Monday, May 12, 1997

3353 1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 May 12, 1997 11 3:00 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 3354 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: Senate 3 will come to order. Ask the members to find 4 their places, staff to find their places. I'd 5 ask everybody in the chamber to rise and join me 6 in saying the Pledge of Allegiance to the Flag 7 and please remain standing for the invocation. 8 (The assemblage repeated the 9 Pledge of Allegiance to the Flag.) 10 We're very pleased to have Pastor 11 Larry Deyss of the Delmar Presbyterian Church, 12 Delmar, New York, with us to deliver the 13 invocation. Pastor Deyss. 14 REVEREND LARRY DEYSS: Let us 15 pray. 16 Almighty God, the Creator of the 17 universe so vastly measured in light years. You 18 are our hope and our judge. Hear our prayer. 19 Be with the people of this Senate as they engage 20 in a great and difficult work. Grant them wisdom 21 to deal with complex issues and courage to do 22 what needs to be done to promote the well-being 23 of all people. Grant them strength to stand 24 against great pressures so they may do what they 25 know in their heart of hearts is right to do. 3355 1 Grant them compassion so they may lift up and 2 empower the weak and the vulnerable. Be with 3 them and guide them over the weeks ahead as they 4 make a series of decisions that will profoundly 5 affect the lives of poor women, teens and 6 children. Help them to have the wisdom and the 7 courage to grasp this historic moment when they 8 have the opportunity to mitigate some of the 9 destructive aspects of the federal welfare law. 10 Guide them so that they may enact policies to 11 assist the poor in job training, to find work 12 and to maintain health care coverage which are 13 so important for well-being and dignity. These 14 are days, gracious God, when anger and meanness 15 are at work in the land. Grant the people of 16 this Senate the strength and the will to rise 17 above the free floating anxiousness and anger of 18 our times so the poor may not be scapegoats. 19 Help us to remember that over and 20 above any constituency, we are accountable unto 21 You. Let all the work done here be done with 22 such integrity and care for all Your people that 23 when our time on earth is done and we stand 24 before You, we may hear You say, well done, good 25 and faithful servant. Enter into the joy 3356 1 prepared for you. This we pray this day. Amen. 2 ACTING PRESIDENT KUHL: Reading 3 of the journal. 4 THE SECRETARY: In Senate, 5 Friday, May 9th. The Senate met pursuant to 6 adjournment, Senator Farley in the Chair upon 7 designation of the Temporary President. The 8 Journal of Thursday, May 8th, was read and 9 approved. On motion, Senate adjourned. 10 ACTING PRESIDENT KUHL: Hearing 11 no objection, the Journal stands approved as 12 read. 13 Presentation of petitions. 14 Messages from the Assembly. 15 Messages from the Governor. 16 Reports of standing committees. 17 Reports of select committees. 18 Communications and reports from 19 state officers. 20 Motions and resolutions. Chair 21 recognizes Senator Marcellino. 22 SENATOR MARCELLINO: Mr. 23 President, on page number 48, I offer the 24 following amendments to Calendar Number 338, 25 Senate Print Number 3109, and ask that said bill 3357 1 retain its place on the Third Reading Calendar. 2 ACTING PRESIDENT KUHL: 3 Amendments to Calendar Number 338 are received 4 and adopted and the bill will retain its place 5 on the Third Reading Calendar. 6 Senator Marcellino. 7 SENATOR MARCELLINO: Mr. 8 President, I move to recommit Senate Print 9 Number 4926, Calendar Number 1036, which is on 10 the order of First Report to the Committee on 11 Elections with instructions that said committee 12 strike out the enacting clause. 13 ACTING PRESIDENT KUHL: The bill 14 will be recommitted and the enacting clause will 15 be stricken. 16 SENATOR MARCELLINO: Thank you, 17 sir. 18 SENATOR LACK: Mr. President. 19 ACTING PRESIDENT KUHL: Senator 20 Lack. 21 SENATOR LACK: Thank you, Mr. 22 President. Would you please unstar Calendar 23 Number 516, S. 3527-A. 24 ACTING PRESIDENT KUHL: The star 25 will be removed on Calendar Number 516 at the 3358 1 request of the sponsor. 2 Senator Tully. 3 SENATOR TULLY: Yes, Mr. 4 President. I believe I have a privileged 5 resolution at the desk. May I please ask that it 6 be read in its entirety, following which I would 7 like to make a few brief remarks. 8 SENATOR SKELOS: Mr. President. 9 ACTING PRESIDENT KUHL: Senator 10 Skelos. 11 SENATOR SKELOS: I believe 12 there's a resolution at the desk sponsored by 13 Senator DeFrancisco. I ask that its title be 14 read and move for its immediate adoption. 15 ACTING PRESIDENT KUHL: There is 16 a privileged resolution by Senator DeFrancisco. 17 Secretary will read the title. 18 THE SECRETARY: By Senator 19 DeFrancisco, Legislative Resolution honoring the 20 students of Team 7D at Lincoln Middle School in 21 Syracuse for their participation in the 49th 22 Senate District "Good News! Good Kids!" Youth 23 Responsibility Program. 24 ACTING PRESIDENT KUHL: Senator 25 DeFrancisco, on the resolution. 3359 1 SENATOR DeFRANCISCO: Yes, Mr. 2 President. I rise to congratulate the Lincoln 3 Middle School at being the winner of the Good 4 News! Good Kids! Program that we have in 5 Onondaga County in my district, and basically 6 what the program does is honor students who do 7 good things because, unfortunately, we hear a 8 lot of negative things in the media about young 9 people. 10 This group did several projects, 11 one of which was to help in the annual Kids Fair 12 put on by one of our local TV stations that 13 allows kids to participate in certain activities 14 at our On Center, and they participated in 15 several ways. They were greeters and workers at 16 that program but, most importantly, they raised 17 close to $3,000 for the Alzheimer's Foundation 18 by raising money in various ways and also going 19 to visit people with those types of infirmities 20 and singing to them and being involved in 21 various activities and along the way learning 22 about it, and these are good things. These are 23 good kids doing good things and it happens to be 24 the middle school that used to be called the 25 Lincoln Junior High School where I attended a 3360 1 couple of years ago, so I'm very proud of this 2 group of young people and I'm sure that they 3 have continued, they're continuing new projects 4 for next year and they've done a great job and 5 I'm proud to welcome them to Albany and to tell 6 the world that we do have good kids, that it's 7 very, very good news and congratulations and 8 have a great day, Lincoln Middle School 9 students. 10 ACTING PRESIDENT KUHL: Is there 11 any other Senator wishing to speak on the 12 resolution? Hearing none, the question is on 13 the resolution. All those in favor signify by 14 saying aye. 15 (Response of "Aye.") 16 Opposed nay? 17 (There was no response.) 18 The resolution is adopted and, on 19 behalf of Senator Bruno and Senator DeFrancisco 20 and all the members of the chamber, we welcome 21 these young people from Syracuse to the 22 chamber. Enjoy your stay in Albany. 23 Senator Skelos. 24 SENATOR SKELOS: Yes, Mr. 25 President. I believe there's a resolution at 3361 1 the desk sponsored by Senator Tully. I ask that 2 it be read in its entirety and move for its 3 immediate adoption. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the privileged resolution by Senator 6 Tully. 7 THE SECRETARY: By Senator Tully, 8 Legislative Resolution commending the 1997 9 Senior Class of the Henry Viscardi School of 10 Albertson, New York, upon the occasion of their 11 visit to the New York State Legislature on 12 Monday, May 12th, 1997. 13 WHEREAS, it is the sense of this 14 legislative body that the character and quality 15 of life in this great Empire State is abundantly 16 enriched by organizations which selflessly serve 17 to promote the health and welfare of the 18 citizenry; and 19 WHEREAS, this legislative body is 20 justly proud to commend the 1997 Senior Class of 21 Henry Viscardi School, Albertson, New York, upon 22 the occasion of their visit to the New York 23 State Legislature on Monday, May 12th, 1997, and 24 WHEREAS, the Henry Viscardi 25 School is a New York State chartered tuition 3362 1 free school educating more than 220 children 2 between the ages of 3 to 21 and with severe 3 orthopedic disabilities; over two-thirds of the 4 school's graduates go on to higher education, 5 which is more than three times the national 6 average of 20 percent; and 7 WHEREAS, the Henry Viscardi 8 School provides a full range of educational, 9 remedial, therapeutic, social and recreational 10 services provided through pre-school, kinder 11 garten, elementary and secondary school programs 12 and extended-year summer programs; 13 The National Center for 14 Disability Services, founded by Henry Viscardi, 15 had its humble beginnings in 1952, operating out 16 of a garage in West Hempstead; it now occupies a 17 14-acre wooded campus in Albertson, New York, 18 serving over 4,000 adults and children annually; 19 The Center is a non-profit agency 20 dedicated to empowering people with disabilities 21 to be active, independent and self-sufficient 22 participants in our society; it accomplishes its 23 mission through education, training, research, 24 leadership, and example; 25 The Center is internationally 3363 1 known and hosts visitors from around the world 2 who come to learn about its successes in 3 preparing individuals for meaningful careers; 4 its visitors have included the Emperor and 5 Empress of Japan; and 6 WHEREAS, the Center received one 7 of its highest honors last September 14, 1995 8 when it received the United States Department of 9 Labor Exemplary Public Interest Contribution 10 Award; this award is based on nationwide 11 competition and is presented annually to 12 organizations who exhibit unparalleled 13 leadership in assisting disadvantaged Americans 14 to -- into competitive employment; 15 The Center's work is conducted 16 through the Henry Viscardi School, the Career 17 and Employment Institute which evaluates, trains 18 and counsels adults with disabilities, and the 19 Research and Training Institute which conducts 20 research on the education, employment and career 21 development of persons with disabilities; and 22 WHEREAS, the members of the 1996 23 Senior Class of the Henry Viscardi School 24 include Maleni Alvarez, Scott Andreala, Stephen 25 Buzzerio, Lori Carrion, Elissa Figueroa, Keith 3364 1 Haarmann, Jesin Jose, Michael Kalberer, Lance 2 Palma, Kimberly Poulos, Errol Roberts, Steven 3 Michtav and Marisol Rodriguez, 4 NOW, THEREFORE, BE IT RESOLVED 5 that this legislative body pause in its 6 deliberations to express its appreciation to 7 Henry Viscardi School for meeting the special 8 needs of hundreds of children in New York State 9 and to extend a warm welcome to the faculty and 10 students on their visit to Albany; and 11 BE IT FURTHER RESOLVED that 12 copies of this resolution, suitably engrossed, 13 be transmitted to the students and faculty of 14 Henry Viscardi School. 15 ACTING PRESIDENT MARCELLINO: 16 Senator Tully. 17 SENATOR TULLY: Thank you, Mr. 18 President. 19 Today we have the distinct honor 20 of hosting the graduating class of the Henry 21 Viscardi School, and their acting superintendent 22 Henry Kunstle, in my district. 23 The Henry Viscardi School, 24 located in my town of Albertson in Nassau 25 County, specializes in treating students with 3365 1 severe disabilities throughout the entire 2 metropolitan New York region. We're privileged 3 to have these remarkable students here today to 4 witness the deliberations of this legislative 5 body, and those who were previously mentioned 6 are represented by Senator Smith, Senator 7 Skelos, Senator Padavan, Senator Rosado and 8 myself, Senator Hannon, Senator Lack and Senator 9 Levy. 10 These students of the Henry 11 Viscardi School possess a special brand of 12 strength and determination and are among the 13 most gifted students I have ever encountered. 14 Many of these graduating Seniors have plans to 15 go to college, and some have made plans to begin 16 vocational training programs in preparation for 17 the future. 18 Whether they plan to continue 19 their education or enter the work force, their 20 years at the Henry Viscardi School are a 21 priceless investment in their future that will 22 carry them throughout the rest of their lives. 23 So, students, as you prepare for 24 the next step, remember to apply your special 25 gifts and your special talents, work with 3366 1 dedication and self-discipline in all your 2 future endeavors. Have high expectations of 3 yourself and convert every challenge into an 4 opportunity. You're a credit to your family, to 5 your school, and to your community, and I extend 6 my very best wishes to you for a future filled 7 with happiness, good health and success. 8 Mr. President, I ask that all of 9 my colleagues, join me in congratulating and 10 welcoming the Senior Class of the Henry Viscardi 11 School to Albany. 12 ACTING PRESIDENT MARCELLINO: Is 13 there any other Senator wishing to be heard on 14 this motion? All in favor signify by saying 15 aye. 16 (Response of "Aye.") 17 Opposed nay. 18 (There was no response.) 19 The ayes have it. The motion is 20 unanimously passed and on a point of personal 21 privilege, I've been to the Henry Viscardi 22 School and witnessed what it does for the young 23 men and women who attend this remarkable 24 institution, and the young men and women who 25 attend this institution are remarkable people in 3367 1 their own life, and may we stand and give you a 2 round of applause and welcome you to Albany. 3 (Standing applause) 4 Senator Holland, may we return to 5 motions for a moment? Yes, the Chair recognizes 6 Senator Leibell. 7 SENATOR LEIBELL: On behalf of 8 Senator Volker, please place a sponsor's star on 9 Calendar Number 702, and on behalf - 10 ACTING PRESIDENT MARCELLINO: 11 Bill is starred. 12 SENATOR LEIBELL: And on behalf 13 of Senator Hannon, please place sponsor's stars 14 on Calendar Number 627 and 780. 15 ACTING PRESIDENT MARCELLINO: The 16 bills are starred. 17 Senator Holland, we are at the 18 reading of the non-controversial calendar. 19 SENATOR HOLLAND: That's exactly 20 it, Mr. President, please. 21 ACTING PRESIDENT MARCELLINO: 22 Secretary will read. 23 I've been informed, Senator 24 Holland, that we have some substitutions. 25 SENATOR HOLLAND: Take the 3368 1 substitutions, please. 2 ACTING PRESIDENT MARCELLINO: 3 Secretary will read. 4 THE SECRETARY: On page 12, 5 Senator Lack moves to discharge from the 6 Committee on Judiciary Assembly Bill Number 7037 7 and substitute it for the identical Second 8 Report Calendar 746. 9 On page 16, Senator Spano moves 10 to discharge from the Committee on Finance, 11 Assembly Bill Number 4563, and substitute it for 12 the identical Second Report Calendar 785. 13 And on page 53, Senator Skelos 14 moves to discharge from the Committee on Rules 15 Assembly Bill Number 357-B, and substitute it 16 for the identical Third Reading Calendar 466. 17 ACTING PRESIDENT MARCELLINO: 18 Without objection, substitutions are ordered. 19 Can we read the non-controversial 20 calendar. 21 THE SECRETARY: Calendar Number 22 280, by Senator Johnson, Senate Print 2514-A, an 23 act to amend the Real Property Tax Law. 24 ACTING PRESIDENT MARCELLINO: Lay 25 that bill aside for the day, please. 3369 1 THE SECRETARY: Calendar Number 2 322, by Senator Present, Senate Print 749-A, an 3 act to amend the Vehicle and Traffic Law, in 4 relation to snowmobiler dealer registrations. 5 ACTING PRESIDENT MARCELLINO: 6 Read the last section. 7 THE SECRETARY: Section 4. This 8 act shall take effect on the first day of 9 October. 10 ACTING PRESIDENT MARCELLINO: 11 Call the roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 53. 14 ACTING PRESIDENT MARCELLINO: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 456, by Senator Marcellino, Senate Print - 18 ACTING PRESIDENT MARCELLINO: 19 Will you lay that bill aside for the day, 20 please. 21 THE SECRETARY: Calendar Number 22 466, substituted earlier today, by member of the 23 Assembly Weisenberg, Assembly Print 357-B, an 24 act to amend the Insurance Law, in relation to 25 providing for a reduction in rates of commercial 3370 1 risk insurance. 2 ACTING PRESIDENT MARCELLINO: 3 Read the last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect on the first day of 6 January. 7 ACTING PRESIDENT MARCELLINO: 8 Call the roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 53. 11 ACTING PRESIDENT MARCELLINO: The 12 bill is passed. 13 THE SECRETARY: Calendar Number 14 515, by Senator Lack, Senate Print 3453, an act 15 to amend the Judiciary Law, in relation to 16 payment of expenses. 17 ACTING PRESIDENT MARCELLINO: 18 Read the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect in 90 days. 21 ACTING PRESIDENT MARCELLINO: 22 Call the roll. 23 (The Secretary called the roll. ) 24 THE SECRETARY: Ayes 53. 25 ACTING PRESIDENT MARCELLINO: The 3371 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 535, by Senator Nozzolio, Senate Print 2285, an 4 act to amend the Vehicle and Traffic Law, in 5 relation to the imposition of a fee for the 6 reissuance of a driver's license. 7 ACTING PRESIDENT MARCELLINO: 8 Read the last section. 9 THE SECRETARY: Section 3. This 10 act shall take effect on the first day of 11 November. 12 ACTING PRESIDENT MARCELLINO: 13 Call the roll. 14 (The Secretary called the roll. ) 15 THE SECRETARY: Ayes 54. 16 ACTING PRESIDENT MARCELLINO: The 17 bill is passed. 18 THE SECRETARY: Calendar Number 19 543, by Senator Levy, Senate Print 920, an act 20 to amend the Transportation Law, in relation to 21 authorizing the Commissioner of Transportation. 22 ACTING PRESIDENT MARCELLINO: 23 Read the last section. 24 THE SECRETARY: Section 2. This 25 act shall take effect immediately. 3372 1 ACTING PRESIDENT MARCELLINO: 2 Call the roll. 3 (The Secretary called the roll. ) 4 THE SECRETARY: Ayes 54. 5 ACTING PRESIDENT MARCELLINO: The 6 bill is passed. 7 THE SECRETARY: Calendar Number 8 563, by Senator Wright, Senate Print 3054, an 9 act to legalize, certify and confirm the acts of 10 the Central Square School District. 11 SENATOR GOLD: Lay it aside, 12 please. 13 ACTING PRESIDENT MARCELLINO: Lay 14 the bill aside. 15 THE SECRETARY: Calendar Number 16 603, by Senator Rath, Senate Print 3639, an act 17 to amend the Town Law, in relation to building 18 permits by the building inspector. 19 ACTING PRESIDENT MARCELLINO: 20 Read the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect 180 days. 23 ACTING PRESIDENT MARCELLINO: 24 Call the roll. 25 (The Secretary called the roll. ) 3373 1 THE SECRETARY: Ayes 54. 2 ACTING PRESIDENT MARCELLINO: The 3 bill is passed. 4 THE SECRETARY: Calendar Number 5 614, by Senator Maltese, Senate Print 2317, an 6 act to repeal Section 543 of the Executive Law, 7 relating to recreation programs. 8 ACTING PRESIDENT MARCELLINO: 9 Read the last section. 10 THE SECRETARY: Section 6. This 11 act shall take effect immediately. 12 ACTING PRESIDENT MARCELLINO: 13 Call the roll. 14 (The Secretary called the roll. ) 15 THE SECRETARY: Ayes 54. 16 ACTING PRESIDENT MARCELLINO: The 17 bill is passed. 18 THE SECRETARY: Calendar Number 19 616, by Senator Volker, Senate Print 1233, an 20 act to amend the Executive Law, in relation to 21 civil actions against employees. 22 ACTING PRESIDENT MARCELLINO: Are 23 we laying aside 616? Lay it aside. 24 THE SECRETARY: Calendar Number 25 623, by Senator Holland, Senate Print 648, an 3374 1 act to amend the Public Health Law, in relation 2 to authorizing the Hudson Valley Emergency 3 Medical Service Council. 4 ACTING PRESIDENT MARCELLINO: 5 Read the last - 6 SENATOR GOLD: Lay aside. 7 ACTING PRESIDENT MARCELLINO: Lay 8 the bill aside, please. 9 THE SECRETARY: Calendar Number 10 628, by Senator Farley, Senate Print 1815, an 11 act to amend the Public Health Law, in relation 12 to expanding the definition of group practice to 13 apply to rural areas. 14 SENATOR DOLLINGER: Lay aside. 15 ACTING PRESIDENT MARCELLINO: Lay 16 the bill aside. 17 THE SECRETARY: Calendar Number 18 633, by Senator Tully, Senate Print 4111, an act 19 to amend Chapter 521 of the Laws of 1994. 20 ACTING PRESIDENT MARCELLINO: 21 Read the last section, please. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 24 ACTING PRESIDENT MARCELLINO: 25 Call the roll. 3375 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes 57. 3 ACTING PRESIDENT MARCELLINO: The 4 bill is passed. 5 THE SECRETARY: Calendar Number 6 646, by Senator Seward, Senate Print 4278, an 7 act to amend the Public Service Law, in relation 8 to increasing the statutory ceiling for non 9 major changes. 10 ACTING PRESIDENT MARCELLINO: 11 Read the last section, please. 12 SENATOR GOLD: Lay it aside. 13 ACTING PRESIDENT MARCELLINO: Lay 14 the bill aside. 15 SENATOR DOLLINGER: Mr. 16 President, a point of order. Did we do Calendar 17 Number 628? 18 ACTING PRESIDENT MARCELLINO: The 19 bill was laid aside, Senator. 20 SENATOR DOLLINGER: Thank you, 21 Mr. President. 22 THE SECRETARY: Calendar Number 23 649, by Senator Saland, Senate Print 665. 24 SENATOR GOLD: Lay aside. 25 ACTING PRESIDENT MARCELLINO: Lay 3376 1 the bill aside. 2 Senator Holland, the reading of 3 the non-controversial calendar has been 4 completed. Shall we proceed with the 5 controversial at this point? 6 SENATOR HOLLAND: Please, Mr. 7 President, absolutely. 8 ACTING PRESIDENT MARCELLINO: 9 Secretary will read. 10 THE SECRETARY: On page 58, 11 Calendar Number 563, by Senator Wright, Senate 12 Print 3054, an act to legalize, certify and 13 confirm the acts of the Central Square School 14 District. 15 SENATOR GOLD: Explanation. 16 ACTING PRESIDENT MARCELLINO: 17 Senator Wright, an explanation has been asked 18 for by Senator Gold. 19 SENATOR WRIGHT: Thank you, Mr. 20 President. 21 The legislation was requested on 22 behalf of the Central Square School District, a 23 school district within my Senatorial District. 24 They have pending claims totalling $249,000 on 25 three separate instances relating to transporta 3377 1 tion. They have had previous claims rejected by 2 state Ed' by virtue of the technical 3 deficiencies of signatures issued by the then 4 superintendent and then school board president, 5 both of which have changed. So we are 6 submitting the legislation consistent with the 7 recommendation of state Ed' to the school 8 district. 9 ACTING PRESIDENT MARCELLINO: 10 Read the last section. 11 THE SECRETARY: Section 3. This 12 act shall take effect immediately. 13 ACTING PRESIDENT MARCELLINO: 14 Call the roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Ayes 57. 17 ACTING PRESIDENT MARCELLINO: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 616, by Senator Volker, Senate Print 1233, an 21 act to amend the Executive Law, in relation to 22 civil actions against employees. 23 ACTING PRESIDENT MARCELLINO: 24 Read the last -- an explanation has been asked 25 for, Senator Volker. 3378 1 SENATOR HOLLAND: Will you lay it 2 aside until we find the Senator. 3 ACTING PRESIDENT MARCELLINO: 4 O.K. We'll lay the bill aside while we move on 5 to the next one from Senator Holland. 6 THE SECRETARY: Calendar Number 7 623, by Senator Holland, Senate Print 648, an 8 act to amend the Public Health Law, in relation 9 to authorizing the Hudson Valley Emergency 10 Medical Service Council. 11 SENATOR GOLD: Explanation. 12 SENATOR HOLLAND: This bill has 13 passed for the past couple years. It was 14 recommended by the Orange County EMS service and 15 it basically says that we set up a cable 16 television programming system so that EMS 17 volunteers do not have to go to a central 18 location in a major county or big county. They 19 can learn their trade and protect the people 20 they're volunteered to protect through learning 21 through the cable television system. 22 SENATOR GOLD: Will the Senator 23 yield to a question? 24 ACTING PRESIDENT KUHL: Senator 25 Holland yield? 3379 1 SENATOR HOLLAND: Yes. 2 ACTING PRESIDENT KUHL: Senator 3 yields. 4 SENATOR GOLD: Senator, could you 5 tell me how this program is going to work? 6 Would this be educational material that's going 7 to be on that they can watch, or is this some 8 kind of information as to things that are 9 happening? Exactly what are they going to see 10 on the cable network? 11 SENATOR HOLLAND: It's basically 12 a taping of the classes that they would normally 13 take in a far training site or some facility 14 like that, that will be available for the 15 volunteers to either be on the cable system or 16 take home and see in their VCR, so they can 17 learn that way. They will still be tested so 18 they will still have to know the subject. 19 ACTING PRESIDENT KUHL: Any other 20 Senator wishing to speak on the bill? Hearing 21 none, the Secretary will read the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect on the 30th day. 24 ACTING PRESIDENT KUHL: Call the 25 roll. 3380 1 (The Secretary called the roll. ) 2 THE SECRETARY: Ayes 57. 3 ACTING PRESIDENT KUHL: The bill 4 is passed. 5 THE SECRETARY: Calendar Number 6 628, by Senator Farley, Senate Print 1815, an 7 act to amend the Public Health Law, in relation 8 to expanding the definition of group practice. 9 SENATOR DOLLINGER: Explanation. 10 ACTING PRESIDENT KUHL: Senator 11 Farley, an explanation of Calendar Number 628 12 has been requested by Senator Dollinger. 13 SENATOR FARLEY: Thank you. 14 Senator Dollinger, this was a 15 bill that was brought to my attention by a 16 doctor who's chief of rheumatology, Doctor - 17 this particular doctor and two other 18 rheumatologists share a laboratory which enables 19 them to provide diagnostic services to their 20 patients that they would not be able to provide 21 as individuals. 22 What this does, under the current 23 state Department of Health law a physician is 24 prohibited from referring patients to a shared 25 laboratory because he has a financial interest 3381 1 in this laboratory. The doctor reports that the 2 Department does not consider the situation a 3 quality issue, but simply notes that this 4 interest does not fall within one of the 5 existing statutory exceptions to the prohibition 6 because the three physicians practice 7 independently and not as a group practice. The 8 laboratory is informally shared among the three 9 and this is not a formal entity in which they 10 have -- as rural practitioners, have an 11 ownership in the investment interests. 12 Were the three formally organized 13 as a group practice, the laboratory, a formal 14 entity "owned", quote, by the three doctors or 15 the laboratory operated independently, he would 16 not be prohibited from these patient referrals. 17 This legislation would correct 18 this anomaly affecting these doctors by 19 including informally shared facilities located 20 in a rural area, a county with a population of 21 200,000 or less or a town with a population 22 density of 150 persons or less per square mile 23 within the definition of group practice. 24 There's no fiscal impact to the 25 state, and I feel that what it does, it helps 3382 1 provide a higher quality of medical service and 2 particularly in the rural areas. 3 SENATOR DOLLINGER: Would the 4 sponsor yield to a question? 5 ACTING PRESIDENT KUHL: Senator 6 Farley, do you yield to a question by Senator 7 Dollinger? 8 SENATOR FARLEY: Yes, Mr. 9 President. 10 ACTING PRESIDENT KUHL: Senator 11 yields. 12 SENATOR DOLLINGER: Senator, as I 13 understand it, this would exempt from the non 14 referral rules, not referring to yourself, in 15 essence the non-referral rules. This would 16 exempt certain rural practices from those rules, 17 is that correct? 18 SENATOR FARLEY: That's correct. 19 SENATOR DOLLINGER: And my 20 question again, Senator, Mr. President, if 21 Senator Farley would yield, current -- in 22 current law, there's an exemption in 238 (a) 23 which says, An ownership interest or investment 24 shall not be subject to subdivision 1, which is 25 the anti-referral rules, if the health care 3383 1 provider authorized to provide clinical 2 laboratory services, pharmacy services, X-ray or 3 imaging services, is in a rural area and the 4 referral practitioner of the patient is in such 5 rural area. 6 My question is, don't we already 7 have this exemption under state law? 8 SENATOR FARLEY: Apparently not. 9 Mary Anne Gordineer, that's her name, from the 10 Department of Health has said that they are 11 prohibited under the current law. I did not 12 read you the subdivisions, but I'll be happy to 13 or show it to you, but all I'm saying is that 14 the Health Department per se says that they are 15 prohibited, and she actually suggested this 16 legislation. 17 SENATOR DOLLINGER: Well, through 18 you, Mr. President, I accept Senator Farley's 19 characterization. He obviously has some material 20 that I don't have with respect to the Health 21 Department's opinion about this, and I -- I 22 don't need to see it. I'm just -- my question is 23 whether we need it. It looks like there's clear 24 statutory authority for the fact that rural 25 practitioners are immune or exempt from the 3384 1 anti-referral, the self-referral provisions in 2 state law, and it seems to me that I understand 3 why his constituent is driven into this point, 4 perhaps an opinion from the Health Department 5 attached, but I would almost suggest the health 6 opinion that they simply read the law that we 7 wrote that says that people that live in rural 8 communities aren't bound by the same rigid anti 9 referral provisions that everybody else are. 10 That should be -- that's been our 11 policy in this state. It continues to be the 12 policy, and I'm afraid we're overdoing it here 13 because maybe our bureaucracy didn't quite read 14 what we wrote for them several years ago. 15 SENATOR FARLEY: I hear what 16 you're saying. Thank you, Senator. As a matter 17 of fact, I'm going to share with you my 18 memorandum. 19 SENATOR DOLLINGER: Thank you, 20 Senator. 21 I'll be voting in favor, Mr. 22 President. 23 SENATOR FARLEY: Thank you. 24 ACTING PRESIDENT KUHL: Secretary 25 will read the last section. 3385 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 57. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 Senator Holland. 10 SENATOR HOLLAND: Could we 11 return, Mr. President, to Calendar 616, Senator 12 Volker's bill, please. 13 ACTING PRESIDENT KUHL: Secretary 14 will read the title to Calendar 616, by Senator 15 Volker. 16 THE SECRETARY: Calendar Number 17 616, by Senator Volker, Senate Print 1233, an 18 act to amend the Executive Law, in relation to 19 civil actions against employees. 20 SENATOR PATERSON: Explanation. 21 ACTING PRESIDENT KUHL: Senator 22 Volker, an explanation has been asked for by the 23 Deputy Minority Leader, Senator Paterson. 24 SENATOR VOLKER: The 25 distinguished Deputy Minority Leader, Senator 3386 1 Paterson. O.K. 2 This bill -- what this bill would 3 do is basically conform the law to lawsuits that 4 are currently filed against the Department of 5 Corrections and Parole so that those suits would 6 have to be filed in the Court of Claims. 7 What's happened is that over the 8 years, even though the statute does not 9 necessarily provide for it, some court cases 10 have allowed lawsuits to be filed in both the 11 Supreme Court, in other words courts outside the 12 Court of Claims, and the Court of Claims. In 13 all honesty, some rather clever attorneys have 14 been playing off the Supreme Court against the 15 Court of Claims. These are suits, by the way, 16 for -- lawsuits against the State Police for 17 actions done in the course of their conduct. 18 This is not for anything that is not done in the 19 course of their employment and, of course, also 20 if the acts are intentional torts, in other 21 words if they commit acts that are intentional, 22 it would be beyond the scope of their authority 23 and, therefore, you can sue them anywhere which 24 would probably, of course, be in Supreme Court. 25 There was a memo put out, and it 3387 1 sort of dismisses the Corrections Department and 2 Parole and says this doesn't apply there. Well, 3 it doesn't apply there because right now you can 4 only sue them in the Court of Claims. So what 5 we're doing here is conforming the State Police 6 to the same rules that apply to Corrections and 7 to the Parole Department. Needless to say, this 8 bill was filed by the way, was given to me by 9 the Division of State Police. 10 Mr. President, just a couple more 11 things. The objections to this, so that you 12 realize is that the Trial Lawyers have filed an 13 objection claiming that, under a court case, 14 which is true, there has been a court case, 15 several cases on point here that have stated 16 that a litigant has the right to a trial by jury 17 in Supreme Court which you don't have in the 18 Court of Claims, and, therefore, what this bill 19 would do would be, in effect, overrule that case 20 which this Legislature clearly has the right to 21 do and provide that those claims would have to 22 be filed in the Court of Claims rather than the 23 Supreme Court and/or both places because that's 24 what a lot of these claims -- what happens to a 25 lot of these claims. 3388 1 ACTING PRESIDENT KUHL: Is there 2 any other Senator wishing 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 immediately. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll. ) 10 ACTING PRESIDENT KUHL: Record 11 the negatives; announce the results. 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 616 are Senators 14 Connor, Leichter, Montgomery, Paterson and 15 Sampson. Ayes 52, nays 5. 16 ACTING PRESIDENT KUHL: The bill 17 is passed. 18 Secretary will continue to read 19 the controversial calendar in regular order. 20 THE SECRETARY: Calendar 21 Number - 22 ACTING PRESIDENT KUHL: The Chair 23 recognizes Senator Smith. 24 SENATOR SMITH: Mr. President, I 25 request unanimous consent to be recorded in the 3389 1 negative on Calendar Number 616. 2 ACTING PRESIDENT KUHL: Without 3 objection, hearing no objection, Senator Smith 4 will be recorded in the negative on Calendar 5 Number 616. Secretary will continue to read the 6 -- Senator Holland. 7 SENATOR HOLLAND: Mr. President, 8 can you recognize Senator Montgomery for a 9 minute, please. 10 ACTING PRESIDENT KUHL: Chair 11 recognizes Senator Montgomery. 12 SENATOR MONTGOMERY: Thank you. 13 Thank you, Mr. President. I would like to, on 14 behalf of one of my colleagues, Senator Al 15 Waldon, who is not here, to acknowledge in our 16 chamber a group of young people who are visiting 17 the state Capitol from the Law Government and 18 Community Service Magnet High School of Queens, 19 and they are accompanied by their class 20 coordinator, Hakim Nkoma, their science teacher, 21 Miss Thaddea Lewis and their school aide, Mr. 22 Philip White. 23 We are always happy when young 24 people can visit us and see us in action. This 25 is a day when certainly we are debating bills 3390 1 which impact on their lives and their future and 2 I welcome them and welcome the opportunity for 3 them to see their government up close. 4 ACTING PRESIDENT KUHL: Thank 5 you, Senator Montgomery. 6 Welcome on behalf of Senator 7 Waldon and Senator Holland. 8 Regular order. Secretary will 9 continue the regular order controversial 10 calendar. 11 THE SECRETARY: Calendar Number 12 646, by Senator Seward, Senate print 4278, an 13 act to amend the Public Service Law, in relation 14 to increasing the statutory ceiling for non 15 major changes. 16 ACTING PRESIDENT KUHL: Secretary 17 will read the last section. 18 THE SECRETARY: Section 5. This 19 act shall take effect immediately. 20 ACTING PRESIDENT KUHL: Senator 21 Leichter, you requesting an explanation? 22 Senator Seward, an explanation of 23 Calendar 646 has been requested by Senator 24 Leichter. 25 SENATOR SEWARD: Certainly, Mr. 3391 1 President. This is a bill which has passed in 2 the past unanimously. It would change the 3 definition of a major change in rates for 4 electric, gas, steam, water or telephone 5 services to mean -- the change would mean an 6 increase in the aggregate revenues in excess of 7 the greater of either $300,000 or 2.5 percent. 8 Under this change, the definition would increase 9 the statutory ceiling from the current 100,000 10 to 300,000 for the non-major changes. 11 This -- this has not changed 12 since the 1930s, and it is meant to assist the 13 customers of some of our smaller utility 14 companies to avoid the high costs of going 15 through a full-blown public hearing process when 16 we're really looking at some non-major changes 17 in rates. 18 ACTING PRESIDENT KUHL: Any other 19 Senator wishing to speak on the bill? Hearing 20 none, Secretary will read the last section. 21 THE SECRETARY: Section 5. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 24 roll. 25 (The Secretary called the roll. ) 3392 1 THE SECRETARY: Ayes 57. 2 ACTING PRESIDENT KUHL: The bill 3 is passed. 4 THE SECRETARY: Calendar Number 5 649, by Senator Saland, Senate Print 665, an act 6 to amend the Criminal Procedure Law, the Family 7 Court Act, the Penal Law and the Public Health 8 Law, in relation to the testing of certain 9 criminal defendants. 10 SENATOR LEICHTER: Explanation. 11 ACTING PRESIDENT KUHL: Senator 12 Saland, an explanation has been asked for by the 13 Acting Minority Leader, Senator Leichter. 14 SENATOR SALAND: Thank you, Mr. 15 President. 16 Mr. President, this bill is a 17 bill which this chamber has entertained 18 previously. It's a bill which builds on the 19 efforts of this house to deal with the issue of 20 people who have been subjected to sexual 21 offenses, who desire the ability to make 22 application to a court to determine if, in fact, 23 their -- the perpetrator of these acts, these 24 sexual offenses or in other cases assaults as 25 defined in the bill, are in fact carriers of a 3393 1 transmissible disease. 2 The bill does a number of 3 things. We well recall that back in 1995 we 4 passed legislation which enabled New York to 5 require testing where there had been a 6 conviction. This bill attempts to do some 7 additional changes to the law. First it adds to 8 the list of crimes for which court ordered 9 testing could be required. 10 Second, it permits the testing, 11 not merely post-conviction but permits it 12 pre-conviction. 13 Thirdly, it continues to maintain 14 confidentiality, which certainly is something 15 which I believe we should all be concerned with 16 and it attempts to balance both confidentiality 17 and the needs of victims so what this bill does 18 in many respects is akin to what is already 19 permitted in the federal law. 20 Under federal law, even right 21 here in the state of New York, a victim can make 22 application to a federal court and the case 23 currently allows the state court to get 24 permission through the order of a federal judge 25 to have an assailant tested pre-conviction. 3394 1 ACTING PRESIDENT KUHL: Senator 2 Leichter. 3 SENATOR LEICHTER: Yes, Mr. 4 President. If Senator Saland will yield to 5 several questions. 6 ACTING PRESIDENT KUHL: Senator 7 Saland, do you yield to Senator Leichter? 8 SENATOR SALAND: Yes. 9 ACTING PRESIDENT KUHL: Senator 10 yields. 11 SENATOR LEICHTER: Senator, what 12 sort of tests, or shall I say standard, is used 13 by the courts in determining whether to permit 14 the testing of a defendant prior to conviction? 15 SENATOR SALAND: Senator 16 Leichter, the bill provides for the means by 17 which the applicant can make his or her 18 application and the procedure by which that will 19 be entertained, and I'm thumbing through the 20 bill looking for the exact section as I attempt 21 to respond to you. I'm looking for the section 22 and in the absence of my ability to find it, let 23 me give you, in substance, as I recollect. 24 What the bill does is, it enables 25 the petitioner to make application to the court. 3395 1 One of the conditions precedent to that applica 2 tion is her or his being advised of the import 3 ance of counseling, in fact that there has been 4 counseling involved. 5 The bill then goes on to provide 6 that, upon the request being made, the authori 7 zation shall be to undergo prompt readily 8 accessible and scientifically recognized 9 laboratory testing at state expense. 10 SENATOR LEICHTER: Mr. President, 11 if Senator Saland will continue to yield? 12 ACTING PRESIDENT KUHL: Senator 13 Saland, do you continue to yield? 14 SENATOR SALAND: Yes, Mr. 15 President. 16 ACTING PRESIDENT KUHL: Senator 17 continues to yield. 18 SENATOR LEICHTER: Mr. President, 19 what you just read doesn't address my question. 20 What I'm concerned about is that we have an 21 instance here where somebody is charged with a 22 crime but not yet convicted, and what I -- there 23 obviously has to be a hearing which your bill 24 sets up to determine if the defendant, the 25 unconvicted defendant, is to be tested, and my 3396 1 question to you is, does your bill set forth any 2 standard by which the court is to determine that 3 this defendant is to be tested? 4 This defendant, he's not been 5 convicted; he has certain constitutional 6 rights. He's presumed to be innocent. Does 7 there have to be a finding of probable cause or 8 some other standard that your bill sets forth? 9 SENATOR SALAND: I'm looking at 10 page 1 of the bill, paragraph 7. 11 SENATOR LEICHTER: Senator, I 12 don't think that sets forth any standard that 13 the court is to apply in determining whether a 14 test should be made. If I may continue, 15 Senator, it seems to me that this bill -- and I 16 can't say I've exhaustively studied it, but it 17 doesn't seem to set forth any standard at all 18 for a decision that a defendant has been 19 indicted and charged in one of the enumerated 20 crimes. 21 SENATOR SALAND: Senator 22 Leichter, if that -- if that implies a 23 constitutional argument, in effect a privacy 24 argument, I do believe the fact that we require 25 under this bill that there be either an 3397 1 indictment or being held over on an information 2 is adequate to establish the probable cause that 3 a long line of cases, be they Supreme -- U. S. 4 Supreme Court cases or state appellate court 5 cases, have already determined to be adequate, 6 and, in fact, as I mentioned earlier, this 7 method does exist in the state of New York. 8 Unfortunately, the applicant is required to go 9 to federal court and go through a rather lengthy 10 process, and I recall reading not too long ago, 11 probably near the end of last year of one 12 instance in which the district attorney in Kings 13 County, in Brooklyn, had a case involving a 14 precedent rape victim and due to the inability 15 to access the means to test in state court, his 16 office was forced to petition the federal court 17 to -- on behalf of the victim to learn if that 18 -- if the defendant was HIV positive and what 19 had occurred was that -- I believe months of 20 litigation before the order was finally entered 21 by the court. 22 SENATOR LEICHTER: Well, Senator, 23 if you'll continue to yield. 24 ACTING PRESIDENT KUHL: Senator 25 Saland, do you continue to yield? 3398 1 SENATOR SALAND: Yes, Mr. 2 President. 3 ACTING PRESIDENT KUHL: Senator 4 continues to yield. 5 SENATOR LEICHTER: I am concerned 6 that when you subject somebody who is presumed 7 to be innocent to a test, that I -- that the 8 absence either of finding probable cause beyond 9 just the mere fact that somebody has been 10 indicted or there's an information or making a 11 showing of medically necessary, now I think with 12 some of the changes that have occurred in the 13 treatment of AIDS, it may well be that if 14 somebody who is pregnant is raped, that there's 15 a medical benefit in finding out if the alleged 16 perpetrator was HIV infected or infected with 17 some other sexually transmitable disease. 18 But your bill isn't limited to 19 that. Your bill involves any number of 20 instances where I submit to you, you have failed 21 to show that there's a medical -- or I can show 22 you there's no medical advantage. So at the 23 very least, shouldn't you, in those instances, 24 require the court to make some finding that the 25 defendant, beyond just the indictment or the 3399 1 information, probably committed the act that 2 he's charged with? 3 SENATOR SALAND: There is no way 4 that you could possibly expect that there would 5 be any ruling by a court on such an application 6 that did not fail to meet some evidentiary 7 standard adequate for purposes of probable cause 8 and again -- again, the essence of the case law 9 is, is there probable cause on the one hand and 10 secondly, is there a reasonable medical 11 procedure available to accomplish the ends of 12 the testing? 13 SENATOR LEICHTER: Mr. President, 14 if the good Senator will continue to yield. 15 ACTING PRESIDENT KUHL: Senator 16 Saland, do you continue to yield? 17 SENATOR SALAND: Yes, Mr. 18 President. 19 SENATOR LEICHTER: It may be that 20 some of the cases have correctly set forth that 21 standard, and why didn't you put that in your 22 bill? Why did you infer or imply what the 23 courts will do? Why didn't you just write it in 24 your bill? 25 SENATOR SALAND: Let me suggest 3400 1 to you, and perhaps I was looking in the wrong 2 section, over on page 3, line 45, establishes a 3 "good cause" measure which determines whether, 4 in fact, the court will entertain the applica 5 tion and, in turn, rule on the application. 6 SENATOR LEICHTER: Senator 7 Saland, if you will continue to yield. 8 ACTING PRESIDENT KUHL: Senator 9 Saland, do you continue to yield? Senator 10 Saland, do you continue to yield? 11 SENATOR SALAND: Yes, Mr. 12 President. 13 ACTING PRESIDENT KUHL: Senator 14 continues to yield, I think. Senator Leichter, 15 I'm not sure. 16 SENATOR LEICHTER: Yes, let us - 17 just so we move this along, if you would yield 18 for a number of questions, Senator Saland. I 19 know he always does and very vigorously and 20 effectively defends his bills. But, Senator, 21 that particular provision that you've read to me 22 deals only with persons who are convicted. It 23 doesn't address the example that you and I were 24 discussing of an unconvicted defendant. 25 SENATOR SALAND: Senator 3401 1 Leichter, in my haste to try and find the 2 section, I'm having difficulty listening and 3 responding and looking all at once. I would 4 repeat again to you that there has to be, as 5 well you know as a practicing attorney, a 6 standard, and the standard has to be one which 7 assures that the individual who is proposed to 8 be the subject of the test, the so-called 9 perpetrator, is in fact not being denied his or 10 her rights. 11 SENATOR LEICHTER: Well, Mr. 12 President. Let me ask you -- let's put that 13 aside, Senator, and I'd like to afterwards 14 address that because I think it's a real 15 weakness in the bill, but let me ask you about a 16 convicted defendant, and I have a lot of 17 problems understanding. 18 Generally with convicted 19 defendants, we don't have the problem that some 20 of the due process issues are different, there's 21 no question about that, but there I have 22 difficulty seeing how there can ever be a 23 benefit. I mean conviction occurs, as we know 24 particularly for crimes of this nature, months 25 and sometimes well over a year or even two years 3402 1 after the crime was committed. What is -- what 2 possible medical benefit can there be to test 3 somebody after that long period of time? 4 That -- the victim should have 5 been tested and should have been counselled long 6 ago to be tested. Let's -- what do you 7 conceivably gain medically by testing somebody 8 two years after they allegedly committed or a 9 rape to see if that person is HIV positive? 10 SENATOR SALAND: Let me suggest 11 to you, Senator Leichter, that I think you've 12 just, at least in substantial part, made my 13 argument for why we should have pre-conviction 14 testing. I have advocated probably back in 1992 15 or 1993 for that particular standard. 16 The bill that ultimately was 17 passed in 1995 was somewhat, I must confess 18 disappointingly to me, limited to the post 19 conviction standard. I do believe that there 20 will be a number of victims who may be 21 interested by even a post-conviction standard 22 but I think the value of this kind of a law is 23 to move up the date and time of testing and to 24 make it applicable prior to conviction which, as 25 you know, can take a considerable amount of 3403 1 time. 2 SENATOR LEICHTER: Yes. 3 ACTING PRESIDENT KUHL: Senator 4 Leichter. 5 SENATOR LEICHTER: Senator Saland 6 then, if you will continue to yield. 7 Then you agree with me that as 8 far as post-conviction testing is concerned, 9 it's a very limited or marginal benefit, and in 10 fact I can't see any benefit at all. Can you 11 give me an example - 12 SENATOR SALAND: I think - 13 SENATOR LEICHTER: Could you just 14 give me one example of a conviction other than 15 if the conviction should occur within a month of 16 the alleged act, and I think that's almost 17 impossible and unheard of in our legal system, 18 but can you give me any benefit whatsoever to 19 testing a convicted defendant after conviction, 20 after sentencing? What medical benefit is there? 21 SENATOR SALAND: Well, number 22 one, please don't impute that what I'm doing 23 here is using the medical benefit standard. I 24 mean the medical benefit standard doesn't deal 25 with things such as psychological or psychiatric 3404 1 trauma which many victims, unfortunately, endure 2 as part of being violated. There certainly is 3 not necessarily the clear-cut medical benefit 4 standard that you happen to be looking for, but 5 let me suggest to you I would not characterize 6 my position as being one that saw concerns of a 7 minimal benefit from post-conviction testing. 8 We have gone through this debate before and you, 9 perhaps more than I, are certainly one of the 10 most outstanding members of this chamber on 11 issues of choice. You're constantly talking 12 about issues of choice, and this is no more than 13 a choice bill. 14 This is a bill which basically is 15 going to repose in someone who has been violated 16 the ability to make application, use his or her 17 intellect to determine whether or not, after 18 being in counseling, they wish to have -- after 19 being subjected to participation in counseling, 20 they wish to have their assailant tested. 21 I'm all for moving it back. 22 Governor Cuomo, in 1990, constituted a task 23 force that came out in favor of pre-conviction 24 testing with no medical, reasonable -- no 25 "medically reasonable" standard required, so 3405 1 that occurred in 1990. He disavowed it or 2 ignored it, but he is the one who had a task 3 force constituted which included medical people 4 as well that came to that conclusion. 5 ACTING PRESIDENT KUHL: Senator 6 Leichter, does that complete your interrogation 7 of Senator Saland? 8 SENATOR LEICHTER: I believe the 9 Acting Majority Leader is anxious to be heard. 10 ACTING PRESIDENT KUHL: Did you 11 have any further questions? 12 SENATOR LEICHTER: Yes, I do. 13 ACTING PRESIDENT KUHL: Senator 14 Holland? 15 SENATOR HOLLAND: Could we 16 suspend the debate for a moment and open the 17 roll for Senator Wright, please. 18 THE SECRETARY: Section 8. This 19 act shall take effect immediately. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 THE SECRETARY: Senator Wright. 23 ACTING PRESIDENT KUHL: Senator 24 Wright, how do you vote? 25 SENATOR WRIGHT: Aye. 3406 1 ACTING PRESIDENT KUHL: The roll 2 call is withdrawn. 3 Are you asking Senator Saland to 4 yield? 5 SENATOR LEICHTER: Yes, I am. 6 ACTING PRESIDENT KUHL: Senator 7 Saland, do you continue to yield? 8 SENATOR SALAND: Yes, I do, 9 Senator. 10 After I gave him all those 11 accolades, Senator, what possibly, after all 12 those accolades, can you stand up and ask? 13 Senator Gold was unhappy about it, but that's 14 all right. 15 SENATOR LEICHTER: I appreciate 16 your accolades, Senator, but I think that to 17 infer that this is a matter of choice, certainly 18 the choice of the victim should be to be tested, 19 and I happen to think that those parts of your 20 bill which move toward testing of the victim are 21 absolutely correct. We need to test the victim, 22 and I'd like to do that at state expense, but 23 that's the choice of the victim. 24 You're not -- you're not taking 25 the position that choice means that I can use 3407 1 what will happen to you, and that's really what 2 you're arguing in this instance. 3 SENATOR SALAND: You know, 4 Senator Leichter, what I'm arguing is that there 5 is a probable cause standard which says that if 6 you've been indicted, if you've been held over 7 on an information, you have reached that 8 plateau, evidentiary plateau, that's adequate to 9 enable this type of testing, and there are 10 people in the state of New York even in state 11 court proceedings that have the ability, through 12 a somewhat lengthier perhaps more tortured way, 13 to make application to a federal court to get an 14 order to enable them to do this, and there's no 15 -- no intention here, nor would I ever intend 16 to violate anybody's confidentiality, and this 17 bill, I believe accommodates that confidential 18 ity. 19 I believe this bill represents a 20 balance of the interests of the victim with the 21 rights of confidentiality after a probable cause 22 standard has been met of the defendant. I 23 believe, under the circumstances, that is an 24 appropriate way for us to intervene and to 25 assist the victim. 3408 1 SENATOR LEICHTER: Mr. President, 2 if Senator Saland would yield, we'll try to make 3 this the last question. I will try. 4 Senator Saland, let me go back to 5 a question I asked you before, and I don't 6 believe you answered it. Dealing now with the 7 convicted defendant, convicted person, of some 8 crime involving the possibility of sexual 9 transmitted disease, can you give me one 10 example, one example of a medical benefit that 11 would occur of testing a convicted person other 12 than the very dubious matter that you threw out, 13 Well, it may be psychologically satisfying to 14 the victim. 15 That's not a medical benefit to 16 the -- to the victim. Can you give me, other 17 than that, any medical benefit? 18 SENATOR SALAND: Senator 19 Leichter, I would come back to what I said 20 before, and I would add to that, I do not 21 understand why, with the protection of the 22 confidentiality that has been provided, why 23 there should be any public policy that would 24 oppose this type of testing. 25 There is no reason in the world, 3409 1 if you've sat through the countless hearings I 2 have sat through, if you've met with the various 3 victims that I've met with and yes, I will 4 acknowledge that there's a difference of opinion 5 in some of the victims' advocacy community, and 6 if you sat through that and if you could show me 7 where the prejudice is, where there is a 8 likelihood or the possibility of the violation 9 of confidentiality, perhaps I would pause and 10 reflect on what you're having to say, but we're 11 obviously coming to our respective conclusions 12 180 degrees apart, and there is little or no 13 ability, I believe, to reconcile those 14 differences. 15 We've certainly gone through this 16 debate before, and I say nothing to denigrate 17 the position that you take. It's one with which 18 I vehemently disagree, and obviously you with 19 equal fervor disagree with my position. 20 SENATOR LEICHTER: Mr. 21 President. Thank you very much, Senator Saland, 22 for your usual vigorous defense of this bill. 23 But I must say, Senator, I've not 24 heard in any of our debates what I think must be 25 the premise, the basis, for this bill. This is 3410 1 a medical benefit, a medical benefit for the 2 victim and, absent that, Senator, I have very 3 grave reservations why we should do this. I 4 think it essentially is a punitive bill. 5 Now, people who commit serious 6 crimes ought to be punished, and we do punish 7 them, but you can't go and take somebody's blood 8 unless there's a justification for it, and that 9 justification is lacking. 10 Let me just review your bill. It 11 has two parts. It deals with defendants charged 12 with crime, and it deals with defendants who 13 have been convicted. Let's take the latter 14 first. 15 Defendants who have been 16 convicted, I asked you a number of times, give 17 me one example having in mind the lapse of time 18 between the commission of a crime and conviction 19 in this state or probably in any society that 20 provides due process, given that length of time 21 show me any medical benefit, and other than 22 throwing out some hint that, well, maybe it will 23 be psychologically satisfying for the victim, 24 you've been unable to give me one instance where 25 there's a benefit and, of course, there is no 3411 1 benefit because if there is a sexually 2 transmitted disease, what you need to do is to 3 test the victim, and we ought to counsel the 4 victim for testing, and I like that portion of 5 the bill which gives the victim the right to be 6 tested at state expense. I think that is a 7 proper thing to do, and we ought to set up and 8 we ought to have a procedure whereby people who 9 have been victimized in a crime where there's a 10 possibility that they will contact AIDS or other 11 sexually transmitted disease, we ought to 12 counsel them to be tested immediately. They 13 shouldn't wait for the testing of the person 14 alleged to have committed the crime, and they 15 certainly shouldn't wait until conviction two 16 years later. 17 So I find no reason -- I have no 18 sympathy for somebody who has been found guilty 19 of committing such a crime, and I hope they're 20 in jail and I hope they're there for a long 21 time, but I'm not going to say, Well, we ought 22 to take their blood when there's no medical 23 benefit whatsoever. I don't think that we can 24 do it, and I don't think we gain anything by 25 doing it. 3412 1 Now, let's take the instance of a 2 person who is charged with a crime. A person 3 charged with a crime in almost 90 percent or 95 4 percent of the cases, given the current 5 knowledge of medical information, current 6 medical knowledge about AIDS, there is no 7 benefit in testing the defendant. You've got to 8 test the victim. You test the defendant -- and 9 we've been through this, Senator, and you've 10 never been able to answer it and everybody who 11 deals with this terrible disease of AIDS and 12 while your bill now refers to other sexually 13 transmitted diseases, essentially what 14 motivates, what prompts this bill is that 15 terrible disease of AIDS and everybody who deals 16 with it says, if you just test the defendant 17 that's insufficient, because the defendant may 18 be passing the HIV virus, but he may not test or 19 she may not test positive but, if you have -- if 20 you have an instance where the person does test 21 positive, in any event you've got to test the 22 victim. So the whole emphasis and our whole 23 orientation ought to be in testing the victim. 24 Now, you mentioned one case where 25 maybe there is a medical benefit because 3413 1 apparently medical knowledge now shows that, if 2 a woman is pregnant and she is HIV positive, 3 that by giving certain medications we may be 4 able to prevent the disease from passing on to 5 the child that she's carrying in her womb. So 6 under those circumstances maybe there's some 7 benefit in testing the defendant. 8 Certainly again you've got to 9 test the victim and that's really what the key 10 to the whole thing is, let's test the victim, 11 but I think maybe you want to be guided - 12 SENATOR SALAND: Mr. President, 13 will Senator Leichter yield to a question? 14 ACTING PRESIDENT KUHL: Senator 15 Leichter, do you yield to a question from 16 Senator Saland? 17 SENATOR LEICHTER: Yes. 18 ACTING PRESIDENT KUHL: Senator 19 does. 20 SENATOR SALAND: Senator 21 Leichter, in the course of our several debates 22 prior to today, have you ever heard me say that 23 the only person to be tested is the defendant, 24 or did you ever hear me say that the victim 25 should not be tested, because I think, Senator 3414 1 Leichter, this bill is premised, if you had 2 taken pains to read it, and regrettably my 3 calendar today did not permit me to review it 4 word by word, but it requires that the victim be 5 counselled; it enables the victim to self-test. 6 There can be no dealing with this issue, at 7 least this much we can agree on, without testing 8 of the victim and that service is provided for 9 in here and, as I said earlier, what we're 10 talking about is enabling people of their own 11 volition to make choices, guided by people who 12 have far more expertise than I believe anybody 13 in this chamber does. Again, having been 14 counselled by an appropriate counselor, to 15 enable him or her to arrive at the course of 16 treatment or as to whether to test even. 17 SENATOR LEICHTER: Senator, I've 18 said twice now, which shows that I did read your 19 bill, I've said twice that I like that part of 20 your bill which encourages testing of the 21 victim, and you've never said in all our debates 22 we shouldn't test the victim. 23 The question though is, what do 24 you gain by testing the defendant and that's 25 what I'm addressing, and I gave you, in fact, 3415 1 credit or at least gave you an example where 2 maybe you could find some benefit in testing the 3 defendant and that really came about just 4 recently because we now think that we can 5 possibly prevent or minimize the occurrence of 6 AIDS or HIV virus in a fetus. 7 So, in those instances where - 8 and I think that's really only where there would 9 be the rape of a pregnant woman, and I'm not so 10 sure that once the medical knowledge shows that 11 where the fetus was conceived by somebody who 12 had -- who was HIV positive that there may be an 13 ability to stop the spread of the disease, I 14 don't know if that's the case where somebody who 15 is already pregnant is raped, but certainly 16 where, as a result of a rape, the person becomes 17 pregnant and wishes to carry the fetus to term, 18 there may be some benefit by testing the 19 defendant. 20 Obviously you again have to test 21 the victim. But what you should do in those 22 cases, Senator, is require a finding by the 23 court that it is medically beneficial and that's 24 the problem I have with that part of your bill 25 which provides for the testing of somebody who 3416 1 is charged with a crime but has not yet been 2 convicted. In those instances, you need to have 3 some tests for the court. You don't have that 4 test. You try to read that test. You say, 5 well, of course, the court is going to do that. 6 I think you need a test both that is medically 7 beneficial and there needs to be probably or 8 there needs to be some probable cause conclusion 9 by the court. 10 So my difficulty with this bill, 11 Senator, is that I think this bill is a punitive 12 bill. It's a bill that's written without regard 13 to knowledge of what these sexually transmitted 14 diseases are. If you want to put the focus on 15 the victim, do that, put forth a bill that would 16 be helpful, that would be of social benefit, 17 that would assist people, but that's not really 18 what you have done. You want to be punitive. I 19 don't mind being punitive of people who have 20 committed these serious crimes, but the 21 punishment that we provide is time in jail, it's 22 not taking their blood two years later, and 23 particularly when you may actually end up 24 misleading victims who think, well, they're 25 going to be testing this person who committed 3417 1 this crime against me, and that in some way will 2 prevent my needing to be tested. 3 That's not the case, so, Senator, 4 those of us who vote against the bill -- and 5 there were a number of us -- do so not because 6 we have any sympathy for people who commit these 7 crimes, but we want to do something that really 8 helps the victims, and your bill doesn't, and I 9 think you had this bill before us in 1996, and I 10 see that Senators Abate, Connor, Espada, 11 Leichter, Markowitz, Mendez, Nanula, Paterson, 12 Santiago, Seabrook, Smith and Goodman voted 13 against the bill and similar bills that you've 14 had in other years. 15 A large number of people have 16 voted against solely and exclusively because it 17 fails to really assist victims. 18 ACTING PRESIDENT KUHL: Is there 19 any other Senator wishing to speak on the bill? 20 Hearing none, the Secretary will read the last 21 section. 22 THE SECRETARY: Section 8. This 23 act shall take effect immediately. 24 ACTING PRESIDENT KUHL: Call the 25 roll. 3418 1 (The Secretary called the roll. ) 2 ACTING PRESIDENT KUHL: Record 3 the negatives. 4 The Chair recognizes Senator 5 Abate, to explain her vote. 6 SENATOR ABATE: Yes, I'd like to 7 explain my vote. 8 As last year, again this year I 9 am voting against this bill. Like Senator 10 Saland and like Senator Leichter and the other 11 state Senators in the chamber, I too care about 12 crime victims, but in the name of crime victims 13 we can not offer them half a solution. What 14 they want is for the justice system to convict 15 individuals, to punish them, and in many cases 16 incapacitate those individuals. This bill does 17 not provide any real relief to crime victims. 18 I am basing my conclusion on the 19 recommendations made by the Governor's AIDS 20 Advisory Committee and also basing my opposition 21 on recent conversations I've had with the State 22 Coalition against Sexual Fault. This is a 23 coalition that represents crime victims 24 throughout the state. 25 What they want and what they say 3419 1 is they would support, and I would support 2 testing of defendants. Again these are 3 individuals not convicted, if in fact that 4 testing in individual circumstances provides a 5 medical benefit to the crime victim. 6 What this bill is silent on is 7 what we need for crime victims, and I'm hearing 8 there too from crime victims around the state. 9 They want PCR testing, and that is a testing 10 which is viral testing which shows whether a 11 victim has the virus. They do not want the 12 current state of the art testing which is the 13 elixir, and the elixir or the test that only 14 tests for antibodies. 15 They also want prophylactic 16 treatment on one and two hours of exposure. They 17 want health and law enforcement statewide 18 protocols to ensure that they get PCR testing 19 and treatment immediately and they want 20 mandatory counseling. 21 I look forward to working with 22 Senator Saland that incorporates a bill with 23 these provisions and that only for testing that 24 provides medical benefit to the victim. I hope 25 we can reach a compromise on this bill, and I'm 3420 1 available to work with Senator Saland. 2 I vote no. 3 ACTING PRESIDENT KUHL: Senator 4 Abate will be recorded in the negative. 5 Announce the results. 6 THE SECRETARY: Those recorded in 7 the negative on Calendar Number 649 are Senators 8 Abate, Breslin, Connor, Goodman, Leichter, 9 Markowitz, Montgomery, Paterson, Rosado, 10 Sampson, Santiago, Seabrook, Smith and Waldon. 11 Ayes 46, nays 14. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 Senator Holland. 15 SENATOR HOLLAND: Mr. President, 16 is there any housekeeping at the desk? 17 ACTING PRESIDENT KUHL: Yes, 18 there is. If we may return to the order of 19 motions and resolutions, the Chair would 20 recognize Senator Farley. 21 SENATOR FARLEY: Thank you, Mr. 22 President. 23 On behalf of Senator Marchi, on 24 page 45, I offer the following amendments to 25 Calendar Number 257, Senate Print 2581-A, and I 3421 1 ask that that bill retain its place on the Third 2 Reading Calendar. 3 ACTING PRESIDENT KUHL: 4 Amendments are received and adopted, and the 5 bill will retain its place on the Third Reading 6 Calendar. 7 Senator Farley. 8 SENATOR FARLEY: Mr. President, 9 on behalf of Senator Trunzo -- complicated 10 motion here -- I wish to call up Calendar Number 11 337, Assembly Print 2997. 12 ACTING PRESIDENT KUHL: Secretary 13 will read. 14 THE SECRETARY: Calendar Number 15 337, by member of the Assembly Vitaliano, 16 Assembly Print 2997, an act to amend the Civil 17 Service Law. 18 SENATOR FARLEY: I now move to 19 reconsider the vote by which this Assembly bill 20 was substituted for Senator Trunzo's bill, 21 Senate Print Number 1947, on March 18, 1997. 22 ACTING PRESIDENT KUHL: I think 23 the entire chamber is waiting to see if you get 24 this right, Senator Farley. 25 SENATOR FARLEY: I'm getting it 3422 1 right. 2 ACTING PRESIDENT KUHL: Secretary 3 will call the roll on reconsideration. 4 (The Secretary called the roll on 5 reconsideration. ) 6 ACTING PRESIDENT KUHL: Senator 7 Farley. 8 SENATOR FARLEY: I now move this 9 Assembly Bill Number 2997 be committed to the 10 Committee on Rules and that Senator Trunzo's 11 Senate bill be restored to the order of Third 12 Reading, Calendar Number 337. 13 You must act here and say it's in 14 the affirmative. It's up to you now. 15 ACTING PRESIDENT KUHL: Thank 16 you, Senator Farley, but we will commit the bill 17 and restore the Senate bill to the Third Reading 18 Calendar. 19 SENATOR FARLEY: You got it! 20 ACTING PRESIDENT KUHL: Thank 21 you, Senator Farley. 22 SENATOR HOLLAND: Will you 23 recognize Senator Nanula, please, Mr. President. 24 ACTING PRESIDENT KUHL: Senator 25 Nanula. 3423 1 SENATOR NANULA: Thank you, Mr. 2 President. 3 I'd like to request unanimous 4 consent to be recorded in the negative on 5 Calendar Number 649. 6 ACTING PRESIDENT KUHL: Without 7 objection, hearing no objection, Senator Nanula 8 will be recorded in the negative on Calendar 9 Number 649. 10 Senator Holland. 11 SENATOR HOLLAND: I want to 12 congratulate Senator Farley on that motion we 13 had, and there being no further business, I move 14 that we adjourn until Tuesday, May 13th, at 3:00 15 p.m. 16 ACTING PRESIDENT KUHL: Without 17 objection, the Senate stands adjourned until 18 tomorrow, Tuesday, May 13th, at 3:00 p.m. 19 (Whereupon, at 4:20 p.m., the 20 Senate adjourned.) 21 22 23 24 25