Monday, May 20, 1996

5318 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 May 20, 1996 10 3:04 p.m. 11 12 REGULAR SESSION 13 14 15 SENATOR JOHN R. KUHL, JR., Acting President 16 STEPHEN F. SLOAN, Secretary 17 18 19 20 21 22 23 5319 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: The Senate 3 will come to order. I ask the members to find 4 their places, staff their places. 5 I would ask everybody in the chamber 6 to rise, including those in the galleries, to 7 say the Pledge of Allegiance to the Flag with me 8 and also remain standing for the invocation. 9 (The assemblage repeated the Pledge 10 of Allegiance to the Flag.) 11 We're very pleased to have the 12 Reverend Peter G. Young of the Blessed Sacrament 13 Church of Bolton Landing here to deliver the 14 invocation. 15 Father Young. 16 THE REVEREND PETER G. YOUNG: Thank 17 you, Senator. 18 Let us pray. May we pray for all of 19 our New York State people, that their wealth and 20 their power might become a source for peace 21 rather than conflict, a source of hope rather 22 than discontent, an agent of friendship rather 23 than enmity. 5320 1 May the actions of this Senate body 2 be that example. Amen. 3 ACTING PRESIDENT KUHL: Reading of 4 the Journal. 5 THE SECRETARY: In Senate, Sunday 6 May 19th. The Senate met pursuant to adjourn 7 ment. The Journal of Saturday, May 18th, was 8 read and approved. On motion, Senate adjourned. 9 ACTING PRESIDENT KUHL: Hearing no 10 objection, the Journal stands approved as read. 11 Presentation of petitions. 12 Messages from the Assembly. 13 Messages from the Governor. 14 Reports of standing committees. 15 Reports of select committees. 16 Communications and reports from state 17 officers. 18 Motions and resolutions. 19 Senator Farley. 20 SENATOR FARLEY: Thank you, Mr. 21 President. 22 I'm going to offer a lot of 23 amendments here to the following Third Reading 5321 1 Calendar bills: 2 By Senator Holland, on pages 20, 27, 3 and 57, Calendar Numbers 651, 769 and 1040, 4 Senate Prints 5789A, 6242 and 6927A; 5 On behalf of Senator Sears, on page 6 27 and page 64, Calendar Numbers 758 and 1090, 7 Senate Print 7193 and Senate Print 1396A; 8 On behalf of Senator Spano, on page 9 41, Calendar 908, Senate Print 4005C; 10 And on behalf of Senator Hoblock, on 11 page 22, Calendar Number 697, Senate Print 6257; 12 On behalf of Senator Goodman, on page 13 71, Calendar 1150, 5838A Senate Print; 14 Senator Marchi, on page 75, Calendar 15 1187, 6801; 16 On behalf of Senator Larkin, page 65, 17 Calendar 1104, Senate Print 6564; 18 Senator Libous, who I'm doing a 19 motion for here, page 73, Calendar 1171, Senate 20 Print 6990; 21 And on behalf of Senator Wright, on 22 page 11, Calendar Number 410, Senate Print 6300. 23 I offer amendments to these bills and 5322 1 I ask that they retain their place on the Third 2 Reading Calendar. 3 ACTING PRESIDENT KUHL: All the 4 amendments are received and adopted. The bills 5 will retain their place on the Third Reading 6 Calendar. 7 SENATOR GOLD: Mr. President. 8 ACTING PRESIDENT KUHL: Senator 9 Farley. 10 SENATOR FARLEY: He wants his motion 11 back. 12 On behalf of Senator Maltese, please 13 remove the sponsor's star from Calendar Number 14 694. 15 ACTING PRESIDENT KUHL: At the 16 request of the sponsor, Senator Maltese, the 17 star will be removed on Calendar Number 694. 18 SENATOR FARLEY: Thank you, Mr. 19 President. 20 ACTING PRESIDENT KUHL: Senator 21 Gold. 22 SENATOR GOLD: As Senator Farley ran 23 out of gas, I'll do this myself. 5323 1 Mr. President, on page 14, the 2 following amendments to Calendar 496, my bill 3 2978, I ask that it retain its place on the 4 Third Reading Calendar. 5 ACTING PRESIDENT KUHL: Amendments 6 to Calendar Number 496 received and adopted. 7 The bill will retain its place on the Third 8 Reading Calendar. 9 Senator Seward. 10 SENATOR SEWARD: Yes, Mr. President. 11 I wish to call up my bill, Print Number 5949 12 recalled from the Assembly, which is now at the 13 desk. 14 ACTING PRESIDENT KUHL: Secretary 15 will read the title. 16 THE SECRETARY: By Senator Seward, 17 Senate Print 5949, an act to amend the Abandoned 18 Property Law. 19 ACTING PRESIDENT KUHL: Senator 20 Seward. 21 SENATOR SEWARD: Yes. I now move to 22 reconsider the vote by which this bill was 23 passed. 5324 1 ACTING PRESIDENT KUHL: Secretary 2 will call the roll on reconsideration. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 39. 5 ACTING PRESIDENT KUHL: Senator 6 Seward. 7 SENATOR SEWARD: Yes. I now offer 8 the following amendments to that bill. 9 ACTING PRESIDENT KUHL: Amendments 10 are received and adopted. 11 Senator Bruno. 12 SENATOR BRUNO: Mr. President, as we 13 move forward with our calendar in addressing the 14 resolutions, I would like to acknowledge a very 15 important event that's taking place here in New 16 York State and that is the birthday of Senator 17 David Paterson, the Deputy Minority Leader, and 18 that as we move forward with the session this 19 day, it would represent a celebration of our 20 great colleague, Senator Paterson. 21 On behalf of your colleagues, we wish 22 you a very happy birthday. 23 (Applause.) 5325 1 ACTING PRESIDENT KUHL: Senator 2 Paterson, why do you rise? 3 SENATOR PATERSON: Mr. President, I 4 know the Majority Leader would not want to be 5 remiss and not forget that it is also the 6 birthday of the Senate's longest serving member, 7 Senator Marchi, and I think we also need to 8 include Senator Marchi in the celebration. 9 (Applause.) 10 SENATOR BRUNO: Thank you, Senator 11 Paterson. He is wherever, saving me and 12 correcting me, Mr. President. I did not know 13 that. So, thank you very, very much. We wish 14 you both a very, very happy day. 15 I think you're about the same age, so 16 -- I guess that's not true. 17 Mr. President, I believe that there 18 is a privileged resolution at the desk by 19 Senator Holland. I would ask that it be read in 20 its entirety and that we move for its immediate 21 adoption. 22 ACTING PRESIDENT KUHL: Secretary 23 will read the privileged resolution by Senator 5326 1 Holland in its entirety. 2 THE SECRETARY: By Senator Holland, 3 legislative resolution memorializing Governor 4 George E. Pataki to proclaim May 20th through 5 the 24th, 1996 as Bone Marrow Donor Awareness 6 Week in New York State. 7 Whereas, this legislative body is 8 justly proud to memorialize Governor George E. 9 Pataki to proclaim May 20th through the 24th, 10 1996 as Bone Marrow Donor Awareness Week; 11 Bone marrow transplants now give 12 people dying of blood-related diseases, such as 13 leukemia and aplastic anemia a chance to be 14 cured if a donor can be found whose bone marrow 15 matches their own; 16 An individual has only a 30 percent 17 chance of finding a donor among his or her only 18 family members. Once family members have been 19 tested and a match is not found, an individual 20 is faced with only about one in 20,000 unrelated 21 people who match closely enough to allow the 22 opportunity for a bone marrow donation; 23 Although the national donor registry 5327 1 was begun in 1987 to assist finding suitable 2 donors from a pool of typed, readily available 3 volunteers, it is estimated that at least 1 4 million potential donors worldwide must be 5 listed on the registry if the majority of 9,000 6 afflicted individuals presently waiting for 7 matches in the United States are to be saved; 8 Many people in the United States have 9 died because their desperate searches have not 10 produced a matching donor in time. It is vital, 11 therefore, that every effort be made to assure 12 that the donor pool is as large and as diverse 13 as possible; 14 Marrow transplants require matching 15 tissue types which are characterized by complex 16 genetic traits often unique to a particular 17 race, and currently 92 percent of the volunteer 18 donors are Caucasian; 19 It is of critical importance that 20 African-Americans, Hispanics, Asians and Native 21 Americans who are presently under-represented on 22 the registry become volunteers so that the same 23 hope can be offered to all Americans in need; 5328 1 In memory of the late Senator Eugene 2 Levy, it is the intent of this legislative body 3 to designate May 20th through the 24th, 1996 as 4 Bone Marrow Donor Awareness Week in New York 5 State, recognizing and honoring all those who 6 have selflessly donated marrow or have been 7 tested as a potential donor and to enhance 8 public awareness of the desperate need for bone 9 marrow donors, particularly minority donors; 10 During Bone Marrow Donor Awareness 11 Week, the Bone Marrow Resource Foundation will 12 distribute educational material and conduct a 13 donor drive to test individuals as potential 14 donors on the Third Floor Terrace of the 15 Legislative Office Building. Donors will be 16 registered with the National Marrow Donor 17 Program through a local donor center at the 18 American Red Cross in Albany; 19 Funds to test individuals as 20 potential donors during Bone Marrow Donor 21 Awareness Week are to be raised through a 22 Legislative Bowl-a-Thon on May 7th, 1996; 23 An individual tested and added to the 5329 1 registry as a result of funds raised through the 2 Legislative Bowl-a-Thon has actually been 3 matched with a patient in need and donated their 4 marrow to save a life; 5 Everyone has the ability to give the 6 gift of life by donating bone marrow to someone 7 who faces imminent death through a blood 8 related disease; 9 Through its commitment to the 10 preservation and enhancement of human life, Bone 11 Marrow Donor Awareness Week so clearly advances 12 that spirit of united purpose and shared concern 13 which is the unalterable manifestation of our 14 American experience; now, therefore, be it 15 RESOLVED, That this legislative body 16 pause in its deliberations to memorialize 17 Governor George E. Pataki to proclaim May 20th 18 through the 24th, 1996 as Bone Marrow Donor 19 Awareness Week in New York State; and be it 20 further 21 RESOLVED, That copies of this 22 resolution, suitably engrossed, be transmitted 23 to the Bone Marrow Resource Foundation, the 5330 1 National Marrow Donor Program and the New York 2 State American Red Cross of Albany in 3 recognition of their efforts in educating the 4 public and assisting those in need of a bone 5 marrow donation. 6 ACTING PRESIDENT KUHL: Senator 7 Bruno, on the resolution. 8 SENATOR BRUNO: Mr. President, I 9 would really like to just add a word that 10 relates to Senator Holland and the good work 11 that he has done. He makes us proud as a 12 colleague that he has spent so much time, so 13 much effort in such a worthwhile cause helping 14 so many people out there that so desperately 15 need help raising increasing amounts of money, 16 as we heard related, adding something like 1,100 17 new donors to the national registry; and his 18 work was recognized by the Congressional 19 delegation and that I believe that he received a 20 national award for the work that he has done in 21 this area. 22 So, Senator Holland, your colleagues 23 are proud and thank you for all the good things 5331 1 that you're doing for so many people out there. 2 ACTING PRESIDENT KUHL: The Chair 3 recognizes Senator Holland on the resolution. 4 SENATOR HOLLAND: Senator Bruno, 5 thank you very much, but it certainly wasn't me, 6 it was the people in this chamber, the 7 lobbyists, LeeAnn Sweet, Barbara Marsh, 8 upstairs, Kristen Sinclair, everybody else who 9 has done all the work. But, I would like to 10 thank all of you, I would like to thank all of 11 the people who donated money, all of the people 12 who bowled, and the Senators who bowled were 13 Senators DeFrancisco, Kuhl, Maltese, Maziarz, 14 Skelos, Spano, Abate and Santiago, and 15 particularly John DeFrancisco. Do you want to 16 stand up, John? John had the high game of 236; 17 it was way over his head. 18 This is the fifth year of the 19 bowl-a-thon. You people have raised over 20 $70,000, you have typed bone marrow typing over 21 1,400 individuals. We had the opportunity to 22 bowl with a gentleman, an African-American young 23 man who works for the Tax Department who only 5332 1 six or eight months ago was blood typed and they 2 called upon him and said, "We need you to save a 3 life," and he donated his bone marrow and saved 4 the life of a 14-year-old girl. 5 This is what you have done with your 6 money. This is what you can do in the next two 7 days by going downstairs, if you're under age 8 55, and on the third floor, from 11:30 to 5:30, 9 you can have your blood typed for bone marrow. 10 In a family situation, only 30 11 percent match, very difficult to find a match. 12 If you don't find it in that 30 percent in your 13 family, it's only one in 20,000, so we need more 14 people in the national registry. 15 Ninety-two percent of the volunteers 16 are Caucasian, so we need blacks, Asians, 17 everybody else in the registry, as well. But, 18 really, the message is, you have saved some 19 lives, you've raised a lot of money. I thank 20 you and congratulate all of you. Thank you. 21 ACTING PRESIDENT KUHL: Is there any 22 other Senator wishing to speak on the 23 resolution? 5333 1 Senator Stafford. 2 SENATOR STAFFORD: Mr. President, 3 very briefly. I can add nothing to what our 4 leader has said and what Senator Holland said, 5 but this is something I know a little something 6 about, and no one can really know how much 7 you're all doing unless you see the results of 8 what this treatment has provided so many people. 9 So I compliment Senator Holland; and 10 I believe Senator Levy was very involved in this 11 program, Senator Holland's predecessor; and in 12 this day and age when we're talking about adding 13 years onto life, you people are. 14 ACTING PRESIDENT KUHL: Any other 15 Senator wishing to speak on the resolution? 16 (There was no response.) 17 Hearing none, the question is on the 18 resolution. All those in favor, signify by 19 saying aye. 20 (Response of aye.) 21 Opposed, nay. 22 (There was no response.) 23 The resolution is adopted. 5334 1 SENATOR GOODMAN: Mr. President. 2 ACTING PRESIDENT KUHL: Senator 3 Goodman, why do you rise? 4 SENATOR GOODMAN: Mr. President, I 5 rise for a most auspicious comment on a matter 6 that has just been brought to the attention of 7 this house but not adequately covered, I 8 believe. It turns out that our very dear friend 9 and long-time colleague, Senator Marchi, is not 10 merely celebrating a birthday today, but he is 11 celebrating the diamond jubilee of his birth 75 12 years ago, and with that being the case, I feel 13 very much called upon to say what a special 14 privilege and pleasure it is to serve in this 15 body with one as learned, as warm in personality 16 and as dedicated to the common interests of the 17 people of the State of New York as is our dear 18 friend, John Marchi. 19 I've had the pleasure of working with 20 him in this chamber and of knowing him for 21 nearly a third of a century, and, Mr. President, 22 I can only say that he graces us every time he 23 takes to the floor with comments on matters of 5335 1 current concern. 2 But, even more important, John Marchi 3 represents the decency, the civility, and the 4 highest standards of ethical behavior which we 5 all aspire to in our daily public lives. 6 John, I would just like to say to you 7 that you're really an inspiration to many of us. 8 You've been a friend and mentor; and as you 9 celebrate this very big birthday, we wish you 10 the best of health for many more years to come, 11 and I hope that I'll be here to celebrate your 12 100th. A million congratulations to you and all 13 of the best on this very auspicious occasion. 14 SENATOR ONORATO: Mr. President. 15 ACTING SPEAKER KUHL: Senator 16 Onorato, why do you rise? 17 SENATOR ONORATO: Mr. President, I 18 would like to second the congratulatory messages 19 extended to Senator Marchi. 20 I would also like to amend the 21 congratulatory message to include Senator 22 Paterson who has been gracing our chambers for 23 the longest period of time doing a yeoman's job 5336 1 in that capacity. 2 ACTING PRESIDENT KUHL: Senator 3 Skelos, that brings us to the Calendar. 4 Excuse me, we have a couple 5 substitutions, first. 6 Senator DiCarlo, why do you rise? 7 SENATOR DiCARLO: Mr. President, on 8 that note of Senator Marchi's birthday, I would 9 be remiss if I didn't stand as the junior 10 Senator from Staten Island and just say 11 congratulations to the senior Senator from 12 Staten Island. 13 I have been very lucky to know 14 Senator Marchi for many, many years when my 15 father was his campaign manager when he ran for 16 mayor, and I've grown up knowing Senator Marchi, 17 and it's an honor and privilege to serve with 18 the Senator in the Senate of New York and 19 representing the great county of Richmond, and 20 it's an honor, again, to serve with you, Senator 21 Marchi, and happy birthday. 22 ACTING SPEAKER KUHL: Senator Marchi, 23 to respond. 5337 1 The last four speakers have been 2 totally out of order, but it was such a gracious 3 occasion, Senator Marchi, I'm overlooking all of 4 that. 5 SENATOR MARCHI: These events don't 6 take place but once every century. 7 ACTING PRESIDENT KUHL: That's one 8 of the reasons we're going through this. 9 SENATOR MARCHI: I just want to 10 profess the joy that I've experienced in all of 11 the 40 years that I've passed as a member of the 12 Senate, and before that, I spent some time as 13 counsel; and certainly it's been a good 14 experience altogether. I've never had a moment 15 where there was any disagreeable encounter with 16 any member. I mean, it's always been wonderful. 17 I'm very, very grateful and I'm very, 18 very pleased that Senator Paterson -- maybe I'll 19 go another 25 years, but beyond that, I'm 20 pleased that someone of his vigor and vitality 21 is right on there to carry on the spirit of May 22 20th, and I wish him all the best. Thank you. 23 ACTING PRESIDENT KUHL: Thank you, 5338 1 Senator Marchi, and let the Chair express its 2 wonderful wishes on behalf of your birthday and 3 Senator Paterson's; but also Senator Marchi, I 4 know that Senator Paterson has leftover cake 5 from his occasion and he would be happy to bring 6 it to your office, along with some punch to 7 celebrate your birthday at the conclusion of 8 session, if we ever get to the Calendar and get 9 that out of the way, but Senator Stafford, why 10 do you rise? 11 SENATOR STAFFORD: To be out of 12 order, Mr. President. 13 ACTING SPEAKER KUHL: You're in 14 order, then. 15 SENATOR STAFFORD: I just wanted to 16 point out that Senator Paterson's birthday, and 17 also Giovanni Marchi, and he often quotes here 18 when he talks about, "Omnia gallia est divisum 19 tres partem." All gall is divided into three 20 parts. I would say that it would be, "Giovanni 21 Marchi haec non gallium," he has no gall. 22 ACTING PRESIDENT KUHL: Senator 23 Skelos, that's brings us to the Calendar. 5339 1 Substitutions first. Secretary will read the 2 substitutions. 3 THE SECRETARY: Senator Cook moves 4 to discharge from the Committee on Rules 5 Assembly Bill Number 9815 and substitute it for 6 the identical Senate Bill 7202. 7 Senator Libous moves to discharge 8 from the Committee on Rules Assembly Bill 8454C 9 and substitute it for the identical Senate Bill 10 5724C. 11 ACTING PRESIDENT KUHL: 12 Substitutions are ordered. 13 Senator Skelos. 14 SENATOR STAFFORD: Mr. President, 15 may we please announce a Finance meeting in room 16 332. Thank you. 17 ACTING PRESIDENT KUHL: There will 18 be an immediate Senate Finance meeting in the 19 Majority Conference Room, Room 332. Immediate 20 Senate Finance Committee meeting, Majority 21 Conference Room, Room 332. 22 Senator Skelos. 23 SENATOR SKELOS: Mr. President, at 5340 1 this time, if we could take up the non 2 controversial calendar. 3 ACTING PRESIDENT KUHL: Secretary 4 will read the non-controversial calendar. 5 THE SECRETARY: On page 11, Calendar 6 Number 412, by Senator Cook, Senate Print 3159A, 7 an act to amend the General City Law, the Town 8 Law and the Village Law, in relation to the 9 enforcement of land use laws. 10 ACTING PRESIDENT KUHL: Secretary 11 will read the last section. 12 THE SECRETARY: Section 5. This act 13 shall take effect immediately. 14 ACTING SPEAKER KUHL: Call the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 46. 17 ACTING SPEAKER KUHL: The bill is 18 passed. 19 THE SECRETARY: Calendar Number 425, 20 by member of the Assembly Colman, Assembly Bill 21 1865C, an act to authorize and direct the 22 Commissioner of the Office of General Services 23 to study energy purchasing programs. 5341 1 ACTING PRESIDENT KUHL: Secretary 2 will read the last section. 3 THE SECRETARY: Section 2. This act 4 shall take effect immediately. 5 ACTING SPEAKER KUHL: Call the roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 46. 8 ACTING SPEAKER KUHL: The bill is 9 passed. 10 THE SECRETARY: Calendar Number 498, 11 by Member of the Assembly Tokasz, Assembly Print 12 4512A, an act to amend the Election Law, in 13 relation to processing applications. 14 ACTING PRESIDENT KUHL: Secretary 15 will read the last section. 16 THE SECRETARY: Section 2. This act 17 shall take effect immediately. 18 ACTING SPEAKER KUHL: Call the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 47. 21 ACTING SPEAKER KUHL: The bill is 22 passed. 23 THE SECRETARY: Calendar Number 516, 5342 1 by Senator Saland, Senate Print 3474A, an act to 2 amend the Social Services Law, the Domestic 3 Relations Law, in relation to venue and 4 termination of parental rights. 5 ACTING SPEAKER KUHL: Secretary will 6 read the last section. 7 THE SECRETARY: Section 3. This act 8 shall take effect immediately. 9 ACTING SPEAKER KUHL: Call the roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 47. 12 ACTING SPEAKER KUHL: The bill is 13 passed. 14 THE SECRETARY: Calendar Number 546, 15 by Senator Volker, Senate Print 6001, an act to 16 amend the Real Property Actions and Proceedings 17 Law, in relation to foreclosure of a mortgage. 18 ACTING PRESIDENT KUHL: There's a 19 home rule message at the desk. Secretary will 20 read the last section. 21 THE SECRETARY: Section 2. This act 22 shall take effect immediately. 23 ACTING SPEAKER KUHL: Call the roll. 5343 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes 48. 3 ACTING SPEAKER KUHL: The bill is 4 passed. 5 THE SECRETARY: Calendar Number 548, 6 by Senator Lack, Senate Print 6464, an act to 7 amend the Family Court Act, in relation to 8 filing objections to determinations of hearing 9 examiners. 10 ACTING SPEAKER KUHL: Secretary will 11 Read the last section. 12 THE SECRETARY: Section 2. This act 13 shall take effect immediately. 14 ACTING SPEAKER KUHL: Call the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 48. 17 ACTING SPEAKER KUHL: The bill is 18 passed. 19 THE SECRETARY: Calendar Number 560, 20 by Senator Oppenheimer, Senate Print 1338B, an 21 act to amend the Vehicle and Traffic Law, in 22 relation to issuance of distinctive plates for 23 occupational therapists. 5344 1 ACTING PRESIDENT KUHL: Secretary 2 will read the last section. 3 THE SECRETARY: Section 2. This act 4 shall take effect on the first day of July. 5 ACTING SPEAKER KUHL: Call the roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 48. 8 ACTING SPEAKER KUHL: The bill is 9 passed. 10 THE SECRETARY: Calendar Number 562, 11 by Senator Goodman, Senate Print 3466B, an act 12 to amend the Transportation Law, in relation to 13 disclosure by common carriers of liability. 14 ACTING PRESIDENT KUHL: Secretary 15 will read the last section. 16 THE SECRETARY: Section 2. This act 17 shall take effect on the 120th day. 18 ACTING SPEAKER KUHL: Call the roll. 19 (The Secretary called the roll.) 20 ACTING PRESIDENT KUHL: Announce the 21 results when tabulated. 22 THE SECRETARY: Ayes 47, nays 1, 23 Senator Kuhl recorded in the negative. 5345 1 ACTING SPEAKER KUHL: The bill is 2 passed. 3 THE SECRETARY: Calendar Number 691, 4 by Senator Padavan, Senate Print 4216A, an act 5 to amend the Penal Law, in relation to auto 6 stripping. 7 SENATOR SKELOS: Lay it aside for 8 the day. 9 ACTING PRESIDENT KUHL: Lay the bill 10 aside for the day. 11 THE SECRETARY: Calendar Number 761, 12 by Senator Seward, Senate Print 6143, an act to 13 amend the Public Service Law, in relation to 14 cellular telephone services. 15 SENATOR PATERSON: Lay it aside. 16 ACTING PRESIDENT KUHL: Lay the bill 17 aside. 18 THE SECRETARY: Calendar Number 783, 19 by Senator Goodman, Senate Print 6566, an act to 20 amend the Tax Law, the Administrative Code of 21 the City of New York, and Chapter 2 of the Laws 22 of 1995. 23 SENATOR PATERSON: Lay it aside. 5346 1 ACTING PRESIDENT KUHL: Lay the bill 2 aside. 3 THE SECRETARY: Calendar Number 797, 4 by Senator Alesi, Senate Print 7308, an act to 5 amend the Insurance Law, in relation to making 6 technical corrections in provisions relating to 7 risk-based capital. 8 ACTING PRESIDENT KUHL: Secretary 9 will read the last section. 10 THE SECRETARY: Section 16. This act 11 shall take effect immediately. 12 ACTING SPEAKER KUHL: Call the roll. 13 (The Secretary called the roll.) 14 The SECRETARY: Ayes 48. 15 ACTING SPEAKER KUHL: The bill is 16 passed. 17 THE SECRETARY: Calendar 800, by 18 Senator Velella, Senate Print 4451C, an act to 19 amend the Retirement and Social Security Law, in 20 relation to making certain technical 21 corrections. 22 ACTING PRESIDENT KUHL: Secretary 23 will read the last section. 5347 1 THE SECRETARY: Section 3. This act 2 shall take effect immediately. 3 ACTING SPEAKER KUHL: Call the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 48. 6 ACTING SPEAKER KUHL: The bill is 7 passed. 8 THE SECRETARY: Calendar Number 807, 9 by Member of the Assembly Vitaliano, Assembly 10 Bill 9403, an act to amend the Retirement and 11 Social Security Law, in relation to reporting of 12 public employment by retired members. 13 ACTING PRESIDENT KUHL: Secretary 14 will read the last section. 15 THE SECRETARY: Section 2. This act 16 shall take effect immediately. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 48. 21 ACTING PRESIDENT KUHL: The bill is 22 passed. 23 THE SECRETARY: Calendar Number 819, 5348 1 by Senator Levy, Senate Print 6493, an act to 2 amend the Vehicle and Traffic Law, in relation 3 to disposition of fine money imposed for certain 4 offenses. 5 ACTING PRESIDENT KUHL: There's a 6 local fiscal impact note at the desk. Secretary 7 will read the last section. 8 THE SECRETARY: Section 3. This act 9 shall take effect on the first day of November. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll.) 13 The SECRETARY: Ayes 48. 14 ACTING SPEAKER KUHL: The bill is 15 passed. 16 THE SECRETARY: Calendar Number 824, 17 by Senator DiCarlo, Senate Print 7362, an act to 18 amend the Executive Law, in relation to 19 performing the long-term care ombudsman program. 20 ACTING PRESIDENT KUHL: Secretary 21 will read the last section. 22 THE SECRETARY: Section 7. This act 23 shall take effect on the 30th day. 5349 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 48. 5 ACTING PRESIDENT KUHL: The bill is 6 passed. 7 THE SECRETARY: Calendar Number 826, 8 by Senator Maltese, Senate Print 5274, an act to 9 amend the Vehicle and Traffic Law, in relation 10 to providing the owner of a vehicle with a 11 second notice of parking violation. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 3. This act 15 shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 48. 20 ACTING PRESIDENT KUHL: The bill is 21 passed. 22 THE SECRETARY: Calendar Number 897, 23 by Senator Hoblock, Senate Print 6255A, an act 5350 1 to amend the Environmental Conservation Law, in 2 relation to the membership of the Albany Pine 3 Bush Preserve Commission. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the last section. 6 THE SECRETARY: Section 4. This act 7 shall take effect in 90 days. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 The SECRETARY: Ayes 48. 12 ACTING PRESIDENT KUHL: The bill is 13 passed. 14 THE SECRETARY: Calendar Number 15 1001, by Senator Saland, Senate Print 2039A, an 16 act to amend the Criminal Procedure Law, the 17 Family Court Act and the Penal Law. 18 SENATOR PATERSON: Lay it aside. 19 ACTING PRESIDENT KUHL: Lay the bill 20 aside. 21 THE SECRETARY: Calendar Number 22 1029, by Senator Spano, Senate Print 4287, an 23 act to amend the Local Finance Law, in relation 5351 1 to bonds issued by an act of the Westchester 2 County Board of Legislators. 3 ACTING SPEAKER KUHL: There's a home 4 rule message at the desk. Secretary will read 5 the last section. 6 THE SECRETARY: Section 2. This act 7 shall take effect immediately. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 48. 12 ACTING PRESIDENT KUHL: The bill is 13 passed. 14 THE SECRETARY: Calendar Number 15 1038, by Member of the Assembly Eve, Assembly 16 Print 9627, an act to amend the Local Finance 17 Law, in relation to the sale of municipal 18 obligations by the county of Erie. 19 ACTING PRESIDENT KUHL: There's a 20 home rule message at the desk. Secretary will 21 read the last section. 22 THE SECRETARY: Section 2. This act 23 shall take effect immediately. 5352 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 The SECRETARY: Ayes 48. 5 ACTING PRESIDENT KUHL: That bill is 6 passed. 7 THE SECRETARY: Calendar 1045, by 8 Senator Hannon, Senate Print 7359, an act in 9 relation to the number of village justices and 10 acting village justices in the incorporated 11 village of Hempstead. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 2. This act 15 shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 48. 20 ACTING PRESIDENT KUHL: The bill is 21 passed. 22 THE SECRETARY: Calendar Number 23 1050, by Senator Hannon, Senate Print 7416A, an 5353 1 act in relation to permitting the Judea United 2 Baptist Church, Inc. to file an application for 3 real property tax exemption. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the last section. 6 THE SECRETARY: Section 2. This act 7 shall take effect immediately. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 48. 12 ACTING PRESIDENT KUHL: The bill is 13 passed. 14 THE SECRETARY: Calendar Number 15 1054, by Senator DiCarlo, Senate Print 3962, an 16 act to amend the Real Property Law, in relation 17 to occupation of premises for unlawful purposes. 18 ACTING PRESIDENT KUHL: Secretary 19 will read the last section. 20 THE SECRETARY: Section 2. This act 21 shall take effect immediately. 22 ACTING PRESIDENT KUHL: Call the 23 roll. 5354 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes 48. 3 ACTING PRESIDENT KUHL: The bill is 4 passed. 5 THE SECRETARY: Calendar Number 6 1085, by Senator Volker, Senate Print 7452, an 7 act to amend the Tax Law and the State Finance 8 Law, in relation to permitting revenue funds 9 raised by the imposition of a special mortgage 10 recording tax in Erie County. 11 ACTING PRESIDENT KUHL: Secretary 12 will read the last section. 13 THE SECRETARY: Section 3. This act 14 shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 48. 19 ACTING PRESIDENT KUHL: The bill is 20 passed. 21 THE SECRETARY: Calendar Number 1099, 22 by Senator Maltese, Senate Print 5302, an act to 23 amend the Criminal Procedure Law, in relation to 5355 1 jury consideration of lesser included offenses. 2 ACTING PRESIDENT KUHL: Secretary 3 will read the last section. 4 THE SECRETARY: Section 2. This act 5 shall take effect on the 90th day. 6 ACTING PRESIDENT KUHL: Call the 7 roll. 8 (The Secretary called the roll.) 9 THE SECRETARY: Ayes 48. 10 ACTING PRESIDENT KUHL: The bill is 11 passed. 12 Senator Nozzolio. 13 SENATOR NOZZOLIO: Yes, Mr. 14 President. I ask permission to place a star on 15 Calendar Number 1176, Bill S. 7482A 16 ACTING PRESIDENT KUHL: Calendar 17 Number 1176 will be starred at the request of 18 the sponsor. 19 Senator Larkin, why do you rise? 20 SENATOR LARKIN: Mr. Speaker, I 21 would like to be recorded no on Calendar Number 22 562, Senate Bill 3466B. 23 ACTING SPEAKER KUHL: Without 5356 1 objection, Hearing no objection, Senator Larkin 2 will be recorded in the negative on Calendar 3 Number 562. 4 Senator Skelos, that completes the 5 non-controversial calendar. 6 SENATOR SKELOS: Mr. President, if we 7 could take up the controversial calendar. 8 ACTING PRESIDENT KUHL: Yes. 9 Secretary will read the controversial calendar. 10 THE SECRETARY: Calendar Number 761, 11 by Senator Seward, Senate Print 6143, an act to 12 amend the Public Service Law, in relation to 13 cellular telephone services. 14 SENATOR PATERSON: Explanation, 15 please. 16 ACTING PRESIDENT KUHL: Senator 17 Seward, an explanation of Calendar Number 761 18 has been asked for by the Acting Minority 19 Leader, Senator Paterson, our birthday boy. 20 SENATOR SEWARD: Yes, Mr. President. 21 This bill suspends the application of 22 the Public Service Law to cellular telephone 23 operations but it provides very clearly that the 5357 1 tax status of these corporations shall remain 2 the same as they have existed on the day prior 3 to the suspension of the provisions of law. 4 The Public Service Commission, under 5 the bill, is authorized to reassert its 6 authority over these operations after a one 7 year period -- at any time after a one-year 8 period, upon the normal hearing and notice 9 provisions, if the PSC determines that such 10 action is necessary to protect the interests of 11 the public. 12 The 1993 federal amendments provided 13 that the PSC no longer exercises the entry and 14 rate jurisdiction over cellular telephone 15 corporations; so, since that time, they've 16 simply been dealing with having authority over 17 the terms and conditions of service, and because 18 of the very minuscule number of complaints that 19 come in to the PSC and the fact that a great 20 deal of competition exists in this area that 21 seems to be dealing very adequately with 22 servicing the public in a very good way, it 23 seems to make sense that we totally suspend 5358 1 regulation in this area leaving, however, the 2 option open to coming back in if conditions 3 warrant. 4 ACTING PRESIDENT KUHL: Senator 5 Paterson. 6 SENATOR PATERSON: Thank you, Mr. 7 President. If Senator Seward would yield for a 8 question. 9 ACTING SPEAKER KUHL: Senator Seward, 10 do you yield? 11 SENATOR SEWARD: Certainly. 12 ACTING SPEAKER KUHL: The Senator 13 yields. 14 SENATOR PATERSON: Thank you, Mr. 15 President. 16 My question is, I can understand a 17 feeling that there is not a need to regulate 18 necessarily, in this particular area, but I 19 guess my question is, what is the advantage of 20 deregulating? Deregulation has not always 21 worked in the past; and although I understand 22 basically the scope of where the bill is going, 23 what I'd like to hear, what would make me more 5359 1 comfortable would be to hear a reason why this 2 would be in the public interest to deregulate at 3 this particular time, especially in light of the 4 fact that previous efforts in this direction did 5 not prove fruitful. 6 SENATOR SEWARD: Well, Mr. 7 President, I'm not sure what previous efforts 8 you're referring to. This bill, of course, is 9 limited only, of course, to cellular telephone 10 service, but the advantage of removing the 11 regulation that currently exists in terms of the 12 cellular telephone operations, the advantage to 13 the telephone customer in this case is simply 14 through a streamlined operation of the cellular 15 telephone operations, that the customer 16 ultimately will derive some small savings from 17 that because of the fact that it's simply 18 cutting down on red tape, which can be costly to 19 the operation, passed on to the customer. 20 That's where the advantage comes in, fully 21 recognizing as we do under this bill that if the 22 PSC gets a number of complaints, for example, 23 then they can move into a situation where they 5360 1 are providing much more oversight. 2 ACTING PRESIDENT KUHL: Senator 3 Paterson. 4 SENATOR PATERSON: Thank you, Mr. 5 President, and thank Senator Seward for his 6 answers, and I think that they are really 7 satisfactory. I don't see any need to oppose 8 the bill, but I just would like to assert that 9 we have had problems with airplane safety after 10 deregulation, cable rates have gone up, other 11 telephone services, deregulation has caused a 12 problem. We have had problems with deregulation 13 in the area of banks, but I can't demonstrate 14 any definite reason why this would necessarily 15 be a problem. I just didn't understand the 16 necessity for it, but the explanation is 17 satisfactory. 18 ACTING PRESIDENT KUHL: Any other 19 Senator wishing to speak on the bill? 20 (There was no response.) 21 Hearing none, Secretary will read the 22 last section. 23 THE SECRETARY: Section 2. This act 5361 1 shall take effect immediately. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll.) 5 The SECRETARY: Ayes 49. 6 ACTING PRESIDENT KUHL: The bill is 7 passed. 8 THE SECRETARY: Calendar Number 783, 9 by Senator Goodman, Senate Print 6566, an act to 10 amend the Tax Law, the Administrative Code of 11 the City of New York and Chapter 2 of the Laws 12 of 1995, amending the Tax Law. 13 SENATOR PATERSON: Explanation. 14 ACTING PRESIDENT KUHL: Senator 15 Goodman, an explanation of Calendar Number 783 16 has been asked for by the Acting Minority 17 Leader, Senator Paterson. 18 SENATOR GOODMAN: Yes. Senator 19 Paterson, as a birthday gift to you, I'll keep 20 this brief. 21 Mr. President, this bill would allow 22 the Tax Department to eliminate a great deal of 23 needless paperwork and it follows the existing 5362 1 federal model. 2 Currently the Tax Department must go 3 through the extensive regulation process every 4 time a tax withholding table is changed or 5 promulgated. There has been no substantive 6 comment on any change that has been made of this 7 type in the last 20 years. 8 The legislation would allow the Tax 9 Department to adopt withholding tables without 10 going through the cumbersome and costly 11 regulation promulgation process. 12 My legislation would eliminate over 13 70 pages in a rules and regulation manual and 14 save a great deal of time and expense for the 15 Tax Department, the Secretary of State's office 16 and the Governor's Office of Regulatory Reform. 17 This is just one way that the government can be 18 made more efficient without jeopardizing 19 service. 20 In response to a query which I think 21 may be of general interest, the question arises 22 with respect to whether the public would be shut 23 out of the opportunity to comment. The fact is 5363 1 that the public has sought no such opportunity 2 in 20 years and, therefore, we are not at all 3 concerned that this will create a problem. 4 I trust that responds to your 5 concerns. 6 ACTING PRESIDENT KUHL: Senator 7 Paterson. 8 SENATOR PATERSON: Thank you, Mr. 9 President. If Senator Goodman would yield. 10 ACTING SPEAKER KUHL: Senator 11 Goodman, do you yield? 12 SENATOR GOODMAN: Yes. 13 ACTING PRESIDENT KUHL: The Senator 14 yields. 15 SENATOR PATERSON: Senator Goodman, 16 ironically, uniquely, profoundly and 17 coincidentally, I would want to ask you the same 18 question that I asked Senator Seward which is 19 just basically can you illustrate any savings 20 that would be derived from this source or any 21 budgetary impact that would enure to our benefit 22 through the opening of standards in this area? 23 SENATOR GOODMAN: Knowing of the 5364 1 thoroughness with which you protect the public, 2 Senator, I've tried to obtain information to 3 respond to that question, and the answer is 4 this: According to Deputy Commissioner 5 Tittlebaum, several thousands of dollars would 6 be saved, but it is not possible for them to 7 quantify this precisely. 8 When issued in the regulation, the 9 tables would have to be drafted in proper form, 10 the Commissioner would have to publish a 11 schedule, the proposed regulation would have to 12 be published in the register first as a proposal 13 and then again when adopted and they must then 14 be reviewed by the Governor's Office of 15 Regulatory Reform and finally, must be published 16 in the New York Code Rules and Regulations and 17 all of this must be done each and every year, as 18 the tables change annually. So, as you can see, 19 we'll be saving printing costs, handling costs 20 and bureaucratic costs, and I think an estimate 21 of several thousand dollars sounds quite 22 reasonable. 23 ACTING PRESIDENT KUHL: Senator 5365 1 Paterson. 2 SENATOR PATERSON: Thank you, 3 Senator, and if you would be kind enough to 4 yield for one more question? 5 SENATOR GOODMAN: Yes, I will. 6 ACTING PRESIDENT KUHL: Senator 7 continues to yield. 8 SENATOR PATERSON: Senator, would it 9 be possible under the relaxed standards for, 10 let's say, an executive of any party -- this 11 isn't a criticism of anyone in particular -- in 12 a difficult budget year to perhaps backload 13 revenues into the budget process to provide for 14 more money in the beginning of the year than may 15 be possible at the end of the year by 16 rearranging the tables such that under the 17 procedure we have now, there would be a 30-day 18 review process, public hearings, public comment? 19 In other words, would this open the door to 20 perhaps executives and those who have the 21 decision-making capacity to, in a sense, take 22 advantage of the standards? 23 SENATOR GOODMAN: Senator, your 5366 1 ingenuity in asking the question is profound and 2 the answer is that, in my opinion, this is not a 3 tool that could be used. We have many tools at 4 our disposal which the Legislature has 5 unfortunately resorted to over many years. As 6 you know, smoke and mirrors are not uncommon in 7 the budget process, but it's my opinion, for 8 what it's worth, that this more streamlined 9 approach to the promulgation of tax withholding 10 tables would not be so manipulatable as to be a 11 threat under the scope of your question. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: Mr. President, I 15 feel properly enlightened, absorbed, just 16 satisfied. 17 ACTING PRESIDENT KUHL: Is there any 18 other Senator wishing to speak on the bill? 19 (There was no response.) 20 Hearing none, the Secretary will read 21 the last section. 22 THE SECRETARY: Section 4. This act 23 shall take effect immediately. 5367 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 49. 5 ACTING PRESIDENT KUHL: The bill is 6 passed. 7 SENATOR SKELOS: Mr. President. 8 ACTING PRESIDENT KUHL: Senator 9 Skelos. 10 SENATOR SKELOS: Prior to taking up 11 Senator Saland's bill, I believe if we could 12 return to reports of standing committees, I 13 believe there is a report of the Finance 14 Committee at the desk, I ask that it be read. 15 ACTING PRESIDENT KUHL: You're 16 correct, Senator Skelos. I'll ask the 17 Secretary to read to report. 18 THE SECRETARY: Senator Stafford, 19 from the Committee on Finance, offers up the 20 following bills directly for third reading: 21 Senate 7566, by the Committee on 22 Rules, an act making appropriations for the 23 support of government; 5368 1 7554, by the Committee on Rules, an 2 act to amend the Tax Law and the Administrative 3 Code of the City of New York, in relation to 4 extending the sunset provisions relating to real 5 estate investment trusts; 6 7569, by Senator Levy, an act 7 authorizing the union free school district to 8 finance deficits by issuance of serial bonds. 9 All bills ordered directly for third 10 reading. 11 ACTING PRESIDENT KUHL: Without 12 objection, all bills are reported directly to 13 third reading. 14 Secretary will continue to call the 15 controversial calendar. 16 THE SECRETARY: Calendar 1001, by 17 Senator Saland, Senate Print 2039A, an act to 18 amend the Criminal Procedure Law, the Family 19 Court Act, the Penal Law and the Public Health 20 Law, in relation to the testing of certain 21 criminal defendants. 22 SENATOR PATERSON: Explanation. 23 ACTING PRESIDENT KUHL: Senator 5369 1 Saland, an explanation of Calendar Number 1001 2 has been asked for by the Acting Minority 3 Leader, Senator Paterson. 4 SENATOR SALAND: Thank you, Mr. 5 President. 6 Mr. President, this bill is a bill 7 which builds upon our previously enacted 8 legislation in 1995. That bill created a 9 mechanism whereby a court, by way of order, 10 could direct testing upon conviction, on the 11 application of a victim where there was 12 reasonable cause to believe that there was the 13 presence of HIV or that the victim may have, by 14 reason of a sex offense that was committed by 15 the perpetrator, might have contracted HIV. 16 What this bill does, in effect, is 17 to expand in differing ways that concept. On 18 the one hand, what it does is, it says that this 19 will now apply to any number of transmittable 20 diseases, not limiting its scope to HIV. 21 Secondly, it says that where there is reasonable 22 or probable cause, a court may direct that such 23 testing be performed prior to conviction, unlike 5370 1 the 1995 bill. 2 The standards which are used are 3 contained in the bill, either upon a conviction 4 of a qualifying offense or where a defendant 5 stands charged by information or indictment of 6 such qualifying offenses. Thirdly, it provides 7 the ability for a victim, through a separate 8 procedure, to be voluntarily tested at state 9 expense. 10 This bill is a bill which certainly I 11 believe is consistent with the efforts that we 12 in this chamber have been endeavoring to 13 accomplish over the course of the past four or 14 five years. Last year I believe was certainly a 15 step in the right direction. Thankfully, 16 Governor Pataki, unlike his predecessor, saw fit 17 to make this part of his budget presentation, or 18 submission. 19 I believe we can do better. I 20 believe we must go further; and I would also 21 submit that this is consistent with what had 22 been submitted by way of the task force created 23 by former Governor Cuomo in 1990 which task 5371 1 force also came out in support of preconviction 2 testing. Thank you, Mr. President. 3 ACTING SPEAKER KUHL: Senator 4 Paterson. 5 SENATOR PATERSON: Thank you, Mr. 6 President. If Senator Saland would be so kind 7 as to yield for a few questions. 8 ACTING PRESIDENT KUHL: Senator 9 Saland, do you yield to Senator Paterson? 10 SENATOR SALAND: Yes, Mr. President. 11 ACTING PRESIDENT KUHL: Senator 12 yields. 13 SENATOR PATERSON: Senator, you just 14 said that the task force in 1990 came out with 15 preconviction testing, and I appreciate that, 16 but you would concede that in 1990, the 17 effectiveness of the test, particularly in terms 18 of the time in which the test could trace the 19 virus, was different than it is now, is that not 20 correct? 21 SENATOR SALAND: I would not profess 22 to perhaps have the degree of knowledge that you 23 have with regard to testing. I think this is 5372 1 sort of deja vu. I think we went through a 2 very similar debate in 1995 regarding the 3 testing, and perhaps we are just coming at this 4 from different perspectives. I see this as a 5 victims' rights bill, pure and simple. I 6 believe the fact that it's been expanded to 7 include testing for more than the presence of 8 HIV certainly reaffirms that. 9 I believe that what we have 10 endeavored to do here is to craft something that 11 certainly meets any constitutional test and 12 something which I firmly believe for a victim at 13 the time of his or her great emotional anguish, 14 travails, turmoil, however you would like to put 15 it, someone who has been, in all likelihood, 16 violated, there's been an exchange of body 17 fluids, I believe that person should be entitled 18 to the ability to access as quickly as possible, 19 and this bill provides for that testing 20 mechanism. 21 And again, I would add, and I believe 22 we probably went through something similar to 23 this when we debated this bill last year, 5373 1 certainly this bill indicates that there are 2 limitations to what information shall be 3 available by way of testing, that is in the 4 existing law as we enacted it in 1995, and this 5 bill, in some respects, merely amplifies the 6 provisions of that law, emphasizing the 7 importance of counseling, emphasizing that 8 there be the ability to determine the 9 reliability of testing. There's a host of 10 things. 11 The section escapes me right now, but 12 I'll be very happy to provide it to you. 13 ACTING PRESIDENT KUHL: Senator 14 Paterson. 15 SENATOR PATERSON: Thank you, 16 Senator, and if you would to continue to yield. 17 ACTING PRESIDENT KUHL: Senator 18 Saland, do you continue to yield? 19 SENATOR SALAND: Yes, Mr. President. 20 ACTING PRESIDENT KUHL: Senator 21 continues to yield. 22 SENATOR PATERSON: Maybe what would 23 enable me to consider voting for the bill this 5374 1 year, Senator, because, as you know, I voted 2 against it last year, is perhaps I had a better 3 understanding of what type of test would we be 4 using. Would we be using a PCR test or would we 5 be using a test that traces the virus within a 6 couple of weeks? In other words, I'm just 7 trying to get an idea of what the scope of the 8 test actually is because all I was suggesting in 9 my previous question was that perhaps the bill 10 itself would have served us and would have 11 served victims very well in 1990 but that it 12 might not now because of the modern technology 13 that has enabled us to test more quickly. 14 So, in other words, to explain it 15 further, if the alleged perpetrator was to be 16 tested, we might be able to determine something 17 that exists in the alleged perpetrator that does 18 not show up in a test of the victim, that's how 19 I could distinguish that this would be a very 20 effective tool for the victim, that the victim 21 would now know if the alleged perpetrator was 22 testing positive for the HIV virus. 23 But, if the time between the test has 5375 1 been narrowed to the degree of many tests that 2 we're using now, you wouldn't need to test the 3 perpetrator, all you would need to do is to test 4 the victim. 5 And so, going back to what you were 6 just saying in your answer to my first question, 7 and I think it's a very good point, that we want 8 to try to provide what would be the safest 9 environment and also an environment that is most 10 comfortable to an individual who has already 11 been the victim of a very serious crime. 12 I appreciate that and I appreciate 13 the sentiment which was the catalyst for you 14 writing the bill, but what I'm saying is, do we 15 actually have something that is serving the 16 victim well, or are we engaging in a procedure 17 for which testing the victim will provide us 18 with the same result, and the way -- and my 19 question is, if you could give me an idea of 20 what type of test we're using, then we could 21 make that determination. 22 SENATOR SALAND: Let me suggest to 23 you, Senator Paterson, number one, there is no 5376 1 limitation on the type of testing, and I refer 2 to you section 1 (a) of the bill which states 3 that, "Upon request, the official shall 4 authorize the victim or petitioner to undergo 5 prompt, readily accessible and scientifically 6 recognized laboratory testing, including, where 7 appropriate, the PCR or other advanced testing 8 technologies for the diagnosis of transmissible 9 diseases, at state expense." 10 What we're doing here is providing 11 the ability to a victim, someone who has already 12 been victimized, someone whose assailant has 13 either been convicted or with respect to whom 14 probable cause has been established because they 15 have been either indicted or an information has 16 been brought forward in the superior court. 17 Now, what we're saying to that 18 victim, that man or woman, "These are your 19 options. You have the ability to make 20 application for these tests. If you want to 21 self-test, you can self-test," that's here. 22 I don't think we should be imposing 23 on the victim yet an additional mandate that 5377 1 requires him or her to be subjected to just one 2 course of action. I think this bill is broad 3 enough to enable that victim to do whatever she 4 or he thinks is appropriate when they've been 5 counselled, when they're aware of the nature of 6 the technology, when they're aware of what it is 7 that the test can prove or will not prove, and 8 that is a determination that that victim should 9 have the right to make, instead of stripping her 10 or him of that right. 11 ACTING PRESIDENT KUHL: Senator 12 Paterson. 13 SENATOR PATERSON: Thank you, Mr. 14 President. If the Senator would continue to 15 yield. 16 SENATOR SALAND: Yes, Senator 17 Paterson; yes, Mr. President. 18 ACTING PRESIDENT KUHL: Senator 19 yields. 20 SENATOR PATERSON: So, Senator, what 21 you're saying, and for purposes of understanding 22 this is, you don't think that the victim should 23 be forced to be tested herself or himself if the 5378 1 victim desires the option of having the alleged 2 perpetrator tested? 3 SENATOR SALAND: I think it's 4 probably highly unlikely that a victim would not 5 want to be tested. Whether that victim would 6 want his or her assailant to be tested, that is 7 something that the victim should have the option 8 to do. Certainly wisdom, current state of the 9 art medical counseling would strongly recommend 10 that that victim be tested. 11 But, I can fathom no reason 12 whatsoever why that victim should not have the 13 ability to make application for her or his 14 assailant to be tested and if a court finds that 15 there is reasonable or probable cause that that 16 person be tested, given the confidentiality that 17 surrounds the provisions of this proposal. 18 ACTING PRESIDENT KUHL: Senator 19 Paterson. 20 SENATOR PATERSON: Thank you, 21 Senator. We're actually getting somewhere and 22 if you would continue to yield? 23 ACTING PRESIDENT KUHL: Senator 5379 1 Saland, do you continue to yield? 2 SENATOR SALAND: Mr. President, yes, 3 sir. 4 ACTING PRESIDENT KUHL: Senator 5 continues to yield. 6 SENATOR PATERSON: Senator Saland, 7 the fact that probable cause has been 8 established and, in a sense, what your bill says 9 to me is that we want to err on the side of 10 caution and we want to give an individual who is 11 only drawn into this proceeding by their 12 victimization, they didn't do anything to bring 13 them to this situation other than be 14 unfortunate, I understand the legislation up to 15 that point. 16 What you have to persuade me now 17 is that the results of this test would be 18 helpful to the victim. In other words, there 19 are a lot of options I think we should give 20 victims, but I would not want to in any way 21 suggest through legislation that this is as 22 valid an option or that this is something that 23 could be relied upon. 5380 1 And, what I don't understand is how 2 the nature of the test to an alleged perpetrator 3 is going to provide the victim with some 4 information. That's why I started the 5 questioning by telling you that five or six 6 years ago, when the only tests that were 7 available were accurate only within six months, 8 it would have been very valid, but right now, 9 because of the types of tests that we're using 10 now -- and you went on to elaborate on the point 11 and said that we want to be offering the best 12 possible test to victims, since we've arrived at 13 that point, it would seem to me that it would be 14 almost misleading to grant the victim that 15 option when the information is not going to be 16 helpful. 17 SENATOR SALAND: I'm assuming that's 18 a question that requires a response and let me 19 see if I can give it to you. 20 I would call your attention to the 21 section in the bill, which unfortunately I'm 22 working off a computer print-out and not the 23 bill print. I have it as -- I believe it's 5381 1 section 4 (d), which, again, takes us through 2 the process which I've tried to describe before 3 which -- in which -- "In all such applications 4 for testing filed pursuant to this section, the 5 applicant must also state that the applicant was 6 offered counseling by a public health officer, 7 been advised of, one, the limitation of the 8 information to be obtained through a blood test 9 on the proposed subject; two, current 10 scientific assessments of the risk of 11 transmission of a disease from the exposure he 12 or she may have experienced; and three, the need 13 for the applicant to undergo testing to 14 definitively determine his or her status with 15 regard to any disease; and four, where the 16 request is for a transmissible disease test of 17 the defendant, the availability of prompt, 18 readily accessible and scientifically recognized 19 laboratory testing of the applicant, including, 20 where appropriate, polymerase --" if I'm 21 pronouncing it correctly, "chain reaction, PCR, 22 or other advanced testing technologies for the 23 diagnosis of transmissible diseases at state 5382 1 expense pursuant to subdivision 1 (a) of this 2 section." 3 And if I might, let me just read to 4 you from a release put out by the Federation of 5 New York State Judges, and I'm quoting here, 6 Francis T. Murphy, Presiding Justice of the 7 Appellate Division, First Department, and 8 President of the Federation of State of New York 9 Judges, and he says as follows: "It is 10 scandalous that rape victims and others must 11 often remain in complete ignorance about the 12 health status of accused assailants. The fear 13 of disease constitutes a repeated assault upon 14 these victims, which often rivals and exceeds 15 the first aggressive act. Immediate testing 16 cannot, of course, firmly establish the HIV 17 status of the accused assailant, nor can it 18 substitute for repeated testing of the crime 19 victim where the agony of months of waiting for 20 the victim's blood test results can be 21 substantially mitigated in many cases by an 22 early report of a blood test upon the alleged 23 assailant." 5383 1 He goes on to say, "The victim has a 2 right to that information and to the peace of 3 mind which it might bring, provided that a bill 4 can be devised which assures sufficient 5 constitutional protections for the accused. We 6 strongly endorse the concept." 7 Again, Senator Paterson, we're 8 talking victims' rights. I think this house 9 has endeavored to distinguish itself dealing 10 with the rights of crime victims and domestic 11 violence victims over the course of the past 12 several years, and I certainly think that this 13 piece would be one more that would permit us to 14 not only appear responsive but, in this 15 particular case, to adopt a leadership position. 16 SENATOR PATERSON: Thank you, 17 Senator Saland. 18 Mr. President, on the bill. 19 ACTING PRESIDENT KUHL: Senator 20 Paterson, on the bill. 21 SENATOR PATERSON: I think that 22 there were a lot of provisos that were offered 23 and a lot of advice that's offered in that 5384 1 document that you just previously referred to, 2 Senator Saland, that were not included in the 3 actual bill, but what I think I would do just to 4 summarize is to tell you that I understand what 5 you're saying about the almost repeated assault 6 on a victim by the fear that they might acquire 7 a virus, but I'm just telling you that if a 8 victim opted not to take the test, which I think 9 is something that would, in spite of what might 10 be -- what would be a more advised decision, 11 it's a human fear that an individual that's 12 already been victimized is now being counseled 13 and maybe feeling pressured to take a test. And 14 so we tell the victim, "You don't have to take 15 the test, you have the option of having the 16 alleged perpetrator take the test." 17 So, the alleged perpetrator takes the 18 test and the alleged perpetrator tests positive 19 for the HIV virus. Now, they engage in a 20 violent crime against the victim of the sort 21 that is described in your bill where the 22 likelihood of transmission of the virus is so 23 nil that it's almost impossible, and what 5385 1 happens is that this victim is now tormented by 2 the fact that they now know that the alleged 3 perpetrator tested positive for the HIV virus, 4 they never get the virus, but they are provoked 5 over a long period of time unnecessarily because 6 of a standard that we have set up in this 7 legislation. 8 So, I applaud the effort for victims' 9 rights, but all I'm saying is that I think we 10 have to make a determination of who is providing 11 for the climate in which the test should 12 actually be conducted, and where we say there's 13 a chance, the chance may be so speculative and 14 so remote to the proceedings that we're actually 15 creating a furor in a particular situation where 16 the actual intent is to help the victim but 17 there is such a stigma about the possibility of 18 transmission that we have a situation where a 19 poor individual who has already been harmed by a 20 violent crime is now antagonized by a procedure 21 that we've set up that was supposed to protect 22 them. 23 And, I would recommend that we look 5386 1 at this legislation and look at what others have 2 offered and perhaps pass something that would be 3 a little more responsive to the problems that 4 victims really are having. 5 ACTING PRESIDENT KUHL: Senator 6 Leichter. 7 SENATOR LEICHTER: Mr. President, if 8 Senator Saland would be so good to yield. 9 ACTING PRESIDENT KUHL: Senator 10 Saland, do you yield to Senator Leichter? 11 SENATOR SALAND: Yes, Mr. President. 12 ACTING PRESIDENT KUHL: Senator 13 yields. 14 SENATOR LEICHTER: Mr. President, I 15 just wanted to continue along the line that 16 Senator Paterson did. I have no question of 17 your commitment to victim rights, which is no 18 greater, no less than anybody else in this 19 chamber. I think we all share our concerns for 20 victims and wanting to help victims. 21 What I'm trying to understand in 22 listening to the debate between you and Senator 23 Paterson, I thought I heard you say something 5387 1 which made it difficult for me to comprehend the 2 rationale for this bill. Did I hear you say 3 that in all instances covered in your bill, that 4 you would recommend to the victim and that it is 5 certainly proper public health policy that the 6 victim be tested himself or herself? 7 SENATOR SALAND: I would certainly 8 identify with that as being wise health policy. 9 SENATOR LEICHTER: Right. And I 10 think that considering the AIDS disease and what 11 we know about it, which unfortunately isn't as 12 much as all of us wish we did as a society, it's 13 particularly true, because of the incubation 14 period, the nature of the test, the trans 15 mission, and so on, that it would almost -- it 16 would be almost malpractice if a doctor under 17 these circumstances, based solely on the test of 18 the perpetrator, the alleged criminal, failed to 19 recommend to the victim that he or she be 20 tested, isn't that right? 21 SENATOR SALAND: I'm sorry, 22 Senator. I was reading my bill as you were 23 speaking, so I - 5388 1 SENATOR LEICHTER: Well, it's -- I 2 would recommend it. I would be happy to wait 3 until you finish reading your bill. 4 Senator, my question was that 5 particularly considering AIDS and all the 6 uncertainty around AIDS and the transmission, 7 incubation, the period of testing, whether 8 you're testing for the antibodies, whether 9 you're testing for the actual virus, it would, I 10 would say, amount to medical malpractice if a 11 doctor failed to recommend to a victim that he 12 or she be tested in circumstances where there 13 was transmission of those bodily fluids, semen 14 or blood, that are known to transmit AIDS and 15 that there had been a test of the defendant and 16 the defendant's test was negative, but still, 17 would it not be, under those instances, wrong 18 and even amount to medical malpractice for the 19 doctor to say, "Oh, you can rely on that test, 20 you don't need to be -- you, the victim, do not 21 need to be tested?" 22 SENATOR SALAND: Let me suggest to 23 you, Senator Leichter, that I believe you're 5389 1 narrowing the focus of this bill far too much. 2 This bill does not deal merely with AIDS testing 3 -- or HIV testing, excuse me. I don't profess 4 to be a medical malpractice attorney, I have 5 absolutely no idea whether this would be 6 tantamount to malpractice, I'm not a judge; 7 while I have practiced, I certainly couldn't 8 even hazard a guess as to whether it would be 9 malpractice, I'll leave that to you. 10 SENATOR LEICHTER: Okay. 11 SENATOR SALAND: What I do know is 12 that what we have done in this bill is basically 13 worked within the existing law, basically worked 14 within the provisos that are contained in the 15 bill that basically enumerate what is almost 16 tantamount, I would guess, and this is speaking 17 as a layman, not an expert, to something in the 18 nature of a protocol. You should be tested. 19 You should have a risk assessment, that's in the 20 existing law, and we're merely expanding it 21 somewhat by reason of the change in the language 22 to include all transmissible diseases and 23 specifying that the test should be made 5390 1 available much more quickly and should be by a 2 scientific, in effect, state of the art type 3 test and making specific referral, although not 4 necessarily limiting it to this so-called PCR 5 test. 6 SENATOR LEICHTER: Mr. President, if 7 Senator Saland will continue to yield. 8 ACTING PRESIDENT KUHL: Senator 9 Saland, do you continue to yield? 10 SENATOR SALAND: Yes, Mr. President. 11 ACTING SPEAKER KUHL: The Senator 12 continues to yield. 13 SENATOR LEICHTER: Senator, while 14 it's perfectly true that this bill covers more 15 than AIDS, covers other sexually transmitted 16 diseases, the fact of the matter is that those 17 other diseases have been with us for decades and 18 decades, and it was AIDS that was the stimulus 19 for this bill. So, we're certainly -- it's 20 certainly not improper or unfair to focus on 21 AIDS as maybe the primary reason that this bill 22 is before us and to look at that disease and for 23 me to ask you questions based on that disease, 5391 1 which is what I'm doing. 2 Senator, I can appreciate that you 3 don't want to pass judgment whether or not it 4 would be malpractice for a doctor to fail to 5 recommend testing to a victim in those 6 situations where she was subject to having the 7 AIDS virus transmitted to her, even though the 8 defendant tested negative, but would you, at 9 least, based on your knowledge, say that the 10 victim in that situation, I'm talking now about 11 AIDS, should be tested? 12 SENATOR SALAND: The bill already 13 recognizes that. 14 SENATOR LEICHTER: So the answer is 15 yes. 16 SENATOR SALAND: But what you seem 17 to be ignoring is what precedes all of our 18 getting to that point. I mean, what we're 19 talking about is somebody who has been the 20 victim of some type of violent sexual assault. 21 We're talking about somebody who has been 22 exposed to bodily fluid as a proximal result of 23 the commission of that sexual assault or any 5392 1 other assault. 2 What we're talking here is no more 3 than a victims' rights bill, pure and simple; 4 and the mere fact that within the context of 5 this victims' rights bill, we tread upon the 6 area of HIV infection, doesn't mean that somehow 7 or other we should ignore the rights of victims. 8 I have maintained that all along and don't feel 9 that somehow or other there should be an 10 exemption because we're talking about HIV. 11 SENATOR LEICHTER: Mr. President, if 12 Senator Saland would continue to yield? 13 ACTING PRESIDENT KUHL: Senator 14 Saland, do you continue to yield? 15 SENATOR SALAND: Yes, Mr. President. 16 ACTING PRESIDENT KUHL: The Senator 17 continues to yield. 18 SENATOR LEICHTER: With all due 19 respect to you, Senator, every time the question 20 is a little difficult for you to answer, you 21 shout, "It's a victims' rights bill," and then 22 all of us should sit down and vote yes. I'm not 23 sure it's a victims' rights bill, Senator. If 5393 1 you can convince us it's a victims' rights bill 2 and not a politicians' benefit bill, then that's 3 fine. I'm trying to see - 4 SENATOR SALAND: Senator Leichter, I 5 suspect in your case that would be physically, 6 humanly and intellectually possible because you 7 come to this issue with such a predisposition 8 that if God came down with tablets -- not Moses, 9 God -- you wouldn't budge. 10 SENATOR LEICHTER: Well, Senator, in 11 the absence of God, I'll ask you. 12 SENATOR SALAND: I don't profess to 13 be that omnipotent. 14 ACTING PRESIDENT KUHL: Are you 15 asking Senator Saland, Senator Leichter, to 16 yield? 17 SENATOR LEICHTER: Yes. 18 ACTING PRESIDENT KUHL: Senator 19 Saland. 20 SENATOR LEICHTER: In the absence of 21 the Almighty, I'll ask Senator Saland, please. 22 Senator, I don't have a predispo 23 sition any more than I think you have a 5394 1 predisposition, so I'll tell you what, I'll say 2 that you don't have a predisposition if you'll 3 acknowledge that I don't have a predispo 4 sition. Let's see if you and I can find one 5 instance, one way, even an iota, an iota that a 6 victim has benefitted. 7 Now, you say it's a victims' benefit 8 bill. Give me one example where a victim would 9 be benefitted, give me an actual example. 10 SENATOR SALAND: Let me just suggest 11 to you, I will not be embarrassed by my 12 predisposition. My predisposition is on behalf 13 of victims. I will fall on the side of victims 14 in each and every instance; and when you've 15 taken, perhaps you have, as much testimony as I 16 have, all the hearings I've been at, all the 17 victims I've spoken to, all the women who have 18 talked to me privately about their 19 victimization, when you realize the anguish, 20 when you realize the agony, when you realize the 21 inability to be made whole, in many instances, 22 when they want the ability to access 23 information, and I'm talking primarily women the 5395 1 vast, vast majority of the time, but not always, 2 if this, as the judge in his quoted comments, 3 Judge Murphy, mentioned is going to provide them 4 with that access to information, then it seems 5 to me incredibly brutish and insensitive to deny 6 it. 7 SENATOR LEICHTER: Senator Saland, I 8 can't get you to answer the question. You keep 9 on pounding your chest and saying how wonderful 10 you are on victim rights. Let me tell you, 11 Senator, I'll get up and I'll say to everybody, 12 I think Senator Saland on victim rights is 13 extremely sensitive, caring, you're wonderful. 14 Good, let's put that aside. Let's see whether, 15 in fact, you're helping victims. 16 As much as you may be predisposed to 17 help victims, Senator, maybe in this instance 18 with the best of intentions, and I say, knowing 19 you, that you only proceed from the best of 20 intentions, that you may not be helping victims. 21 And, I would like one example where, 22 by virtue of the fact that the defendant is 23 tested and it shows whatever it shows, that the 5396 1 victim can breathe a deep sigh of relief and 2 say, "Whew, thank God, I was traumatized, I was 3 terribly treated, but at least I know now that I 4 don't have a sexually transmitted disease - 5 and I'm sorry, let me just limit it at this 6 moment to AIDS because I think that's basically 7 what we're talking about -- "I know that I don't 8 have the HIV virus," give me one example. 9 SENATOR SALAND: I would think it 10 would be so readily apparent that were that test 11 to come back positive, the victim would 12 certainly know that he or she would have to 13 continue through a series of tests in order to 14 try and monitor his or her health. 15 Now, we're talking about things that 16 are not readily definable. I mean, it's not 17 like if you're cut, you bleed, if you're beaten, 18 you contuse or abrade, what we're talking about 19 here is within the realm of things emotional, 20 the kinds of scaring that are extraordinarily 21 different, not as physical, perhaps, aside from 22 physical injuries associated with the violation. 23 What we're talking about is the 5397 1 desire, again, to put one's life back together. 2 You haven't been there, I don't believe, in this 3 context, nor have I, but as a victim, you want 4 that option; I don't know why you should be 5 denied it, particularly when you have a probable 6 cause mechanism, a reasonable medical procedure 7 and confidentiality, who gets hurt other than 8 the victim in this procedure? I would ask you 9 if you would yield. Who gets hurt, other than 10 the victim? 11 ACTING PRESIDENT KUHL: Senator 12 Leichter, are you asking Senator Saland to 13 continue to yield? 14 SENATOR LEICHTER: Yes. In 15 answering the question -- in asking a question, 16 I'll also answer yours. Senator, as you've 17 stated it, who gets hurt, other than the victim, 18 in this procedure, that's exactly my concern. 19 You're hurting the victim, you're hurting the 20 victim because you're hurting the victim by 21 giving the victim either the impression or the 22 feeling that somehow that test will avoid him or 23 her needing to be tested or will give him or her 5398 1 some definitive medical information and, as a 2 matter of fact, and I think you've conceded it, 3 the victim has to be tested. 4 SENATOR SALAND: Senator Leichter, 5 have you read the bill? 6 SENATOR LEICHTER: Yes. 7 SENATOR SALAND: Have you read the 8 bill? Again, I'll call your attention to that 9 subsection (d) which is the existing law. That 10 bill lays out what a victim has to go through. 11 Do we not believe that people have 12 been blessed with a certain amount of intelli 13 gence and intellect? When somebody has gone 14 through that process and gets to the bottom 15 line, they have been counselled, they have a 16 choice to make. If they choose not to because 17 they feel the way you do, they don't have to. 18 If, however, they feel that they should, in 19 fact, or want, in fact, to have their assailant, 20 again with a probable cause standard, to be 21 tested, they have that option. Why strip that 22 option away from the victim? 23 SENATOR LEICHTER: Senator, I take 5399 1 it as a question and I'll yield to it. The 2 reason you strip the option from the victim, 3 Senator, is because it doesn't tell you anything 4 that the victim can rely on, and the last thing 5 in the world that you would want to do as a 6 victim rights person, is to, in any respect, 7 mislead the victim. The last thing you'd want 8 to do is to say to the victim, "Okay, your 9 alleged assailant tested negative," and the 10 victim says, "Good, now I don't have to be 11 tested." 12 You're right, Senator Saland, the law 13 now provides a mechanism for testing of the 14 victim, that's fine, we ought to do that, we 15 need to counsel victims that they must be 16 tested; but the difficulty I have, and I must 17 say you've been unable to come up with one 18 example where the test -- the tests by -- the 19 tests of the defendant negates having to test 20 the victim. 21 SENATOR SALAND: Permit me to 22 suggest that I don't either speak clearly 23 enough - 5400 1 ACTING PRESIDENT KUHL: Senator 2 Saland, this is just not a debate situation we 3 have here. We go through the Chair, you know 4 the rules - 5 SENATOR SALAND: My apologies to the 6 Chair. 7 ACTING SPEAKER KUHL: -- as most of 8 us have been. Are you asking Senator Leichter 9 to yield to a question? 10 SENATOR SALAND: Would the Senator 11 yield? 12 SENATOR LEICHTER: Yes. 13 ACTING PRESIDENT KUHL: Senator 14 yields. 15 SENATOR SALAND: I'm assuming that 16 your hearing is fine, and it may well be that I 17 just don't speak loudly enough or that somehow 18 or other, I don't have a great enough control of 19 the language, but I would suggest to you that - 20 or perhaps I could ask this of you: Are you, 21 then, subscribing to the theory that ignorance 22 is bliss, that if we don't tell people or we 23 don't give them that option, they will 5401 1 blissfully go off and feel that somehow or other 2 they've been made whole without having this 3 testing? 4 SENATOR LEICHTER: Senator, I'm 5 saying that the victim needs to be tested, that 6 the victim needs to be tested irrespective of 7 what the test of the defendant shows. If it 8 shows positive, you still have to obviously test 9 the victim; if it shows negative, you still 10 obviously have to test the victim. And, 11 therefore, I want to know what benefit is there 12 to the victim to have the defendant tested when, 13 irrespective, you must test the defendant -- I 14 mean, you must the test the victim. 15 SENATOR SALAND: That's a question I 16 think I've answered several times. First, if, 17 in fact, the assailant tests positive, it 18 certainly gives the victim a course to follow 19 for however long he or she would propose to 20 follow it. It's certainly, at the very least, a 21 red flag as to not be lulled into a false sense 22 of security by one or two negative tests. And 23 secondly, the all important thing which you give 5402 1 no credence to and somehow or other make the 2 shortest of shrift of is the fact that 3 emotionally, this is something that is part of 4 helping a victim, in some instances, put his or 5 her life back together. 6 This is an invaluable means, a tool, 7 if not a tool, then an opportunity for someone 8 to begin to put their life back together, and if 9 that's what they want, you deny it to them. I 10 won't. 11 SENATOR LEICHTER: Senator 12 Saland, I thank you. I think we're boring our 13 colleagues and maybe we're talking past each 14 other. 15 Thank you. 16 It seems evident to me that if 17 the purpose is to try to deal with a physical 18 problem or risk that the victim has as a result 19 of the crime that was committed that this bill 20 does absolutely nothing, and I think Senator 21 Saland admitted it, because, again, in every 22 instance, you must have the victim tested, and 23 the victim ought to be counseled, be tested, and 5403 1 that is true whether the perpetrator tests 2 affirmative or tests negative. If he tests 3 affirmative, as Senator Paterson pointed out, 4 there's still the chances of the disease having 5 been transmitted is probably less than one in a 6 hundred, so you might actually be needlessly 7 scaring the victim, and so on. Certainly our 8 concern here is the welfare of the victim, and 9 the welfare of the victim requires that he or 10 she be tested. 11 Now, what do you gain by testing 12 the defendant? That is the question I keep on 13 asking; and, finally, Senator Saland asks and 14 said, "Well, this is part of putting her life 15 back together." I don't understand this. Where 16 does that come from, Senator Saland, a study 17 that you've made of victims, and so on? Is 18 there some study that shows that even though 19 this does absolutely no good in guiding the 20 victim as to what actions she has to take to 21 protect his or her own health -- because we've 22 already established he or she has to be tested 23 -- nevertheless, this is psychologically good 5404 1 for him or her, and so on? That's really what 2 it comes down to. 3 What are we given that shows that 4 that's the case? And even if it were the case, 5 would we do it? Could we do it constitutionally 6 when we're dealing with somebody who has not 7 been convicted of the crime? 8 Yes, I am concerned about the 9 constitutional aspects of this. But I think if 10 there were a direct nexus between testing 11 somebody that was charged with this crime and 12 having established due cause, having established 13 some of the recommendations of Governor Pataki's 14 task force, where they spell out protection, and 15 they say if it's -- if it is medically 16 beneficial to the victim, not psychologically 17 beneficial based on something, Senator Saland, 18 as you have surmised, but medically beneficial, 19 in those cases I could see it even if you're 20 testing somebody who hasn't been convicted but 21 stands only charged with the crime, but that's 22 not your bill. 23 Your bill permits these applica 5405 1 tions to be made to the court in instances where 2 there's absolutely no benefit to the victim; and 3 just to get up here and to say, "I am for 4 victims' rights," well, does this bill further 5 victims' rights? I submit to you that it 6 doesn't. If anything, it is misleading. So why 7 are we doing it? 8 There are a lot of things, 9 Senator Saland, that can be done for victims. 10 Some of them you have tried to do. There are 11 others we ought to try to do. This one is of no 12 aid and help to victims whatsoever. It may have 13 popular appeal because there is a failure to 14 understand the nature of the AIDS disease and 15 what is required in the nature of testing. 16 So if you get up to me and say, 17 "But, Leichter, this is politically good," I 18 can understand that argument, but that is not 19 what you're saying and I believe you are good 20 intentioned with it, but I ask you again to look 21 at it and to find one instance where there is a 22 medical benefit and reason that you're going to 23 get from testing the defendant so that the 5406 1 victim, based on the defendant's test can say, 2 either, "I don't have to be tested; 3 I'm okay," or "Gee, I've got a real problem," 4 and that just doesn't happen given the nature of 5 the AIDS disease. 6 ACTING PRESIDENT KUHL: Senator 7 Abate. 8 SENATOR ABATE: Would Senator 9 Saland yield to a number of questions? 10 ACTING PRESIDENT KUHL: Senator 11 Saland, do yield to Senator Abate? 12 SENATOR SALAND: Yes, Mr. 13 President. 14 ACTING PRESIDENT KUHL: The 15 Senator yields. 16 SENATOR ABATE: Yes, Senator 17 Saland, I think everyone in this chamber 18 respects you for your work with crime victims. 19 There are many of us who feel that we have been, 20 for years, crime victim advocates and you talk 21 about there's universal support among the 22 victims community for this bill. 23 SENATOR SALAND: If I may 5407 1 interrupt as a point of information. I never 2 said that. 3 SENATOR ABATE: You call it a 4 "victims bill". 5 SENATOR SALAND: Correct. 6 SENATOR ABATE: And yet, are you 7 aware that there are a number of very 8 prestigious victims groups that have a number of 9 serious concerns about this bill? These are, in 10 fact, victims groups that their entire mission 11 is to help victims of crime. 12 SENATOR SALAND: I am aware that 13 there are some groups. I am aware of the poli 14 tics of this bill. I'm aware -- particularly 15 getting involved in an area involved with HIV 16 testing, I'm full well aware of the knee jerk 17 reaction that it brings everywhere, both on the 18 right and on the left. That is not the 19 intention of this bill, and I'm sure that there 20 are a number of victims' rights organizations 21 that have great sensitivity to those who 22 advocate on behalf of the AIDS community, and 23 I'm sure that there is a certain amount of 5408 1 political brokering that's going on with some of 2 these positions being stated by some of those 3 groups. There certainly are memos from domestic 4 violence organizations in support of this bill. 5 SENATOR ABATE: Are you aware - 6 I know when I was the chair of the New York 7 State Crime Victims Board in the '80s that we 8 had extensive hearings on this issue. The 9 Governor at the time had a Task Force Against 10 Sexual Assault, and I was present during a 11 number of these meetings and hearings with 12 victims groups and only victims groups, and at 13 that time -- and they continue to be very 14 concerned about the issue as it relates to the 15 benefits of the victims. 16 Are you aware that the Coalition 17 Against Sexual Assault and Victims Services - 18 Victims Services is opposed to the bill, and the 19 Coalition Against Sexual Assault has raised a 20 number of issues that have not been resolved by 21 the bill. 22 SENATOR SALAND: I'm not aware 23 specifically of those organizations. I am aware 5409 1 of your involvement. I am aware that you were 2 part of the Governor's 1990 Task Force. I am 3 aware that the 1990 Task Force issued a report 4 in favor of preconviction testing. I'm not 5 aware of any dissent or minority opinion that 6 was provided with respect to that preconviction 7 testing. 8 SENATOR ABATE: No, it's my 9 understanding there was a conclusion reached on 10 post-conviction but there was no consensus 11 reached on preconviction testing. 12 SENATOR SALAND: Oh, it states 13 right in the report that they endorsed -- they 14 said it was a difficult question, but they 15 endorsed preconviction testing. I may have it 16 in this file. If I do, I will read it to you. 17 SENATOR ABATE: And were there - 18 my recollection -- I have notes of the meeting 19 -- that there were certain things that needed 20 to be present in order for any kind of testing 21 to occur preconviction. In fact, the same kind 22 of guidelines discussed in the task force are 23 the same guidelines discussed by the AIDS 5410 1 Advisory Council discussion of medical benefit 2 to the victim. 3 SENATOR SALAND: The substantial 4 medical benefits test that was alluded to 5 earlier by Senator Leichter, in effect, taking 6 Senator Leichter's logic to its conclusion means 7 that nobody -- because Senator Leichter says 8 there is never any substantial medical benefit 9 -- nobody would ever be able to avail 10 themselves of the test. 11 So to me, that, in part, is a 12 smoke screen that doesn't recognize, again, the 13 anguish that victims go through nor does it 14 recognize the fact that once probable cause has 15 been shown to exist in the commission of the 16 crime and the exchange of body fluid, why could 17 you reasonably deny a victim who wanted that the 18 opportunity to have that test? All you are 19 doing is giving somebody the ability to have a 20 choice. It's no more than a choice issue. A 21 victim can make up his or her mind as to whether 22 or not they want to do this, intelligently 23 arrived at after being counselled. They may 5411 1 choose not to do it. But for those that do, 2 whether they are a minority or a majority, why 3 not permit them to avail themselves of the 4 test? 5 SENATOR ABATE: And you - 6 ACTING PRESIDENT KUHL: Senator 7 Abate, are you asking Senator Saland to continue 8 to yield? 9 SENATOR ABATE: Yes, if Senator 10 Saland will continue to yield. 11 ACTING PRESIDENT KUHL: Senator 12 Saland, do you continue to yield? 13 SENATOR SALAND: Yes. I believe 14 I have the language here if you'd like, Senator. 15 SENATOR ABATE: I have the notes 16 from the meeting. I'm not sure how they were 17 transcribed, but there were about 15 meetings. 18 ACTING PRESIDENT KUHL: Senator 19 Abate, if I might, this really -- the forum that 20 we have here doesn't provide for the opportunity 21 for a dialogue between the two of you. You have 22 an opportunity to make a statement or ask an 23 individual or the sponsor of the bill a 5412 1 question, and he, in turn, can ask you to yield 2 to a question. 3 I would like you to kind of 4 continue to come through the Chair so that we 5 can maintain some decorum and some order in this 6 chamber. 7 So are you asking Senator Saland 8 to yield? 9 SENATOR ABATE: Yes, Senator. 10 Let me ask you another. Question? 11 ACTING PRESIDENT KUHL: Thank 12 you. Senator Saland, do you continue to yield? 13 SENATOR SALAND: Yes, Mr. 14 President. 15 SENATOR ABATE: Senator Saland, 16 are you - 17 ACTING PRESIDENT KUHL: Senator 18 yields. 19 SENATOR ABATE: -- aware that the 20 AIDS Advisory Council has made certain 21 recommendations? And have you followed their 22 recommendations? 23 SENATOR SALAND: I'm aware that 5413 1 the AIDS Advisory Council is suggesting use of a 2 substantial medical benefit test. I'm aware of 3 that, and I have not built that into this bill. 4 SENATOR ABATE: And, am I correct 5 in saying that the AIDS Advisory Council are 6 made up of people appointed by the Governor who 7 have substantial medical background in the 8 diagnosis and treatment of AIDS, provision of 9 services for that population? 10 SENATOR SALAND: I am aware that 11 the appointees are appointees of the Governor. 12 I'm told that the majority of those appointees 13 are appointees by Governor Pataki, and I have 14 been led to believe, although I can't say this 15 with absolute certainty, that a substantial 16 number of them if not the majority of them do 17 have medical background. 18 SENATOR ABATE: Don't you think, 19 Senator - 20 ACTING PRESIDENT KUHL: Senator 21 Saland, do you continue to yield? 22 SENATOR SALAND: Yes, Mr. 23 President. 5414 1 SENATOR ABATE: Don't you 2 think - 3 ACTING PRESIDENT KUHL: Senator 4 continues to yield. 5 SENATOR ABATE: -- Senator, that 6 in fact we are not medical doctors. There's an 7 AIDS Advisory Council which reached a conclusion 8 that said testing may be appropriate in certain 9 cases. 10 It did not say that it was not 11 appropriate in every case, but it said that this 12 bill was basically too broad. How do you think 13 we in the Legislature -- because we do not have 14 medical backgrounds, aren't we remiss in not 15 taking a serious look at these recommendations 16 and maybe amending your bill to reflect their 17 suggestions? 18 SENATOR SALAND: I'm not aware 19 that they took a position on this bill. I'm not 20 aware that they attempted to specifically deal 21 with this bill. I am aware, again, that they 22 felt that whatever was done should be done 23 within the contest of applying a substantial 5415 1 medical benefits test. 2 SENATOR ABATE: It's my 3 understanding -- do you have a copy of their 4 recommendation before you? 5 SENATOR SALAND: I have them 6 somewhere, yes. 7 SENATOR ABATE: Am I correct in 8 saying that if you look at their AIDS Advisory 9 Council recommendation, it goes through point by 10 point what they think needs to be done in order 11 to provide the victim with useful information. 12 And it's my understanding - 13 again, correct me -- that these are 14 recommendations that they believe should be part 15 and parcel of any bill that requires testing of 16 defendants. Do you in any way take into 17 consideration their issues around describing 18 what a significant risk is in terms of bodily 19 fluid? 20 SENATOR SALAND: I think that a 21 court has the ability to make that 22 determination. Again, we're talking probable 23 cause. The language in the bill specifically 5416 1 talks about -- it defines a victim as a person 2 -- "means a person with whom the defendant 3 engaged in an act of sexual intercourse or 4 deviate sexual intercourse as defined in Section 5 130 of the Penal Law." It goes on to say that 6 the petition means a person who alleges he or 7 she was exposed to bodily fluid of the defendant 8 during or as the proximate result of the 9 commission of the same offense, and then goes on 10 in another section to describe the circumstances 11 under which this would be applicable. One is on 12 conviction. One I believe is on indictment, and 13 the other one stands charged by an information. 14 Now, there is a long line of 15 cases which I'm sure you are familiar with, both 16 Appellate and Supreme Court cases, that, in 17 effect, say that indictment and an information 18 are probable cause -- not beyond a reasonable 19 doubt, but probable cause. So we are - 20 SENATOR ABATE: That's not my 21 question. 22 SENATOR SALAND: We are giving - 23 well, I think it's a response. I'm not sure 5417 1 what your question is, then. Because what you 2 are saying is, if, in fact, there is a recommen 3 dation by an advisory group, must we as this 4 legislative body endorse that recommendation? I 5 am telling you that, from my advantage point, I 6 am choosing not to deal or advance that 7 particular proposal. I don't believe it fits. 8 SENATOR ABATE: My question - 9 SENATOR SALAND: I don't 10 believe -- that's not the way that I would - 11 SENATOR ABATE: How can we afford 12 not -- to ignore their proposal. Do you believe 13 judges who do not have medical background are 14 going to be able to examine the behavior of the 15 defendant and determine whether the circum 16 stances would contribute to a significant risk 17 of transmitting or actually infecting someone 18 with the HIV infection? 19 SENATOR SALAND: That's not the 20 standard. 21 SENATOR ABATE: How can doctors 22 have that within their purview? 23 SENATOR SALAND: That's not the 5418 1 standards. And judges, by the way, have to deal 2 -- who are not psychologists or psychiatrists 3 have to deal with insanity as part and parcel of 4 proceedings. They have to deal with the most 5 complex of medical questions in medical 6 malpractice cases. They have to deal with a 7 host of things that you and I don't generally 8 have to deal with nor do the men and women on 9 the street have to deal with. But there's 10 expert opinion that's provided to them in the 11 course of the proceedings that helps them and 12 the jury get to what we assume is the right 13 decision. 14 SENATOR ABATE: Would Senator 15 Saland yield to another question? 16 ACTING PRESIDENT KUHL: Senator 17 Saland, do you yield to another question? 18 SENATOR SALAND: Yes, Mr. 19 President. 20 ACTING PRESIDENT KUHL: He 21 yields. 22 SENATOR ABATE: You are 23 absolutely right that there are judges who are 5419 1 very intelligent and can interpret other 2 disciplines, but that's in a case where there is 3 a hearing and expert testimony has been 4 rendered. Where in this legislation is there 5 the establishment of either due process or a 6 full hearing where medical testimony can be 7 rendered so that a judge can, in fact, make the 8 decision what it means on "may", "something may 9 have been transmitted." Doesn't the judge need 10 to hear from medical experts so he or she can 11 make a fully informed decision? 12 This bill, am I correct, does not 13 provide for any hearing? 14 SENATOR SALAND: This bill 15 basically creates a mechanism which says if 16 there is probable cause you may have the test, 17 after you've been through the counseling and 18 determined that you want the test. In effect, 19 the victim is being empowered to make decisions 20 for himself or herself based upon expert 21 information, expert opinion, counseling, that's 22 provided to that person. 23 That person may decide after they 5420 1 have gone through that process that they don't 2 want it, but that should be that victim's 3 decision. They should be empowered with the 4 ability to make that decision; and if there has 5 been this act, this violent act, and if a court 6 feels that there is probable cause, if that 7 person has been convicted, if they've been 8 indicted, if they are in on a superior court 9 information, that probable cause has been 10 established; and if you can show the 11 victimization and you can show the probability 12 of the exchange of body fluids, then the victim 13 is empowered to make a decision. Does she or 14 doesn't she want, or he want to have the test? 15 If, in fact, they don't that's their decision. 16 But why deny them the ability to make that 17 decision? 18 That's what -- really that is all 19 this argument boils down to. 20 SENATOR ABATE: Senator, would 21 you yield to another question? 22 ACTING PRESIDENT KUHL: Senator 23 Saland, do you continue to yield? 5421 1 SENATOR SALAND: Yes, Mr. 2 President. 3 ACTING PRESIDENT KUHL: Senator 4 yields. 5 SENATOR ABATE: The AIDS Advisory 6 Council in -- I believe in -- raised these 7 guidelines because of concern that there may not 8 be any useful information given to the victim. 9 Does this bill cover a situation where there is 10 an assault that occurred and the defendant is 11 arrested a year later and the victim says, "I 12 want the defendant tested"? But, clearly, 13 within the course of that year that defendant 14 may have contracted AIDS after the alleged 15 crime. What medical benefit, what useful 16 information, then, under those circumstances are 17 we giving to the victim; and how does your 18 legislation cure that situation? 19 SENATOR SALAND: That victim 20 would have the ability under this bill to self 21 test. That victim would have the ability to go 22 through the counseling proceeding; and if that 23 victim determined that with the lapse of one 5422 1 year and the possibility or likelihood that that 2 assailant who has finally been apprehended was 3 not infected with HIV a year previously but in 4 the interim had become, then that person has a 5 choice. A choice. A basic choice: "I'm 6 wasting my time. I don't want to be bothered. 7 I will continue to self-test." It boggles my 8 mind to think that people would want to deny 9 victims that choice. 10 SENATOR ABATE: Let me proceed 11 and ask another question. 12 ACTING PRESIDENT KUHL: Senator 13 Saland, do you continue to yield? 14 SENATOR SALAND: Yes, Mr. 15 President. 16 ACTING PRESIDENT KUHL: Senator 17 yields. 18 SENATOR ABATE: I guess it 19 boggles my mind that we in the Legislature can't 20 refine our bills so that we can take into 21 consideration cases and not waste dollars and 22 protect the victim. I don't understand why you 23 haven't narrowed the bill so that in the case 5423 1 that I've talked about, which there could never 2 be any useful information given the victim, you 3 could carve out a better bill. What prevents 4 you, going back to your bill, taking a look at 5 the AIDS Advisory Council recommendation and 6 producing a better bill that helps victims? 7 SENATOR SALAND: Senator Abate, 8 there's nothing in this bill that is in 9 derogation of the rights of a victim or the 10 ability of a victim to gain access to 11 information. 12 The fact that you may prefer to 13 do it differently is certainly well within your 14 option, and I cause you no disrespect by telling 15 you that. We've had one Governor's task force, 16 of which you were a member, clearly -- and I 17 just call your attention to recommendation 16 in 18 that report -- you may want to take a look at 19 it -- pages 95 and 96, went on to say there 20 should be a civil procedure for a victim to be 21 able to access the information. 22 This particular task force or 23 advisory council is saying -- and, by the way, 5424 1 when we debated a predecessor of this bill over 2 some three or four years -- I think we debated a 3 bill I introduced dealing with the subjects 4 three times. There was little or no regard 5 given to the task force recommendations. I was 6 told, in effect, that they were of no 7 consequence. 8 So I have no idea why the task 9 force recommendations by those who opposed this 10 originally and told me they were of no 11 consequence should somehow or other choose, 12 because they are more favorably disposed to 13 another panel which also is comprised of a 14 cross-section of people, including medical 15 authority, to identify with that one. We're 16 picking and choosing. 17 SENATOR ABATE: Well, I can't 18 comment on who picked and choosed before. I can 19 only comment on my assessment. 20 I have one last question. 21 ACTING PRESIDENT KUHL: Senator 22 Saland, do you continue to yield? 23 SENATOR SALAND: Yes, Mr. 5425 1 President. 2 SENATOR ABATE: Senator - 3 ACTING PRESIDENT KUHL: Senator 4 yields. 5 SENATOR ABATE: -- the victims 6 community has raised some concerns about the 7 bill. 8 One is the issue of 9 confidentiality as relates to victims, and that 10 what penalties are in this bill if information 11 is shared with third parties is one of the 12 issues. 13 And one of the other issues is, 14 is there pretesting counseling in the bill for 15 victims? 16 And then the third question is, 17 is this a cost-free bill for the victim? Who 18 will be paying for the counseling, the testing 19 and the AZT if it's required? Do they have to 20 make a claim before the Crime Victims Board and 21 show that alternative reimbursement could apply, 22 or is this a cost-free measure to victims? 23 Those three questions again: Are 5426 1 there penalties for disclosure? Is it cost-free 2 to the victims? Is AZT available? Is 3 pretesting counseling available? 4 SENATOR SALAND: We have done 5 nothing in this bill that changes the current 6 law with respect to confidentiality. We added 7 nobody other than the petitioner who brings a 8 proceeding separately because he or she wants to 9 self-test. There is no additional breach of 10 confidentiality that is not currently contained 11 in law. 12 SENATOR ABATE: So there is no 13 penalty attached. 14 SENATOR SALAND: No, I'm saying 15 there is nothing -- the existing law, whatever 16 that existing law is, is what controls, whether 17 it's a civil fine, whether it's a misdemeanor. 18 Off the top of my head, I can't tell you what it 19 is. I believe there is a misdemeanor penalty 20 that generally is associated with most 21 unauthorized disclosures, but I can't tell you 22 that with certainty. 23 SENATOR ABATE: Are you aware 5427 1 that many in the victims' community are very 2 concerned about the confidentiality, that this 3 information will be shared with other parties, 4 and they wanted additional penalties for breach 5 of confidentiality? 6 SENATOR SALAND: Again, we have 7 done nothing. We have not expanded one iota or 8 diminished one iota from the existing law with 9 respect to penalties for an unauthorized 10 confidentiality. 11 Your second question? I'm sorry. 12 SENATOR ABATE: And my second 13 question was dealing with pretesting 14 counseling. Will that counseling pretest, so 15 that when the victim is -- particularly when 16 they are undergoing an enormous amount of shock 17 and trauma, that's the time when they need some 18 counseling. Is that available prior to the 19 test? 20 SENATOR SALAND: Pretest is 21 covered. The voluntary test, where you make 22 your voluntary application, is covered. I do 23 not believe that an application by - 5428 1 SENATOR ABATE: Is that covered 2 by applying to the Crime Victims Board or is 3 that a cost-free service? 4 SENATOR SALAND: It's a state 5 charge, and I would have to, again, go through 6 the language and determine whether there's a 7 Crime Victims Board application here. 8 SENATOR ABATE: Because you know 9 as one applies to the Crime Victims Board not 10 everyone is eligible for compensation. 11 SENATOR SALAND: No, it is not. 12 It's a direct charge. It's a direct charge to 13 the state. It is not a Crime Victims Board 14 expense. 15 SENATOR ABATE: And then the 16 third question, will the victim receive 17 compensation for AZT? 18 SENATOR SALAND: No. 19 SENATOR ABATE: Thank you, 20 Senator. 21 SENATOR SALAND: You're welcome. 22 SENATOR ABATE: On the bill. 23 ACTING PRESIDENT KUHL: Senator 5429 1 Abate on the bill. 2 SENATOR ABATE: This is another 3 example where I believe many people in the 4 chamber could support some kind of testing if it 5 were rational, if there were some nexus between 6 the testing and useful information to the 7 victim. 8 I think it's pandering to the 9 victims to say we're going to do something good 10 for them, when, in fact, many of them, whether 11 it's the Coalition Against Sexual Assault or the 12 Victims Services Agency, which is probably the 13 largest victims agency in the world, says that 14 this is not a victims' bill as written and that 15 it could be greatly be improved. 16 I don't know why we always have 17 to rush. Why can't we improve a bill that takes 18 into consideration what the judges say. The 19 judges have in their resolution called for a 20 number of suggestions for improvement. The 21 victims community talks about the need to ensure 22 that good information is available to the 23 victim, that the confidentiality is not 5430 1 breached. 2 And why are we ignoring the 3 recommendations of the AIDS Advisory Council. 4 They are the very people who were put in charge 5 of these very complex and difficult issues 6 because they've worked, many of them decades, in 7 the field. They understand the complexity of 8 the disease. And they have come out with 9 recommendations that say, yes, there are certain 10 circumstances where testing of the accused may 11 be appropriate but not the way this bill is 12 drafted. 13 They recommend that there be an 14 establishment of medical benefit. There would 15 be a showing of significant risk, bodily 16 substances being utilized in the crime, and 17 there must be circumstances which constitute a 18 significant risk of transmitting the disease. 19 So what that means is, it's not all situations 20 should a test be allowed by the Court. They 21 believe that there should be a hearing. There 22 should be a due process hearing and that, when 23 necessary, medical experts can be called in. 5431 1 There's the very example that I 2 gave where a year or six months before there was 3 an assault and yet the defendant was not 4 arrested until much later. There is not a 5 compelling reason for that test in that 6 situation, and how are we doing a medical 7 benefit for that victim other than giving that 8 victim very bad information. So they address 9 those issues. 10 In a section that says 11 "circumstances that involve significant risk 12 shall not include" and they give three or four 13 conditions when there is not significant risk. 14 This bill does not take their advice and, 15 somehow, we seem to know better than the experts 16 in the field. 17 They also talk about their 18 concern that false assurances or unnecessary 19 alarm can be given to the victim because bad 20 information will be given. It is my 21 understanding that the old immunity test, the 22 antibody test, could also be utilized under this 23 bill. It's much less expensive. I think that 5432 1 would be the frequently used test. And if it 2 is, if a defendant tests negative, it does not 3 mean that he or she does not have AIDS, because 4 if you're testing for antibodies it sometimes 5 takes up to six months for those antibodies to 6 be present and for the person to test positive. 7 On the other side of the coin, if someone tests 8 positive it does not mean that the victim has 9 contracted AIDS. 10 So it's been said over and over 11 again. We need to do everything we can. We 12 need to construct a bill that we can guarantee 13 gives good information to the victim so that the 14 victim doesn't walk away and say, if the 15 defendant is negatively tested, I don't need to 16 test myself or if incorrectly the defendant is 17 tested positive, there is an enormous amount of 18 alarm and additional pain we are giving to the 19 victim because it's bad information. She or he 20 may not, in fact, have contracted AIDS. 21 So we don't want -- we can walk 22 away and say it's a victims' bill, but we have 23 to take responsibility if, in fact, we draft a 5433 1 bill so broad that we are giving information 2 that can create even greater trauma to the 3 victim. 4 Also the victims' community have 5 raised a number of issues around confidentiality 6 they are concerned about. Why are we always at 7 a rush? Why can't we construct a better bill? 8 I can not vote for this bill today because it 9 does not take into consideration the advice of 10 the medical and scientific evidence that's 11 available today. I think we should look to the 12 AIDS Advisory Council recommendations that come 13 forward with some very rational guidelines. 14 They provide a nexus between the test and good 15 information to the victim. I think the one part 16 of the bill that's excellent, I think we should 17 pass that part, and let's debate and improve 18 upon the second part, the part that gives - 19 ensures confidentiality and time testing and 20 counseling cost-free to the victim. It is 21 imperative. It should have passed last year. 22 We should pass that immediately. 23 But let's do something that's 5434 1 right, that's going to help victims. Let's take 2 a look at the second part and craft something 3 that's really meaningful, and we can all stand 4 up and say actually that this is a victims' 5 bill. This as it stands now is not a victims' 6 bill. 7 ACTING PRESIDENT KUHL: Is there 8 any other Senator wishing to speak on this 9 bill? 10 Hearing none, the Secretary will 11 read the last section. 12 THE SECRETARY: Section 8. This 13 act shall take effect immediately. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 SENATOR PATERSON: Slow roll 17 call. 18 ACTING PRESIDENT KUHL: Are there 19 five members in the chamber requesting a slow 20 roll call? 21 Senator Hoffmann, are you on your 22 feet requesting a slow roll call? 23 SENATOR HOFFMANN: Yes. 5435 1 ACTING PRESIDENT KUHL: There are 2 five members in the chamber requesting a slow 3 roll call. 4 Secretary will read the slow roll 5 call. 6 THE SECRETARY: Senator Abate. 7 SENATOR ABATE: No. 8 THE SECRETARY: Senator Alesi. 9 SENATOR ALESI: Yes. 10 THE SECRETARY: Senator Babbush. 11 (There was no response.) 12 Senator Bruno. 13 (Affirmative indication.) 14 THE SECRETARY: Senator Connor. 15 (Negative indication.) 16 THE SECRETARY: Senator Cook. 17 SENATOR COOK: Yes. 18 THE SECRETARY: Senator 19 DeFrancisco. 20 SENATOR DeFRANCISCO: Yes. 21 THE SECRETARY: Senator DiCarlo. 22 (There was no response.) 23 Senator Dollinger. 5436 1 (There was no response.) 2 Senator Espada. 3 SENATOR ESPADA: No. 4 THE SECRETARY: Senator Farley. 5 SENATOR FARLEY: Aye. 6 THE SECRETARY: Senator Gold. 7 (There was no response.) 8 Senator Gonzalez. 9 (There was no response.) 10 Senator Goodman. 11 (There was no response.) 12 Senator Hannon. 13 (There was no response.) 14 Senator Hoblock. 15 SENATOR HOBLOCK: Yes. 16 THE SECRETARY: Senator 17 Hoffmann. 18 SENATOR HOFFMANN: Yes. 19 THE SECRETARY: Senator Holland. 20 SENATOR HOLLAND: Yes. 21 THE SECRETARY: Senator Johnson. 22 SENATOR JOHNSON: Aye. 23 THE SECRETARY: Senator Kruger. 5437 1 (There was no response.) 2 Senator Kuhl. 3 SENATOR KUHL: Aye. 4 THE SECRETARY: Senator Lachman. 5 (There was no response.) 6 Senator Lack excused. 7 Senator Larkin. 8 SENATOR LARKIN: Aye. 9 THE SECRETARY: Senator LaValle. 10 SENATOR LAVALLE: Aye. 11 THE SECRETARY: Senator Leibell. 12 SENATOR LEIBELL: Aye. 13 THE SECRETARY: Senator Leichter. 14 SENATOR LEICHTER: Mr. President. 15 ACTING PRESIDENT KUHL: Senator 16 Leichter to explain his vote. 17 SENATOR LEICHTER: Mr. 18 President. Stating, even as frequently as 19 Senator Saland said, "This is a victims' rights 20 bill," doesn't make it a victim benefit bill. I 21 would submit that it's more appropriate to 22 characterize it as a misleading bill, misleading 23 to victims. I think as we pointed out, victims 5438 1 should be tested and we support provisions that 2 provide for the consultation, testing, payment 3 by the state for testing. 4 But the other part as far as 5 testing the defendant, the person charged with 6 the crime, that actually could mislead the 7 victim. It could cause anguish to the victim. 8 It could cause the victim to make the wrong 9 choice. It does absolutely -- gives no benefit 10 but it may give some harm to the victim. This 11 may be popular, and so on, Senator Saland, but I 12 was pleased to hear from Senator Abate that 13 victims' rights organizations understand this. 14 They understand that this bill is not in their 15 benefit. You could make it such but it might 16 not have the same political value. 17 Mr. President, for I think what 18 has been amply demonstrated are flaws in this 19 bill, I'm going to vote in the negative. 20 ACTING PRESIDENT KUHL: Senator 21 Leichter will be recorded in the negative. 22 Continue to call the roll slowly. 23 THE SECRETARY: Senator Levy. 5439 1 SENATOR LEVY: Aye. 2 THE SECRETARY: Senator Libous. 3 SENATOR LIBOUS: Aye. 4 THE SECRETARY: Senator Maltese. 5 SENATOR MALTESE: Aye. 6 THE SECRETARY: Senator 7 Marcellino. 8 SENATOR MARCELLINO: Aye. 9 THE SECRETARY: Senator Marchi. 10 SENATOR MARCHI: Aye. 11 THE SECRETARY: Senator 12 Markowitz. 13 SENATOR MARKOWITZ: No. 14 THE SECRETARY: Senator Maziarz. 15 SENATOR MAZIARZ: Yes. 16 THE SECRETARY: Senator Mendez. 17 SENATOR MENDEZ: No. 18 THE SECRETARY: Senator 19 Montgomery excused. 20 Senator Nanula. 21 SENATOR NANULA: No. 22 THE SECRETARY: Senator 23 Nozzolio. 5440 1 SENATOR NOZZOLIO: Aye. 2 THE SECRETARY: Senator Onorato. 3 SENATOR ONORATO: Aye. 4 THE SECRETARY: Senator 5 Oppenheimer. 6 SENATOR OPPENHEIMER: Aye. 7 THE SECRETARY: Senator Padavan 8 excused. 9 Senator Paterson. 10 SENATOR PATERSON: No. 11 THE SECRETARY: Senator Present. 12 SENATOR PRESENT: Aye. 13 THE SECRETARY: Senator Rath. 14 SENATOR RATH: Aye. 15 THE SECRETARY: Senator Saland. 16 SENATOR SALAND: Aye. 17 THE SECRETARY: Senator 18 Santiago. 19 SENATOR SANTIAGO: No. 20 THE SECRETARY: Senator 21 Seabrook. 22 SENATOR SEABROOK: No. 23 THE SECRETARY: Senator Sears. 5441 1 SENATOR SEARS: Aye. 2 THE SECRETARY: Senator Seward. 3 SENATOR SEWARD: Aye. 4 THE SECRETARY: Senator Skelos. 5 SENATOR SKELOS: Aye. 6 THE SECRETARY: Senator Smith. 7 SENATOR SMITH: No. 8 THE SECRETARY: Senator Spano. 9 SENATOR SPANO: Aye. 10 THE SECRETARY: Senator 11 Stachowski. 12 SENATOR STACHOWSKI: Yes. 13 THE SECRETARY: Senator 14 Stafford. 15 SENATOR STAFFORD: Aye. 16 THE SECRETARY: Senator Stavisky 17 excused. 18 Senator Trunzo. 19 SENATOR TRUNZO: Yes. 20 THE SECRETARY: Senator Tully. 21 SENATOR TULLY: Aye. 22 THE SECRETARY: Senator Velella. 23 SENATOR VELELLA: Yes. 5442 1 THE SECRETARY: Senator Volker. 2 SENATOR VOLKER: Yes. 3 THE SECRETARY: Senator Waldon. 4 (There was no response.) 5 Senator Wright. 6 SENATOR WRIGHT: Aye. 7 ACTING PRESIDENT KUHL: Call the 8 absentees. 9 THE SECRETARY: Senator Babbush 10 excused. 11 Senator DiCarlo. 12 SENATOR DiCARLO: Aye. 13 THE SECRETARY: Senator 14 Dollinger. 15 SENATOR DOLLINGER: Yes. 16 THE SECRETARY: Senator Gold. 17 (There was no response.) 18 Senator Gonzalez excused. 19 Senator Goodman. 20 SENATOR GOODMAN: No. 21 THE SECRETARY: Senator Hannon. 22 SENATOR HANNON: Yes. 23 THE SECRETARY: Senator Kruger. 5443 1 (There was no response.) 2 Senator Lachman. 3 (There was no response.) 4 Senator Waldon. 5 (There was no response.) 6 ACTING PRESIDENT KUHL: Announce 7 the results. 8 THE SECRETARY: Ayes 39, nays 12. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 Senator Maziarz. 12 SENATOR MAZIARZ: Thank you, Mr. 13 President. 14 Mr. President. At this time, may 15 we please take up Calendar Number 1219, which 16 was just reported from the Finance Committee. 17 ACTING PRESIDENT KUHL: Secretary 18 will read Calendar Number 1219. 19 THE SECRETARY: Calendar Number 20 1219, by the Committee on Rules, Senate Print 21 7566, an act making appropriations for the 22 support of government. 23 ACTING PRESIDENT KUHL: Senator 5444 1 Maziarz. 2 SENATOR MAZIARZ: Mr. President, 3 is there a message of appropriation at the 4 desk? 5 ACTING PRESIDENT KUHL: There is. 6 SENATOR MAZIARZ: I move to 7 accept the message of appropriation. 8 ACTING PRESIDENT KUHL: The 9 motion is to accept the message of appropriation 10 on Calendar 1219. 11 All those in favor, signify by 12 saying aye. 13 (Response of "Aye.") 14 Opposed, nay. 15 (There was no response.) 16 The message is accepted. 17 Secretary will read the last 18 section. 19 THE SECRETARY: Section 13. This 20 act shall take effect immediately. 21 ACTING PRESIDENT KUHL: Call the 22 roll. 23 (The Secretary called the roll.) 5445 1 THE SECRETARY: Ayes 55. 2 ACTING PRESIDENT KUHL: The bill 3 is passed. 4 Senator Santiago, why do you 5 rise? 6 SENATOR SANTIAGO: Mr. President, 7 legislative business kept me out of the chamber 8 when the Senate voted on Senate Bill 6621. I 9 wish to announce for the record that had I been 10 present, I would have voted no on this 11 legislation. 12 ACTING PRESIDENT KUHL: Senator 13 Santiago, this is on a prior day's session? 14 SENATOR SANTIAGO: Yes. 15 ACTING PRESIDENT KUHL: That was 16 Senate Bill 6621? 17 SENATOR SANTIAGO: Yes. 18 ACTING PRESIDENT KUHL: The 19 record will reflect that had Senator Santiago 20 been in the chamber when the vote was taken on 21 Senate Bill 6621 that she would have voted in 22 the negative. 23 ACTING PRESIDENT KUHL: Senator 5446 1 Maziarz. 2 SENATOR MAZIARZ: Thank you, Mr. 3 President. 4 Mr. President, at this time, may 5 we please take up Calendar Number 1220. 6 ACTING PRESIDENT KUHL: Secretary 7 will read the title. 8 THE SECRETARY: Calendar Number 9 1220, by the Committee on Rules, Senate Print 10 7554, an act to amend the Tax Law and the 11 Administrative Code of the City of New York, in 12 relation to extending the sunset provisions 13 relating to real estate investment trusts. 14 ACTING PRESIDENT KUHL: The 15 Secretary will read the last section. 16 THE SECRETARY: Section 5. This 17 act shall take effect immediately. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 55. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 5447 1 Senator Maziarz. 2 SENATOR MAZIARZ: Thank you, Mr. 3 President. 4 Mr. President, at this time, may 5 we please take up Calendar Number 1221. 6 ACTING PRESIDENT KUHL: Secretary 7 will read the title. 8 THE SECRETARY: Calendar Number 9 1221, by Senator Levy, Senate Print 7569, an act 10 to authorize the Roosevelt Union Free School 11 District to finance deficits by the issuance of 12 serial bonds. 13 ACTING PRESIDENT KUHL: The 14 Secretary will read the last section. 15 THE SECRETARY: Section 11. This 16 act shall take effect immediately. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 55. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 Chair recognizes Senator Waldon. 5448 1 SENATOR WALDON: Thank you very 2 much. Mr. President, my colleagues. I 3 respectfully request unanimous consent to be 4 recorded in the yes, the yea, on Calendar 1001. 5 I was out of the chamber at that time. 6 ACTING PRESIDENT KUHL: Senator 7 Waldon, the roll call is closed on that bill, 8 but the record will reflect that had you been in 9 the chamber and cast a vote on Senate Bill 10 2039A, Calendar Number 1001, you would have 11 voted for the bill. 12 SENATOR WALDON: Mr. President, i 13 thank you very much for your consideration. 14 ACTING PRESIDENT KUHL: Senator 15 Nanula. 16 SENATOR NANULA: Mr. President. 17 Thank you. I would like to request unanimous 18 consent to be recorded in the negative on 19 Calendar Number 1220. 20 ACTING PRESIDENT KUHL: Without 21 objection, hearing no objection, Senator Nanula 22 will be recorded in the negative on Calendar 23 Number 1220. 5449 1 ACTING PRESIDENT KUHL: Senator 2 Maziarz, we have some housekeeping. Can we 3 return to motions and resolutions? 4 SENATOR MAZIARZ: Yes, at this 5 time, Mr. President. 6 ACTING PRESIDENT KUHL: We return 7 to motions and resolutions. 8 The chair recognizes Senator 9 Maziarz -- Senator Marcellino. 10 SENATOR MARCELLINO: Thank you, 11 Mr. President. We do look so much alike. 12 Mr. President, on page number 61, 13 I offer the following amendments to Calendar 14 Number 1073, Senate Print Number 4604B, and ask 15 that said bill retain its place on Third Reading 16 Calendar. 17 ACTING PRESIDENT KUHL: 18 Amendments to Calendar 1073 are received and 19 adopted. The bill will retain its place on the 20 Third Reading Calendar. 21 Senator Marcellino. 22 SENATOR MARCELLINO: Mr. 23 President, on page number 32, on behalf of 5450 1 Senator Maziarz, I offer the following 2 amendments to Calendar Number 833, Senate Print 3 Number 6440, and ask the bill -- said bill 4 retain its place on the Third Reading Calendar. 5 ACTING PRESIDENT KUHL: 6 Amendments to Calendar Number 833 are received 7 and adopted. The bill will retain its place on 8 the Third Reading Calendar. 9 Senator Maziarz, that completes 10 the housekeeping at the desk. 11 SENATOR MAZIARZ: Thank you, Mr. 12 President. 13 There being no further business, 14 I move that we adjourn until Tuesday, May 21, at 15 3:00 p.m. 16 Mr. President, at this time I'd 17 like that we adjourn in memory of Robert 18 Palmieri, a longstanding staff member of the New 19 York State Senate. 20 ACTING PRESIDENT KUHL: Without 21 objection, the Senate stands adjourned until 22 tomorrow, Tuesday, May 21st at 3:00 p.m. 23 (Whereupon, at 5:10 p.m., the 5451 1 Senate adjourned.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23