Tuesday, February 3, 1998

1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 February 3, 1998 10 3:03 p.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR CARL L. MARCELLINO, Acting President 18 STEVEN M. BOGGESS, Secretary 19 20 21 22 23 24 25 1 P R O C E E D I N G S 2 ACTING PRESIDENT MARCELLINO: The 3 Senate will come to order. I ask that everyone 4 present in the chamber please rise and repeat 5 the Pledge of Allegiance with me. 6 (The assemblage repeated the 7 Pledge of Allegiance to the Flag.) 8 The invocation today will be 9 given by the Reverend Peter G. Young of the 10 Blessed Sacrament Church in Bolton Landing. 11 REVEREND PETER G. YOUNG: Thank 12 you, Senator. 13 Let us pray. As we enjoy the 14 gift of this beautiful and mild weather, may we 15 remember those in our North Country who are now 16 in an attempt to pull together their spirit and 17 resources after their disastrous ice storm. 18 We also ask Your prayer for our 19 dear friend, Senator Norman Levy, as he attempts 20 to regain his health so he can be again with us 21 in this esteemed chamber. 22 O God, Your guidance and help are 23 always greatly appreciated. We ask You this in 24 your name now and forever more. Amen. 25 ACTING PRESIDENT MARCELLINO: 1 Thank you, Reverend. 2 Can I have the reading of the 3 Journal. 4 THE SECRETARY: In Senate, 5 Monday, February 2nd. The Senate met pursuant 6 to adjournment. The Journal of Saturday, 7 January 31st, was read and approved. On motion, 8 the Senate adjourned. 9 ACTING PRESIDENT MARCELLINO: 10 Without objection, the Journal stands approved 11 as read. 12 Presentation of petitions. 13 Messages from the Assembly. 14 Messages from the Governor. 15 Reports from standing committees. 16 The Secretary will read. 17 THE SECRETARY: Senator Maltese, 18 from the Committee on Elections, reports: 19 Senate Print 1167, by Senator 20 Lack, an act to amend of the Election Law; 21 1440, by Senator Maltese, an act 22 to amend the Election Law; 23 1446, by Senator Maltese, an act 24 to amend the Election Law; 25 2651, by Senators Farley and 1 others, an act amending the Election Law and the 2 State Finance Law. 3 Senator Kuhl, from the Committee 4 on Agriculture, reports: 5 Senate Print 545-A, by Senator 6 Kuhl, an act to amend the Agriculture and 7 Markets Law; 8 546, by Senator Kuhl, an act to 9 amend the Agriculture and Markets Law; 10 548, by Senator Kuhl, an act to 11 amend the Agriculture and Markets Law; 12 3084, by Senator Padavan, an act 13 to amend the Agriculture and Markets Law; 14 4834-B, by Senator Johnson, an 15 act to amend the Agriculture and Markets Law; 16 5994, by Senator Kuhl, an act to 17 amend the Agriculture and Markets Law. 18 Senator Marchi, from the 19 Committee on Corporations, Authorities and 20 Commissions, reports: 21 Senate Print 1854, by Senator 22 Padavan, an act to amend the Public Authorities 23 Law; 24 5991-A, by Senator LaValle, an 25 act to amend the Public Authorities Law; 1 6056, by Senator Skelos, an act 2 to amend the Business Corporation Law. 3 Senator LaValle, from the 4 Committee on Higher Education, reports: 5 Senate Print 249, by Senator 6 LaValle, an act to amend the Education Law; 7 559, by Senator LaValle, an act 8 to amend the Education Law; 9 2461-A, by Senator Holland, an 10 act to amend the Education Law; 11 5470, by Senator Rath, an act 12 authorizing SUNY College of Environmental 13 Science; 14 5690-A, by Senator Hannon, an act 15 in relation to persons. 16 Senator Levy, from the Committee 17 on Transportation, reports: 18 Senate Print 440, by Senator 19 Goodman, an act to amend the Vehicle and Traffic 20 Law; 21 597, by Senator Levy, an act to 22 amend the Vehicle and Traffic Law; 23 809, by Senator Johnson, an act 24 to amend the Vehicle and Traffic Law; 25 914-A, by Senator Levy, an act to 1 amend the Transportation Law; 2 916-A, by Senator Levy, an act to 3 amend the Vehicle and Traffic Law; 4 2440, by Senator Maltese, an act 5 to amend the Vehicle and Traffic Law; 6 5919, by Senator Present, an act 7 to amend the Vehicle and Traffic Law; 8 6011, by Senator Stafford, an act 9 to amend the Highway Law. 10 Senator Saland, from the 11 Committee on Children and Families, reports: 12 Senate Print 255, by Senator 13 Rath, an act to amend the Family Court Act; 14 1983-A, by Senator Skelos, an act 15 to amend the Domestic Relations Law; 16 5083, by Senator Maziarz, an act 17 to amend the Executive Law; 18 5799-A, by Senator DeFrancisco, 19 an act to amend the Domestic Relations Law. 20 All bills directly for third 21 reading. 22 ACTING PRESIDENT MARCELLINO: 23 Without objection, all bills are directed 24 directly to third reading. 25 May I have reports of select 1 committees. 2 Communications and reports from 3 state officers. 4 Motions and resolutions. 5 Senator Kuhl. 6 SENATOR KUHL: Yes, Mr. 7 President. I move that the following bills be 8 discharged from their respective committees and 9 recommitted with instructions to strike the 10 enacting clause: Senate Print 5578 and Senate 11 Print 6040. 12 ACTING PRESIDENT MARCELLINO: So 13 ordered. 14 Senator Skelos. 15 SENATOR SKELOS: Mr. President, 16 at this time could we adopt the Resolution 17 Calendar in its entirety. 18 ACTING PRESIDENT MARCELLINO: All 19 in favor of adopting the Resolution Calendar 20 signify by saying aye. 21 (Response of "Aye".) 22 Opposed, nay. 23 (There was no response.) 24 The Resolution Calendar is 25 adopted. 1 Senator Skelos. 2 SENATOR SKELOS: At this time may 3 we please have the non-controversial reading of 4 the calendar. 5 ACTING PRESIDENT MARCELLINO: The 6 Secretary will read the non-controversial 7 calendar. Can all members please take the 8 conversations out of the room, the staff take 9 your seats, please. It's difficult to hear in 10 chambers. 11 The Secretary will read the 12 non-controversial calendar, please. 13 THE SECRETARY: Calendar Number 14 69, by Senator Skelos, Senate Print 557-A, an 15 act to amend the Social Service Law and the 16 Family Court Act. 17 SENATOR PATERSON: Lay it aside. 18 ACTING PRESIDENT MARCELLINO: Lay 19 the bill aside. 20 THE SECRETARY: Calendar Number 21 73, by Senator Spano, Senate Print 5372-B, an 22 act to amend the Social Services Law. 23 ACTING PRESIDENT MARCELLINO: 24 Read the last section. 25 THE SECRETARY: Section 6. This 1 act shall take effect immediately. 2 ACTING PRESIDENT MARCELLINO: 3 Call the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 37. 6 ACTING PRESIDENT MARCELLINO: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 86, by Senator DeFrancisco, Senate Print 487, an 10 act to amend the Criminal Procedure Law. 11 ACTING PRESIDENT MARCELLINO: 12 Read the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT MARCELLINO: 16 Call the roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 39. 19 ACTING PRESIDENT MARCELLINO: The 20 bill is passed. 21 THE SECRETARY: Calendar Number 22 105, by Senator Kuhl, Senate Print 2654, an act 23 to amend the Public Authorities Law. 24 ACTING PRESIDENT MARCELLINO: 25 Read the last section. 1 THE SECRETARY: Section 2. This 2 act shall take effect immediately. 3 ACTING PRESIDENT MARCELLINO: 4 Call the roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes 39. 7 ACTING PRESIDENT MARCELLINO: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 142, by Senator Saland, Senate Print 1292, an 11 act to amend the Criminal Procedure Law. 12 ACTING PRESIDENT MARCELLINO: 13 Read the last section. 14 THE SECRETARY: Section 3. This 15 act shall take effect on the first day of the 16 calendar month next succeeding the 30th day. 17 ACTING PRESIDENT MARCELLINO: 18 Call the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 41. 21 ACTING PRESIDENT MARCELLINO: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 24 145, by Senator Libous, Senate Print 1918, an 25 act to amend the Penal Law. 1 ACTING PRESIDENT MARCELLINO: 2 Read the last section. 3 THE SECRETARY: Section 4. This 4 act shall take effect on the first day of 5 November. 6 ACTING PRESIDENT MARCELLINO: 7 Call the roll. 8 (The Secretary called the roll.) 9 THE SECRETARY: Ayes 41. 10 ACTING PRESIDENT MARCELLINO: The 11 bill is passed. 12 THE SECRETARY: Calendar Number 13 146, by Senator Volker, Senate Print 3532, an 14 act to amend the Penal Law. 15 ACTING PRESIDENT MARCELLINO: 16 Read the last section. 17 THE SECRETARY: Section 6. This 18 act shall take effect on the first day of 19 November. 20 ACTING PRESIDENT MARCELLINO: 21 Call the roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes 41. 24 ACTING PRESIDENT MARCELLINO: The 25 bill is passed. 1 THE SECRETARY: Calendar Number 2 147, by Senator Maltese, Senate Print 4300, an 3 act to amend the Penal Law. 4 SENATOR PATERSON: Lay it aside. 5 ACTING PRESIDENT MARCELLINO: Lay 6 the bill aside, please. 7 THE SECRETARY: Calendar Number 8 148, by Senator Cook, Senate Print 4644-A, an 9 act to amend the Criminal Procedure Law. 10 ACTING PRESIDENT MARCELLINO: 11 Read the last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect on the first day of 14 November. 15 ACTING PRESIDENT MARCELLINO: 16 Call the roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 40, nays 1, 19 Senator Kuhl recorded in the negative. 20 ACTING PRESIDENT MARCELLINO: The 21 bill is passed. 22 THE SECRETARY: Calendar Number 23 149, by Senator Velella, Senate Print 5421, an 24 act to amend the Criminal Procedure Law. 25 ACTING PRESIDENT MARCELLINO: 1 Read the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT MARCELLINO: 5 Call the roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 41. 8 ACTING PRESIDENT MARCELLINO: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 150, by Senator Volker, Senate Print 5691-A, an 12 act to amend the Penal Law. 13 SENATOR PATERSON: Lay it aside. 14 ACTING PRESIDENT MARCELLINO: Lay 15 the bill aside, please. 16 THE SECRETARY: Calendar Number 17 151, by Senator Velella, Senate Print 355-A - 18 SENATOR PATERSON: Lay it aside. 19 SENATOR SKELOS: Lay it aside for 20 the day. 21 ACTING PRESIDENT MARCELLINO: Can 22 we lay that bill aside for the day at the 23 request of Senator Skelos. 24 Senator, that finishes the 25 non-controversial reading. 1 SENATOR SKELOS: Mr. President, 2 there will be an immediate meeting of the Rules 3 Committee in the Majority Conference Room, and 4 if you could take up Calendar Number 147 on the 5 controversial calendar. 6 ACTING PRESIDENT MARCELLINO: We 7 could do that. There will be an immediate 8 meeting of the Rules Committee in Room 332. 9 Rules Committee meeting immediately in Room 332, 10 please. All members proceed there and will the 11 Secretary read Calendar Number 147. 12 THE SECRETARY: Calendar Number 13 147, by Senator Maltese, Senate Print 4300, an 14 act to amend the Penal Law. 15 SENATOR PATERSON: Mr. President. 16 ACTING PRESIDENT MARCELLINO: 17 Senator Paterson, why do you rise? 18 SENATOR PATERSON: Senator 19 Leichter would like to debate that bill but he's 20 on his way to the Rules Committee, so could we 21 -- it's just an observation, Mr. President, 22 but - 23 ACTING PRESIDENT MARCELLINO: 24 Senator, if you could just hold on a second, 25 please. 1 SENATOR LIBOUS: We'll lay it 2 aside temporarily. 3 ACTING PRESIDENT MARCELLINO: 4 Thank you, Senator Libous, for your 5 magnanimity. Can we proceed with Senate bill, 6 Calendar Number 150. 7 Thank you, Senator Libous. The 8 Secretary will read. 9 THE SECRETARY: Calendar Number 10 150, by Senator Volker, Senate Print 5691-A, an 11 act to amend the Penal Law, the Criminal 12 Procedure Law and the Executive Law. 13 SENATOR PATERSON: Mr. President, 14 I'm sorry. What Calendar Number are we on? 15 ACTING PRESIDENT MARCELLINO: 16 Senator, it's Calendar Number 150, Senator, 17 Senator Volker's bill. 18 SENATOR PATERSON: Oh. Well, in 19 that case, would the sponsor yield for a 20 question? 21 SENATOR VOLKER: Why, certainly. 22 ACTING PRESIDENT MARCELLINO: I 23 believe he yields, Senator. 24 SENATOR PATERSON: Would the 25 sponsor wait until I can think of a question? 1 ACTING PRESIDENT MARCELLINO: Is 2 that in the form of a question, Senator? 3 SENATOR PATERSON: The -- this is 4 a piece of legislation, Senator Volker, that I 5 supported this last year. I supported this year 6 in committee, and I imagine I will vote on it, 7 but I do have some misgivings about some of the 8 provisions in this bill, the provisions which 9 the Governor calls bail reform and sentencing 10 reform. Would it not be fair to say that since 11 they don't relate to sexual offenses, that 12 actually rather than there being two provisions 13 in this bill, that these are really two separate 14 thoughts which could theoretically be two 15 separate bills that we could consider 16 separately? 17 SENATOR VOLKER: Well, Senator, 18 you're right, this bill passed 57 to nothing 19 last year, if I'm not -- yeah, 57 to nothing. I 20 think -- let me just say this: What you're 21 saying is that those two provisions relating to 22 bail reform and of sentencing reform, not only 23 pertain to sex offenses but also pertain to 24 other offenses and that's true, but they do 25 pertain to sex offenses, however. In other 1 words, the bail reform, obviously would pertain 2 to this bill as do the sentencing reform. 3 This bill represents the most 4 comprehensive reform of sex assault since about 5 1970-something. In fact, I think it's even 6 earlier than that, but you're right. Those two 7 provisions in this bill do pertain generally to 8 the Penal Law other than -- and the Criminal 9 Procedure Law, obviously, other than sex 10 offenses, but they also -- it might be said, 11 they do pertain to these reform changes and sex 12 offenses also, so if a person is convicted of 13 the enhanced penalties in this bill, those 14 provisions would still be in place and, 15 therefore, the bail reform and -- they're 16 charged with these offense, I should say, not 17 convicted because they would be charged with 18 them -- the D.A. would still have the right to 19 appeal bail and also would have the right to 20 appeal for what he considers to be light 21 sentences, he or she considers light sentences. 22 SENATOR PATERSON: Thank you very 23 much, Senator Volker. 24 That is very responsive and 25 Senator Volker has done a lot as this bill 1 itself would be emblematic to reform a lot of 2 our procedures and laws as they relate to sexual 3 offenses. I'm troubled by the manner in which 4 this bill is put together, and it's not an issue 5 that I have with any of my colleagues in this 6 chamber, but it's what I often refer to as the 7 politics of confusion. 8 There are a number of victim 9 service organizations here today, domestic 10 violence groups, different types of 11 organizations that all of us in this chamber 12 have historically supported. They would like 13 very much to see this bill passed. I guarantee 14 that if those two provisions relating to 15 prosecutorial appeals for bail reform and 16 sentence reform were withdrawn from this bill, 17 this legislation would fly through the Senate 18 and the Assembly and could be enacted into law. 19 So, therefore, if there was a 20 real serious effort to try to reform sexual 21 offense laws and domestic violence laws as is 22 practiced in this particular bill, I suggest 23 that that would be the solution that would inure 24 to the benefit of victims and it could happen as 25 early as next week. 1 Unfortunately, we have attached 2 to them two pieces of legislation that a number 3 of my colleagues would like to debate, and they 4 relate to prosecutorial appeals of bail reform 5 and sentence reform and whatever your point of 6 view is about that issue, it is a separate 7 issue. It is not really correlative to the 8 issues of domestic violence and it certainly 9 would make a lot of sense to separate them so 10 that if necessary we can pass two bills and 11 those who have problems with an appeal of bail, 12 which would be a reform that might actually 13 challenge some of the protections of the Eighth 14 Amendment to the Constitution and an appeal of 15 sentencing which has similar issues, that those 16 issues could be discussed separately. 17 To vote against this piece of 18 legislation would make it appear that you're 19 against the overwhelming number of reforms that 20 are in this bill that are actually very 21 positive. 22 So while I encourage that this 23 bill pass unanimously this year as it did last 24 year, I can't do it without the caveat that we 25 need to address the issue of how we can get 1 reforms in the domestic violence prosecutorial 2 area and the procedures relating to sex offenses 3 as quickly as possible, and we could do that by 4 not putting in ancillary issues into legislation 5 and just letting the public policy that we want 6 to change on those specific areas, which are the 7 title of the bill, to pass them and enact them 8 into law as immediately as possible. 9 ACTING PRESIDENT MARCELLINO: 10 Read the last section. 11 THE SECRETARY: Section 46. This 12 act shall take effect immediately. 13 ACTING PRESIDENT MARCELLINO: 14 Call the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 50. 17 ACTING PRESIDENT MARCELLINO: The 18 bill is passed. 19 SENATOR LIBOUS: Mr. President, 20 is there any housekeeping? 21 ACTING PRESIDENT MARCELLINO: 22 Yes. We can go back to reports of standing 23 committees, sir. I think we have a report of 24 that very important Environmental Conservation 25 Committee. 1 The Secretary will read, please. 2 THE SECRETARY: Senator 3 Marcellino, from the Committee on Environmental 4 Conservation, reports: 5 Senate Print 121, by Senator 6 Stafford, an act to amend the Environmental 7 Conservation Law; 8 150, by Senator Stafford, an act 9 to amend the Environmental Conservation Law; 10 389, by Senator Stafford, an act 11 to amend the Environmental Conservation Law; 12 1388, by Senator Marcellino, an 13 act to amend the Environmental Conservation Law; 14 2613-A, by Senator Leibell, an 15 act to amend the Environmental Conservation Law; 16 and 17 3157-A, by Senator Kuhl, an act 18 to amend the Environmental Conservation Law. 19 All bills directly for third 20 reading. 21 ACTING PRESIDENT MARCELLINO: So 22 ordered. Without objection, all bills reported 23 directly to third reading. 24 SENATOR LIBOUS: Mr. President, 25 could we stand at ease momentarily. 1 ACTING PRESIDENT MARCELLINO: The 2 Senate will be at ease momentarily. 3 Senator Stavisky, why do you 4 rise? 5 SENATOR STAVISKY: To correct a 6 vote from yesterday. Yesterday Senate 00397 was 7 approved by this chamber. I shall like the 8 record to reflect if I had been in the chamber, 9 I would have voted in the negative. 10 ACTING PRESIDENT MARCELLINO: The 11 record, without objection, will reflect that had 12 you been in the chamber, Senator, you would have 13 voted in the negative on that bill. 14 SENATOR STAVISKY: Thank you. 15 (Whereupon, the Senate stood at 16 ease from 3:21 p.m. until 3:24 p.m.) 17 ACTING PRESIDENT MARCELLINO: 18 Senator Skelos. 19 SENATOR SKELOS: Mr. President, 20 would you call up Calendar Number 147, by 21 Senator Maltese. 22 ACTING PRESIDENT MARCELLINO: The 23 Secretary will read Calendar Number 147, please. 24 THE SECRETARY: Calendar Number 25 147, by Senator Maltese, Senate Print 4300, an 1 act to amend the Penal Law. 2 SENATOR PATERSON: Explanation. 3 ACTING PRESIDENT MARCELLINO: 4 Senator Maltese, an explanation has been asked 5 for by Senator Leichter. Before you do, can we 6 have some order in the chamber, please? 7 Everybody just settle down. Thank you. 8 Senator. 9 SENATOR MALTESE: Mr. President, 10 this is an act to amend the Penal Law in 11 relation to clarifying the definitions of 12 physical injury and serious physical injury. 13 This is an Attorney General's 14 legislative program bill which is supported by 15 the New York State Bar Association. It is 16 currently carried in the Assembly by Assemblyman 17 Brian McLaughlin and co-sponsored by 32 other 18 Assemblymen, all Democrats with the exception of 19 one Republican. 20 It would amend certain 21 subdivisions of the Penal Law to redefine 22 physical injury and serious physical injury to 23 clarify the nature of evidence needed, and it 24 would remove the present definitions and, for 25 instance, in the case of physical injury, it 1 would have physical injury mean physical pain, 2 illness, the presence of a visible or palpable 3 mark or impairment of physical condition, and 4 further it would indicate that physical injury 5 may be established through the testimony of the 6 victim alone. Physical pain may be established 7 by evidence of the injuries inflicted in the 8 light of common experience, and I think that's 9 the common theme in changing both of these 10 definitions. 11 The same with serious physical 12 injury. Presently it would -- the definition - 13 under definition sections, Section 10, it 14 indicates that that injury which creates a 15 substantial risk of death or which causes death 16 or serious and protracted disfigurement, 17 protracted impairment of health or protracted 18 loss or impairment of the function of any bodily 19 organ. 20 We and the other sponsors of this 21 legislation feel that it should be altered and 22 amended to -- in the light of common sense, to 23 specifically with serious physical injury have 24 the definition mean physical injury causing 25 death, creating a risk of death, or causing 1 extreme physical pain, impairment of health, the 2 loss or impairment of the function of any bodily 3 member or organ, or the loss or impairment of 4 any mental faculty. Serious physical injury may 5 be established by proof that the victim requires 6 surgery, hospitalization for more than 24 hours 7 or a course of physical rehabilitation. This 8 legislation -- this portion of the legislation 9 was part originally of another bill, passed the 10 Senate 51 to 5 in 1996. 11 I would like to just refer to the 12 Bar Association memo which was prepared by the 13 Committee on Women and the Law, and that is 14 dated July 16th, and they approved the bill, so 15 far as I know unanimously, and the points they 16 made were that in the past physical injury was 17 treated -- was very difficult to prove, was not 18 proven in specific criminal cases by ordinary 19 common sense and as a result it was extremely 20 difficult for women to prove -- to prove injury 21 and as a result in many cases the perpetrators 22 were judged to be guilty of harassment or minor 23 degrees of assault and punishable by only a - 24 not punishable as a misdemeanor and punishable 25 by no time in jail. 1 The Women's Bar Association point 2 out that domestic violence victims and child 3 witnesses often involve the police and not 4 during a major abusive incident but during the 5 less physically damaging but equally controlling 6 tension building stage. In that stage, the 7 injuries are usually minor and might not be 8 categorized as physical injuries. So they 9 indicate further that it is these more frequent 10 abusive attacks that intensify the abuser's 11 control and, therefore, they further say that 12 with this bill, law enforcement would be able to 13 establish that a physical injury occurred when 14 there is any physical pain, illness or visible 15 mark, thus matching the law to the reality in 16 which abuse victims and children live, and they 17 make substantially the same arguments as to 18 serious physical injury. 19 ACTING PRESIDENT MARCELLINO: 20 Senator Leichter, why do you rise? 21 SENATOR LEICHTER: If Senator 22 Maltese would yield, please. 23 ACTING PRESIDENT MARCELLINO: 24 Senator, do you yield for a question? 25 SENATOR MALTESE: Yes. 1 ACTING PRESIDENT MARCELLINO: He 2 yields, Senator. 3 SENATOR LEICHTER: Senator 4 Maltese, thank you for a very full explanation. 5 I really only have one question, 6 something I'm not clear about. Presently to 7 create a physical injury or a serious physical 8 injury, there has to be some physical contact, 9 is that correct? 10 SENATOR MALTESE: I would judge 11 on the basis -- on the basis of the law as it's 12 written, yes. 13 SENATOR LEICHTER: And you're not 14 -- excuse me, if the Senator would continue to 15 yield. 16 SENATOR MALTESE: Yes. 17 SENATOR LEICHTER: You're not 18 changing that. It still requires a physical 19 contact, is that correct? 20 SENATOR MALTESE: Mr. President, 21 I don't know that that's the case. It was one 22 of the -- one of the situations that was seized 23 upon by the New York State Bar Association. I 24 believe that in a certain set of circumstances, 25 it is at least possible that a physical injury 1 under this definition which may be established 2 through the testimony of the victim alone, that 3 it could very well qualify as physical injury if 4 there was not an actual physical contact but 5 that perhaps substantial risk of physical 6 contact or a near contact, some situation where 7 the -- it was not an actual physical contact but 8 you had testimony of the victim and, in 9 addition, some condition that would qualify in 10 the light of common experience as physical 11 injury. 12 SENATOR LEICHTER: Mr. President, 13 if Senator Maltese continues to yield. 14 SENATOR MALTESE: Yes. 15 ACTING PRESIDENT MARCELLINO: The 16 Senator continues to yield. 17 SENATOR LEICHTER: Senator, that 18 gives me some pause for concern. I mean, 19 suppose it was only a matter of a couple yelling 20 at each other and one of the two says, you know, 21 Your yelling makes me sick. I'm going to bed, 22 lies in bed for two days and, as we know, 23 sometimes these verbal abuses can be very, very 24 painful but we've never treated it in that 25 category, and I really wanted a clarification of 1 that. 2 Are you saying that the sort of 3 argument that often occurs even between loving 4 spouses could give rise to a claim that it's a 5 misdemeanor if it results in physical illness? 6 SENATOR MALTESE: Mr. President, 7 I think -- I appreciate at this time the 8 questions by Senator Leichter, and I would say 9 it is not the intent of myself as the sponsor to 10 put the type of action that Senator Leichter is 11 presently referring to in the situation -- in 12 the terminology that would be encompassed within 13 the terms of this bill. The physical injury 14 section and the serious physical injury 15 definitions, in the light of common experience, 16 would have to be carried to a very -- I believe 17 would have to be carried to extremes. 18 I could see a situation, as I 19 have just indicated, that physical injury or 20 serious physical injury would require 21 hospitalization as has been indicated in the 22 second portion relating to serious physical 23 injury, but I think the entire context should be 24 read in the -- with the view that we are not 25 changing the law with reference to injury or 1 serious physical injury because what we're doing 2 is clarifying it and that clarification would 3 be, I believe aided by our definitions, but I 4 could see in an extreme situation a case as 5 referred to by Senator Leichter, where an actual 6 physical contact would not be needed, but I 7 believe it is a -- it would be an aberration, 8 and I do not believe it would be covered by our 9 sections of the law, but very honestly, I could 10 see a situation where you would have a mental 11 condition caused by not an actual touching but 12 something perhaps being put in fear or a close 13 call, so to speak, an ax whizzing by your ear, 14 for instance, or something like that, that might 15 well require hospitalization, but I think it 16 would be read in the light of common experience 17 by a judge or a jury or a district attorney with 18 a view toward indictment, and I think in that 19 context, I'm comfortable with the definitions as 20 we've enumerated them in the bill. 21 SENATOR LEICHTER: Mr. President, 22 I'm somewhat reassured by what Senator Maltese 23 said, and if he yields to just one more 24 question, I think one more question should do 25 it. 1 ACTING PRESIDENT MARCELLINO: 2 Senator Maltese, do you continue to yield? 3 (Senator Maltese nods head.) 4 ACTING PRESIDENT MARCELLINO: He 5 yields, Senator. 6 SENATOR LEICHTER: So really the 7 purpose and aim of this bill, you're not really 8 addressing the nature of the act as much as 9 you're addressing the consequence of the act and 10 how we define the act by the consequence. So it 11 may be fair to say that as far as the acts are 12 concerned, you're not changing the law, but you 13 are changing the law as to the consequences that 14 may prove the act. 15 SENATOR MALTESE: I think that's 16 correct, Mr. President, and I think this change 17 would serve a purpose, a laudatory purpose that 18 would be espoused by both Senator Leichter and 19 myself. 20 SENATOR LEICHTER: Good. Thank 21 you. 22 ACTING PRESIDENT MARCELLINO: 23 Read the last section. 24 THE SECRETARY: Section 2. This 25 act shall take effect on the first day of 1 November. 2 ACTING PRESIDENT MARCELLINO: 3 Call the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 53. 6 ACTING PRESIDENT MARCELLINO: The 7 bill is passed. 8 The Secretary will read Calendar 9 Number 69. 10 THE SECRETARY: Calendar Number 11 69, by Senator Skelos, Senate Print 557-A, an 12 act to amend the Social Services Law and the 13 Family Court Act. 14 ACTING PRESIDENT MARCELLINO: 15 Read the last -- Senator Skelos, an explanation 16 has been requested. 17 SENATOR SKELOS: Mr. President, 18 this bill which has passed in two prior 19 legislative sessions, once the vote 55 to 2 and 20 last year 55 to 1 with Senator Montgomery voting 21 in the negative, would in a sense reverse a 1995 22 Court of Appeals ruling in the case of Nassau 23 County DSS versus Denise Jay. 24 This decision rendered a positive 25 toxicology test of a newborn no longer 1 sufficient to support an indicated report 2 without more evidence of abuse and neglect. In 3 essence, the child, when born with drugs in its 4 system, would have to go home and be further 5 abused before Social Services could intervene. 6 This legislation would reverse 7 that and have Social Services step in 8 immediately to protect that child from abuse. 9 ACTING PRESIDENT MARCELLINO: 10 Senator Montgomery, why do you rise? 11 SENATOR MONTGOMERY: Yes. Would 12 the sponsor, Senator Skelos, yield to a question 13 of clarification? 14 (Senator Skelos nods head.) 15 SENATOR MONTGOMERY: Senator, I 16 believe - 17 ACTING PRESIDENT MARCELLINO: 18 Excuse me, Senator. 19 Senator, do you yield? 20 SENATOR SKELOS: Yes, I yield. 21 ACTING PRESIDENT MARCELLINO: He 22 yields, Senator. 23 SENATOR MONTGOMERY: Thank you. 24 Senator Skelos, I believe last 25 year I asked the question of the legislation at 1 that time and I don't know if you've added any 2 language subsequently. Does this bill in any 3 way address the issue of once the child or the 4 mother has been identified as having abused 5 drugs -- and, therefore, this child will come 6 under your legislation -- does the legislation 7 then speak to what happens to the mother at that 8 point? 9 SENATOR SKELOS: No. 10 SENATOR MONTGOMERY: It does 11 not. Okay. And what about does it also cover 12 alcoholism, the fetal alcohol syndrome? 13 SENATOR SKELOS: No. 14 SENATOR MONTGOMERY: All right. 15 Thank you, Senator Skelos. 16 Mr. President, I opposed this 17 legislation last - 18 ACTING PRESIDENT MARCELLINO: 19 Senator Montgomery, on the bill. 20 SENATOR MONTGOMERY: -- last year 21 when Senator Skelos presented it to us and I'm 22 going to do so today for a number of reasons but 23 specifically and primarily, I am concerned that 24 this legislation seeks to address a real problem 25 by -- by dealing with a symptom. Removing the 1 baby from the mother because there is evidence 2 of drug abuse by that mother does not help 3 either necessarily the baby or the mother. I 4 understand that we want to protect the child and 5 I certainly agree with that and I'm appreciative 6 of the fact that Senator Skelos has identified 7 this as something that the state should be 8 concerned about, but at the same time, I know 9 that there are parents of children who refuse 10 drug treatment simply because they know that 11 they are -- they're going to lose their children 12 to the state if they agree to receive drug 13 treatment. So we have a situation where these 14 -- these mothers who appear and there's 15 evidence of drug treatment, they're 16 automatically going to lose their children and 17 we're not going to attempt in any way to address 18 their problem, which is the root of the problem, 19 and that is their drug abuse. 20 Usually, in most cases when there 21 is a drug abusing woman, we know that there are 22 many other issues related to that mother. So it 23 seems to me that if we're going to address the 24 question of child abuse in relationship to drug 25 abuse of a parent, particularly the mother, we 1 need to address the problem of drug abuse by the 2 mother, not just to remove the child. 3 So while I can understand and 4 identify with the intent that Senator Skelos 5 wishes to address in this legislation, it 6 certainly is definitely the wrong way to address 7 it and, in fact, it's going to create much more 8 of a burden for the state without the benefit of 9 really addressing the issue and the cause and, 10 therefore, in the long run will be totally 11 ineffective. 12 So I hope that my colleagues will 13 join me, and I'm certainly interested in working 14 with Senator Skelos and Senator Saland on a bill 15 that would really do what Senator Skelos would 16 like this bill to do. 17 Thank you. 18 ACTING PRESIDENT MARCELLINO: 19 Read the last section, please. 20 SENATOR GOLD: Mr. President. 21 ACTING PRESIDENT MARCELLINO: I'm 22 sorry. Senator Gold. 23 SENATOR GOLD: On the bill. I 24 would first of all like to point out to my 25 colleagues that this bill apparently was voted 1 on last year and the vote was 55 to 1. Last 2 year, it's my understanding that this piece of 3 legislation was considered by a substantive 4 committee of this house, approved by that 5 substantive committee, sent to the floor of this 6 house and approved by this house 55 to 1. 7 I'm informed that this year this 8 bill, even though the substantive committee very 9 carefully considered it last year, it went back 10 to that substantive committee. I know you're 11 shocked. It wasn't given to the Rules Committee 12 to just report out because the substantive 13 committee might have wasted its time, but it 14 followed the procedure of going to the 15 substantive committee which after this bill 16 apparently not passing in the Assembly took a 17 new look at it and decided we ought to take 18 another crack and put it out on the floor. I 19 just wanted to point that out to you. 20 I want to say I voted for this 21 last year. There is a memo in support, I 22 believe from the city of New York, but there's a 23 memo in opposition from NOW which raises some 24 constitutional questions, which everybody knows 25 has never stopped a bill from passing in this 1 house, but the -- I will probably vote for it 2 again, and I want to say that I give my thanks 3 to the Committee on Children and Families for 4 taking the time this year to take another look 5 at this bill and to suggest once again to the 6 members of the Legislature that we ought to 7 consider it. 8 Thank you. 9 ACTING PRESIDENT MARCELLINO: 10 Read the last section, please. 11 THE SECRETARY: Section 7. This 12 act shall take effect immediately. 13 ACTING PRESIDENT MARCELLINO: 14 Call the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 51, nays 2, 17 Senators Leichter and Montgomery recorded in the 18 negative. 19 ACTING PRESIDENT MARCELLINO: The 20 bill is passed. 21 SENATOR SKELOS: Mr. President. 22 ACTING PRESIDENT MARCELLINO: 23 Senator Skelos. 24 SENATOR SKELOS: May we move back 25 to reports of standing committees. I believe 1 there's a report of the Rules Committee at the 2 desk. I ask that it be read. 3 ACTING PRESIDENT MARCELLINO: The 4 Secretary will read. 5 THE SECRETARY: Senator Bruno, 6 from the Committee on Rules, offers up the 7 following bill directly for third reading: 8 By Senator Maltese, Senate Print 9 6135, an act to amend the Penal Law. 10 SENATOR GOLD: Mr. President. 11 SENATOR SKELOS: Move to accept 12 the report of the Rules Committee. 13 SENATOR GOLD: On the motion, Mr. 14 President. 15 ACTING PRESIDENT MARCELLINO: 16 First, the motion is to accept the report of the 17 Rules Committee. 18 Senator Gold, on the motion. 19 SENATOR GOLD: Mr. President, 20 it's no news to anybody hearing me speak right 21 now that the Republican Party in this house has 22 a majority of members and under the rules that 23 the Republican Party in this house adopts for 24 this house, it has an enormous amount of power. 25 It has the power to create those rules and all 1 that the Minority can really do is to abide by 2 those rules, hope that the Majority would live 3 by their own rules and hope as is the tradition 4 in America, that a majority would understand its 5 obligation to a minority because we are all part 6 of this society and part of this country. 7 I think in the Rules Committee we 8 saw a display of total arrogance without purpose 9 and the kind of arrogance that leads to the kind 10 of wastes of time that many of you and my 11 colleagues on the other side seem to dislike so 12 much. 13 I say to myself sometimes, Why 14 does any normal person create these kind of 15 unnecessary confrontations and I say to myself, 16 Gee, maybe if they -- Republicans aren't mad 17 enough at us, they do something ridiculous that 18 causes us to respond and that gives them some 19 fodder to say, Well, you know what those guys do 20 to you. 21 So let's see what I'm talking 22 about for those of you who as yet may not know. 23 We just had before us Calendar 69. That bill 24 passed the Legislature, this house last year, 25 with one dissenting vote, overwhelming vote. It 1 came out of the Committee on Children and 2 Families. This year the bill not having passed 3 the Assembly last year, it went back to its 4 committee and the committee decided to send it 5 out again and that committee reported it out and 6 it is before us -- or was before us today. That 7 procedure doesn't seem so incredible. It sounds 8 kind of normal to me. 9 The next bill I see on the 10 calendar is Calendar Number 73. That bill was 11 from, let me see, the Committee on Rules. Did 12 that come out of Rules this year? The bill was 13 introduced last year some time and apparently 14 when it was introduced it went to the Rules 15 Committee. 16 The next bill I'm showing in my 17 book here is Calendar 105. Do we have the bill 18 -- 86? Okay. 86 was Senator DeFrancisco's 19 bill. Last year that bill passed 61 to 20 nothing. That bill last year was reviewed, Mr. 21 President, by the Codes Committee and it came 22 out on the floor. I don't know whether it was 23 debated or not, but apparently all of the 24 members of this house thought that Senator 25 DeFrancisco's bill made some sense and we 1 adopted it last year in this house 61 to 2 nothing. This year the bill not having passed 3 the Assembly, the bill again went to Codes, was 4 reported out of Codes to the floor. I 5 congratulate Senator Volker for doing the work 6 of the Codes Committee. 7 Now, that bill didn't bypass 8 Codes this year to save Codes any work. It 9 didn't bypass Codes this year because of any 10 procedure in the Senate which says that if we 11 take a look at it one year, we don't have to 12 take a look at it the following year in the 13 substantive committee. The bill went in the 14 normal course to its substantive committee. You 15 see a pattern here? 16 The next bill, 105. This bill we 17 had last year. It came out of Corporations, 18 Senator -- yeah. It was Senator Kuhl's bill, 19 went to Corporations and the Corporations 20 Committee considered that bill last year and 21 they said, By gosh, Randy, that's a 300-yard 22 drive down the middle. We're putting that bill 23 out and it came to the floor. 24 SENATOR SKELOS: Mr. President. 25 ACTING PRESIDENT MARCELLINO: 1 Excuse me, Senator. 2 Senator Skelos, why do you rise? 3 SENATOR SKELOS: Just to remind 4 the members that under the rules, the debate may 5 not exceed more than one hour, one half hour for 6 each side. 7 Thank you, Mr. President. 8 ACTING PRESIDENT MARCELLINO: The 9 clock started at 3:46. 10 SENATOR GOLD: Yeah. I think 11 I'll just about make it. 12 ACTING PRESIDENT MARCELLINO: 13 Somehow I had no doubt. 14 SENATOR GOLD: Just about make 15 it. Now, the Senate as a whole took a look at 16 that bill and said, Yes, we agree that bill 17 ought to pass and we all voted for that bill, 18 everyone that was here, 59 to nothing. The bill 19 didn't pass the Assembly, apparently. So what 20 happened this year? 21 The bill was not derailed from 22 its substantive committee. No one suggested the 23 substantive committee was worth garbage. 24 Certainly nobody on this side considers the 25 Republican Committee chairmen garbage. We 1 respect you all. I hope everyone on your side 2 respects you as much as we respect you. No one 3 said, Oh, it passed before. Send it to Rules, 4 put it out to get the substantive committee, and 5 so the substantive committee did, in fact, 6 consider that bill, reported it out and that's 7 how it got on the floor. Nothing to do with 8 Rules. I think we hit four in a row. 9 Let's see the next one. Senator 10 Saland. Senator Saland's bill came out of a 11 committee last year. Apparently it didn't pass 12 the Assembly but this house liked it and we 13 passed it 60 to nothing. It was nobody I know 14 of who said, Hey, that's a 60 to nothing good 15 ol' Saland bill. Let's forget the committee. 16 Let's send it to Rules, right to the floor, 17 Rules report. Let's not waste any more time. 18 Apparently somebody said that's the bill that 19 belongs in the committee. It says criminal 20 procedure. Was that Codes? Probably Codes. 21 Senator Volker does a great job for us. Let it 22 go through his committee. Maybe they'll want to 23 reconsider. Well, the Codes Committee didn't 24 want to reconsider and we liked what we did last 25 year and we put it out again this year and we 1 passed it again, and you will notice that the 2 Rules Committee had nothing to do with it. It 3 got here from the substantive committee, voted 4 on by the members in the normal course. I think 5 that's about five in a row. It seems to be a 6 pattern. 7 Next we have Senator Libous, 8 145. This one last year passed 61 to nothing. 9 Can't do better than that, Tom, 61 to nothing, 10 home run. Enhances penalties for first degree 11 assault, third degree assault, second degree 12 harassment, when the offender has a prior 13 conviction for such an offense within the 14 previous ten years. Throw that book at him. 15 That's what we all said. Throw that book at the 16 bum. The Codes Committee put it out last year. 17 It passed unanimously, everybody being here. 18 This year I didn't see anybody saying, Dale, why 19 don't you give us all those bills over to 20 Codes. Don't waste your time. You've got a 21 tough committee there. It's one of the best 22 committees in the house. Take it off your 23 hands. We'll take it into Rules and put it 24 out. Nobody said that. 61 to nothing. Nobody 25 suggested the substantive committee not be 1 involved. 2 146, this one is by Senator 3 Volker. It creates a new offense of endangering 4 the welfare of a child. This passed last year 5 60 to nothing. This bill, as a matter of fact, 6 last year was introduced by the Republican 7 Attorney General of this state as part of the 8 Attorney General's program, 60 to nothing last 9 year, backed by the Attorney General of the 10 state -- present Attorney General of the state 11 of New York and neither Senator Bruno nor 12 anybody else or any deputies over there said, 13 Don't waste your time in committee. Don't waste 14 your time. Send it to Rules, right to the 15 floor, new procedure in the Senate. This 16 non-controversial bill went through the process, 17 got to the floor by way of the Codes Committee 18 and we had a chance to vote on it and we passed 19 it today. The Rules Committee had nothing to do 20 with it. Well, I see a pattern and perhaps 21 there are other people who may want to be heard 22 on this issue. 23 So my point is a simple point. 24 The Rules Committee of this house provides an 25 extraordinarily important function. There are 1 times throughout the year when things must be 2 done. We have emergencies. At the end of the 3 session committees are closed down, not by my 4 doing, by your doing because I would keep them 5 going because I respect committee chairmen, but 6 there are times when things must be done and we 7 have a Rules Committee and on that Rules 8 Committee, for the most part, are a lot of the 9 senior members, a lot of the leadership members 10 from each side and the Codes Committee and the 11 Rules Committee does important work. 12 This bill, which is the subject 13 of this report, is a bill that had been 14 introduced last year, I am told, and a bill 15 which I guess didn't have a vote or in some way 16 was -- had its last section stricken, but a bill 17 which last year went through the Codes Committee 18 and it went through the Codes Committee because 19 it I guess sets up some criminal activity and 20 that's the proper committee for it to be dealt 21 with. 22 The bill was introduced today, 23 today. What we got was a -- not the normal kind 24 of printer's version, but I guess a computer 25 generated bill today, and the bill does not say 1 on it that it is referred to the Codes 2 Committee. It says it's referred to the 3 Committee on Rules. The Rules Committee called 4 for a meeting. 5 I asked what was on the minds of 6 a lot of people on that committee, at least on 7 my side, and said to the presiding officer of 8 that committee, Senator Bruno's deputy, Why? 9 Why is this bill introduced today, the subject 10 of a Rules report today directly to third so 11 that it's got to be on next Monday? This is a 12 bill, by the way, which didn't pass 13 unanimously. It is a bill which will not pass 14 unanimously, a bill which has controversy 15 surrounding it. As a matter of fact, I see a 16 vote on a similar bill last year with 19 17 negatives; in 1996, the similar bill, 21 18 negatives. Now, if there ever was a bill that 19 ought to be considered by a committee, that's 20 such a bill. Obviously there are things to be 21 said on each side and a substantive committee 22 ought to be involved. 23 One of the reasons given by the 24 person sitting in for Senator Bruno was that we 25 don't need the substantive committee because 1 last year the substantive committee put the bill 2 out and why does it have to go back this year, 3 and I say to that person, look at today's 4 calendar. You want to know why? Look at 5 today's calendar filled with bills by Senator 6 Volker and Senator Saland and Senator Libous and 7 others, with bills that have passed unanimously 8 in prior years and which passed unanimously 9 today but we send them through the committee 10 system. Maybe the reason it didn't pass the 11 Assembly last year is some minor adjustment that 12 the committee might want to negotiate or make, 13 maybe not, but to take a bill with such 14 controversy to it and to arrogantly and 15 flippantly say to members of this house who ask 16 a legitimate question, it was in the committee 17 before, it was in last year, we don't need it 18 again, that is what I characterize as 19 unnecessary confrontation. That's what I 20 characterize as unnecessary insult. It's what I 21 characterize as unnecessary abrasiveness. 22 So to my Republican colleagues, I 23 say this to you. It's about time after all 24 these years that you weren't surprised that when 25 you slap someone, they slap you back. It's 1 called counterpunching, and if you want to take 2 a look at the record of proceedings in this 3 house, you will find in almost every situation, 4 in almost every situation it is your party or 5 one of the people in your party who instigates, 6 who shows an abuse of power in an unnecessary 7 situation that causes the delays, that causes 8 the trouble. 9 At the committee meeting, I 10 raised the issue as to where this bill should be 11 and I said, Well, if that's the case, I would 12 move that the bill be referred to the Codes 13 Committee. That is a decision that the members 14 of the Rules Committee can make. It is a 15 decision that the Republican Majority on the 16 Rules Committee cannot make if it doesn't want 17 to. I was told by the person conducting the 18 meeting that I couldn't even make that motion 19 because that's the Rules Committee, and if you 20 can show that to me in the rules, I'm willing to 21 learn. I'm willing to learn, but there's no 22 such rule and you know it. Everyone knows it. 23 The Rules Committee can refer a bill to any 24 other committee. It can do whatever it wants. 25 I said, Well, then I would appeal the ruling of 1 the Chair, at which point I was told by this 2 person that I can appeal any damn thing I want. 3 He's going to call a vote to put it on the 4 floor. Well, I guess a vote was called and it's 5 out on the floor. What's on the floor? The 6 Rules Committee report. 7 I tell all of you not by way of 8 lecture. I'm not here to lecture, but as 9 somebody who's been around a day or two and 10 won't be around -- I know many of you say thank 11 God -- not too much longer, what I'm talking 12 about is the dignity of this house. That's what 13 it is. If my motion had been defeated, it would 14 have been defeated, that would have been that. 15 If I appeal the ruling of the Chair -- I'll tell 16 you one thing, if you appeal the ruling of the 17 Chair in this house, it never bothers the 18 Chair. They've got a Republican Majority that 19 says whatever the Chair does is right, but the 20 concept of having to flex muscle when it is 21 meaningless is -- who is it impressing? I 22 wasn't impressed, I'll tell you that. There 23 wasn't anybody on this side that all of a sudden 24 got impressed that some member of this house can 25 sit as an acting chair and tell somebody that 1 they'll violate the rules. As a matter of fact, 2 the only expression I can use to accurately 3 portray it is that I was underwelmed. 4 When forced to vote, I voted no 5 in the committee on the motion to put it out and 6 as everybody knows, those votes are not 7 substantive votes. Who knows? I might be 8 convinced by debate that the bill ought to 9 pass. I know one thing. Maybe the reason the 10 bill wasn't sent to Codes is the fault of 11 Senator Volker, because I've sat in your 12 committee meetings, Senator Volker, and you know 13 as well as I do what goes on in your meetings. 14 You allow people to talk. You allow people to 15 think. You allow people to exchange ideas. One 16 of the least Republican things that happens in 17 this house. Somebody is so afraid of your 18 committee that this bill had to be avoided? 19 Senator, I think that's almost a red badge of 20 courage that they wouldn't put it in your 21 committee. 22 This is a session where I think 23 to everybody's delight the Governor of this 24 state after three years of budget battle filed a 25 budget which might not take us as long as some 1 other years. I think certainly the Governor has 2 expressed the desire to make a real effort to 3 bring a budget in on time. Maybe there isn't a 4 sign on the horizon that doesn't have 5 controversy to keep us going. So maybe someone 6 whispered in the ear of whoever it was that held 7 that committee meeting and said you better start 8 some controversy, but I tell you, this is 9 nonsense. It is insulting nonsense and there's 10 no reason for it. 11 The sponsor of the bill that is 12 before us is a gentleman from Queens by the name 13 of Serphin Maltese, and I think that there's 14 probably more things that we disagree with than 15 any other two people in the house, except that I 16 said there was a gentleman by the name of 17 Serphin Maltese, and in all of my disagreements 18 with Senator Maltese, there's not one person who 19 could say I said anything other than he was a 20 gentleman. We are two people who disagree on 21 certain issues. 22 Whether this bill went to Codes 23 or didn't go to Codes, I have a feeling it would 24 have wound up on the floor, except maybe - 25 maybe you know something I don't. Maybe the 1 Codes Committee members, even the ones on your 2 side, don't agree with this bill and maybe you 3 couldn't get it out of the committee. Now, that 4 would have been terrific. What are your 5 alternatives then? A motion to discharge. That 6 would have been terrific. Senator Leichter and 7 I would have sat here with big grins and said, 8 Can you imagine, Republicans are making motions 9 to discharge. I wonder if this one will pass. 10 Whether a bill makes it or doesn't make it from 11 a committee is not even the issue. I think 12 early in the session we ought to be doing things 13 which don't demean the house. 14 I know that at least in the 15 opinion of one person on your side, whenever I 16 or any of my colleagues object to your abuse of 17 power, you believe that that is what tarnishes 18 the reputation of this house, but I can tell you 19 that no matter what your little group says in 20 your own little world, there's a world out there 21 that always knows the truth and when they see 22 the kind of roughshod that you run over 23 democracy in your own committee meetings, you 24 are not admired, and if a lobbyist or two takes 25 you out to dinner and tells you how great you 1 are, well, it's understandable, but I'm more 2 concerned about what people say behind my back, 3 not what they're saying at dinner because they 4 got bills in my committee. 5 I would urge that this report be 6 rejected. I would urge that this bill go back 7 to Codes and if it is reported out of Codes, we 8 can handle it in the normal course of business. 9 I'm going to oppose the report. 10 I would hope that on a slow roll call we would 11 also stand up for some sense of honor among 12 ourselves, courtesy among ourselves, stand up 13 for the dignity of this house, and I think the 14 way you do it is by voting no. 15 ACTING PRESIDENT MARCELLINO: The 16 motion is on the -- on the motion to remove the 17 bill to the floor on the Rules Committee -- I'm 18 sorry -- to accept the report of the Rules 19 Committee - 20 SENATOR GOLD: Slow roll call. 21 ACTING PRESIDENT MARCELLINO: 22 Slow roll call has been requested. Do we see 23 five Senators? Five Senators are rising. A 24 slow roll call will be held on the motion. Can 25 we ring the bells and get our members in for a 1 slow roll call. 2 The Secretary will read the roll 3 call slowly. 4 THE SECRETARY: Senator Abate. 5 SENATOR ABATE: No. 6 SENATOR SKELOS: Mr. President, 7 could you please recognize Senator Rath for the 8 purpose of voting. 9 ACTING PRESIDENT MARCELLINO: 10 Senator Rath. 11 SENATOR RATH: Yes. 12 ACTING PRESIDENT MARCELLINO: 13 Senator Rath recorded in the positive. 14 THE SECRETARY: Senator Alesi. 15 SENATOR ALESI: Yes. 16 THE SECRETARY: Senator Balboni. 17 SENATOR BALBONI: Aye. 18 THE SECRETARY: Senator Breslin. 19 SENATOR BRESLIN: No. 20 THE SECRETARY: Senator Bruno. 21 (Affirmative indication.) 22 Senator Connor. 23 (Negative indication.) 24 Senator Cook. 25 SENATOR COOK: Yes. 1 THE SECRETARY: Senator 2 DeFrancisco. 3 SENATOR DeFRANCISCO: Yes. 4 THE SECRETARY: Senator 5 Dollinger. 6 SENATOR DOLLINGER: No. 7 THE SECRETARY: Senator Farley. 8 (There was no response.) 9 Senator Gentile. 10 SENATOR GENTILE: No. 11 THE SECRETARY: Senator Gold. 12 SENATOR GOLD: No. 13 THE SECRETARY: Senator Gonzalez. 14 (There was no response.) 15 Senator Goodman. 16 (There was no response.) 17 Senator Hannon. 18 SENATOR HANNON: Yes. 19 THE SECRETARY: Senator Hoffmann. 20 SENATOR HOFFMANN: No. 21 THE SECRETARY: Senator Holland. 22 (There was no response.) 23 Senator Johnson. 24 SENATOR JOHNSON: Aye. 25 THE SECRETARY: Senator Kruger. 1 (There was no response.) 2 Senator Kuhl. 3 SENATOR KUHL: Aye. 4 THE SECRETARY: Senator Lachman. 5 (There was no response.) 6 Senator Lack. 7 SENATOR LACK: Aye. 8 THE SECRETARY: Senator Larkin. 9 SENATOR LARKIN: Aye. 10 THE SECRETARY: Senator LaValle. 11 SENATOR LAVALLE: Aye. 12 THE SECRETARY: Senator Leibell. 13 (There was no response.) 14 Senator Leichter. 15 SENATOR LEICHTER: Mr. President, 16 may I have my name called. 17 ACTING PRESIDENT MARCELLINO: 18 Senator Leichter to explain his vote. 19 SENATOR LEICHTER: Yeah, Mr. 20 President. I think Senator Gold made a very 21 strong, and I think a very persuasive statement, 22 but the one thing that really deserves to be 23 underscored is that this Rules report and the 24 procedure relating to this bill just runs 25 roughshod over the committee system. 1 Now, I serve on a number of 2 committees, and I want to say that these are 3 good functioning committees. All of the 4 chairmen do a conscientious job, a fair job. 5 That's certainly true of Senator Volker and his 6 committee and I've served on it for many years, 7 and this bill deserved to go to his committee. 8 There is no reason in the world why this bill 9 that was printed today was rushed to the Rules 10 Committee and put out to the floor. If you want 11 for some scheduling purposes or reason to put 12 this bill on early in the session, you can 13 certainly do it, but you should not undercut the 14 committee system, and when we do something of 15 this sort -- and the Republican Majority has 16 done it unfortunately at times and you have the 17 power to do it -- you can twist the rules. You 18 can twist our procedures. You can make a 19 mockery of the way we proceed here, but in the 20 long run you hurt this Legislature and maybe 21 that's one of the reasons that we have so little 22 public confidence and why there's so much 23 skepticism about our work. 24 This is a wrong procedure. It's 25 unfair. It's undemocratic. It has nothing to 1 do with the merits of the bill. Those are going 2 to be taken up on the floor, but process is 3 important and this violates the basic process. 4 If you want to say, let's do away 5 with the committees, go ahead and do it, but 6 that's really what you're doing and what you're 7 saying by moving this bill on through the Rules 8 Committee without having it go before one of the 9 substantive committees. 10 Mr. President, I vote no. 11 ACTING PRESIDENT MARCELLINO: 12 Senator Leichter will be recorded in the 13 negative. Continue the call. 14 THE SECRETARY: Senator Levy, 15 excused. 16 Senator Libous. 17 SENATOR LIBOUS: Yes. 18 THE SECRETARY: Senator Maltese. 19 (There was no response.) 20 Senator Marcellino. 21 SENATOR MARCELLINO: Yes. 22 THE SECRETARY: Senator Marchi. 23 SENATOR MARCHI: Aye. 24 THE SECRETARY: Senator 25 Markowitz. 1 SENATOR MARKOWITZ: No. 2 THE SECRETARY: Senator Maziarz. 3 SENATOR MAZIARZ: Yes. 4 THE SECRETARY: Senator Meier. 5 SENATOR MEIER: Yes. 6 THE SECRETARY: Senator Mendez. 7 (There was no response.) 8 Senator Montgomery. 9 SENATOR MONTGOMERY: No. 10 THE SECRETARY: Senator Nanula. 11 (Negative indication.) 12 Senator Nozzolio. 13 SENATOR NOZZOLIO: Aye. 14 THE SECRETARY: Senator Onorato. 15 SENATOR ONORATO: No. 16 THE SECRETARY: Senator 17 Oppenheimer. 18 SENATOR OPPENHEIMER: No. 19 THE SECRETARY: Senator Padavan. 20 SENATOR PADAVAN: Aye. 21 THE SECRETARY: Senator Paterson. 22 SENATOR PATERSON: Mr. President. 23 ACTING PRESIDENT MARCELLINO: 24 Senator Paterson. 25 SENATOR PATERSON: Mr. President, 1 if there were an extremely extraordinary 2 circumstance that perhaps gave us rise to bring 3 a bill directly to third reading and then to the 4 floor, I could certainly understand that we 5 would use that procedure. 6 However, in this case, no such 7 information to that effect has been given, and 8 that's, I think what Senator Gold was actually 9 seeking was an explanation for why there had to 10 be this amount of a rush to get a bill that is 11 highly controversial. I believe Senator Gold 12 read into the record that there were 19 no votes 13 on similar legislation in 1997 and 21 no votes 14 on similar legislation in 1996. Therefore, this 15 is an extremely controversial bill, and I think 16 that to rush it in this fashion actually 17 compromises the issue and the severity of the 18 feeling whether you support or oppose this 19 legislation. 20 ACTING PRESIDENT MARCELLINO: 21 Excuse me, Senator. Can we have some order in 22 the house, please. 23 SENATOR PATERSON: Thank you, Mr. 24 President. 25 And just to conclude, I think 1 that Senator Gold has taken the time to offer us 2 all somewhat of a lesson in terms of what this 3 chamber means, what the spirit of government 4 means and what our personal duties are, and in 5 spite of the advantages that we may have and in 6 spite of the title that we may lend for the time 7 that we are here, there is a certain 8 responsibility that we all enjoy and it should 9 be used professionally and it should certainly 10 be used with respect not only for our colleagues 11 but for the process that we're in. 12 For that reason, Mr. President, I 13 must vote no. 14 ACTING PRESIDENT MARCELLINO: 15 Senator Paterson will be recorded in the 16 negative. 17 Continue the roll. 18 THE SECRETARY: Senator Present. 19 SENATOR PRESENT: Aye. 20 THE SECRETARY: Senator Rath 21 voting in the affirmative earlier today. 22 Senator Rosado. 23 SENATOR ROSADO: No. 24 THE SECRETARY: Senator Saland. 25 SENATOR SALAND: Aye. 1 THE SECRETARY: Senator Sampson. 2 SENATOR SAMPSON: No. 3 THE SECRETARY: Senator Santiago. 4 SENATOR SANTIAGO: No. 5 THE SECRETARY: Senator Seabrook. 6 (There was no response.) 7 Senator Seward. 8 SENATOR SEWARD: Yes. 9 THE SECRETARY: Senator Skelos. 10 SENATOR SKELOS: Yes. 11 THE SECRETARY: Senator Smith. 12 (There was no response.) 13 Senator Spano. 14 SENATOR SPANO: Aye. 15 THE SECRETARY: Senator 16 Stachowski. 17 SENATOR STACHOWSKI: No. 18 THE SECRETARY: Senator Stafford. 19 SENATOR STAFFORD: Aye. 20 THE SECRETARY: Senator Stavisky. 21 SENATOR STAVISKY: In the 22 negative. 23 THE SECRETARY: Senator Trunzo. 24 SENATOR TRUNZO: Yes. 25 THE SECRETARY: Senator Velella. 1 SENATOR VELELLA: Yes. 2 THE SECRETARY: Senator Volker. 3 SENATOR VOLKER: Yes. 4 THE SECRETARY: Senator Waldon. 5 (There was no response.) 6 Senator Wright. 7 SENATOR WRIGHT: Aye. 8 ACTING PRESIDENT MARCELLINO: Can 9 we call the roll of the absentees, please. 10 THE SECRETARY: Senator Farley. 11 (There was no response.) 12 Senator Gonzalez. 13 SENATOR GONZALEZ: No. 14 THE SECRETARY: Senator Goodman. 15 (There was no response.) 16 Senator Holland. 17 SENATOR HOLLAND: Yes. 18 THE SECRETARY: Senator Kruger. 19 (There was no response.) 20 Senator Lachman. 21 (There was no response.) 22 Senator Leibell. 23 SENATOR LEIBELL: Aye. 24 THE SECRETARY: Senator Maltese. 25 SENATOR MALTESE: Aye. 1 THE SECRETARY: Senator Mendez. 2 (There was no response.) 3 Senator Rosado. 4 (There was no response.) 5 Senator Seabrook. 6 (There was no response.) 7 Senator Smith, excused. 8 And Senator Waldon. 9 (There was no response.) 10 ACTING PRESIDENT MARCELLINO: 11 Announce the results, please. 12 THE SECRETARY: Ayes 32, nays 13 19. 14 ACTING PRESIDENT MARCELLINO: The 15 motion to accept the report of the Rules 16 Committee is passed. 17 Senator Skelos -- Senator 18 DeFrancisco. 19 SENATOR DeFRANCISCO: Yes. I was 20 out of the chambers. I would like unanimous 21 consent to be recorded in the negative on 22 Calendar 148, Senate 4644-A. 23 ACTING PRESIDENT MARCELLINO: So 24 ordered, without objection. 25 SENATOR SKELOS: Mr. President, 1 there being no further business, I move we 2 adjourn until Monday, February 9th, at 3:00 3 p.m., intervening days being legislative days. 4 ACTING PRESIDENT MARCELLINO: On 5 motion, the Senate stands adjourned until 6 Monday, February 9, at 3:00 p.m., intervening 7 days to be legislative days. 8 (Whereupon, at 4:25 p.m., the 9 Senate adjourned.) 10 11 12 13 14 15 16 17