Wednesday, April 16, 1997

3027 1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 April 16, 1997 11 11:02 a.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR CARL L. MARCELLINO, Acting President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 24 25 3028 1 P R O C E E D I N G S 2 ACTING PRESIDENT MARCELLINO: The 3 Senate will come to order. Ask everyone present 4 if you will please rise and repeat with me the 5 Pledge of Allegiance. 6 (The assemblage repeated the 7 Pledge of Allegiance to the Flag. ) 8 In the absence of clergy, may we 9 have a moment of silence, please. 10 (A moment of silence was 11 observed. ) 12 Have the reading of the Journal. 13 THE SECRETARY: In Senate, 14 Tuesday, April 15th. The Senate met pursuant to 15 adjournment. The Journal of Monday, April 14th, 16 was read and approved. On motion, Senate 17 adjourned. 18 ACTING PRESIDENT MARCELLINO: 19 Without objection, the Journal stands approved 20 as read. 21 Presentation of petitions. 22 Messages from the Assembly. 23 Messages from the Governor. 24 Reports of standing committees. 25 Reports of select committees. 3029 1 Communications and reports from 2 state officers. 3 Motions and resolutions. The 4 Chair recognizes Senator Tully. 5 SENATOR TULLY: Thank you, Mr. 6 President. On behalf of Senator Lack, please 7 place a sponsor's star on Calendar Number 516. 8 ACTING PRESIDENT MARCELLINO: A 9 sponsor's star will be placed on Calendar Number 10 516. 11 Senator Bruno. 12 SENATOR BRUNO: Mr. President, I 13 believe there is a privileged resolution by 14 Senator DeFrancisco. I would ask that the title 15 be read and that we move for its immediate 16 adoption. 17 ACTING PRESIDENT MARCELLINO: 18 Secretary will read. 19 THE SECRETARY: By Senator 20 DeFrancisco, Legislative Resolution Number 1051, 21 honoring the students of the International 22 Relations Club and 2-D Art Classes at Corcoran 23 High School, Syracuse, for their participation 24 in the 49th Senate District Good News! Good 25 Kids! Youth Responsibility Program. 3030 1 ACTING PRESIDENT MARCELLINO: 2 Senator DeFrancisco. 3 SENATOR DeFRANCISCO: I'm pleased 4 to have the students from the Corcoran High 5 School present here today to honor them by the 6 Senate passing this resolution. 7 As many of you know, we have a 8 program in Onondaga County called the Good News! 9 Good Kids! program. Unfortunately, nowadays we 10 oftentimes only hear about the negative things 11 that students do. Well, this program recognizes 12 good works of students in our community and, in 13 this case, the Corcoran High School has 14 participated for several years in a program that 15 recognizes and tries to help people in an 16 international setting. They raise money and in 17 the course of raising money, they provide good 18 works throughout the world actually, and in this 19 case, this year they raised $10,000 to fund a 20 medicinal herbal garden for the people of Mali, 21 which is a task that is sort of interesting to 22 think that high school students would be in that 23 situation to think about foreign students - 24 foreigners in this type of fashion, raising 25 money and also participating in activities such 3031 1 as this. 2 They have done other projects in 3 the past as well, and I just want to be here to 4 recognize each and every one of them and to let 5 people in our community know that we do have 6 good students and good people doing the right 7 things, and they should be recognized, and I 8 salute all of you for your fine work. 9 ACTING PRESIDENT MARCELLINO: 10 Thank you, Senator. 11 We have a vote on the 12 resolution. All in favor of the resolution 13 signify by saying aye. 14 (Response of "Aye.") 15 Those opposed nay. 16 (There was no response. ) 17 The ayes have it and the 18 resolution is passed. 19 Senator Bruno, with your 20 permission, we have the chaplain from the United 21 States Military Academy who will share the 22 invocation with us. 23 SENATOR BRUNO: Thank you, Mr. 24 President. 25 ACTING PRESIDENT MARCELLINO: 3032 1 Thank you. 2 CHAPLAIN FRITTS: Would you 3 please join me in prayer. 4 Our Heavenly Father, as we gather 5 today to recognize the United States Military 6 Academy, we first of all recognize You as the 7 source of all good things. Praise God from Whom 8 all blessings flow. Our Father, thank You for 9 our great nation, for our freedom and 10 prosperity. Thank You, Lord, for all who lead 11 our nation and for all who serve as leaders of 12 this great state. Thank You for our Military 13 Academy. May we all continue to prove ourselves 14 true to our mission and faithful in our 15 calling. By Your grace enable us to show 16 ourselves worthy of whatever honors we receive 17 and, in Your great goodness, bless us and make 18 us a blessing. We pray all this in Your holy 19 name. Amen. 20 ACTING PRESIDENT MARCELLINO: 21 Thank you very much. 22 Senator Bruno. 23 SENATOR BRUNO: Mr. President, I 24 believe we have a privileged resolution at the 25 desk. I would like to ask that it be read in 3033 1 its entirety, and call on Senator Larkin. 2 Thank you, Mr. President. 3 ACTING PRESIDENT MARCELLINO: 4 Secretary will read Privileged Resolution 1049, 5 by Senator Larkin. 6 THE SECRETARY: By Senator 7 Larkin, Legislative Resolution Number 1049, 8 memorializing Governor George E. Pataki to 9 proclaim April 16, 1997 as West Point Day in New 10 York State. 11 WHEREAS, this legislative body is 12 justly proud to celebrate the establishment of 13 the United States Military Academy at West Point 14 and to call upon Governor George E. Pataki to 15 proclaim April 16, 1997 as West Point Day in New 16 York State, and 17 WHEREAS, by an act of Congress on 18 March 16, 1802, the United States Military 19 Academy was established within the borders of 20 New York State on the banks of the Hudson River; 21 and 22 WHEREAS, the Academy and its 23 graduates are an integral part of the proud 24 history of this state and nation; and 25 WHEREAS, the leadership and 3034 1 sacrifices of the members of the Long Grey Line 2 have helped this country withstand countless 3 threats to our cherished democratic way of life; 4 Alumni have excelled not only on 5 the battlefield but in many fields of endeavor; 6 The Academy continues to provide 7 our country with able and dedicated future 8 leaders; 9 Its scenic campus is a mecca each 10 year for thousands of visitors from across the 11 state, continent and other countries; 12 The United States Military 13 Academy is in the forefront of our state's 14 outstanding institutions of higher learning; 15 and 16 WHEREAS, 46 years ago the late 17 James T. McNamara, then a member of the New York 18 State Assembly and a member of the Academy's 19 class of 1939, was the author of the state 20 Legislature's first West Point Day Resolution, 21 and 22 WHEREAS, for decades our nation 23 has enjoyed the legacy of freedom and the United 24 States Military Academy at West Point has played 25 a vitally significant role in the maintenance of 3035 1 peace and freedom, and 2 WHEREAS, the members of this 3 legislative body are equally as proud to 4 commemorate this event marking April 16th, 1997 5 as West Point Day in New York State, 6 NOW, THEREFORE, BE IT RESOLVED, 7 that this legislative body pause in its 8 deliberations to celebrate the establishment of 9 the United States Military Academy at West Point 10 and to memorialize Governor George E. Pataki to 11 proclaim April 16, 1997 as West Point Day in New 12 York State, and 13 BE IT FURTHER RESOLVED, that a 14 copy of this resolution, suitably engrossed, be 15 transmitted to Governor George E. Pataki. 16 ACTING PRESIDENT MARCELLINO: The 17 Chair recognizes Senator Larkin. 18 SENATOR LARKIN: Joe? 19 SENATOR BRUNO: Mr. President, 20 Senator Larkin, for the moment, is deferring to 21 me, and I thank you for that. 22 I want to add just a welcome to 23 General Daniel Christman, who has joined us here 24 with these cadets from West Point. We are 25 privileged, and we are honored to have you 3036 1 here. General Christman is an example for all 2 the cadets, for all of us, as a person that we 3 can all look to in major accomplishments in his 4 life. Not enough that he gets to be a general 5 in the United States Army out of West Point, he 6 has a Master's in civil engineering, in public 7 affairs, I believe from Princeton, and he has a 8 law degree, George Washington University - 9 academically very impressive. But what is most 10 impressive is that he followed, as many of these 11 cadets will, Generals like Patton, Pershing, 12 MacArthur, Eisenhower, Schwartzkopf, who have 13 distinguished themselves as representatives of 14 the free world throughout the world. 15 So, General, we are honored to 16 have you here and we respect your leadership on 17 behalf of all the people of New York State and 18 the United States, and the example, the 19 leadership, that you provide to the candidates, 20 the cadets that are with you who will some day, 21 one of which may be addressed as General, has 22 accomplished. 23 I want to just take this moment 24 to also welcome and congratulate Bryan Campbell, 25 Cadet who is here who is a constituent of mine, 3037 1 and, General, thank you very much for that, and 2 General Traub is here. And, General, would you 3 stand up? This gentleman is the class of '28. 4 (Applause). 5 Looks as if he's jogging about 6 ten miles a day and still lifting about 210. 7 So we welcome you all here. We 8 truly are honored, and I would like now, Mr. 9 President, to defer to our very distinguished 10 Senator, Colonel Larkin. 11 ACTING PRESIDENT MARCELLINO: 12 Colonel. 13 SENATOR LARKIN: Thank you, Mr. 14 President. 15 It is my honor and privilege to 16 offer before this house the resolution that you 17 heard read recognizing the United States 18 Military Academy at West Point. I am proud to 19 continue in the process that started with a 20 member of the class of 1939 this resolution. 21 I would like to again extend a 22 personal welcome to General Dan Christman, the 23 class of 1965, and his staff and members, the 24 West Point Society. 25 You know, 195 years ago, West 3038 1 Point was chosen to be the home of the Academy. 2 When you think of who's gone there and what they 3 did in their life, Grant, Lee, Eisenhower, 4 Patton, Schwartzkopf, these leaders share in a 5 knowledge that you will, as you go forward not 6 only strengthen the military, but you strengthen 7 the nation and you provide the people of our 8 country with pride and joy because you are the 9 most proud, you are the exceptional, you are 10 screened across the nation and we only accept 11 for service academies the best, the brightest 12 and those who will carry forward. 13 When General -- at that time, 14 excuse me, Colonel Sylvanus Thayer became 15 superintendent at West Point, he was an engineer 16 officer and, you know, it was funny because for 17 a long time he stressed the fact that engineers 18 should be the only persons chosen to be the 19 superintendent, but his actions were in two 20 phases. He wanted to strengthen the academic 21 and he wanted to strengthen the courage and 22 commitment. He was highly decorated, well 23 respected. 24 So when you look at today's 25 position, 195 years later, when you think we are 3039 1 now back to where Sylvanus Thayer was we haven't 2 missed a superintendent, General Christman, who 3 is an engineer officer. 4 General Christman has served in 5 combat in Vietnam; he's had combat engineers, 6 served as an adviser to two chairmen of the 7 Joint Chiefs of Staff. I think one of the 8 things that we look at today is, we have an 9 Academy here that most of us look at and say, 10 you know, West Point is a beautiful place and 11 many of us visit there. As a matter of fact, 12 General, I've heard that some people want to 13 come out and be environmentalists and check the 14 grass on the new golf course. I don't know 15 about that. 16 I'd like to have the cadets, as I 17 introduce you, to please stand. 18 First of all, the distinguished 19 Superintendent of the United States Military 20 Academy, an individual I call a friend, the 21 class of 1965, General Dan Christman. 22 (Applause) 23 We're also very fortunate to have 24 here today with us the Brigade First Captain, 25 Deputy -- he won a promotion too quick I see - 3040 1 Leticia Gasdick from California. (Applause) 2 Cadet Bryan Campbell, from my 3 home town, Troy, New York. (Applause) 4 Cadet Kristen Carlson, from 5 Staten Island. (Applause) 6 Cadet Douglas Chapman, from Great 7 Valley. (Applause) 8 Cadet Aaron Coombs, from 9 Addison. (Applause) 10 Cadet Sean Kilbride, from Garden 11 City. (Applause) 12 Cadet Jeramie D. Fitzgerald, from 13 Amherst. (Applause) 14 Cadet Kirsten Krucker, from 15 Suffern. (Applause) 16 Cadet Jaimie Leonard, from 17 Warwick. (Applause) 18 Cadet James Nati from Pine City. 19 (Applause) 20 Cadet Stephen Rubright, from New 21 York City. (Applause) 22 Cadet Allison Saunders, from New 23 York City. (Applause) 24 Cadet Paul Voelke, from my 25 district, Monroe, New York. (Applause) 3041 1 Cadet Marie Elizabeth Wolff, from 2 Queens. (Applause) 3 Cadet Vasiliki Zorbas, from Bay 4 Side. 5 SENATOR GOLD: That's Queens 6 too. 7 SENATOR LARKIN: Today's cadets, 8 as you view them, represent the bright young 9 people that will lead our nation. We have with 10 us here today first team as we call them. I 11 don't know how many corps we got here, I don't 12 know, you tell them at lunchtime about it but, 13 Mr. President, we must realize that the 14 challenges faced by today's corps of cadets are 15 vastly different than those encountered by many 16 of their predecessors. 17 Today's second lieutenants must 18 know how to move troops and equipment in hours 19 not like it used to take many of us leaders, in 20 months. The cadets sitting here today will be 21 asked to serve their nation in Bosnia, Congo, 22 Europe, the Far East. 23 Today's Army serves not only 24 abroad but here at home, Mr. President. I must 25 report that I'm especially fortunate to 3042 1 represent the region that bears witness every 2 day to what West Point means, not just in our 3 economics. 4 Every day you can see something 5 happening at West Point that has to do with the 6 quality of life in the Hudson Valley. West 7 Point is not an island within New York State. 8 The Long Grey Line participates not only in our 9 economy but in the hearts and souls of our 10 community. The corps brings its daily life to 11 our citizens, whether it's in education, 12 scouting, clean-up, religion, education, 13 training kids from inner cities, they're there 14 day in and day out. 15 Duty, honor -- excuse me, honor, 16 duty and country and a concern for others, Mr. 17 President. It is upon this bedrock of values 18 that each Cadet will build his or her career. 19 It is an unchanging standard that we in New York 20 must strive to embody. It is upon this bedrock 21 that the future leaders of the United States 22 Army will lead soldiers into harm's way if 23 necessary to preserve the freedom on which our 24 nation is founded. 25 We owe a debt of gratitude to the 3043 1 United States Military Academy for bestowing on 2 the state of New York all that is good in our 3 nation. We thank General Christman, his faculty 4 and staff and the corps of cadets for continuing 5 to build on the bedrock that was started on 6 these shores of the Hudson almost two centuries 7 ago. 8 Thank you very much. 9 ACTING PRESIDENT MARCELLINO: 10 We're on the resolution. All in favor signify by 11 saying aye. 12 (Response of "Aye.") 13 All opposed nay. 14 (There was no response. ) 15 The resolution is passed 16 unanimously, and the Chair would like to take 17 this opportunity to welcome the commander and 18 the cadets of the Academy. We wish you well, 19 wish you long life, good health and Godspeed. 20 (Applause) 21 Senator Larkin, would you like to 22 open this resolution up to the entire house? 23 SENATOR LARKIN: I most certainly 24 will. I think it's a privilege, and I would ask 25 that everyone join with me because in signing 3044 1 onto this resolution, you're also saying we 2 thank you for being here and for serving our 3 country. 4 ACTING PRESIDENT MARCELLINO: We 5 will open it up to the entire chamber. Anyone 6 who wishes not to be on it, please notify us. 7 Otherwise everybody will be placed on this 8 resolution. 9 SENATOR BRUNO: I would at this 10 time ask for a Rules Committee meeting in Room 11 328. 12 ACTING PRESIDENT MARCELLINO: 13 There will be an immediate meeting of the Rules 14 Committee in Room 328, an immediate meeting of 15 the Rules Committee in Room 328. 16 Senator Bruno. 17 SENATOR BRUNO: Mr. President, I 18 believe there is another privileged resolution 19 at the desk, by Senator Larkin. I would ask 20 that the title be read and move for its 21 immediate adoption. 22 ACTING PRESIDENT MARCELLINO: We 23 will move Resolution 1050, by Senator Larkin. 24 The Secretary will read the title. 25 THE SECRETARY: By Senator 3045 1 Larkin, Legislative Resolution Number 1050, 2 honoring Edward D. Miller upon the occasion of 3 his retirement after 38 years of dedicated 4 service to the Chase Manhattan Corporation. 5 ACTING PRESIDENT MARCELLINO: 6 Question is on the resolution. All in favor 7 signify by saying aye. 8 (Response of "Aye.") 9 All opposed nay. 10 (There was no response. ) 11 The resolution is passed. 12 SENATOR BRUNO: Mr. President, I 13 believe there is a resolution at the desk, by 14 Senator Rath. I would ask that its title be 15 read, move for its immediate adoption. 16 ACTING PRESIDENT MARCELLINO: 17 Secretary will read the resolution by Senator 18 Rath. 19 THE SECRETARY: By Senator Rath, 20 Legislative Resolution commemorating the 150th 21 Anniversary of Temple Beth El of Greater 22 Buffalo, New York. 23 ACTING PRESIDENT MARCELLINO: 24 Chair recognizes Senator Rath. Excuse me. If we 25 could please have some order in the chamber. I 3046 1 thank you. 2 Senator Rath. 3 SENATOR RATH: Mr. President, I'd 4 like to move for immediate approval. 5 ACTING PRESIDENT MARCELLINO: 6 Question is on the resolution. All in favor 7 signify by saying aye. 8 (Response of "Aye.") 9 All opposed nay. 10 (There was no response. ) 11 The resolution is passed. 12 SENATOR BRUNO: Mr. President, I 13 believe there is another resolution at the desk 14 by Senator Smith. I would ask its title be read 15 and move for its immediate adoption. 16 ACTING PRESIDENT MARCELLINO: 17 Secretary will read Resolution 1052, by Senator 18 Smith. 19 THE SECRETARY: By Senator Smith, 20 Legislative Resolution Number 1052 commemorating 21 the 25th Anniversary of the Rockaway Revue, 22 Inc. 23 ACTING PRESIDENT MARCELLINO: 24 Question is on the resolution. All in favor 25 signify by saying aye. 3047 1 (Response of "Aye.") 2 All opposed nay. 3 (There was no response. ) 4 The ayes have it. The resolution 5 is passed. 6 Senator Bruno, we have a 7 substitution at the desk. Can we take care of 8 that? 9 SENATOR BRUNO: Yes, please do, 10 Mr. President. 11 ACTING PRESIDENT MARCELLINO: 12 Secretary will read. 13 THE SECRETARY: On page 5, 14 Senator Maltese moves to discharge from the 15 Committee on -- excuse me, the Committee on 16 Consumer Protection Assembly Bill Number 3627, 17 and substitute it for the identical Third 18 Reading Calendar 607. 19 ACTING PRESIDENT MARCELLINO: 20 Substitution is made. 21 Senator Bruno, we are at the 22 non-controversial calendar. 23 SENATOR BRUNO: I believe we're 24 ready at this time, Mr. President, for the non 25 controversial calendar. 3048 1 ACTING PRESIDENT MARCELLINO: 2 Secretary will read. 3 THE SECRETARY: On page number 4 22, Calendar Number 318, by Senator DeFrancisco, 5 Senate Print 1939, an act to amend the Parks, 6 Recreation and Historic Preservation Law, in 7 relation to requiring operators. 8 ACTING PRESIDENT MARCELLINO: 9 Read the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect on the 1st day of April. 12 ACTING PRESIDENT MARCELLINO: 13 Call the roll. 14 (The Secretary called the roll. ) 15 THE SECRETARY: Ayes 48, nays 2, 16 Senators Kuhl and Maltese recorded in the 17 negative. 18 ACTING PRESIDENT MARCELLINO: The 19 bill is passed. 20 THE SECRETARY: Calendar Number 21 363, by Senator Cook, Senate Print 722, an act 22 to amend the Executive Law, in relation to 23 reports by registered charitable organizations. 24 ACTING PRESIDENT MARCELLINO: 25 Read the last section. 3049 1 THE SECRETARY: Section 2. This 2 act shall take effect in 90 days. 3 ACTING PRESIDENT MARCELLINO: 4 Call the roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 50. 7 ACTING PRESIDENT MARCELLINO: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 449, by Senator Volker, Senate Print 3456, an 11 act to enact the Criminal Procedure Law Reform 12 Act of 1997. 13 SENATOR PATERSON: Lay aside, 14 please. 15 ACTING PRESIDENT MARCELLINO: Lay 16 the bill aside. 17 THE SECRETARY: Calendar Number 18 455, by member of the Assembly DiNapoli, 19 Assembly Print 5299, an act to amend the 20 Environmental Conservation Law, in relation to 21 the definition of a public body. 22 ACTING PRESIDENT MARCELLINO: 23 Read the last section. 24 THE SECRETARY: Section 2. This 25 act shall take effect immediately. 3050 1 ACTING PRESIDENT MARCELLINO: 2 Call the roll. 3 (The Secretary called the roll. ) 4 THE SECRETARY: Ayes 50. 5 ACTING PRESIDENT MARCELLINO: The 6 bill is passed. 7 THE SECRETARY: Calendar Number 8 458, by Senator Lack, Senate Print 3511-A, an 9 act authorizing the State University of New York 10 to lease and contract for the design. 11 ACTING PRESIDENT MARCELLINO: 12 Read the last section. 13 SENATOR BRUNO: Is there a 14 message at the desk? 15 ACTING PRESIDENT MARCELLINO: 16 There is a message of necessity at the desk. 17 SENATOR BRUNO: I ask the message 18 be read at this time. 19 ACTING PRESIDENT MARCELLINO: 20 Read the message. Move to accept the message. 21 All in favor signify by saying aye. 22 (Response of "Aye.") 23 Opposed nay. 24 (There was no response. ) 25 The message is accepted. 3051 1 Read the last section. 2 THE SECRETARY: Section 5. This 3 act shall take effect immediately. 4 ACTING PRESIDENT MARCELLINO: 5 Call the roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 50. 8 ACTING PRESIDENT MARCELLINO: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 468, by Senator Velella, Senate Print 3883, an 12 act to repeal Section 4227 of the Insurance Law, 13 relating to limitations on new business. 14 ACTING PRESIDENT MARCELLINO: 15 Read the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT MARCELLINO: 19 Call the roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 50. 22 ACTING PRESIDENT MARCELLINO: The 23 bill is passed. 24 THE SECRETARY: Calendar Number 25 470, by Senator Alesi, Senate Print 4012, an act 3052 1 to amend the Insurance Law, in relation to 2 making various technical corrections. 3 ACTING PRESIDENT MARCELLINO: 4 Read the last section. 5 THE SECRETARY: Section 16. This 6 act shall take effect immediately. 7 ACTING PRESIDENT MARCELLINO: 8 Call the roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 50. 11 ACTING PRESIDENT MARCELLINO: The 12 bill is passed. 13 THE SECRETARY: Calendar Number 14 520, by Senator Saland, Senate Print 3791-A. 15 ACTING PRESIDENT MARCELLINO: 16 Excuse me. Gentlemen, ladies, if we could have 17 some order in the house it would be a big help 18 up here. Thank you. I'm sorry. 19 Continue, please. 20 THE SECRETARY: An act to amend 21 the Surrogate's Court Procedure Act, in relation 22 to the advance payment of fees of a guardian ad 23 litem. 24 ACTING PRESIDENT MARCELLINO: 25 Read the last section. 3053 1 THE SECRETARY: Section 3. This 2 act shall take effect immediately. 3 ACTING PRESIDENT MARCELLINO: 4 Call the roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 51. 7 ACTING PRESIDENT MARCELLINO: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 528, by Senator Rath, Senate Print 3641, an act 11 to amend the Real Property Tax Law, and the Real 12 Property Law, in relation to taxation of 13 converted condominium units. 14 ACTING PRESIDENT MARCELLINO: 15 Read the last section. 16 THE SECRETARY: Section 3. This 17 act shall take effect immediately. 18 ACTING PRESIDENT MARCELLINO: 19 Call the roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 51. 22 ACTING PRESIDENT MARCELLINO: The 23 bill is passed. 24 THE SECRETARY: Calendar Number 25 530, by Senator Rath, Senate Print 4054, an act 3054 1 to amend the Village Law, in relation to making 2 technical changes. 3 ACTING PRESIDENT MARCELLINO: 4 Read the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the same date as such 7 chapter. 8 ACTING PRESIDENT MARCELLINO: 9 Call the roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 51. 12 ACTING PRESIDENT MARCELLINO: The 13 bill is passed. 14 THE SECRETARY: Calendar Number 15 592, by Senator Trunzo, Senate Print 4421-A, an 16 act to provide a retirement incentive for 17 certain public employees. 18 ACTING PRESIDENT MARCELLINO: 19 Read the last section. 20 SENATOR BRUNO: Is there a 21 message at the desk? 22 ACTING PRESIDENT MARCELLINO: 23 There is a message of necessity at the desk. 24 SENATOR BRUNO: Move its 25 acceptance. 3055 1 ACTING PRESIDENT MARCELLINO: Move 2 the approval of the message of necessity. All 3 in favor say aye. 4 (Response of "Aye.") 5 Opposed nay. 6 (There was no response.) 7 The ayes have it. The message is 8 approved. Read the last section. 9 THE SECRETARY: Section 2. This 10 act shall take effect immediately. 11 ACTING PRESIDENT MARCELLINO: 12 Call the roll. 13 (The Secretary called the roll. ) 14 THE SECRETARY: Ayes 51. 15 ACTING PRESIDENT MARCELLINO: The 16 bill is passed. 17 Senator Bruno, that completes the 18 controver... the non-controversial calendar. 19 SENATOR BRUNO: Can we at this 20 time, Mr. President, return to the order of 21 standing committees. I believe there is a 22 report from the Rules Committee at the desk. 23 ACTING PRESIDENT MARCELLINO: 24 Secretary will read the report of the Rules 25 Committee. 3056 1 THE SECRETARY: Senator Bruno, 2 from the Committee on Rules, reports the 3 following bill direct to third reading: Senate 4 Print 4119-A, by Senator Velella, an act to 5 amend the Insurance Law. 6 ACTING PRESIDENT MARCELLINO: 7 This bill needs a message. Without objection, 8 we'll move it to the Third Reading Calendar. 9 SENATOR BRUNO: Lay it aside 10 until the message arrives, Mr. President. 11 ACTING PRESIDENT MARCELLINO: Lay 12 the bill aside until we get a message. 13 Senator Meier, why do you rise? 14 SENATOR MEIER: Mr. President, I 15 ask unanimous consent to be recorded in the 16 negative on Calendar 318. 17 ACTING PRESIDENT MARCELLINO: 18 Without objection. 19 Senator Seward. 20 SENATOR SEWARD: Yes, Mr. 21 President. I'd like to place a sponsor's star 22 on Calendar Number 404. 23 ACTING PRESIDENT MARCELLINO: A 24 sponsor's star will be placed on Calendar Number 25 404 at the request of Senator Seward. 3057 1 SENATOR SEWARD: Thank you. 2 ACTING PRESIDENT MARCELLINO: 3 Senator Bruno, may we take up the controversial 4 calendar, please. 5 SENATOR BRUNO: Can we at this 6 time, Mr. President, take up the controversial 7 calendar. 8 ACTING PRESIDENT MARCELLINO: 9 Thank you, sir. Secretary will read Calendar 10 Number 449, Senate Bill Number 3456. 11 THE SECRETARY: On page 28, 12 Calendar Number 449, by Senator Volker, Senate 13 Print 3456, an act to enact the Criminal 14 Procedure Reform Act of 1997. 15 SENATOR DOLLINGER: Explanation. 16 ACTING PRESIDENT MARCELLINO: 17 Senator Volker, an explanation has been 18 requested. 19 SENATOR VOLKER: Mr. President, 20 this is a bill that passed this house 21 unanimously the last two years and passed also, 22 a piece of this passed as part of the Criminal 23 Justice Omnibus Act of 1996, which did not pass 24 unanimously and was voted on 47 to 12 by this 25 house. 3058 1 What this bill involves is that 2 -- it's a comparatively small bill; that is, it 3 is only a three-page bill -- but in all honesty 4 it does have some wide repercussions in dealing 5 with, again, a problem that has been occurring, 6 in all honesty, on a regular basis in this state 7 involving the Court of Appeals and the Appellate 8 Division reinterpreting the law in this state 9 and the Constitution, superseding rulings that 10 have been in place for many, many, many years, 11 allowing criminals to go free in cases that can 12 only be termed as hypertechnical rulings that 13 allow, in effect, clearly guilty defendants to 14 go free. 15 On this floor here earlier this 16 week, we discussed another bill and the saying 17 was that people were frightened that somehow 18 this was going to create some sort of havoc in 19 the criminal justice system. I can assure you 20 that some of the rulings that are being, in 21 effect, changed in this bill involve cases that 22 have created havoc in the criminal justice 23 system, and I suspect very strongly it's partly 24 because the Court of Appeals doesn't completely 25 understand what has been occurring out in the 3059 1 streets of this state, and to a certain extent 2 throughout this country. 3 Now, there are a series of 4 changes that are involved here, but let me just 5 quickly get through them because I went through 6 pages of this sort of thing and ironically 7 though they come down to two very specific 8 areas. 9 One area involves the case called 10 the Ranghele case which is a case that threw out 11 and has thrown out a number of murder cases, 12 frankly, as well as other felony cases, and they 13 relate to the failure to produce pre-trial 14 statements and by no means, by the way, does 15 this bill dramatically change that ruling except 16 what happened here is that the Ranghele case 17 basically said, even if the failure to produce a 18 pre-trial statement as regards a witness did not 19 prejudice the defendant or, in fact, was done 20 inadvertently that after the entire proceeding 21 was done the courts went back and threw the 22 whole proceeding out, the whole trial, because 23 of the fact that the technical rulings of the 24 law were not specifically followed. 25 In the O'Dougherty case, that 3060 1 case involves a section of the law that says 2 that within 15 days or 15 days prior to the 3 arraignment, the prosecutor must offer to the 4 defense the -- his intent to offer statements of 5 identification evidence, or confessions by the 6 defendant. 7 In a number of cases, the 8 prosecutor, in fact, was not even aware of some 9 evidence that later came up either during the 10 trial or afterwards and the prosecutor did 11 inform the defendant -- the defendant, of 12 course, already knew about it because the 13 defendant was involved in the statements and in 14 the identification -- a number of cases were 15 thrown out on that basis. 16 What this bill would say is that 17 the prosecutor must give the defendant 18 reasonable time to review such confessions or 19 whatever is involved, and if necessary adjourn 20 the case to give the defense their opportunity 21 to make sure that the defendant is given his 22 proper -- proper due. 23 Another section of the law that 24 has been, I think, probably one of the most 25 abused by the courts, and I hate to say this but 3061 1 I think it's a fact, was a famous case here in 2 New York which is called People vs. Ricks and 3 Mack, in which prior to the trial and during the 4 process of picking a jury the defendant had been 5 present, but the defense attorney left the 6 defense to the defendant, to leave the room. In 7 fact, a lot of defense attorneys would rather 8 not have the defendants there for the entire 9 process. 10 In any case, two jurors went 11 before the judge and said that they had read 12 some pre-trial publicity and, therefore, didn't 13 feel that they should be jurors. The two were 14 dismissed as jurors. The defense attorney did 15 not object to the fact that the defendant wasn't 16 there. After the whole trial was over, it was 17 used as a means of overturning the entire 18 decision in the murder case. 19 What this bill would say is and 20 would allow the right to be present at all 21 stages of the proceeding is absolutely essential 22 and is sacred but that, if the defense attorney 23 himself, his own -- the person who makes the 24 decision doesn't object, doesn't ask that the 25 defendant be there explicitly, doesn't bring up 3062 1 any kind of objection, and there's no showing of 2 any prejudice -- in this case there was no 3 showing of any prejudice because the jurors were 4 dismissed -- then the trial can obviously 5 proceed and that can't be used as a means of 6 dismissing the case. 7 Another major piece of this would 8 be in identification testimony, and I think this 9 particularly applies to New York City. There 10 have been a number of cases where there have 11 been line-ups and there have been identifica 12 tions by witnesses. By the time the trial comes 13 up, it's years later, two things could occur. 14 One, the defendant very often looks tremendously 15 different, and one of the reasons he looks 16 tremendously different is by deliberation -- by 17 deliberate -- deliberate attempt to do so. 18 The second thing is it's so long 19 in the future that the witness may not actually 20 recognize that person from the time that he 21 actually identified -- he or she identified him 22 in the line-up, so the other -- by the way, the 23 other thing is, and this happens in some of the 24 mob trials, there's threats against the 25 witnesses who are now not really willing to 3063 1 identify the person because they're afraid, by 2 intimidation. 3 All this would say is that it 4 would allow the introduction of evidence by the 5 law enforcement people that that person did 6 identify the defendant as the perpetrator of the 7 crime during a line-up or in a statement or 8 whatever. Of course, the defendant has the 9 right to make all sorts of objections and bring 10 in any kinds of evidence he can to still object 11 to that identification, but the idea here is 12 that -- is not to set the situation up that is 13 so super-technical that, in effect, the 14 defendant can use some sort of vehicle to get 15 out of a conviction even though he's guilty. 16 So basically, and there are a 17 couple of other provisions, one relating to 18 preclusion orders. There has been a very 19 technical decision made that says that the 20 prosecutor can appeal a suppression motion but 21 can't appeal a -- an order, a pre-trial order 22 precluding evidence. It's not in the law; it's 23 just that by court decision this kind of 24 situation has occurred and has allowed clearly 25 guilty defendants to be able to escape justice. 3064 1 So this is a series -- what this 2 sets up is a series of situations where the 3 defendant is not by any means necessarily 4 prejudiced but allows the trial to move ahead 5 without the technical violations that have been 6 created by court statute, and I think levels the 7 playing field in a whole series of these cases. 8 ACTING PRESIDENT MARCELLINO: 9 Senator Waldon. 10 SENATOR WALDON: Senator Volker 11 yield to a question? 12 ACTING PRESIDENT MARCELLINO: 13 Senator Volker, do you yield to Senator Waldon? 14 He yields. 15 SENATOR WALDON: Thank you very 16 much, Mr. President. Thank you, Senator 17 Volker. Senator, the history of this bill is 18 that it was passed in our house. Is there a 19 history of its passing in the Assembly? 20 SENATOR VOLKER: No, although 21 pieces of this bill -- the omnibus act of last 22 year which passed this house, pieces of that 23 bill did pass, and in fact in last year's -- a 24 couple of last year's criminal justice bills 25 there was some pieces of the bill that was part 3065 1 of the Procedure Act of last year, but this bill 2 as such, no, you're right, did not pass the 3 Assembly. 4 SENATOR WALDON: Would the 5 gentleman yield to another question? 6 SENATOR VOLKER: Certainly. 7 ACTING PRESIDENT MARCELLINO: He 8 yields. Before you do, Senator Waldon, please, 9 can we have some quiet and can we keep the door 10 over there closed so we don't hear the noise 11 from the outside. I appreciate that. 12 Senator Waldon. 13 SENATOR WALDON: Senator Volker, 14 it is my understanding that the meaning of the 15 Ranghele decision is that the party who is best 16 able to produce witness statements and to locate 17 and provide evidence regarding the trial is duty 18 bound to do so. Wouldn't this proposal that you 19 are submitting for our consideration remove the 20 burden from the prosecution which could be 21 perhaps characterized as encouraging 22 prosecutorial misconduct? 23 SENATOR VOLKER: No, I don't 24 think so at all. In fact, I -- I know so. We 25 still -- the Ranghele case, well, I explained it 3066 1 to reporters and I know you understand it very 2 well. This bill does not take away the 3 obligation of the prosecutor to provide or to 4 produce pre-trial statements of the witnesses. 5 The problem has been that in a 6 number of cases, the prosecutor was not aware of 7 the pre-trial statements until the trial is in 8 motion or until and, in fact, after the trial is 9 over. Then the question becomes, since it was 10 not through negligence of the prosecutor and in 11 particular, while the trial is in motion, the 12 prosecutor then provides those statements to the 13 defense attorney and gives the defense attorney 14 whatever is necessary for him to be able to 15 prepare his -- to continue to prepare his case, 16 and remember that this would be -- this is the 17 judicial decision would allow the judge to see 18 it. If the judge says, Look, you should have 19 known, and/or it did prejudice the defendant 20 then the case is going to be thrown out. 21 There's nothing in this bill that 22 would not allow that. It's just that we're 23 changing -- in effect, changing the super 24 technical interpretation that Ranghele -- the 25 Ranghele case has developed over the years that 3067 1 basically said that any kind of omission by the 2 prosecutor, even if inadvertent and even though 3 he tries to remedy it, as soon as he is aware of 4 it, is grounds for throwing the case out 5 entirely. 6 SENATOR WALDON: Would the 7 gentleman -- Mr. President, would the gentleman 8 yield again? 9 ACTING PRESIDENT MARCELLINO: 10 Senator, do you yield? 11 SENATOR VOLKER: Yes. 12 ACTING PRESIDENT MARCELLINO: He 13 yields, Senator. 14 SENATOR WALDON: Senator Volker, 15 I'm listening very carefully to what you're 16 saying, and it appears that what you're saying, 17 to my ear, all prosecutors would, under all 18 circumstances, without reservation turn over all 19 evidence to the defense side, but it is my 20 understanding that that has not been the 21 history. 22 Part of it is that our judicial 23 proceeding is a very adversarial process, and 24 people like to win and when one wants to win, 25 sometimes one takes undue advantage of the other 3068 1 and, again, it is my understanding that Ranghele 2 makes it a duty of the prosecutor to turn over 3 the evidence, and this would remove that duty. 4 Am I still unclear following your 5 explanation? 6 SENATOR VOLKER: The duty to turn 7 over the statements is, in fact, there before 8 Ranghele. Ranghele -- what the Ranghele case 9 stood for is an extension of that duty to the 10 point where any kind of omission or any kind of, 11 for instance, in some cases the pre-trial 12 statements were statements that really had 13 nothing to do with the -- ultimately with the 14 resolution of the case and were so minor that 15 the district attorney was not even aware that 16 they were there. 17 Now, to answer your question, by 18 the way, would all prosecutors be totally 19 diligent? Probably not. I think that's true, 20 and that's why this would not overrule their 21 duty. They still have the duty to turn over the 22 statement, and they have the duty to do it as 23 soon as they become aware of it and if, after 24 the trial is over, it's found that they should 25 have been aware of it and they weren't, or they 3069 1 didn't turn over the statements, this -- this 2 provision would not -- would not change the fact 3 that a judge could certainly throw that case out 4 just as it is under Ranghele now. 5 What we're trying to do is give 6 the option where it was a very honest omission 7 and where there was no really prejudice to the 8 case, the determination of no necessarily lack 9 of prejudice, that case could still go on. 10 SENATOR WALDON: Mr. President, 11 would the gentleman yield once again? 12 SENATOR VOLKER: Sure. 13 ACTING PRESIDENT MARCELLINO: The 14 Senator yields, Senator Waldon. 15 SENATOR WALDON: Senator Volker, 16 earlier when you were explaining the bill, if I 17 recall correctly, you mentioned something about 18 the police officers giving witness 19 identification - 20 SENATOR VOLKER: Right. 21 SENATOR WALDON: -- testimony, 22 but under what you're proposing now, wouldn't it 23 change the obligation of the police officer? 24 Wouldn't it allow the police officer greater 25 latitude in presenting evidence on the trial or 3070 1 at the trial that before this time if this were 2 to become law, would be excluded? 3 SENATOR VOLKER: Not really. The 4 only thing that it would do is, on the issue, 5 and I know you're aware of it, the technical 6 nature, and we discussed this at the committee 7 just the other day, the technical nature of 8 line-ups and pre-trial identification and all 9 that sort of thing. What this would do is to 10 cause the possibility that, in certain cases, 11 that testimony could be given as to the fact 12 that the witness who may be -- may not want to 13 testify for, maybe because of coercion or 14 because of the years that have gone by since the 15 case -- since the incident happened, may be 16 unable to identify that person because of a 17 change in the person's features, and so forth, 18 but was able to identify that person clearly in 19 line-ups earlier, that the law enforcement 20 officer can testify only that person did 21 identify the defendant, the person in this case 22 as the person who -- who was identified. 23 Interesting thing about that is 24 it was suggested to me there's a reverse to 25 that. It could also be used, by the way, 3071 1 against the prosecution because you could 2 potentially have a police officer put on the 3 stand to say that that person's identification 4 at the time was of somebody else in the first 5 instance which I think maybe some people didn't 6 think of, which actually could fall on the 7 defense side because right now that would never 8 happen. 9 SENATOR WALDON: Would the 10 gentleman yield again, Mr. President? 11 SENATOR VOLKER: Certainly. 12 ACTING PRESIDENT MARCELLINO: He 13 yields, sir. 14 SENATOR WALDON: I appreciate 15 your patience, Senator Volker. 16 Not related to this proposal but 17 related to this proposal, last year and this 18 year, is it your recollection that the Governor 19 has moved to, with a sharp knife, cut away those 20 monies that traditionally were in the budget for 21 defendants' rights for the legal aid and/or 22 defense counsel for those who are imprisoned or 23 who are arrested and who are indigent to be able 24 to defend themselves while at the same time - 25 while at the very same pregnant moment, putting 3072 1 extremely large sums of money on the 2 prosecutorial side of the budget. 3 SENATOR VOLKER: Senator, I must 4 be honest with you. As you know I am, try to be 5 honest. Two years ago I asked the budget 6 director if there was somewhat of a mistake in 7 the budget because all the funds for prosecution 8 and defense had been initially eliminated. 9 Later some of the funds were restored. The 10 answer is that there were cuts in both the 11 prosecution and the defense. In fact, that has 12 occurred this year. This year there hasn't been 13 as much cutting on the prosecution side as on 14 the defense side, that's true, but as you well 15 know, the Legislature restored virtually all the 16 money on the defense side, so I think the answer 17 is, although there were some cuts in the - 18 certainly cuts in the defense, there were also 19 cuts in the prosecution over the last two years 20 also. 21 SENATOR WALDON: If I may 22 continue, Mr. President, would the gentleman 23 continue to yield? 24 ACTING PRESIDENT MARCELLINO: 25 Senator, do you continue to yield? 3073 1 SENATOR VOLKER: Certainly. 2 ACTING PRESIDENT MARCELLINO: He 3 continues to yield. 4 SENATOR WALDON: Senator Volker, 5 I will trust the advice that I have received. 6 It may not be accurate, and I will share it with 7 you and please correct me if you know better 8 than the advice I have received. It is my 9 understanding from my advisers that the ratio of 10 money that Governor Pataki recommended to us, 11 prosecution side or defense side, previous 12 budget was 60-40. This year it is 80-20, and in 13 previous lines there was greater equity. 14 Certainly those who are unable to 15 afford defense in the history of this country 16 have been afforded every opportunity to defend 17 themselves. Part of the reason that this nation 18 was created was that people were running from 19 the booted heel of those who were in charge and 20 who were the authority and who, with complete 21 abandon, foisted their will on those who were 22 less able to -- than themselves to assume power, 23 but not going back that far as to when the 24 nation was founded, just talking about the last 25 couple of years. 3074 1 Is it your understanding that 2 that is the approximate ratio of the money put 3 on the prosecutors' side versus the defenders' 4 side? 5 SENATOR VOLKER: You're 6 absolutely right, Senator, the 60-40; I don't 7 know about the 80-20 but let me just point out 8 to you something that is not generally known 9 although that 60-40 ratio is the ratio that this 10 Legislature -- Republicans, Democrats, Assembly, 11 Senate -- has generally used as far as direct 12 state money; there is a lot of other money that 13 goes to the defense side, in fact from local 14 governments as well as areas such as IOLA, which 15 is not figured into it, which is a fund that 16 comes from attorney accounts and a lot of that 17 money, most of that money, in fact goes to 18 defense -- defense people. So there is a lot of 19 ways in which -- and that's one of the ways for 20 the establishment of the 60-40, that I often 21 said that there's no -- there's no fund around 22 to support the death penalty but there's big 23 money opposing it and always has been from the 24 private sector and from the local public sector 25 and from all sorts of foundations. 3075 1 You're right that this year the 2 initial Governor's budget has cut back from the 3 60-40, I don't know if it's 80-20, you may be 4 accurate. I don't know, but before this session 5 is over, Senator, I would predict that this 6 ratio would end up generally about what it was 7 in the past. 8 SENATOR WALDON: Would the 9 gentleman continue to yield, Mr. President? 10 ACTING PRESIDENT MARCELLINO: 11 Senator Volker, you continue to yield? 12 SENATOR VOLKER: Yes. 13 SENATOR WALDON: Senator Volker, 14 let me thank you for this colloquy. You and I 15 serve on the same committee, you as the 16 chairman. We have much dialogue about these 17 issues. Our dialogue has never been contentious 18 though philosophically sometimes we are far 19 distant, but we've always, in my opinion, I hope 20 that you will feel the same way or do feel the 21 same, we have always dialogued openly, honestly 22 and for the purpose of trying to find the kernel 23 of truth that allows the state to govern itself 24 better than it's governing itself at the 25 moment. 3076 1 In that regard, are you at all 2 troubled by the overwhelming number of 3 prosecutor-driven proposals which are sent to 4 our committees? By that, I mean we do not often 5 see bills proposed which have as the first 6 consideration the defendants' side, but we see 7 many, many bills originating, perhaps even most 8 of them originating from the Governor's office, 9 with a prosecutorial mentality inherent in the 10 bill. Does that at all trouble you? 11 SENATOR VOLKER: Let me -- let me 12 just say this that no, I'm really not troubled 13 by it. I -- I think, although I sometimes am 14 concerned by, I think the impression that's 15 being made that somehow some of the court cases 16 are really just balancing the equities. I have 17 to tell you something, that -- and I have never 18 been one -- I don't believe I've ever been one 19 that has been a severe critic of the courts 20 although I have to admit to you that there's 21 been some times in the last few years I mean we 22 have late budgets in part here because of the 23 decision by the Court of Appeals that is not 24 well known, the so-called "bankers decision", 25 that sent the process here into chaos and we got 3077 1 to pass two budgets every year now which has 2 been a major decision. The press doesn't 3 understand it; in fact, we don't completely 4 understand it. It changed our process here for 5 a century. You look at these cases, and I think 6 that the most -- the biggest problem with these 7 cases lies not in the fact that they fall so 8 strongly on the defense side, but because they 9 don't deal with justice. In other words, a lot 10 of the cases say, Well, it probably didn't 11 prejudice the defendant, but we're going to 12 throw the case out anyway because they didn't 13 follow this hypertechnical rule. It's not that 14 the real -- the rights to that defendant were 15 prejudiced, in fact so much so that one thing 16 about it, if the rights of the defendant were so 17 prejudiced, actually the Court of Appeals could 18 throw the case out entirely and not even allow 19 appeal in certain cases and there's ways it 20 could be done, but the Court of Appeals, I 21 think, realized that in certain of these cases 22 that what they were doing was making a decision 23 that basically said, even though we knew that 24 this person is guilty, even though the evidence 25 was clear, there was a technical rule that 3078 1 wasn't followed and, therefore, we're going to 2 throw this case out, not thinking of the impact 3 that that case could have on future cases and 4 that's the problem with Ranghele. It has had 5 the impact of allowing hundreds of defendants, 6 because of that super-technical rule to go 7 free. 8 So my response to that is it 9 doesn't trouble me because what really troubles 10 me is that we have embarked on a situation in 11 this state, I think, where if the law is not 12 being followed as such, but what's happening is 13 that it's being interpreted way beyond what this 14 Legislature intended when we passed a whole 15 series of statutes in dealing with the criminal 16 law. 17 Beyond that, by the way, I would 18 be very concerned, and if we go too far, then 19 you will -- then you should be the first one to 20 criticize me, and I should be criticized but I 21 do not believe that any of these provisions in 22 here goes beyond the bounds of justice for both 23 the defense and the prosecution. 24 SENATOR WALDON: Thank you very 25 much, Senator. 3079 1 If I may, Mr. President, on the 2 bill. 3 ACTING PRESIDENT MARCELLINO: 4 Senator Waldon, on the bill, please. 5 SENATOR WALDON: I respectfully 6 disagree with Senator Volker. I think that if 7 we were to change the guarantees of the Ranghele 8 case that we are creating a serious problem for 9 ourselves. It is very clear now what can and 10 cannot be done in these evidentiary situations. 11 Why make murky waters - 12 ACTING PRESIDENT MARCELLINO: 13 Senator, excuse me. Ladies and gentlemen, if we 14 could please have some quiet so we can hear the 15 Senator. I thank you. 16 Senator? 17 SENATOR WALDON: Why make murky 18 waters of crystal clear judicial streams? I 19 think we ought to leave Ranghele where it is. 20 If a defendant does not make certain 21 protestations during trial, now he can appeal. 22 I believe, under this proposal he loses that 23 right. Again, why muddy the waters which are 24 clear? 25 But I think the cogent thing that 3080 1 Senator Volker said which should really cause us 2 to think is that the judges are, and I'm 3 paraphrasing and I apologize if I'm not as 4 accurate as he was in his description, the 5 judges are going beyond the letter of the law in 6 their interpretation, but it is my 7 understanding, my brothers and sisters, in fact, 8 that that is their right, that this nation was 9 founded on separation of powers. 10 We have the executive branch, the 11 legislative branch and the judicial branch and 12 the balance of peer has to be kept separate and 13 apart and the judiciary, the judicial, the 14 judges, the justices have a right to interpret, 15 I think if you're familiar with that, we're 16 creating problems for ourselves and even though 17 I previously voted for this, I was wrong. I was 18 in error. I did not sufficiently do my home work 19 and read as carefully as I should have what 20 we've been given today to consider. I did not 21 get proper advice before this year. This 22 session I have. I did not read carefully 23 between the lines before. This year I have, and 24 I see a danger in what's being submitted for our 25 consideration, and I see a stop sign on the road 3081 1 that we're traveling which says, let's 2 reconsider this proposal. 3 I think it's time for us to take 4 a very strong stand against this and I would 5 encourage anyone within sound of my voice to 6 review before the debate is over, this bill and 7 to consider voting against this bill. Recognize 8 also that Senator Volker did respond when I said 9 what was the action taken in the Assembly and it 10 turned out no action was taken. That should 11 cause us to pause and to think. 12 This is a one-house bill. It's 13 part of the criminal justice package of the 14 Governor. If I did not know better, I would 15 think that prosecutors were drafting this and 16 submitting it for our consideration. So I 17 encourage all of you to vote no on this 18 proposal. 19 I thank Senator Volker, and I 20 thank you very much, Mr. President. 21 ACTING PRESIDENT MARCELLINO: 22 Senator Gentile. 23 SENATOR GENTILE: Mr. President, 24 on the bill. 25 ACTING PRESIDENT MARCELLINO: 3082 1 Senator Gentile, on the bill. 2 SENATOR GENTILE: I speak from 3 experience as a prosecutor on this bill and the 4 prosecutors in this state under the decision of 5 the People v. Rosario, still have an obligation 6 to produce statements of witnesses prior to 7 beginning of a trial. That -- that obligation 8 remains. As soon as a witness' statement - 9 ACTING PRESIDENT MARCELLINO: 10 Senator Gentile. Senator Skelos, why do you 11 rise? 12 SENATOR SKELOS: If I could just 13 interrupt for a moment to have the last section 14 read for the purposes of Senator Leichter 15 voting. 16 ACTING PRESIDENT MARCELLINO: 17 Secretary will read. 18 THE SECRETARY: Section 10. This 19 act shall take effect immediately. 20 ACTING PRESIDENT MARCELLINO: 21 Call the roll. 22 (The Secretary called the roll. ) 23 ACTING PRESIDENT MARCELLINO: 24 Senator Leichter, how do you vote? 25 SENATOR LEICHTER: No. 3083 1 ACTING PRESIDENT MARCELLINO: 2 Senator Leichter will be recorded in the 3 negative. Withdraw the roll call. Senator 4 Gentile. 5 SENATOR GENTILE: Thank you, Mr. 6 President. 7 As I was saying, under the People 8 v. Rosario, prosecutors still have an obligation 9 to make known and produce statements of 10 witnesses when they become available or known to 11 the prosecutor or should have known -- should 12 have been known to the prosecutor. That 13 requirement still stands. The obligation under 14 United States vs. Brady, the Supreme Court 15 decision requires a prosecutor to produce any 16 exculpatory evidence upon its discovery, 17 immediately upon its discovery. That's still an 18 obligation of a prosecutor. 19 So the prosecutor is not running 20 wild in a situation like this. Under People v. 21 Ranghele what has happened is that this 22 requirement has been carried to the extent 23 whereby if, for example, a witness were to have 24 an entry in a diary and that diary were not 25 known to a prosecutor and an entry relating to 3084 1 something in the case, at any time after the 2 trial, if that entry were made known, that would 3 be, under Rangalli, a per se rule. There would 4 be a reversal of a conviction and a new trial 5 ordered even if that entry were duplicative or 6 equivalent of another statement that was turned 7 over to the defense. 8 The fact is that that is an 9 unrealistic expectation of prosecutors. If 10 someone were to write something on a matchbook 11 cover that related to the case and that match 12 book cover were not known to the prosecutor or 13 could not have been known to the prosecutor 14 until some time after or never known but 15 discovered at some point, the per se rule under 16 Rangalli would require a new trial even if that 17 statement had no effect on the outcome. It 18 would not have an effect on the outcome of the 19 trial. 20 This rule, this Rangalli rule is 21 a prosecutor's nightmare. It's been something 22 that has affected the cases in New York State 23 for too long. This rule is a bad rule. This 24 bill should be supported. 25 ACTING PRESIDENT MARCELLINO: 3085 1 Senator Abate. 2 SENATOR ABATE: Yes. Would 3 Senator Volker yield to two questions? 4 ACTING PRESIDENT MARCELLINO: 5 Senator Volker, do you yield? 6 SENATOR VOLKER: Certainly. 7 ACTING PRESIDENT MARCELLINO: He 8 yields. 9 SENATOR ABATE: Yes. In terms of 10 just clarification for the record, my colleague, 11 Senator Gentile, talked a little bit about it. 12 You wish under this proposed legislation to 13 overturn the ruling of the Court of Appeals in 14 Ranghele which required a new trial when 15 material was not turned over, any Rosario 16 material was not turned over. Do you interpret 17 the language you're proposing in any way to 18 modify the Brady obligation? 19 SENATOR VOLKER: No, sir as such, 20 no. Matter of fact, I assume we did send you a 21 memo on that. 22 SENATOR ABATE: I just want it on 23 the record so that I understand. 24 SENATOR VOLKER: I understand. 25 No, the answer is no. 3086 1 SENATOR ABATE: So that any 2 material that's in the possession of the 3 district attorney that tends to exculpate the 4 defendant would still, if it was not disclosed 5 to the defendant, would require a new trial even 6 if this became law? 7 SENATOR VOLKER: I think that's 8 required by both U.S. and federal constitutional 9 law, and I think to abrogate that would put us 10 in a situation where it would make the statute 11 unconstitutional. So the answer to that is yes. 12 SENATOR ABATE: The other 13 question is, and it says that I seek advice from 14 you, Senator, to make a change. Right now, the 15 law says that prior identification, whether it 16 be a photo identification or line-up is 17 considered bolstering and is not admissible if 18 the -- whether the victim can make the in-court 19 identification or not. 20 My concern is that this bill now 21 says even if the witness can identify the 22 defendant in court, will there still be -- will 23 it still become admissible, these prior photo 24 identifications even if an in-court identifi 25 cation has been made because in that situation 3087 1 you have a bolstering situation? It's not 2 required for the people to make a case. 3 SENATOR VOLKER: Yeah, it doesn't 4 change the photo identification piece, so we 5 just reported a bill out, I think, as you know 6 which would do that, but this bill does not 7 change that. This relates to the present 8 process and to the fact that under certain 9 circumstances where the line-up, the previous 10 identification is put in, that there could be - 11 there could be a law enforcement officer or 12 whatever to testify as to that identification 13 assuming that that identification was part of a 14 trial in certain cases where the witness was 15 either reluctant or unable to identify years 16 later whatever, at the trial itself. 17 SENATOR ABATE: So - 18 SENATOR VOLKER: So it would not 19 change -- Let me just finish. As I understand 20 it, the previous ruling on lack of the 21 photographic evidence was -- is not changed. If 22 that were to be changed, that would be by a 23 separate bill that we just talked about in our 24 committee the other day. 25 SENATOR ABATE: O.K. So let me 3088 1 just clarify it again. If the witness can make 2 an in-court identification of the defendant - 3 SENATOR VOLKER: Yeah. 4 SENATOR ABATE: -- then it would 5 still be impermissible to introduce at trial a 6 prior identification, whether it be a photo 7 identification or a line-up? 8 SENATOR VOLKER: That's correct. 9 SENATOR ABATE: That would be 10 considered bolstering? 11 SENATOR VOLKER: Yes. 12 SENATOR ABATE: That would only 13 be admissible if the witness could not make an 14 in-court identification. 15 SENATOR VOLKER: Yes, that's 16 correct or a misidentification. 17 SENATOR ABATE: Or a mis 18 identification. 19 SENATOR VOLKER: And if you 20 remember, on the photo you're entitled to the 21 Wade hearing and all that protection, but that's 22 not in this bill. That change is not in this 23 bill. 24 SENATOR ABATE: Yes. On the 25 bill. 3089 1 ACTING PRESIDENT MARCELLINO: 2 Senator Abate, on the bill. 3 SENATOR ABATE: I will be voting 4 for this bill and the concerns are if we really 5 want to produce reform in the criminal justice 6 system, it has to be comprehensive and it has to 7 look at what results will expedite the cases, 8 and will produce earlier and open discovery. 9 My concern is we deal with the 10 prosecution side here and we talk about open and 11 early discovery. Why isn't that part of this 12 bill? Victims want open and early discovery. It 13 means that cases can be resolved that much 14 faster. Defendants want open and early 15 discovery, because they need to have enough 16 information to determine and their lawyers need 17 that information to determine if they want to 18 take a plea or go to trial. The courts 19 benefit. The earlier people get this discovery, 20 the better it is and I guess my query is, and if 21 -- my query is, why isn't this part of the 22 bill, open and early discovery? 23 That would be, along with these 24 reforms, would produce a dramatic change in how 25 the criminal justice system responds to the 3090 1 rights of defendants and responds to the needs 2 of crime victims. 3 And I'd also like to see in this 4 bill, and hopefully the good Senator Volker 5 would not only include early discovery reform 6 within this bill because then we would have a 7 balanced approach that Senator Waldon is talking 8 about, but penalties against the district 9 attorney when the district attorney does not 10 disclose Brady material. It should not have to 11 take an appeal to raise that issue. Brady 12 material, as we all know, is fundamentally 13 critical to prepare the defense in that trial. 14 There should be enough 15 disincentive placed upon the district attorney 16 so that no district attorney, because they are 17 aggressive, they want to assure a conviction, 18 fails in their responsibility to turn over these 19 exculpatory materials. So I am hoping that when 20 this is not a one-house bill but we have a 21 two-house bill that talks about these kinds of 22 issues in this bill or the other issues that I'm 23 raising, there will be a balanced approach. We 24 will get a bipartisan support for this effort, 25 not just the Senate but the Assembly. 3091 1 So I look forward to working with 2 Senator Volker's office to make these reforms 3 and include them in the bill. 4 ACTING PRESIDENT MARCELLINO: 5 Read the last section, please. 6 THE SECRETARY: Section 10. This 7 act shall take effect immediately. 8 ACTING PRESIDENT MARCELLINO: 9 Call the roll. 10 (The Secretary called the roll. ) 11 ACTING PRESIDENT MARCELLINO: 12 Senator Waldon, to explain his vote. 13 SENATOR WALDON: Thank you very 14 much, Mr. President. 15 I would like everyone here to 16 understand that this is not the same bill as 17 last year. I think there was an inadvertent 18 slip in Senator Volker's response to my 19 questions, and I'm sure in his explanation of 20 his vote he can correct this if he wishes to, 21 but this is not the same bill as last year. 22 There are differences. 23 Mr. President, I respectfully ask 24 to be recorded in the negative. 25 ACTING PRESIDENT MARCELLINO: 3092 1 Senator Waldon in the negative. 2 THE SECRETARY: Those recorded in 3 the negative on Calendar Number 449 are Senators 4 Leichter, Markowitz, Montgomery, Paterson, 5 Rosado, Sampson, Santiago, Smith and Waldon. 6 Ayes 49, nays - 7 ACTING PRESIDENT MARCELLINO: 8 Senator Connor. 9 THE SECRETARY: Also Senator 10 Connor. Ayes 48, nays 10. 11 ACTING PRESIDENT MARCELLINO: The 12 bill is passed. Senator Skelos. 13 SENATOR SKELOS: Mr. President at 14 this time, if we could take up Calendar 692, 15 Senate Print 4119-A, by Senator Velella. 16 ACTING PRESIDENT MARCELLINO: 17 Secretary will read. 18 THE SECRETARY: Calendar Number 19 692, by Senator Velella, Senate Print 4119-A, an 20 act to amend the Insurance Law, in relation to 21 homeowners insurance. 22 SENATOR SKELOS: Mr. President, 23 is there a message at the desk? 24 ACTING PRESIDENT MARCELLINO: 25 Yes, Senator Skelos, the message of necessity is 3093 1 at the desk. 2 SENATOR SKELOS: Move to accept. 3 ACTING PRESIDENT MARCELLINO: On 4 the message, motion to accept has been made. 5 All in favor say aye. 6 (Response of "Aye.") 7 Opposed nay. 8 (There was no response.) 9 The message is accepted, 10 Senator. 11 SENATOR SKELOS: Last section, 12 please. 13 ACTING PRESIDENT MARCELLINO: Read 14 the last section. . 15 THE SECRETARY: Section 13. This 16 act shall take effect immediately. 17 SENATOR PATERSON: Explanation. 18 ACTING PRESIDENT MARCELLINO: An 19 explanation has been requested by Senator 20 Paterson. 21 SENATOR VELELLA: Yes, Mr. 22 President. 23 This bill is a continuation of 24 the coastal insurance bill that we passed last 25 year. It's a one-year extender and basically 3094 1 extends the program that we put in place to try 2 and relieve the pressure that was on the coastal 3 communities of our state as a result of a 4 shortage of availability of homeowner 5 insurance. 6 It continues on this year which 7 addresses the need for inner city insurance for 8 one year and it creates a temporary panel on 9 catastrophic insurance to come back and review 10 with us the need in this state to establish a 11 cat' fund which other states have. 12 We have several proposals before 13 the Insurance Committee to look at the 14 possibility of creating a catastrophic funds so 15 that when -- and we know it will hit, we don't 16 know when -- when a major hurricane does hit 17 Long Island or the coastal areas of our state 18 that we will have in place a fund sufficient to 19 insure those people who are the victims of this 20 catastrophe, that the monies will be available, 21 the insurance will be available and that we will 22 be able to deal with that problem when it 23 occurs. 24 There are several proposals that 25 we are looking at in the Insurance Committee, 3095 1 how to fund this. We've looked at other states 2 such as Texas, Florida, California. I am not 3 sure yet which direction we should be going in. 4 That's why we ask that this task force be 5 created with appointments by both of the houses, 6 with appointments by the Governor, to take a 7 good hard look at what we'll do with 8 catastrophic insurance. 9 ACTING PRESIDENT MARCELLINO: 10 Senator Paterson, why do you rise? 11 SENATOR PATERSON: Thank you, Mr. 12 President. If Senator Volker would yield for a 13 few questions. I'm sorry, Senator Velella. I 14 always ask Senator Volker so many questions. 15 ACTING PRESIDENT MARCELLINO: 16 Senator Velella, Senator Velella, will you 17 yield? 18 SENATOR VELELLA: Yes. 19 ACTING PRESIDENT MARCELLINO: 20 Senator Velella yields; Senator Volker refuses. 21 SENATOR PATERSON: Thank you, Mr. 22 President. I'll ask Senator Volker some of 23 questions I have in private. 24 Senator, I'm just taking a look 25 at this piece of legislation. We just brought it 3096 1 out of committee today, Senator, and I'm 2 somewhat unfamiliar with it. I do remember we 3 brought this bill before us on March 13th of 4 last year, and you and I discussed it and one of 5 the questions I asked you then was about the 6 rate plans for NYPIUA, and in Section 1 of the 7 bill right here in the first paragraph, if you 8 could explain what the whole rating system will 9 be for the policyholders. 10 SENATOR VELELLA: Are you 11 serious? Do you want me to explain the entire 12 rate structure and how it's determined and what 13 the factors are? 14 SENATOR PATERSON: Well, I'd like 15 an abridged explanation of the rate structure. 16 SENATOR VELELLA: O.K. Well, the 17 way rates are set is we have actuaries that look 18 at the experience and they look at the claims 19 that have been made, the premiums that have been 20 paid, they project out, based -- as actuaries 21 what the risk factors are and fair and 22 reasonable premiums to cover that risk and cover 23 the operation are made by the panel of experts. 24 How an actuary arrives at the 25 actual numbers is something that I've got to 3097 1 confess I don't have a sufficient education to 2 really explain to you. We have nine different 3 types of tests that an actuary must pass in this 4 state to be certified. It's like trying to 5 explain to you why a doctor performs a medical 6 procedure. He's educated, he's qualified. We 7 have supposedly the best actuaries available 8 that look at the marketplace, look at the 9 demands, look at the claims and set rates based 10 on that. 11 NYPIUA was formed because there 12 were a lot of companies that did not want to 13 issue insurance, particularly fire insurance in 14 the inner city. We formed that so that we could 15 have a joint group assume that risk, spread the 16 risk which is the principle of insurance and 17 have actuarially sound premiums put forward for 18 this. 19 It's a platter of right. 20 Companies that write other business in this 21 state participate into it. It's sort of a 22 forced underwriting procedure that we do so we 23 can provide fire insurance to people who own 24 properties in the inner cities where, if we left 25 the insurance companies on their own, they would 3098 1 choose not to write this. 2 SENATOR PATERSON: Mr. 3 President. 4 ACTING PRESIDENT MARCELLINO: 5 Senator Paterson. 6 SENATOR PATERSON: Senator 7 Velella's point is well taken. 8 General questions like the one I 9 asked often earn the direction of over 10 simplification and I suppose that what I should 11 really do is just raise to Senator Volker if we 12 would yield to another question. 13 ACTING PRESIDENT MARCELLINO: 14 Senator Velella, do you yield to another 15 question? 16 SENATOR PATERSON: Sorry, to 17 Senator Velella. 18 SENATOR VELELLA: Yes, I yield. 19 ACTING PRESIDENT MARCELLINO: 20 Senator Velella yields, sir. 21 SENATOR PATERSON: My concern is 22 really about the adjustment of rates itself and 23 particularly the increase of rates and how this 24 section of the legislation would affect the 25 prior approval system. I'm just wondering if 3099 1 any of the members will be able to raise or 2 adjust rates without consulting or coming back 3 to the Insurance Department or whatever the 4 appropriate authority would be. 5 SENATOR VELELLA: I'm sorry. I 6 was distracted because somebody was trying to 7 give me the information you had sought. Could 8 you just repeat the question. 9 SENATOR PATERSON: O.K. You 10 should ask Senator Volker; he knows this cold. 11 SENATOR VELELLA: Well, he's 12 counseled me for numerous hours on this bill. 13 SENATOR PATERSON: My question 14 was just the effect that the section of the 15 legislation, Section 1, is going to have on the 16 prior approval system, on the adjustment of 17 rates, whether or not there might be increases 18 in rates without approval of the state Insurance 19 Department or - 20 SENATOR VELELLA: Oh, no. The 21 answer to that is no. The board of actuaries 22 that look at this and make the recommendations 23 based on the availability, based on the 24 experience, based on all the underwriting 25 criteria will make a recommendation to the 3100 1 Superintendent of Insurance. Then the 2 superintendent approves the rate or does not 3 approve the rate. He may even at some point 4 decide if in his discretion he wants to hold a 5 public hearing on that rate he can always do 6 that. He generally doesn't. Companies come in 7 and might contest what an actuary says. He then 8 evaluates the evidence and then either makes a 9 ruling for or against the proposed rate. 10 SENATOR PATERSON: Thank you, 11 Senator. 12 SENATOR VELELLA: You're welcome. 13 SENATOR PATERSON: Then, if I am 14 to -- if I am to infer from those remarks that 15 there would be no opportunity to actually change 16 the rates by the individual companies, then that 17 satisfies my concern. 18 I have just one last question if 19 the Senator would yield. 20 SENATOR VELELLA: Yes. 21 ACTING PRESIDENT MARCELLINO: 22 Senator, do you yield? Senator Velella yields. 23 SENATOR PATERSON: Senator 24 Velella, my question is just simply we passed 25 this legislation last year. We sunsetted the 3101 1 legislation for this point. Is there any reason 2 why we would not just establish permanency or 3 should I take from your original remarks that 4 there still isn't enough data or we have not 5 really acquired enough information to let us 6 know whether or not this should be a permanent 7 system? 8 SENATOR VELELLA: Well, I think 9 yes, you can take from my remarks that this is 10 an area where we have a state of flux. We're 11 dealing with very difficult issues to try and 12 evaluate, the cost of a hurricane hitting, the 13 cost of what -- what type of policy will allow 14 us to have availability in the marketplace, and 15 at the same time deliver a premium that is 16 reasonable to a homeowner, the issue of inner 17 city fire coverage. These are all things that 18 are in a state of flux. 19 I do want to -- I do have an 20 obligation to correct something you said. I can 21 not and nothing I said guarantees you what the 22 rates will be in the future. There is a 23 mechanism in place to prevent unconscionable 24 increases but the increases that might result in 25 premiums are subject to the Superintendent's 3102 1 approval based on data that's presented to him 2 by actuaries which can be contested by either 3 consumer groups or insurance carriers, like any 4 other insurance that we have in this state. 5 Rates cannot be guaranteed into the future, so I 6 am not saying to you that there is no 7 possibility a rate may be increased. 8 As it is now, we believe that 9 rates will remain basically the same and that's 10 why we only have a one-year extender because 11 this is an issue that's in a state of flux. We 12 have to get better evaluations of the market 13 place, some better programs in place. We have 14 many bills that have been filed by our Senators 15 with ideas as to how we might stabilize that 16 market, ideas about whether or not deductibles 17 should be raised to keep the insurance afford 18 able, whether or not that's the right thing to 19 do in the marketplace. Joint underwriting 20 groups have been -- made proposals. Re-insurers 21 of the state of New York and the national groups 22 have come in and said they can provide 23 reinsurance to lower the premium. 24 There are a battery of things 25 that have to be done. That's why we think a 3103 1 one-year extender is something that we should 2 have. 3 SENATOR PATERSON: Thank you, Mr. 4 President. On the bill. 5 ACTING PRESIDENT MARCELLINO: 6 Senator Paterson, on the bill. 7 SENATOR PATERSON: On the bill. 8 Senator Velella should be assured, as much as we 9 would like to preserve the lowest rates possible 10 for policyholders, we recognize the fact that 11 there could be a fluctuation in the rates based 12 on a number of actuarial figures. 13 We're just happy to hear from 14 Senator Volker -- Senator Velella's, remarks 15 that we're going to be able, through this 16 process, to make sure that the Superintendent of 17 Insurance is involved. 18 We also would suggest that there 19 is as immediate a conference with the Assembly 20 because our fear is what could really be the end 21 of NYPIUA and there are so many policyholders 22 around this state who run great risks from being 23 in the geographic locations particularly where 24 they are, that we're somewhat concerned that any 25 delay or any possibility of this sort of 3104 1 coverage running out would certainly inure to 2 their detriment and this is the reason that we 3 would encourage that some permanency be 4 established in this legislation as soon as is 5 reasonable. 6 ACTING PRESIDENT MARCELLINO: 7 Senator Dollinger. 8 SENATOR DOLLINGER: Would the 9 sponsor yield to one question? 10 ACTING PRESIDENT MARCELLINO: 11 Senator Velella, would you yield to Senator 12 Dollinger? 13 SENATOR VELELLA: Yes. 14 SENATOR DOLLINGER: When we did 15 the prior bill, I asked you have a couple 16 questions regarding the applicability of the 17 coastal zone insurance program in upstate New 18 York, and particularly on the south shore of 19 Lake Ontario. Can I assume from this bill since 20 it is just an extender, that the program and the 21 participation in Lake Ontario where we have 22 exceptionally high water as a result of the very 23 wet spring we've had there, Lake Ontario is way 24 up, we expect storms that could have significant 25 damage in the community of Greece or Hamlin, 3105 1 some of the communities that Senator Maziarz, 2 Senator Nozzolio and I share, can we be assured 3 that the program -- the insurance program will 4 continue to be in effect for them for the next 5 year as well? 6 SENATOR VELELLA: We are 7 extending whatever is in existence now will be 8 in effect for the next year of that if they are 9 eligible under the program, and I believe they 10 are, that would continue. We've taken nothing 11 out of the authorizations in this bill. We're 12 simply continuing on for one year because, as 13 you pointed out, Senator Maziarz, Senator 14 Nozzolio has pointed out to me there are some 15 unique problems in upstate that don't really 16 reflect the problems we're addressing on the 17 coastal areas in downstate. However, they are 18 just as important and any program should include 19 them, yes. 20 SENATOR DOLLINGER: Yes, just to 21 Senator Velella, it's my intention, Senator, I'm 22 going to give you just a short little memo maybe 23 after the session or after the recess period for 24 a couple weeks just to bring you up to date on 25 some of the additional insurance-related 3106 1 problems that I have experienced and my 2 constituents have experienced in dealing with 3 the high water problem on Lake Ontario, and I 4 would just urge - 5 SENATOR VELELLA: I believe there 6 is also some federal insurances that are 7 available, federal programs that play into this 8 and we ought to tailor our program to that, and 9 we'll be happy to work with you. 10 SENATOR DOLLINGER: Again through 11 you, Mr. Chair, just on the bill. 12 ACTING PRESIDENT MARCELLINO: 13 Senator Dollinger, on the bill. 14 SENATOR DOLLINGER: In upstate 15 New York, we don't actually get to flood level 16 because the water rises but it doesn't reach 17 flood level, so we don't trigger the federal 18 protection but nonetheless when the water rises 19 and the lake winds kick up, you have worse than 20 a flood; you actually have the equivalent of 21 huge waves pounding the shoreline, substantial 22 erosion, damage to homes, not covered by the 23 federal flood plan because it doesn't rise high 24 enough enough to constitute a flood but 25 nonetheless it's the equivalent of a flood for 3107 1 insurance purposes and I'll will give you a memo 2 on that and maybe it can be included in the 3 discussions. 4 Thank you, Mr. Chairman. 5 ACTING PRESIDENT MARCELLINO: Read 6 the last section, please. 7 THE SECRETARY: Section 13. This 8 act shall take effect immediately. 9 ACTING PRESIDENT MARCELLINO: 10 Call the roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 58. 13 ACTING PRESIDENT MARCELLINO: The 14 bill is passed. 15 Senator Skelos. 16 SENATOR SKELOS: Mr. President, 17 would you call up Calendar Number 336. 18 ACTING PRESIDENT MARCELLINO: 19 Secretary will read. 20 THE SECRETARY: Calendar Number 21 336, by member of the Assembly Tocci, Assembly 22 Print 2958, an act to amend the Retirement and 23 Social Security Law, in relation to establish 24 ment of a presumption. 25 ACTING PRESIDENT MARCELLINO: 3108 1 Read the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT MARCELLINO: 5 Call the roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 58. 8 ACTING PRESIDENT MARCELLINO: The 9 bill is passed. 10 SENATOR SKELOS: Is there any 11 housekeeping to take care of? 12 ACTING PRESIDENT MARCELLINO: I 13 believe the house is clean, sir. 14 SENATOR SKELOS: The house is 15 clean? 16 ACTING PRESIDENT MARCELLINO: The 17 house is clean, sir. 18 SENATOR SKELOS: Mr. President, 19 there being no further business, I move we 20 adjourn until Monday, May 5th, 1997 at 3:00 21 p.m., intervening days to be legislative days, 22 and we wish everybody good health. 23 ACTING PRESIDENT MARCELLINO: The 24 Senate will stand adjourned until Monday, May 25 5th, at 3:00 p.m., intervening days to be 3109 1 legislative days. Everybody take care and come 2 back healthy. 3 (Whereupon at 12:32 p.m., the 4 Senate adjourned.) 5 6 7 8 9 10