Monday, February 24, 1997

1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 February 24, 1997 11 3:01 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR JOHN R. KUHL, JR., Acting President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 24 25 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: The 3 Senate will come to order. All the members will 4 find their places, staff will find their 5 places. Ask all the members and everybody in 6 the chamber to rise and join with me in saying 7 the Pledge of Allegiance to the Flag. 8 (The assemblage repeated the 9 Pledge of Allegiance to the Flag.) 10 I ask all of you to remain 11 standing so the invocation can be delivered 12 today by the Reverend Dr. Evelyn John, Pastor of 13 the New Life Center of Truth of Brooklyn, New 14 York. 15 DR. EVELYN JOHN: Everyone, let us 16 just relax, let go and let God. Let us pray. 17 Loving Father, Almighty God, we 18 give Thee thanks for this day. We give Thee 19 thanks for the opportunity You have given us to 20 serve You in spirit and in truth. We thank You, 21 O God, for this Senate and for giving these, 22 Your children, the opportunity to come together 23 to build a wonderful nation. As I bear them up 24 to You this day in prayers of thanksgiving in my 25 heart, I ask that You take complete control of 1 their mind, body and affairs so as they go about 2 the task that is before them, they will do it 3 for the love of serving their country. So 4 lovingly and trustingly I place this Senate and 5 all who gather here into Your care and keeping 6 nothing that your Holy Spirit is now guiding and 7 directing them to do that which is right and is 8 good that the country and the people they 9 serve. Bless this nation in a special way and 10 fill this nation with Your peace, Your love, 11 Your power. In Jesus' precious name we pray. 12 And together we say amen. 13 ACTING PRESIDENT KUHL: The 14 reading of the Journal. 15 THE SECRETARY: In Senate, 16 Friday, February 21st. The Senate met pursuant 17 to adjournment. The Journal of Thursday, 18 February 20th, was read and approved. On 19 motion, Senate adjourned. 20 ACTING PRESIDENT KUHL: Hearing 21 no objection, the Journal stands approved as 22 read. 23 Presentation of petitions. 24 Messages from the Assembly. 25 Messages from the Governor. 1 Reports of standing committees. 2 Reports of select committees. 3 Communications and reports from 4 state officers. 5 Motions and resolutions. 6 Senator Marcellino. 7 SENATOR MARCELLINO: Mr. 8 President, on behalf of Senator Kuhl, on page 9 number 11, I offer the following amendments to 10 Calendar Number 167, Senate Print Number 545, 11 and ask that said bill retain its place on the 12 Third Reading Calendar. 13 ACTING PRESIDENT KUHL: 14 Amendments to Calendar Number 167 are received 15 and adopted. Bill will retain its place on the 16 Third Reading Calendar. 17 Senator Holland. 18 SENATOR HOLLAND: Mr. President, 19 I ask that you place a sponsor's star on my bill 20 Calendar Number 146, S. 1548. 21 ACTING PRESIDENT KUHL: Calendar 22 Number 146 is starred at the request of the 23 sponsor. 24 Senator Holland. 25 SENATOR HOLLAND: Also for 1 Senator Volker, on page 8, I offer the following 2 amendments to Calendar Number 136, Senate Print 3 Number 396, and ask that the said bill retain 4 its place on the Third Reading Calendar. 5 ACTING PRESIDENT KUHL: 6 Amendments to Calendar Number 136 are received 7 and adopted. The bill will retain its place on 8 the Third Reading Calendar. 9 Senator Skelos. 10 SENATOR SKELOS: Mr. President, 11 on behalf of Senator Bruno, I offer up his 12 privileged resolution and ask that it be read in 13 its entirety and move for its immediate 14 adoption. 15 ACTING PRESIDENT KUHL: Secretary 16 will read the privileged resolution by Senator 17 Bruno in its entirety. 18 THE SECRETARY: By Senator Bruno, 19 Legislative Resolution commending the Montessori 20 Schools upon the occasion of Montessori 21 Education Week to be celebrated February 24 22 through 28, 1997. 23 WHEREAS, it is the sense of this 24 legislative body to recognize and commend those 25 institutions of commitment and high achievement 1 whose purpose and endeavor have been dedicated 2 to the pursuit of excellence in education of the 3 children of this noble Empire State; and 4 WHEREAS, this legislative body is 5 justly proud to honor the Montessori Schools as 6 they celebrate Montessori Education Week on 7 February 24 through 28, 1997, and 8 WHEREAS, there are six Montessori 9 Schools in the Albany area. These schools 10 educate children 3 through 12 years of age; 11 Montessori is the original 12 developmental approach to education employing 13 research-based methods for maximizing each 14 child's potential. Montessori School of Albany, 15 the Montessori Magnet School, Blossom's, 16 Montessori Children's Academy, Montesorri of 17 Niskayuna and Pine Hills Montessori are six of 18 5,000 Montessori Schools nationwide; 19 Montessori Education Week is an 20 annual event designated to promote increased 21 awareness and respect for young children. 22 During this week Montessori children in public 23 and independent schools will discuss the life of 24 Maria Montessori, the first woman physicist - 25 physician/scientist in Italy who developed this 1 method almost one hundred years ago. The 2 children will celebrate in many ways in each 3 school including grandparents visit to 4 Montessori class, cultural fair, alumni reunion, 5 pizza lunch and a visit from La Doctoressa 6 Montessori; and 7 WHEREAS, all schools, private and 8 public, will join in a Peace Play-in at Corning 9 Preserve; 10 Professionals and parents alike 11 claim that the Montessori approach is on the 12 cutting edge of today's school reform movement; 13 multi-age grouping, a rich and extensive 14 curriculum implemented with hands-on materials, 15 cross-discipline learning and case of the global 16 environment are some of the characteristics that 17 make Montessori a special learning experience, 18 and 19 WHEREAS, Montessori schools can 20 be proud of the accomplishments of the 21 educational mission that they have undertaken; 22 the schools are inviting members of the Albany 23 community to join them in taking a first-hand 24 look at the Montessori approach. 25 NOW, THEREFORE, BE IT RESOLVED, 1 that this legislative body pause in its 2 deliberations to commend the Montessori Schools 3 upon the occasion of Montessori Education Week 4 to be celebrated February 24 through 28, 1997, 5 and 6 BE IT FURTHER RESOLVED that 7 copies of this resolution, suitably engrossed, 8 be transmitted to the Montessori School of 9 Albany, the Montessori Magnet School, Blossom's, 10 Montessori Children's Academy, Montessori of 11 Niskayuna and Pine Hills Montessori. 12 ACTING PRESIDENT KUHL: Is there 13 any Senator wishing to speak on the resolution? 14 Hearing none, the question is on 15 the resolution. All those in favor signify by 16 saying aye. 17 (Response of "Aye.") 18 Opposed nay. 19 (There was no response. ) 20 The resolution is adopted. 21 Senator Skelos, that brings us to 22 the calendar. 23 SENATOR SKELOS: Mr. President, 24 at this time if we could take up the 25 non-controversial calendar now that everybody is 1 well rested and in a happy mood. 2 ACTING PRESIDENT KUHL: Secretary 3 will read the non-controversial calendar. 4 THE SECRETARY: Calendar Number 5 93, by Senator Seward, Senate Print 1182, an act 6 to amend the County Law, in relation to 7 establishing county communications systems. 8 SENATOR DOLLINGER: Lay aside. 9 ACTING PRESIDENT KUHL: Lay the 10 bill aside. 11 THE SECRETARY: Calendar Number 12 101, by Senator Saland, Senate Print 673, an act 13 to amend the Criminal Procedure Law and the 14 Family Court Act, in relation to access to 15 records. 16 ACTING PRESIDENT KUHL: Secretary 17 will read the last section. 18 SENATOR PATERSON: Lay aside. 19 ACTING PRESIDENT KUHL: Lay the 20 bill aside. 21 THE SECRETARY: Calendar Number 22 106, by Senator Volker, Senate Print 888, an act 23 to amend the Penal Law, in relation to resisting 24 arrest. 25 SENATOR PATERSON: Lay aside. 1 ACTING PRESIDENT KUHL: Lay the 2 bill aside. 3 THE SECRETARY: Calendar Number 4 112, by Senator Present, Senate Print 535, an 5 act authorizing the Commissioner of General 6 Services to transfer and convey certain state 7 lands. 8 ACTING PRESIDENT KUHL: Secretary 9 will read the last section. 10 THE SECRETARY: Section 4. This 11 act shall take effect immediately. 12 ACTING PRESIDENT KUHL: Call the 13 roll. 14 (The Secretary called the roll. ) 15 THE SECRETARY: Ayes 50. 16 ACTING PRESIDENT KUHL: The bill 17 is passed. 18 THE SECRETARY: Calendar Number 19 138, by Senator Cook, Senate Print 779, an act 20 to amend the General Business Law, in relation 21 to requiring certain notification to callers of 22 contests. 23 ACTING PRESIDENT KUHL: Secretary 24 will read the last section. 25 THE SECRETARY: Section 2. This 1 act shall take effect 180 days. 2 THE SECRETARY: Call the roll. 3 (The Secretary called the roll. ) 4 THE SECRETARY: Ayes 51. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 139, by Senator Velella, Senate Print 1301, an 9 act to amend the General Business Law, in 10 relation to possession of equipment. 11 ACTING PRESIDENT KUHL: Secretary 12 will read the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll. ) 18 THE SECRETARY: Ayes 52. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 140, by Senator Levy, Senate Print 45, an act to 23 amend the Vehicle and Traffic Law, in relation 24 to requiring school bus and other motor vehicle 25 drivers. 1 ACTING PRESIDENT KUHL: Secretary 2 will read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect on the first day of 5 September. 6 ACTING PRESIDENT KUHL: Call the 7 roll. 8 (The Secretary called the roll. ) 9 THE SECRETARY: Ayes 52. 10 ACTING PRESIDENT KUHL: The bill 11 is passed. 12 THE SECRETARY: Calendar Number 13 141, by Senator Skelos, Senate Print 338, an act 14 to amend the Vehicle and Traffic Law, in 15 relation to increasing the period of time during 16 which a driver's license is suspended. 17 ACTING PRESIDENT KUHL: Secretary 18 will read the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect on the first day of 21 November. 22 ACTING PRESIDENT KUHL: Call the 23 roll. 24 (The Secretary called the roll. ) 25 THE SECRETARY: Ayes 52. 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 152, by Senator Levy, Senate Print 597, an act 5 to amend the Vehicle and Traffic Law, in 6 relation to providing for the permanent 7 revocation of a driver's license. 8 ACTING PRESIDENT KUHL: Secretary 9 will read the last section. 10 THE SECRETARY: Section 3. This 11 act shall take effect on the first day of 12 September. 13 ACTING PRESIDENT KUHL: Call the 14 roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Ayes 52. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 160, by Senator Stafford, Senate Print 150, an 21 act to amend the Environmental Conservation Law, 22 in relation to county responsibility. 23 ACTING PRESIDENT KUHL: There's a 24 local fiscal impact note at the desk. Secretary 25 will read the last section. 1 THE SECRETARY: Section 2. This 2 act shall take effect immediately. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 52. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 Senator Skelos, that completes 10 the reading of the non-controversial calendar. 11 SENATOR SKELOS: Mr. President, 12 if we could take up the controversial calendar 13 at this time. 14 ACTING PRESIDENT KUHL: Secretary 15 will read the controversial calendar. 16 THE SECRETARY: Calendar Number 17 93, by Senator Seward, Senate Print 1182, an act 18 to amend the County Law, in relation to 19 establishing county communications systems. 20 SENATOR DOLLINGER: Explanation. 21 ACTING PRESIDENT KUHL: Senator 22 Seward, an explanation of Calendar Number 93 has 23 been requested by Senator Dollinger. 24 SENATOR SEWARD: Certainly, Mr. 25 President. 1 This bill is one that passed this 2 house last year. It provides the authorization 3 for any county that chooses to -- it's a 4 county-by-county home rule situation -- but it 5 authorizes such counties as wish to pursue this 6 to create a district within the county borders 7 to finance the cost of new and improved county 8 communications systems or communications 9 involving other municipalities as well. 10 Basically, the bill sets up an 11 agency to study the need for the improvements or 12 a system. The agency makes recommendations to 13 the county governing board. Public hearings are 14 authorized and required under this legislation 15 to create the district, and once the district is 16 created, there are normal permissive referendum 17 provisions included here that come into play as 18 well. 19 What this bill would do, if a 20 district is created under this bill, would be to 21 have the expenses of these communications 22 systems to be charged to all real property 23 parcels within the district, the same as water 24 and sewer and the other improvement districts 25 that are currently authorized by law. 1 ACTING PRESIDENT KUHL: Senator 2 Dollinger. 3 SENATOR DOLLINGER: Mr. 4 President, will the sponsor yield to just two 5 questions? 6 ACTING PRESIDENT KUHL: Senator 7 Seward, will you yield to two questions from 8 Senator Dollinger? 9 SENATOR SEWARD: Certainly. 10 ACTING PRESIDENT KUHL: Senator 11 yields. 12 SENATOR DOLLINGER: Mr. 13 President, is it the purpose of this bill for 14 those within the scope who contribute to the 911 15 communications system -- I believe it's now 16 financed by real property taxes which means tax 17 exempt properties don't pay. Is it the intent 18 of this bill to set up a system under which 19 tax-exempt properties would make contributions? 20 SENATOR SEWARD: Well, Mr. 21 President and Senator Dollinger, nothing in this 22 bill -- there's nothing in this bill to alter 23 the way that the 911 is currently financed. 24 That's through the access lines on the 25 telephones. 1 This bill is directed toward 2 other forms of a communications system. It 3 could very well involve the communications 4 systems that are tagged to emergency services 5 such as, you know, the radios and that kind of 6 thing that personnel carry and all of those 7 system-related; but to answer your question 8 specifically, we're not looking to alter the 9 means of financing 911. That's taken care of 10 through the telephone access lines. 11 ACTING PRESIDENT KUHL: Senator 12 Dollinger. 13 SENATOR DOLLINGER: Again through 14 you, Mr. President, just to clarify that. All 15 of the costs that this bill is designed to 16 cover, the emergency communications costs, are 17 currently paid for by real property taxes or 18 sales taxes or some revenue-based or wealth 19 based proper financing system. 20 I'm just simply trying to get at 21 the fact that will properties that are currently 22 tax-exempt -- hospitals, schools, churches, will 23 they be contributing to the cost of the 24 maintenance of this under this system? They're 25 now tax-exempt. 1 SENATOR SEWARD: Mr. President, 2 it is true that all parcels within the district 3 would contribute as they do with other special 4 improvement districts that are in the law -- in 5 addition to this one. So, in effect, it would 6 expand the base in terms of those that are - 7 would be contributing for -- toward these county 8 communications systems. 9 SENATOR DOLLINGER: O.K. So again 10 through you, Mr. President. 11 ACTING PRESIDENT KUHL: Senator 12 Seward, do you continue to yield? 13 SENATOR SEWARD: Yes, I do. 14 ACTING PRESIDENT KUHL: Senator 15 continues to yield. 16 SENATOR DOLLINGER: Just so I 17 understand it, the tax-exempt entities that 18 would not have to pay property tax to finance 19 this venture would now have to make contribu 20 tions based on some kind of use-related formula 21 or some type of calculation, and I'm just 22 interested in how you calculate that. 23 SENATOR SEWARD: Well, Mr. 24 President, that, in the event -- that is true. 25 As they do with other special improvement 1 districts currently. There is no distinction 2 between tax-exempt and non-exempt properties in 3 those other improvement districts, nor would 4 there be under this legislation in those 5 counties that, after the public hearing and the 6 permissive referendum, all those counties that 7 choose to pursue this option. 8 We're merely trying to provide 9 the counties with an additional option for 10 financing in some cases fairly expensive 11 communications systems which benefit all people 12 in the county. 13 SENATOR DOLLINGER: Again through 14 you, Mr. President: Just how under this bill or 15 is it left to the counties to choose to exercise 16 their prerogatives under this bill? How do you 17 calculate what the users or the subscribers or 18 the payors -- how much they pay into this pool 19 of funds? 20 SENATOR SEWARD: Well, Mr. 21 President, I -- we really didn't get into that 22 kind of detail on a statewide basis. That would 23 depend on local situations, local expenses, all 24 of those -- all those local factors. I really 25 couldn't respond to that type of question. 1 ACTING PRESIDENT KUHL: Senator 2 Dollinger. 3 SENATOR DOLLINGER: Again through 4 you, Mr. President, so it's up to the local 5 counties how they would apportion the cost 6 between what would currently be tax-exempt 7 entities and current entities that pay real 8 property tax such as homeowners and others. 9 SENATOR SEWARD: That's -- that 10 is basically true, yes. 11 SENATOR DOLLINGER: O.K. Just one 12 other question, Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Seward, do you continue to yield? 15 SENATOR SEWARD: Yes, I do. 16 ACTING PRESIDENT KUHL: Senator 17 continues to yield. 18 SENATOR DOLLINGER: As a 19 practical consequence of going to a charge-back 20 system or usage system as envisioned by this 21 bill and relieving the real property taxpayer 22 from it, aren't you in essence losing what could 23 be the federal subsidy because his property 24 taxes are deductible on your federal income tax 25 return and charges that you pay for water and 1 other services like trash collection, for 2 example, are not deductible? Does this bill 3 intend that the federal government's 4 contribution through tax deductions would be 5 lost for this kind of service? 6 SENATOR SEWARD: Well, it's 7 certainly not the intent of this piece of 8 legislation, Senator and Mr. President. It's - 9 it's the intent of this legislation simply to 10 provide another option to the counties to meet 11 the expenses of these communication systems. 12 The type of questions you're raising or the pros 13 and cons of -- that you are raising in this 14 debate, I think, are very legitimate questions 15 which should be raised at the county level in 16 any county that wishes to pursue a countywide 17 communication district under the -- under this 18 legislation. We're merely attempting to provide 19 that option. 20 SENATOR DOLLINGER: Thank you, 21 Mr. President. 22 I -- just on the bill. I 23 appreciate the -- (talking over). 24 ACTING PRESIDENT KUHL: Senator 25 Dollinger, on the bill. 1 SENATOR DOLLINGER: -- Chairman 2 of the Energy and Telecommunications Committee 3 answering my questions. 4 I voted for this bill before. 5 I'm going to vote for it today. (Background 6 noise) It doesn't change the tax-exempt 7 contributions to special districts. It provides 8 an additional option. I agree with you, 9 Senator, that in some of the negotiations with 10 the Assembly on this, if we want to flesh these 11 things out we may want to give the county 12 greater direction as to those counties that are 13 paying real property taxes to finance these and 14 those that aren't. I understand the system of 15 turning what is now a common charge raised by 16 real property taxes into a user fee. How you 17 proportion those, I think, those may be some 18 real tough issues for our counties. 19 I'm also concerned that, as we 20 shift them from tax base into user fees, we tend 21 to lose the federal subsidy that comes through 22 federal tax deductions, but I'll leave that to 23 the counties, Mr. President. 24 I appreciate the answers to the 25 questions. I'll be voting in favor. 1 ACTING PRESIDENT KUHL: Does any 2 other Senator wish to speak on the bill? 3 Hearing none, the Secretary will read the last 4 section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the first day of 7 January. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 53. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 101, by Senator Saland, Senate Print 673, an act 16 to amend the Criminal Procedure Law and the 17 Family Court Act, in relation to access to 18 records. 19 SENATOR MONTGOMERY: 20 Explanation. 21 ACTING PRESIDENT KUHL: Senator 22 Saland, an explanation of Calendar Number 101 23 has been requested by Senator Montgomery. 24 SENATOR SALAND: Thank you, Mr. 25 President. 1 Mr. President, this is a bill 2 which we had the opportunity to entertain last 3 year, and it passed unanimously at that time. 4 What this bill does is, it says 5 in certain carefully proscribed cases where, 6 under the Family Court Act or the CPL, the 7 Criminal Procedure Law, there are certain types 8 of records which would be sealed primarily for 9 YOs, PINS or JDs, where the Crime Victims Board 10 is in the midst of an investigation or commences 11 an investigation and believes that it's relevant 12 that they have access to those records for 13 purposes of really determining whether, in fact, 14 the victim -- the position of the victim can be 15 verified so that the victim can be compensated, 16 they would be able to access those records, 17 access them with the idea that they'd be 18 accessed only for purposes of their crime 19 victims hearing, that the records would remain 20 confidential and would be otherwise sealed. 21 ACTING PRESIDENT KUHL: Senator 22 Montgomery. 23 SENATOR MONTGOMERY: Yes, 24 Senator. 25 Mr. President, I wonder if the 1 sponsor would answer a question that I have? 2 SENATOR SALAND: Yes. 3 ACTING PRESIDENT KUHL: Senator 4 Saland, do you yield? 5 SENATOR SALAND: Yes. 6 ACTING PRESIDENT KUHL: Senator 7 yields. 8 SENATOR MONTGOMERY: The purpose 9 of sealing those records, especially in the 10 Family Court proceedings, what is the purpose of 11 that? 12 SENATOR SALAND: Well, the 13 records are sealed as a matter of law because of 14 the age of the assailant or the party who may 15 have been charged -- who was charged with what 16 would otherwise have been a crime. 17 Again, this is not in any way, 18 shape or form intended somehow or other to 19 further complicate the proceeding or to impose 20 any additional burdens on the person who was the 21 respondent or the defendant. What it attempts 22 to do is to say that where someone has been a 23 victim of a crime, can then make application to 24 the Crime Victims Board and they're then seeking 25 compensation and if there is the necessity of 1 that board in order to establish the veracity of 2 the claim, they would be able to access records 3 that would otherwise be sealed, things such as 4 perhaps whether, in fact, the victim contributed 5 to his or her own situation, things that might 6 not be readily ascertainable unless there was 7 some individual way of -- some other way of 8 verifying the allegations of the person 9 appearing before it, i.e., the victim, the Crime 10 Victims Board. 11 This does not throw the records 12 open to the public. It does not invite anybody 13 else to look at the records. The language in 14 the bill is clear that the records remain 15 otherwise confidential and they would not be 16 accessed by any other entity or agency. 17 SENATOR MONTGOMERY: I see. 18 There -- Senator Saland, does the -- the person 19 who is opening the records, there is no other - 20 two questions. There is no other way for the 21 Crime Victims Board to get the information that 22 you are seeking here and, two, are those records 23 then resealed under the same circumstances that 24 they were sealed in the first place? 25 SENATOR SALAND: Yes, they would 1 be. To answer your second question first, the 2 records would again be resealed and remain 3 confidential, and this is not the intention of 4 automatic -- this is not done automatically in 5 each and every case involving a person who would 6 otherwise be the beneficiary of a sealed record 7 to invite the Crime Victims Board to immediately 8 go to that record. 9 This is basically intended to 10 deal with those cases where there has been 11 someone who has been victimized, allegating that 12 he or she has been victimized, and there has to 13 be some way of corroborating and there is no 14 other way of corroborating her story, they would 15 then have the ability to access the -- the 16 several categories of records that are listed in 17 this bill and, again, at the point of being 18 terribly redundant, for that limited purpose, 19 and thereafter the records would again be 20 sealed. 21 SENATOR MONTGOMERY: Would have 22 no other way of accessing the information that 23 you're seeking in this bill? 24 SENATOR SALAND: Correct. 25 SENATOR MONTGOMERY: Yes, Mr. 1 President, briefly on the bill. 2 Thank you, Senator Saland, for 3 the explanation. 4 ACTING PRESIDENT KUHL: Senator 5 Montgomery, on the bill. 6 SENATOR MONTGOMERY: Yes. 7 Obviously it's troublesome to have the records 8 of particularly Family Court proceedings 9 unsealed for this purpose. While I certainly 10 agree with the idea that we want to protect as 11 much as possible the rights of the crime victim, 12 it's -- it's still a little troublesome that we 13 are looking to unseal the records particularly 14 of juveniles, young people, for any number of 15 reasons, and that access is becoming more and 16 more a part of all of the legislation that we're 17 passing in this house in particular. 18 And so I'm going to be voting 19 against this bill. I have not voted against it 20 in the past, but based on the fact that we seem 21 to be moving more and more in this direction, 22 that where essentially any young person who has 23 any infraction and goes to Family Court for 24 whatever reason, is subject to have that 25 incident follow that person throughout their 1 lives, and in many, many instances it's going to 2 result in people who eventually mature to the 3 age 30 or 40 and go out looking for other 4 opportunities are going to be cut off at the 5 pass, and so I'm going to just vote no on this 6 piece of legislation. 7 ACTING PRESIDENT KUHL: Is there 8 any other Senator wishing to speak on the bill? 9 Hearing none, the Secretary will read the last 10 section. 11 THE SECRETARY: Section 5. This 12 act shall take effect immediately. 13 ACTING PRESIDENT KUHL: Call the 14 roll. 15 (The Secretary called the roll. ) 16 ACTING PRESIDENT KUHL: Announce 17 the results when tabulated. 18 THE SECRETARY: Those recorded in 19 the negative on Calendar Number 101 are Senators 20 Montgomery and Sampson. Ayes 53, nays 2. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 THE SECRETARY: Calendar number 24 106, by Senator Volker, Senate Print 888, an act 25 to amend the Penal Law, in relation to resisting 1 arrest. 2 SENATOR MONTGOMERY: 3 Explanation. 4 ACTING PRESIDENT KUHL: Senator 5 Volker, an explanation of Calendar Number 106 6 has been requested by Senator Montgomery. 7 SENATOR VOLKER: Mr. President, 8 this is a bill or a type of this bill has been 9 around for some years, and the reason I say "a 10 type of this bill" is that it has been changed 11 somewhat since last year, in fact partly because 12 of the debate on this floor. Senator Waldon and 13 I, last year, as some of you may or may not 14 remember, and Senator Montgomery and I, by the 15 way, had a long discussion about this bill, and 16 it related to the genesis of the bill itself, 17 and to the -- as to how it occurred. 18 Basically what this bill does, 19 and as I said at the time, as I've said at the 20 time, this bill, I think recognizes the real 21 reality of what has been happening in our 22 streets, and that is that the courts and, to a 23 certain extent, the district attorneys have 24 downgraded the penalties for assaults on police 25 officers. 1 There was a little question, to 2 the point now where in order to maintain any 3 kind of assault on a police officer, you have to 4 have a serious injury. You have to have some 5 sort of really substantial injury. We did some 6 records checking, by the way, on assaults on 7 police officers. They're almost never 8 maintained any more. In addition to that, 9 resisting arrest charges are very rarely ever 10 maintained because the initial charge usually is 11 what -- what occurs. 12 What this bill does is, because 13 at the present time any form of resisting arrest 14 is a Class A misdemeanor, whether somebody 15 kicks, punches, swings, runs down the street, 16 whatever they do and hits the police officer, 17 whatever they do, it is a Class A misdemeanor 18 with a maximum of one year in jail. 19 This bill, I think, faces the 20 reality of the streets today and as opposed to 21 last year's bill -- by the way, last year's 22 bill, on the advice of some people from the 23 Assembly, very honestly, we had omitted some of 24 the language that is presently in this bill with 25 the idea that it might have a better chance of 1 passing the Assembly, and last year's bill 2 basically said a person is guilty of assault in 3 the first degree when he commits the crime of 4 assault in the second degree using physical 5 force against the police officer or peace 6 officer. 7 Initially we had used the 8 language which is in this bill by striking, 9 shoving, pushing, kicking, otherwise imposition 10 of physical force. It was told to us by some of 11 the staff people in the Assembly that that would 12 be harder to accept. As Senator Waldon pointed 13 out, he thought that that language, in fact, 14 would -- would be easier to deal with, and in 15 fact would, frankly, enhance the bill. 16 After the bill passed this house 17 last year and we made a yeoman attempt to get 18 the Assembly to negotiate on this sort of bill, 19 we found out that actually the language we had 20 didn't do us any more good than the language we 21 had before so, frankly, we amended the bill this 22 last year and put back in the old language. 23 Basically, though, what it comes 24 down to is that the old form of resisting arrest 25 is still there and that is resisting arrest in 1 the -- in the second degree which means it's a 2 Class A misdemeanor; but what this bill does is 3 to provide that, when you do these things that 4 are listed in the bill, in other words use 5 physical force against a police officer, then 6 the lowest form of felony which is a Class E 7 felony could be put into place. 8 ACTING PRESIDENT KUHL: Senator 9 Leichter? Senator Montgomery, did you have 10 further questions? 11 SENATOR LEICHTER: I'm sorry. 12 SENATOR MONTGOMERY: No, I wanted 13 to speak on the bill. I do not want to ask 14 questions. 15 ACTING PRESIDENT KUHL: I 16 recognized you before Senator Leichter, so if 17 you'd like the floor, the floor is yours. 18 SENATOR MONTGOMERY: Thank you. 19 Senator Volker, could you tell us who would be 20 responsible for -- for making the judgment of 21 the degree of resistance? 22 ACTING PRESIDENT KUHL: Senator 23 Volker, do you yield to a question, number one; 24 did you hear the question, number two? 25 SENATOR VOLKER: Number one, the 1 initial decision would be made by a police 2 officer and, by the way, if it would become a 3 felony. It would become a more serious crime 4 and, therefore, the burden of proof would 5 increase, by the way, and then move more fully 6 to the district attorney's office which is one 7 of the problems here. 8 In New York City, very honestly, 9 misdemeanors are looked at as such a low profile 10 offense as to be almost washed out the window. 11 That's one of the difficulties today in dealing 12 with some of these crimes. You really look at 13 the -- at what's been happening is the 14 protection against law enforcement people has 15 declined dramatically over the last 10 to 15 16 years. In fact, it's my humble opinion it's why 17 we're seeing some of the problems that we are 18 seeing out there in the streets today with 19 resisting arrest and having people seriously 20 hurt because law enforcement officers are being 21 attacked on a regular basis, and they realize 22 that their chances of being protected, 23 unfortunately, by the courts are very slim and 24 in the sort of frustration that is occurring, 25 people are getting hurt, and I think that you 1 know we've got to recognize that somehow we've 2 to protect our law enforcement officers because, 3 in a sense, we're not only protecting them, 4 we're also protecting the people who they're 5 dealing with. 6 I don't think people really 7 understand what's been happening in the 8 streets. We went through this period, by the 9 way, years ago when we went through, back in the 10 late '60s -- and I was -- happened to be out 11 there in those times, and like my kids say, 12 Don't start telling those war stories, but I was 13 assaulted nine times in one year back in 1968. 14 Well, at that time, people didn't 15 pay much attention to that sort of stuff. 16 People hit me over the head with a chair and all 17 sorts of things. I think only one charge ever 18 stuck on any of those because it was considered, 19 well, it was just part of doing business, just 20 -- I heard that, Senator, by the way -- but at 21 any rate, I think what we're trying to do here 22 is that the answer is that these cases obviously 23 would be taken on their merit and you have to 24 prove them and you have to prove that the person 25 did exert physical force and the person would 1 have to be as part of another lawful arrest. 2 SENATOR MONTGOMERY: All right. 3 Thank you, Senator Volker. 4 On the bill, Mr. President. 5 ACTING PRESIDENT KUHL: Senator 6 Montgomery, on the bill. 7 SENATOR MONTGOMERY: I just want 8 to make it, for the record -- want to make it 9 very clear to you, Senator Volker, and to my 10 other colleagues that I have what I consider a 11 very good relationship with the police officers 12 in my district. I meet with them regularly. 13 They meet with community groups and with me. We 14 talk about issues related to youth and youth 15 crime and other kinds of issues, that they are 16 concerned with and that we are mutually 17 concerned about, and so I have every respect and 18 regard for police officers, and they have been 19 most responsive in trying to help solve some of 20 the real difficult issues for my constituents. 21 However, this has not been 22 something that they have zeroed in on, so I must 23 ask them if they feel particularly assaulted by 24 people so that they now want it to be a felony, 25 but, as you know, I have had experience with 1 young people who have been charged with this 2 particular crime, and it is the most common 3 charge that occurs in an arrest, particularly 4 when it's an African-American male. I've said 5 this so many times I feel like a broken record, 6 but it is the truth and it is not always that 7 the police officer has, in fact, been 8 assaulted. That also is the truth, and I think 9 all of us in this room understand that, so I - 10 I can not in good conscience support a measure 11 which will give the police officers who want to 12 use resisting arrest as one of the charges that 13 they sort of routinely set out when they are 14 making an arrest for any reason, to raise that 15 to a Class E felony, whatever Class E felony is 16 going to mean because ultimately they are 17 looking to -- I think one of the bills that you 18 also introduced or that Senator Volker 19 introduced, Mr. President, was that he wants to 20 make two strikes and you're out and two violent 21 felonies and you're out, but all of these add 22 up, and by the time it reaches a point where 23 we're ready to send someone to prison, we have 24 any number of these kinds of charges including 25 this Class E felony where someone had been 1000 1 accused of resisting arrest and that becomes 2 part of the reason they spend 15 to 20 years in 3 prison and, in addition, these civilian 4 complaints against police have more than doubled 5 since 1994 in New York City, and two-thirds of 6 these allegations involve force or abuse of 7 authority, and more than half of the complaints 8 against the police are African-American males. 9 So I think we have to be very, 10 very careful about escalating these kinds of 11 charges. We hope in New York City to begin to 12 deal with the issue of attacks on police but, in 13 addition to that, we want to deal with the flip 14 side of the coin and that is attacks by the 15 police on the people that they are supposed to 16 be protecting, and I don't see this as 17 addressing that; and so, Mr. President, I must 18 continue along with at least ten of my other 19 colleagues who have, year in and year out, voted 20 against this measure. I'm going to join them 21 again this year and vote against this particular 22 bill, and those of my colleagues who have 23 consistently voted against this, I'm just 24 reminding us now, Senator Abate, Senator Connor, 25 Senator Leichter, Senator Markowitz, Senator 1001 1 Mendez, Senator Paterson, Senator Santiago and 2 Senator Smith. We have traditionally voted 3 against that, and my assumption is that we will 4 all be voting against it again this year. 5 Thank you. 6 ACTING PRESIDENT KUHL: Senator 7 Leichter. 8 SENATOR LEICHTER: Yes, Mr. 9 President. If Senator Volker will yield. 10 ACTING PRESIDENT KUHL: Senator 11 Volker, will you yield? Senator yields. 12 SENATOR LEICHTER: We've 13 obviously debated this bill before, but since 14 we're in this phase of the session, we're 15 regurgitating these bills, and we don't seem to 16 have much else to do today, and it does raise, I 17 think, important issues. 18 Frankly, I'm somewhat puzzled by 19 the bill. I'm puzzled also by your explanation, 20 but the one thing that I just want to clarify is 21 if now somebody goes and punches a police 22 officer, whether in the course of an arrest or 23 otherwise it takes place, that can constitute an 24 assault, can it not? 25 SENATOR VOLKER: Sure. 1002 1 SENATOR LEICHTER: And it could 2 be a felony, is it not? It could be? 3 SENATOR VOLKER: Punching? No. 4 It would essentially be assault third. 5 SENATOR LEICHTER: Well, it 6 depends how it's done, whether it can be a 7 serious felony. 8 SENATOR VOLKER: Well, you have 9 to have a serious injury. If you punch somebody 10 today, you have to have a serious injury, for 11 assault third. If you're going to ask me if 12 that constitutes resisting arrest, the answer is 13 no. 14 SENATOR LEICHTER: Well, I wasn't 15 going to say it constitutes resisting arrest. 16 Just it constitutes a crime; it constitutes a 17 crime. 18 SENATOR VOLKER: That's right. 19 SENATOR LEICHTER: I think all of 20 us on either side of the aisle are committed to 21 defending police officers when they're carrying 22 out their duties, and we want to facilitate them 23 in carrying out their duties. We want to make 24 sure that we have a bill that, first of all, is 25 tailored to a real crime and, secondly, one that 1003 1 appropriately has in mind the problems that 2 could arise, and that's what I'm really 3 concerned about in this bill. 4 Senator, I understood you to say 5 when you gave the explanation of the bill, you 6 used this word that says it's very rare to have 7 any charge for resisting arrest maintained. 8 SENATOR VOLKER: Absolutely. 9 SENATOR LEICHTER: Right. I'm 10 not so sure that that's the experience in the 11 city of New York. 12 SENATOR VOLKER: It is precisely, 13 it is. You'll find out it is. If you look at 14 the record, what she -- what Senator Montgomery 15 said about maybe some charges being laid, 16 they're almost never maintained. What law 17 enforcement officers tend to do, and it was like 18 -- I'll tell you, when we would chase somebody 19 in a high speed chase, you'd charge them with a 20 dozen red lights and stop signs, and so forth, 21 Senator. It would all get boiled down to the 22 one charge which was reckless driving, and what 23 happens in these cases is traditionally, when 24 they're all pled out which is traditionally what 25 happens, usually only the one charge ends up, 1004 1 and I'm very, very frank with you; this is the 2 way the system works. 3 SENATOR LEICHTER: But, Senator, 4 that's not going to change necessarily as a 5 result of -- (Talking over). 6 ACTING PRESIDENT KUHL: Senator 7 Leichter, excuse me. Are you asking Senator 8 Volker to continue to yield? 9 SENATOR LEICHTER: Yes, I am, 10 through you. 11 ACTING PRESIDENT KUHL: Senator 12 Volker, do you continue to yield? 13 SENATOR LEICHTER: Exactly, 14 Senator, the charges are made. The charges 15 certainly are being made, but in the context of 16 disposing of the case, and there are obviously 17 more serious crimes involved and that's just as 18 likely to happen if you make that a Class E 19 felony. 20 SENATOR VOLKER: You asking me 21 that question? 22 SENATOR LEICHTER: Yes. 23 SENATOR VOLKER: The answer is 24 not exactly, and the reason is we're differen 25 tiating. We're differentiating. That's the 1005 1 Avis answer "not exactly". Hertz -- I'm sorry. 2 You're better at that stuff than I am. 3 What I'm saying to you is, in all 4 honesty, it's kind of almost a shame that we 5 have got to the point where what we're trying to 6 show here is the difference between mere passive 7 resisting arrest, which is -- which is the 8 traditional misdemeanor, and the active physical 9 force against a police officer that would be 10 used in what is -- what would be traditionally 11 known as a real resisting arrest which today 12 would still be a Class A misdemeanor and which, 13 frankly, for the most part has been passed over 14 as nothing that has to be paid much attention 15 to. When you go to a Class E felony, then at 16 least it's something that has to get the 17 attention of the prosecutor and has to be dealt 18 with in a bit of a different manner and at least 19 puts a different light on the individual who has 20 been charged. That doesn't necessarily mean it 21 can be maintained because it has to, as you 22 know, Senator, and as I know, that once you do 23 get to a felony status, the proof that must be 24 maintained is very honestly greater than in a 25 misdemeanor, and I think that's correct and 1006 1 that's the way it should be. 2 SENATOR LEICHTER: Senator, I 3 don't believe that's the law. 4 SENATOR VOLKER: Well, it is. 5 SENATOR LEICHTER: A misdemeanor 6 or felony, you still have to find the person 7 guilty beyond a reasonable doubt. I think the 8 standard of proof for misdemeanor and felony are 9 exactly the same under the law. Now, whether 10 juries and prosecutors are going to look a 11 little differently at it, that may well be but 12 the test is still beyond a reasonable doubt. I 13 think you would agree to that. 14 SENATOR VOLKER: Correct. O.K. 15 SENATOR LEICHTER: I think you're 16 probably correct that insofar as the disposition 17 is concerned that somebody, in addition to 18 whatever the underlying crime is, is charged 19 with a Class E felony, then there may be more 20 chance that either that will be maintained as a 21 separate crime or that in the overall 22 resolution, that will be factored in and that's 23 why I think the definitions are so terribly 24 important, and that's why I'm concerned, because 25 it's in -- in this resurrected version of the 1007 1 original bill, where you say shoving, pushing, 2 kicking. 3 Now, if, let's say, in the course 4 of an arrest, a police officer in the case, 5 let's say, of a civil disobedience, somebody is 6 lying down and the officer picks them up and the 7 person I know strikes out with his leg. Isn't 8 that kicking; is that not kicking? 9 SENATOR VOLKER: Yes. 10 SENATOR LEICHTER: And would that 11 now be a Class E felony under your bill? 12 SENATOR VOLKER: Senator, I mean 13 you know, I think you know what the answer is, 14 and that's why initially we were a little 15 concerned but we're talking about physical force 16 here and, in order to maintain a felony -- and 17 we went through this before -- you obviously 18 know that you have to prove something more 19 substantial, but we're trying to -- Senator, and 20 you know very well that passive versus active is 21 passive versus active, and if a person is lying 22 there flat on the ground and doing nothing and 23 does nothing to disturb the police officer other 24 than -- than say sit there, if they start 25 kicking and shoving and pushing, then that's 1008 1 physical force and, therefore, that could 2 maintain a felony, that's true. 3 ACTING PRESIDENT KUHL: Senator 4 Leichter. 5 SENATOR LEICHTER: All right, on 6 the bill. 7 ACTING PRESIDENT KUHL: Senator 8 Leichter, on the bill. 9 SENATOR LEICHTER: Mr. President, 10 first of all, I don't believe -- I'm sorry. 11 There was one other question I wanted to ask 12 you. 13 ACTING PRESIDENT KUHL: Senator 14 Volker, do you yield to one more question? 15 SENATOR VOLKER: Yes. 16 ACTING PRESIDENT KUHL: Senator 17 yields. 18 SENATOR LEICHTER: Senator, you 19 said you were having a real problem with 20 assaults on police officers. In the city of New 21 York -- I don't have the statistics -- there are 22 no problems at all, that there have been very, 23 very few incidents. There may have been a couple 24 of incidents this year where people threw 25 bottles at police officers, so on. I'm not even 1009 1 sure -- well, that wouldn't be covered because 2 yours is -- yours is in the context of resisting 3 arrest. 4 SENATOR VOLKER: Right. 5 SENATOR LEICHTER: And that's 6 probably already a crime, but I know really of 7 no case where there's been the sort of notorious 8 act against a police officer either by a group 9 or by an individual, just not a problem in the 10 city of New York. May have been in the '60s, I 11 think there was more of a problem. Is there a 12 problem in Buffalo? 13 SENATOR VOLKER: Senator, I'll 14 bet you there is an assault on a police officer 15 every single night in New York City but because 16 you don't hear about them, because, Senator, 17 it's become so normal and so part of the police 18 officer's every day agenda unfortunately, that 19 you don't even hear about it. 20 I have heard prosecutors and I've 21 heard judges say to me, Well, Senator, come on, 22 hitting a police officer has become part of our 23 culture. I mean it -- this is true. I have - 24 this is what they have to expect as part of the 25 system, getting a little beat up. You didn't 1010 1 get hurt too bad; he didn't show any real 2 scars. 3 I mean, Senator, it goes on, on a 4 regular basis and it's no secret that maintain 5 ing an assault charge today -- and this is - 6 this bill didn't come out of Buffalo; it came 7 out of law enforcement people. Primarily it 8 came out of Long Island people who were talking 9 about rather gross cases of police officers that 10 were kicked, on the ground, lying on the ground, 11 ended up in an assault third plea, and one of 12 the things that was said at the time is, well, 13 you couldn't really charge them with resisting 14 arrest because you never really arrested them. 15 You were beat up and you were there, but you 16 never really arrested them. 17 So I think, Senator, I must say 18 to you in that, I understand and I'm not telling 19 you that law enforcement officers are perfect. 20 I'm not telling you the system is perfect but, 21 Senator, let's not -- let's not kid ourselves, 22 it is still darned tough out there on the 23 streets. It is a tough time. 24 SENATOR LEICHTER: Mr. President, 25 Senator Volker, if you would yield, I never 1011 1 really got an answer to my last question. Do 2 you have any statistics, I mean other than these 3 anecdotal stories that you're telling us? 4 SENATOR VOLKER: Senator, the 5 problem is that we have a lot of statistics. We 6 can reach back into assault charges, if you want 7 to really look 'em up. How many convictions? 8 Very, very, very few, and that's my point. 9 SENATOR LEICHTER: How many - 10 you said it -- how many instances where the 11 police in the courts, on arrest, said, "I was 12 assaulted?" 13 SENATOR VOLKER: We have -- they 14 are so frequent we really have -- we really do 15 not know for sure, but we know it happens very, 16 very frequently. 17 SENATOR LEICHTER: But you have 18 no statistics. 19 SENATOR VOLKER: Senator, there 20 are no regular statistics. 21 SENATOR LEICHTER: Mr. President, 22 thank you. Thank you, Senator Volker. 23 I must say I have difficulty 24 seeing the need and reason for this bill. I'm 25 sorry, Senator Volker. I know you believe what 1012 1 you're saying, but I believe you're wrong, and I 2 believe what's telling is that you have no 3 statistics. 4 I don't believe it's a problem 5 that police officers are getting assaulted in 6 the course of making an arrest, and I will 7 further say that, if that happens, my 8 experience, my knowledge, police officers will 9 record that, and charges will be made. Records 10 will be kept. If it's a problem, the statistics 11 must be there. If the statistics are not there, 12 it's because as I maintain there is really no 13 problem that would -- that we have. 14 Furthermore, if, as you gave a 15 case for somebody in Long Island, you said that 16 they were being assaulted, but they were never 17 charged because there was no arrest. Well, that 18 would have been the same thing, would hold true 19 under your bill, but I can't believe, Senator, 20 that people were being assaulted in this fashion 21 and that no charges were made and, if there was 22 no conviction, it may be that there was some 23 reason that the jury or the jury found that a 24 crime had not been committed, but that's not 25 going to be solved by your bill because your 1013 1 bill, of course, requires an arrest. 2 I think the difficulty with this 3 bill is, if you take a look at the language, it 4 opens up, I think, a great deal of false charges 5 or people being charged with a felony that 6 really what they did was very moderate and can 7 be treated under the current law which is a 8 misdemeanor. 9 Police officer puts his hand on 10 somebody, maybe perfectly proper, and says, 11 "You're under arrest," the person pushes his 12 hand away, you're going to make that a class E 13 felony? That's what it would be under your 14 bill. 15 Somebody is lying down in a civil 16 disobedience, police officers come to pick him 17 up, take his legs, he kicks out his legs, one of 18 those kicks lands in the police officer. You 19 want to make that a class E felony? I think 20 that's unreasonable. 21 So I don't see, one, that we have 22 a need for this bill. If the police officer is 23 assaulted, it's already a crime and it should be 24 a crime. If somebody interferes with an arrest, 25 it's a crime already. It's a misdemeanor, but 1014 1 to make a felony out of some of the things that 2 Senator Volker lists here, which is pushing - 3 you want to make that a Class E felony? 4 Kicking, shoving -- shoving is going to become a 5 Class E felony? I think it's unreasonable. 6 I would hope, Senator Volker, 7 that -- I didn't vote for last year's bill but 8 at least I think it was directed and in a way so 9 at least we were dealing with some serious acts 10 of force against a police officer. These acts, 11 as you have enumerated them, are not serious 12 acts of force that ought to be considered a 13 felony. 14 ACTING PRESIDENT KUHL: Senator 15 Abate, did you wish to be recognized? 16 SENATOR ABATE: Yes, on the 17 bill. 18 ACTING PRESIDENT KUHL: Senator 19 Abate, on the bill. 20 SENATOR ABATE: I agree with 21 Senator Volker, and I agree with Senator 22 Leichter for different reasons. I do think that 23 officers are being assaulted every day, and we 24 need to take seriously the assault on the 25 officers, and we should look at the assault 1015 1 language to find out whether we talked about it 2 last year with domestic violence and whether it 3 applies with officers. We need to look at 4 whether the threshold is too high to charge 5 simple assault, and look at what is needed for a 6 serious physical injury in terms of defining 7 that. We should do it as we discussed last 8 year, from the angle of domestic violence and 9 maybe look at assault on police officers. Let's 10 do that because that's what we really need to 11 punish individuals is when they assault 12 officers. 13 My concern, and why I opposed 14 this bill last year is that definition. This 15 bill does not do that. This bill talks about 16 the difference between passive and aggressive 17 resisting arrest, and I suggest there are very 18 few occasions where there'll be passive 19 resisting arrest. I mean it's -- it's against 20 the definition of resisting arrest. If you 21 resist, there's some part of your body, whether 22 it's the shoving or the pushing, that does not 23 equal physical injury that will be involved, so 24 just about every crime of resisting arrest will 25 become a felony, and I do not believe that 1016 1 that's what's intended. 2 We want to prosecute defendants 3 vigorously and strongly when they assault 4 officers. Let's make it easier for prosecutors 5 to meet that burden. Let's draft that 6 legislation. That's not what is before us. 7 This is legislation that says 8 wholesale, although I know Senator Volker says 9 he doesn't interpret the bill that way, I 10 interpret this bill as saying that all resisting 11 arrests will become a felony. If the courts 12 aren't doing their job, we should get the courts 13 to do it. 14 The scope of punishment for 15 resisting arrest is a year in jail. That is not 16 something we should take lightly. If they 17 assault as well as resist arrest, they're going 18 to be faced with a felony as well as a 19 misdemeanor, and they should be doing 20 substantial time. 21 So our focus, I believe, is 22 misplaced. Let's amend the assault law. Let's 23 prosecute vigorously assaults on police officers 24 and there's enough scope of punishment within 25 resisting arrest. I believe the language in 1017 1 this bill is much too broad, and I think it 2 would be leading to abuse of discretion. 3 ACTING PRESIDENT KUHL: Senator 4 Gold. 5 SENATOR GOLD: Thank you, Mr. 6 President. 7 Mr. President, first of all, just 8 to answer something that my distinguished 9 colleague from Brooklyn said, and when she said 10 that's why there are people in there for 15 and 11 20 years. 12 Senator, I think one of the 13 incidents which upset everybody last year was 14 when there was an arrest in Queens in a murder 15 case and we found out the person had 15 priors, 16 and we got ahold of that record to try to figure 17 out how you get 15 priors and, as I pointed out 18 on the floor, that wasn't a liberal or 19 conservative issue. That's something that 20 should have outraged everybody; but that has 21 nothing to do with this case. 22 There was a gentleman playing 23 football in the city of New York and the 24 football hit a car and the next thing you know 25 we had a dead young man, and that has nothing to 1018 1 do with this case. The officer has now lost his 2 pension, et cetera, et cetera, and that should 3 have happened, and that was a terrible 4 situation, and that's not this case. 5 It seems to me that there are 6 balances that we deal with all of the time, and 7 I have stood up here proudly with Senator 8 Leichter and Senator Abate and others to fight 9 for a fair trial, for fair treatment of people, 10 for the civil rights of everybody, but when you 11 finish with that, if somebody is convicted you 12 go to jail. That's not conservative, that's not 13 liberal, you go to jail. 14 And there's another concept. 15 There are police who, on certain -- in certain 16 situations, may be wrong in making an arrest, 17 but under our law, if you're getting arrested 18 you get arrested and you're not supposed to 19 inflict damage on a police officer and you're 20 not supposed to resist arrest. You're just not 21 supposed to do it. 22 Now, when Senator Abate says that 23 if you assault a police officer, that's a crime 24 and you can be punished for that and we're 25 taking care of it, that's a different message 1019 1 than saying, in my opinion anyway, in plain 2 English you don't resist arrest and if you do 3 resist arrest and you're punching and kicking or 4 you take the opportunity to do something which 5 could hurt a police officer, you're complicating 6 a felony, that's a different message and I don't 7 see anything wrong with that. 8 When we talk about people who are 9 being civilly disobedient and the image that is 10 around this chamber is that these are not quite 11 your typical criminal, but that in resisting 12 they kick an officer, well, the answer is there 13 aren't any special rules. You may be part of a 14 peaceful demonstration. The minute you kick a 15 police officer, you're doing something wrong. 16 You're not supposed to kick police officers, and 17 I don't think you kick a police officer. If you 18 are a minority child or youngster who committed 19 a robbery, you don't kick a police officer or if 20 you're somebody else who, in every other way, 21 may consider themselves a, quote, "decent 22 citizen", unquote, but you're doing something 23 you think is right so you kick a police 24 officer. 25 So the bottom line of it, I'm not 1020 1 offended by this legislation at all. I'm going 2 to vote for the legislation. I think that if 3 somebody is being arrested, you get arrested, 4 and then I hope all of the rights that I have 5 voted for fall into place and, God willing, the 6 system works, they get acquitted or they get 7 convicted and if they get convicted and they go 8 to jail, they go to jail, and I think that's 9 what makes the system work. 10 I can't understand, to tell you 11 the truth, when I read in the paper of 12 disturbances where you have police officers and 13 undercover officers who get things thrown down 14 on them from building tops in parts of areas in 15 New York City and, if I was in that community 16 and realized that I was now becoming less safe 17 because police officers might not want to be in 18 my community, the community ought to be up in 19 outrage over that. 20 Shouldn't be a question of 21 worrying about the poor misunderstood indi 22 viduals involved. I mean the fact is, I think 23 it was Senator Waldon but I may be wrong, 24 somebody brought up at one of our hearings 25 recently that 7 Assembly Districts in this state 1021 1 suffer 80 percent of juvenile crime. Well, if 2 crime is pretty local -- no, one second. Yeah, 3 I yield. 4 ACTING PRESIDENT KUHL: Senator 5 Leichter, why do you rise? 6 SENATOR LEICHTER: You start off 7 by telling -- (talking over). 8 ACTING PRESIDENT KUHL: Senator 9 Leichter, are you asking Senator Gold to yield 10 to a question. 11 SENATOR LEICHTER: Yes, I am. 12 ACTING PRESIDENT KUHL: Does the 13 Senator yield? 14 SENATOR GOLD: Yes. 15 ACTING PRESIDENT KUHL: Senator 16 yields. 17 SENATOR LEICHTER: Senator, you 18 start off by saying -- and I agree with you - 19 that what this bill is about and what it's not 20 about, and I agree with you it's not about 21 people throwing bottles down from roof tops, and 22 it has nothing to do with this bill. 23 My question to you is - 24 SENATOR GOLD: I don't agree with 25 you. 1022 1 SENATOR LEICHTER: My question to 2 you is, I agree with you that resisting arrest 3 ought to be a crime and you know what? It is a 4 crime. The question is whether in those 5 instances where, whether you're a kid who has 6 been arrested for a robbery or you're a bishop 7 who's been arrested in a civil disobedience, if 8 you push a policeman's hand away, do you want to 9 make that a Class E felony? That's the only 10 issue. 11 We all agree that you can't and 12 you shouldn't resist arrest, so my question to 13 you is, would you, in effect, I think as Senator 14 Abate very correctly pointed out, every instance 15 where there's a resisting arrest make it a Class 16 E felony? Is that your intent? 17 SENATOR GOLD: Maybe, and the 18 answer is to the first part of your question, 19 Senator, where you answered it for yourself and 20 you said throwing bottles down is not part of 21 it. The answer is it is. 22 This bill deals with respect. 23 That's what it deals with. It deals with an 24 issue, in my opinion, as to whether or not a cop 25 should have to walk the streets with an Uzi to 1023 1 get respect or whether the community-at-large 2 ought to respect the fact that we have police 3 officers out there doing a tough job and they 4 need some kind of support, and some things are 5 deterrents, Senator Leichter, some things 6 aren't, and you and I probably agree probably 99 7 percent of the time on what is deterrence and 8 what is nonsense, but I think word gets around 9 and I think that the word in the street ought to 10 be that you do not assault police officers. If 11 a police officer approaches you and you think 12 the policeman is wrong, that's what the court 13 system should be able to help you with, but you 14 don't take it into your own hands. You don't 15 assault police, and you don't resist arrest. 16 Now, I also believe, Senator 17 Leichter, and I say this from someone who has in 18 fact spent a good deal of time in the criminal 19 courts as a lawyer, that the system works its 20 way out. 21 Now, we as legislators don't 22 always like that; so, for example, if you do 23 certain conduct, it's a felony at this level, 24 well, you try to get a conviction at that 25 level. Also, geography plays a part in this. 1024 1 It plays a part in this. 2 I remember a few years back there 3 were two cases I knew about. One was a quantity 4 of marijuana, more than just a cigarette, in the 5 city of New York and one of the judges was 6 furious with the district attorney's office for 7 wasting time, and the other was a single 8 marijuana cigarette in Westchester County, and 9 some judge there was ready to throw the key away 10 for this kid. Now, that's differences within 11 communities in the way things operate. 12 In the criminal justice system in 13 the city of New York, if it was just an arrest, 14 Senator Leichter, you'd be surprised what you 15 can't get a conviction for and what is un 16 fortunately accepted as normal conduct. You 17 wouldn't if you were a judge and I wouldn't, but 18 it's done and all I'm saying is, is this the 19 best piece of legislation I've ever seen on this 20 issue? Who knows? Whoever wrote that 21 legislation, except you and I, got it passed. 22 But, Senator, what it does is, it 23 makes a social statement and that social 24 statement is a simple one. That is that the 25 bill of rights is terrific. People ought to 1025 1 have their rights and be protected, but if you 2 have a police officer on the street and he says, 3 "You're under arrest," by God, you're under 4 arrest and you don't have a right to kick the 5 cop or shove the cop or do any of those things 6 because, Senator, you create a chain and it's 7 not just a question of somebody touches the 8 cop. That is not what happens and you know it's 9 not what happens. 10 If you have the opening, one 11 thing leads to another, and what this bill says 12 is we don't want one thing to lead to another. 13 It's got to stop, and I can support that. 14 ACTING PRESIDENT KUHL: Secretary 15 will read the last section. 16 THE SECRETARY: Section 3. This 17 act shall take effect on the first day of 18 November. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll. ) 22 ACTING PRESIDENT KUHL: Announce 23 the results when tabulated. 24 Senator Abate? 25 SENATOR ABATE: I would like to 1026 1 explain my vote after. 2 ACTING PRESIDENT KUHL: Senator 3 Abate to explain her vote. 4 SENATOR ABATE: The issue is 5 absolutely we should not condone resisting 6 arrest. It should be taken seriously. Many 7 instances defendants should be given a full year 8 in jail, and we should take more seriously than 9 we are assaults on police officers and make it 10 easier for district attorneys to prosecute. 11 This bill doesn't do that. If 12 this bill were to bifurcate, and I hope Senator 13 Volker would look at this -- Senator Volker, I 14 know this is not asking him to yield to a 15 question, but if I could get Senator Volker's 16 ear -- if Senator Volker would look at resisting 17 arrest when it occurs and results in physical 18 injury to a police officer, even though a 19 separate charge of an assault could be brought, 20 if that could be a felony then you know you're 21 taking very serious resisting arrest charges. 22 Make that a felony, and not make all resisting 23 arrests a felony and maybe that would be 24 something that would get broader support. But 25 without those changes, I have to remain 1027 1 opposed. 2 ACTING PRESIDENT KUHL: Senator 3 Abate will be recorded in the negative. 4 Senator Montgomery, to explain 5 her vote. 6 SENATOR MONTGOMERY: Yes, Mr. 7 President, briefly. 8 I reiterate again to my 9 colleagues I think that certainly we want to 10 protect the safety of police officers, and they 11 do a valuable -- let's be very clear that the 12 police -- the police are viewed very differently 13 in the African-American community than they are 14 in the white community. They are viewed as the 15 protectors of the rights of white people. In 16 the black community they are often viewed as 17 occupying the community, and therefore, as the 18 enemy. 19 We are trying desperately, the 20 police themselves and people who live in the 21 black community, are trying to get beyond that 22 perception. We're looking for solutions as to 23 ways in which we can more positively receive and 24 anticipate a relationship between police and the 25 black community. 1028 1 This does not do that. This only 2 arms them with one more level of crime to -- one 3 more type of crime that they can charge a person 4 who is arrested and escalate the level of the 5 possible punishment of that crime, and we know 6 that this is a problem. The police know it, and 7 we know it. 8 We know that in no place in this 9 nation is justice meted out equally to 10 everybody. If you don't have money, if you're a 11 person of color, you are not going to receive 12 the exact same level of justice as you do, and 13 treatment by the justice system, the criminal 14 justice system, as you do if you have money or 15 power and/or if you are not a person of color. 16 So anybody who believes that is totally 17 misinformed, and I can give you reams and reams 18 of stories and examples of people and instances 19 where this is proven to be true, including a 20 report that was done by the New York State 21 Department of Criminal Justice Services. 22 So I am adamantly opposed to 23 this, and I think that we are not targeting 24 people who, in fact, assault police. We are 25 targeting a whole 'nother group of people who 1029 1 are not the violent criminals that we want to 2 certainly deal with appropriately, but this - 3 this targets young people particularly, African 4 American males particularly, who may lash out in 5 an instant of anger. 6 The police understand that, but 7 it's not because they are, in fact, assaulting a 8 policeman. It is not because the policeman is, 9 in fact, injured. It is just because this is a 10 charge that we can level against you and we will 11 punish you. If we can't do a chokehold, we can 12 do an assault charge, and you can still go to 13 prison. 14 So I am adamantly opposed to it. 15 No, no, no, no, no. I hope it never comes back 16 again. 17 Thank you. 18 ACTING PRESIDENT KUHL: Senator 19 Montgomery will be recorded in the negative. 20 Senator Gold, to explain his 21 vote. 22 SENATOR GOLD: Yeah, Mr. 23 President. 24 I don't like to disagree with 25 Senator Montgomery because I have an extra 1030 1 ordinary amount of respect for her, and I do not 2 say that lightly in any respect. 3 But when Senator Leichter asked 4 me a question, I was in the middle of a thought 5 and I didn't finish it and you brought it back 6 to mind. You said to me that in the Afro 7 American community the perception is that the 8 police are occupying the community, and, 9 Senator, I want to spend time and talk to you 10 about that, because I want to figure this thing 11 out. 12 The comment that was made at the 13 hearing was that 80 percent of juvenile crime 14 happens in seven Assembly Districts. Senator, I 15 believe, if you talk about those districts and 16 we talk about a crime bill, you have more of 17 your constituents being victimized by crime than 18 I do, because the constituents in these seven 19 Assembly Districts aren't running into my 20 Assembly District and committing all of that 21 crime, and you and I know the facts on that. 22 They're committing crimes against their own 23 neighbors and in their own communities, and I 24 say to myself, even though they've got all of 25 this crime, the overwhelming number of people in 1031 1 these communities are decent people who need 2 protection, and why are -- why can't we focus or 3 get the communities to understand that the 4 police are there for those people? They're not 5 there to condone the crime; they're there to 6 protect the overwhelming number of people, and 7 minority people, very -- mostly, who are being 8 victimized. 9 Now, every police officer in the 10 city of New York is not a Liboti who kills or is 11 responsible for the death of an Afro-American or 12 a minority. We have a huge amount of the Police 13 Department in the city of New York who are 14 minorities and who work in the minority 15 communities, and I don't know why the minority 16 communities don't accept them as part of the 17 community or that he's being there for a proper 18 purpose and, Senator, if I can help understand 19 it, I want to understand that. I tell you that 20 I have to understand it, but the attitude that 21 they are "occupying" and that they are "the 22 enemy" is exactly what I think this bill tries 23 to relate to, because it's a tough job. I 24 wouldn't want the job, but a police officer 25 ought to be able to do his or her job without an 1032 1 Uzi, without a cannon and to be able to walk 2 around with respect, and I'm going to support 3 the bill. 4 ACTING PRESIDENT KUHL: Announce 5 the results. 6 THE SECRETARY: Those recorded in 7 the negative on Calendar Number 106 are Senators 8 Abate, Connor, Leichter, Markowitz, Montgomery, 9 Paterson, Rosado, Sampson, Santiago, Seabrook 10 and Smith. Ayes 47, nays 11. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 Senator Meier? 14 SENATOR MEIER: Is there any 15 housekeeping at the desk? 16 ACTING PRESIDENT KUHL: We have a 17 report of the Housing Committee. We'd like to 18 take it up, Senator Meier, if we could at this 19 time; so return to the order of reports of 20 standing committees. I'll ask the Secretary to 21 read. 22 THE SECRETARY: Senator Leibell, 23 from the Committee on Housing and Community 24 Development, reports the following bills: 25 Senate Print 2227, by Senator 1033 1 Leibell, an act to amend the Private Housing 2 Finance Law; and 3 Senate Print 2228, by Senator 4 Leibell, an act to amend the Public Housing 5 Law. 6 All bills ordered directly for 7 third reading. 8 ACTING PRESIDENT KUHL: Without 9 objection, all bills are ordered directly to 10 third reading. 11 Senator Meier. 12 SENATOR MEIER: Mr. President, 13 there being no further business, I move we 14 adjourn until Tuesday, February 25th, at 3:00 15 p.m. 16 ACTING PRESIDENT KUHL: Without 17 objection, hearing no objection, Senate stands 18 adjourned until tomorrow, February 25th, at 3:00 19 p.m. 20 (Whereupon at 4:15 p.m., the 21 Senate adjourned. ) 22 23 24 25