possibly availing 17 themselves of the opportunity, that the 18 available contributions would be based on the 19 full amount, the full amount of employees 20 including these employees who apparently did not 21 opt to participate in the plan. 22 SENATOR LEICHTER: Mr. President, 23 if Senator Maltese -- I can understand that 5212 1 answer that you give, but I think that again we 2 have a problem here where the City says we've 3 got a collective bargaining agreement. It 4 explicitly excludes these particular benefits. 5 It was based on a finite period for enrollment. 6 I guess projections were made as to how many 7 people would enroll, and the union agreed to 8 it. 9 Now, let me ask you, have you 10 looked at the agreement that the City claims 11 bars this particular benefit unless we as a 12 Legislature decide to tear up that agreement? 13 SENATOR MALTESE: Mr. President, 14 the wording of the City memos indicate that in 15 the negotiation of the agreement, the parties 16 clearly agreed the City would not incur any 17 costs for these enhanced benefits. It is the 18 position of the correction officers and the 19 correction captains that no additional costs are 20 being incurred. So even if we accept the City's 21 wording at face value, I don't see an 22 inconsistency here because the correction 23 officers and correction captains indicated that 5213 1 there would not, in fact, be an increased cost 2 to the City. 3 SENATOR LEICHTER: Senator 4 Maltese, if you'll yield again, just getting 5 back to this question of increased costs, how is 6 it possible that there would not be increased 7 costs if now an additional number of people 8 opted into this enhanced benefit system? 9 I -- I must say it -- it just 10 doesn't make sense to me to say that there will 11 be no cost. I can see there won't be any costs 12 in 1996-1997, but for the years subsequent, to 13 say there will be no cost, now it may well be 14 that the City's figure of between 3- and $4 15 million is an exaggeration. We've had other 16 instances where the City tends to be somewhat 17 loose with its figures, but there's got to be 18 some cost. 19 How can there not be a cost if 20 people now sign into this plan when the plan 21 originally did not foresee or encompass that 22 number being part of it? 23 SENATOR MALTESE: Mr. President, 5214 1 it would seem that the position of the 2 supporters of this legislation is that the 3 contributions which would be retroactive to the 4 date of eligibility would cover the increased 5 benefits ultimately payable. 6 SENATOR LEICHTER: Yeah, but, Mr. 7 President, if the Senator would yield, doesn't 8 this -- this is a City match here, and while the 9 members may cover their part, the City now has 10 to cover a part that it never budgeted, that it 11 never expected to make. 12 SENATOR MALTESE: Mr. President, 13 that's -- that's the point I think, and the area 14 of -- of controversy between myself and the 15 distinguished Senator, is that I believe that 16 since these officers were eligible ab initio at 17 the beginning of the plan that they were, in 18 fact, factored into the ultimate cost of the 19 plan and while it is possible that the city was 20 planning to make a saving on the backs of these 21 officers, that saving now, if this legislation 22 becomes law would not, in fact, materialize. 23 SENATOR LEICHTER: Mr. President, 5215 1 Senator, I'm going to ask you, as I asked you in 2 regard to the previous bill, would you give us a 3 chance to do the responsible thing, to know what 4 we're legislating, not to guess but to take a 5 look at the agreement and maybe it will turn out 6 that you're one hundred percent correct and that 7 the City's memo is wrong, but in the absence of 8 looking at the agreement or your telling me at 9 least, "Leichter, I've looked at that agreement, 10 doesn't say that at all," and I have respect for 11 your integrity and certainly also your legal 12 acumen, but you've told us, Well, you know, I 13 haven't looked at the agreement. 14 Can we have until the next 15 legislative day to take a look at the agreement? 16 SENATOR MALTESE: Mr. President, 17 unlike the first bill, I don't see that the 18 agreement has a real significance with respect 19 to this legislation because what we have is an 20 inconsistency in the views of the opposing 21 parties as to the relative cost. So absent some 22 close minute perusal of the financial aspects 23 and the employees and the benefit plan and the 5216 1 retirement plans, and so on, that I feel has 2 been done and will be done in the course of this 3 legislation progressing, I don't feel it would 4 really lend anything to our debate. 5 So I think, given the parameters 6 of the agreement -- of the proposed legislation, 7 the limited number that would be, in fact, 8 eligible, I feel the legislation should be - 9 while I am ordinarily very deferential to the 10 wishes of my distinguished colleague, I feel 11 that it could best -- we would best be served by 12 considering this legislation today. 13 SENATOR LEICHTER: Mr. President, 14 one final question to my good friend, Senator 15 Maltese. 16 Senator Maltese, if the City 17 turns out to be correct and this has a cost to 18 it, would you be willing to agree on behalf of 19 yourself and the distinguished Assembly sponsor, 20 Senator Seminerio, that the City can take back 21 whatever that additional cost is in reduced 22 police service to your Senatorial District? 23 Would you guarantee this bill to that extent? 5217 1 SENATOR MALTESE: Mr. President, 2 of course, I would not in any circumstances 3 endanger the police protection of my Senate 4 District or anybody else's Senate District and, 5 of course, I realize the good Senator is being 6 facetious to make a point, so obviously I could 7 not give that guarantee in good conscience. 8 SENATOR LEICHTER: Thank you. 9 Mr. President, Senator Maltese, let me tell you, 10 in a sense the example maybe would seem 11 facetious but the point is not facetious, 12 because if this is going to cost the City -- if 13 the City says 3- or $4 million a year, and maybe 14 that's not the figure, maybe it's $1 million, 15 but we're a financially strapped city and this 16 is going to -- if these costs are incurred, 17 there's going to be a reduction in services, 18 maybe police, maybe sanitation, maybe paving of 19 streets. This is a city that is already seeing 20 a significant deterioration in services. 21 Now, it's very easy for this 22 Legislature, and I participate, you can -- we 23 can play the big shot; we can show great 5218 1 largesse because it ain't our money, and I 2 acknowledge that all of us want to be supportive 3 of public employees and, as I said previously, I 4 think I've been supportive as anybody here. 5 I think they do a wonderful job. 6 I have the world of respect for correction 7 officers, but when the city of New York comes 8 here and says, We've got a collective bargaining 9 agreement, and while it may not be as explicit 10 as the first bill that you and I debated, 11 Senator Maltese, the City makes a prima facie 12 case with their memo that a collective 13 bargaining agreement precluded these benefits. 14 To have a union or some employees 15 go through a back door, do an end run around a 16 collective bargaining agreement and then come to 17 the Legislature and say, Listen, we know you 18 guys are always very generous when it comes to 19 pension, yeah, we made this agreement, but you 20 know, equity and fairness and all that, please 21 give us these benefits, and then the Legislature 22 does this, I think it's wrong and it does have a 23 fiscal impact on the city of New York. 5219 1 At the very least, as with the 2 previous bill, we ought to be one hundred 3 percent certain that collective bargaining 4 agreements did not preclude this particular 5 benefit. 6 So, Senator Maltese, I just think 7 it's an irresponsible way for this Legislature 8 to act. I think we ought to have a much better 9 idea what we're doing, why we're doing it, what 10 the consequences are. We are dealing with the 11 taxpayers' monies. We're dealing with services 12 in your city and my city and it may seem like, 13 you know, a nice thing for us to do, but let's 14 take a look at the consequences and, therefore, 15 I would urge that, unless Senator Maltese can 16 present a factual basis or some evidence for 17 this, that this bill deserves to be defeated. 18 ACTING PRESIDENT HOLLAND: 19 Senator Skelos. 20 SENATOR SKELOS: Mr. President, 21 with the consent of Senator Paterson, we're just 22 going to lay this bill aside for a moment, call 23 up Calendar Number 1105 for the purposes of 5220 1 Senator Cook voting, who has a board meeting 2 with the Board of Regents. 3 ACTING PRESIDENT HOLLAND: Lay 4 804 aside momentarily and the Secretary will 5 read 1105. 6 THE SECRETARY: Calendar Number 7 1105, by Senator Saland, Senate Print 6621, an 8 act to enact the Domestic Violence and Public 9 Safety Act of 1996. 10 ACTING PRESIDENT HOLLAND: Read 11 the last section. 12 THE SECRETARY: Section 14. This 13 act shall take effect immediately. 14 ACTING PRESIDENT HOLLAND: 15 Senator Cook, how do you vote? 16 SENATOR COOK: Yes. 17 ACTING PRESIDENT HOLLAND: 18 Senator Cook votes yes. Withdraw the roll 19 call. 20 SENATOR GOODMAN: I wish to be 21 recorded in the affirmative also. 22 ACTING PRESIDENT HOLLAND: 23 Senator Goodman in the affirmative. 5221 1 SENATOR SKELOS: Withdraw the 2 roll call and call up 804 again. 3 ACTING PRESIDENT HOLLAND: Yes, 4 the roll call is withdrawn and we're on 804 5 again. 6 Senator Gold. 7 SENATOR GOLD: Mr. President, I'm 8 just surprised at Senator Leichter and the 9 naivete that he's shown again this morning. I 10 want to remind Senator Leichter that the 11 Governor submitted a budget and for months now, 12 the Republicans have been trying to save him 13 from his budget. There is major party loyalty 14 among Republicans. 15 Now, you know and I know that 16 Senator Maltese and his party try very hard to 17 maintain the integrity of the Republican mayor 18 in the city of New York, and they know that 19 Mayor Giuliani has had budget problems, and I 20 can't believe that they would put this bill out 21 if it didn't have the blessing of the mayor and 22 it wasn't something that the City could very 23 well afford. 5222 1 Matter of fact, I see the memo by 2 Robert Harding, whom I respect very much, and I 3 got to believe that this is kind of cover for 4 the mayor a little bit, but I just can't believe 5 that there would be a Maltese-Seminerio bill in 6 that would put Rudy Giuliani in fiscal trouble, 7 put him in a situation where our distinguished 8 Comptroller and others would criticize the 9 City's fiscal capacity. 10 So I think you got to look 11 through some of this, Senator. On the face of 12 it, Senator Leichter, if we were all back in law 13 school, I don't think anybody could disagree 14 with you. Your intellect is right on target and 15 certainly, when you look at all of the facts as 16 they are on paper, you would have to be, Senator 17 Leichter, one hundred percent right. 18 So I have to figure out that 19 there's really something going on behind the 20 scenes because I cannot believe that the Senator 21 whose district abuts mine would jeopardize us 22 with police protection or with any of those 23 things in the face of Sen... of Mayor Giuliani 5223 1 filing a new budget just days ago where he had 2 to abandon helping children with clothing and do 3 all of those things that he wanted to do. I 4 can't believe Senator Maltese would want to 5 increase the budget. 6 SENATOR LEICHTER: Mr. President. 7 ACTING PRESIDENT HOLLAND: 8 Senator Leichter. 9 SENATOR LEICHTER: Would Senator 10 Gold yield for a question? 11 SENATOR GOLD: Yes, sir. 12 SENATOR LEICHTER: Senator, are 13 you suggesting that possibly there's a little 14 charade going on here, that maybe this bill will 15 be passed and then there'll be a hue and cry in 16 the City and Mayor Giuliani will plead with the 17 Governor, Please veto this bill and there'll be 18 editorials in the Times, the Legislature acted 19 irresponsibly and then Governor Pataki, with 20 that great sense of responsibility that he has 21 towards our city, will veto the bill and 22 everybody will be happy? Senator Maltese and 23 Assemblyman Seminerio have done their thing for 5224 1 the correction workers; the mayor has succeeded 2 in getting the Governor to veto the bill. The 3 Governor has vetoed the bill and will be 4 acclaimed for this and everybody's happy, but I 5 can't believe that, although we've seen this 6 before, but that must have been, you know, just 7 happenstance. I can't believe people would be 8 doing that. 9 ACTING PRESIDENT HOLLAND: 10 Senator Gold, do you want to answer that 11 question? 12 SENATOR LEICHTER: Are you 13 suggesting, Senator, this may be in the -- this 14 may be happening? 15 SENATOR GOLD: Mr. President, I'm 16 shocked at my colleague. Senator Leichter, just 17 because this has happened time and time again, I 18 don't know why you would suggest that something 19 like that could possibly happen with regard to 20 this bill, but I know that, from my point of 21 view, the memo certainly makes an awful lot of 22 sense; but I look at my colleague, Senator 23 Maltese, who I know is very friendly with both 5225 1 Democrats and Republicans in Queens and is a guy 2 out there with everybody in the community, and 3 he wouldn't want to hurt his district or my 4 district and certainly wouldn't want to affect 5 the police and sanitation, and I can only 6 imagine that, after consulting with his 7 Republican colleague, Mayor Giuliani, there's 8 just got to be money for this that they've 9 figured in. So I'm going to support it. 10 ACTING PRESIDENT HOLLAND: 11 Senator Marchi. 12 SENATOR MARCHI: I'm a little 13 perplexed because I don't think that the 14 arguments that have been raised by Senator 15 Leichter, I think there's some merit to it 16 because there is a change of position in the 17 City once the terminal date has been reached. 18 But I'm a little perplexed. 19 Just earlier this year, and I was 20 reminded of that when I saw that the UFB 21 finally, finally was able to effect an arrange 22 ment which was sundered by action taken by the 23 city of New York to increase salaries across the 5226 1 board of the members of the City Council to 2 $70,000 a member without counting perq's. 3 That's the base salary. 4 Not only was it done immediately, 5 it was made retroactive to January, and the 6 mayor at that time stated that he thought they 7 deserved it. 8 I have to assume that -- I have 9 to assume that it's a measure of equitable 10 relief. The only thing is, I am impressed by 11 the argument that perhaps there is a change of 12 position when there is a terminal date. 13 Otherwise they should be left out completely on 14 all future contracts. It's subject to an 15 arrangement that gives it the force that would 16 have -- it would have had, had they taken 17 advantage. 18 So I will vote no on that, but I 19 am very perplexed because it's an act of -- it's 20 not a profession of faith in the City Council of 21 the city of New York, and the mayor really has 22 great confidence and faith in them by the action 23 that he took earlier this year. 5227 1 ACTING PRESIDENT HOLLAND: Read 2 the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT HOLLAND: Call 6 the roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Those recorded in 9 the negative on Calendar Number 804 are Senators 10 Goodman, Leichter, Marchi and Montgomery. Ayes 11 52, nays 4. 12 ACTING PRESIDENT HOLLAND: The 13 bill is passed. 14 THE SECRETARY: Calendar Number 15 950, by Senator Larkin, Senate Print 6150, an 16 act to amend the Election Law, in relation to 17 the hours for voting. 18 ACTING PRESIDENT HOLLAND: 19 Senator Larkin, an explanation has been 20 requested. 21 SENATOR LARKIN: Yes. Mr. 22 President, this bill allows for just one county 23 in my district to change the hours during which 5228 1 voting booths will be open for primary elections 2 only, from noon to 6:00 p.m. 3 We had a similar bill last year 4 that encompassed two counties that was objected 5 to. We reduced it to Ulster County. We have a 6 home rule message. We have a legislative 7 resolution. The county's experiencing a very 8 low voter turn-out over a number of years. 9 Of the 62 counties, there's 55 10 that have a voting primary day from noon rather 11 than 6:00 a.m. In addition, last year Mr. 12 Paterson asked the question of cost. The county 13 of Ulster estimates that changing this voting 14 pattern will result in a saving of approximately 15 $19,200. 16 We think this is the right thing 17 to do. We've looked at the voting patterns last 18 year and some of the comments made by Senator 19 Connor about the people commuting to New York 20 City. Very limited number go to New York City 21 from Ulster county. 22 SENATOR GOLD: Mr. President. 23 ACTING PRESIDENT HOLLAND: 5229 1 Senator Gold. 2 SENATOR GOLD: If the Senator 3 will yield to just one question. 4 SENATOR LARKIN: Yes, Senator 5 Gold. 6 SENATOR GOLD: Senator, when 7 these issues came up in the Elections Committee 8 I just asked one question. Why don't we, for 9 one year, pass something that requires each of 10 the election boards to, at a certain hour be it 11 12:00 noon or something, to write down at that 12 time the number of people who have voted and 13 then at the end of the day, we'll see who's 14 voted and then if it, in fact, turns out that we 15 are wasting time with those hours, we can make 16 those adjustments; but the problem is we're 17 really guessing. I mean some of the argument 18 we've heard in the committee is that we've been 19 told by inspectors of the board that nobody is 20 really there. We've been told and told. 21 It really would be very easy. I 22 don't think this side of the aisle which 23 obviously is very concerned about people voting, 5230 1 and I hope you are too, wants to do something 2 that's fiscally irresponsible. On the other 3 hand, in one election we could get all the 4 answers. That's all. You have a piece of paper 5 and all of the voting places and at 12:00 noon 6 or if we're talking about a general election 7 where there's talk about moving it from 6:00 to 8 9:00 or whatever, at that particular hour each 9 election district they write down the number of 10 people who have voted thus far and, at the end 11 of the day, they put down a total count and it 12 seems to me we won't be guessing any more and if 13 this kind of legislation is appropriate, we can 14 do it. 15 SENATOR LARKIN: Well, Senator 16 Gold, while you make some merit on it I think if 17 we looked and see that the counties that have 18 the voting from 6:00 o'clock in the morning, we 19 look at the size of the counties, Nassau, 20 Suffolk, New York City, Westchester, Rockland 21 and Erie, and when you look at our rural areas 22 there isn't that much. 23 The primary for the Conservative 5231 1 Party a year ago in four towns totaled a total 2 of five people voting. 3 SENATOR GOLD: Senator, will you 4 yield to a question? 5 SENATOR LARKIN: Yes, sir. 6 SENATOR GOLD: Senator, all I'm 7 saying is it might be that you shouldn't be open 8 that many hours, but maybe you should be open 9 from 6:00 to 11:00 in the morning. All I'm 10 saying is that I want the greatest opportunity 11 and you do too, for the people in your county to 12 vote, and we may be changing the hours in the 13 wrong direction. I'm only suggesting that we 14 find out what the actual voting pattern is and 15 then I think I'd be glad to help you work things 16 out. 17 SENATOR LARKIN: I -- while it 18 has merit, I think maybe we ought to do that in 19 a separate bill, but here we have a request from 20 the County Legislature, it's costing them 21 $19,000, and it's a small county of 155,000 22 people and they do not feel, based on their 23 evaluation of it, their recommendations from 5232 1 inspectors and the recommendations from both 2 specific -- both parties have supported this. 3 ACTING PRESIDENT HOLLAND: 4 Senator Paterson. 5 SENATOR PATERSON: Mr. 6 President. 7 SENATOR LARKIN: He said he was 8 my friend. 9 SENATOR PATERSON: And I am 10 Senator Larkin's friend but, Mr. President, last 11 night while on the great stage of life, the 12 drama of human conflicts was being played out 13 manifested by the power that read the features 14 of Knick fans all over the state, the individual 15 triumph as Dwight Gooden pitched a no-hitter 16 after being banned from baseball for over two 17 years now, I was oblivious to these great events 18 in the human conflict because I was rereading 19 the transcript of June 1995, and this actual 20 debate which was then Calendar Number 601. 21 There were 13 individuals who voted against 22 Senator Larkin's bill that day, and their names 23 are Senators Abate, Connor, Dollinger, 5233 1 Markowitz, Mendez, Kruger, Nanula, Oppenheimer, 2 Onorato, Paterson, Smith and Stachowski and, as 3 a result of that stirring conversation I have 4 noticed that Orange County has not been included 5 in the legislation that is being proposed on 6 Calendar Number 950 which comes before us 7 today. It is not being included with Ulster 8 County perhaps because some of the points that 9 were made in that discussion, that being that it 10 is not the number of people who are voting in 11 the counties, it's the percentage of people who 12 are eligible to vote who are coming to the polls 13 as was eloquently pointed out by Senator Gold, 14 another champion of human conflict, who spoke 15 just a few moments ago talking about that very 16 subject, that this is an American process. This 17 is something that is unique in the world. We 18 are the leaders of democracy throughout the 19 world, and it is demonstrated by the way in 20 which we have elections on primary day and 21 election day so that even if the polls are 22 standing without great utilization, the fact 23 that they are there is what sets our democracy 5234 1 apart from others; and so with that, if Senator 2 Larkin would yield to a question? 3 SENATOR LARKIN: Two things, Mr. 4 -- Senator Paterson. Orange County was deleted 5 because the basic facts are Democratic 6 leadership in Orange County went to the Assembly 7 and the Assembly said, At your request, we won't 8 consider the bill. 9 Wait a minute. I'm just being 10 honest with my great Acting Minority Leader. I 11 want to be very honest with him, and in Ulster 12 County both parties consider that this is 13 essential and that they agree with it and I'm 14 confident that had the leadership in the other 15 house got the message, they'd do the same thing 16 and we're not trying to deny anybody any 17 opportunity to vote, but we recognize the issue 18 when you look at the counties that are voting 19 noon: Sullivan County, Putnam County, Dutchess 20 County, Columbia County, Greene County, Steuben, 21 Genesee, you name it, from here to the Canadian 22 border we're an upstate rural county. We want 23 the same privileges that we think are essential 5235 1 for the people. Period. 2 Thank you, David. Be nice now. 3 ACTING PRESIDENT HOLLAND: 4 Senator Paterson. 5 SENATOR PATERSON: Mr. President, 6 I am very impressed with the information that 7 has just been provided me, but Senator Larkin 8 never advised the chamber as to whether or not 9 he would yield for a question. In fact, he 10 assumed questions not in evidence and then went 11 ahead and answered them. 12 My question was, what was he 13 doing for dinner? That was the question? And 14 I'm still trying to determine whether or not he 15 will yield for a question. 16 ACTING PRESIDENT HOLLAND: 17 Senator Larkin, will you yield? 18 SENATOR LARKIN: I'll be glad to. 19 ACTING PRESIDENT HOLLAND: 20 Senator yields. 21 SENATOR PATERSON: Oh, well, 22 thank you, Senator. 23 What about the residents of 5236 1 Ulster county who perhaps have employment in New 2 York City? Therefore, they're taking trains 3 down to the City and returning and would need 4 that time in the morning to vote before they 5 leave. 6 SENATOR LARKIN: Well, we have 7 had this bill out here for a couple of years. 8 We passed the information around to various 9 clubs. We've made it known; we've had it 10 available. We've asked for any input and we 11 haven't received any input that said you should 12 not change the voting pattern. 13 I have personally been at train 14 stations and bus stops and I've asked over the 15 past couple of years, Do you have a problem if 16 we change this to noon? They said, No. 17 Period. They're open until 9:00 o'clock at 18 night. Our people get home from the City around 19 6:00, 6:30. We feel very confident that we are 20 providing adequate time for those who would 21 really want to vote in a primary. Period. 22 SENATOR PATERSON: Thank you very 23 much, Mr. President, and thank Senator Larkin 5237 1 for his very kind answers, and also the 2 Secretary and the stenographer should thank him 3 for the punctuation as well. 4 On the bill, Mr. President. 5 ACTING PRESIDENT HOLLAND: 6 Senator Paterson. 7 SENATOR PATERSON: I think that 8 Senator Larkin makes a very good point. I think 9 he's responding to his constituency. Obviously 10 there is some extra money and some extra 11 resources that are dedicated to keeping the 12 polls open from 6:00 a.m. to noon, and if the 13 other states -- if the other state's counties 14 that have adopted the noon primary are doing so 15 I don't think we should have a real problem with 16 allowing Ulster County or even Orange County to 17 do so as well. 18 The reason that I voted against 19 the bill last year and will vote against it 20 again is that I think there is a higher value 21 that we need to consider all over this state, 22 and that is the fact that it is very rare that 23 we have these types of plebiscites to determine 5238 1 however the public feels about particular 2 situations, and we need the polls open as long 3 as possible, and I think that 6:00 a.m. to 9:00 4 p.m. which is the standard polling time in 5 presidential races, is probably the one we need 6 to keep all the time. 7 It must be somewhat frustrating 8 to Senator Larkin and myself when we go to the 9 polls to welcome voters and to drop in to say 10 hello to the inspectors and don't see anyone at 11 the polls. They are under-utilized. They sit 12 more as eyesores in the early morning or early 13 afternoon hours, and yet I think that's good 14 because the fiscal impact is nominal, but the 15 opportunity for democracy is far reaching. 16 ACTING PRESIDENT HOLLAND: Read 17 the last section. 18 THE SECRETARY: Section 2. This 19 act shall take effect on the 30th day. 20 ACTING PRESIDENT HOLLAND: Call 21 the roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Senator Dollinger 5239 1 to explain his vote. 2 SENATOR DOLLINGER: Mr. 3 President, I voted against this bill before for 4 many of the reasons outlined by Senator 5 Paterson. I've spoken about declining voter 6 involvement and about reducing the number of 7 polls. 8 I am struck by one thing in the 9 sponsor's memorandum which I think perhaps tells 10 a little tale about what we're all about in New 11 York. Voter tendencies indicated extremely low 12 turn-out rates in primary elections. The reason 13 for that, as I'm sure most of us know, the 14 primaries in this state including things like 15 presidential primaries, tend to have relatively 16 low turn-outs because there aren't any 17 candidates on the ballot because, as we all 18 know, we have these arcane rules that mean you 19 have to get -- virtually sign your life away and 20 spend millions of dollars just to get on the 21 primary ballot. 22 Frankly, it was irreprehensible 23 when Democrats did it for many years. I think 5240 1 it was ir... similarly condemned or should have 2 been condemned when it was used by Republicans 3 to keep them off the primary ballots. No wonder 4 our turn-outs are so abysmally low in primaries 5 when we won't even let people get onto the 6 ballot. We can't generate enthusiasm for 7 primaries because of all of these crazy 19th 8 Century Tammany Hall rules that you have that 9 you must meet before you can actually get on the 10 ballot. 11 It seems to me if we have such 12 difficulty getting candidates on the ballots in 13 primaries, the thing we ought to do is at least 14 keep the polls open to allow everybody to vote. 15 THE SECRETARY: How do you vote? 16 SENATOR DOLLINGER: No. 17 ACTING PRESIDENT HOLLAND: 18 Senator Dollinger recorded in the negative. 19 THE SECRETARY: Those recorded in 20 the negative on Calendar Number 950 are Senators 21 Abate, Connor, Dollinger, Gold, Lachman, 22 Leichter, Markowitz, Onorato and Stachowski. 23 Ayes 46, nays 10. 5241 1 ACTING PRESIDENT HOLLAND: The 2 bill is passed. 3 Secretary will continue to read, 4 please. 5 THE SECRETARY: Calendar Number 6 1105, by Senator Saland, Senate Print Number 7 6621, an act to enact the Domestic Violence and 8 Public Safety Act of 1996. 9 SENATOR PATERSON: Explanation. 10 ACTING PRESIDENT HOLLAND: An 11 explanation has been requested, Senator Saland. 12 SENATOR SALAND: Thank you, Mr. 13 President. 14 This is a Governor's program bill 15 entitled the Domestic Violence and Public Safety 16 Act of 1996, and responds in part to a number of 17 well publicized incidents which occurred earlier 18 this year emanating from decisions by courts 19 with respect to bail or sentencing, particularly 20 in the city of New York whereby defendants 21 either received minimal or seemingly inapprop 22 riate sentences or were released with little or 23 no bail, only to cause severe serious injury, in 5242 1 at least one case death, to a woman who had 2 previously received an order of protection. 3 Generally, this bill reforms 4 three areas of existing law. First it expands 5 the scope of conduct which can be punished as 6 criminal contempt in the domestic violence 7 setting. In doing so, it builds on the landmark 8 legislation that we passed here in this house 9 and was signed into law in 1994, the Family 10 Protection and Domestic Violence and 11 Intervention Act of 1994. 12 Secondly, it gives the prosecutor 13 the ability to have unduly low bail reviewed 14 both by a court of coordinate jurisdiction or a 15 superior court; and, thirdly, it gives the 16 prosecutor the right to appeal from what he or 17 she believes to be an unduly lenient sentence. 18 Currently in domestic violence 19 cases or when orders of protection are violated 20 prosecutors can lodge felony complaints alleging 21 felony contempt of court charges only when the 22 defendant violates that order and in so doing 23 causes physical injury to the victim or causes 5243 1 damages to the victim's property exceeding $250 2 or has been convicted of criminal contempt for 3 violating an order of protection within the 4 preceding five years. 5 This bill would change that to 6 the extent of punishing defendants as an "E" 7 felony. If they violate an order of protection 8 and essentially commit either menacing in the 9 second agree or aggravated harassment in the 10 second degree which, in effect, means that if a 11 defendant violates an order of protection, in so 12 doing brandishes a weapon, threatens, stalks, 13 menaces or harasses a person for whom the order 14 of protection was issued, that penalty would be 15 applicable. 16 In addition, it punishes a 17 defendant at the "D" felony grade if he or she 18 violates the order of protection and inten 19 tionally or recklessly causes physical or 20 serious physical injury to the victim. 21 With respect to both the bail and 22 the sentencing provision, this is an effort by 23 the Governor by way of his program bill to try 5244 1 and balance the idea that there are decisions in 2 which inappropriate levels of bail are required 3 by the court setting bail, and there is no 4 mechanism for the -- the prosecutor to challenge 5 that. 6 The bill attempts to -- to 7 establish that mechanism and similarly with 8 respect to so-called unduly lenient sentences, 9 it attempts again to level the playing field to 10 permit the prosecutor to have access to a means 11 of appeal similarly to that provided currently 12 to defendants where defendants claim that they 13 have received an unduly harsh sentence. 14 SENATOR WALDON: Mr. President. 15 ACTING PRESIDENT HOLLAND: 16 Senator Waldon. 17 SENATOR WALDON: Would the 18 Senator yield to a question? 19 ACTING PRESIDENT HOLLAND: 20 Senator Saland, do you yield? 21 SENATOR SALAND: Yes, Mr. 22 President. 23 ACTING PRESIDENT HOLLAND: 5245 1 Senator yields. 2 SENATOR WALDON: Senator Saland, 3 isn't there a mechanism in place now whereby 4 district attorneys can appeal situations similar 5 to the ones addressed by this bill? 6 SENATOR SALAND: I think you'd 7 have to be more specific, Senator Waldon. 8 SENATOR WALDON: With 9 specificity, isn't there a mechanism in place 10 now where a district attorney can appeal what, 11 in his opinion or her opinion, may be the wrong 12 decision by the court in terms of bail or other 13 actions of that nature? 14 SENATOR SALAND: Currently the 15 bail decisions in lower courts, in courts such 16 as town courts, there is, as far as I am aware, 17 I'm not aware of a codified provision. 18 SENATOR WALDON: Let me provide 19 that access, if I may, Senator, so we'll both be 20 on the same page. What I'm talking about is the 21 illegally low situations perceived - 22 SENATOR SALAND: I'm sorry. 23 Would you speak up? 5246 1 SENATOR WALDON: Illegally low 2 bails or sentencing provisions. 3 SENATOR SALAND: What I think 4 you're talking about is sentencing; that is 5 illegally low where a sentence is imposed that 6 is less than the minimum pro- or prescribed by 7 the law. That, in effect, is jurisdictional. 8 This -- what is proposed here is 9 where there is a sentence which is considered 10 under the facts and circumstances of the case by 11 the prosecution to be, quote, "unduly lenient", 12 unquote, as distinguished from not meeting the 13 statutorily required minimum. This would afford 14 the ability parallel to that of a defendant to 15 appeal from an unduly harsh or severe sentence 16 to a prosecutor where a sentence is unduly 17 lenient. 18 SENATOR WALDON: I thank you for 19 your explanation. 20 If the gentleman would continue 21 to yield. 22 ACTING PRESIDENT HOLLAND: 23 Senator, do you continue to yield? 5247 1 SENATOR SALAND: Yes, Mr. 2 President. 3 ACTING PRESIDENT HOLLAND: 4 Senator continues to yield. 5 SENATOR WALDON: To your 6 knowledge -- thank you, Mr. President. 7 To your knowledge, Senator 8 Saland, is the genesis of this portion of the 9 proposal taken from what the federal government, 10 meaning the federal court system, is allowed to 11 do, federal prosecutors are allowed to do, 12 federal defense counsel are allowed to do? 13 SENATOR SALAND: My 14 understanding, and that is not based upon any 15 discussions I've had with the Governor or any 16 members of his staff, but based upon my review 17 of the supporting memorandum that's been provid 18 ed by the Governor, is that this particular 19 authority or right exists in the federal 20 system. Whether this parallels the federal 21 system, I could not tell you, Senator Waldon. 22 SENATOR WALDON: Mr. President, 23 will the gentleman continue to yield? 5248 1 ACTING PRESIDENT HOLLAND: Do you 2 continue to yield, Senator Saland? 3 SENATOR SALAND: Yes, Mr. 4 President. 5 ACTING PRESIDENT HOLLAND: 6 Senator continues to yield. 7 SENATOR WALDON: As I understand 8 the federal provisos, both sides, defense side 9 and prosecutor's side, are allowed to appeal 10 situations similar to this where they are not 11 happy, if you will, with the result. However, 12 it's a long established process and procedure 13 and it is not parallel to what's being proposed 14 here in the state. 15 Let me ask a question that has 16 perhaps more cogency at the moment. When the 17 prosecutor appeals, what happens to the 18 defendant? Where is the defendant during this 19 appeals process? 20 SENATOR SALAND: Are we talking 21 -- which portion of this bill are you asking me 22 the question of? 23 SENATOR WALDON: Is it -- let me 5249 1 ask it - 2 SENATOR SALAND: Are we talking 3 about - 4 SENATOR WALDON: Let me ask it, 5 is it possible that a defendant can be held up 6 to three days while appeal is being considered 7 and we're talking about the unduly lenient 8 portion of this process? 9 SENATOR SALAND: Where are you, 10 Senator Waldon, in the bill? 11 SENATOR WALDON: In regard to 12 bail decisions, where is the defendant? 13 SENATOR SALAND: Can I -- I'm 14 having a difficult time hearing, and it may well 15 be a sign of my age and not your ability to 16 resonate, but if you would please - 17 SENATOR WALDON: O.K. I 18 apologize. It's probably caused by me, 19 Senator. 20 What happens to the defendant 21 while the prosecutor appeals the bail decision, 22 to be more precise? 23 SENATOR SALAND: He - 5250 1 SENATOR WALDON: Where is the 2 defendant? 3 SENATOR SALAND: Well, I'm 4 looking at page 2 of the bill, Senator Waldon, 5 and starting at line 4, the bill reads as 6 follows: The filing of such notice shall stay 7 the effect of the order releasing the defendant 8 on his own recognizance or fixing bail in a 9 lesser amount or a less burdensome manner. Stay 10 pursuant to this subdivision shall remain in 11 effect for a period of 72 hours unless extended 12 or vacated by a judge of the superior court. 13 SENATOR WALDON: If I may 14 continue, Mr. President. 15 ACTING PRESIDENT HOLLAND: Yes. 16 SENATOR WALDON: I guess one 17 might be able to assume that this process, 18 because of that procedure you just spoke to, and 19 others, might create a backlog. Is there any 20 proviso in the bill for funding in regard to any 21 backlog which will be created by this, if it 22 were to become law? 23 SENATOR SALAND: I'm not aware of 5251 1 any funding stream. I think the -- the position 2 is that this bill is a revenue neutral, that 3 there is no adverse fiscal impact by the 4 provisions of this bill. 5 SENATOR WALDON: If I may 6 continue, Mr. President. 7 Senator, I am told and maybe you 8 can correct me if the information I have 9 received is incorrect, that currently because of 10 the dual jurisdiction of Family Court and the 11 criminal courts on matters of domestic violence 12 there's already a burgeoning backlog. 13 In your opinion, would this 14 process exacerbate that backlog? 15 SENATOR SALAND: The -- I don't 16 believe it's the issue of the dual jurisdiction 17 that's concerned. We're talking about 18 concurrent jurisdiction and certainly within the 19 past several weeks, I have been advised by some 20 that this has created some difficulty for local 21 law enforcement, and it is certainly something 22 that we will be attempting to take a look at 23 over the remaining weeks of this situation. 5252 1 Whether we will have enough time to deal with 2 the problem or even define the magnitude of the 3 problem remains to be seen or if it, in fact, is 4 the burden that some claim it to be. 5 Now, everything we've received, 6 and it's only been of rather recent vintage, is 7 anecdotal. 8 SENATOR WALDON: Mr. President. 9 ACTING PRESIDENT HOLLAND: 10 Senator Saland, you continue to yield? 11 SENATOR SALAND: Yes, Mr. 12 President. 13 ACTING PRESIDENT HOLLAND: 14 Senator continues to yield. 15 SENATOR WALDON: Thank you, Mr. 16 President. 17 Senator, are you saying that if 18 your own research or your looking into the 19 matter over the next few days discovers that 20 there is a backlog exacerbated by this proposal 21 should it become law, that you will then move to 22 have funds appropriated to deal with that 23 backlog? Is that what you're saying? 5253 1 SENATOR SALAND: No, Senator 2 Waldon. What I'm telling you and telling the 3 members of this body that we unanimously, with 4 every member of the house being part and parcel 5 of this measure by co-sponsoring it, passed the 6 act to which I referred earlier, the Family 7 Protection and Domestic Violence Intervention 8 Act of 1994. There was a very strong statement 9 of policy by this house, an expression of 10 concern about the enormity of domestic violence 11 and the importance of having a mandatory arrest 12 component. 13 We, at that time, certainly had 14 no reason to believe that there would be any 15 problems by way of enforcement or by way of - 16 of adhering with this particular then bill, now 17 law. I still do not believe that to be the 18 case. I -- it remains for me to have adequate 19 data, certainly nothing anecdotal and no effort 20 really to try and shirk off what would otherwise 21 be the appropriate responsibility of law 22 enforcement and local corrections to deal with 23 the issues. That is something that I don't 5254 1 think we will arrive at in a willy-nilly post 2 haste fashion. We will certainly endeavor to 3 try and get to the bottom of it and determine if 4 it is, in fact, the real problem and I do not 5 think we can do that in a matter of a few 6 weeks. 7 We certainly will be open to 8 suggestion and endeavor to deal with the problem 9 if, in fact, it is a problem. 10 SENATOR WALDON: Mr. President. 11 ACTING PRESIDENT HOLLAND: 12 Senator Saland, do you continue to yield? 13 SENATOR SALAND: Yes, Mr. 14 President. 15 ACTING PRESIDENT HOLLAND: 16 Senator continues to yield. 17 SENATOR WALDON: I thank you very 18 much, Senator Saland, for letting us know that 19 you will continue to research the matter, you 20 will not in any frivolous or capricious fashion 21 move on it, and it's amazing that this bill was 22 brought to us this late in the session without 23 careful preparation in terms of the possibility 5255 1 of a backlog and resources being appropriated or 2 at least looked at the possibility of appropri 3 ation to deal with the backlog. 4 But let me take a different tack 5 if I may. Mr. President, my colleagues, Senator 6 Saland, is this bill - 7 SENATOR SALAND: May I suggest to 8 you that the bill that we enacted had a sunset 9 provision of -- I believe that sunset provision 10 was approximately four years and this year, the 11 -- we have proposed to extend it by one more 12 year. 13 One of the things that we 14 endeavored to do was to have in effect a 15 long-term data-rich study that would enable us 16 to determine the effectiveness of this bill, 17 whether we had to make any types of adjustments 18 in the bill and whether, in fact, we would be 19 required to find additional monies to effectuate 20 what certainly everybody agreed, again 21 unanimously, was the extraordinarily important 22 policy purposes for passing this bill. 23 SENATOR WALDON: Thank you very 5256 1 much, Senator Saland. 2 Now, let me get to the point that 3 I wanted to get to. I appreciate very much what 4 you just shared with us. 5 Is this limited only to appeals 6 for domestic violence situations or could 7 someone charged with burglary -- could the 8 prosecutor then appeal in that situation? Is 9 there license for the prosecutor to do whatever 10 he or she wishes to do regarding any criminal 11 action which comes before them? 12 SENATOR SALAND: Well, I wouldn't 13 be so cavalier, Senator Waldon, to say license 14 to a prosecutor to do anything that he or she 15 wishes to do, but what I would say to you that 16 there is nothing in this bill which amends the 17 CPL which limits with respect to these cases the 18 right of a prosecutor to only domestic violence 19 matters. 20 So to the extent that there has 21 been a -- a crime committed or allegedly a crime 22 committed, the law enforcement mechanism is now 23 fully under way. There is a bail hearing of 5257 1 some kind, whether it's a burglary, whether it's 2 a rape, whether it's a homicide, whether it's an 3 assault. There will be the ability under this 4 -- these proposals for appeal with respect to a 5 bail decision for, again, the unduly lenient 6 sentencing provision. 7 SENATOR WALDON: Mr. President, 8 would the gentleman continue to yield? 9 ACTING PRESIDENT HOLLAND: You 10 continue to yield, Senator Saland? 11 SENATOR SALAND: Yes, Mr. 12 President, I will. 13 ACTING PRESIDENT HOLLAND: 14 Senator continues to yield. 15 SENATOR WALDON: Thank you, Mr. 16 President. 17 Senator Saland, would I be wrong 18 with my thought process - 19 SENATOR SALAND: If you were, I'd 20 be reluctant to tell you, sir. 21 SENATOR WALDON: I'm sure you 22 would in an open chamber, but in private I'm 23 sure you would come to me and counsel me, and I 5258 1 appreciate that. 2 SENATOR SALAND: Thank you. 3 SENATOR WALDON: My question is 4 would I be wrong, my preamble in the question 5 is, would I be wrong in saying that this bill 6 should not have been named a "domestic violence" 7 bill but, in fact, a prosecutors' bill because 8 what you've just said to me means that the 9 prosecutor has a broad brush to make appeals and 10 not necessarily limited to that very finite area 11 of domestic violence. 12 Therefore, this is not about 13 spousal abuse and what transcends post-spousal 14 abuse or which may happen after spousal abuse, 15 but it's really about giving the prosecutor 16 license to do whatever he or she may feel 17 necessary to do in regard to appeals, is that 18 correct? 19 SENATOR SALAND: Senator Waldon, 20 it grievously pains me to tell you that you're 21 wrong. Truly, it grievously pains me to tell 22 you that you're wrong. This bill is not about 23 arbitrarily permitting prosecutors to, in 5259 1 effect, have a field day with the criminal 2 justice system. This bill is about an endeavor 3 to try and balance the equities, so to speak, to 4 try and create parallel ability in a prosecutor 5 that currently exists for a defense attorney so 6 that, whereas a defendant through his defense 7 attorney can claim that a sentence has been 8 either unduly harsh or unduly severe, we are 9 saying that a prosecutor who believes and 10 certainly I would have to assume that the court 11 would have the ability to make a determination 12 on the record, that there has been an unduly 13 lenient sentence, that prosecutor should have 14 that corresponding right and, as you mentioned 15 earlier, while I can't attest to the mechanism 16 by which this is done in the federal system, 17 there -- this is not unprecedented. It does 18 exist in the federal system. 19 SENATOR WALDON: May I continue, 20 Mr. President? 21 ACTING PRESIDENT HOLLAND: You 22 want to go through the whole thing again? 23 SENATOR WALDON: Okay. Thank 5260 1 you, Mr. President. 2 Senator Saland, it unduly pains 3 me to respectfully disagree with your position. 4 I think those of us who are really sensitive to 5 what is on paper here recognize that the words 6 say that the prosecutor has license. We've 7 mislabeled. This is a misnomer. This is not 8 really about domestic violence. This is about 9 giving prosecutors broad latitude. Incidentally, 10 it may help in a domestic violence, but I 11 question that. 12 And if I may, Mr. President, I 13 will thank the Senator, and I will now speak on 14 the bill. 15 ACTING PRESIDENT HOLLAND: 16 Senator Waldon, on the bill. 17 SENATOR WALDON: What this bill 18 does is give the prosecutor broad latitude to do 19 what he or she may wish to do. What it also 20 does is it forces someone who has been abused 21 into a compromising situation. 22 If you don't go in and testify, 23 you are subject to a higher penalty under this 5261 1 particular proposal. I think it doesn't 2 accomplish what we want to accomplish in regard 3 to domestic violence. 4 I think under current law, the 5 prosecutors have the right to appeal; and to be 6 very specific, let me just read what I have, 7 "have the right to appeal sentences that are 8 illegally low in violation of the state's 9 mandatory sentencing laws." That's in place 10 now. So I really don't understand this. I 11 don't understand why now at this part of the 12 session, when we don't have the time or even 13 perhaps the will to appropriate funds for the 14 backlog which will be created. 15 So I encourage my colleagues to 16 recognize this for what it is. It is not what 17 it is entitled. It is really a bill to help the 18 prosecutors do their thing. I encourage all of 19 us to vote against it. 20 Thank you, Mr. President. 21 ACTING PRESIDENT HOLLAND: 22 Senator Abate. 23 SENATOR ABATE: Yes. Will 5262 1 Senator Saland yield to just two or three 2 questions? 3 ACTING PRESIDENT HOLLAND: 4 Senator Saland, will you yield? 5 SENATOR SALAND: Yes, Mr. 6 President. 7 ACTING PRESIDENT HOLLAND: 8 Senator yields. 9 SENATOR ABATE: Yes, Senator, 10 there is one section of the bill which talks 11 about the importance of grand juries in 12 investigating crimes and would subject those 13 individuals who unlawfully refuse to appear or 14 testify before a grand jury -- make them subject 15 to prosecution for the Class D felony of 16 criminal contempt in the first degree. 17 Now, would this apply to a 18 victim? And let me give you an example of a 19 victim: A woman who has been assaulted by her 20 husband or live-in partner and is reluctant to 21 come forward and testify because she fears for 22 her life and even though she reports the crime 23 to the police and gets as far as the D.A.'s 5263 1 office, as she is about to walk into the grand 2 jury to testify against her husband, she's 3 afraid of her life and is reluctant to testify 4 and walks out the door. 5 Does that mean -- in these 6 situations, will victims of domestic violence 7 now be subject to prosecution of a "D" felony 8 for criminal contempt? 9 SENATOR SALAND: My understanding 10 is that currently under the existing law that 11 would already be a crime or subject - 12 subject - 13 SENATOR ABATE: We're elevating 14 it. 15 SENATOR SALAND: Without our 16 doing anything, if we did absolutely nothing, if 17 we did not change the law, there could be an "E" 18 felony prosecution under the existing law. 19 Certainly I don't believe it was the Governor's 20 intent to jeopardize a victim, but that again is 21 the existing law, and the penalty is being 22 kicked up. 23 It is not done with any intent to 5264 1 try and somehow or other make the life of the 2 victim subject to greater agony or greater 3 victimization; and if, in fact, it's capable of 4 being read that way, then certainly, if we have 5 the opportunity to negotiate this with the 6 Assembly, I'm sure the Governor would be more 7 than happy to take a look at it. 8 But please keep in mind that 9 we're not creating a new penalty. 10 SENATOR ABATE: No. 11 SENATOR SALAND: It already 12 exists. 13 SENATOR ABATE: You're just 14 elevating. Right. 15 Senator, I'm well aware of that. 16 My concern is -- it's just ironic to me that 17 this is considered a Domestic Violence 18 Protection Act, and yet, within this very act, 19 there's enhancement of penalties for contempt. 20 In most of the cases where 21 domestic violence is going to be charged or 22 proved against an assailant, it is necessary to 23 have the testimony of the victim herself or in 5265 1 some cases himself. 2 So it's just ironic that in this 3 bill that alleges that we're going to do better 4 for domestic violence victims we have this 5 section, which could do irreparable harm to the 6 victim themselves. 7 SENATOR SALAND: With your 8 permission, if I might, Mr. President, would you 9 yield to a question? 10 SENATOR ABATE: Yes. 11 SENATOR HOLLAND: Senator Abate 12 yields. 13 SENATOR SALAND: Are you aware of 14 any prosecutions of any victim under the 15 existing law for failure to cooperate with a 16 prosecutor or any indictments having been 17 brought in? 18 SENATOR ABATE: I'm aware of 19 situations where a victim who has refused to 20 cooperate during a trial has been held in 21 contempt. I don't know the actual allegations 22 in those cases but, yes, the district attorney 23 has used his or her authority to hold victims 5266 1 who at the last minute become recalcitrant and 2 refused to testify for whatever reason. They 3 want to move forward with their case. They see 4 a crime has occurred and, oftentimes, the 5 victims are held in contempt or often held in 6 jail during the process and so they can testify. 7 SENATOR SALAND: Those are in 8 domestic violence cases? 9 SENATOR ABATE: That I cannot 10 say. I'm aware of a general policy that the 11 tool is used. My concern is since the thrust 12 and the motivation -- and I listened to the 13 questioning before. The thrust and the 14 motivation of this legislation is to provide 15 greater protection to domestic violence victims, 16 it seems to me we should scrutinize each of 17 these sections to see what impact this 18 legislation would have on these victims, and my 19 concern is, in good faith, we may be doing more 20 harm to the victim than you intend to do in the 21 first place. 22 But let me just go on and ask 23 another question. My concern is one that I have 5267 1 articulated now for months that we seem to pass 2 a lot of criminal justice policy because we're 3 reacting, and this is a very dramatic change in 4 criminal justice policy which would allow the 5 prosecutor to appeal bail they think is too low 6 or allow the prosecutor to appeal sentences they 7 think are too lenient. 8 Have we held any public hearings 9 where prosecutors testify, where judges testify, 10 where the defense bar testifies, where the local 11 jails testify, where OCA has been part of these 12 discussions? 13 SENATOR SALAND: I am not aware 14 of whatever may have preceded the Governor's 15 presenting this bill as a program bill in terms 16 of who he may have polled, who he may have dealt 17 with, he or his office. I would suspect that 18 the enormous weight of public opinion certainly 19 would say that there is nothing inappropriate 20 about the manner in which the Governor and this 21 house will endeavor to try, as I said earlier, 22 to level the playing field. 23 This is nothing unprecedented. 5268 1 Certainly, it exists at the federal level, and I 2 would assume, although I could not tell you with 3 certainty, that there are a number of other 4 states that probably provide a similar ability, 5 and I have to assume, even further, that given 6 the absence of horror stories either at the 7 federal level or within the ranks of other 8 states that this is something that is not 9 readily abused. 10 It's not like there will be an 11 absence of due process in this procedure. It 12 merely will afford the ability in those cases, 13 and I'm sure the cases in question will be far 14 more the exception than the rule, where there is 15 a sense that a judge has abused his or her 16 discretion to a point at which, whether it's in 17 terms of bail or sentencing, that which the 18 Court is directing does not comport with 19 standards of reasonableness, that the 20 prosecution will have the ability to appeal. 21 I don't find that to be 22 unreasonable, and I would like to think that 23 most people wouldn't find it to be 5269 1 unreasonable. This will not be done in a 2 vacuum. It will not be done in a vacuum. There 3 are, as you know -- well know -- guarantees 4 afforded not only by our federal Constitution 5 but our state Constitution and, yes, our Court 6 of Appeals, that certainly comes to a level that 7 exceeds that found in any other state. 8 SENATOR ABATE: Would the Senator 9 yield to another question? 10 ACTING PRESIDENT HOLLAND: 11 Senator Saland, do you continue to yield? 12 SENATOR SALAND: Yes, Mr. 13 President. 14 ACTING PRESIDENT HOLLAND: 15 Senator continues to yield. 16 SENATOR ABATE: You may be right 17 that a public opinion may support this. It may 18 work other places in other jurisdictions, but 19 don't we have a responsibility in this 20 Legislature to call together, have a public 21 debate, and involve the experts, so we 22 understand what the impact these changes would 23 have on the uniqueness of our criminal justice 5270 1 system? 2 It is not enough or I don't find 3 it enough to say it works some place else 4 without understanding the impact right here in 5 New York State. 6 To your knowledge, do you know 7 what OCA's position is on this bill? 8 SENATOR SALAND: I must confess 9 I'm not aware of OCA's position. 10 SENATOR ABATE: And have we asked 11 OCA what they think the impact would be on court 12 congestion, the impact on the number of 13 negotiated pleas? Will that increase or 14 decrease? The impact on local detention 15 facilities -- because, as a result of the bill, 16 people will be detained up to 72 hours while the 17 bail is being appealed. Have we asked what the 18 impact would be in the cost to localities on 19 numbers of defendants being held that much 20 longer? 21 SENATOR SALAND: I'm not aware of 22 those inquiries being made. But let me suggest 23 to you, if I might, that it's inconceivable to 5271 1 me that we're talking a majority of cases. I 2 think you and I can probably agree that we're 3 talking a minority of all the criminal cases 4 that come through our various courts from one 5 end of the state to another and, if anything, 6 what this measure would do would, I think, cause 7 judges to reflect a little more deliberatively 8 being full well aware of the fact that a 9 prosecutor will now have a new tool available to 10 him or her where they feel that that judge's 11 discretion has been abused. Certainly, the vast 12 majority of cases, these questions never arise 13 and in that small minority of cases where they 14 occur, I just am not troubled that the 15 prosecutor who, in effect, represents the people 16 of the State of New York and speaks for the 17 people of the State of New York in those cases 18 should not have at his or her fingertips the 19 comparable ability to challenge those decisions 20 that a defendant can otherwise challenge. 21 SENATOR ABATE: On the bill. 22 Thank you, Senator. 23 ACTING PRESIDENT HOLLAND: 5272 1 Senator Abate, on the bill. 2 SENATOR ABATE: I think we need 3 to put this in context that, unfortunately, we 4 as a society have been faced with a number of 5 tragedies around domestic violence, but I don't 6 think this chamber should be reacting to these 7 tragedies and then react with such a dramatic 8 change in criminal justice administration. 9 Last year, we passed a law and we 10 thought we had the acceptance of the 11 prosecutors. It was based on Willard. We 12 thought Willard was a terrific program, but 13 because of our failure to hold public hearings, 14 we didn't understand that maybe the prosecutors 15 weren't going to consent to release of 16 defendants to Willard. Because we did not have 17 public hearings and we didn't hear from the 18 prosecutors about whether they would consent or 19 not, Willard doesn't have a sufficient number of 20 people in that facility. 21 If we had reached out to the 22 experts and heard what the impacts of the 23 proposed legislation would have been, we could 5273 1 have amended the law. We could have understood 2 how the program had to be modified, and we would 3 have produced a more effective piece of 4 legislation last year. 5 Again, we're reacting to 6 headlines. I say this over and over again and 7 maybe it's boring, but I believe it, is that our 8 criminal justice policy formulation should not 9 be partisan. It should be bipartisan. It 10 should involve the experts in the field so that 11 our policy isn't reactive, but it is effective, 12 it is strong, and we have to have a tough 13 criminal justice system. 14 But we in the Legislature, when 15 we pass legislation like this without hearing 16 from the judges, without hearing from the D.A.s 17 -- I want to hear from them how many cases 18 would be appealed in terms of bail or in terms 19 of the sentences. We would ask them to take 20 last year's history of cases and tell us how 21 many times would you have made appeals either in 22 terms of bail or light sentences so we get a 23 sense of what the impact on the system would be. 5274 1 I would like to hear from the 2 judges. I have heard judges say, "We're on the 3 bench." Of course, there are some judges who 4 make some stupid decisions and should be 5 criticized, but for the most part in that 6 courtroom, the judges in that courtroom have 20, 7 30 years of experience, life experience as well 8 as legal experience, and sometimes the A.D.A.s 9 are just out of law school; and shouldn't there 10 be a balance? If we're going to have an 11 independent judiciary, shouldn't they have 12 authority to make decisions based on individual 13 cases before them? 14 One thing we should keep in 15 mind. There are guidelines that are set out in 16 terms of setting bail. A judge can't, just on a 17 whim, either deny bail or set someone free on 18 their own recognizance. The Court must take 19 into consideration the following factors: One, 20 the principal's -- the defendant's character, 21 reputation, habits, mental condition, his or her 22 employment and financial resources, family ties, 23 length of residence in the community, criminal 5275 1 record, record of previous adjudication as a 2 juvenile defendant, previous record, if any, in 3 responding to the court, whether they have 4 violated prior court orders, whether they have 5 failed to return to court, any warrants 6 outstanding, the weight against the defendant, 7 and the sentence that could be imposed if the 8 defendant was convicted. 9 Maybe we have to look at better 10 solutions in making judges accountable. Instead 11 of giving prosecutors appeal, maybe we have to 12 go back and say to judges when the prosecutor 13 challenges the bail set, the judge has to put on 14 the record why they are setting such a low bail 15 so there's some justification and there is a 16 record and there is an opportunity to challenge 17 the judge's decision. There seems to be maybe 18 other alternatives to hold judges accountable 19 and protect the public. 20 But this tips the scales of 21 balance in a direction that I believe will 22 create havoc in the criminal justice system. It 23 will mean that we're going to a system of 5276 1 preventive detention, because any time a 2 district attorney says, "The bail is too low," 3 that means the case has to be appealed and the 4 defendant -- and we'll put aside the weight of 5 the evidence. We'll put aside the presumption 6 of innocence. That defendant will be held up to 7 72 hours. 8 If this chamber wants to pass a 9 preventive detention bill, fine, but this has 10 nothing to do with domestic violence. This bill 11 has nothing to do with domestic violence. We 12 can't pass it unless we know the impact. It 13 will mean fewer negotiated pleas, I believe, or 14 not only negotiated pleas will be affected. I 15 believe bail, then, will become negotiated 16 unless the D.A. consents to the level of bail. 17 Unless the defendant understands the A.D.A. will 18 not appeal a sentence, all things will grind to 19 a halt. We need to understand the impact of 20 those decisions. 21 So I'm disappointed. Everyone in 22 this chamber cares about domestic violence. We 23 want to be tough. We want to make sure 5277 1 sentences and violations of orders of protection 2 are taken very seriously by the courts. I think 3 the first section of the bill is quite good. 4 That calls for greater penalties for violations 5 of order of protection, but if this chamber 6 wants to be serious about domestic violence, 7 there is a whole package of get tough on 8 domestic violence offenders that has been put 9 forward by legislators over the last five 10 years. 11 We should look -- and many of 12 those legislators happen to be in the Assembly 13 who are sponsoring and have introduced these 14 bills. So I call upon this chamber to look at 15 these pieces of legislation. One is a stalking 16 bill, enhances penalties. Another takes guns 17 away from people who are charged and convicted 18 of domestic violence. It talks about violence 19 hot lines and safe havens and more time for 20 offenders. This is a get tough package on 21 domestic violence. 22 This bill I'm not sure what it 23 does. It is too great a dramatic change in our 5278 1 criminal justice process without having a full 2 debate and public hearing. I think we will 3 neglect our duties. We won't be responsible 4 because we do not have sufficient information 5 before us to pass this piece of legislation 6 today. 7 I ask the Senator if he would 8 consider laying this aside so we could have 9 public hearings involving the judges, the 10 district attorneys, the correction departments 11 throughout the state, to understand what the 12 real impact this law would have on the system of 13 criminal justice, and include the victims. I 14 think we need to hear from the victims. There 15 are portions of this bill that will impact on 16 them. Let's hear from them whether this is the 17 way to go or whether we have better options in 18 terms of protecting the public. 19 I will be voting no on this piece 20 of legislation. 21 ACTING PRESIDENT HOLLAND: 22 Senator Volker. 23 SENATOR VOLKER: Mr. President, I 5279 1 wasn't going to comment, but I feel kind of 2 constrained because some of the things that were 3 said here and, Senator Abate, I think you made 4 some very good points and, as usual, you were 5 very articulate. As far as prosecutor appeals, 6 and I just asked my colleague right next to me, 7 I was trying to think of how many people -- I 8 have been Chairman of Codes since 1987. I have 9 been on Codes forever. 10 There have been prosecutor 11 appeals bills. I think Marty Knorr may have 12 sponsored the first one -- Senator Knorr - 13 about 15, 20 years ago. Senator Padavan passed 14 his five times. I believe we had hearings two 15 or three times as part of other -- not just 16 specifically on that issue, but on other issues 17 way, way back, probably in the '80s '70s, so 18 forth. 19 The point I'm trying to make is 20 this is not a new proposal at all. It's been 21 around for years. 22 Judges? Well, some of the judges 23 from certain counties will say, Geez, it's a 5280 1 terrible idea because it will create crowding, 2 and so forth. If we have public hearings, I 3 will tell you exactly who is going to come out, 4 who is going to say what, and so forth. I mean 5 that's fine. 6 Last year, we passed a sentencing 7 bill. People said we ought to have public 8 hearings on it. Yes, we only had them in 1977 9 on definite sentencing. We had them in '83 on 10 criminal sentencing. We had them again I think 11 in the early '90s. The point is, frankly, you 12 can drive these things to death. 13 We did it last year because we 14 had the opportunity. The Assembly was willing 15 to deal with us. And, by the way, on Willard, 16 we asked the D.A.s. We didn't not consult with 17 them. We consulted with everybody on that. I 18 was one of the people directly involved in 19 negotiating. The trouble was -- and I was 20 worried about this. Even though most of the 21 D.A.s were saying, "Well, yeah, we will do it," 22 when it came right down to doing it, they were 23 very reluctant to do it. On that, you're right, 5281 1 but public hearings wouldn't have brought that 2 out because I don't believe that they really 3 would have admitted that they were not willing 4 to do it. 5 I've got to tell you, the heads 6 of the association were telling us they were 7 willing to do it, and you're right that's a 8 problem. We're trying to deal with it and, 9 hopefully, we will be able to deal with it. 10 The only reason I'm mentioning 11 this is -- I realize this is a Governor's 12 program bill, as was the bill that I sponsored 13 yesterday, and I read the New York Times today, 14 and I understand -- I think it's unfortunate 15 from the Assembly standpoint that they took as 16 definitive a stand as they have. I have been 17 trying all year long to keep that from 18 happening. 19 Now, that package of bills that 20 you talked about in the Assembly, some of them 21 are fairly interesting bills and Senator Saland, 22 I'm sure, is going to take a look at it. There 23 is one bill in there, sponsored by an 5282 1 Assemblywoman who I know very well, that talks 2 about upgrading penalties for stalking. Get 3 that bill passed, because we've been trying to 4 do that for years. That bill has passed this 5 Senate for years or a similar bill. 6 In fact, the trouble with 7 stalking is -- in fact, I think that was Senator 8 Tully. The Assembly came out strongly in favor 9 of doing something about stalking. It was a big 10 issue for women, and then when we tried to do 11 it, we found out that they were kind of 12 ambivalent about it because of the penalties. 13 They didn't want to deal with the penalties. 14 The only reason I mention this is 15 that I realize that this is a tough issue and I 16 realize that these are difficult, difficult 17 issues. Senator, there is a saying in criminal 18 justice, "There's hardly nothing new under the 19 sun these days." 20 Very little in this bill is new. 21 Preventive detention -- Senator Cook, who is 22 here, his bill is the most historic bill in my 23 committee. I think he started passing it 5283 1 somewhere around 1975 or '6. We've done it just 2 about every year. In fact, I believe it's 3 either on the calendar or we have already done 4 it. 5 The only reason I mention it is 6 that although certainly it's arguable that you 7 should look at these things and you should study 8 them, there has been an awful lot of study done 9 in this whole area, and I just want to point 10 that out. 11 ACTING PRESIDENT HOLLAND: 12 Senator Marcellino. 13 SENATOR MARCELLINO: Yes, Mr. 14 President. May we suspend this debate for a 15 moment so we can recognize some Senators who 16 have pressing business and would like to cast 17 their ballots now. 18 ACTING PRESIDENT HOLLAND: Could 19 you read the last section, please. 20 THE SECRETARY: Section 14. This 21 act shall take effect immediately. 22 ACTING PRESIDENT HOLLAND: Call 23 the roll. 5284 1 (The Secretary called the roll.) 2 Senator Smith. 3 SENATOR SMITH: No. 4 ACTING PRESIDENT HOLLAND: 5 Senator Abate. 6 SENATOR ABATE: No. 7 ACTING PRESIDENT HOLLAND: 8 Senator Lachman. 9 SENATOR LACHMAN: No. 10 ACTING PRESIDENT HOLLAND: 11 Senator Skelos. 12 SENATOR SKELOS: Aye. 13 ACTING PRESIDENT HOLLAND: 14 Senator Trunzo. 15 SENATOR TRUNZO: Yes. 16 ACTING PRESIDENT HOLLAND: 17 Senator Wright. 18 SENATOR WRIGHT: Aye. 19 ACTING PRESIDENT HOLLAND: 20 Senator Lack. 21 SENATOR LACK: Aye. 22 ACTING PRESIDENT HOLLAND: 23 Senator Montgomery. 5285 1 SENATOR MONTGOMERY: No. 2 ACTING PRESIDENT HOLLAND: 3 Withdraw the roll call and return to the debate. 4 Senator Gold. 5 SENATOR GOLD: Thank you, Mr. 6 President. 7 Mr. President. I listened very 8 carefully to my colleagues, and I think that 9 when Senator Abate talks about this being a 10 major change, I believe it is a major change; 11 and even though, as Senator Volker rightfully 12 said, we discussed the issue before, the fact 13 that we discussed it doesn't make it the law and 14 the fact that we discussed it doesn't mean it's 15 not a major change. It's a tough issue. 16 What bothers me -- and I hate to 17 keep coming back to it every day, because I have 18 been up here so long I should have known this, 19 and the fact that Senator Farley said it so 20 vividly to me should not have been a shock: The 21 concept that we don't debate laws; we debate 22 issues. 23 But this "issue," I say to 5286 1 myself, "Every day we have judges making 2 decisions." Some of those decisions may be a 3 bad decision, and through the grace of the 4 Almighty nothing happens and that's okay. 5 Some of the decisions are good 6 decisions but because of things that are not in 7 court, uncontrollable, a bad thing could happen 8 even though a judge made a good decision. 9 I doubt whether there are many 10 people in this room who know, for example, that 11 today as you're sitting here right now -- or 12 apparently not sitting here -- in the Family 13 Court in the state of New York, New York County, 14 they are appointing guardians for children in 15 cases, and I know of at least one situation 16 where there is a group being appointed as 17 guardian where the guardians never even meet the 18 child, and yet the guardians come to court based 19 upon hearsay from other people who get sent out 20 and make recommendations to judges, and that is 21 a process going on today in the Family Court. 22 Now, I know about it in one particular 23 situation, and there has been no harm to the 5287 1 child. But I will tell you something, now that 2 you all know about the situation that I have 3 told you about. When that case comes into view 4 and the no-nothing who writes editorials for the 5 Daily News decides to wrote one of his junk 6 justice pieces, and people say, "Oh, my God! You 7 appoint guardians and the guardian never met the 8 people; what kind of process?" then they are 9 going to find out that this has been going on 10 for years. 11 There was a time a few years ago 12 when the people of this state cheered when 13 Isadore Zimmerman was convicted of murder and 14 sentenced to the electric chair. The crime was 15 terrible, and people were glad that justice was 16 served. Some 20 years later, when his 17 conviction was thrown out after, thank God, his 18 death sentence was commuted and this Legislature 19 passed a law to reward -- terrible way to say 20 that -- but to pay Mr. Zimmerman for the time of 21 his life we took away, everybody cheered and 22 said we have taken care of this victim. And 23 what that basically says to me is that we live 5288 1 in a world where we cheer hindsight and Monday 2 morning quarterbacking, and we get very un 3 realistic in the way that we deal with human 4 life on a day-to-day basis. 5 The case that is cited in the 6 memo and the case we've heard so much about that 7 came out of Brooklyn with Judge Duckman is a 8 tragic case. As I read that, some of what I 9 have read about it, the district attorney has 10 supported some young assistants in the court 11 room, and I admire him for sticking up for his 12 staff. But why don't you take a look at what 13 really happens in a courtroom. 14 You have young people out of law 15 school who are assistants starting their career, 16 and they are very sincere, good people. Nothing 17 bad to say. And we're suggesting today that if 18 they, in fact, don't agree with someone who has 19 been elected or appointed to the bench who has 20 had to practice law for at least ten years and 21 whatever, we now want to get into a process that 22 says they should be able to appeal, and maybe 23 that's a change in the law, Senator, that we 5289 1 haven't done before. Maybe it's time to do 2 that. I don't know whether it's destroying the 3 federal system. 4 But I know that one thing I 5 haven't seen in the papers in the situation of 6 Judge Duckman, for example. It would be 7 interesting to know about the other thousand 8 cases he handled that week, because that's what 9 he did. I haven't seen his schedule, but 10 knowing what the Brooklyn Criminal Court is, I 11 have to assume that there were probably 12 something between maybe 600 and 800 or 1,000 13 cases that came before him that week, and nobody 14 is prepared to say that, you know, it's amazing 15 that judges get so much right so much of the 16 time, and we don't hold ourselves, believe me, 17 to the standard that we are trying to hold 18 judges to in the debates that we've had so far 19 this year, and I think it's unfair. I think 20 it's unfair. 21 Domestic violence is horrifying 22 and, you know, when you take a look at the 23 criminal justice system, it's easy to talk about 5290 1 somebody who steals money, steals cars, holds up 2 a store and kills. These people are looking - 3 there is a profit motive. You can put them in 4 jail or maybe you can rehabilitate somebody in 5 some way. 6 But as my distinguished colleague 7 to my left points out, a lot of the times when 8 you get into sexual crimes, putting somebody in 9 jail apparently hasn't helped too much. There 10 has got to be treatment. There's got to be 11 other things, and some people don't even think 12 treatment helps. It's a different kind of 13 crime. You issue an order of protection in a 14 domestic violence case and you hold somebody in 15 jail for a week, for two weeks, for 45 days, and 16 for some reason the people come out and killing 17 doesn't bother them because their life means 18 nothing. They've seen their life destroyed in 19 their minds. We've seen people kill their 20 families and shoot themselves. The capital 21 punishment laws in this state haven't saved any 22 of those people. 23 So I'm concerned about this 5291 1 particular bill. I tell you, Senator Saland, as 2 it's drafted, if we wanted to do that, I'm not 3 crazy offended. I know that some people have 4 raised the issue as to whether or not this is 5 constitutional or that, and we should listen to 6 that one. I think Senator Farley is right. 7 We're just going to have to deal with an issue 8 here as to whether or not we think that after 9 all of these years in the state of New York this 10 is the place where we are going to get that 11 crack in the dam, and we'll either say 12 prosecutors should be able to appeal or they 13 shouldn't be able to appeal in these limited 14 cases. 15 But you and I know, Senator 16 Saland, that the next step will be why should 17 this kind of idea not apply to organized crime? 18 We have a guy who's a gangster, and we know he's 19 a gangster and the bail is too low, why let him 20 on the street? Why shouldn't this apply to drug 21 dealers? And these kinds of bills are always a 22 problem for me when we start to separate victims 23 and kinds of situations because that's the 5292 1 hype -- that's the hype in the media today. 2 We had bills which said if you 3 commit a crime against a senior, it's more than 4 if you don't, and we pointed out at that time, 5 we're trying to protect seniors, but if you have 6 a senior walking with their pregnant daughter, 7 they are not going to be so happy that their 8 pregnant daughter gets belted around because 9 it's less of a crime. So we make these 10 distinctions which we then wonder, have we made 11 a proper distinction or not. 12 I am very sensitive in domestic 13 violence cases and I think that if you listen to 14 a Catherine Abate, who votes against this bill, 15 I don't think there is anybody in the world 16 who's going to say, "There's a lady who doesn't 17 understand domestic violence, there's a lady who 18 doesn't understand women's issues." It just 19 isn't so. 20 The people on this side who are 21 voting no obviously are very, very much 22 concerned and aware of the problems with 23 domestic violence. 5293 1 Closing -- and I know there are 2 some people again who want to vote -- I just 3 want to say that on the bill the thing that 4 bothers me the most is the underlying debate 5 which somehow has pervaded this chamber into 6 thinking that it's good politics in 1996 to bash 7 judges, and the one person who that does not 8 apply to is Senator Saland. I'm not suggesting 9 that, Senator. You know I hold you in the 10 utmost esteem. 11 But the problem is that most of 12 what we are doing this year in criminal justice 13 is going to be interpreted as that, that we in 14 some way have to just -- to keep up with the 15 trend of our newspapers, have to bash judges on 16 a day-to-day basis. I think there are plenty of 17 things wrong. One of them I gave you today, 18 Senator Saland, and maybe you'll want to go down 19 to that courthouse in lower Manhattan and find 20 out why they appoint people to be guardians who 21 never meet their wards. 22 Maybe there's some other things I 23 can tell you about which I think would be 5294 1 helpful in the situation. I'm not really sure 2 this does it. I do think that when we open up a 3 door to a major change in the criminal justice 4 system, we have to take a real close look as to 5 where that's leaving us in the next day. 6 ACTING PRESIDENT DiCARLO: 7 Senator Marcellino. 8 SENATOR MARCELLINO: Mr. 9 President, can we suspend the debate for a 10 second and read the last section for purposes of 11 letting Senator LaValle cast his vote. Senator 12 Padavan, as well. 13 ACTING PRESIDENT DiCARLO: Read 14 the last section. 15 THE SECRETARY: Section 14. This 16 act shall take effect immediately. 17 ACTING PRESIDENT DiCARLO: Call 18 the roll. 19 (The Secretary called the roll.) 20 Senator LaValle. 21 SENATOR LAVALLE: Aye. 22 ACTING PRESIDENT DiCARLO: 23 Senator Padavan. 5295 1 SENATOR PADAVAN: Aye. 2 ACTING PRESIDENT DiCARLO: 3 Senator Gold. 4 SENATOR GOLD: In the negative. 5 ACTING PRESIDENT DiCARLO: 6 Senator Seward. 7 SENATOR SEWARD: I vote aye. 8 ACTING PRESIDENT DiCARLO: Close 9 the roll call. The roll call is withdrawn. 10 Senator Paterson. 11 (There was no response.) 12 Read the last section. 13 THE SECRETARY: Section 14. This 14 act shall take effect immediately. 15 ACTING PRESIDENT DiCARLO: Call 16 the roll. 17 (The Secretary called the roll.) 18 ACTING PRESIDENT DiCARLO: Senate 19 will stand at ease for one moment. 20 SENATOR MARCELLINO: Senator 21 Paterson will be back in a second. He would 22 like to speak. 23 ACTING PRESIDENT DiCARLO: Roll 5296 1 call is withdrawn. 2 SENATOR MARCELLINO: Mr. 3 President, we would be glad to have you do the 4 substitutions. 5 ACTING PRESIDENT DiCARLO: 6 Secretary will read. 7 THE SECRETARY: On page 59, 8 Senator Volker moves to discharge from the 9 Committee on Rules Assembly Bill Number 9627 and 10 substitute it for the identical Third Reading 11 Calendar 1038. 12 On page 72, Senator DeFrancisco 13 moves to discharge from the Committee on Rules 14 Assembly Bill Number 5979 and substitute it for 15 the identical Third Reading Calendar 1133. 16 ACTING PRESIDENT DiCARLO: 17 Substitutions are ordered. 18 Senator Paterson, welcome. Do 19 you wish to speak on the bill? 20 SENATOR PATERSON: Thank you. 21 ACTING PRESIDENT DiCARLO: 22 Senator Paterson. 23 SENATOR PATERSON: Mr. President, 5297 1 if Senator Saland will yield for a brief 2 question. 3 ACTING PRESIDENT DiCARLO: 4 Senator, do you yield? 5 SENATOR SALAND: Yes, Mr. 6 President. 7 ACTING PRESIDENT DiCARLO: 8 Senator yields. 9 SENATOR PATERSON: Senator, the 10 72 hours that would be added on during the 11 resolution of whether or not the prosecutor 12 might appeal bail, in other words, the detention 13 of the defendant for an additional 72 hours, do 14 you see any way that this would influence the 15 bail negotiation? 16 SENATOR SALAND: Perhaps I'm 17 being a little dense. Maybe you could rephrase 18 the question, Senator Paterson. 19 SENATOR PATERSON: Thank you, Mr. 20 President. 21 Senator Saland, maybe to 22 amplify. I used to conduct bail hearings at a 23 point when I was in the Queens District 5298 1 Attorney's Office, so in this case I was the 2 prosecutor, and what is classically the case is 3 the prosecutor picks a higher bail than the 4 defense attorney and then the judge sets bail. 5 Because I now as the prosecutor -- and we'll 6 assume you are assisting me. As prosecutors, we 7 have the option now of appealing the bail. So 8 we can actually detain the defendant another 72 9 hours because if we don't like the inevitable 10 decision then we can remand the defendant for an 11 additional three days, and that's 72 hours 12 assuming that the judge can make a decision. If 13 the judge can't, then the time seems to be in 14 definite from your bill. 15 So I'm just saying that doesn't 16 that give us the option of either increasing the 17 amount of bail until we agree to let the 18 defendant go or just taking a blanket position 19 that we're delaying the proceedings? 20 Doesn't that give us, in a sense, 21 an unfair tool in the negotiation? 22 SENATOR SALAND: Thank you for 23 providing the additional particulars. 5299 1 SENATOR PATERSON: I won't even 2 term it unfair. Let's just say an additional or 3 an excessive tool in the negotiations. 4 SENATOR SALAND: I do not believe 5 in the vast, vast majority of cases that it will 6 have one iota of impact. I think there will be 7 a small number of cases in which there is the 8 reasonable belief, or at least to a district 9 attorney the reasonable belief, that the bail as 10 set by the Court is so low as to be beyond the 11 pale of anything that would be considered 12 reasonable that the district attorney would 13 resort to the use of appeal. 14 I don't think they are going to 15 arbitrarily use -- I don't think they would use 16 this as a tool to arbitrarily appeal cases. 17 Certainly, there are practical reasons, if for 18 none other than practical reasons that they 19 wouldn't. They simply would not have the 20 personnel if you are implying they would 21 threaten or even endeavor to appeal each and 22 every time that there is a bail decision made by 23 a court. 5300 1 SENATOR PATERSON: Thank you, 2 Senator Saland. 3 Mr. President, as for the impact, 4 I don't know that it would be -- I agree with 5 Senator Saland. I don't know that it would be a 6 great number of cases that this would 7 necessarily affect, but it probably wasn't an 8 overload of cases that was the catalyst for 9 writing this bill. It was probably some 10 situations that seem to be abhorrent because in 11 a particular situation an individual was 12 released and there was a perception that this 13 individual might not be available for trial. 14 Actually, there are a lot of 15 cases where that actually occurs, and bench 16 warrants have to be achieved at that particular 17 point, but what I'm asking, Senator Saland, is 18 not the impact but just specifically what the 19 bill provides; that, in other words, even in 20 these individual cases where they are high 21 profile, unless the district attorney elicits a 22 bail of a million dollars or something that's 23 dramatic, there is a tremendous amount of 5301 1 pressure on the prosecutors, and that's why I 2 wish we had gotten their commentary on this 3 specific bill. 4 I understand what Senator Volker 5 is saying, but I wish we had the prosecutors 6 tell us about this particular bill, because, in 7 a lot of cases, it would then be the prosecutor 8 who was under public scrutiny if the prosecutor 9 does not appeal the particular bail because the 10 bail might be perceived to be too low. 11 I think it is fair to say, 12 Senator Saland, that there's not a significant 13 understanding around this state of what bail 14 really is. Bail is not something that reflects 15 the crime, and bail is not something that 16 reflects whether or not in the overwhelming 17 cases there is a danger to society of the 18 defendant being released. Bail is the measure 19 of whether or not we think the defendant will be 20 available for trial. 21 But what seems to be the case if 22 you watch the evening news is that, if you have 23 a celebrated case, there is an assumption that 5302 1 there should be a very strong bail or remand of 2 the defendant, and what I'm offering in this 3 discussion is the possibility that the political 4 situation starts to creep into what is really 5 the professional analysis of what the situation 6 is in a particular criminal justice case, where 7 the prosecutor would be forced to appeal the 8 bail hearing result because otherwise the 9 prosecutor, not the judge, is going to be placed 10 under tremendous public scrutiny as to what he 11 or she is doing with this particular case. 12 So since that made sense, I will 13 just go on and -- on the bill, Mr. President - 14 advise that what's very troubling is that the 15 felony criminal content upgrade as we see in 16 this particular bill is really laudable. I 17 think if that bill was separate, it would pass 18 this house 61 to nothing. We are all in favor 19 of that. 20 If there's something wrong with 21 this bill, i wouldn't even go into the details 22 to point out what it is. There's nothing in the 23 bill that is as abhorrent as what should have 5303 1 been in the bill and isn't. I think that we 2 should examine, as Senator Volker talked about, 3 the issue of stalking, penalties for stalking, 4 also other issues that relate to domestic 5 violence situations, the confidentiality of the 6 victim, certainly the removal of guns even 7 though they are licensed by individuals who have 8 been convicted of domestic violence, other 9 things that I think would provide a better 10 quality of life in this area. 11 But the other public safety 12 protections that this bill is offering, I think 13 actually border on a sense of constitutionality. 14 And for that reason, I can't 15 support the bill. 16 ACTING PRESIDENT DiCARLO: Read 17 the last section. 18 THE SECRETARY: Section 14. This 19 act shall take effect immediately. 20 ACTING PRESIDENT DiCARLO: Call 21 the roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Those recorded in 5304 1 the negative on Calendar Number 1105 are 2 Senators Abate, Connor, Gold, Lachman, Leichter, 3 Markowitz, Mendez, Montgomery, Paterson, 4 Seabrook, Smith, and Waldon. Aye 44, nays 12. 5 ACTING PRESIDENT DiCARLO: The 6 bill is passed. 7 Senator Marcellino, that 8 completes the controversial reading of the 9 calendar. 10 SENATOR MARCELLINO: Mr. 11 President, is there any housekeeping at the 12 desk? 13 ACTING PRESIDENT DiCARLO: Yes, I 14 believe there is. 15 SENATOR MARCELLINO: I have the 16 housekeeping. 17 On behalf of Senator Hoblock, Mr. 18 President, please place a sponsor's star on 19 Calendar Number 1111. 20 ACTING PRESIDENT DiCARLO: So 21 ordered. 22 SENATOR MARCELLINO: There being 23 no further business, I move we adjourn until 5305 1 Monday, May 20, at 3:00 p.m., intervening days 2 to be legislative days. 3 ACTING PRESIDENT DiCARLO: On the 4 motion, the Senate stands adjourned until 5 Monday, May 20, at 3:00 p.m., intervening days 6 to be legislative days. 7 (Whereupon, at 1:41 p.m., the 8 Senate adjourned.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23