Wednesday, May 28, 1997

4196 1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 May 28, 1997 11 3:06 p.m. 12 13 REGULAR SESSION 14 15 16 17 LT. GOVERNOR BETSY McCAUGHEY ROSS, President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 24 25 4197 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 come to order. Would you please rise and join me 4 in the Pledge of Allegiance. 5 (The assemblage repeated the 6 Pledge of Allegiance to the Flag. ) 7 May we bow our heads in a moment 8 of silence. 9 (A moment of silence was 10 observed. ) 11 The reading of the Journal, 12 please. 13 THE SECRETARY: In Senate, 14 Tuesday, May 27th. The Senate met pursuant to 15 adjournment. The Journal of Saturday, May 24th, 16 was read and approved. On motion, Senate 17 adjourned. 18 THE PRESIDENT: Without 19 objection, the Journal stands approved as read. 20 Presentation of petitions. 21 Messages from the Assembly. 22 Messages from the Governor. 23 Reports of standing committees. 24 Secretary will read. 25 THE SECRETARY: Senator Lack, 4198 1 from the Committee on Judiciary, hands up the 2 following nomination: 3 As a judge of the New York State 4 Court of Claims, Russell P. Buscaglia, of Erie 5 County. 6 THE PRESIDENT: Senator Lack. 7 SENATOR LACK: Thank you, Madam 8 President. 9 I rise to move the nomination of 10 Russell P. Buscaglia, of Erie County, who has 11 been nominated by the Governor as a judge of the 12 New York State Court of Claims. Mr. Buscaglia 13 has been examined by myself and the staff of the 14 committee. His credentials have been found to 15 be certainly honorable. He appeared before the 16 committee this morning, was unanimously voted to 17 the floor of the Senate, and it's with pleasure 18 that I -- where is Senator Rath? -- that I 19 yield for the purpose of a seconding to Senator 20 Rath. 21 ACTING PRESIDENT MARCELLINO: The 22 Chair recognizes Senator Rath. 23 SENATOR RATH: Yes, it gives me 24 great pleasure to rise on behalf of a friend and 25 a colleague from Erie County, Russ Buscaglia, as 4199 1 he ascends to the bench. Let me say, by way of 2 background, Mr. Buscaglia served in the United 3 States Attorney's office, the Erie County 4 District Attorney's office, served in private 5 practice, and has served in many and varied 6 community organizations and activities. 7 He, of course, went to SUNY 8 Buffalo which all of us take with great pride 9 when one of our folks from SUNY-Buffalo ascends 10 to the bench. It's with great pleasure and 11 pride that I second the nomination of Russ 12 Buscaglia. 13 ACTING PRESIDENT MARCELLINO: 14 Senator Volker. 15 SENATOR VOLKER: Yes, if I may 16 say also that I want to offer my congratulations 17 to the Governor for the nomination of Russ 18 Buscaglia, who is one of the most prominent 19 attorneys in the Buffalo area, super prosecutor 20 as we called him, in both the district attorney 21 and the federal attorney's office as well as 22 head of the Medicaid Fraud Unit of the Attorney 23 General for some time. 24 There is no question that the 25 Court of Claims is getting a person who's 4200 1 probably as competent as any that has ascended 2 to that office to deal with some of the criminal 3 problems of the state. He comes from a 4 wonderful family, father, who I understand is 5 here and whose wife is also here. We wish him 6 the very best and I think he is one of the very 7 best, and I know he will make a super Court of 8 Claims judge. 9 ACTING PRESIDENT MARCELLINO: The 10 question is on the confirmation of Russell 11 Buscaglia as judge of the Erie County Court of 12 Claims. All in favor signify by saying aye. 13 (Response of "Aye.") 14 All opposed nay. 15 (There was no response. ) 16 Russell Buscaglia is hereby 17 confirmed as judge of the Erie County Court of 18 Claims. Congratulations, Judge Buscaglia. 19 (Applause). 20 The judge is joined by his father 21 George Buscaglia, his sister Angela Marranca, 22 niece and nephews Lindsey, Paul and Russell, 23 friends John Long and Dawn Warsaw. We 24 congratulate you on a long and successful tenure 25 in your new position. 4201 1 Secretary will read. 2 THE SECRETARY: As judge of the 3 Westchester County Court, Mark C. Dillon, of 4 Yorktown. 5 ACTING PRESIDENT MARCELLINO: 6 Senator Lack. 7 SENATOR LACK: Thank you, Mr. 8 President. 9 I rise to move the nomination of 10 Mark C. Dillon, of Yorktown, who has been 11 nominated by the Governor to the position of 12 judge of the Westchester County Court. Judge 13 Dillon's credentials have been scrupulously 14 examined by the Judiciary Committee, have been 15 found to be completely in order. He appeared 16 before the committee this morning and was 17 unanimously moved from the committee to the 18 floor, and I would yield for purposes of a 19 second to Senator Leibell. 20 ACTING PRESIDENT MARCELLINO: 21 Chair recognizes Senator Leibell. 22 SENATOR LEIBELL: Thank you very 23 much, Mr. President. 24 As Senator Lack noted, we had the 25 opportunity this morning to, at the Judiciary 4202 1 Committee, to consider the qualifications of 2 Mark Dillon to be moved to the County Court 3 judge as -- County Court Judge of Westchester 4 County. 5 I'm very pleased to rise. I've 6 had the opportunity to know Judge Dillon on a 7 personal basis and professionally for a great 8 many years. He is extremely well qualified. 9 New York educated, he has had an extensive legal 10 career including -- commencing in the 11 Westchester County District Attorney's office 12 and currently serving with one of the most 13 prominent law firms in Westchester County. 14 He has also served as a town 15 judge for many years, now in the town of 16 Yorktown which is within my district, and in 17 that capacity has handled literally thousands of 18 cases, both civil and criminal, that have come 19 before him, besides which he has also served as 20 an instructor to other judges throughout our 21 area. 22 Mr. President, I'm immensely 23 pleased to have the opportunity today to stand 24 here and to move this nomination of Judge Mark 25 Dillon. 4203 1 Thank you. 2 ACTING PRESIDENT MARCELLINO: 3 Senator Spano. 4 SENATOR SPANO: Thank you, Mr. 5 President. 6 The -- it's my pleasure to join 7 with Senator Lack and Senator Leibell in 8 seconding the nomination of Judge Dillon. A 9 person who has served with distinction as a 10 village justice, and, of course, the Judiciary 11 Committee has taken a look at his legal 12 experience which is expected, but the real mark 13 of a person is to take a look at the activities 14 that he's been involved in in the community back 15 in Westchester County, as a member of the 16 National Eagle Scouts Association and his 17 involvement with the Boy Scouts of America and 18 the Council; the time that he has put in as a 19 director of the Great Hunger Foundation, the 20 putting time as a lector of the church and also 21 being the president of the Young JCs. Mark 22 Dillon has really demonstrated the type of 23 commitment and the type of person, human person, 24 that he is to deal with the issues facing the 25 County Court in Westchester County. 4204 1 He's continued to serve to the 2 present time as the co-chairman of the 3 Westchester County Council on Domestic Violence 4 and working on an issue that so many of us are 5 so concerned about. So it's just my pleasure to 6 second this nomination and to commend the 7 Governor for his selection of someone who really 8 deserves the unanimous support of all the 9 members of the Senate in his confirmation for 10 the County Court of Westchester County. He will 11 certainly make us proud. 12 Judge Dillon, congratulations. 13 ACTING PRESIDENT MARCELLINO: The 14 question is on the confirmation of Mark Dillon 15 as judge of the Westchester County Court. All in 16 favor signify by saying aye. 17 (Response of "Aye.") 18 Opposed nay. 19 (There was no response. ) 20 Mark Dillon is hereby confirmed 21 as judge of the Westchester County Court. We 22 congratulate you, Judge Dillon, and we note that 23 you are here with your wife Michelle and your 24 three daughters Maura, Monica and Megan, and 25 before I suggest a round of applause for you, I 4205 1 say Maura? O.K. 2 Congratulations once again and I 3 hope your service is long and well respected. 4 (Applause) 5 Return to reports of select 6 committees. 7 Communications and reports from 8 state officers. 9 Motions and resolutions. The 10 Chair recognizes Senator Farley. 11 SENATOR FARLEY: Thank you, Mr. 12 President. 13 I have a motion on behalf of 14 Senator Hannon to restore an amended Senate 15 bill. I move to amend Senate Bill Number 4361 16 A, by striking out the amendments that were made 17 on May 27th and restoring it to its original 18 print number, which is 4361. 19 ACTING PRESIDENT MARCELLINO: So 20 ordered. 21 Senator Skelos, the resolution 22 calendar? Hello! 23 SENATOR SKELOS: Mr. President, 24 prior to taking up the Resolution Calendar, we 25 should take up the non-controversial calendar. 4206 1 ACTING PRESIDENT MARCELLINO: May 2 we take up the non-controversial calendar. 3 The Secretary will read. 4 THE SECRETARY: Calendar Number 5 143, by Senator Wright, Senate Print 1659-A, an 6 act to amend the Vehicle and Traffic Law, in 7 relation to creating the crime of aggravated 8 driving while intoxicated. 9 SENATOR PATERSON: Lay aside. 10 ACTING PRESIDENT MARCELLINO: Lay 11 the bill aside. 12 THE SECRETARY: Calendar Number 13 334, by member of the Assembly Vitaliano, 14 Assembly Print 1484, an act to amend the Civil 15 Service Law. 16 ACTING PRESIDENT MARCELLINO: Lay 17 this bill aside for the day. 18 THE SECRETARY: Calendar Number 19 434, by Senator Seward, Senate Print 3267, an 20 act to amend the Town Law, in relation to 21 non-resident volunteer firefighters. 22 ACTING PRESIDENT MARCELLINO: 23 Read the last section. Ah, I tried. 24 SENATOR PATERSON: Lay aside. 25 ACTING PRESIDENT MARCELLINO: All 4207 1 right, Senator. Lay it aside. 2 THE SECRETARY: Calendar Number 3 456, by Senator Marcellino, Senate Print 3679-A, 4 an act to amend the Environmental Conservation 5 Law, in relation to scup and black sea bass. 6 SENATOR GOLD: Lay it aside. 7 (Inaudible comment by a member.) 8 ACTING PRESIDENT MARCELLINO: 9 This is a lay aside from yesterday. (Inaudible) 10 This is Calendar Number 456 that was laid aside 11 yesterday for the day. It is on the calendar. 12 SENATOR SKELOS: The supplemental 13 active. 14 SENATOR GOLD: No, it isn't 15 there. 16 ACTING PRESIDENT MARCELLINO: The 17 Supplemental Active List Number 1, page number 18 1. (Inaudible) Bill is laid aside. 19 THE SECRETARY: Calendar Number 20 664, by Senator Nozzolio, Senate Print Number 21 4084-A, an act to amend the Civil Practice Law 22 and Rules. 23 SENATOR PATERSON: Lay it aside, 24 please. 25 ACTING PRESIDENT MARCELLINO: Lay 4208 1 it aside. 2 THE SECRETARY: Calendar Number 3 819, by Senator Lack, Senate Print 3479, an act 4 to amend the General Municipal Law. 5 ACTING PRESIDENT MARCELLINO: 6 Read the last section. 7 SENATOR PATERSON: Lay that 8 aside. 9 ACTING PRESIDENT MARCELLINO: Lay 10 it aside, please. 11 THE SECRETARY: Calendar Number 12 821, by Senator Alesi, Senate Print 3569, an act 13 to amend the Real Property Tax Law. 14 SENATOR PATERSON: Lay aside. 15 ACTING PRESIDENT MARCELLINO: Lay 16 it aside. 17 THE SECRETARY: Calendar Number 18 822, by Senator Libous, Senate Print 3721. 19 SENATOR GOLD: Lay aside. 20 ACTING PRESIDENT MARCELLINO: Lay 21 the bill aside, please. 22 THE SECRETARY: Calendar Number 23 829, by Senator Rath, Senate Print 4357, an act 24 to amend the Real Property Law and the 25 Agriculture and Markets Law. 4209 1 SENATOR PATERSON: Lay aside, 2 please. 3 ACTING PRESIDENT MARCELLINO: Lay 4 the bill aside. 5 THE SECRETARY: Calendar Number 6 846, by Senator Present, Senate Print 4112, an 7 act to enact the Private Activity Bond 8 Allocation Act of 1997. 9 SENATOR PATERSON: Lay aside. 10 ACTING PRESIDENT MARCELLINO: Lay 11 the bill aside. 12 THE SECRETARY: Calendar Number 13 848, by Senator Rath, Senate Print 4852, an act 14 to amend the State Administrative Procedure Act. 15 SENATOR GOLD: Lay aside. 16 ACTING PRESIDENT MARCELLINO: Lay 17 the bill aside. 18 THE SECRETARY: Calendar Number 19 862, by Senator Volker, Senate Print 4478, an 20 act to amend the Criminal Procedure Law. 21 SENATOR GOLD: Lay aside. 22 ACTING PRESIDENT MARCELLINO: Lay 23 the bill aside, please. 24 THE SECRETARY: Calendar Number 25 870, by Senator Volker, Senate Print 5180, an 4210 1 act to amend the Penal Law, in relation to 2 establishing the crime of absconding from a 3 residential treatment facility. 4 ACTING PRESIDENT MARCELLINO: 5 Read the last section. 6 THE SECRETARY: Section 3. This 7 act shall take effect immediately. 8 SENATOR PATERSON: Lay aside. 9 ACTING PRESIDENT MARCELLINO: Lay 10 the bill aside belatedly, please. 11 THE SECRETARY: Calendar Number 12 886, by Senator Goodman, Senate Print 3651, an 13 act to amend the Alcoholic Beverage Control 14 Law. 15 SENATOR PATERSON: Lay aside. 16 ACTING PRESIDENT MARCELLINO: Lay 17 the bill aside. This one, the one that was just 18 read? Bill will be laid aside for the day at 19 the request of the sponsor. 20 THE SECRETARY: Calendar Number 21 898, by Senator Goodman, Senate Print 4259-A, an 22 act to amend Chapter 674 of the Laws of 1993. 23 SENATOR PATERSON: Lay aside. 24 ACTING PRESIDENT MARCELLINO: 25 Bill will be laid aside for the day at the 4211 1 request of the sponsor. 2 THE SECRETARY: Calendar Number - 3 ACTING PRESIDENT MARCELLINO: 4 Ladies and gentlemen, if we please could have 5 some order in the house, we take the conversa 6 tions out of the room, please. It's very 7 difficult to hear the lay asides. 8 Secretary will continue to read. 9 THE SECRETARY: Calendar Number 10 901, by Senator Cook, Senate Print 4568, an act 11 to amend the Arts and Cultural Affairs Law. 12 SENATOR PATERSON: Lay aside. 13 ACTING PRESIDENT MARCELLINO: Lay 14 the bill aside, please. 15 THE SECRETARY: Calendar Number 16 910, by Senator Marchi, Senate Print 4015-A, an 17 act to amend the Navigation Law. 18 SENATOR PATERSON: Lay aside. 19 ACTING PRESIDENT MARCELLINO: Lay 20 the bill aside, please. 21 THE SECRETARY: Calendar Number 22 913, by Senator Nozzolio, Senate Print 1965, an 23 act to amend the Executive Law. 24 SENATOR STACHOWSKI: Lay aside. 25 ACTING PRESIDENT MARCELLINO: Lay 4212 1 the bill aside, please. 2 THE SECRETARY: Calendar Number 3 915, by Senator Nozzolio, Senate Print 2779, an 4 act to amend the Correction Law. 5 SENATOR STACHOWSKI: Lay aside. 6 ACTING PRESIDENT MARCELLINO: Lay 7 the bill aside, please. 8 THE SECRETARY: Calendar Number 9 920, by Senator Nozzolio, Senate Print 3429, an 10 act to amend the Correction Law. 11 SENATOR STACHOWSKI: Lay aside. 12 SENATOR GOLD: Lay aside. 13 ACTING PRESIDENT MARCELLINO: Lay 14 the bill aside. 15 THE SECRETARY: Calendar Number 16 931, by Senator Marcellino, Senate Print 5079-A, 17 an act to amend the Navigation Law. 18 SENATOR STACHOWSKI: Lay aside. 19 ACTING PRESIDENT MARCELLINO: I'm 20 sorry, I couldn't quite hear. Lay the bill 21 aside? You're sure about that? Lay it aside. 22 THE SECRETARY: Calendar Number 23 944, by Senator Skelos, Senate Print 5149, an 24 act to amend the Domestic Relations Law. 25 SENATOR STACHOWSKI: Lay aside. 4213 1 ACTING PRESIDENT MARCELLINO: Lay 2 bill aside, please. 3 THE SECRETARY: Calendar Number 4 945, by Senator Skelos, Senate Print 5150, an 5 act to amend the Domestic Relations Law. 6 SENATOR PATERSON: Lay aside. 7 ACTING PRESIDENT MARCELLINO: Lay 8 the bill aside, please. 9 THE SECRETARY: Calendar Number 10 964, by Senator Marchi, Senate Print 713, an act 11 to amend the Public Authorities Law. 12 SENATOR GOLD: Lay aside. 13 ACTING PRESIDENT MARCELLINO: Lay 14 the bill aside, please. 15 THE SECRETARY: Calendar Number 16 968, by Senator Levy, Senate Print 919, an act 17 to amend the Public Authorities Law. 18 SENATOR PATERSON: Lay aside. 19 ACTING PRESIDENT MARCELLINO: Lay 20 the bill aside, please. 21 THE SECRETARY: Calendar Number 22 980, by Senator Cook, Senate Print 2648, an act 23 to amend the Highway Law. 24 SENATOR PATERSON: Lay aside. 25 ACTING PRESIDENT MARCELLINO: Lay 4214 1 the bill aside. 2 THE SECRETARY: Calendar Number 3 984, by Senator Leibell, Senate Print 3551, an 4 act to amend the Vehicle and Traffic Law. 5 SENATOR PATERSON: Lay aside. 6 ACTING PRESIDENT MARCELLINO: Lay 7 the bill aside, please. 8 THE SECRETARY: Calendar Number 9 1030, by member of the Assembly Stringer, 10 Assembly Print 5635, an act to amend the 11 Election Law. 12 ACTING PRESIDENT MARCELLINO: Lay 13 the bill aside, please. 14 THE SECRETARY: Calendar Number 15 1031, by Senator Present, Senate Print 4511-A, 16 an act to amend the Election Law. 17 SENATOR STACHOWSKI: Lay aside. 18 ACTING PRESIDENT MARCELLINO: Lay 19 the bill aside, please. 20 THE SECRETARY: Calendar Number 21 1043, by Senator Marchi, Senate Print 3584, an 22 act to amend the Business Corporation Law. 23 ACTING PRESIDENT MARCELLINO: Lay 24 the bill aside, please. 25 THE SECRETARY: Calendar Number 4215 1 1050, by Senator Marchi, Senate Print 4085, an 2 act to repeal provi... 3 SENATOR PATERSON: Lay aside. 4 ACTING PRESIDENT MARCELLINO: Lay 5 the bill aside, please. 6 SENATOR SKELOS: Mr. President, 7 lay aside for the day. 8 ACTING PRESIDENT MARCELLINO: Lay 9 the bill aside -- 1050? -- for the day. 10 SENATOR GOLD: Mr. President. 11 ACTING PRESIDENT MARCELLINO: 12 Excuse me. Senator Gold. 13 SENATOR GOLD: Yeah. I looked in 14 the wrong place in my notes. If you want to 15 call 980, we can pass that. I laid that aside. 16 It's up to you. 17 ACTING PRESIDENT MARCELLINO: O.K. 18 We'll go back to that as soon as we finish the 19 last one on the calendar. 20 THE SECRETARY: Calendar Number 21 1055, by Senator LaValle, Senate Print 4431, an 22 act to amend the Education Law, in relation to 23 sharing of information. 24 SENATOR STACHOWSKI: Lay it 25 aside. 4216 1 ACTING PRESIDENT MARCELLINO: Lay 2 bill aside, please. 3 Senator Skelos, should we go back 4 to 980, at your pleasure? 5 SENATOR SKELOS: Mr. President, 6 would you -- Calendar Number 822, would you lay 7 that aside for the day at the request of the 8 sponsor. 9 ACTING PRESIDENT MARCELLINO: 10 Calendar Number 822 will be laid aside at the 11 request of the sponsor. 12 SENATOR SKELOS: And could you 13 take up Calendar Number 980. 14 ACTING PRESIDENT MARCELLINO: 15 Secretary will read Number 980. 16 THE SECRETARY: Calendar Number 17 980, by Senator Cook, Senate Print 2648, an act 18 to amend the Highway Law, in relation to use of 19 town-owned highway machinery, tools and 20 equipment. 21 ACTING PRESIDENT MARCELLINO: 22 Read the last section. 23 THE SECRETARY: Section 2. This 24 act shall take effect immediately. 25 ACTING PRESIDENT MARCELLINO: 4217 1 Call the roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 42. 4 ACTING PRESIDENT MARCELLINO: The 5 bill is passed. 6 Senator Skelos, that is -- that 7 is the reading of the non-controversial 8 calendar. 9 SENATOR SKELOS: Would you take up 10 the controversial calendar, please. 11 ACTING PRESIDENT MARCELLINO: 12 Starting with Calendar Number 143, the Secretary 13 will read the non-controversial calendar. 14 THE SECRETARY: Calendar Number 15 143, by Senator Wright, Senate Print 1659-A, an 16 act to amend the Vehicle and Traffic Law, in 17 relation to creating the crime of aggravated 18 driving while intoxicated. 19 SENATOR STACHOWSKI: 20 Explanation. 21 ACTING PRESIDENT MARCELLINO: 22 Senator Wright, an explanation has been asked by 23 Senator Stachowski. 24 SENATOR WRIGHT: Thank you, Mr. 25 President. 4218 1 The bill amends the Vehicle and 2 Traffic Law, adding a new section establishing 3 the crime of aggravated driving while 4 intoxicated, which is determined with a blood 5 alcohol content count of .20, establishes 6 penalties relating to that, as well as mandatory 7 revocation provisions. 8 ACTING PRESIDENT MARCELLINO: 9 Read the last section. 10 THE SECRETARY: Section 9. This 11 act shall take effect on the first day of 12 November. 13 ACTING PRESIDENT MARCELLINO: 14 Call the roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Ayes 53. 17 ACTING PRESIDENT MARCELLINO: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 434, by Senator Seward, Senate Print 3267, an 21 act to amend the Town Law, in relation to 22 non-resident voluntary firefighters. 23 SENATOR PATERSON: Explanation, 24 please. 25 ACTING PRESIDENT MARCELLINO: 4219 1 Senator Seward, an explanation has been asked 2 for by Senator Paterson. 3 SENATOR SEWARD: Certainly, Mr. 4 President. 5 This legislation would amend the 6 Town Law. Currently the Town Law provides that 7 the percentage of non-resident membership of a 8 fire district, a fire company, may not exceed 45 9 percent, and the Legislature has over the years 10 statutorily granted exemptions from this 11 provision to a few fire districts across the 12 state to meet a particular local need. 13 Now, this bill would provide that 14 the Secretary of State would have the authority 15 to grant future exemptions and thus not require 16 special legislation every time that a fire 17 district finds itself not being able to meet the 18 servicing of the fire district and meet this 55 19 percent requirement that they be resident 20 volunteer firemen. 21 (Inaudible comment). 22 ACTING PRESIDENT MARCELLINO: 23 Senator Seward, will you yield to Senator 24 Dollinger? 25 SENATOR SEWARD: Certainly. 4220 1 ACTING PRESIDENT MARCELLINO: 2 Yes, he yields. 3 SENATOR DOLLINGER: Senator, we 4 in the course of the last two or three years 5 have taken a number of steps to encourage 6 membership in volunteer fire-fighting 7 companies. We've -- there have been proposals 8 on the floor of this chamber to create real 9 property tax incentives, to create improvement 10 in the point system to benefit firefighters. 11 My question is, do you have any 12 evidence that those measures have had any 13 success? In -- as I understand this bill, this 14 is to remedy situations where there aren't 15 enough people in the local community if they 16 have a fire-fighting force and they have to draw 17 from outside. Is there a tie between those two, 18 I mean do you see any benefit or any new 19 membership or increase in membership because of 20 those efforts? 21 SENATOR SEWARD: Well, we 22 continue to see a problem with the level of 23 membership in some of the volunteer organiza 24 tions, I think all volunteer organizations and 25 particularly fire departments and ambulance 4221 1 squads, but they -- by and large, I think 2 volunteer fire departments, while they may 3 have their problems in terms of retention and of 4 members and of gaining new ones, it's still a 5 very strong -- strong force there. 6 This legislation is not tied, in 7 my mind, directly to that type of recruitment 8 and retention problem as it is to meet the needs 9 of specific circumstances such as what we've 10 seen in the past where exemptions have been 11 granted, perhaps there would be a district where 12 there are large industrial or other types of 13 employers, a number of people that are working 14 three shifts and companies that have three 15 shifts. Yet there aren't a lot -- a great deal 16 of numbers in terms of residents, local 17 residents, of that fire district so we would 18 have to depend on those volunteers who may be 19 actually working in the community versus 20 actually living in the community. 21 That would be one circumstance 22 that this bill would be helpful in. There are 23 others, of course, with very small fire 24 districts that may not just -- may not have the 25 numbers, and so it's -- it's -- the 4222 1 circumstances are many and varied. This bill is 2 directed to give the Secretary of State the 3 authority to grant the exemption to meet the 4 wide variety of circumstances that may be out 5 there. 6 SENATOR DOLLINGER: Again through 7 you, Mr. President. I think your suggestion 8 about either living or working in a community is 9 a good one. You know whether this bill would be 10 needed if we simply changed the law to allow the 11 Secretary of State to recognize not only those 12 who live in the community that they would be 13 participating in, but those who work in it as 14 well? I know in suburban Monroe County there 15 are many people who work in the suburban 16 communities who don't actually live there who 17 would be closer to a fire in the district in 18 which they work, at least during daytime hours, 19 most of the daytime hours, rather than in the 20 community in which they sleep and maintain their 21 residence. Wouldn't that be another way to do 22 it, and what effect would that have? 23 SENATOR SEWARD: Well, Mr. 24 President, the Senator is suggesting a -- one 25 change that strikes me that, if we were to make 4223 1 that change would deal with that particular set 2 of circumstances. The difficulty is there are 3 other circumstances out there that your 4 suggested amendment would not cover; so my view 5 is that we should proceed with this legislation 6 to give the Secretary of State the authority to 7 grant the exemption depending on whatever the 8 local circumstances are that do not allow a 9 local fire department to come up with at least 10 55 percent of their members being actual 11 residents and 45 percent being non-residents. 12 SENATOR DOLLINGER: One final 13 question through you, Mr. President. 14 ACTING PRESIDENT MARCELLINO: Do 15 you continue to yield, Senator? He yields, sir. 16 SENATOR DOLLINGER: Has -- in 17 proposing this legislation has the issue of 18 consolidation of the volunteer fire companies 19 been discussed or been considered as a way to 20 overcome this problem as well, that in many 21 cases these fire companies may be small, they 22 may be difficult to find the recruits because of 23 the changing complexion of their community? Is 24 there any consideration underlying this bill or 25 in considering this bill, did you consider the 4224 1 possibility of trying to set up a system of 2 incentives for the consolidation of volunteer 3 fire districts? 4 SENATOR SEWARD: Mr. President, 5 we have not dealt with that issue in conjunction 6 with this legislation. There are provisions out 7 there that would allow for consolidation and 8 mergers, if you will. That remains to be a 9 local decision that could be made, and this bill 10 wouldn't alter that in any way. 11 We're simply trying to stream 12 line the process for fire departments to get the 13 exemption under the -- under the law. 14 SENATOR DOLLINGER: Thank you, 15 Mr. President. 16 SENATOR GOLD: Mr. President. 17 ACTING PRESIDENT MARCELLINO: 18 Senator Gold. 19 SENATOR GOLD: Will the gentleman 20 yield to a question, please? 21 ACTING PRESIDENT MARCELLINO: 22 Senator Seward, do you yield to Senator Gold? 23 SENATOR SEWARD: Certainly. 24 ACTING PRESIDENT MARCELLINO: He 25 yields, Senator. 4225 1 SENATOR GOLD: Yeah. Senator, I 2 am not embarrassed to tell you that I am not 3 anywhere near as familiar as you are with the 4 machinations and working of these volunteer fire 5 departments, and I don't believe, as some people 6 have suggested, that you're not very 7 sophisticated if you think the volunteer fire 8 departments are organized to put out fires, 9 which is one of the reasons -- but, Senator, 10 what is the basic philosophy by which the state 11 would care whether or not it's 55 percent or any 12 other number of residents that participate if 13 the idea of the volunteer fire department is to 14 be exactly that, on hand to help a community put 15 out fires? What's the philosophy? 16 SENATOR SEWARD: Well, Mr. 17 President, and Senator Gold, the philosophy 18 behind having these residency requirements at 19 all has its roots in the fact that, even though 20 the fire -- the members of the fire department 21 are strictly volunteers, the fire district does, 22 in fact, have the -- they do have taxing 23 authority for -- there are contract employees. 24 Local taxpayers pay for such things as equipment 25 purchases, and perhaps the cost of a fire hall 4226 1 and that kind of thing, and so the residency 2 requirements have its roots in the idea that 3 there are -- there is taxing authority here so 4 that the local -- the local residents/taxpayers 5 would also be the members of the fire 6 department, so that's the logic behind that. 7 SENATOR GOLD: Mr. President, 8 will the Senator yield to a question? 9 ACTING PRESIDENT MARCELLINO: 10 Senator, do you continue to yield? 11 SENATOR SEWARD: Certainly. 12 ACTING PRESIDENT MARCELLINO: 13 Senator yields. 14 SENATOR GOLD: Senator, you used 15 two different phrases, and I'd like to clarify 16 how you use them. One, you indicated that there 17 are contracts which is what my little 18 understanding is, that a volunteer fire 19 department would have some kind of contractual 20 arrangements whereby they would get funding from 21 an area, whatever. 22 The other phrase you used was 23 "taxing authority". Are you telling me that 24 the volunteer fire department has taxing 25 authority, can actually levy their own taxes in 4227 1 a community? 2 SENATOR SEWARD: Yes, if they're 3 a fire district. That -- that's one way that 4 they are organized. The other way is that the 5 -- when I used the term "contracts" I was 6 referring to the arrangement whereby the local 7 municipality actually has a contract to provide 8 the fire service with the local fire company, so 9 I use -- that's why I used depending on what the 10 local organization is. 11 SENATOR GOLD: Well - 12 SENATOR SEWARD: Whether it be a 13 district or a municipality contracting with a 14 fire department. 15 SENATOR GOLD: Will the Senator 16 yield to a question? 17 ACTING PRESIDENT MARCELLINO: 18 Senator, do you continue to yield? 19 SENATOR SEWARD: Certainly. 20 ACTING PRESIDENT MARCELLINO: I 21 believe he does, sir. 22 SENATOR GOLD: Thank you. 23 Senator, when you talk -- let's take the first 24 situation. You talk about them having a 25 contract. I assume from what you just told me 4228 1 and the education I'm getting, that you do not 2 need a fire district, that a municipality can 3 contract with the ABC Volunteer Fire Department 4 and they will pay them under the contract in a 5 certain way, and they will take care of a 6 designated area, I guess, pursuant to a 7 contract, is that right? 8 SENATOR SEWARD: Yes, that's one 9 of the ways of doing it. 10 SENATOR GOLD: All right. Now, 11 Senator, having said that, how do we get to the 12 district situation? Is there -- is there an 13 advantage or is there -- does it require a law 14 of this Legislature in order to create a 15 district and give that district taxing 16 authority? 17 SENATOR SEWARD: Mr. -- Mr. 18 President, there is a -- there are provisions in 19 the law if a locality wishes to actually set up 20 a fire district and then there are commissioners 21 that are elected. That's all prescribed by 22 state law. 23 SENATOR GOLD: All right. 24 SENATOR SEWARD: Every situation 25 does not require an act of this Legislature. 4229 1 SENATOR GOLD: All right. Will 2 the Senator yield to one more question, Mr. 3 President? 4 ACTING PRESIDENT MARCELLINO: 5 Senator, do you yield? 6 SENATOR SEWARD: Yes. 7 ACTING PRESIDENT MARCELLINO: I 8 believe he yields, sir. 9 SENATOR GOLD: Yeah, yeah. 10 Senator, if a locality determines that it wants 11 to establish a fire district, that I gather from 12 what you're telling me is by referendum or some 13 kind of a vote or authority and then you 14 indicated that there are commissioners for that 15 fire district. Are there residency 16 requirements, generally speaking, to be a 17 commissioner of the fire district? 18 SENATOR SEWARD: Yes. 19 ACTING PRESIDENT MARCELLINO: 20 Senator Seward. 21 SENATOR SEWARD: Yes, there are. 22 SENATOR GOLD: Well, if the 23 Senator would yield to a question, Mr. 24 President? 25 ACTING PRESIDENT MARCELLINO: 4230 1 Will the Senator yield for one more -- one more 2 question? 3 SENATOR SEWARD: Yes, certainly. 4 SENATOR GOLD: Senator, now that 5 we've got a view of this structure, I understand 6 less why there's the to-do over the residency. 7 If the taxes -- if you do have a contractual 8 situation, then the municipality has within its 9 control what its expenditures will be. If you 10 have the fire district set up and the 11 commissioners of the fire district are elected 12 and are resident, it seems to me that the fire 13 district is again protected because you've got 14 resident taxpayers who are the commissioners, so 15 I don't know what difference it would make if 60 16 percent of your actual volunteers didn't live in 17 the district. Your control of the cost 18 expenditures and taxing authority are still in 19 the hands of residents. 20 ACTING PRESIDENT MARCELLINO: 21 Senator Seward. 22 SENATOR SEWARD: Well, we could 23 be debating, I suppose, all day long in terms of 24 the need for any kind of residency requirement. 25 SENATOR GOLD: O.K. 4231 1 SENATOR SEWARD: We are, which 2 perhaps is why you're raising these questions. 3 SENATOR GOLD: No, no, no. 4 SENATOR SEWARD: I could debate 5 that question all day long. But seriously, the 6 -- this legislation is strictly dealing with 7 trying to streamline the process for those 8 districts that find themselves in circumstances 9 where they cannot meet the residency 10 requirements. The vast majority of fire 11 companies throughout the state are getting along 12 just fine. There are plenty of local people who 13 wish to be members of the fire company. They - 14 they're well in excess of the 55 percent 15 requirement under law. 16 We're simply, under this bill, 17 trying to deal with those very select few that 18 cannot meet that requirement and thus we're 19 streamlining the process for an exemption to be 20 granted. That's the very limited scope of this 21 bill. 22 Perhaps you'd like to have your 23 discussion, you know, looking at the issue in a 24 more wide-ranging way, but certainly that's your 25 right, perhaps to introduce legislation to deal 4232 1 with the general scope. 2 SENATOR GOLD: Thank you. Mr. 3 President, on the bill. 4 ACTING PRESIDENT MARCELLINO: 5 Senator Gold, on the bill. 6 SENATOR GOLD: Senator Seward, 7 first of all, thank you for the information. 8 It's obvious to me that you know this field and 9 maybe you should be running the entire volunteer 10 department for the state. You've got a real 11 grasp of it. 12 But, Senator, what I think is 13 amazing, is that when we find it convenient and 14 I don't mean this in any way to be a criticism 15 of you, Senator, I mean it, we amend laws 16 creating exemptions to situations without 17 stopping for a minute and taking a deep breath 18 and saying, why do we have that law and what is 19 the real practical application of those 20 exemptions; and I dare say that while we are 21 very critical of the state agencies and the 22 amount of paperwork we put people through, and 23 we have all kinds of legislation -- I know 24 Senator Stafford had a bill yesterday which we 25 debated dealing with the standardization of 4233 1 forms -- I'm willing to bet you, Senator Seward, 2 that if we passed 50 percent of our legislation 3 each year under the title of "repealer", we 4 could clear out an awful lot of our statutes, 5 cut the size of the books, cut the printing 6 bills and what people had to read because a lot 7 of it is just -- builds and builds on itself for 8 no reason. 9 Now, I am not involved with the 10 volunteer fire departments, although I will tell 11 you that I tremendously admire the citizens who 12 do that kind of volunteer work as I do admire 13 citizens who do volunteer ambulance work and 14 citizens who do anything to be helpful within 15 their own communities. These are great people 16 because while we talk about civics and civil 17 service, these people are doing it for nothing 18 because they live in a community. They have my 19 total admiration. 20 I don't know whether or not 21 somebody from Rockland County is going to 22 volunteer to be a member of the Ithaca Volunteer 23 Fire Department if they've got one, and Ithaca 24 probably has its own fire department, but just 25 as an example, it doesn't make any sense. I 4234 1 would assume that people have volunteers in fire 2 departments where they live or, as Senator 3 Dollinger pointed out, where they work, so that 4 it has some sensibility to it. 5 It also is quite clear to me from 6 your explanation, which I have no reason to 7 doubt at all, that the fire departments either 8 have a contract with a municipality so the 9 municipality has a grasp of what the costs are 10 going to be, or that you have a taxing fire 11 district where you elect the commissioners and 12 those are your neighbors and your residents, so 13 I don't know why we start out to have a law to 14 begin with that says that you must have, quote, 15 55 percent of the people who participate in a 16 volunteer fire department as being residents. 17 If that is an active healthy volunteer fire 18 department and it turns out that three people 19 moved and all of a sudden your percentages are 20 53 or 54 percent, why that should cause havoc in 21 a community, I don't know and I'm just 22 suggesting to you, Senator Seward, that I'm not 23 going to oppose the concept of giving 24 exemptions. I just think that you might be 25 doing us all a favor by putting some kind of 4235 1 repealer in to get rid of this. 2 Now, if there's a common sense 3 reason for it, I'm for the 55 percent or 4 whatever else, but I really haven't heard of any 5 common sense reason and maybe my distinguished 6 leader who's just risen wants to give me one or 7 ask me to yield. 8 ACTING PRESIDENT MARCELLINO: 9 Senator Paterson, why do you rise? 10 SENATOR PATERSON: Yes, Mr. 11 President. If Senator Gold would yield for a 12 question. 13 ACTING PRESIDENT MARCELLINO: 14 Senator Gold, do you yield to Senator Paterson? 15 SENATOR GOLD: Any time, sir. 16 ACTING PRESIDENT MARCELLINO: I'm 17 shocked. 18 Senator Paterson. 19 SENATOR PATERSON: Mr. President, 20 my question to Senator is that the 45 percent 21 limit on non-resident volunteer firefighters was 22 established, I thought, to ensure that the 23 majority of the fire company came from the - 24 from the -- from the tax district and since 25 you've been -- taken an interest in this 4236 1 legislation, my question is, what would ensure 2 with the passage of this legislation that that 3 objective would not be disregarded all over the 4 state? 5 SENATOR GOLD: Well, Senator, I 6 -- I can't answer for Senator Seward but the 7 way I read it, I don't see anything. The way I 8 read this bill, upon application, I assume every 9 single volunteer fire district in the state 10 could apply for and receive an exemption. 11 What I -- what I was -- the point 12 that I was making, Senator Paterson, and I see 13 you grasped it very well, which is not a 14 surprise to anyone in the chamber, is that there 15 ought to be a rationale for something or else we 16 ought to get rid of it. I mean we pass in this 17 house roughly 15-, 1600 bills a year. The 18 Assembly does the same. The cross-overs there's 19 something like 1,000, 1100 bills. Each house 20 passes 5-, 6-, 700 one-house bills; but we add 21 after you filter out vetos and some of the bills 22 that the leaders of both houses decide to not 23 even send to the Governor but use for fodder in 24 the fires, we wind up each year with probably 8 25 or 900 new chapters, 7-, 8-, 900 new chapters, 4237 1 and what I'm saying is that I don't know whether 2 there's a great public need to keep expanding 3 the size of our laws. Maybe one of the things 4 we could go -- I know Senator Rath who we all 5 admire greatly, has suggested changes in 6 administrative regulations to tighten things up. 7 Maybe we ought to have a committee that tightens 8 up all our laws instead of having these volumes 9 after volumes which do nothing more than change 10 a line or a word and creating exemptions to an 11 exemption because we have a main law and no one 12 wants to change the main law. 13 So, Senator Paterson, I agree 14 with you, I think under this law, every 15 volunteer fire department in the state could 16 wind up with an exemption, and I don't know why 17 we don't get rid of all this and just maybe we 18 ought to have a situation where a volunteer fire 19 department applies to the Secretary of State, 20 gives its percentages, gives its rationale and 21 let them approve it in each case, because I 22 think, Senator, that's exactly what's going to 23 happen anyway. 24 Last section. 25 ACTING PRESIDENT MEIER: Read the 4238 1 last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect on the first day of 4 January. 5 ACTING PRESIDENT MEIER: Call the 6 roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Ayes 55. 9 ACTING PRESIDENT MEIER: The bill 10 is passed. 11 Secretary will read Calendar 12 Number 456. 13 THE SECRETARY: Calendar Number 14 456, by Senator Marcellino, Senate Print 3679-A, 15 an act to amend the Environmental Conservation 16 Law, in relation to scup and black sea bass. 17 ACTING PRESIDENT MEIER: Senator 18 Marcellino. 19 SENATOR MARCELLINO: Thank you, 20 Mr. President. 21 This bill extends the 22 Department's authority to adopt regulations for 23 the management of scup, or porgy, and black sea 24 bass, which would expire on June 1st, 1997. 25 This legislation will extend the Department's 4239 1 authority until December 31st, 1999. 2 ACTING PRESIDENT MEIER: Senator 3 Oppenheimer. 4 SENATOR OPPENHEIMER: Senator 5 yield for a few questions? 6 ACTING PRESIDENT MEIER: Will the 7 Senator yield for a question? 8 SENATOR MARCELLINO: It will be 9 my pleasure. 10 ACTING PRESIDENT MEIER: The 11 sponsor yields. 12 Senator Oppenheimer. 13 SENATOR OPPENHEIMER: Thank you. 14 I'm curious about a few things. I'm sure this 15 is an excellent bill but, as Senator Marcellino 16 knows, I've developed a new interest in fish in 17 our waters around the state. 18 Now, on April 8th, the Governor 19 signed a very similar bill which extended DEC's 20 authority for -- to manage scup and black sea 21 bass for two months. Now, why do we do a 22 two-month extender and are we now extending the 23 exact same bill for two and a half years, or 24 were there changes that you wanted to see in the 25 two-month bill that did or did not get into the 4240 1 two and a half-year bill? 2 SENATOR MARCELLINO: Mr. 3 President, through you, Senator Oppenheimer, our 4 colleagues in the other house had some thoughts 5 about modifying the legislation before the last 6 expiration date so we accommodated them and 7 agreed to a two-month extension so that we could 8 negotiate changes. 9 The negotiations, quite frankly, 10 never took place and the suggestions never came 11 forward. Consequently we have agreed upon and 12 the other house is entering a same act bill as 13 the one you see here for a two-year extender to 14 the authority in DEC to monitor these 15 fisheries. 16 SENATOR OPPENHEIMER: Through 17 you, Mr. President, were there things that you 18 wanted to see changed in the bill from the 19 two-month bill to the two and a half-year bill, 20 or is this the bill that you wanted from the 21 beginning? 22 SENATOR MARCELLINO: Senator, 23 this is the bill that we think is a good idea. 24 We think a two-year period of time is sufficient 25 for us to go back and relook at this issue 4241 1 without having to do this too often. We think 2 this is the appropriate legislation and the 3 appropriate manner to handle this particular 4 issue. 5 SENATOR OPPENHEIMER: Through 6 you, Mr. President, I wonder if you could 7 explain why the scup and the black sea bass 8 mortality rates are so very high. 9 SENATOR MARCELLINO: It's a 10 combination of factors, Senator, the factor of 11 over-fishing and over-taking of the species. We 12 have become extremely capable at taking these 13 organisms at a much faster rate than they're 14 capable of replenishing. In some cases, in the 15 case of the black sea bass they've become the 16 fish of choice at many of the sushi bars and are 17 being taken in sizes that precede their ability 18 to spawn, so we need to protect and preserve 19 this particular species of fish and, in fact, 20 both species of fish. 21 In some areas -- I remember when 22 I was a young boy being able to fish in the 23 Rockaways off the jetty and you could catch 24 porgy and bass without too much problem. Today 25 you cannot. The -- it's -- they are, for the 4242 1 most part, fished out of existence in many 2 areas. We are attempting to preserve these two 3 fisheries by managing carefully the species. 4 We're talking about a $1.7 5 million industry to the state of New York. That 6 is the amount of landings and the amount of 7 sales of these particular species that have 8 taken place, so this is not an insignificant 9 part of our economy. 10 SENATOR OPPENHEIMER: Senator, if 11 you will yield. 12 ACTING PRESIDENT MEIER: Senator 13 Oppenheimer, are you asking Senator Marcellino 14 to continue to yield? 15 SENATOR OPPENHEIMER: Yes. 16 ACTING PRESIDENT MEIER: Will the 17 Senator yield? 18 SENATOR MARCELLINO: My pleasure. 19 ACTING PRESIDENT MEIER: Senator 20 yields. 21 SENATOR OPPENHEIMER: I have just 22 a couple of questions from what you just said. 23 Number one, do we not have some of kind of limit 24 on the inches that the fish may be taken at and, 25 secondly, is this -- where is this basically 4243 1 fished; where -- where - 2 SENATOR MARCELLINO: These are 3 two coastal water fishes, fisheries. They're 4 not deep sea as such, but they are coastal in 5 their appearance and in their locality, and I 6 believe there are size restrictions on both 7 species that are taken. It's very difficult to 8 monitor, especially if they're taken in a 9 commercial -- in a commercial setting, extremely 10 difficult to monitor size of these creatures, 11 but we feel, with the time we have and the DEC's 12 watching and the ability to put people on boats 13 that go out now, we are capable of preserving 14 the species and we have seen some comeback on 15 the part of these organisms with these 16 regulations in place. 17 Without this legislation, we're 18 afraid the EPA will simply shut down the 19 fisheries. If they don't feel that the state is 20 monitoring and carefully watching this 21 particular activity, then they will take over 22 and their method of operation is simply to shut 23 it down. We don't feel it's necessary, and we 24 don't -- we certainly wouldn't want them to come 25 in and shut it down for reasons we mentioned 4244 1 before. Both recreational and commercial 2 fishermen do partake of this sport and the 3 economy is necessary for our state, so we feel 4 we want to monitor it ourselves. 5 SENATOR OPPENHEIMER: If you 6 would yield for another question. 7 ACTING PRESIDENT MEIER: Senator 8 Marcellino, do you continue to yield? 9 SENATOR MARCELLINO: Yes, I do, 10 sir. 11 ACTING PRESIDENT MEIER: Senator 12 yields. 13 SENATOR OPPENHEIMER: Could you 14 tell me if the taking requirements that are set 15 by the Atlantic States Marine Fishery 16 Commission, are they providing sufficient 17 protection for our fishery resources and if not, 18 why don't we permit the DEC to establish more 19 stringent regulations than are in place? 20 SENATOR MARCELLINO: At this 21 point in time, Senator, from our people at the 22 DEC, they feel the issue is being properly 23 handled with the regulation and controls that we 24 have on now. The purpose, as I said before, of 25 this legislation is to continue that 4245 1 capability. If we felt that there was the need 2 to move in and impose stricter requirements, we 3 would do so without hesitation. 4 SENATOR OPPENHEIMER: Then you 5 would say that we would give the DEC permanent 6 authority to manage these fish? Why wouldn't the 7 DEC take permanent authority to manage the fish 8 as long as it's consistent with the Atlantic 9 States Marine Fishery Commission? Why couldn't 10 we be more stringent in New York State? 11 SENATOR MARCELLINO: Well, we 12 could always be more stringent if we chose. 13 There just doesn't seem to be a need. The 14 existing rules and regulations and requirements 15 are meeting the need. To be more stringent 16 would give us literally nothing at this point in 17 time. 18 SENATOR OPPENHEIMER: Now, on a 19 peripheral question if you'd - 20 ACTING PRESIDENT MEIER: Senator 21 Oppenheimer, are you asking that the Senator 22 yield to a question? 23 ACTING PRESIDENT MEIER: Senator 24 Marcellino, do you yield? 25 SENATOR MARCELLINO: Yes, I do, 4246 1 sir. 2 ACTING PRESIDENT MEIER: Senator 3 yields. 4 SENATOR OPPENHEIMER: I'd like to 5 know if there are conflicts between the 6 recreational and the commercial harvesters of 7 the scup and the black sea bass. This certainly 8 was an issue that came up a couple of weeks ago 9 with the mossbunker or menhaden fish industry 10 where the recreational and the commercial 11 fishermen were at odds with one another. 12 Is that true in the scup and the 13 black sea bass? 14 SENATOR MARCELLINO: Yes, I 15 think, Senator, Mr. President, through you, you 16 will see that there is always that conflict and 17 there is always that natural friction that comes 18 up between two different entities, if you will, 19 where they come together at a particular point. 20 Commercial fisheries people feel they never get 21 enough and the sportsmen always want to get more 22 and also feel the commercial guys are taking too 23 much away from them, so there is this natural 24 give and take between them. 25 What we have done here is try to 4247 1 walk a middle course in giving both sides the 2 ability to do what they have to do and to be 3 capable of enjoying the sport and enjoying the 4 commercial success of their operations, so that 5 they can provide food for restaurants and people 6 at various locations. 7 Right now these two needs are 8 being met, and there doesn't seem to be any 9 outside need to go out and favor one or the 10 other. We feel we are accomplishing the task. 11 SENATOR OPPENHEIMER: And my last 12 question, if you will yield. 13 ACTING PRESIDENT MEIER: Senator 14 Marcellino, will you yield? 15 SENATOR MARCELLINO: Sure. 16 ACTING PRESIDENT MEIER: Senator 17 yields. 18 SENATOR OPPENHEIMER: Would you 19 say that the main markets, the commercial 20 fishermen that are catching the porgies, is that 21 essentially for restaurant usage; it's not for 22 reduction like with the menhaden, is it? 23 SENATOR MARCELLINO: No, porgy is 24 not a food fish like menhaden would be in the 25 use. It's caught for the oil product it 4248 1 produces for cat food or dog food, things like 2 that. The porgy may have some aspect of that to 3 it, but for the majority of it, it is a food 4 fish for human consumption. 5 SENATOR OPPENHEIMER: For 6 restaurants. 7 SENATOR MARCELLINO: Or personal 8 consumption, yeah. 9 SENATOR OPPENHEIMER: Or other 10 commercial usage. Thank you very much. That was 11 very informative. 12 SENATOR MARCELLINO: Thank you, 13 Senator. 14 ACTING PRESIDENT MEIER: Read the 15 last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT MEIER: Call the 19 roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 56. 22 ACTING PRESIDENT MEIER: The bill 23 is passed. 24 Secretary will read Calendar 25 Number 664. 4249 1 THE SECRETARY: Calendar Number 2 664, by Senator Nozzolio, Senate Print 4084-A, 3 an act to amend the Civil Practice Law and 4 Rules, in relation to establishing a complete 5 bar to recovery by persons injured. 6 SENATOR PATERSON: Explanation. 7 ACTING PRESIDENT MEIER: Senator 8 Nozzolio, an explanation has been requested by 9 Senator Paterson. 10 SENATOR NOZZOLIO: Thank you, Mr. 11 President. 12 Senator Paterson, my colleagues, 13 the Crime Victims Protection Act is the measure 14 before us. It's an important legislative 15 initiative. It says, in effect, that if you use 16 legitimate self-defense in defense of yourself 17 or your family against a criminal intruder 18 during the commission of that crime, that you 19 should not be placed in any type of liability. 20 Rightly so, the assumption of the 21 risk of injury in the course of criminal conduct 22 through this action before us places it right 23 where it belongs, with the criminal. 24 ACTING PRESIDENT MEIER: Senator 25 Paterson. 4250 1 SENATOR PATERSON: Thank you, Mr. 2 President. 3 If Senator Nozzolio would yield 4 for a question. 5 ACTING PRESIDENT MEIER: Senator 6 yield? 7 SENATOR NOZZOLIO: Yes, Mr. 8 President. 9 ACTING PRESIDENT MEIER: Senator 10 Nozzolio yields. 11 SENATOR PATERSON: Thank you, Mr. 12 President. 13 Senator Nozzolio, the purpose of 14 this legislation is certainly sustained by a 15 number of situations that have occurred that 16 we've read about in the newspapers and even in 17 legal cases where victims of crimes were 18 actually sued by the perpetrator for some act 19 that was taken against them and the purpose of 20 your legislation in order to protect victims is 21 certainly admirable. 22 However, an outright bar to 23 recovery could be seen as somewhat excessive and 24 that's the nature of my question. Do you want 25 to establish the circumstance where the trier of 4251 1 fact, meaning the court, would be unable to make 2 any determination of contributing information 3 and, therefore, create an insulated situation 4 where the law is overarching the entire 5 circumstance and the trier of fact has 6 absolutely no jurisdiction? 7 SENATOR NOZZOLIO: Mr. President, 8 to respond to the Senator's question, that the 9 measure before us places the assumption of risk 10 and liability where it belongs, not with the 11 victim of the crime but with the perpetrator of 12 the crime. I submit, Senator Paterson, that 13 your question certainly is one that is - 14 provokes, I believe, response, an illustration. 15 The illustration is one that 16 could take place not too far from here where a 17 business owner was found liable when a robber 18 comes into his business through a late night 19 break-in, where the business owner pursued the 20 perpetrator in flight. The robber fell through 21 some rotted stairs of the business establishment 22 and broke several bones. He sued then, the 23 business owner, and what was seen was the 24 liability of the insurer who had the policy that 25 covered the business owner, in effect that 4252 1 liability may have not been rested in a court of 2 equity. Maybe a court would have seen the 3 circumstances and said that an owner of a 4 building, when you have a robber perpetrating 5 into that building, the commission of a crime 6 and happens to get injured during the commission 7 of a crime, you shouldn't hold the business 8 owner or the property owner liable and maybe we 9 would have a court deciding that, but as you 10 know, Senator, just to defend a case like this, 11 it takes a lot of money and the insurance 12 companies have to go through all kinds of 13 discovery, depositions, and that sort of thing. 14 And so what we're saying is let's 15 make it clear that anyone who comes into a 16 building for the commission of a crime or enters 17 onto an individual's property with the intent of 18 committing a crime that that person, if injured, 19 will certainly bear the risk and that's what 20 we're trying to do here, Senator, make it very 21 clear from the threshold that this is the policy 22 of the state of New York and that we are to 23 protect law-abiding property owners and that if 24 the criminals get injured during the commission 25 of a crime, that's their tough luck and so be 4253 1 it. 2 Thank you, Mr. President. 3 SENATOR PATERSON: Mr. President, 4 when I listen to Senator Nozzolio's explanation 5 I'm frustrated to the point that he must have 6 been which caused him to raise those types of 7 situations are why we might want to address 8 through legislation some of these types of 9 issues, and I see that one of the aspects of the 10 legislation, Mr. President, that Senator 11 Nozzolio has offered us is to allow for the 12 defendant to recover legal costs in these 13 particular cases assuming that the plaintiff is 14 unsuccessful. So you know, that is definitely a 15 step in the right direction. 16 However, let's take this example, 17 Senator Nozzolio. Let's say we have a car that 18 is being stolen by a 12-year-old, and at a 19 certain point the adult who is the owner of the 20 car sees the 12-year-old and rather than 21 admonishing the youth or taking some other 22 action to prevent the youth from stealing the 23 car, the adult shoots and kills the 12-year 24 old. At this point it would seem to me that 25 under your legislation we have really prescribed 4254 1 a situation where there's a bar to any recovery 2 on the part of the family of the deceased 3 because of this legislation we're passing. 4 So if I could get some feedback 5 from you on how you would view this scenario in 6 the view of your legislation, I could better 7 determine whether or not this legislation really 8 wouldn't create as many problems as it would 9 solve. 10 SENATOR NOZZOLIO: Senator, to 11 answer your question, there are other laws as 12 you well know. We make a change in law here, 13 there is other body of laws which also governs. 14 We're not eliminating that other body of law; 15 we're not eliminating the issues of direct force 16 and meeting force with force, the degree of 17 force, the degree of, certainly as you describe 18 it in your hypothetical, I would think that a 19 court would look at the force used under the 20 hypothetical you described, Senator, and say 21 that was certainly not appropriate. 22 However, to change your metaphor 23 a little bit, if someone - 24 SENATOR PATERSON: I'm sorry. I 25 just didn't hear the last part of what Senator 4255 1 Nozzolio said. 2 SENATOR NOZZOLIO: Senator, to 3 change your metaphor just a bit, let's say 4 someone was stealing a car and during the 5 commission of that crime started to use deadly 6 force, turning the car on its top and using the 7 car to attack its owner in flight, to flee the 8 circumstances of the crime and certainly then 9 you can see where use of deadly force would be 10 justified. 11 I think you have to understand 12 that this law establishes a threshold of 13 liability, a threshold of protection, and it is 14 not meant to circumvent or alter directly other 15 types of mitigating statutory provisions which 16 deal with deadly force and the use of deadly 17 force. 18 SENATOR PATERSON: Mr. President, 19 if Senator would continue to yield. 20 ACTING PRESIDENT MEIER: Senator, 21 do you yield? 22 SENATOR NOZZOLIO: Yes. 23 ACTING PRESIDENT MEIER: The 24 Senator continues to yield. Senator Paterson. 25 SENATOR PATERSON: Senator 4256 1 Nozzolio, the addendum that you made to the 2 example that I gave you would certainly create a 3 situation that we would understand why deadly 4 force might be used against the operator of a 5 vehicle who is turning the vehicle into a weapon 6 which is one of the reasons that I didn't make 7 that part of the example that I suggested which 8 is that I was talking about a situation which is 9 not speculative or remote to what we're talking 10 about, something that has happened, and it 11 hasn't happened because the owner of a car is 12 necessarily trying to kill a young person who is 13 stealing the car, but you have a crime in 14 progress, you have panic in a particular 15 situation and perhaps you have poor judgment 16 exercised in a situation, but what may allow for 17 the explanations under the criminal law would 18 have a different standard under the civil law. 19 There are even different standards by which we 20 assess responsibility under the civil law, and I 21 do not know the body of law that you are 22 referring to that would address a situation 23 where an owner of a vehicle would shoot a young 24 person that was attempting to steal the vehicle 25 and at that point, according to you, there are 4257 1 other bodies of law where there could be sought 2 some kind of justice, and what I'm just trying 3 to figure out is, which body of law you're 4 referring to would the family of the victim go 5 to, to cure this kind of a problem? 6 SENATOR NOZZOLIO: Certainly, 7 Senator, the courts would have to weigh whether 8 deadly force was -- was applicable, appropriate 9 in that sort of situation. What this -- what 10 this law does, if a 12-year-old steals the car 11 and then hits a street light and injures himself 12 that you as the owner of that car is not going 13 to be liable. 14 Now, that's what this law is 15 trying to focus on and to address. Under the 16 law we have today liability, for instance, for 17 that business owner who had his robber fall 18 through the steps of his business, sues -- then 19 the robber sues the business owner for having 20 faulty steps. 21 That's what this type of 22 legislation is dealing with, Senator. That's the 23 right we're trying to wrong and, frankly, I 24 think that is something that has been remiss in 25 the past and we need to address it. 4258 1 SENATOR PATERSON: Thank you very 2 much, Senator Nozzolio, for your response and 3 what it -- what I'm inferring from what you've 4 said is that perhaps the legislation, as well 5 intended as it may be, is written a little too 6 broadly because when you take a look at this 7 kind of situation, let's say, for example, the 8 recovery against Rodney -- the recovery that 9 Rodney King sought, if you take that scenario, 10 the police officers are chasing him or if you 11 took a situation where there was a excessive 12 choke hold as we had in Bronx County in a case 13 that was just decided about six month ago. 14 Would you care to comment on how those two 15 situations where excessive force was used by 16 agents of law enforcement would factor into the 17 civil recovery in those particular cases? 18 ACTING PRESIDENT MEIER: Senator 19 yield to that question? Senator Nozzolio. 20 SENATOR NOZZOLIO: Senator, under 21 the -- the normal procedures of the house, you 22 ask to yield prior to asking the question, and I 23 must say, Senator, I was -- I did not hear the 24 completeness of your question. I would be glad 25 to yield to Senator Paterson, but - 4259 1 ACTING PRESIDENT MEIER: Senator 2 Paterson, the Chair was under the impression 3 that you were proceeding until you wished to 4 pose a question. We didn't hear it. 5 SENATOR PATERSON: My apology, 6 Mr. President. Senator Nozzolio, what I was 7 saying was that perhaps the legislation is 8 written too broadly, and what I wanted to ask 9 you is, if you took the example of excessive 10 chokeholds used by a law enforcement agent, such 11 as a police officer that used the chokehold in a 12 case in Bronx County that occurred within the 13 last six months, or if you took the fact pattern 14 as it unfolded in the Rodney King case in 1991, 15 do you think that either of those two defendants 16 under the civil law would have any recovery 17 against the officers in a scenario that would be 18 similar to those? 19 SENATOR NOZZOLIO: Mr. President, 20 based on the facts as I understand them, in a 21 case like Rodney King, as referenced by Senator 22 Paterson, I certainly don't believe that this 23 law is intended or would have the effect of 24 changing any type of civil recovery that would 25 be appropriate in a case such as -- as one 4260 1 described in the facts relative to Rodney King. 2 Again, Senator, I understand your 3 concerns, and there are times when force used is 4 inappropriate force. Certainly this bill does 5 not eliminate those types of recovery where they 6 are appropriate. What we are trying to do is 7 simply insulate crime victims from further 8 victimization through the legal process, adding 9 insult to injury when a victim is sued by the 10 perpetrator of the crime for injuries that 11 occurred through the perpetrator's fault, so 12 that's the type of address that this nature gets 13 to. Certainly the civil and criminal wrongs 14 associated with the Rodney King beating, that 15 certainly is not what we're talking about here, 16 and I'm glad that we've at least had the 17 opportunity in our legislative dialogue to 18 create history on this measure because certainly 19 it's not the intention of this drafter nor I 20 think this body to restrict to that extent and 21 certainly not supersede other recoveries that 22 may be available. 23 ACTING PRESIDENT MEIER: Senator 24 Paterson. 25 SENATOR PATERSON: Thank you, Mr. 4261 1 President. If Senator Nozzolio would continue 2 to yield. 3 ACTING PRESIDENT MEIER: Senator 4 continue to yield? 5 SENATOR NOZZOLIO: Yes, Mr. 6 President. 7 ACTING PRESIDENT MEIER: Senator 8 continues to yield. 9 SENATOR PATERSON: Senator, what 10 I appreciated about your original explanation 11 was that your interest is that you would like to 12 clarify this particular situation, and I think 13 perhaps where you and I are in a little bit of 14 disagreement is how much you can actually 15 clarify the delineation in different fact 16 patterns. 17 Now, based on your explanation of 18 the legislation, it's fine with me, because I 19 think that you have articulated very well what 20 you're trying to get at. You want to stop these 21 situations where victims who on top of 22 everything else -- I'm sorry, where perpetrators 23 who on top of every other violation of public 24 policy that they've committed, crime that they 25 were in the process of committing and outright 4262 1 often unethical and immoral behavior have the 2 audacity to come back later on and actually sue 3 the poor individual who was the object of often 4 their violence or certainly their unlawful 5 activities, and are going to sue them because 6 they had a misfortune such as falling down a bad 7 flight of stairs while they were robbing a 8 building, and it really is absurd to some degree 9 to actually believe that there are personalities 10 that feel comfortable coming into court with 11 these types of allegations, and the fact that 12 you would like to cure us as a society of not 13 having to read these legal briefs and even have 14 to see these rather disreputable people anywhere 15 near a courthouse is certainly something that I 16 am in agreement with. 17 But what I'm saying is that as we 18 went through a few fact patterns in the Rodney 19 King case, and I believe that perhaps as Senator 20 Waldon might illuminate us a little more on that 21 or perhaps the case of an excessive chokehold as 22 was the case in the Baez case that occurred in 23 the Bronx or the scenario that I gave about a 24 young victim, we recognize why these laws were 25 established in the first place, such as where 4263 1 the owner of property sets up a zip gun and 2 anyone that comes through the door gets shot by 3 it, and so a firefighter who is coming in the 4 building to put out a fire got hit with a 5 discharge from a zip gun once, and it created 6 quite a lawsuit. So what I'm saying is that the 7 realities of life as they impinge on our concept 8 of justice make it very difficult for appellate 9 courts to uphold the statute when you have such 10 over-broad language as I find in your 11 legislation, even though at the end of the day 12 you and I are in total agreement about what 13 should probably happen to people who engage in 14 this kind of behavior. 15 What I'm suggesting to you - 16 ACTING PRESIDENT MEIER: Senator 17 Paterson, you asked for the Senator to yield for 18 the purpose of asking a question. Is there a 19 question in there? 20 SENATOR PATERSON: I haven't 21 gotten to the question yet, but since the last 22 time Senator Nozzolio hadn't heard the question 23 I just wanted to alert him to the fact that at 24 the end of this discourse, there would be a 25 question. 4264 1 SENATOR NOZZOLIO: Appreciate 2 your definition. 3 SENATOR PATERSON: The question 4 is, would you consider recommitting this 5 legislation to the Codes Committee so that the 6 type of language that would make it clear that 7 there are cases where the court -- and the fact 8 that you said the court would have to consider 9 these exceptions is exactly the reason that I 10 tend to think the legislation isn't particularly 11 right as it's written because you are granting 12 at least in conversation that the court should 13 have some jurisdiction, but I don't see it 14 clearly delineated in your legislation, so my 15 question is either can you explain to me how it 16 does -- in other words, read to me the section 17 of the bill that shows how the court would have 18 jurisdiction or would you consider perhaps 19 rewriting the section so the sum of what you've 20 offered us in conversation could be codified as 21 law? 22 SENATOR NOZZOLIO: I wouldn't 23 consider amending this measure. We have changed 24 the bill, Senator. Your counsel may not have 25 read the amended version, but the -- this deals 4265 1 with only the victims of the crime. They're the 2 only ones withstanding that type of insulation 3 which I wouldn't apply to Rodney King in any 4 case. That is a beating of police officers, as 5 I understand it. The peace officers were not 6 the victims of a crime perpetrated by Rodney 7 King. In effect, only victims of crime would be 8 allowed this type of information by the facts 9 that are before us. 10 So Senator, as much as I 11 commiserated with you on your hypothetical, I 12 should also indicate very clearly that this 13 section of law would not apply at all if that 14 type -- and God forbid that it does happen - 15 but if that circumstance ever occurred in New 16 York, but the perpetrators of that crime, 17 certainly against Rodney King, the police 18 officers, would not have been subject to the 19 protections of this legislation. 20 SENATOR PATERSON: Mr. President, 21 just as a point of inquiry, the Rodney King 22 case, the police officers in the - 23 ACTING PRESIDENT MEIER: Senator 24 Paterson, are you asking the sponsor to yield 25 for a question? 4266 1 SENATOR PATERSON: Yes, Mr. 2 President, I'm asking the sponsor to yield. 3 O.K.? 4 ACTING PRESIDENT MEIER: Just a 5 moment, Senator Paterson. Senator Nozzolio, 6 Senator Paterson has asked if you would continue 7 to yield. 8 SENATOR NOZZOLIO: Yes, Mr. 9 President. 10 ACTING PRESIDENT MEIER: Sponsor 11 yields to Senator Paterson. 12 SENATOR PATERSON: Mr. President, 13 I would like to advise you and Senator Nozzolio 14 that I would like to answer something that 15 Senator Nozzolio said, prior to asking my 16 question. 17 ACTING PRESIDENT MEIER: Senator 18 Paterson, the rules of the Senate provide, I 19 believe I'm correct, that a member wishing to 20 speak, that member has the floor so you either 21 yield to the question or you ask him to yield 22 for a question, or you take the opportunity to 23 speak on the bill. 24 SENATOR PATERSON: Well, Mr. 25 President, I'm going to ask him a question. 4267 1 ACTING PRESIDENT MEIER: Well, 2 then the proper procedure, Senator Paterson, is 3 to ask whether the member holding the floor will 4 yield to a question. 5 SENATOR PATERSON: And he 6 yielded, Mr. President. So my question - 7 ACTING PRESIDENT MEIER: Well, 8 Senator Paterson, not so much that, but you 9 indicated you wanted to make a point, so the 10 member, Senator Nozzolio, now yields to your 11 question. 12 SENATOR PATERSON: Thank you, Mr. 13 President. 14 Senator Nozzolio, in the Rodney 15 King case, the police officers were not 16 convicted of a criminal offense regarding the 17 assault on Rodney King. When Rodney King was 18 arrested he was charged with resisting arrest, 19 assaulting police officers, which had they not 20 been able to view a videotape or even if you 21 did, this was an actual charge that was made 22 against Rodney King along with many others, and 23 so, therefore, why would it make the police 24 officers victims of a crime, and I can't see it 25 any other way than that and, as a matter of 4268 1 fact, from the court that had jurisdiction there 2 in Simi Valley, that still to this day would be 3 the ruling in that particular case. The only 4 alternative that Rodney King, as a perceived 5 victim, had was -- would have been a civil suit 6 against the police officers. 7 Now, they did have eventually a 8 federal civil rights action that was taken, but 9 if you just disregard that, the acts -- the 10 situation is that under your legislation, I 11 don't feel Rodney King can bring a lawsuit in a 12 civil court, and my question is, can you explain 13 to us where it says in your bill which we did 14 indeed change it, perhaps that's all I need to 15 know, so that we can go ahead and release this 16 to members for a vote, where it is in your bill 17 that enables Rodney King to sue in that 18 particular -- in a case such as that? 19 SENATOR NOZZOLIO: Mr. President, 20 this measure is termed -- I am not going to 21 respond, Senator, to the facts in the Rodney 22 King case because I'm not totally conversant in 23 all of those facts. I certainly read about some 24 of them, yes, heard about them in the 25 newspapers. The whole incident is reprehensible 4269 1 to me, as I understand it, but I do not 2 understand all the facts. So, Senator, I'm not 3 going to subject this measure to the four 4 corners of that hypothetical because there may 5 be some facts in that hypothetical that I just 6 don't know. 7 I think, Senator, appropriately 8 this measure bars recovery by a person who is 9 injured while he or she themselves is committing 10 a crime. One committing a crime should not be 11 allowed to sue the victim of that crime because 12 the perpetrator of that crime is injured during 13 its commission. That's the four corners of this 14 action that's before us today, and either 15 hypothetically, Senator, I stood before you for 16 at least 25 minutes and tried to deal with your 17 questions. 18 I think the sum and substance of 19 this legislation is to protect those who are 20 victimized by crime from being further 21 victimized by the insult of the civil lawsuit on 22 what, in fact, is no fault of their own for that 23 injury to have taken place. 24 So, Senator, that's how I answer 25 your question. I cannot get into the 4270 1 hypothetical that I do not know all the entire 2 facts of, and it does a disservice to the bill 3 before us, and I respectfully wish you to accept 4 that answer as a response to your question. 5 Thank you, Mr. President. 6 ACTING PRESIDENT MEIER: Senator. 7 SENATOR PATERSON: Thank you, Mr. 8 President. I accept that answer as defensive. 9 Will the Senator yield to another question? 10 ACTING PRESIDENT MEIER: Does the 11 sponsor continue to yield? 12 SENATOR NOZZOLIO: Yes, sir. 13 ACTING PRESIDENT MEIER: Senator 14 continues to yield. 15 SENATOR PATERSON: Senator 16 Nozzolio, it's certainly not incumbent upon you 17 to know all the facts of any particular case. I 18 just used as an example a hypothetical of an 19 actual case, and so all I'm really asking is 20 what happens in the particular situation under 21 your bill -- we won't use any examples -- just 22 the general question: What happens where there 23 is certainly a feeling on the part of the victim 24 of the attack that there was a gross negligence 25 on the part of the perpetrator who, in this 4271 1 case, was a victim of a crime, but in defending 2 themselves went too far? 3 For instance, someone who was 4 conversant in some sort of martial arts, who was 5 being attacked who could have avoided the 6 situation but rather was violent to the point of 7 exacting permanent injury on the person who was 8 trying to rob them. So my point is in this - 9 can you explain to me in this legislation where, 10 so I just know, it explains that there can be an 11 opportunity for civil recovery that we're not 12 just insulating the system such that the 13 aggrieved does not have any recourse to come to 14 court, that the trier of fact has no opportunity 15 to speak on this matter. Where does your 16 legislation open the door? 17 Now, you have all of these 18 claims that it opens the door to the extent that 19 it has to be a situation where a crime is being 20 committed against a victim. I understand that, 21 but even victims of crime would be perceived to 22 have some responsibility once they have taken 23 themselves out of danger, not to then go on the 24 offensive and perhaps cripple or in some way 25 permanently injury the perpetrator. 4272 1 SENATOR NOZZOLIO: Senator, I 2 believe the question you ask is a very valid 3 point. That is a very valid point that is talked 4 about in virtually every law school in this 5 nation, during discussions of force, deadly 6 force, of the use of deadly force meeting other 7 forces. Certainly these are questions for 8 judges to ferret out when their staffs come 9 before them and they're legitimate questions, 10 Senator. 11 I think the answer to your 12 question, though, is that this measure does not 13 in any way mitigate the doctrine of, in my view, 14 in terms of the issue of force, terms of the 15 judge's ability to deal with those questions 16 that we're talking about, issues that are 17 appropriate when the commission of a crime 18 occurs, that the victim of that crime would be 19 given peace of mind and would be not subject to 20 civil litigation that would, in effect, further 21 victimize themselves. 22 These issues you discuss, 23 Senator, really, I believe are issues that 24 individual triers of fact, individual judges 25 must weigh. I don't believe this bars those 4273 1 types of discussions in courts of equity when 2 the cases are brought before those tribunals. We 3 are dealing here, I think, with another issue, 4 and this issue, in my view, does not eliminate 5 totally the discussions that -- when the 6 circumstances you describe are put before a 7 judge. 8 ACTING PRESIDENT MEIER: Senator 9 Paterson. 10 SENATOR PATERSON: Thank you, Mr. 11 President. 12 Finally, if Senator Nozzolio 13 would yield for one last question. 14 ACTING PRESIDENT MEIER: Does the 15 Senator yield? 16 SENATOR NOZZOLIO: For one last 17 question. 18 ACTING PRESIDENT MEIER: With 19 that qualification that Senator Paterson added, 20 the Senator yields for one last question. 21 SENATOR PATERSON: Senator, we 22 have an action that's brought in a court of law, 23 a tort action which means a wrong, which is 24 civil in -- in our way of rectifying these types 25 of issues, and we have a person that comes into 4274 1 court with this kind of allegation, one sitting 2 in the fact pattern of the scenarios that we 3 discussed here. 4 At that point, the trier of fact 5 has to make a determination as to whether or not 6 this case can go forward, and what I'm saying 7 is, can you give me the language in the 8 legislation that makes it clear that this is not 9 a blanket bar? In other words, even if the trier 10 of fact, and I think that you gave us quite a 11 sufficient answer just then and explained it 12 well, but what I'm just suggesting to you is 13 that what you're explaining actually can't 14 happen if the legislation becomes law. 15 At that point, even if you have, 16 Senator Nozzolio, where the trier of fact and 17 you looked at a situation and you just said, Oh, 18 wow! The plaintiff should certainly be allowed 19 to sue; this side doesn't have to go shooting at 20 kids because he was opening a car door, but you 21 had found as the judge in that case that you 22 would have to rule in such a way as to dismiss 23 the case because in the particular state, New 24 York, where there is a bar to these types of 25 cases being brought, in other words what you've 4275 1 done in the legislation, in my opinion, is 2 you've eliminated the trier of fact from having 3 the same decision that you suggested that the 4 trier of fact would make in the three examples 5 that I gave to you; and so my question is, so 6 that I can be relieved and many of us here who 7 are concerned will understand that what you're 8 saying will be borne out by the legislation 9 because what you're saying, I have actually no 10 problem with it, it makes perfect sense, and if 11 we could write the law the way you're saying it, 12 I'll vote for the legislation, but what I'm 13 reading in the actual bill is that, even though 14 the judge may be well intended and even though 15 you may be well intended and see the situation 16 where the plaintiffs' case should stand for 17 trial, the law that this state would adopt would 18 actually prohibit it, because it actually 19 creates what would be a bar to the action being 20 brought. 21 SENATOR NOZZOLIO: Senator, Mr. 22 President, in response to the Senator's 23 question, I think your counsel, Senator, in 24 response to your question, I believe your 25 counsel and you should look at those individual 4276 1 acts of excessive force that you've described 2 except in criminal acts themselves which they 3 are in the statutes of this state and that that 4 would trigger removal of the entire liability 5 protection because, in effect, your victim 6 becomes a perpetrator if under the facts you 7 describe, excessive force is used. That is a 8 separate criminal act; that is retaliation, in 9 effect, becomes a criminal act in and of 10 itself. 11 Let's get to the bottom line of 12 this statute, Senator. The bottom line is that 13 we're trying to protect innocent victims from 14 being further victimized. That's the bottom 15 line of this statute. We can talk about how many 16 lawyers stood on the edge of a pin all day 17 long, but the bottom line is that if you were 18 victimized by a crime and the criminal fleeing 19 from your house fell from your porch, you 20 wouldn't want to face an action against that 21 criminal because your porch wasn't put together 22 right. That's what we should be considering, 23 Senator, and that's the focus about lawyers and 24 hypotheticals and hypotheticals. 25 Thank you, Mr. President. 4277 1 ACTING PRESIDENT MEIER: Thank 2 you, Senator Nozzolio. 3 Senator Paterson. 4 SENATOR PATERSON: Senator 5 Nozzolio, as you know - 6 ACTING PRESIDENT MEIER: Are you 7 speaking on the bill, Senator Paterson? 8 SENATOR PATERSON: I absolutely 9 am. I'm barred from asking any further 10 questions by making that the last question, and 11 I think that there are two points that I think 12 need clarity, and I would hope that in the 13 future that we try to pass legislation on the 14 theory that's mindful of both of them. 15 The first one is what Senator 16 Nozzolio and I refer to as the trier of fact 17 actually in these types of situations. Prior to 18 the case actually being -- being heard, the 19 judge has to make a decision as to whether or 20 not, when the defense attorney brings a motion 21 to dismiss, whether or not there actually is a 22 case here, whether or not there's actually a 23 standing for the case to go forward, and in that 24 situation, the judge makes a decision on the 25 law, not the fact, and the decision on the law 4278 1 is whether or not the action that is being 2 brought by the plaintiff is actually permissible 3 under the laws of our state, and what I'm saying 4 is that what Senator Nozzolio's legislation 5 creates is a situation where a motion to dismiss 6 would be sustaining because there is no way to 7 try this case because Senator Nozzolio in taking 8 that away from the plaintiff, with good intent 9 where the victim was concerned, but over 10 reaching in terms of what would allow a 11 plaintiff to go forward, so when Senator 12 Nozzolio said that the plaintiff had other 13 options unfortunately, the plaintiff does not 14 have other options and the judge who, in this 15 case, is the trier of the law, has absolutely no 16 other course if they are going to follow the 17 rules that this Legislature has passed by 18 creating laws and the judge has got to throw 19 this case out. This case, these cases, the ones 20 I describe have got to be thrown out. 21 And the other point that I would 22 like to make, Mr. President, is one on just the 23 issue of what Senator Nozzolio suggests is that 24 in some of these cases they're actually criminal 25 acts. Well, that may be, Senator Nozzolio, and 4279 1 certainly the individual who might commit those 2 acts will be in many ways prosecuted. However, 3 that doesn't afford any protection to what is 4 now a new victim of a different crime. In other 5 words, the victim of the crime is now in a -- in 6 no position to seek any kind of criminal - 7 civil damages because, as I just explained, the 8 statute would bar any kind of recovery, and so 9 for those two reasons, I can't at this point 10 find that this legislation should pass, a piece 11 of legislation of this magnitude. Not because 12 there's anything wrong with its intent but 13 because its effect is over-reaching and that 14 Senator Nozzolio himself will look up one day 15 and see a situation where you've got a person 16 who may have been doing something that was 17 unlawful, wound up totally and permanently 18 disabled from the action of someone who became 19 unreasonable in their attempt to defend 20 themselves or their property. 21 These are difficult kinds of 22 situations. The King case is probably the most 23 famous situation and is a case in point 24 exactly. And we're all trying to create a 25 circumstance where we would be able to protect 4280 1 people who are victims of crimes from any kind 2 of action that would be taken against them when 3 they're put in a position of defending 4 themselves, and so it's my suggestion to my 5 colleagues and to Senator Nozzolio that we 6 should take a look at all the facts of some of 7 the famous cases that have provided information 8 on this particular issue, and we should recommit 9 this legislation, and I certainly feel that 10 until we take a look to further delineate how 11 the language should be adopted in compliance 12 with what we're trying to accomplish, that this 13 will not become law because too many people are 14 concerned about allowing a situation to be 15 computerized when the trier of facts which would 16 be the judge that would be supervising the civil 17 case would be the best arbiter of what should 18 happen in this situation. Otherwise all that 19 judge can do is to make a legal ruling on 20 whether the action is outside of the statute and 21 all of the scenarios I describe, as egregious as 22 they may have been, including the Rodney King 23 case, would fall right within that ambit of law 24 that would force the judge to throw the case 25 out. 4281 1 SENATOR GOLD: Mr. President. 2 ACTING PRESIDENT MEIER: Senator 3 Waldon. 4 SENATOR WALDON: Thank you very 5 much, Mr. President. 6 Would the learned gentleman yield 7 for a question or two? 8 ACTING PRESIDENT MEIER: Will you 9 yield? 10 SENATOR NOZZOLIO: I yield. 11 SENATOR WALDON: I apologize, 12 Senator Nozzolio. I was out of the room 13 focusing on other issues and I only caught the 14 tail end of the debate, so I may need some 15 edification in helping me to understand what 16 you're attempting to do. 17 One, is this applicable only to 18 situations where the victim of the criminal 19 action takes action against the aggressor? 20 SENATOR NOZZOLIO: Senator, in 21 response, Mr. President, to Senator Waldon's 22 question, this measure applies to those who are 23 victimized by crime and the action of the 24 perpetrator of the crime is brought in civil 25 court against the victim of the crime. 4282 1 I used a hypothetical, Senator, 2 and I'll just use it again briefly. This is a 3 real shock situation. An individual in their 4 business had a perpetrator of the crime come in 5 and break in. The victim scared the perpetrator 6 away. The perpetrator of the crime ran out of 7 the building and fell into the porch. Upon 8 falling he broke his leg and sued the victim, 9 the owner of the building, for damages. So it's 10 that type of action, Senator, where some 11 criminal is trying to profit from the injury 12 that occurred during the perpetration of the 13 crime. 14 It's four square within that 15 limitation. It bars those who are perpetrating 16 crimes from the civil action and then the 17 victims of those crimes for injuries sustained 18 only during that crime or fleeing the crime 19 scene. 20 SENATOR WALDON: Mr. President, 21 if the gentleman would yield again? 22 ACTING PRESIDENT MEIER: Would 23 the gentleman yield? 24 SENATOR NOZZOLIO: Yes. 25 ACTING PRESIDENT MEIER: The 4283 1 gentleman yields. 2 SENATOR WALDON: Thank you, Mr. 3 President. Thank you, Senator. 4 If I understand you correctly, 5 Senator Nozzolio, this hypothetical would not be 6 within the four squares of the situation you're 7 talking about, the one I'm presenting to you for 8 your knowledge and reaction. Joe Criminal robs 9 a bank. He gets in his car, drives away a 10 distance, parks the car and is walking across 11 the street, any intersection, it doesn't matter. 12 At that same moment that he's crossing the 13 street, someone who is drunk, someone who is 14 speeding, someone who goes through a red light 15 kills him as a result of the impact of the car 16 wrongfully driven while intoxicated, going 17 through a red light. This would not apply, 18 meaning the family of that victim, criminal 19 first, pedestrian second, could not sue the 20 driver of that car; is that what you're saying? 21 SENATOR NOZZOLIO: Mr. President, 22 Senator, in my opinion, the injured party, the 23 killed party, the murdered party in your 24 hypothetical, Senator Waldon, would not be 25 barred from recovering against that driver. But 4284 1 he would be barred from recovering against the 2 bank if an injury took place to the perpetrator. 3 Let's say the bank clock fell on his head as he 4 was leaving the bank and knocked him out cold. 5 That's the -- or knocked him out, and he broke a 6 couple of ribs. That type of injury is what 7 we're talking about, not the chain of causation, 8 or the chain that's been brought up two or three 9 times in your hypothetical, Senator, that he 10 might then be barred from recovery against the 11 perpetrator of the drunk driving accident. 12 SENATOR WALDON: Mr. President, 13 would the gentleman yield to a couple more 14 questions? 15 ACTING PRESIDENT MEIER: Will the 16 Senator yield? 17 SENATOR NOZZOLIO: Yes. 18 ACTING PRESIDENT MEIER: Senator 19 yields. 20 Senator Waldon. 21 SENATOR WALDON: Thank you very 22 much, Mr. President. I appreciate your 23 patience. 24 Let's suppose that the person - 25 let's suppose that the person who is injured has 4285 1 not left the scene and suffers a severe injury, 2 but the injury is caused by the negligence of 3 the owner of the building, meaning that somehow 4 the building itself has not been maintained in a 5 condition required by law. Would the person 6 still be barred from recovery? 7 SENATOR NOZZOLIO: Senator, what 8 we're trying to do in responding to your 9 question is that we can hypothetical to death, 10 but I think what we're trying to do is focus on 11 the assumption of risk of injury in the course 12 of the criminal conduct, in the course of the 13 criminal trespass. When you're entering into a 14 place to commit a crime, that is by definition 15 criminal trespass. 16 SENATOR WALDON: How about 17 definition of burglary? 18 SENATOR NOZZOLIO: Well, that 19 trespass, in effect, is something that is 20 barred, would be barred under this statute for 21 an individual getting civil relief because he 22 was injured in a particular spot while he was 23 committing a crime. Yes, he would be barred 24 from bringing the action against the building - 25 owner of the building rendered during the 4286 1 commission of a crime. That's the whole point. 2 We want to bar criminals from suing a building 3 owner where they get injured going into a 4 building and, if that's committing a crime, the 5 person is committing a crime, that's available 6 right now, is it not? 7 SENATOR NOZZOLIO: No, Mr. 8 President, it isn't for those criminals who are 9 looking at this. If the person who is in this 10 situation in the first place - 11 SENATOR WALDON: I'm sorry. 12 SENATOR NOZZOLIO: It's exactly 13 why we need this statute so we can deal with 14 those who are committing crimes and happen to be 15 injured and then suing their victims. 16 SENATOR WALDON: Mr. President, I 17 did not understand. I thought he said justice 18 and the courts are blind, is that what you said, 19 Senator? 20 SENATOR NOZZOLIO: I said a 21 number of things, and let me repeat. 22 SENATOR WALDON: Yes, and just let 23 me make sure I understand you correctly. I 24 thought you said sometimes the people, sometimes 25 the court is blind. 4287 1 SENATOR NOZZOLIO: No, what I 2 said was - 3 SENATOR WALDON: I'm not going to 4 knock that. I thought what you said was - 5 SENATOR NOZZOLIO: I said in 6 these circumstances the court is blind to the 7 reason why the person is in this particular 8 position in the first place, that what we're 9 trying to do is say to the court the Legislature 10 doesn't want a perpetrator of a crime who 11 happens to get injured during that crime to sue 12 the victim of the crime for civil liability and 13 we're saying that criminals assume the risk of 14 their criminal conduct and that's what this 15 legislation clearly defines. It establishes 16 this level. 17 SENATOR WALDON: Thank you very 18 much, Senator Nozzolio. If I may, on the bill. 19 ACTING PRESIDENT MEIER: Senator 20 Waldon, on the bill. 21 SENATOR WALDON: I trust the 22 court. I trust that you your can, when 23 information and facts of a case are presented to 24 them, can determine who is negligent, who is 25 not, who is a criminal and who is not. I think 4288 1 that what Senator Nozzolio is proposing is a bit 2 redundant, simply because the court is capable 3 of managing these affairs right now. 4 I notice in the accompanying 5 material to the proposal that the cases were 6 from other states, other jurisdictions, not 7 necessarily circumstances which have been judged 8 the same by the judges who sit in New York 9 State. I have very high regard for our 10 justices. I think that our judges would have 11 come down differently on these cases from the 12 facts presented in the accompanying material. 13 I see no need to burden judges 14 with our will -- pardon me, with Senator 15 Nozzolio's will on this particular issue. I 16 think the judges will do the right thing if 17 given the right facts. I think that those who 18 are criminals will be found to be so, and will 19 be found in the amount that they are 20 contributorily negligent in their injuries, that 21 that's how the courts will come down. I see no 22 reason to go through this exercise. It appears 23 to me to be somewhat an exercise in futility. 24 I will have to oppose it and vote 25 against it. 4289 1 Thank you, Mr. President. Thank 2 you, Senator Nozzolio. 3 ACTING PRESIDENT MEIER: Senator 4 Gold, Senator Stavisky had previously asked - 5 SENATOR GOLD: Oh, no, I yield. 6 ACTING PRESIDENT MEIER: Senator 7 Stavisky. 8 SENATOR STAVISKY: I will yield 9 to Senator Gold. 10 ACTING PRESIDENT MEIER: All 11 right. Senator Gold. 12 SENATOR GOLD: Would the 13 distinguished gentleman from Cornell yield for a 14 question? 15 SENATOR NOZZOLIO: Surely, 16 Senator. 17 ACTING PRESIDENT MEIER: Senator 18 yields. 19 SENATOR GOLD: Senator, just a 20 couple of questions. I understand that Senator 21 Paterson asked you how this would relate to the 22 Rodney King case and some others, and I think 23 you said in all fairness you weren't familiar 24 with all of the details, but what -- let's take 25 a for instance, Senator. I mean if you have a 4290 1 situation, an undisputed situation where 2 somebody is stopped by the police for traffic or 3 whatever, things get out of hand. The 4 individual goes past the line and let's say 5 commits a simple assault, a misdemeanor assault 6 on one of the police officers and takes that 7 fact pattern, that at that point there are a 8 number of police officers who get involved with 9 huge amounts of excessive force. 10 The way I read this construction, 11 Senator, I think that person has a problem in a 12 civil court. Now, do they or do they not have a 13 civil problem? Would they or would they not be 14 able to recover under your bill? 15 SENATOR NOZZOLIO: Senator, as we 16 discussed with Senator Paterson - 17 SENATOR GOLD: I'm sorry. 18 SENATOR NOZZOLIO: As we 19 discussed with Senator Paterson, the triggering 20 effect here is the commission of an additional 21 crime, additional criminality. I'm not sure I 22 understand totally your hypothetical. 23 SENATOR GOLD: Well, Senator, 24 that's fair, and I think that you're entitled to 25 have me be clear on the example, and I'll try to 4291 1 restate it. Forget Rodney King, forget anyone. 2 Let's create our own laboratory situation so 3 we're clear. 4 An individual is stopped for a 5 traffic light. For one reason or another, 6 things get out of hand and that individual 7 violates the law and slaps a police officer 8 causing no particular damage but going far 9 enough so that it's a misdemeanor. He assaulted 10 a police officer. No damage to the police 11 officer, at which point that policeman uses 12 excessive force to -- slams him in the head with 13 something and creates major damage to that 14 individual. 15 SENATOR NOZZOLIO: Senator, let 16 me respond. At that point I believe that we have 17 at least a new crime. The crime is not the 18 misdemeanor. 19 SENATOR GOLD: Sorry, Senator. 20 The new crime what? 21 SENATOR NOZZOLIO: The crime is 22 not the misdemeanor that becomes the special 23 event. It becomes -- the crime of excessive 24 force becomes the new threshold event. I think 25 it's an intervening crime, and it's excessive 4292 1 force by your definition which is criminal 2 conduct. That supersedes the different sources 3 of the initial misdemeanor violation, Senator, 4 that you describe. 5 SENATOR GOLD: Will the Senator 6 yield to a question? 7 ACTING PRESIDENT MEIER: Senator, 8 do you yield? Senator yields. 9 SENATOR GOLD: Senator, for one, 10 I am proud as a human that you are sensitive to 11 the fact that there is a problem here, but, 12 Senator, as you and I know, Senator Farley is 13 only partially right when he says we debate 14 ideas here. We really are supposed to be 15 debating laws, and in the law that you're 16 proposing it says that if the -- the defendant 17 or rather if the plaintiff has been convicted of 18 the crime, he's out of court, and it also talks 19 here, Senator, about the crime or leaving the 20 crime or whatever happens after that, and what 21 I'm saying to you, Senator, is that if the 22 person who is - 23 ACTING PRESIDENT MEIER: One 24 second, Senator Gold, Senator Nozzolio. 25 SENATOR NOZZOLIO: Senator, I 4293 1 have - 2 ACTING PRESIDENT MEIER: Could we 3 have order in the chamber, please. Could the 4 members take their conversations outside of the 5 chamber. 6 Senator Gold. 7 SENATOR GOLD: Thank you, Mr. 8 President. 9 Senator, if the individual 10 driving the car is found guilty of the 11 misdemeanor of slapping the officer unprovoked, 12 then you've got a conviction under your section 13 and then following through with your section, 14 since the excessive force causes the damage, 15 Senator, I don't see anything in your bill that 16 talks about intervening acts following 17 felonies. None of that is in your bill. 18 Your bill just says if you have 19 perpetrated a crime, the person that you have 20 perpetrated it upon has a perfect defense if 21 you're convicted of the crime. In the situation 22 I gave you, the individual is convicted of 23 slapping a police officer, and a police officer 24 thereupon bashes in his brains, leaves him, God 25 forbid, a quadriplegic and, under this bill, we 4294 1 have created a total defense to that. 2 Now I'm not saying, Senator - 3 Senator, listen to me -- that the police officer 4 cannot be convicted of a crime. This is a bill 5 dealing with civil liability. 6 SENATOR NOZZOLIO: Mr. President, 7 this question is one that I would like to 8 address. 9 SENATOR GOLD: Yeah. 10 SENATOR NOZZOLIO: We've heard it 11 and we're talking about when the personal injury 12 or injury to property occurs while the plaintiff 13 is engaged in the conduct constituting a crime. 14 Now, that conduct, once the misdemeanor, once 15 the - 16 SENATOR GOLD: Or flight. 17 SENATOR NOZZOLIO: Or flight 18 therefrom, a hypothetical. The misdemeanor 19 violation takes places in the custody of the 20 police. He's now committing a crime. He's not 21 in a place, so, Senator - 22 SENATOR GOLD: Senator, your 23 comments are fair, your comments are fair but if 24 I may, Mr. President, he slaps the police 25 officer. 4295 1 SENATOR NOZZOLIO: New crime. 2 SENATOR GOLD: No, no, he slaps 3 the police officer. 4 SENATOR NOZZOLIO: New crime. 5 SENATOR GOLD: Wait a minute, 6 wait a minute. You slap him, new crime. He 7 slaps the officer and at that point it gets out 8 of hand. He slaps the police officer and it's a 9 misdemeanor. 10 SENATOR NOZZOLIO: New crime. 11 SENATOR GOLD: It's the first 12 time. 13 SENATOR NOZZOLIO: Senator, Mr. 14 President, if I -- really, you got to keep track 15 of your own - 16 SENATOR GOLD: I'm -- you're 17 giving -- Mr. President. 18 ACTING PRESIDENT MEIER: We need 19 to have some order. 20 SENATOR GOLD: Well, I'm trying 21 to give him the question but I'm being 22 interrupted. 23 Senator, the man is driving the 24 car, he does nothing wrong. He does no crime. 25 He stops the car; it gets out hand and he slaps 4296 1 the police officer for the first time. He 2 realizes he slaps the police officer and he 3 turns around to flee, whereupon he gets bashed 4 in the head with a gun, and the police officer 5 continues to bash him, and that is the flight 6 from the crime, exactly what your bill is 7 talking about. 8 SENATOR NOZZOLIO: I thought, 9 Senator, we've got two crimes. The first crime 10 is the bopping on the head. The second crime is 11 the flight. So, Senator, I think that it's your 12 -- what you need to focus on here, in 13 understanding the measure, is that any 14 successively intervening crimes occurs that 15 triggers a new set of circumstances, a new cast 16 of characters, and I think for you to concern 17 yourself with the intervening crimes without 18 understanding that this is on an individual 19 issue, that rather than clarify the issue, 20 you're thinking of too many. Each crime is a 21 new set of circumstances, Senator, and I believe 22 the legislation adapts appropriately to those 23 new circumstances. 24 SENATOR GOLD: Thank you. Will 25 the Senator yield to a question? 4297 1 ACTING PRESIDENT MEIER: Will the 2 Senator yield? 3 SENATOR NOZZOLIO: Yes, sir. 4 ACTING PRESIDENT MEIER: The 5 Senator yields. 6 SENATOR GOLD: Senator Nozzolio, 7 no matter how many times you say to me that it's 8 a new crime and I'm misreading the bill, there 9 are a lot of people listening and they know 10 who's misreading and who's not misreading, 11 Senator, and I know it's your legislation and I 12 know you're proud of it, but the fact is that 13 I'm still entitled to the proper answers. 14 The fact is, if somebody slaps 15 the police officer and at that point does 16 nothing else, he's there, he hasn't been 17 arrested or whatever, and the police officer in 18 the middle of the slap, three-quarters of the 19 way, commits an offense and hurts this man, 20 Senator, any way you want to look at it, your 21 bill as I read it, protects a police officer 22 from not only over-reacting but huge over 23 reacting, huge over-reacting. 24 Now, it may be, Senator, that you 25 say to me that's O.K. if it happens once because 4298 1 whoever is doing it but, Senator, to say it 2 doesn't when it's clear to everybody that it 3 absolutely justifies civilly, not criminally, it 4 absolutely justifies civilly over-reaction by 5 the police department - 6 SENATOR NOZZOLIO: Senator, in 7 response to that question, I don't see how you 8 negate the fact that excessive force is not a 9 separate crime. Excessive force by the police 10 officer would not be a separate intervening 11 crime here. 12 Senator, I think that that 13 triggers a new plaintiff, a new defendant, and 14 that if I believe that, we're (inaudible) rather 15 than generating a victim of the crime who was 16 the original driver of your car in your hypo 17 thetical. 18 SENATOR GOLD: Will the Senator 19 yield to a question? 20 ACTING PRESIDENT MEIER: Does the 21 Senator yield? 22 SENATOR NOZZOLIO: Yes. 23 ACTING PRESIDENT MEIER: The 24 Senator yields. 25 SENATOR GOLD: Senator, I just 4299 1 had an interesting thing happen, the first time 2 in all of my time in the Senate. A judge wrote 3 a decision -- it was a federal judge and he 4 interpreted a statute that we passed, all of us, 5 and he quoted from the debate and he said that I 6 asked a question of somebody and based upon that 7 he got some idea of legislative intent. So 8 these questions, Senator, while sometimes we 9 don't think they're important, they're starting 10 to show up in court decisions. 11 Senator, did you just tell me for 12 the purpose of legislative intent that if 13 somebody commits a crime and is convicted of 14 that crime but the officer involved uses 15 excessive force, that's a separate crime and 16 then the first -- the criminal, who is the guy 17 in the first crime, can sue even in spite of 18 your law? 19 SENATOR NOZZOLIO: Mr. President, 20 Senator, in response to your question, excessive 21 force by definition is a crime. Is that not 22 correct, Senator? 23 SENATOR GOLD: My question is, 24 are you saying as a matter of legislative intent 25 that if a police officer over-reacts to a 4300 1 criminal, even if the criminal is convicted, 2 under your law, the criminal can still sue him. 3 SENATOR NOZZOLIO: Senator, if 4 that over-reaction that you characterize rises 5 to the definition of separate criminal conduct. 6 If your definition of excessive force equals the 7 definition of a crime, then, yes, Senator, 8 that's exactly what I'm saying. 9 SENATOR GOLD: Will the Senator 10 yield to another question? 11 ACTING PRESIDENT MEIER: Will the 12 Senator yield? 13 SENATOR NOZZOLIO: Yes, Mr. 14 President. 15 ACTING PRESIDENT MEIER: The 16 Senator yields. 17 SENATOR GOLD: Senator, supposing 18 that the initial criminal is prosecuted but as a 19 result of motion practice, the case is thrown 20 out -- the crime could have been a terrible 21 crime and as a matter of fact, it could have 22 been, God forbid, rape. It could have been 23 serious criminal conduct and in leaving this, 24 the scene of a rape, the father sees it and he 25 goes bananas and the criminal is really injured 4301 1 very badly -- which he may have deserved but as 2 a result of motion practice, the case is thrown 3 out and there's no conviction. Under your 4 statute, I assume the criminal can sue the 5 father, isn't that true? 6 SENATOR NOZZOLIO: Senator, I 7 believe that that action which occurred while 8 the claimant was engaged in some conduct 9 constituting a crime would be an issue for a 10 judge, the trier of fact, to determine, that the 11 title of this section is assumption of risk by 12 persons convicted of a crime. As such, I think 13 that certainly we're -- our intent is to focus 14 only on conviction. However, a trier of fact, I 15 could see talking -- analyzing the facts and 16 making a separate determination possibly beyond 17 the definitions that we propose. 18 SENATOR GOLD: Will the Senator 19 yield to one more question? 20 ACTING PRESIDENT MEIER: Will the 21 Senator yield to one more question? 22 SENATOR NOZZOLIO: Yes, Mr. 23 President. 24 ACTING PRESIDENT MEIER: The 25 Senator yields. 4302 1 SENATOR GOLD: Senator -- and 2 just listen to the question. Supposing that one 3 of the tenants in Senator Bruno's district was 4 in their home and somebody entered that property 5 and I'm sure -- let's say it's one of these 6 large apartment houses, 15 stories, a few 7 hundred tenants, the typical thing you find in 8 Rensselaer County, and the individual pulls out 9 a gun, holds up the tenant, robs money from the 10 tenant and then in fleeing from the property is 11 injured because a board or something is 12 defective in the floor and he falls into the 13 floor. The individual, having fell into the 14 floor, breaks his leg. He is captured and he's 15 convicted of the robbery. May he sue the 16 landlord for the broken leg because of the 17 defect in the floor? 18 SENATOR NOZZOLIO: Mr. President, 19 under the provisions of the statute, that 20 plaintiff would be barred from successful 21 completion of his litigation. 22 SENATOR GOLD: Okay. Well, 23 Senator, if you'd yield to one more question. I 24 don't think so. 25 SENATOR NOZZOLIO: Last question. 4303 1 SENATOR GOLD: Because, Senator, 2 what your law says -- and maybe you can answer 3 this. What your law says is that if the 4 defendant in the case was the victim of the 5 crime, then the defense applies. The victim of 6 the robbery was the tenant. The landlord was 7 not the victim of the robbery and if there was 8 no plea to a count of trespass, the landlord, 9 even under your bill, is, I assume, responsible 10 and has no defense. 11 SENATOR NOZZOLIO: Mr. President. 12 SENATOR GOLD: And I know that 13 this landlord - 14 SENATOR NOZZOLIO: Mr. President, 15 even though that wasn't -- even though Senator 16 Gold promised that the question before was to be 17 his last question, I would be glad to answer 18 this question. This question presupposes that 19 the individual entered this building in a valid 20 way. Isn't the victim of a criminal trespass 21 the owner of that building? 22 SENATOR GOLD: Not unless there's 23 a conviction for it, Senator. Read your bill. 24 SENATOR NOZZOLIO: I thought you 25 said he was convicted. 4304 1 SENATOR GOLD: If the person was 2 charged with robbery and was convicted of the 3 robbery but was not charged or did not plead 4 guilty to criminal trespass, then there's no 5 criminal trespass victim of the owner of the 6 building and even in Rensselaer County with its 7 huge apartment buildings and its huge tenant 8 population, that would, I think, be the law. 9 SENATOR NOZZOLIO: Senator, is 10 that -- is that a question? 11 SENATOR GOLD: Yeah. I was 12 asking you to respond. 13 ACTING PRESIDENT MEIER: The 14 Senator did not ask you to yield to a question, 15 actually. 16 SENATOR GOLD: Oh, all right. 17 ACTING PRESIDENT MEIER: Senator 18 Gold. 19 SENATOR GOLD: I have a great 20 sympathy for the problem that is being addressed 21 by Senator Nozzolio, and I think as Senator 22 Paterson pointed out, there was a case in New 23 York which happened, I believe in the subway 24 system. So that has to be New York because, 25 while Rensselaer has huge apartment buildings, 4305 1 it doesn't have a subway system. So that 2 example could only be in New York and many of us 3 were really rather taken that Mr. Sandusky wound 4 up with nothing and the criminal in that case 5 wound up with a rather substantial award and so, 6 Senator Nozzolio, I agree with you that we ought 7 to do something to open up that door and/or 8 certainly close the door when it comes to the 9 criminal cashing in, so to speak, on a series of 10 events that were started by the criminal, but I 11 really do believe, Senator, that the bill has a 12 lot of drafting problems and when I say it's got 13 drafting problems, don't misunderstand me. I 14 don't think you're wrong in trying to tackle 15 this problem. I think you're on the right track 16 to tackle the problem. I think it's a problem 17 that should be dealt with, but I think that what 18 happens -- and I must refer to my friend Senator 19 Fo... Senator Fo... I don't know why I'm messing 20 this thing up. Senator Farley. I don't know 21 why I would say Foley. Where was I getting 22 Foley? My friend, Senator Farley, if it was a 23 question -- just warming up -- if it was a 24 question, Senator Nozzolio, of debating an 25 issue, I don't think anybody on this side of the 4306 1 aisle or on your side of the aisle would have an 2 argument with you on the issue and if we were 3 having cocktails -- and it's after 5:00 and I 4 know we all wish we were -- and we were 5 discussing this generally and I said do you 6 think somebody who commits a crime and they 7 happen to get hurt or injured during the crime, 8 do you think they should be able to recover, 9 nobody on this planet is going to deny that you 10 are on the right track when you say what you say 11 but, Senator, there's no such way of passing 12 laws. 13 The way we pass laws is by 14 specific bills with specific wording in them and 15 all we're saying to you, Senator Nozzolio, is 16 this could become a law and it could be the 17 Nozzolio Law but why don't we do it the right 18 way? 19 If the suggestions made by 20 Senator Paterson were yielded to, it's not going 21 to become the Paterson Law. It's still going to 22 be your pen certificate. You'll still be the 23 one standing by the Governor and with the 24 Attorney General and everybody around carrying 25 the Flag, the Conservative Party and everybody 4307 1 else, it's still your law. It's just we're 2 suggesting that you make it a little better and 3 in that regard, Senator, there are flaws in this 4 law and what is going to happen, if this were to 5 become the law, is that this probably, Senator 6 -- and this is just a guess. Nobody knows - 7 80 percent -- 80 percent of the time this law 8 will be used, it will be used against people 9 perhaps in the civil rights movement. It will 10 be against people of minorities who are stopped 11 improperly or in situations where you, Senator, 12 if you were in a similar situation, would not be 13 involved. 14 So I think we owe it in drafting 15 such a law to make sure that we get the bad guys 16 and we keep the money away from the bad guys but 17 that we do it in a way that protects those 18 people who really should be protected. 19 ACTING PRESIDENT MEIER: Any 20 other Senator -- Senator Abate. 21 SENATOR ABATE: Would Senator 22 Nozzolio yield to a question? 23 ACTING PRESIDENT MEIER: Will the 24 Senator yield? 25 SENATOR NOZZOLIO: Yes. 4308 1 ACTING PRESIDENT MEIER: The 2 Senator yields. 3 SENATOR ABATE: Yes, Senator, I 4 agree with the concept of this bill that victims 5 who act reasonably to safeguard their life and 6 limb should not be faced with civil lawsuits 7 that -- in that effort when they do injure a 8 defendant. I'm concerned, however -- and I 9 wonder if you will entertain laying this bill 10 aside and looking at tightening this language. 11 I know there have been suggestions by Senator 12 Gold and Senator Paterson. 13 My concern is -- and correct me 14 -- your prior statement said that if a victim 15 acted in self-defense and reasonably, there 16 would be a bar to any civil recovery by the 17 defendant if that defendant was convicted in the 18 courts. Does this bill address in any language 19 if they acted unreasonably or did not act in 20 self-defense? 21 The example is someone 22 burglarized their home. They wake up. The 23 defendant leaves -- leaves the premises and the 24 victim chases -- the victim chases the defendant 25 down the street four, five blocks away, shoots 4309 1 the defendant in the back. Now, clearly it 2 seems by the intent of your legislation you do 3 not envision that that would be reasonable 4 conduct or that would be reasonable and 5 legitimate self-defense. 6 So would you consider, Senator 7 Nozzolio -- because I agree with the concept. 8 Many victims are unfairly facing this civil 9 recovery. Would you consider tightening up this 10 language so it only covers reasonable conduct, 11 legitimate self-defense, et cetera? 12 SENATOR NOZZOLIO: Senator, in 13 response to your question, I believe the statute 14 before us does take into consideration that very 15 well. As I explained to Senator Gold and 16 Senator Paterson, when there is a superseding 17 criminal event, that changes the makeup of the 18 cast of characters under this bill. The victim, 19 if he's convicted of excessive force, becomes, 20 in effect, a criminal by definition and those 21 definitions, as they change -- if you're 22 defining excessive force as criminal excessive 23 force, that sufficiently changes the characters 24 in this that are impacted by this legislation. 25 I believe it's taken care of sufficiently. 4310 1 SENATOR ABATE: Would Senator 2 Nozzolio yield to another question? 3 ACTING PRESIDENT MEIER: Does the 4 Senator yield? The Senator yields. 5 SENATOR ABATE: But, Senator, if, 6 in fact, that's the intent of this legislation 7 -- and many of us feel that the wording of this 8 legislation is ambiguous and could be 9 interpreted in different ways -- why not in 10 plain English ensure that this will be 11 interpreted correctly to ensure that we're 12 talking about reasonable conduct, legitimate 13 self-defense on the part of the victim? 14 SENATOR NOZZOLIO: Senator, I 15 don't see how that would do anything but - 16 SENATOR ABATE: How would that - 17 SENATOR NOZZOLIO: Senator, let 18 me respond to your question. We have already 19 set in our criminal statutes definitions for 20 excessive force for those types of issues that 21 you seem to be concerned with. If someone is 22 convicted of excessive force, that changes -- I 23 sound like a broken record, but that changes the 24 definition of that individual. He becomes no 25 longer the victim but the perpetrator of a 4311 1 crime. So, therefore, he does not, as 2 perpetrator of the crime, have the protections 3 afforded by this measure. It's not -- we've 4 already set forth the definitions of excessive 5 force. We've already clearly defined them. I 6 think that to further tinker with them doesn't 7 add clarity to our statutes or this measure and, 8 therefore, I reject that request - 9 SENATOR ABATE: But, Senator - 10 SENATOR NOZZOLIO: -- respect 11 fully. 12 SENATOR ABATE: Senator Nozzolio, 13 would you agree - 14 ACTING PRESIDENT MEIER: Senator 15 Abate, do you wish the Senator to continue to 16 yield? 17 SENATOR ABATE: Yes. 18 ACTING PRESIDENT MEIER: Senator, 19 do you yield? 20 (Senator Nozzolio nods head.) 21 ACTING PRESIDENT MEIER: He 22 continues to yield. 23 Senator Abate. 24 SENATOR ABATE: Senator, I'm glad 25 that your legislative intent is one that I can 4312 1 embrace. My concern is, if we added this 2 language, which in my mind would be needed to 3 clarify it, how would that in any way be 4 inconsistent with the legislative intent of this 5 bill? You may not think it's necessary but is 6 it inconsistent with the intent? 7 SENATOR NOZZOLIO: Mr. President, 8 I would have to -- before responding to that, 9 Senator, I would have to see the specific 10 language you're proposing. I would also 11 recommend the assistance of you and your 12 colleagues on that side of the aisle to get this 13 measure introduced and passed in the Assembly, 14 that the members of your party in the Assembly 15 have chosen not to protect victims in this sort 16 of way and certainly, if they did, there was a 17 bill that came before us that had that 18 definition and certainly recommend a Conference 19 Committee that we look at that difference but, 20 frankly, we do not have action in the Assembly 21 to protect victims like -- as we are taking 22 here. 23 SENATOR ABATE: On the bill. 24 ACTING PRESIDENT MEIER: Senator 25 Abate, on the bill. 4313 1 SENATOR ABATE: I will support 2 the bill because I agree with the concept and I 3 agree with the legislative intent as outlined by 4 Senator Nozzolio. I hope by Senator Nozzolio's 5 statement this is an invitation by some of us to 6 work with him to maybe reach a compromise on 7 language that better accomplishes the intent of 8 the sponsor. 9 So as the ranking member on Crime 10 Victims, Crime and Correction, I hope to be 11 working with you and your staff so this is not a 12 one-house bill. This is a bill that can be 13 embraced not just by the Senate but also by the 14 Assembly. I think in that effort we can help 15 victims and do it in a responsible way. 16 ACTING PRESIDENT MEIER: Read the 17 last section. 18 THE SECRETARY: Section 2. This 19 act shall take effect immediately. 20 ACTING PRESIDENT MEIER: Call the 21 roll. 22 (The Secretary called the roll.) 23 SENATOR PATERSON: Slow roll 24 call. 25 ACTING PRESIDENT MEIER: A slow 4314 1 roll call has been requested. Are there five 2 members standing who wish to request a slow roll 3 call? 4 The Secretary will call the 5 roll. 6 THE SECRETARY: Senator Abate. 7 SENATOR ABATE: Yes. 8 THE SECRETARY: Senator Alesi. 9 SENATOR ALESI: Yes. 10 THE SECRETARY: Senator Breslin. 11 (There was no response.) 12 Senator Bruno. 13 SENATOR BRUNO: Yes. 14 THE SECRETARY: Senator Connor. 15 (Affirmative indication) 16 THE SECRETARY: Senator Cook. 17 SENATOR COOK: Yes. 18 THE SECRETARY: Senator 19 DeFrancisco. 20 SENATOR DeFRANCISCO: To explain 21 my vote. I too feel that this is a -- the 22 legislative intent of this bill is good 23 legislative intent and I'm going to support the 24 bill and vote yes, but I do want to state for 25 the record that I believe that there are some 4315 1 flaws in the language that hopefully will be 2 corrected as it goes forward because under this 3 bill right now, it's conceivable that an 4 individual who strikes someone and is retaliated 5 against by the initial victim by way of having 6 their arm blown off cannot sue that individual 7 for blowing his arm off but that individual who 8 used the excessive force could actually be 9 convicted of a crime. 10 Now, there's something basically 11 inconsistent about that approach. The concept 12 is good, but I think it needs a little bit more 13 refinement. 14 I'll vote yes, assuming that that 15 will happen. 16 ACTING PRESIDENT MEIER: Senator 17 DeFrancisco will be recorded in the affirmative. 18 The Secretary will resume the 19 roll call. 20 THE SECRETARY: Senator 21 Dollinger. 22 SENATOR DOLLINGER: Mr. 23 President, just to explain my vote. I concur 24 completely with Senator DeFrancisco. 25 I vote yes with the same 4316 1 reservations. 2 ACTING PRESIDENT MEIER: Senator 3 Dollinger, in the affirmative. 4 THE SECRETARY: Senator Farley. 5 SENATOR FARLEY: Aye. 6 THE SECRETARY: Senator Gentile. 7 (There was no response.) 8 Senator Gold. 9 (There was no response.) 10 Senator Gonzalez. 11 (There was no response.) 12 Senator Goodman. 13 (There was no response.) 14 Senator Hannon. 15 SENATOR HANNON: Yes. 16 THE SECRETARY: Senator Hoffmann, 17 excused. 18 Senator Holland. 19 SENATOR HOLLAND: Yes. 20 THE SECRETARY: Senator Johnson. 21 SENATOR JOHNSON: Aye. 22 THE SECRETARY: Senator Kruger. 23 (There was no response.) 24 Senator Kuhl. 25 SENATOR KUHL: Aye. 4317 1 THE SECRETARY: Senator Lachman. 2 SENATOR LACHMAN: Aye. 3 THE SECRETARY: Senator Lack. 4 SENATOR LACK: Aye. 5 THE SECRETARY: Senator Larkin. 6 SENATOR LARKIN: Aye. 7 THE SECRETARY: Senator LaValle. 8 SENATOR LAVALLE: Aye. 9 THE SECRETARY: Senator Leibell. 10 (Affirmative indication) 11 THE SECRETARY: Senator Leichter. 12 SENATOR LEICHTER: Mr. President, 13 to explain my vote. There's a real gap in this 14 bill between what the sponsor says he's seeking 15 to do and what the bill does. Even supporters 16 of the bill have said this is a flawed bill. 17 The point is it's so easy to 18 correct this bill. We have any number of 19 measures during the course of a year where we 20 may immunize somebody from their action in 21 committing simple negligence but provide that 22 they're not immunized from gross negligence and 23 if you put that provision in the bill, it would 24 probably pass 61 to nothing and it's only the 25 sort of attitude that we get here that once a 4318 1 bill is put out on the floor, it has greater 2 sanctity than the works of the Apostles. It 3 can't be changed. It can't be improved upon. 4 So we're going to pass a bill that even the 5 supporters -- and I suspect some of them feel 6 they don't - 7 ACTING PRESIDENT MEIER: Excuse 8 me one moment, Senator Leichter. Can we have 9 some order in the house, please. 10 Senator Leichter. 11 SENATOR LEICHTER: I suspect that 12 some of the supporters feel uncomfortable as I 13 do in certain respects. You know, we're voting 14 to assert the rights of criminals instead of 15 protecting the victims, but the fact of the 16 matter is that we want a good, workable bill and 17 this one -- this one just doesn't do it and it's 18 not enough to say, Well, the bill has some flaws 19 but the intent is clear. If the bill says 20 black, no matter how much the sponsor says I 21 intend white, the court has to interpret it as 22 black. 23 So I'm afraid that until Senator 24 Nozzolio comes back and decides that what he put 25 out in the first instance wasn't the most 4319 1 infallible perfect piece of legislation ever 2 written and write something that carries out his 3 intent, I'm constrained to vote against the 4 bill. 5 I vote nay. 6 ACTING PRESIDENT MEIER: Senator 7 Leichter in the negative. 8 Resume the roll call. 9 THE SECRETARY: Senator Levy. 10 SENATOR LEVY: Aye. 11 THE SECRETARY: Senator Libous. 12 SENATOR LIBOUS: Aye. 13 THE SECRETARY: Senator Maltese. 14 SENATOR MALTESE: Aye. 15 THE SECRETARY: Senator 16 Marcellino. 17 SENATOR MARCELLINO: Aye. 18 THE SECRETARY: Senator Marchi. 19 SENATOR MARCHI: Aye. 20 THE SECRETARY: Senator 21 Markowitz. 22 SENATOR MARKOWITZ: Yes. 23 THE SECRETARY: Senator Maziarz. 24 SENATOR MAZIARZ: Yes. 25 THE SECRETARY: Senator Meier. 4320 1 SENATOR MEIER: Yes. 2 THE SECRETARY: Senator Mendez. 3 SENATOR MENDEZ: No. 4 THE SECRETARY: Senator 5 Montgomery. 6 SENATOR MONTGOMERY: No. 7 THE SECRETARY: Senator Nanula. 8 SENATOR NANULA: Yes. 9 THE SECRETARY: Senator Nozzolio. 10 SENATOR NOZZOLIO: Aye. 11 THE SECRETARY: Senator Onorato. 12 SENATOR ONORATO: Aye. 13 THE SECRETARY: Senator 14 Oppenheimer. 15 SENATOR OPPENHEIMER: Aye. 16 THE SECRETARY: Senator Padavan. 17 SENATOR PADAVAN: Yes. 18 THE SECRETARY: Senator Paterson. 19 SENATOR PATERSON: Mr. President, 20 it is very likely that one day an appellate 21 court is going to review this legislation and 22 something that Senator Gold said -- not that he 23 needs to be complimented any more because he is 24 -- well, yeah. Senator Gold, who, in my 25 opinion, there's no one that works harder in 4321 1 government right now, he pointed out in this 2 discussion that there was recently an appellate 3 case where the legislative intent entailed an 4 examination of the legislative discussion and 5 the judges actually went through the transcript. 6 If they went through the transcript today and 7 they heard what Senator Nozzolio intends to 8 happen through this legislation, we'll be in a 9 lot better shape than if we pass the legisla 10 tion. There are a number of people who have 11 described problems they have with the legisla 12 tion and decided they wanted to vote for it. 13 This is the type of law that, if 14 you vote against it, you are pilloried and 15 cajoled as someone who doesn't want to protect 16 crime victims, but there is something that is 17 very important in this American government and 18 it has to do with our right to have our disputes 19 settled in a court of law and in certain 20 situations, we might bar an action in a court of 21 law because we feel that there is no just 22 claim. This is not one of those situations and 23 no matter how well it may seem and how well 24 intended it may be, there is no language in this 25 bill that talks about supervening crimes which 4322 1 Senator Nozzolio referred to. There's nothing 2 in this bill - 3 ACTING PRESIDENT MEIER: Senator 4 Paterson, could you suspend just a second. Can 5 we have some order in the house. Can the 6 members please stop their conversation so we can 7 hear Senator Paterson and continue the roll 8 call. 9 Senator Paterson. 10 SENATOR PATERSON: Thank you, Mr. 11 President. 12 The -- there's nothing in the 13 actual language of the legislation that provides 14 for some of the protections and the cures that 15 Senator Nozzolio assured us were within his 16 contemplation when he wrote the legislation and 17 that's not extraordinary that that happens and 18 it's also not - 19 ACTING PRESIDENT MEIER: Senator 20 Paterson, the time limit on the rules to explain 21 the vote has expired. Would you state your 22 vote, sir, so we can continue the roll call. 23 SENATOR PATERSON: My vote is no, 24 Mr. President. 25 ACTING PRESIDENT MEIER: Senator 4323 1 Paterson in the negative. 2 Resume the roll call. 3 THE SECRETARY: Senator Present. 4 SENATOR PRESENT: Aye. 5 THE SECRETARY: Senator Rath. 6 SENATOR RATH: Aye. 7 THE SECRETARY: Senator Rosado. 8 SENATOR ROSADO: No. 9 THE SECRETARY: Senator Saland. 10 SENATOR SALAND: Aye. 11 THE SECRETARY: Senator Sampson. 12 SENATOR SAMPSON: Aye. 13 THE SECRETARY: Senator Santiago. 14 SENATOR SANTIAGO: Yes. 15 THE SECRETARY: Senator Seabrook. 16 SENATOR SEABROOK: No. 17 THE SECRETARY: Senator Seward. 18 SENATOR SEWARD: Yes. 19 THE SECRETARY: Senator Skelos. 20 SENATOR SKELOS: Yes. 21 THE SECRETARY: Senator Smith. 22 SENATOR SMITH: No. 23 THE SECRETARY: Senator Spano. 24 SENATOR SPANO: Aye. 25 THE SECRETARY: Senator 4324 1 Stachowski. 2 SENATOR STACHOWSKI: Yes. 3 THE SECRETARY: Senator Stafford. 4 SENATOR STAFFORD: Yes. 5 THE SECRETARY: Senator Stavisky. 6 (There was no audible response.) 7 Senator Trunzo. 8 SENATOR TRUNZO: Yes. 9 THE SECRETARY: Senator Tully. 10 SENATOR TULLY: Aye. 11 THE SECRETARY: Senator Velella. 12 (There was no response.) 13 Senator Volker. 14 SENATOR VOLKER: Yes. 15 THE SECRETARY: Senator Waldon. 16 SENATOR WALDON: Explain my vote. 17 ACTING PRESIDENT MEIER: Senator 18 Waldon. 19 SENATOR WALDON: Thank you, Mr. 20 President. 21 If this were a perfect world, 22 then what Senator Nozzolio has proposed, we 23 could all accept because when there is 24 perfection, no mistakes are made but this is not 25 a perfect world and many mistakes are made and 4325 1 my fear is that the mistakes made by the 2 over-zealous grocer, when a kid takes a bag of 3 potato chips, as happened in California, and is 4 killed for a bag of potato chips, that is too 5 far -- going too far. 6 My fear is that -- and I support 7 police and everyone here knows it, but what 8 about the over-zealous police officer who, in 9 apprehending a criminal, forgets his training, 10 forgets the restrictions placed upon him and 11 over-zealously chokes someone, as the young man 12 in the Bronx, Baez, was choked or shoot someone 13 in the back as was Cedeno. Too far mistakes are 14 made. 15 For those reasons, because we are 16 in an imperfect world and mistakes are made, I 17 cannot support this proposal and vote in the no. 18 ACTING PRESIDENT MEIER: Senator 19 Waldon in the negative. 20 Resume the roll call. 21 THE SECRETARY: Senator Wright. 22 SENATOR WRIGHT: Aye. 23 ACTING PRESIDENT MEIER: Call the 24 absentees. 25 THE SECRETARY: Senator Breslin. 4326 1 SENATOR BRESLIN: Aye. 2 THE SECRETARY: Senator Gentile. 3 (There was no response.) 4 Senator Gold. 5 SENATOR GOLD: Mr. President, to 6 explain my vote. 7 Mr. President, I really feel 8 badly about this particular bill because, while 9 there are different involvements that we all 10 have with legislation as things go along, the 11 Sandusky-Cummings case was one that I not only 12 knew about but the judge in that case was a 13 fraternity brother of mine in college and one of 14 the things that was involved in that case was 15 the "Son of Sam" Law that I wrote and I know the 16 issues, and it's no different now than what I 17 said some 20 minutes ago. 18 If it's a question of what to do 19 with the general concept. Senator Farley's 20 right. We can all make an easy vote and get out 21 of here, but it's a shame that we are put in a 22 position, as we so often are in this house, 23 where the Majority, in its sloppiness, not our 24 sloppiness -- you know, we pass some 5-, 600 25 bills. You can only blame two of the 4327 1 sloppinesses on us. All the rest of the junk is 2 ours. Because of the sloppiness, you put us on 3 the horns of these dilemmas. 4 Senator Nozzolio, I am going to 5 vote with my ranking member, Senator Abate. I 6 will support the concept but I hope, Senator, 7 that in the traditions of that great place in 8 Ithaca that you and I both know about, that your 9 ears and eyes and mind are not closed to some 10 meaningful discussions so that we can put 11 something together that might be an effective 12 law. 13 I very reluctantly, in the 14 Senator Farley tradition, will vote yes. 15 ACTING PRESIDENT MEIER: Senator 16 Gold in the affirmative. 17 THE SECRETARY: Senator Gonzalez. 18 SENATOR GONZALEZ: Yes. 19 THE SECRETARY: Senator Goodman. 20 (There was no response.) 21 Senator Velella. 22 SENATOR VELELLA: Yes. 23 THE SECRETARY: Senator Kruger. 24 SENATOR KRUGER: Yes. 25 ACTING PRESIDENT MEIER: Announce 4328 1 the results. 2 THE SECRETARY: Ayes 50, nays 8. 3 ACTING PRESIDENT MEIER: The bill 4 is passed. 5 The Secretary will read. 6 THE SECRETARY: Calendar Number 7 819, by Senator Lack, Senate Print 3479, an act 8 to amend the General Municipal Law, in relation 9 to filing of a notice of claim. 10 SENATOR PATERSON: Explanation. 11 ACTING PRESIDENT MEIER: Senator 12 Lack, an explanation has been requested. 13 SENATOR LACK: Thank you, Mr. 14 President. 15 This bill is simple. It would 16 provide that where a notice of claim to a 17 municipality is late, an application can be made 18 to a District Court, a City Court or the New 19 York City Civil Court in addition to what's 20 currently permitted, Supreme Court or County 21 Court. 22 ACTING PRESIDENT MEIER: Read the 23 last section. 24 THE SECRETARY: Section 2. This 25 act shall take effect immediately. 4329 1 ACTING PRESIDENT MEIER: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 60. 5 ACTING PRESIDENT MEIER: The bill 6 is passed. 7 ACTING PRESIDENT MEIER: Senator 8 Bruno. 9 SENATOR BRUNO: Mr. President, 10 can we at this time return to motions and 11 resolutions on the calendar. 12 ACTING PRESIDENT MEIER: We will 13 return to the order of business, motions and 14 resolutions. 15 SENATOR BRUNO: Can we move to 16 adopt the Resolution Calendar. 17 ACTING PRESIDENT MEIER: There is 18 a request by the sponsor to open up Resolution 19 1401 to all members of the Senate. 20 Senator Levy -- on the motion to 21 adopt the Resolution Calendar, all those in 22 favor signify by saying aye. 23 (Response of "Aye".) 24 Opposed, nay. 25 (There was no response.) 4330 1 The Resolution Calendar is 2 adopted. 3 Senator Skelos. 4 SENATOR SKELOS: Senator Maltese 5 would like to open sponsorship of Resolution 6 1502 honoring the Italian Congressional Medal of 7 Honor recipients and other Americans of Italian 8 descent. Unless there's an objection, we'll put 9 all members on it. If somebody would not like 10 to sponsor the resolution, they should notify 11 the desk. 12 ACTING PRESIDENT MEIER: Without 13 objection, so ordered. 14 SENATOR SKELOS: Is there any 15 housekeeping at the desk? 16 ACTING PRESIDENT MEIER: No, 17 there's no housekeeping at the desk. 18 SENATOR SKELOS: There being no 19 further business, I move we adjourn until 20 Thursday, May 29th, at 10:00 a.m. 21 ACTING PRESIDENT MEIER: There 22 being no further -- on the motion of Senator 23 Skelos to adjourn, all in favor aye -- the 24 Senate is adjourned until 10:00 o'clock -- the 25 Senate is adjourned until 10:00 o'clock, 4331 1 Wednesday, May 29th -- Thursday, May 29th. 2 (Whereupon, at 5:37 p.m., the 3 Senate adjourned.) 4 5 6 7 8 9 10