Wednesday, April 8, 1998

1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 April 8, 1998 10 3:00 p.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR RAYMOND A. MEIER, 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 MEIER: The 3 Senate will come to order. I'd ask everyone 4 present to please rise for the Pledge of 5 Allegiance. 6 (The assemblage repeated the 7 Pledge of Allegiance to the Flag.) 8 In the absence of clergy, I'd ask 9 that everyone bow their heads a moment of 10 silence. 11 (A moment of silence was 12 observed.) 13 The reading of the Journal. 14 THE SECRETARY: In Senate, 15 Tuesday, April 7th. The Senate met pursuant to 16 adjournment. The Journal of Monday, April 6th, 17 was read and approved. Upon motion, the Senate 18 adjourned. 19 ACTING PRESIDENT MEIER: Without 20 objection, the Journal stands approved as read. 21 Presentation of petitions. 22 Messages from the Assembly. 23 Messages from the Governor. 24 Reports of standing committees. 25 The Secretary will read. 1 THE SECRETARY: Senator Larkin, 2 from the Committee on Racing, Gaming and 3 Wagering, reports: 4 Senate Print 6373-B, by Senator 5 Larkin, an act to amend the Racing, Pari-mutuel 6 Wagering and Breeding Law. 7 Senator Maltese, from the 8 Committee on Elections, reports: 9 Senate Print 560, by Senator 10 Goodman, an act to amend the Election Law; 11 4511-B, by Senator Present, an act 12 to amend the Election Law; 13 4883, by Senator Maltese, an act 14 to amend the Election Law. 15 Senator Marchi, from the Committee 16 on Corporations, Authorities and Commissions, 17 reports: 18 Senate Print 2849, by Senator 19 Marchi, an act to amend the Not-for-Profit 20 Corporation Law; 21 3674-A, by Senator Leibell, an act 22 to amend the Public Authorities Law; 23 4085, by Senator Marchi, an act to 24 repeal Section 630 of the Business Corporation 25 Law; and 1 5732, by Senator Marchi, an act to 2 amend Chapter 393 of the Laws of 1994. 3 All bills directly for third 4 reading. 5 ACTING PRESIDENT MEIER: Without 6 objection, all bills directly to third reading. 7 Reports of select committees. 8 Communications and reports from 9 state officers. 10 Motions and resolutions. 11 Senator Farley. 12 SENATOR FARLEY: Thank you, Mr. 13 President. 14 On behalf of Senator Johnson, on 15 page 10, I offer the following amendments to 16 Calendar 256, Senate Print 2550-C, and I ask that 17 that bill retain its place. 18 On behalf of Senator Nozzolio, on 19 page 33 (23), I offer the following amendments to 20 Calendar 535, Senate Print 474-B, and I ask that 21 that bill retain its place. 22 Mr. President, on page 29, I offer 23 the following amendments to Calendar 597, Senate 24 Print 2318, and I ask that that bill retain its 25 place on the Third Reading Calendar. That's 1 Senator Maltese's bill. 2 On behalf of Senator Marchi, on 3 page -- I offer the following amendments to 4 Calendar 603, Senate Print 4085, and I ask that 5 that bill retain its place. 6 On behalf of Senator Marchi, I 7 offer the following amendments to Senate Print 8 5732, and I ask that that bill retain its place. 9 ACTING PRESIDENT MEIER: The 10 amendments are received and so ordered. 11 The Secretary will read the 12 substitution. 13 THE SECRETARY: Senator Farley 14 moves to discharge from the Committee on Local 15 Government Assembly Print 3758-A and substitute 16 it for the identical Senate Bill 2339-A. 17 ACTING PRESIDENT MEIER: The 18 substitution is ordered. 19 Senator Skelos. 20 SENATOR SKELOS: Mr. President, if 21 we could take up the non-controversial calendar. 22 ACTING PRESIDENT MEIER: The 23 Secretary will read the non-controversial 24 calendar. 25 THE SECRETARY: Calendar Number 1 98, by Senator Volker, Senate Print 3456-A, an 2 act to enact the Criminal Procedure Law Reform 3 Act of 1998. 4 SENATOR PATERSON: Lay it aside. 5 ACTING PRESIDENT MEIER: Lay the 6 bill aside. 7 THE SECRETARY: Calendar Number 8 187, by member of the Assembly Brodsky - 9 SENATOR SKELOS: Lay it aside for 10 the day. 11 ACTING PRESIDENT MEIER: Lay the 12 bill aside for the day. 13 THE SECRETARY: Calendar Number 14 364, by Senator Nozzolio, Senate Print 4084-A, an 15 act to amend the Civil Practice Law and Rules. 16 SENATOR PATERSON: Lay it aside. 17 ACTING PRESIDENT MEIER: Lay it 18 aside. 19 THE SECRETARY: Calendar Number 20 387, by Senator Cook, Senate Print 366, an act to 21 amend the Education Law, in relation to defining 22 non-residents of a district. 23 ACTING PRESIDENT MEIER: Read the 24 last - 25 SENATOR PATERSON: Lay it aside. 1 ACTING PRESIDENT MEIER: Lay the 2 bill aside. 3 THE SECRETARY: Calendar Number 4 418, by Senator Maziarz, Senate Print 5231, an 5 act to amend the Highway Law and the 6 Environmental Conservation Law. 7 ACTING PRESIDENT MEIER: Read the 8 last section. 9 THE SECRETARY: Section 4. This 10 act shall take effect immediately. 11 ACTING PRESIDENT MEIER: Call the 12 roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes 43. 15 ACTING PRESIDENT MEIER: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 419, by Senator Holland, Senate Print 6069, an 19 act to amend the Vehicle and Traffic Law, in 20 relation to providing. 21 SENATOR PATERSON: Lay it aside, 22 please. 23 ACTING PRESIDENT MEIER: Lay the 24 bill aside. 25 THE SECRETARY: Calendar Number 1 450, by Senator Present, Senate 764, an act to 2 amend the State Administrative Procedure Act. 3 ACTING PRESIDENT MEIER: Read the 4 last section. 5 THE SECRETARY: Section 6. This 6 act shall take effect on the 180th day. 7 ACTING PRESIDENT MEIER: Call the 8 roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 45. 11 ACTING PRESIDENT MEIER: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 462, by Senator Velella, Senate Print 2334-A, an 15 act to amend the Penal Law, in relation to the 16 crime of criminal mischief. 17 ACTING PRESIDENT MEIER: Read the 18 last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect on the first day of 21 November. 22 ACTING PRESIDENT MEIER: Call the 23 roll. 24 (The Secretary called the roll.) 25 THE SECRETARY: Ayes 45. 1 ACTING PRESIDENT MEIER: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 466, by Senator Nozzolio, Senate Print 4917, an 5 act to amend the Civil Practice Law and Rules and 6 Court of Claims Act. 7 ACTING PRESIDENT MEIER: Read the 8 last section. 9 SENATOR GOLD: Lay it aside. 10 ACTING PRESIDENT MEIER: Lay the 11 bill aside. 12 THE SECRETARY: Calendar Number 13 497, by Senator Kuhl, Senate Print 6018, an act 14 to amend the Agriculture and Markets Law. 15 ACTING PRESIDENT MEIER: Read the 16 last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT MEIER: Call the 20 roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes 47. 23 ACTING PRESIDENT MEIER: The bill 24 is passed. 25 THE SECRETARY: Calendar Number 1 507, by Senator Skelos, Senate Print 3410-A, an 2 act to amend the Correction Law and the County 3 Law. 4 SENATOR PATERSON: Lay it aside. 5 ACTING PRESIDENT MEIER: Lay the 6 bill aside. 7 THE SECRETARY: Calendar Number 8 508, by Senator Skelos, Senate Print 5259, an act 9 to amend the Correction Law, in relation to 10 requiring. 11 ACTING PRESIDENT MEIER: Read the 12 last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT MEIER: Call the 16 roll. 17 SENATOR LEICHTER: Lay it aside. 18 ACTING PRESIDENT MEIER: Lay the 19 bill aside, please. 20 THE SECRETARY: Calendar Number 21 528, by Senator Johnson, Senate Print 6833, an 22 act to amend the Environmental Conservation Law, 23 in relation to winter flounder regulations. 24 ACTING PRESIDENT MEIER: Read the 25 last section. 1 THE SECRETARY: Section 3. This 2 act shall take effect immediately. 3 ACTING PRESIDENT MEIER: Call the 4 roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes 47. 7 ACTING PRESIDENT MEIER: The bill 8 is passed. 9 THE SECRETARY: Calendar Number 10 560, by Senator Larkin, Senate Print 1346, an act 11 to amend the Vehicle and Traffic Law, in relation 12 to authorizing the city of Newburgh. 13 ACTING PRESIDENT MEIER: Read the 14 last section -- Senator Skelos, there's a home 15 rule message at the desk on this. Read the last 16 section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT MEIER: Call the 20 roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes 47. 23 ACTING PRESIDENT MEIER: The bill 24 is passed. 25 THE SECRETARY: Calendar Number 1 561, by Senator Present, Senate Print 1891, an 2 act to amend the Highway Law, in relation to 3 distribution and payment. 4 ACTING PRESIDENT MEIER: Read the 5 last section. 6 THE SECRETARY: Section 3. This 7 act shall take effect on the first day of April. 8 ACTING PRESIDENT MEIER: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 48. 12 ACTING PRESIDENT MEIER: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 562, by Senator LaValle, Senate Print 2467-A, an 16 act in relation to the Long Island Suburban 17 Highway Improvement Program. 18 SENATOR PATERSON: Lay that aside. 19 ACTING PRESIDENT MEIER: Lay the 20 bill aside. 21 Senator Skelos, that completes the 22 reading of the non-controversial calendar. 23 SENATOR SKELOS: Mr. President, on 24 the controversial calendar, would you please call 25 up Senator Holland's bill, Calendar Number 419. 1 ACTING PRESIDENT MEIER: The 2 Secretary will read Calendar 419. 3 THE SECRETARY: Calendar Number 4 419, by Senator Holland, Senate Print 6069, an 5 act to amend the Vehicle and Traffic Law, in 6 relation to providing. 7 SENATOR PATERSON: Explanation. 8 ACTING PRESIDENT MEIER: Senator 9 Holland, an explanation has been requested of 10 Calendar 419. 11 SENATOR HOLLAND: Mr. President, 12 all this bill does is set up manufacturer's 13 plates for -- license plates for any organization 14 that manufactures ten or more vehicles a year. 15 It's just like dealer plates or transporter 16 plates. 17 ACTING PRESIDENT MEIER: Senator 18 Paterson. 19 SENATOR PATERSON: Mr. President, 20 if Senator Holland would yield for a question. 21 SENATOR HOLLAND: Yes. 22 ACTING PRESIDENT MEIER: The 23 Senator yields. 24 SENATOR PATERSON: My question is 25 pretty basic. I'm just a little unclear on what 1 the actual need for the legislation is. 2 SENATOR HOLLAND: It is so that 3 the manufacturers can move the cars around the 4 roads. They're still charging for the plates, 5 Senator. They will be $25 each, but it's done in 6 all other -- most other states and it is not done 7 in New York and it simply gives them the ability 8 to buy a license plate and move their vehicles 9 around the road. 10 SENATOR PATERSON: So this is 11 similar to dealer plates? 12 SENATOR HOLLAND: Same as dealer 13 plates, yes, sir. 14 SENATOR PATERSON: Okay. Just one 15 last question, Senator. Do you have any idea why 16 we for such a long period of time have not had 17 this in New York State? 18 SENATOR HOLLAND: I do not know, 19 sir, but Mercedes is moving into my district and 20 they've requested it and it sounds like a good 21 idea to me. 22 SENATOR PATERSON: Okay. Thank 23 you very much, Senator. 24 ACTING PRESIDENT MEIER: Read the 25 last section. 1 THE SECRETARY: Section 2. This 2 act shall take effect on the 90th day. 3 ACTING PRESIDENT MEIER: Call the 4 roll. 5 (The Secretary called the roll.) 6 ACTING PRESIDENT MEIER: Senator 7 Montgomery. 8 SENATOR MONTGOMERY: Yes. Mr. 9 President, I'm not going to oppose Senator 10 Holland's bill, even though we're not -- our 11 Deputy Minority Leader had some questions about 12 it, but I do just want to say, Senator Holland, 13 that I'm very happy to know that you are taking 14 such an interest in issues related to traffic 15 because, as you know, I live in a district where 16 we have lots of traffic problems and some of 17 those traffic problems are related to students, 18 and I have some students in my -- in the -- who 19 are visiting us today who are looking at this 20 chamber and trying to figure out what it is we do 21 here, and I just want them to know that Senators 22 like you, Senator Holland, even though you 23 represent Orange County, you care about problems 24 in Kings County, and so that's what this bill 25 represents, and I just wanted to be able to stand 1 up and say to you that those young people who are 2 here visiting with their counselors and their 3 teachers from School District 13 who are here to 4 find out just what we do with our time when we're 5 in Albany, they will now understand and know that 6 one of the important things that happens here is 7 that Senators like you, Senator Holland, are 8 working on their behalf as all of us are in 9 trying to make this a better world and a better 10 life for young people in our state. So I thank 11 you. 12 Thank you, Mr. President. 13 ACTING PRESIDENT MEIER: Senator 14 Montgomery will be recorded in the affirmative. 15 The Secretary will read the 16 results. 17 THE SECRETARY: Ayes 50. 18 ACTING PRESIDENT MEIER: The bill 19 is passed. 20 Senator Skelos. 21 SENATOR SKELOS: Mr. President, 22 there will be a meeting of the Social Services 23 Committee in the Majority Conference Room. 24 ACTING PRESIDENT MEIER: Meeting 25 of the Social Services Committee in the Majority 1 Conference Room. 2 SENATOR SKELOS: Continue now on 3 the controversial calendar, regular order. 4 ACTING PRESIDENT MEIER: The 5 Secretary will read the controversial calendar in 6 regular order. 7 THE SECRETARY: Calendar Number 8 98, by Senator Volker, Senate Print 3456-A, an 9 act to enact the Criminal Procedure Law Reform 10 Act of 1998. 11 ACTING PRESIDENT MEIER: Senator 12 Volker, an explanation has been requested of 13 Calendar Number 190 -- I'm sorry -- 98. 14 SENATOR VOLKER: Okay. This is a 15 bill that's passed this house several times 16 before. It's essentially the same bill, although 17 there's been some modifications in the last year 18 to take care of some technical procedures. It's 19 known as the Criminal Procedure Reform Act of 20 1998. The Criminal Procedure Reform Act of 1997 21 that was virtually the same bill, passed this 22 house by a vote of 49 to 10. 23 The bill basically -- the bill 24 basically deals with a series of cases that have 25 come before primarily the Court of Appeals in 1 changes in procedure. 2 Let me just outline several of 3 those. I think most the people in this house are 4 very familiar with them. One of the -- one of 5 the changes that this bill would deal with would 6 be the so-called Rangel case which deals with the 7 failure to produce pretrial statements. 8 In the issue of prejudice, what 9 happened in the case was that a murder case, I 10 believe it was, was thrown out because there was 11 a pretrial statement that the district attorney 12 at the time prior to the case was not aware of 13 and became aware of during the trial and, in 14 fact, one case -- another case after the trial in 15 the attorney -- the defense attorney used it as 16 an appeal and was able to have the conviction 17 thrown out on the basis of the fact that the 18 district attorney did not produce or did not 19 inform the attorney for the defense in time, even 20 though the attorney for the defense was aware of 21 the statement. 22 What this bill would do is, in 23 effect, say that you would use a standard that 24 would say that as soon as was possible, that the 25 prosecution would provide the ability to the 1 defense attorney to review the statements and if 2 the statement was not produced, then there would 3 be a question of whether any actual harm was done 4 to the defendant. 5 The second piece that's involved 6 here relates to the issue of the defendant's 7 right to be at all proceedings of a trial. We do 8 not change that in this bill at all except that 9 what has happened on several occasions, a 10 defendant who had the right to be at provisions 11 of the trial in one case at a time when two 12 jurors were dismissed and was not available, he 13 was not there at that time and after the trial 14 was over, the defense attorney raised the 15 objection that the defendant was not present even 16 though he had not objected during the trial, even 17 though the defendant would have had the right to 18 have been there, the case was thrown out on the 19 basis that the defendant was not given his right 20 to be there at all parts of the trial. 21 But this provision says that the 22 defendant certainly has the right to do so. If 23 he objects, then the case goes on and it keeps 24 him from being there, then he has certainly an 25 objection but if he doesn't object, he can't 1 later come back and say that he was denied his 2 right to be present at all proceedings in the 3 trial. 4 There's a number of other 5 provisions here. One relates to identification. 6 For some years police officers have had 7 difficulty where cases have gone on for many 8 years and a previous identification is not 9 allowed at the trial and the person who is trying 10 to do the identifying cannot identify that person 11 because of time or change in the person's 12 perspective, and so forth, and the result is that 13 a number of cases have been thrown out. This 14 would allow previous identifications to be 15 entered into a trial, even though the defendant 16 can object and bring up many kinds of objections. 17 So those are the prime changes 18 that are suggested by this bill. As I say, this 19 bill passed 49 to 10 last year and I think 48 to 20 something the year before and that's the bill. 21 ACTING PRESIDENT MEIER: Read the 22 last section. 23 Senator Paterson. 24 SENATOR PATERSON: I'm sorry, Mr. 25 President. 1 I have a few questions, if Senator 2 Volker would yield. 3 ACTING PRESIDENT MEIER: The 4 Senator yields. 5 SENATOR PATERSON: Thank you. 6 Senator Volker, when I listened to 7 your interpretation of the Rangel decision, I 8 would be persuaded to have a pretty fair 9 understanding of why this bill would be on the 10 calendar today because the lack of knowledge on 11 the part of the prosecutor would certainly seem 12 to indicate that it would be unfair to go back 13 into the trial or even after the trial and hold 14 the prosecutor culpable for information that was 15 never in the possession of the office at that 16 particular time, but I thought that the general 17 spirit of the Rangel decision, even if some of 18 the facts in that case might certainly challenge 19 what would be our sense of fairness, that the 20 spirit of the decision was to even the playing 21 field and to make sure that evidence was 22 transmitted to all parties equally, and so with 23 respect to, perhaps not the facts of the Rangel 24 decision but the real dicta from that particular 25 case, I'm wondering would that not be a basis for 1 continuing the Rangel doctrine as it stands now 2 to make sure that prior statements are made 3 available, that, in other words, to pass this 4 particular bill would actually reverse the case 5 and we would have exceptions far more devastating 6 than, perhaps the Rangel case. 7 SENATOR VOLKER: Senator, I think 8 my argument on that would be -- and we've looked 9 into this -- I don't think this totally reverses 10 the Rangel case and I don't think it necessarily 11 should. 12 The concept that statements should 13 be made available to the defense as soon as 14 possible and that any evidence that is useful the 15 defense should be provided, I don't think this 16 would outlaw that. 17 I think what it does is I think it 18 is an attempt to avoid the technical nature of 19 the Rangel case when there is no showing that - 20 particularly where there is no showing of any 21 error that is -- and not a deliberate error or a 22 deliberate negligence by the prosecutor. 23 I think what this bill represents 24 is an attempt to continue the spirit of the 25 Rangel case, but I think bring some fairness on 1 both sides into the system which I think is 2 something, I think we both are looking for. 3 ACTING PRESIDENT MEIER: Senator 4 Paterson. 5 SENATOR PATERSON: Mr. President, 6 if Senator Volker would continue to yield. 7 SENATOR VOLKER: Certainly. 8 ACTING PRESIDENT MEIER: The 9 Senator yields. 10 SENATOR PATERSON: I agree with 11 you, Senator Volker. I think we are in the end 12 looking for the same fairness and the fairness 13 should be on both sides. I would agree with you 14 about that. 15 My concern is that passing this 16 legislation would, in a sense, create the 17 opposite, that the murkiness that would be 18 established by leaving it to court determination 19 or just the decision of a particular judge in 20 each individual case would create a situation 21 where it's not clear what the necessity would 22 actually be to provide prior statements to the - 23 to opposite counsel, and what I'm saying is that 24 at least with the Rangel rule, we do have the 25 bright line test that when properly administered 1 does create a very clear sense of what the 2 responsibilities of all the parties are. 3 To pass this legislation, I'm 4 fearful -- and I'll give you certainly the chance 5 to convince me -- that we wouldn't have a single 6 standard. We wouldn't be able to really be clear 7 on what -- at what point the Rangel protection is 8 exhausted and - 9 ACTING PRESIDENT MEIER: Senator 10 Paterson, could you suspend for a minute, 11 please. Could we have some order in the chamber, 12 please. 13 Sorry, Senator Paterson. Please 14 go ahead. 15 SENATOR PATERSON: That's all 16 right, Mr. President. I really don't blame them 17 because I haven't been really, really clear with 18 this question. Perhaps Senator Volker can ferret 19 through this discussion to get to the main point 20 of it, but I guess what I'm really asking Senator 21 Volker is, would this take the bright line test 22 out and would that cause greater discrepancy 23 rather than clear it up? 24 SENATOR VOLKER: Senator, I don't 25 think that would be true. I think the problem 1 with the Rangel rule, I think it -- I guess it 2 certainly set up a bright line, all right. 3 According to some of the best legal scholars in 4 this state -- I don't profess to be one of them, 5 by the way. I know you are, but I am not -- this 6 rule actually goes beyond any other state or 7 federal statute that anybody's aware of because 8 it in a sense sets up such a potentially rigid 9 test that virtually any kind of statement that 10 turns up in the hands of a defendant after a case 11 or even during the case that the D.A. -- that the 12 district attorney, the prosecutor could be 13 inferred somehow to be -- should have shown - 14 could, in effect, be used to throw the case out. 15 I would like to think that what 16 we're doing here -- and I think we are -- is 17 going back to pretty well the standard the way it 18 appeared to be before, and that is that the 19 prosecutor still has the obligation to provide 20 information to the defense, and I happen to 21 believe that that's the way it should be, 22 whenever practicable, that is, whenever it's 23 possible to do so, but in certain cases, it 24 doesn't seem as if we should be looking to find a 25 way somehow to sort of stick the prosecutor with 1 a line that is almost impossible for him to 2 follow. 3 I would agree with you that you 4 could argue that this may create some more cases, 5 but I think what it will do is in many ways it 6 will clear away some of the things that have been 7 incurring because what judges have been doing is 8 chipping away at the Rangel case because it 9 seemed as if the line was too rigid on the 10 defense side and what we've had, I think, is a 11 lot of confusion since then. I think this bill 12 attempts to create -- to clear up some of that 13 confusion since that case. 14 ACTING PRESIDENT MEIER: Senator 15 Paterson. 16 SENATOR PATERSON: Mr. President, 17 I want to thank Senator Volker for his responses 18 and respond to the bill. 19 ACTING PRESIDENT MEIER: Senator 20 Paterson on the bill. 21 SENATOR PATERSON: Mr. President, 22 I think Senator Volker's point is well taken, 23 that if there is a thumb impinging upon the 24 scales of justice that tilts the opportunity in 25 favor of the defense, then it would be important 1 to establish some kind of fairness in the 2 proceeding, but I would caution that one of the 3 reasons that the Rangel rule really came into 4 existence is that there were so many times when 5 this type of information was not provided, when 6 this type of information was not even believed to 7 be necessary, that it really created what was at 8 that time and could very well exist right now 9 probably a desire on the prosecution's part, 10 perhaps not to comply with what would be the most 11 desired situation where the information would be 12 transferred to opposing counsel, but what I think 13 is most important about the Rangel rule is that 14 there is a bright line test, that there is a very 15 strict, if you would -- and I understand Senator 16 Volker's concern about it, but it is a well 17 defined rule that places on all of the parties in 18 a criminal proceeding certain duties and 19 responsibilities which we not only respect but we 20 definitely would want to have in this kind of a 21 situation that involves a case that reflects on 22 someone's life or someone being brought into the 23 criminal justice system. 24 It's my belief that the rule as it 25 stands right now is effective, that it has evened 1 the responsibilities and has provided a greater 2 opportunity for both sides to present their cases 3 with full knowledge and full awareness. 4 I understand Senator Volker's 5 point that to use the term "could have known" or 6 "should have known" not only for a prosecutor 7 but for any arm of criminal justice is somewhat 8 misleading and at the least it creates an onus of 9 responsibility that often cannot be fulfilled and 10 to that respect, I don't think that the rules 11 should actually apply, but to go to this extent 12 which I believe would restore some of the 13 obfuscating situations that existed previously 14 would be going too far, and for that reason I'm 15 looking to vote against the bill, Mr. President. 16 ACTING PRESIDENT MEIER: Read the 17 last section. 18 THE SECRETARY: Section 10. This 19 act shall take effect immediately. 20 ACTING PRESIDENT MEIER: Call the 21 roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Those recorded in 24 the negative on Calendar Number 98 are Senators 25 Connor, Leichter, Markowitz, Montgomery, 1 Paterson, Rosado, Sampson, Santiago, Seabrook, 2 Smith, Stavisky and Waldon. Also, Senator 3 Mendez. Ayes 47, nays 13. Also, Senator Gold. 4 Ayes 46, nays 14. 5 ACTING PRESIDENT MEIER: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 364, by Senator Nozzolio, Senate Print 4084-A, an 9 act to amend the Civil Practice Law and Rules, in 10 relation to establishing a complete bar to 11 recovery by persons injured. 12 SENATOR WALDON: Explanation. 13 ACTING PRESIDENT MEIER: Senator 14 Nozzolio, an explanation has been requested by 15 Senator Waldon. 16 SENATOR NOZZOLIO: Mr. President, 17 my colleagues, Senator Waldon, as we debated this 18 bill last year, it has not changed. It enacts 19 the Crime Victims Protection Act which amends the 20 Civil Practice Law and Rules to establish -- in 21 relation to establishing and eliminating a 22 complete bar from recovery by persons injured 23 while committing a crime. We believe that that 24 bar to prevent those who have committed a crime 25 on an individual's property, then the ridiculous 1 absurd result occurring during the commission of 2 that crime, an individual, the perpetrator of 3 that crime is injured and then sues for recovery, 4 the homeowner or property owner because of some 5 -- because of that injury, this action -- this 6 measure would establish that complete bar to 7 recovery to persons injured while committing a 8 crime. 9 SENATOR WALDON: Mr. President, 10 would the gentleman yield to a question or two? 11 ACTING PRESIDENT MEIER: Does the 12 Senator yield to a question? 13 SENATOR NOZZOLIO: Yes, Mr. 14 President. 15 ACTING PRESIDENT MEIER: The 16 Senator yields. 17 SENATOR WALDON: Senator Nozzolio, 18 do you recall the Rodney King case? 19 SENATOR NOZZOLIO: Yes, Mr. 20 President, I recall the Rodney King case. 21 SENATOR WALDON: If I recall that 22 case, there were 87 blows rendered to Rodney King 23 in approximately 54 seconds. The blows were so 24 severe that they turned his cheek bones into 25 powder and caused grave injuries to him and he 1 was guilty of driving while intoxicated but the 2 officers were found -- excuse me -- found to be 3 acting beyond the pale of acceptable behavior. 4 If such a situation were to occur 5 in New York and if this proposal became law, 6 someone suffering the injuries under the 7 circumstances as Rodney King suffered his 8 injuries would have no recourse to sue the police 9 involved; is that not correct? 10 SENATOR NOZZOLIO: Mr. President, 11 I couldn't hear the question. Would Senator 12 Waldon be so kind as to repeat it. 13 SENATOR WALDON: Absolutely, Mr. 14 President. Rodney King was brutalized by the law 15 enforcement authorities in California. His 16 injuries were quite severe. If your proposal 17 became law and a similar situation occurred in 18 this great state of New York, would not the 19 person suffering as did Rodney King be precluded 20 from bringing an action against the police who 21 acted far beyond their parameters? 22 SENATOR NOZZOLIO: Mr. President, 23 absolutely not. This would not bar Rodney King 24 from seeking his damages. That -- certainly we 25 hope that type of case does not occur in New York 1 or any place else for that matter. 2 The peace officers in question, 3 Senator Waldon, were not the victims of a crime 4 perpetrated by Rodney King, that Rodney King 5 himself was a victim of a crime, that we're 6 talking about civil litigation here. No, I don't 7 believe that this matter would appropriately bar 8 -- would in any way bar the recovery - 9 appropriate recovery in the hypothetical you 10 mentioned. 11 SENATOR WALDON: Would the 12 gentleman yield again, Mr. President? 13 ACTING PRESIDENT MEIER: Does the 14 gentleman continue to yield for a question? 15 SENATOR NOZZOLIO: Yes, Mr. 16 President. 17 ACTING PRESIDENT MEIER: The 18 Senator yields. 19 Senator Waldon. 20 SENATOR WALDON: Thank you, Mr. 21 President. 22 Senator Nozzolio, would someone 23 who's suffering from or has suffered from an 24 illegal choke hold by a police officer be 25 precluded under your proposal from bringing an 1 action? 2 SENATOR NOZZOLIO: Mr. President, 3 I stand by my previous answer, that whatever 4 hypothetical Senator Waldon would like to engage 5 in this afternoon regarding police officers and 6 the perpetrators of crime, we'll have the same 7 response that was given in his hypothetical 8 relative to Rodney King. 9 ACTING PRESIDENT MEIER: Senator 10 Waldon. 11 SENATOR WALDON: Mr. President, 12 would the gentleman yield again? 13 ACTING PRESIDENT MEIER: Will the 14 gentleman yield for another question? 15 SENATOR NOZZOLIO: Mr. President, 16 I would be happy to yield to Senator Waldon's 17 question. 18 ACTING PRESIDENT MEIER: The 19 Senator yields happily, Senator Waldon. 20 SENATOR WALDON: Thank you, Mr. 21 President. 22 Let's put a different twist on 23 this. Someone is committing a crime. They are 24 fleeing from the scene of the crime. Elsewhere 25 someone is robbing a bank. The bank robbers get 1 into their car and they're driving away from the 2 scene of the bank robbery. A kid who snatched a 3 pocketbook, the first person that I spoke about, 4 is running across the street. As he crosses the 5 intersection, the thieves or robbers from the 6 bank run him down causing grave and serious 7 injury. Would he be precluded from suing or his 8 family be precluded from suing under your 9 proposal? 10 SENATOR NOZZOLIO: Mr. President, 11 as you and I went to law school together, the 12 great Syracuse University College of Law, we were 13 confronted with hypothetical upon hypothetical 14 upon hypothetical. 15 Mr. President, I can't recall 16 since those days in law school receiving as 17 extensive a hypothetical as one presented by 18 Senator Waldon this afternoon. 19 Having said that, if I followed 20 your hypothetical correct -- your series of 21 hypotheticals correctly, Senator, I would have to 22 say that no, it was a separate intervening 23 action, that the bank robbers who happened to be 24 poor drivers in running over the purse snatcher 25 would not be barred -- the purse snatcher would 1 not be barred for recovery against the bank 2 robbers. 3 I very much appreciate the mental 4 exercises of going through these hypotheticals, 5 Senator, and I very much congratulate you on your 6 creation. They are creative, extensive and 7 frankly, though, I must tell you, Senator, 8 they're going to yield the same answer, that if 9 this measure -- let me just -- to try foursquare 10 this measure -- this measure is designed, 11 Senator, to prevent those perpetrators of a crime 12 from going directly against the victims that they 13 are perpetrating that crime upon and suing them 14 for something like having a broken floor board or 15 not having a railing on the staircase and as they 16 exited they tripped down the staircase and 17 decided they would sue the victim of the crime, 18 adding certainly tremendous insult and agony to 19 this already heinous act against them. 20 Unfortunately, Senator, real world 21 hypotheticals occur -- real world situations 22 occur in these cases and not that yours isn't a 23 real world. I respect what you're saying, but 24 we're looking at civil actions against the direct 25 victims of the crime and that's the focus of this 1 legislation. It's not to prevent anyone from 2 suing a police agency if their conduct was beyond 3 appropriate. It does not prevent that type of 4 recovery whatsoever. It focuses only on civil 5 actions against the individuals who were the 6 direct victims of the perpetrated crime. 7 SENATOR WALDON: Mr. President, on 8 the bill. 9 ACTING PRESIDENT MEIER: Senator 10 Waldon on the bill. 11 SENATOR WALDON: I guess we've 12 reached that stage of the year where we look for 13 levity in what we do and perhaps that was the 14 driving force to our exchange. However, I 15 thought that I was being serious in terms of the 16 approach vis-a-vis the questions simply because 17 these are serious issues that you are addressing. 18 I think there's enough law on our 19 books now to allow people to take care of 20 business and to sue or be sued, and I think it's 21 a stretch to do what you're doing. 22 Sometimes you come up with great 23 ideas, Senator Nozzolio. This time, I think this 24 is not one of your great ideas, and so I would 25 encourage my colleagues to recognize that the 1 laws on our books now are sufficient and we need 2 not go into this murky area. 3 Thank you, Mr. President. 4 ACTING PRESIDENT MEIER: Senator 5 Gold. 6 SENATOR GOLD: Will the gentleman 7 from Cornell yield to a question? 8 ACTING PRESIDENT MEIER: Even 9 though I'm in the Chair, I take a matter of 10 personal exception to that. 11 Go ahead. 12 SENATOR GOLD: Senator, you just 13 said one thing to Senator Waldon which I don't 14 see in the bill. The bill says that if there's 15 an injury during the crime or in flight, there's 16 nothing that I see in the bill at all that says 17 that the defendant in the civil case has to be 18 the victim. I don't see that. If it's there, 19 maybe you can just show it to me you, but I don't 20 see it in the bill at all. 21 SENATOR NOZZOLIO: We're barring 22 -- Mr. President, through you. We're barring 23 recoveries for those -- for the claimants who 24 perpetrate actions constituting a crime, 25 Senator. 1 SENATOR GOLD: No, Senator. I'm 2 not telling you I'm for or against the bill. I 3 just wanted to clarify something because you said 4 to Senator Waldon, if I understood you a moment 5 ago, that this did not protect the agency, if it 6 was a police officer, it didn't protect this or 7 that, that it was only dealing with the original 8 crime victim, and I don't see anything in the 9 bill that limits that. 10 SENATOR NOZZOLIO: Senator, again, 11 I was dealing with Senator Waldon's 12 hypotheticals, that I contend that this measure 13 bars claimants to sue the victims resulting - 14 actions resulting from their crime. This did not 15 bar victims of crime like Rodney King from suing 16 against perpetrators of the crime, in that case 17 would be the police officers themselves, battery, 18 unlawful detention, unreasonable force. Those 19 kinds of actions against Rodney King would not be 20 barred by Rodney King. The police officers would 21 not be able to sue Rodney King, I think under 22 this circumstance, because they would be the 23 perpetrators of the crime in that instance. 24 SENATOR GOLD: If the gentleman 25 would yield to one more question. 1 ACTING PRESIDENT MEIER: Senator 2 Gold. 3 SENATOR NOZZOLIO: Yes. 4 ACTING PRESIDENT MEIER: The 5 Senator continues to yield. 6 Senator Gold. 7 SENATOR GOLD: As I understand 8 your bill -- and maybe you could answer this kind 9 of yes or no -- it involves a situation where 10 somebody gets hurt and if I'm reading the 11 language properly, during the commission of a 12 crime or it involves somebody that gets hurt in 13 fleeing or trying to escape from a situation. In 14 the Rodney King case, I don't think he was 15 involved in a crime to begin with, but assuming 16 that somebody actually committed a crime, 17 burglarized a house and was now being taken into 18 custody by police and was not trying to escape 19 and the police used improper holds or whatever, 20 the way I read your bill, you could still have a 21 lawsuit. The crime has ended. He's no longer in 22 the commission of a crime and there's no escape. 23 So the way I read it, if there is 24 police brutality or whatever in arresting the 25 person, I read it that your bill would, in fact, 1 allow that person to bring that action. Am I 2 correct? 3 SENATOR NOZZOLIO: Senator Gold, I 4 believe that we had this discussion last year, 5 that I believe that there would be an intervening 6 factor. 7 SENATOR GOLD: There would be a 8 what? 9 SENATOR NOZZOLIO: You would have 10 two separate consecutive events that would, in 11 fact, determine that we now are in a different 12 ball game, a different set of facts, a different 13 -- in effect, the first crime would have ended. 14 The creation of a second crime against the 15 perpetrator of the first crime would cut and that 16 cut would, in effect, create a new fact pattern, 17 a new victim and that new victim would certainly 18 be able to sue against the perpetrators of the 19 second crime. 20 ACTING PRESIDENT MEIER: Read the 21 last section. 22 Senator Leichter. 23 SENATOR LEICHTER: Would Senator 24 Nozzolio yield, please? 25 ACTING PRESIDENT MEIER: Senator, 1 will you yield to a question from Senator 2 Leichter? 3 SENATOR NOZZOLIO: Yes, Mr. 4 President. 5 ACTING PRESIDENT MEIER: The 6 Senator yields. 7 SENATOR LEICHTER: Yeah. Senator, 8 presently it's case law in the state of New York 9 that if a homeowner or somebody else, shop owner 10 puts in his store a device or mechanism where if 11 somebody breaks in he has a gun that 12 automatically will fire at a person who, let's 13 say goes through a window and the courts have 14 held that that's unreasonable use of force. Now, 15 your bill, as I read it -- and please correct me 16 if I'm wrong -- would it not overrule that whole 17 line of cases? 18 SENATOR NOZZOLIO: Mr. President, 19 in response to Senator Leichter's question, it's 20 the same question, Franz, that Senator Gold 21 asked. I think that you, in effect, have an 22 intervening crime. Excessive force in itself is 23 a crime, that that excessive force would be the 24 excessive force used by the property owner and 25 that that, in effect, becomes a new victim. The 1 victim in itself because of the excessive force 2 definition is the perpetrator of the crime even 3 though he entered the scene, all of a sudden the 4 circumstances -- the tables must turn because the 5 homeowner becomes the perpetrator of a crime in a 6 sense by definition, Franz, using excessive 7 force. 8 So, Senator Leichter, I think 9 that, again that intervening set of circumstances 10 would have shifted the claimant, shifted the 11 victim and the criminal conduct would, in effect, 12 would be of the homeowner, but we're trying not 13 to get -- in that circumstance you reference, I 14 think is certainly a valid concern, but I believe 15 by simple definition of excessive force, the 16 homeowner is forbidden from using that excessive 17 force, as you well indicate, and that that then 18 turns the individual into, in effect, a crime 19 victim. 20 Now, what we're trying to prevent 21 are those instances where the homeowner is not 22 using excessive force, where he simply may have a 23 loose board on his porch or has maybe a rug in 24 the wrong place that the criminal ended up 25 slipping and falling on and injuring himself and 1 then suing the property owner which does occur in 2 this state. It occurs in a number of cases where 3 we believe that that certainly should be barred, 4 and that's why this legislation is necessary, 5 appropriate. 6 SENATOR LEICHTER: Mr. President, 7 if Senator Nozzolio will continue to yield, 8 please. 9 SENATOR NOZZOLIO: Yes, Mr. 10 President. 11 ACTING PRESIDENT MEIER: The 12 Senator continues to yield. 13 SENATOR LEICHTER: Senator, I 14 don't think that Senator Gold or Senator Waldon 15 or I have any problem with the examples you give 16 where you would like to provide protection 17 against what we would see as a frivolous or 18 unjustified civil action. The concern we have is 19 that the bill is so broadly written that, for 20 instance, in the example that I gave of where 21 there is this trap which causes grievous injury 22 which is all out of proportion to the crime 23 that's being committed, that your bill would not 24 allow the -- that teenager who climbed through a 25 window, he's now paralyzed for the rest of his 1 life. Even if the homeowner could be convicted 2 and maybe he could be convicted of a crime but as 3 far as that teenager suing the homeowner in civil 4 -- for civil action -- that's, of course, what 5 your bill deals with -- I think the language of 6 it makes it fairly clear that that could not 7 happen. 8 SENATOR NOZZOLIO: Senator, I 9 believe that that intervening circumstance of 10 criminality with the use of excessive force would 11 not bar that individual, as you indicate. I 12 appreciate your suggestions and thank you very 13 much for making them. 14 SENATOR LEICHTER: Well, let me 15 just -- if you would be so kind. Just ask this 16 other question. 17 Senator, isn't it -- what you're 18 doing then, if you -- if you put up the defense 19 of intervening force, that all that's going to 20 happen is that in instances, for instance, where 21 you have in mind the instance that occurred, of 22 course, in the New York subway with Getz, and so 23 on, all that the criminal who committed the crime 24 -- and admittedly that's what -- well, I guess 25 there may have been some question in the Getz 1 case but, assuming a crime had been committed, 2 now the criminal after assaulting somebody in the 3 subway runs away and somebody pulls out a gun - 4 the victim pulls out a gun, he's not in any 5 danger anymore and he shoots this person in the 6 back. You're saying, well, he's not committed a 7 crime. Therefore, there is an intervening cause 8 and, therefore, my law doesn't apply, in spite of 9 the fact that it doesn't really say so, but if 10 that's the -- if that's the defense that 11 somebody's going to use, then people are just 12 always going to say, well, there was an 13 intervening cause. They used excessive force 14 and, frankly, then your bill is not going to 15 achieve the goal that it has. 16 SENATOR NOZZOLIO: On the 17 contrary, Senator. I think it will achieve the 18 goal that we're setting out to achieve, which is 19 to prevent those who are committing crimes from 20 profiting from those crimes and becoming, in 21 effect, the crime victim losing twice. Certainly 22 he loses because he was the victim of a crime and 23 secondly he loses because he was a victim of a 24 civil litigation, a civil lawsuit that, in 25 effect, held him liable because he didn't have 1 his porch boards tightened down enough. That's 2 what we're trying to rectify here, Senator, and I 3 believe that this bill does it. 4 The other hypotheticals you 5 mentioned certainly are legitimate -- legitimate 6 concerns, but I believe that the intervening 7 criminality that you're throwing into these 8 hypotheticals turns the table and we're talking 9 then about the entity that was the object of a 10 claimant's criminal conduct. In effect, then we 11 have another criminality thrown in here and 12 that's what we're trying to bar the innocent 13 victim from being sued by the perpetrator of a 14 crime. 15 The hypotheticals you've thrown in 16 here have shown that once in a while maybe 17 victims aren't innocent and that's -- certainly I 18 believe does happen from time to time in rare 19 occurrences and when it does happen, this 20 legislation certainly would bar the appropriate 21 crime perpetrators from litigation and protect 22 those who are innocent victims from being sued. 23 SENATOR LEICHTER: Mr. President, 24 just on the bill. 25 ACTING PRESIDENT MEIER: Senator 1 Leichter on the bill. 2 SENATOR LEICHTER: I think we have 3 a situation here that, unfortunately, occurs too 4 frequently and one that Senator Gold, 5 particularly over the years has, I think very 6 eloquently spoken about, and that is that a bill 7 which is certainly well intended and deals with a 8 problem that we have but is written in such a way 9 that it provides a result which defies either 10 common logic or in this instance, I think is 11 against good public policy. 12 Now, I guess you can get up at 13 meetings and campaign rallies and say, I put in a 14 bill so that criminals aren't going to be allowed 15 to sue, and so on, that sounds great, but when 16 you take a look really at what the bill does, it 17 accomplishes things that are totally different 18 and if Senator Nozzolio's explanation, well, if 19 there's an intervening cause can be accepted, 20 then I think he reads the very purpose of the 21 bill out because that criminal who's now suing is 22 always going to say whether there was an 23 intervening cause. 24 All I think that we're saying here 25 is that you could draft a bill a little bit more 1 carefully drafted, more focused, more directed, 2 Senator, and I think that you would really 3 accomplish something because we agree with you 4 that the burglar who goes in and slips on a rug 5 should not be allowed to sue the homeowner for 6 damages. It goes without saying. I think the 7 Getz case is one that I think we would all agree 8 upon, but I think that your bill as drafted is 9 going to have situations where that teenager who 10 climbs who through his neighbor's window because 11 he wants to steal a bottle of whiskey or 12 something and then gets shot and paralyzed for 13 life is going to be precluded for suing in other 14 instances of that sort and that shouldn't happen, 15 and the truth of the matter is you can put out a 16 bill like this and you can pass it in the Senate 17 because I assume your colleagues, with all due 18 respect, will vote for anything that you -- that 19 has your name on it, I mean, but what have you 20 accomplished? 21 I guess you could bring it back 22 year after year after year and we'll have the 23 same debate. Hopefully I won't be here to do it, 24 but in any event, I really think, Senator, that 25 good intentions but a bill that's not artfully 1 drafted. 2 SENATOR GOLD: Mr. President. 3 ACTING PRESIDENT MEIER: I'm 4 sorry. Senator Balboni. 5 SENATOR BALBONI: Mr. President, 6 it is a pleasure to rise on the floor for the 7 first time to be able to speak on a bill that I 8 have waited for seven whole years to come to the 9 floor of some Legislature because Lord knows it 10 never happens in the state Assembly and this is 11 one of these great bills that we can finally get 12 up and talk about common sense. 13 There are three ironies inherent 14 in this entire issue. First off is that this 15 whole situation, the ability of an individual who 16 committed a crime and then sue is really a 17 function of a glitch. 18 In 1975, this Legislature codified 19 the new comparative negligence standard. We left 20 the contributory negligence standard which had 21 inherent in the Section 411 the assumption of 22 risk doctrine, probably the most common sense 23 doctrine we've ever had in our body of law, that 24 is, if you commit an act and you knew the risks 25 inherent in that act and you were injured, tough 1 luck. You're out of the ball game. 2 In addition to which, the 3 arguments that -- and I -- surprising to most 4 people, I have a bill too on this issue. I 5 approach it from a slightly different issue and 6 hopefully maybe we'll even get a chance to 7 discuss that particular measure at a later time, 8 but we have had -- we have had a lot of 9 discussion regarding some of the issues that were 10 brought here today and what always surprises me 11 is you never get into the true elements. 12 I have tried these cases. I have 13 stood in court in Nassau County as a deputy 14 county attorney and have defended the county 15 against an individual who has been shot while 16 going after a police officer with a knife. Now 17 -- by the way, subsequently convicted of 18 menacing and harassment with the knife and third 19 degree assault as a plea. 20 I've seen the cost encumbered by 21 the municipality who has to defend these lawsuits 22 year after year after year, and I have also been 23 involved with the arguments of, well, what about 24 police brutality? 25 I have defended police officers, 1 and if you ask any officer what is the true 2 deterrent? The true deterrent is not a civil 3 lawsuit against the individual officer because 4 those lawsuits are nine times out of ten done as 5 a response to that superior; in other words, the 6 municipality defends the police officer. The 7 police officer is rarely on the hook 8 individually. So there is really no deterrent 9 effect. What's the deterrent effect? 10 A 1983 civil rights action for 11 denial of constitutional rights or a criminal 12 action, an indictment in prosecution. Those are 13 the real deterrents for police brutality. To 14 take away the right in the state to sue is not 15 taking away any deterrent and what is the real 16 irony of this type of statute is that this has 17 been the case law of this state since 1982. The 18 Court of Appeals in probably Judge Wachtler's 19 best decision, Barker versus Kalish, came out 20 with a clear enunciation, that if you commit a 21 felony -- if you commit a crime and you were 22 injured during the course and commission thereof 23 -- and that's the key phrase -- then you are not 24 able to sue, and what is ironic is that 1997 - 25 in December of 1997, Manning versus Brown, the 1 Court of Appeals again affirmed Barker versus 2 Kalish. So this has been our case law; this has 3 been our common law and it stems back, by the 4 way, to the 1890s in a case called Riggs versus 5 Palmer where the Court of Appeals spoke on this 6 issue for the very first time. 7 So there has been a very 8 consistent thread through our common law, that 9 it's high time we codify. This bill is a common 10 sense bill. This bill is something that is 11 overdue. I may have a different way of doing it 12 but frankly the intent is the same. It's a good 13 bill. 14 Thank you. 15 ACTING PRESIDENT MEIER: Senator 16 Gold. 17 SENATOR GOLD: Mr. President, it's 18 a delight to listen to Senator Balboni and 19 everybody now sees the brilliance that I have 20 known was there for years but, Senator Balboni, I 21 have listened to your cases. The problem is in 22 the case of the Senate versus the Assembly, this 23 ain't going to become a law in its present law. 24 That's what we have been talking about. 25 What we're talking about is not a 1 situation where a police officer is attacked by 2 someone with a knife and the guy gets shot and we 3 all say, you know, you took that risk. What 4 about the case where someone comes at a police 5 officer with a knife and they knock the knife 6 away and the guy's having cuffs put on him and 7 then they shoot him? Well, we say this law as 8 it's proposed doesn't make enough of a 9 distinction. That's all we're talking about. 10 The concern I have, Senator 11 Nozzolio, is that you said a lot of things in 12 explaining the bill which some of us might be 13 able to live with, but if you take a look at the 14 cases, judges who are very well meaning and one 15 of them in this very field, by the way, who I 16 know, a Cornell graduate, good lawyer, he said 17 that he read the legislative intent but he 18 couldn't do his decision on that basis because he 19 had to make his decision based upon the way he 20 read the plain English of the law. 21 Now, I asked you a question before 22 and I gave you a situation where a crime had 23 ended and somebody was injured and you said, 24 there's an intervening act. There's no 25 intervening act. The crime ended. So under your 1 bill I'm not really worried about it. 2 The problem is when you talked to 3 Senator Leichter and the example that he gave was 4 given to me earlier by my intern Russell Fredico, 5 who was very upset with me earlier today because 6 I didn't want to yield right away to his 7 arguments which were very excellent, but when you 8 were answering Senator Leichter, the second crime 9 isn't an intervening effect that stops the first 10 crime. You have two crimes going on together. 11 If two people are shooting at each other and 12 nobody's got a license for the gun, you got two 13 people committing a crime. One crime doesn't 14 stop another crime and that, therefore, the 15 answers you gave to Senator Leichter just don't 16 fit what your bill is all about, and the problem 17 of the person who falls on a porch committing a 18 crime and sues the owner, Senator, as has 19 happened with the partial birth apportion bill 20 and all of that, your side comes to us with 21 slogans. You don't come to us with well drawn 22 legislation, and what I'm suggesting to you, 23 Senator, is that if you reread this debate -- I 24 mean today you're going to pass the bill because 25 that's what you fellows all do. No matter what's 1 said on the floor, you pass the bill. Hopefully 2 those of you with, you know, a little more 3 legislative real zeal bring it back a week later 4 and amend it and, Senator, what I'm saying to you 5 is if you read this debate today, you, Senator 6 Nozzolio, have the basis of a bill which a lot of 7 people could support and want to support. Not 8 only that, having the bill is irrelevant. Having 9 the law would be very significant, and it could 10 also be very helpful to the people of the 11 state. 12 So we're only saying make a 13 distinction between ordinary negligence. Make a 14 distinction between gross negligence. Perhaps 15 there ought to be a distinction for intentional 16 tort, intentional wrongdoing, intentional 17 excesses, and then we've got a bill which 18 everybody's going to be proud of and you will be 19 the driving force behind that and as a fellow 20 alumnus I'll be very proud of you for it, but 21 muscling it through the Senate and not having it 22 become a law really doesn't accomplish much. 23 So I want to thank Russell for 24 pointing it out to me earlier and, Senator 25 Leichter, I appreciate your debate today and, 1 Senator Waldon, you certainly did clarify the 2 issues. 3 SENATOR LEICHTER: Mr. President. 4 ACTING PRESIDENT MEIER: Senator 5 Leichter. 6 SENATOR LEICHTER: Mr. President, 7 would Senator Balboni yield, please? 8 SENATOR BALBONI: Of course. 9 SENATOR LEICHTER: Senator, you're 10 new to our chamber, so I'm not going to take you 11 to task for it, but we have traditions here and 12 we're not used to the citation of cases. The 13 next thing you're going to cite statutes. We 14 like to be more general in a description. 15 No, obviously that was a joke and 16 what I really meant to do was to compliment you 17 and how well prepared you were and you certainly 18 threw some helpful light on the -- on the 19 situation and it shows how fortunate we are 20 really to have you on this side of the Capitol 21 than on the other side where you were and on this 22 side of the aisle almost but, Senator, if as you 23 say -- and I'm sure you're correct. You cited 24 the Baker case and others, so that we really 25 codified those extreme examples of a criminal 1 who's injured in the course of perpetrating a 2 crime and then suing the victim. So what I 3 understand from you is that the situation that 4 Senator Nozzolio wants to take care of is already 5 really taken care of by the case law and our 6 concern is that now he's gone beyond this and 7 he's written out of the case law those instances 8 where somebody has, in the example I gave, sets 9 up a trap in his house which causes grievous 10 injury to somebody who brakes into the house. 11 So what's really the purpose and 12 aim of passing this bill? You say it's high time 13 we codify it. Why do we have to codify it and if 14 so why in this form? 15 SENATOR BALBONI: Mr. President, 16 if I may respond. If the Senator would check 17 CPLR 32.12 and you take a look at the provisions 18 relating to the motion for summary judgment, most 19 courts are loath to rule on a motion for summary 20 judgment without a statutory element. In other 21 words, the case law, the Parker versus Kalish 22 does not permit most courts, as it has not in my 23 personal experience, to grant summary judgment on 24 a motion for 32.12 at the outset of the case. 25 Codifying this case would allow the court to come 1 in and say, you're right. The assumption of risk 2 doctrine provides that you don't have a case. 3 Therefore, we can address this at the outset, 4 therefore, saving municipalities, insurance 5 companies, all sorts of entities, the defense - 6 the cost of defense and frankly taking it out at 7 the hands of the jury because we shouldn't be 8 putting these questions before a jury because you 9 can cite any type of case that would have an 10 emotional appeal but the fact of the matter is 11 this used to be the law in the state of New 12 York. When we had the contributory negligence, 13 when we had the former 1411 statute before in 14 1975, this was our law, and I think you would be 15 hard pressed to point to examples where people 16 were shut out who committed a criminal act and 17 were not able to sue. It was only because we did 18 it as a glitch, as I started out. We did not 19 excise the felonious plaintiff from the scheme 20 that we set up in 1975 that we even have this 21 problem. 22 So that is why you need to codify 23 Barker, codify Manning and make it applicable to 24 a 32.12 motion at the outset in the threshold of 25 a civil action. 1 SENATOR LEICHTER: Mr. President, 2 if Senator - 3 ACTING PRESIDENT MEIER: Senator 4 Leichter, if you've already spoken twice on this 5 measure, you wish unanimous consent? 6 SENATOR LEICHTER: No. I had the 7 floor. 8 ACTING PRESIDENT MEIER: I 9 apologize, Senator Leichter. Of course, you're 10 right. You did have the floor. 11 SENATOR LEICHTER: I would - 12 Senator, I would just say my experience as far as 13 summary judgment is concerned, courts pay a lot 14 more attention and will follow the Court of 15 Appeals precedent a lot more than they will one 16 of our statutes, but I understand what you're 17 saying and you obviously have a great deal of 18 knowledge in this area which is helpful. I think 19 the answer may be that we ought to have a 20 statute, but I think that it's got to be more 21 carefully drawn and more targeted than I think 22 the bill that's before us. 23 SENATOR BALBONI: Mr. President, 24 one last comment. Then perhaps I might appeal to 25 a reading of Justice Brandeis' quote in the 1 Olmstead Supreme Court case, where he talked 2 about the codification of the mores of society, 3 where to lend our justice system to the aid and 4 assistance of someone who's chosen to break the 5 law, step out of the bounds of society, in fact, 6 has a deleterious effect on the observance and 7 the credence given to all laws. 8 So if you would like to take it to 9 a higher plane, I would recommend you and refer 10 you to Justice Brandeis' comments. By the way, 11 all cites are available to you after for free. I 12 won't charge you anything. 13 Thank you, Mr. President. 14 SENATOR MARCELLINO: Mr. 15 President. 16 ACTING PRESIDENT MEIER: Senator 17 Paterson. 18 SENATOR PATERSON: Mr. President, 19 would Senator Balboni - 20 SENATOR BALBONI: Of course. 21 SENATOR PATERSON: -- be able to 22 pause from his reflections and yield for a 23 question? 24 SENATOR BALBONI: Yes, of course. 25 Mr. President, this is why I was told not to 1 stand up. 2 SENATOR MARCELLINO: That's the 3 reason I stood up, Mr. President. 4 ACTING PRESIDENT MEIER: The Chair 5 would note that autographed copies of the Law 6 Review article will be available immediately. 7 (Laughter.) 8 SENATOR PATERSON: Mr. President, 9 Senator Balboni, looking at the -- not 10 withstanding Judge Brandeis' comments, looking at 11 the whole circumstance with which we would be 12 codifying what would be case law, you don't think 13 that it would be somewhat vague due to the 14 broadness of the way it is presented in this 15 bill? And maybe what I really want to ask you 16 is, what is it that you are actually suggesting? 17 Since we're on the same subject, I don't think it 18 would be rude and not germane to the topic, what 19 would be the way that you would suggest it be 20 codified? 21 SENATOR BALBONI: Actually, I'm 22 sorry, Senator. I don't have my particular 23 measure before me now and I don't recall - 24 SENATOR PATERSON: Senator, why 25 would you need that? 1 SENATOR BALBONI: -- the specifics 2 of that bill, but I'll tell you what, if you wait 3 here, I'll go get a copy and I'll come back and 4 we can talk about it over a cup of coffee. What 5 do you say? 6 SENATOR PATERSON: Okay. That's 7 good. Finally, by the way, Senator, it was one 8 thing -- it was one thing to talk about the 9 Kalish case but Riggs versus Palmer, I think that 10 was before the turn of the century. 11 SENATOR BALBONI: Yes, it was. 12 SENATOR PATERSON: And not 13 remembering very much about it, what I guess I'm 14 asking is would the case law as standard as it 15 was in 1975 when we changed from what is now the 16 -- when we changed to what is now the 17 comparative negligence statute, are you saying it 18 was the omission of the Legislature in 1975 that 19 moved us away from 1411, or are you saying that 20 this is something that we did knowingly at that 21 time but because of subsequent cases need to 22 return to the system as it was before then? 23 SENATOR BALBONI: Actually, I 24 fault the judicial conference in their initial 25 recommendation pre-'75 for the changes that we 1 made in the CPLR for not including this carve 2 out. 3 SENATOR PATERSON: Okay. Thank 4 you very much, Senator. 5 SENATOR BALBONI: Thank you, Mr. 6 President. 7 SENATOR PATERSON: It's certainly 8 been an education for all of us, and I think that 9 with certainly the issue of individuals who are 10 in violation of the law and according them 11 special rights certainly challenges, I guess 12 the morality, or as Senator Balboni quoted 13 Justice Brandeis, really what is the fabric of 14 our society and yet there are a lot of laws that 15 are certainly not used very much or are not 16 particularly in vogue or perhaps we haven't gone 17 back and eliminated them from statute, that would 18 actually qualify individuals to be in the 19 position of not being able to recover under this 20 and that was really all that I think Senator 21 Leichter and Senator Gold and earlier Senator 22 Waldon were trying to get at that with some 23 specificity perhaps we have had situations that 24 could be addressed by some piece of legislation. 25 It was just that in the one case 1 where there was a recovery and it was seemed to 2 be egregious, I believe that was the Cummings 3 case, we didn't want to be legislating against 4 the exception. We wanted to put something forth 5 that would make sure that, although we don't want 6 to give any special rights to individuals who are 7 perpetrators at the time they were injured, at 8 the same time we don't want to almost encourage 9 any kind of excessive force to those who then 10 under the protection of citing the criminality of 11 the injured party would then be excused or in any 12 way not held responsible for their actions. 13 SENATOR ONORATO: Mr. President. 14 Mr. President. 15 ACTING PRESIDENT MEIER: Senator 16 Onorato. 17 SENATOR ONORATO: I've heard a 18 wonderful debate here today. I've learned a lot 19 about CPLR 14 and 76. I would like to take at 20 this time a high point of privilege to read the 21 last section. 22 ACTING PRESIDENT MEIER: Read the 23 last section. 24 THE SECRETARY: Section 2. This 25 act shall take effect immediately. 1 ACTING PRESIDENT MEIER: Call the 2 roll. 3 (The Secretary called the roll.) 4 ACTING PRESIDENT MEIER: Senator 5 Waldon to explain his vote. 6 SENATOR WALDON: Thank you very 7 much, Mr. President. 8 I won't be long. I read the 9 proposal by Senator Nozzolio again because in the 10 debate I was confused and baffled by some of his 11 responses. He kept speaking of intervening 12 forces, but if we look at line 5, it reads, and I 13 quote, "In the event that the personal injury or 14 injury to property occurred while the claimant 15 was engaged in conduct constituting a crime as 16 defined in Subdivision (6)", et cetera, et 17 cetera, "or immediate flight therefrom" and then 18 we go down a little farther -- or further, as you 19 will, and it reads, line 10 -- no, line 9, "the 20 culpable conduct attributable to the claimant, 21 including contributory negligence or assumption 22 of this, shall bar recovery from the person or 23 other entity who is the object of the claimant's 24 criminal conduct." 25 I didn't see anything which really 1 spoke to responses that the esteemed Senator was 2 giving us. So I cannot support what he's 3 proposing. I found it rather confusing, and I 4 would like to at some later point really 5 understand where all of those intervening forces 6 came from. 7 I vote in the negative. 8 ACTING PRESIDENT MEIER: Senator 9 Waldon in the negative. Announce the results. 10 THE SECRETARY: Those recorded in 11 the negative on Calendar Number 364 are Senators 12 Gold, Leichter, Mendez, Montgomery, Paterson, 13 Rosado, Sampson, Santiago, Seabrook, Smith and 14 Waldon. Ayes 50, nays 11. 15 ACTING PRESIDENT MEIER: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 387, by Senator Cook, Senate Print 366, an act to 19 amend the Education Law, in relation to defining 20 non-residents of a district. 21 SENATOR PATERSON: Explanation. 22 ACTING PRESIDENT MEIER: Senator 23 Cook, an explanation has been requested of 24 Calendar Number 387. 25 SENATOR COOK: Mr. President, I 1 would be glad to give an explanation. I think we 2 had one yesterday and I think we really laid the 3 bill aside to give Senator Lachman an opportunity 4 to make some comments. If he has questions that 5 he would like to ask, I would certainly respond 6 to them, but I think he may have some things he 7 would like to say. 8 ACTING PRESIDENT MEIER: Senator 9 Lachman. 10 SENATOR LACHMAN: Yes. I do have 11 some questions and I appreciate your willingness 12 to respond to them, but I would be remiss, 13 Senator Cook, if I did not acknowledge my 14 thankfulness to you for laying the bill aside 15 yesterday. I had to take a couple of hours from 16 deliberations in the chamber to attend a funeral 17 in New York City that I would much rather not 18 have gone to if possible, and I think your 19 thoughtfulness, Senator Cook, in laying the bill 20 aside, is indicative of a graciousness and an 21 overall thoughtfulness that will be missed when 22 you retire from this chamber because you are an 23 outstanding Chairman of the Education Committee 24 and basically, as they say in French, a real 25 mensch as well. 1 Now to the questions and forgive 2 me if you have to repeat any answers when I was 3 not here yesterday. In this particular 4 situation, approximately how many children are 5 involved? 6 SENATOR COOK: Mr. President, let 7 me indicate that there is, in fact, a situation 8 that I have in mind, but I think in fairness we 9 ought to indicate that the bill does have 10 statewide implications. It is possible that it 11 will apply to other situations because there is a 12 local option involved here. So we need to get 13 that out on the table that it is not specific to 14 this situation, but in the case which really 15 brought this bill out here before us, there are 16 about 30 children. The number changes slightly 17 from time to time because it is a -- often sort 18 of a transient population but 30 is the 19 approximate number. 20 SENATOR LACHMAN: Senator Cook, do 21 you know of any precedent in this -- Mr. 22 Chairman, may I continue? Do you know of any 23 precedent in your county or in the state of New 24 York where the parents of public school children 25 have to pay for their education even though 1 they're residing in buildings which are tax 2 exempt, thereby denying the resident status and 3 charging their children to attend a public school 4 in the state of New York? 5 SENATOR COOK: Mr. President, 6 there are situations in which people choose to 7 send their children to schools that are in some 8 district other than the one in which they reside, 9 in which they pay tuition but, of course, under 10 present law, it is not legal to charge tuition 11 for anyone who resides within the school 12 district. 13 SENATOR LACHMAN: So -- may I 14 continue, Mr. President? 15 ACTING PRESIDENT MEIER: Senator 16 Lachman. 17 SENATOR LACHMAN: So what you're 18 basically saying, Senator Cook, is that this will 19 have a precedent setting motive that could change 20 the entire Education Law in the state of New York 21 if we adopt this measure today and if school 22 systems decide to follow suit? 23 SENATOR COOK: Mr. President, the 24 education system at the local level, except in 25 the city of New York, in large measure, is 1 supported by property tax. A tax is levied upon 2 all properties but it is levied upon the 3 residential properties as well and, therefore, 4 whether the person is an actual owner of the 5 property or whether the person is a tenant of the 6 property, some portion of their income or some 7 portion of their rent goes to support the public 8 education system. 9 What we have here is people who, 10 in effect, evade paying anything and in this case 11 are costing the district something like a quarter 12 of $1 million that has to be picked up by those 13 other homeowners whose children are attending the 14 public schools and they have to pay not only the 15 cost for their own children but for these 30 who 16 are residing in the tax exempt property. So, 17 yes, indeed, it is changing -- changing the 18 premise upon which some of education is funded. 19 SENATOR LACHMAN: I'll discuss, if 20 I may later on the bill the issue of the tax 21 exemption and the real property tax, but one more 22 question before I make a statement on the bill. 23 ACTING PRESIDENT MEIER: Senator 24 Cook, do you continue to yield? 25 SENATOR COOK: Yes. 1 ACTING PRESIDENT MEIER: The 2 Senator yields. 3 SENATOR LACHMAN: Obviously a bill 4 such as this has to be very carefully crafted in 5 terms of its constitutionality and you have 6 obviously studied the constitutionality of this 7 bill. You do feel, Senator, that this bill is 8 constitutional? 9 SENATOR COOK: We feel that it is 10 constitutional. The issue was discussed briefly 11 yesterday as to why rather than doing it in this 12 manner we don't have a payment in lieu of taxes 13 on the property itself, and the issue was that 14 you cannot force a payment in lieu of taxes 15 because the property itself is constitutionally 16 protected. 17 However, we don't feel that there 18 is a constitutional prohibition against requiring 19 that the individual in this case contributes 20 toward the cost. 21 SENATOR LACHMAN: Before I discuss 22 the bill, I would differ with you on the 23 constitutionality issue. I think that the bill 24 is unconstitutional and sets into motion a 25 precedent that would be deleterious, not only to 1 the state but to your district, Senator Cook. 2 Now, on the bill, Mr. President. 3 ACTING PRESIDENT MEIER: Senator 4 Lachman on the bill. 5 SENATOR LACHMAN: I understand, 6 Senator Cook, your frustrations and your great 7 concern for the people who live in South 8 Fallsburg in Sullivan County because this bill, 9 as I believe I intimated last year, is even more 10 complex than perhaps most of the Senators in this 11 chamber realize. 12 It not only touches upon basic 13 constitutional rights and the history of the 14 public school system, but it impacts on religious 15 groups. 16 Now, there is a particular 17 religious group from which these 30 children are 18 part of, I believe, and this group has been 19 written about in various publications, including 20 the New Yorker, Time magazine and, I believe, The 21 Village Voice. 22 We are discussing a group known as 23 Syda, S-y-d-a, or Syda Yoga Dam, which is a 24 multi-million dollar complex in South Fallsburg 25 in Senator Cook's district, and there are ashrams 1 now in many locations in his district, three 2 major -- or former hotels, I believe Brickman's, 3 Gilbert's and the Windsor, and there could be as 4 many as 3,000 people at a particular ashram. 5 Now, very briefly, Mr. President, 6 the founder of Syda Yoga Dam or home of Syda 7 Yoga, as it's known, was a man named by Swami 8 Muktando, who died in October of 1992. He came 9 to America in 1970 and founded this group. 10 According to his will, he was supposed to be 11 succeeded by a sister and a brother whose names 12 are Gurumayi and Nityananda. 13 Now, there was a violent split 14 between these siblings and the sister came out on 15 top and the brother took a faction of the group 16 out of the group -- the larger group now 17 controlled by the sister. Both sides have 18 accused the other side of using brainwashing, 19 sexual and physical abuse of women and children 20 and the focusing of veneration upon an individual 21 rather than a deity. 22 Parts of both sides as well as 23 outsiders, according to the New Yorker article, 24 have even called this group a destructive cult 25 and not a religion, and that becomes a major 1 issue, Senator, because if it is accurate, this 2 group might not have the tax exemption which you 3 believe hurts your county. 4 Now, whether these allegations are 5 accurate or not, there is a basic issue which 6 rides above it and which we now must discuss. 7 The issue is basically a tax problem and not an 8 education problem. The issue is the growing real 9 property tax that is exempt. The issue is not 10 about children and children, therefore, should 11 not be punished for what is basically a tax 12 problem which could or should be changed. 13 All children in the United States 14 have a right to a free public education 15 regardless of tax issues. I'm informed that 16 approximately 76 percent of the real property in 17 Albany is tax exempt. Should we deny a free 18 public education to those children? 19 This is a huge problem but not 20 only for you district, Senator Cook, for all 21 districts in the state of New York. We do have a 22 problem but it is not a problem of closing a 23 public school door to a child; it is a problem 24 based upon real property tax because of the 25 growth in property tax exemption. 1 This is part of the reason why I 2 think, quite clearly, that this bill is 3 unconstitutional. It is very well-intentioned 4 and it attempts to address a particular problem 5 and it's author is a very distinguished gentleman 6 of this chamber but, again, I would like to urge 7 every member of this chamber, including the 8 author of this bill, not to punish children whose 9 parents are part of a cult group and who are in 10 the greatest of need of the open dialogue, the 11 free discussion, the diversity of this state's 12 outstanding public schools. 13 Ladies and gentlemen, these 14 children are in desperate need of a free public 15 education which can open their minds that might 16 have been closed by others. Please, let us not 17 deny these children the open dialogue and the 18 free discussion of the great public school 19 systems of the state of New York. 20 Thank you. 21 SENATOR OPPENHEIMER: Mr. 22 President. 23 ACTING PRESIDENT MEIER: Senator 24 Oppenheimer. 25 SENATOR OPPENHEIMER: If Senator 1 Cook would just yield for some - 2 ACTING PRESIDENT MEIER: The 3 Senator will yield. 4 SENATOR OPPENHEIMER: -- smaller 5 questions. I'm just trying to understand how 6 this would be interpreted, this bill. 7 Specifically, what would happen 8 with children in group homes? Would they be 9 required to pay tuition because the group homes 10 are tax exempt? 11 SENATOR COOK: Mr. President, if 12 there were a group home -- if the school district 13 were to decide that they were going to charge 14 tuition, in fact, the agency or -- the public 15 agency that is the -- in locus parentis of 16 that child, would become responsible for the 17 tuition. 18 SENATOR OPPENHEIMER: It would be 19 an enormous burden to agencies who are already 20 very overburdened. 21 SENATOR COOK: Well, yeah. I 22 would indicate, Senator, that some cases are 23 where those agencies are the state of New York 24 and the local school districts are picking up 25 some very, very hefty cost for kids that are in 1 great need of very expensive education and nobody 2 pays to support that -- those educational costs 3 of those kids either. So that's another 4 problem. 5 SENATOR OPPENHEIMER: That is an 6 enormously complex problem. 7 One other question. 8 SENATOR COOK: Yes. 9 SENATOR OPPENHEIMER: If the 10 property, let's say a religious institute, rents 11 out the property and then there is a renter who 12 moves into that building, would the renter then 13 be responsible for the tuition of a child? 14 SENATOR COOK: Mr. President, if a 15 property is rented, then it becomes a commercial 16 property and it loses it's tax exemption. So, 17 therefore, it wouldn't be liable, no. 18 SENATOR OPPENHEIMER: That, 19 unfortunately, is not true. We know of many 20 religious institutions where there is money being 21 earned in the buildings and they are still tax 22 exempt but, you're right, technically yes, it is 23 a rental property. 24 Thank you. 25 ACTING PRESIDENT MEIER: Senator 1 Paterson. 2 SENATOR PATERSON: Thank you, Mr. 3 President. 4 If Senator Cook would yield for a 5 question. 6 ACTING PRESIDENT MEIER: The 7 Senator yields. 8 SENATOR PATERSON: Senator, I 9 think you've -- are aware of the feelings of the 10 two previous Senators about the need for public 11 education of students and particularly where we 12 may have these types of situations where we are 13 somewhat worried about the individual's ability 14 to hear more than just what might be an 15 environment filled with perhaps what we might 16 consider to be some narrowed points of view. It 17 would seem it would even be a greater necessity 18 to have the operation of a public school 19 education, but I do understand the concern that 20 you relayed earlier about not only what was going 21 on in your district but what could be a statewide 22 problem, but what I would suggest to you is that 23 even if this was just something going on just in 24 your district, perhaps we're looking at this 25 problem the wrong way. Perhaps what we're doing 1 is visiting the problems that we had with the 2 parents on the children who desperately need a 3 public education. 4 So my suggestion, which I would 5 just like to hear some feedback from you, what if 6 we were to send up what would be termed tax 7 incremental financing districts where these 8 particular districts, once proceeds were 9 diminished below what would be a numerical amount 10 that we would set up, that these districts would 11 qualify for the state coming in much as we have 12 done in the STAR program and paying to make sure 13 that the local property taxes, or at least the 14 local governments, get their money from the 15 property taxes. 16 Then, if that were the case, 17 districts such as yours where there might be 18 large portions of land that are tax exempt, would 19 be compensated for the amount of money that we 20 would spend and yet at the same time the young 21 children would still receive a public education, 22 which I think we would all want. 23 This is something that we have 24 done in other areas. We have done in situations 25 where we thought this was a special need and we 1 could do it in a particular area because of the 2 overabundance of tax exempt property in that 3 particular area, as may exist in your district 4 and some areas around the state. 5 SENATOR COOK: Mr. President. 6 ACTING PRESIDENT MEIER: Senator 7 Cook. 8 SENATOR COOK: We do have 9 examples, in fact -- in particular, where the 10 federal government has a great deal of exempt 11 property within a school district. They pay an 12 impact aid -- I'm not sure -- an impact amount. 13 I'm not sure what that is, how it's defined. So 14 the local school district has to pay for those 15 students who live on that property, which is 16 indeed a tax problem, though what you describe is 17 that you have religious properties now. They're 18 owned by a variety of people. In that particular 19 county, there are numerous of these old hotels 20 that are owned by non-profit organizations, 21 really religious organizations. 22 I will say, to their credit, that 23 most of these organizations have their own 24 schools. They run their own -- well, in most 25 cases their own yeshivas to which their own 1 students -- which their own students attend and 2 they don't send these students to the public 3 schools, so there's no cost imposed upon the 4 district. 5 The situation that you describe, 6 however, would be that if you had a certain 7 percentage of these religious properties that 8 were tax exempt, the state of New York would 9 somehow then have to come in and pay the impact 10 aid. 11 I think if the property were state 12 of New York property and we were sending students 13 to the public school, that would be one thing. I 14 think it becomes more difficult if the tax exempt 15 properties are owned by religious groups and the 16 state ends up paying the impact. That becomes - 17 that becomes a difficult problem, I think 18 structurally to do. 19 SENATOR PATERSON: Thank you very 20 much, Senator Cook. 21 Mr. President, on the bill. 22 ACTING PRESIDENT MEIER: Senator 23 Paterson on the bill. 24 SENATOR PATERSON: I suggested 25 that as a remedy to the situation for Senator 1 Cook because I preferred that even though the 2 state would be coming in, and in many respects 3 making the local area whole with no real 4 obligation or necessity, but I just prefer that 5 to the value of charging tuition to cause a 6 hardship perhaps on families or if you have park 7 rangers living on tax exempt property or you find 8 the local minister living on tax exempt property 9 and there's an agreement that the ministers would 10 come to these churches and quite often they are 11 of meager means and they would actually qualify 12 to actually have to pay tuition here. 13 Senator Oppenheimer cited the 14 possibility of the group homes. There are a 15 number of different ways in which tax exempt 16 properties is used by those who really couldn't 17 afford to pay a tuition for public school, and it 18 would really defeat the whole purpose of the 19 public school credo in the first place. 20 So I thought that perhaps a state 21 involvement in perhaps wresting some of that cost 22 away from the local government of the local 23 county would be an answer. Otherwise, I'm really 24 just, by my own belief, restricted from voting 25 for this bill because to me this would undermine 1 the whole concept of public education and in 2 spite of the fact that there are some owner tax 3 exempt property who may even be taking advantage 4 of it, the fact remains that for all citizens and 5 when we look at the state in the entirety, we 6 would hope that there would be public school 7 education for any student that needed it. 8 SENATOR OPPENHEIMER: Mr. 9 President. 10 ACTING PRESIDENT MEIER: Senator 11 Oppenheimer. 12 SENATOR OPPENHEIMER: I have one 13 last question, if the sponsor will yield. 14 It would seem to me that a 15 minister, a member of the clergy, living in the 16 parsonage next to the church, if that minister 17 had children, he would also have to pay, or she 18 would have to pay, for the children to go to the 19 public school. 20 SENATOR COOK: Mr. President. 21 ACTING PRESIDENT MEIER: Senator 22 Cook. 23 SENATOR COOK: You're correct, 24 Senator, that if that school district were to 25 charge tuition, they would, in fact, have to 1 charge it to everyone. They could not simply 2 charge it to one organization or another. 3 I must say, as a Protestant who is 4 in the situation you talk about, I'm not opposed 5 to having my pastors being required to pay 6 tuition to send their kids to public schools. 7 I'm not sure why they shouldn't participate in 8 the cost of supporting the school system just 9 like everybody else does, but that's -- that 10 would be a local option. 11 SENATOR OPPENHEIMER: On the 12 bill. I think that considering what we pay - 13 I'm on the bill now. Considering what we pay our 14 ministers to do the difficult work that they do 15 do, I feel that they should not be paying to 16 educate their children in the public system. 17 I'll be voting against this bill. 18 ACTING PRESIDENT MEIER: Read the 19 last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect on the first day of 22 September. 23 ACTING PRESIDENT MEIER: Call the 24 roll. 25 (The Secretary called the roll.) 1 THE SECRETARY: Those recorded in 2 the negative on Calendar Number 387 are Senators 3 Breslin, Connor, Gentile, Kruger, Lachman, 4 Markowitz, Montgomery, Onorato, Oppenheimer, 5 Padavan, Paterson, Rosado, Sampson, Santiago, 6 Seabrook, Smith, Stavisky and Waldon. Also, 7 Senator Leichter. Also, Senator Gonzalez. Also, 8 Senator Mendez. Ayes 40, nays 21. 9 ACTING PRESIDENT MEIER: The bill 10 is passed. 11 Senator Skelos. 12 SENATOR SKELOS: Mr. President, 13 there will be an immediate meeting of the 14 Committee on Finance in the Majority Conference 15 Room. 16 ACTING PRESIDENT MEIER: There 17 will be an immediate meeting of the Committee on 18 Finance in the Majority Conference Room. 19 Senator Skelos. 20 SENATOR SKELOS: Mr. President, if 21 we could return to reports of standing 22 committees, I believe there's a report of the 23 Social Service Committee at the desk. I ask that 24 it be read. 25 ACTING PRESIDENT MEIER: Reports 1 of standing committees. 2 The Secretary will read. 3 THE SECRETARY: Senator Holland, 4 from the Committee on Social Services, reports: 5 Senate Print 5741, by the 6 Committee on Rules, an act to amend the Social 7 Services Law, directly for third reading. 8 ACTING PRESIDENT MEIER: Without 9 objection, third reading. 10 SENATOR SKELOS: If we could take 11 up Calendar Number 466 by Senator Nozzolio. 12 ACTING PRESIDENT MEIER: The 13 Secretary will read Calendar 466. 14 THE SECRETARY: Calendar Number 15 466, by Senator Nozzolio, Senate Print 4917, an 16 act to amend the Civil Practice Law and Rules and 17 the Court of Claims Act. 18 SENATOR OPPENHEIMER: Explanation. 19 ACTING PRESIDENT MEIER: Senator 20 Nozzolio, an explanation has been requested of 21 Calendar 466. 22 SENATOR NOZZOLIO: Thank you, Mr. 23 President. 24 Who asked for the explanation? 25 ACTING PRESIDENT MEIER: Senator 1 Oppenheimer requested the explanation, Senator. 2 SENATOR NOZZOLIO: Thank you, Mr. 3 President. 4 Mr. President, my colleagues, this 5 bill amends the Civil Practice Law and Rules and 6 the Court of Claims Act in relation to prisoner 7 litigation reform. What we are establishing is a 8 -- permitting a partial filing fee for inmates 9 within the Court of Claims and New York State 10 Supreme Court, that this filing fee would be a 11 refundable $50 filing fee for the Court of Claims 12 and it would not apply to any claimant filing a 13 claim for the appropriation of real or personal 14 property or any interest thereon. 15 The refundable filing fee is also 16 subject to a waiver that the court could 17 determine that certain inmates the Supreme Court 18 approves their application would have a reduced 19 filing fee. If the inmate wins the litigation in 20 the Court of Claims, the filing fee is 21 refundable. 22 SENATOR WALDON: Mr. President. 23 ACTING PRESIDENT MEIER: Senator 24 Waldon. 25 SENATOR WALDON: Would the 1 gentleman yield to a question? 2 ACTING PRESIDENT MEIER: Does the 3 Senator yield to a question from Senator Waldon? 4 SENATOR NOZZOLIO: Yes, Mr. 5 President. 6 ACTING PRESIDENT MEIER: The 7 Senator yields, Senator Waldon. 8 SENATOR WALDON: Thank you, Mr. 9 President. 10 Senator Nozzolio, is the reason 11 you're making this proposal that there has been a 12 tremendous increase in lawsuits by prisoners? 13 SENATOR NOZZOLIO: Mr. President, 14 in response to Senator Waldon's question, let me 15 state that in the last 20 years, the number of 16 inmate lawsuits has risen from 63 to almost 17 7,000, that primarily, however, we're finding 18 that a small number of inmates is filing an 19 inordinate amount of lawsuits. The top ten 20 filers in this state, those top -- those 21 prisoners that are filing the most litigation, 22 that virtually 12 percent of the entire -- 12 to 23 15 percent of all inmate litigation is filed by 24 10 litigants. 25 So what we look to seek is simply 1 a reduction in the sport of inmate litigation, 2 those inmates using the courts more as a sport 3 than as a true redress of grievance. 4 We're also asking, Senator, in 5 this measure to have inmates just as every other 6 citizen to exhaust any administrative remedies 7 that they may have available first prior to going 8 to the litigation route. 9 SENATOR WALDON: Would the 10 gentleman yield to another question? 11 ACTING PRESIDENT MEIER: Would the 12 gentleman yield for another question from Senator 13 Waldon? 14 SENATOR NOZZOLIO: Yes, Mr. 15 President. 16 ACTING PRESIDENT MEIER: The 17 sponsor yields, Senator Waldon. 18 SENATOR WALDON: Senator, in that 19 period of time when the suits by number have 20 actually increased sufficiently to give us the 21 number that you just shared with us, what has the 22 increase in the prison population been? 23 SENATOR NOZZOLIO: Senator, today 24 there are about 70,000 inmates in our prison 25 system. I really couldn't tell you what the 1 number was in 1978. So I'm sure, though, that 2 the inmate population has increased significantly 3 in that 20-year period. 4 SENATOR WALDON: Would the 5 gentleman yield again? 6 ACTING PRESIDENT MEIER: Do you 7 continue to yield for another question? 8 SENATOR NOZZOLIO: Yes, Mr. 9 President. 10 ACTING PRESIDENT MEIER: The 11 sponsor yields, Senator Waldon. 12 SENATOR WALDON: Before I ask a 13 question this time, Senator, my information 14 indicates that there were approximately 21,000 in 15 our prison system 15 years ago, but the question 16 is, in your capacity as the chairman of our 17 distinguished Corrections Committee and in your 18 many years of having this to be the area where 19 you have generated and involved your energies and 20 involved yourself and developed what might be 21 characterized as an expertise, have you not 22 noticed that oftentimes the prisoner's 23 litigation, these suits brought by prisoners are 24 actually correcting some of the ills existing in 25 our criminal justice as well as our correctional 1 system? 2 SENATOR NOZZOLIO: Yes, Mr. 3 President, certainly that there are instances 4 throughout our state's history where particular 5 grievances brought by inmates have proved to be 6 extremely valid and that those required redress. 7 The Senator's point is well taken. There are 8 those items of litigation but, Senator, what 9 we're trying to do is to place some reasonable 10 ness to this standard that we now have such a 11 large number of losses, particularly again by ten 12 of the filers in the situation. We're saying 13 let's at the very least place a modicum of cost 14 to the filing of this litigation, that it's only 15 fair and right that your constituents, if they, 16 in addressing the courts, Senator, wish to 17 address the civil courts, that they would have 18 to, as you well know, pay a filing fee. 19 One last point, if I may. The 20 federal government in the federal courts requires 21 inmates to present a modest filing fee and this 22 legislation that we have before us was modeled 23 after the request and requirement of the federal 24 government to have such a fee. 25 SENATOR WALDON: Mr. President, on 1 the bill. 2 Thank you very much, Senator 3 Nozzolio. 4 ACTING PRESIDENT MEIER: Senator 5 Waldon on the bill. 6 SENATOR WALDON: Thank you, Mr. 7 President. Thank you, Senator Nozzolio. 8 I think that we should not 9 unnecessarily demonize those who are imprisoned. 10 Even if we accepted the premise that all who are 11 there belong to be there -- which I don't accept, 12 but for discussion sake I present to you -- they 13 still have a right under our jurisprudence system 14 to be able to sue when they feel that they are 15 being abused, maligned, ill-treated. 16 This is a nation which has 17 emblazoned upon the doors of the Supreme Court 18 equal justice under law, but if we're going to be 19 unduly punitive towards those who happen to be 20 prisoners, we certainly can't have a level 21 playing field. We certainly can't have equality 22 under the law. 23 The fact of the matter is that 24 prison litigation per capita is dramatically 25 down. The increase in the number of prisoners 1 maybe has caused a greater number of suits to be 2 filed than 15, 16, 20 years ago but on a per 3 capita basis, the litigation is down and by a 4 great, great number. 5 Furthermore and lastly, if some 6 corrections result from these suits which make 7 the system better, which improve the quality of 8 life of the correction officers, the prisoners, 9 the wardens, which allow for justice to be better 10 served, then I see no need to unnecessarily 11 punish those who are not making even the minimum 12 wage in what they do in terms of their work 13 situations in prisons. 14 So I think this is overbearing. I 15 think it's unnecessary. I think we do ourselves 16 a disservice to implement legislation of this 17 nature despite its inspiration, meaning the 18 federal level, and so I encourage my colleagues 19 to do the right thing and to vote against this 20 proposal. 21 Thank you very much, Mr. 22 President. 23 ACTING PRESIDENT MEIER: Read the 24 last section. 25 THE SECRETARY: Section 4. This 1 act shall take effect on the first day of 2 January. 3 ACTING PRESIDENT MEIER: Call the 4 roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Those recorded in 7 the negative on Calendar Number 466 are Senators 8 Connor, Paterson, Sampson, Stavisky and Waldon. 9 Also, Senator Smith. Ayes 55, nays 6. 10 ACTING PRESIDENT MEIER: The bill 11 is passed. 12 THE SECRETARY: Calendar Number 13 507, by Senator Skelos, Senate Print 3410-A, an 14 act to amend the Correction Law and the County 15 Law, in relation to maintenance of prisoners. 16 SENATOR PATERSON: Explanation. 17 ACTING PRESIDENT MEIER: Senator 18 Skelos, an explanation has been requested. 19 SENATOR SKELOS: Mr. President, I 20 know on the last bill that some of the members on 21 the other side of the aisle are in the Finance 22 Committee meeting and they'll probably want to 23 record negatives. So we'll accomplish that when 24 they come back. 25 This legislation which has passed 1 on various occasions amends the Correction Law 2 and the County Law to provide that a prisoner who 3 has been found to be non-indigent may be -- and 4 that's at the county option -- may be required to 5 reimburse a county jail or city jail expenses 6 incurred during his or her term of imprisonment. 7 The factors that would have to be considered 8 would be the financial resources of the 9 individual, health, age and other relevant 10 factors. 11 ACTING PRESIDENT MEIER: Senator 12 Paterson. 13 SENATOR PATERSON: Thank you, Mr. 14 President. 15 If Senator Skelos would yield for 16 just a question. 17 SENATOR SKELOS: Yes. 18 ACTING PRESIDENT MEIER: The 19 Senator yields to a question. 20 SENATOR PATERSON: Senator, did 21 you have any idea how much the -- do you have any 22 idea how much it would cost to locate and pursue 23 those who would be non-indigent in order to 24 accomplish what this bill designates? 25 SENATOR SKELOS: Mr. President, if 1 I could answer that. I'm using Nassau County as 2 an example where, of course, $153 a day per 3 inmate. I think the county or the city of New 4 York -- again, it's at their local option. So if 5 they feel it would be counterproductive to start 6 this type of program, they do not have to, but I 7 think the county or the city would use their good 8 judgment in going after people, for example, like 9 in my county several years ago, Joey Buttofucco. 10 We were giving him medical care, capping his 11 teeth, doing everything that good hard-working 12 people have to pay for and yet the county was 13 paying for this type of treatment. This is the 14 type of individual that I think it's fair for the 15 county or the city, if they opt into it, to go 16 after and seek reimbursement. 17 ACTING PRESIDENT MEIER: Senator 18 Paterson. 19 SENATOR PATERSON: Thank you, Mr. 20 President. 21 If Senator Skelos would continue 22 to yield. 23 SENATOR SKELOS: Yes, Mr. 24 President. 25 ACTING PRESIDENT MEIER: The 1 Senator continues to yield. 2 SENATOR PATERSON: Senator, 3 divorcing from the issue of just who would be 4 indigent and who would not be, my question really 5 is what the -- we know what the cost is that the 6 county accrues for keeping these prisoners in 7 prison. My question is what would be the cost of 8 locating or designating which individuals are 9 indigent and which are not? In other words, what 10 would be the procedure? 11 SENATOR SKELOS: Just to answer 12 that, I think the county or the city, which would 13 be the petitioner to seek reimbursement, it's 14 really a judgment call on their part as to 15 whether they feel it would be worthwhile to go 16 after an individual and seek reimbursement. 17 SENATOR PATERSON: Okay. Thank 18 you, Senator. 19 Mr. President, on the bill. 20 ACTING PRESIDENT MEIER: Senator 21 Paterson on the bill. 22 SENATOR PATERSON: We're just not 23 convinced at this point that the amount of money 24 it would cost to research and investigate who is 25 actually eligible, we trust that the county would 1 make a good judgment as to obviously there would 2 be some defendants that would be -- it would be 3 clear that they are indigent and we think that 4 the judgment on the part of the county would be 5 fine, but what we're also saying is that just the 6 cost of proving who would actually be eligible 7 would be an issue of cost and -- although Senator 8 Skelos is right, there are many of those 9 defendants. He cited one who obviously could 10 have paid for his residence since he paid for it 11 in other places from time to time. It's clear 12 that there would have been no problem getting him 13 to pay but what we're really trying to do is to 14 figure out whether what we could get back would 15 be equal to what would be paid out, and that's 16 something that perhaps with a little further 17 research we would be convinced, but at this point 18 it would seem that I don't know that even the 19 value of savings to the county would necessarily 20 be realized by passing this bill. 21 ACTING PRESIDENT MEIER: Read the 22 last section. 23 THE SECRETARY: Section 7. This 24 act shall take effect immediately. 25 ACTING PRESIDENT MEIER: Call the 1 roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Those recorded in 4 the negative on Calendar Number 507 are Senators 5 Connor, Kruger, Markowitz, Paterson, Sampson, 6 Seabrook, Smith, Stavisky and Waldon. Ayes 52, 7 nays 9. 8 ACTING PRESIDENT MEIER: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 508, by Senator Skelos, Senate Print 5259, an act 12 to amend the Correction Law, in relation to 13 requiring inmates to make medical co-payments. 14 ACTING PRESIDENT MEIER: Senator 15 Skelos, an explanation has been requested by 16 Senator Waldon. 17 SENATOR SKELOS: Yes, Mr. 18 President. This state Commission on Corrections 19 departmental bill would authorize an inmate 20 medical co-payment for certain medical and dental 21 services provided by local correctional 22 facilities. The co-pay would be $2 per inmate, 23 inmate-initiated medical or dental service. An 24 inmate shall not be denied care because of lack 25 of funds and there shall be no charge for routine 1 services provided at the time of admission to the 2 facility, emergency services, continuing care 3 visits necessary for follow-up treatments, 4 infirmary care, chronic care or mental health 5 services. 6 SENATOR WALDON: Mr. President. 7 ACTING PRESIDENT MEIER: Senator 8 Waldon. 9 SENATOR WALDON: Thanks to Senator 10 Skelos for his - 11 ACTING PRESIDENT MEIER: Senator 12 Waldon, so the stenographer can hear you, could 13 you stand - 14 SENATOR WALDON: Oh, I'm so 15 sorry. 16 ACTING PRESIDENT MEIER: -- so our 17 new microphones - 18 SENATOR WALDON: One becomes 19 convinced that one's voice travels everywhere. I 20 recognize that I'm human too. 21 Thank you very much, Senator 22 Skelos, for your explanation. If I may, Mr. 23 President, on the bill. 24 ACTING PRESIDENT MEIER: Senator 25 Waldon on the bill. 1 SENATOR WALDON: I think the same 2 concerns raised by our esteemed leader, David 3 Paterson, are appropriate and applicable here. 4 For a $2 per person co-pay just to plug the 5 computer in is probably going to cost us about 6 $3. I don't see the need to do that. I think 7 it's being penny-wise and pound-foolish. I think 8 that what happens here is that we overwork the 9 system where that energy could be better utilized 10 elsewhere. 11 So I think it's a redundancy to do 12 this kind of thing. If they had the true ability 13 to pay and if we could extract 25, $30 per and it 14 were appropriate and there were no reservations 15 within the community of prisoners or those who 16 support prisoners, politically it might fly, but 17 as it stands now, I don't see any reason for us 18 to do it. I think it's going to prove to be 19 wasteful in terms of the energy of the 20 Corrections Department and all of those who are 21 working here so well and it just doesn't make any 22 sense. So I encourage my colleagues to vote no 23 on this issue. 24 Thank you, Mr. President. 25 ACTING PRESIDENT MEIER: Read the 1 last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT MEIER: Call the 5 roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Those recorded in 8 the negative on Calendar Number 508 are Senators 9 Montgomery, Paterson, Stavisky and Waldon. Ayes 10 57, nays 4. 11 ACTING PRESIDENT MEIER: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 562, by Senator LaValle, Senate Print 2467-A, an 15 act in relation to the Long Island Suburban 16 Highway Improvement Program. 17 ACTING PRESIDENT MEIER: Read the 18 last section. 19 THE SECRETARY: Section 3. This 20 act shall take effect immediately. 21 ACTING PRESIDENT MEIER: Senator 22 Paterson. 23 SENATOR PATERSON: Mr. President. 24 SENATOR SKELOS: If we could just 25 lay that bill aside temporarily. I believe 1 Senator LaValle is in the Finance Committee and I 2 believe Senator Oppenheimer has some questions. 3 So we'll just lay that bill aside temporarily. 4 ACTING PRESIDENT MEIER: Withdraw 5 the roll call. Lay the bill aside. 6 SENATOR SKELOS: If we could just 7 stand at ease. 8 ACTING PRESIDENT MEIER: The 9 Senate will stand at ease. 10 SENATOR SKELOS: Do we have a 11 privileged resolution? If we could have the 12 title read. 13 ACTING PRESIDENT MEIER: The 14 Secretary will read the title. 15 THE SECRETARY: By Senator 16 Leibell, Legislative Resolution honoring the 17 Reverend and Mrs. Mervyn L. David for 22 years of 18 dedicated service to the congregation at Mt. 19 Lebanon Baptist Church, Peekskill, New York. 20 ACTING PRESIDENT MEIER: All those 21 in favor of the resolution signify by saying aye. 22 (Response of "Aye".) 23 Opposed, nay. 24 (There was no response.) 25 The resolution is carried. 1 SENATOR SKELOS: Mr. President, 2 would you please recognize Senator Montgomery. 3 ACTING PRESIDENT MEIER: Senator 4 Montgomery. 5 SENATOR MONTGOMERY: Thank you, 6 Mr. President. 7 I would like unanimous consent to 8 be recorded in the negative on Calendars 507 and 9 466. 10 ACTING PRESIDENT MEIER: Without 11 objection, Senator Montgomery will be recorded in 12 the negative on Calendars Number 507 and 466. 13 SENATOR MONTGOMERY: Thank you. 14 SENATOR SKELOS: If we could stand 15 at ease. 16 ACTING PRESIDENT MEIER: The 17 Senate will stand at ease. 18 (Whereupon, the Senate stood at 19 ease 5:07 p.m. until 5:43 p.m.) 20 ACTING PRESIDENT MEIER: Senator 21 Skelos. 22 SENATOR SKELOS: Mr. President, 23 there will be an immediate conference of the 24 Majority in the Majority Conference Room. 25 ACTING PRESIDENT MEIER: Immediate 1 conference of the Majority in the Majority 2 Conference Room. 3 Senator Paterson. 4 SENATOR PATERSON: Mr. President, 5 there will be an immediate meeting of the 6 Minority and since the Majority Conference Room 7 is being used, we'll use the Minority Conference 8 Room. 9 ACTING PRESIDENT MEIER: Immediate 10 meeting of the Minority Conference in the 11 Minority Conference Room. 12 SENATOR SKELOS: We'll be 13 returning with the Minority, as discussed at 14 6:00 p.m., at which time we'll take up, I believe 15 the Finance Committee report and we'll stand at 16 ease until 6:00 p.m. 17 ACTING PRESIDENT MEIER: The 18 Senate will stand at ease until 6:00 p.m. 19 (Whereupon, the Senate stood at 20 ease from 5:45 p.m. until 6:50 p.m.) 21 ACTING PRESIDENT MEIER: Senator 22 Skelos. 23 SENATOR SKELOS: Mr. President, if 24 we could return to report of standing committees, 25 I believe there's a report of the Finance 1 Committee at the desk. I ask that it be read. 2 ACTING PRESIDENT MEIER: The 3 report of standing committees. 4 The Secretary will read. 5 THE SECRETARY: Senator Stafford, 6 from the Committee on Finance, reports the 7 following bill restored to third reading: 8 Budget Bill, Senate Bill Number 9 6102-D, an act making appropriations for the 10 support of government. 11 ACTING PRESIDENT MEIER: Senator 12 Gold, why do you rise? 13 SENATOR GOLD: After this, I would 14 like to be recognized. 15 ACTING PRESIDENT MEIER: So 16 ordered. 17 Senator Gold. 18 SENATOR GOLD: Mr. President, I'm 19 sorry, but I was at the Finance Committee meeting 20 when we voted on Calendar Number 466, Senate Bill 21 4917, and I would ask unanimous consent to be 22 recorded in the negative. 23 ACTING PRESIDENT MEIER: Without 24 objection, Senator Gold will be recorded in the 25 negative on Calendar 466. 1 Senator Skelos. 2 SENATOR SKELOS: Mr. President, if 3 we could take up Senate 6102-D. 4 ACTING PRESIDENT MEIER: The 5 Secretary will read. 6 THE SECRETARY: Calendar Number 7 435, Budget Bill, Senate Print 6102-D, an act 8 making appropriations for the support of 9 government. 10 SENATOR SKELOS: Is there a 11 message of necessity at the desk? 12 ACTING PRESIDENT MEIER: Yes, 13 there is. 14 SENATOR SKELOS: Move to accept. 15 ACTING PRESIDENT MEIER: The 16 motion is to accept the message of necessity. 17 All those in favor signify by saying aye. 18 (Response of "Aye".) 19 Opposed, nay. 20 (There was no response.) 21 The message is accepted. 22 Read the last section. 23 SENATOR GOLD: Mr. President. 24 ACTING PRESIDENT MEIER: Senator 25 Gold. 1 SENATOR GOLD: Mr. President, I 2 would like to thank Senator Stafford at the 3 committee meeting, he was very gracious and 4 allowed for a lot of questions to be answered. 5 His distinguished counsel who was answering the 6 questions, I don't see, but if she wants to leave 7 the Majority and work for me, I can only offer 8 her -- I know it's below what she's getting now 9 but maybe 3- or 400,000 a week because that's 10 what she's worth, but I don't see her, but I want 11 to thank him. He answered most of my questions 12 at the meeting and, therefore, I can at this 13 point feel comfortable in voting on the bill. 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 61. 22 ACTING PRESIDENT MEIER: The bill 23 is passed. 24 SENATOR LEICHTER: Mr. President. 25 ACTING PRESIDENT MEIER: Senator 1 Leichter. 2 SENATOR LEICHTER: May I have 3 unanimous consent to be recorded in the negative 4 on Calendar 466, 507 and 508, please. 5 ACTING PRESIDENT MEIER: I want to 6 make sure I've got that correctly, Senator. You 7 said 466, 507, 508. 8 SENATOR LEICHTER: Right. Those 9 passed while we were in Finance. 10 Thank you. 11 ACTING PRESIDENT MEIER: Without 12 objection, Senator Leichter will be recorded in 13 the negative on Calendar Numbers 508, 507 and 14 466. 15 SENATOR SKELOS: Mr. President. 16 ACTING PRESIDENT MEIER: Senator 17 Skelos. 18 SENATOR SKELOS: Would you please 19 call up Calendar Number 562 by Senator LaValle. 20 ACTING PRESIDENT MEIER: The 21 Secretary will read Calendar 562. 22 THE SECRETARY: Calendar Number 23 562, by Senator LaValle, Senate Print 2467-A, an 24 act in relation to the Long Island Suburban 25 Highway Improvement Program. 1 ACTING PRESIDENT MEIER: Read the 2 last section. 3 THE SECRETARY: Section 3. This 4 act shall take effect immediately. 5 ACTING PRESIDENT MEIER: Call the 6 roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 61. 9 ACTING PRESIDENT MEIER: The bill 10 is passed. 11 Senator Skelos. 12 SENATOR SKELOS: Mr. President, 13 would you call up Senate 5741, which was reported 14 earlier today from the Social Service Committee. 15 ACTING PRESIDENT MEIER: The 16 Secretary will read Senate 5741. 17 THE SECRETARY: Calendar Number 18 609, Senate Print 5741, by the Committee on 19 Rules, an act to amend the Social Services Law. 20 ACTING PRESIDENT MEIER: Read the 21 last section. 22 SENATOR LEICHTER: Explanation. 23 ACTING PRESIDENT MEIER: Senator 24 Maltese, an explanation has been requested by 25 Senator Leichter. 1 SENATOR MALTESE: Mr. President, 2 this is a bill that would amend the Social 3 Services Law in relation to medical assistance 4 exclusion. This would prohibit the use of 5 taxpayers' dollars for the purpose of performing 6 abortions. 7 Expenditures of these monies 8 should be directed toward the goal of producing 9 healthy birth outcomes, as is indicated in the 10 expenditure of funds in this year and in prior 11 years for projects like the New York State's 12 Maternity and Early Childhood Foundation, which 13 provides for healthy babies. It positively 14 addresses the needs of mothers, many of them 15 poor, single adolescents, and their families, 16 services such as home visits, child care 17 instruction, prenatal care, counseling. 18 Emergency resources like food, diapers and 19 formula are provided through these grants. These 20 are viable alternatives to abortion. These are 21 real choices for women. 22 I wanted to spend a moment to 23 commend the Majority Leader, to commend Governor 24 Pataki who has indicated that he would sign this 25 particular -- a portion of that funding bill for 1 early maternal -- maternity and early childhood. 2 Speaker Silver and especially Assemblyman Denis 3 Butler, who have placed in all -- counting the 4 Assembly, the Senate and the Governor -- over 5 $1 million in the budget last year and have 6 already indicated that they will spend a similar 7 or larger amount this year. 8 This particular bill that I am 9 discussing now would, instead of spending that 10 money in saving lives and protecting pregnant 11 women, would use taxpayers' dollars for 12 abortions. 13 This amends the Social Services 14 section of Section 365-A and adds a new 15 subdivision and would prohibit abortion and 16 abortion-related services from the list of 17 benefits. 18 As in the past all these many 19 years, there would be exclusions for medical 20 necessity to preserve the life of the mother or 21 the pregnancy as a result of rape or incest and 22 the incident is reported to a valid law 23 enforcement agency for investigation. 24 This is the self-same debate that 25 we have had so many years. There's so many 1 things that have been said that do not need at 2 this moment to be re-said, but I would like to 3 simply comment on the fact that there are 4 heartening signs on the situation of abortion 5 vis-a-vis New York State. 6 In 1995, the last year we had 7 figures available, the abortion -- total 8 abortions performed in New York State went down 9 to 134,405. Of that number, approximately 50,000 10 were Medicaid funded. That brings up the amount 11 that we would save, which would be in the area of 12 around 26- to $30 million. 13 The reason that I particularly 14 point out the figure of 134,000, that is the 15 lowest number of abortions performed in New York 16 State in almost 20 years, and that is the 17 explanation of the bill. 18 ACTING PRESIDENT MEIER: Read the 19 last section. 20 SENATOR GOODMAN: Mr. President. 21 ACTING PRESIDENT MEIER: I'm 22 sorry. Senator Goodman. 23 SENATOR GOODMAN: Mr. President, 24 each year when this comes up, we have extended 25 debates, so I'll try to keep my remarks as brief 1 as possible, but I cannot let this occasion pass 2 without spreading on the record briefly my deep 3 concern with the implications of this 4 legislation. 5 First of all, let's note that 6 although this house will undoubtedly pass it 7 since the votes are here to do, it will not 8 become law because the Assembly has consistently 9 blocked it and I say thank goodness that it has. 10 In 1973, the U.S. Supreme Court in 11 Rowe v. Wade guaranteed women the right to choose 12 abortion, period. It did not make that right 13 dependent upon age, marital status or ability to 14 pay, but since 1976 with the passage of the Hyde 15 Amendment, Congress has severely restricted 16 federal funding for low income women's 17 abortions. 18 Make no mistake about it, this 19 bill targets one segment of our population and 20 that is the women who are least able to afford to 21 pay for their abortions. This attacks the poor 22 woman's right to choose. There is no question 23 that a poor women does not have sufficient funds 24 available to her with which to seek an abortion 25 and the notion that she has free choice under 1 this existing arrangement if the bill were to 2 pass is an absolutely fatuous concept. 3 Mr. President, let me just say to 4 you that the implications of this economically 5 for the state could be disastrous. The unwanted 6 births that could occur as a result of poor women 7 being unable to seek abortions and obtain them 8 would result in spreading upon the public rolls 9 thousands and thousands of babies who instead of 10 being in a position to have been prevented due to 11 timely action prior to the quickening of the 12 fetus, it would be placed in society in such 13 fashion as to make it impossible for us to do 14 anything other than to support them at a minimum 15 rate of $4,000 a year. This contrasted to the 16 very modest investment in the early abortion 17 which would not in any way imply the taking of a 18 life, the fetus had not reached quickening. 19 Mr. President, the benefits of New 20 York's decision to legalize abortion and funded 21 under Medicaid were immediate. In the first two 22 years after legislation the annual rate of 23 abortion rate-related deaths in the state fell 24 over 50 percent. As the procedure became both 25 legally and financially accessible to women of 1 all socioeconomic backgrounds, deaths from 2 abortion complications became almost unheard of. 3 In states where public funds do not cover the 4 costs of abortion, 23 percent of Medicaid 5 eligible women are forced to carry unwanted 6 pregnancies to term because they cannot afford 7 the procedure and 22 percent of Medicaid eligible 8 women who have second trimester abortions are 9 forced to undergo these later riskier procedures 10 because of their need to raise the necessary 11 money. New York State legislators have long 12 understood that it is not the function of 13 government to control people's reproductive 14 choices. 15 And let me stress in conclusion, 16 those of us who take this view are not pro 17 abortion but we are very strongly in favor of the 18 notion that a woman has the right to free choice 19 with respect to this matter and that any attempt 20 to prevent that free choice due to economic 21 circumstances would be cruel and unusual 22 punishment, economically counterproductive for 23 the state and a long step backward in the role 24 which New York has always played as the leader in 25 giving women the right to choose for themselves 1 in consultation with their husbands and their 2 clergymen and their doctors. 3 For this reason, I urge the house 4 to consider the possibility once and for all of 5 putting this away by voting in the negative on 6 this very ill-advised bill. 7 ACTING PRESIDENT MEIER: Senator 8 Farley. 9 SENATOR FARLEY: Thank you, Mr. 10 President. 11 I rise in support of this, as I 12 always have, for the 22 years I have been here 13 and this bill generally passes, almost always 14 passes the Senate. 15 You know, abortion is a very 16 personal and a private decision and incidentally, 17 what this does is put us in step with the rest of 18 the nation, the preponderance of states. I think 19 there's only ten or twelve states that do not 20 have this provision that they'll only pay for 21 elective abortions where the life or health of 22 the mother and rape and incest. 23 Let me just say this: I think 24 it's terribly important that there's a number of 25 people that vote for this that consider 1 themselves pro-choice, including the Governor who 2 voted for this bill. It's a reasonable bill. 3 You know, and at least this house has an 4 opportunity to vote on it. They won't even let 5 it on the floor in the other house and, of 6 course, I think it's a tragedy that the other - 7 which I don't even think is a pro-life or 8 pro-choice situation, late-term, partial birth 9 abortion bill, that doesn't even come up in the 10 other house because I think it would pass in a 11 heartbeat if it ever got on the floor, but let me 12 say this: This is a reasonable piece of 13 legislation. It is legislation that brings us in 14 conformity with the rest of the nation and its 15 time has come and generally speaking, what we're 16 talking about, we cannot outlaw abortion 17 regardless of how some people feel. We can't do 18 it. The Supreme Court has spoken, but we can 19 limit how much we use taxpayers' money for this 20 and that's in essence what this legislation does. 21 It also has a good facet to it 22 that we're trying to do something for young 23 mothers, and so forth, to allow them to -- and I 24 commend Senator Maltese and Assemblyman Butler 25 for what they're trying to do with that, but I 1 urge the passage of this legislation. 2 ACTING PRESIDENT MEIER: Senator 3 Oppenheimer. 4 SENATOR OPPENHEIMER: Well, I 5 don't agree with my colleague who just spoke 6 earlier. We -- Senator Farley -- because we are 7 not the only state to have Medicaid funding for 8 abortion. There are 13 other states who spend 9 money for poor people, poor women to have 10 abortions, and I would not like to think that the 11 only people who can exercise their constitutional 12 guarantee to choice would be middle income or 13 well to do women. Surely we should offer it to 14 all women who need these -- this service. 15 Since 1970, New York, in our 16 state, we have had the right -- the right to 17 choose has never hinged upon the ability of a 18 woman to pay. New York has never turned its back 19 on low income women who need access to free 20 reproductive health services. Instead we fairly 21 and we impartially provided equal access to 22 either maternity care or abortion through 23 Medicaid. 24 All women, regardless of their 25 race, age or income should have access to safe 1 legal abortion services. Medicaid funding of 2 abortion ensures that all these women, regardless 3 of how poor or rich they are, will be able to 4 exercise their constitutional rights. 5 A constitutional right to abortion 6 and reproductive freedom is of no practical value 7 if a person does not have the ability and the 8 money to exercise that constitutional right. 9 Removing Medicaid funding of abortion is 10 tantamount to a constitutional amendment which 11 would outlaw abortion for any woman who is poor. 12 By funding child birth for the 13 Medicaid dependent woman and not the abortion 14 alternative, the government is actually providing 15 biased and coercive reproductive health care and 16 making it virtually impossible for millions of 17 women to choose abortion. 18 Cutting Medicaid funding for 19 abortions would force millions of women to bring 20 unwanted pregnancies to term, would lead women to 21 risk their lives through self-induced abortions 22 or seek unsafe back alley abortionists in 23 desperation, and we know that many thousands of 24 women lost their lives in those back alleys prior 25 to Rowe v. Wade. 1 Low income women are more 2 vulnerable to health complications and death when 3 pregnant because many receive less consistent or 4 absolutely no preventive and prenatal health 5 care. Enabling women to choose if and when to 6 bear children has had a significant impact and a 7 positive impact on their lives as well as the 8 health and welfare of their families and, indeed, 9 of society generally. 10 We should be very proud that New 11 York State has refused to turn its back on the 12 pregnant poor and that we have been voting down 13 every effort to defund Medicaid abortions. 14 Medicaid provides fair and 15 impartial coverage for both maternity care and 16 medically necessary abortions. This policy gives 17 all women an equal choice regardless of income, 18 and I strongly urge all legislators to support 19 the continuation of this long-standing and 20 enlightened policy. 21 If we here feel that we want to 22 decrease poor women's abortions and we want to 23 offer prenatal and pregnancy prevention care to 24 poor women, we can use our vastly increased 25 revenues this year, using just a very small 1 percentage of our increased revenues and we can 2 dramatically increase preventive, voluntary 3 family planning services throughout our state. 4 We could ensure that all teenagers and all poor 5 or near poor women can plan and space their 6 pregnancies, make the most of job training and 7 placement programs to become financially 8 independent and have healthy children when they 9 are ready. California is already covering family 10 planning for all poor and near poor woman - 11 women and all at-risk adolescents. If we want to 12 make a positive contribution in this area, we 13 ought to be following the lead of California. 14 I'll be voting no on this. 15 ACTING PRESIDENT MEIER: Read the 16 last section. 17 Senator Montgomery. 18 SENATOR MONTGOMERY: Yes. Mr. 19 President, I too would like to go on record 20 joining my colleagues who are speaking against 21 this legislation. 22 As we know, the one most important 23 factor that determines whether or not a woman 24 will be -- will live most of her life in poverty 25 is whether or not she has the ability to control 1 her child bearing, the number of children and/or 2 very often when those children are born, and in 3 this country, we know and especially in our state 4 that there is a tremendous problem especially for 5 low income women because they very often at an 6 early enough point in their lives don't have 7 access to sex education. They do not have access 8 to condoms or information about how to use 9 condoms or how to influence their mates to use 10 condoms. They very often do not have access to 11 primary health care and certainly we do not have 12 access to school-based health clinics, not nearly 13 enough so that young women at a point in their 14 lives when it would make the most difference for 15 them to have all of these things available, they 16 do not have it, and now we come with this 17 legislation which presents one additional 18 obstacle so women will have less and less 19 opportunity to make the choice for themselves 20 and, therefore, will be more and more likely, 21 especially poor women will be more and more 22 likely to live in total abject poverty, and so 23 since we do not -- we have not addressed some of 24 the critical underpinnings as it relates to 25 women's ability to make a choice, I think that it 1 is criminal to say to those women, particularly 2 the poor women that you now will not have access 3 to this particular reproductive choice, nor will 4 you have any information, nor will you have 5 appropriate health care, nor will we provide 6 adequate school-based health clinics, sex 7 education, and so forth, and so on. 8 So I'm going to be voting against 9 this legislation because I think this is really 10 -- it's -- it is an anti-women's legislation but 11 more specifically it is particularly anti-poor 12 women. 13 So I'm voting against it, Mr. 14 President. 15 ACTING PRESIDENT MEIER: Senator 16 Paterson. 17 SENATOR PATERSON: Thank you, Mr. 18 President. 19 Certainly all of us can understand 20 that we're talking about an issue whose root 21 manifests a lot of deep personal and spiritual 22 concerns, and I certainly can understand the 23 feelings of those who don't agree with the law as 24 it stands on the books right now and perhaps the 25 law that they feel they are responding to is one 1 that commands that in any way the current Supreme 2 Court decision of Rowe v. Wade be undercut or in 3 any way diminished or in any way truncated is the 4 best fashion, and so by introducing this piece of 5 legislation, certainly its passage would do that. 6 It would limit the number of 7 abortions that would become available in this 8 particular state, but unfortunately it would be 9 done in a disproportionate way that would affect 10 those who are least able to afford the 11 procedure. It is a serious procedure. No doubt 12 everyone, regardless of their own personal point 13 of view, agrees with that and, therefore, as 14 serious as it is, it would qualify those who are 15 afflicted for the same kinds of protections in 16 terms of Medicaid funding, in terms of any kind 17 of assistance that they might receive just as any 18 other procedure of like fashion would be. 19 The legislation would, in that 20 respect, create a divide, in many respects based 21 on class against the haves versus the have-nots, 22 in many respects the have-lesses. Even though it 23 would accomplish the goal of trying to diminish 24 the strength and what would be the spirit of the 25 commanding law in this country right now, the 1 fact is that if there's a desire to change that 2 law, then perhaps energies should be directed in 3 that fashion. 4 I would oppose that. I believe in 5 a woman's right to choice, but what I would say 6 even more than that is whatever our opinion is 7 about that issue, the fact is that this 8 legislation creates a secondary test whereby it 9 would be a financial circumstance that would 10 really determine who would be eligible and who 11 would not be. 12 There are many different feelings 13 about morality in this chamber but we all have to 14 understand that the awareness of time has a way 15 of impinging on the concept of morality. Those 16 who might feel that they are against this kind of 17 process may have at times been put in a position 18 in their lives where they actually had to 19 reconsider that. 20 The point is that those who would 21 come to that conclusion should have every bit as 22 much of a right as anyone else and it should not 23 be barred by any economic -- any cost or any 24 financial limitation that would be provided such 25 as set forth in this legislation. 1 For that reason, even before we 2 even consider the right to choice itself, this 3 piece of legislation must be defeated. 4 This piece of legislation would 5 really create a cast system in those who would be 6 seeking an abortion in this state and would 7 probably create further divides among people in 8 this state and would really mean that the law 9 applies only if you can afford it, and I don't 10 think that would be a good measure or a good 11 example to be setting in any respect. 12 For that reason, Mr. President, I 13 don't oppose this legislation and would like to 14 notify the members that I would like to ask for a 15 slow roll call on this vote. 16 ACTING PRESIDENT MEIER: Senator 17 Waldon. 18 SENATOR WALDON: Thank you very 19 much, Mr. President. 20 I'll be brief. My colleagues on 21 this side of the aisle have spoken so eloquently 22 to this issue, further putting out for our 23 consideration the fact that it is about a woman's 24 choice. It is about, as Senator Paterson 25 characterized, perhaps a cast system if we were 1 to accept this, but I think it's a bit more 2 pointed than that. 3 The people who have the least 4 wherewithall to pay for these abortions look 5 mostly like Senator Montgomery, myself, Senator 6 Seabrook, Senator Sampson, Senator Mendez and 7 others who happen to be from the inner cities of 8 this great state for the most part and who happen 9 to be very, very poor. 10 We can't educate them properly, it 11 seems. We can't stop the jails from bursting at 12 the seams with people of color and now we're 13 going to further burden them by saying even if 14 you want to take care of business, control the 15 production of children so that you will be 16 allowed as a family to do better, it ain't going 17 to happen. 18 I know that Senator Maltese is a 19 good guy. He and I hang out a lot together. We 20 have loads and loads of conversations. I have 21 great respect for him and know that he's all 22 right, but I think what he's proposing, if it 23 were to become law, would have a disparate impact 24 on people of color and, therefore, without 25 intent, would be somehow racist in its 1 actualization. 2 And so I encourage us to recognize 3 that that is also a component of this proposal 4 and for that and a whole host of other reasons we 5 should defeat it. I'll be voting in the 6 negative. 7 Thank you, Mr. President. 8 ACTING PRESIDENT MEIER: Senator 9 Mendez. 10 SENATOR MENDEZ: Mr. President, I 11 also rise in opposition to this bill. The issue 12 of abortion has been, in my view, the most 13 difficult one that anybody in this chamber could 14 possibly consider, that one and the death 15 penalty, but this one even more so because it 16 affects enormously the life of women. 17 I hope that there is -- that we 18 can see the day where not one single woman would 19 have to go through the situation of having an 20 abortion. I personally believe it is killing a 21 life, but on the other hand, I -- and I am a 22 Catholic. I, my own personal views and as a 23 Catholic, I as an individual must try to save my 24 own soul and being a Catholic and having my own 25 beliefs do not mean that I have to impose them on 1 other women in the country, especially when the 2 law of the land is that a woman has the total 3 right to decide whether or not she should have an 4 abortion. 5 I personally feel sorry for the 6 women who must go -- decide to go through that 7 procedure because in the final analysis, as a 8 believer, myself I feel that after everything - 9 after the one up there sends for us, we will have 10 to explain what we did and didn't do in the time 11 that was allotted to us while living in this - 12 being alive. 13 The second issue, Mr. President, 14 the second issue that we first took in this bill 15 preventing women to have an abortion through 16 Medicaid, that is adding insult to injury. 17 Why? We know that in New York 18 State and in New York City the Medicaid program 19 that was designed by the federal government in 20 1964 to provide access to primary health care to 21 the working poor and the poor, we know that in 22 New York City and in New York State it is 23 precisely the working poor and the poor, the 24 population that was intended to be helped with 25 that -- without ever offending are being 1 excluded. 2 In New York City the only working 3 poor who have access to primary health care are, 4 in fact, those working poor who work with 5 corporations such as Con Edison, AT&T, as well as 6 being members of unions. The rest of the working 7 poor who work in small businesses, because health 8 insurance is so expensive, when they get sick, 9 they go to an emergency room in their hospital 10 and after they wait six or seven hours, that 11 hospital bills the state of New York for over 12 $1,000. 13 So this specific group of women 14 who are poor are going then once more to be 15 excluded -- excluded when they make a choice to 16 have -- to undergo that horrible procedure. 17 So it is in my mind not allowing 18 the women who are poor to have the choice of 19 having an abortion would not only be paid by 20 Medicare is excluding them totally from a health 21 program that was precisely created to help them. 22 So it's a situation of 23 discrimination in terms of economics and that, in 24 itself, again, is in my view unconscionable. 25 So, Mr. President, there is no way 1 that I could possibly support this bill. I will 2 be voting in the negative, and again, I feel 3 horribly sorry for the woman who has to go 4 through an abortion but she must have the right 5 to choose what to do. She must have her own 6 reproductive freedom. 7 Thank you. 8 ACTING PRESIDENT MEIER: Read the 9 last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect immediately. 12 SENATOR LEICHTER: Slow roll 13 call. 14 ACTING PRESIDENT MEIER: The 15 Secretary will call the slow roll call. 16 THE SECRETARY: Senator Abate. 17 (There was no response.) 18 Senator Alesi. 19 (There was no response.) 20 Senator Balboni. 21 SENATOR BALBONI: Aye. 22 THE SECRETARY: Senator Breslin. 23 (Negative indication.) 24 Senator Bruno. 25 (Affirmative indication.) 1 Senator Connor. 2 (Negative indication.) 3 Senator Cook. 4 SENATOR COOK: No. 5 THE SECRETARY: Senator 6 DeFrancisco. 7 SENATOR DeFRANCISCO: Yes. 8 THE SECRETARY: Senator Dollinger. 9 (There was no response.) 10 Senator Farley. 11 SENATOR FARLEY: Aye. 12 THE SECRETARY: Senator Fuschillo. 13 SENATOR FUSCHILLO: Aye. 14 THE SECRETARY: Senator Gentile. 15 SENATOR GENTILE: No. 16 THE SECRETARY: Senator Gold. 17 (There was no response.) 18 Senator Gonzalez. 19 (There was no response.) 20 Senator Goodman. 21 SENATOR GOODMAN: No. 22 THE SECRETARY: Senator Hannon. 23 SENATOR HANNON: Yes. 24 THE SECRETARY: Senator Hoffmann. 25 SENATOR HOFFMANN: No. 1 THE SECRETARY: Senator Holland. 2 SENATOR HOLLAND: Yes. 3 THE SECRETARY: Senator Johnson. 4 SENATOR JOHNSON: Aye. 5 THE SECRETARY: Senator Kruger. 6 SENATOR KRUGER: No. 7 THE SECRETARY: Senator Kuhl. 8 SENATOR KUHL: Yes. 9 THE SECRETARY: Senator Lachman. 10 SENATOR LACHMAN: No. 11 THE SECRETARY: Senator Lack. 12 SENATOR LACK: Aye. 13 THE SECRETARY: Senator Larkin. 14 SENATOR LARKIN: Yes. 15 THE SECRETARY: Senator LaValle. 16 SENATOR LAVALLE: Aye. 17 THE SECRETARY: Senator Leibell. 18 SENATOR LEIBELL: Aye. 19 THE SECRETARY: Senator Leichter. 20 SENATOR LEICHTER: No. 21 THE SECRETARY: Senator Libous. 22 SENATOR LIBOUS: Aye. 23 THE SECRETARY: Senator Maltese. 24 SENATOR MALTESE: Aye. 25 THE SECRETARY: Senator 1 Marcellino. 2 SENATOR MARCELLINO: Aye. 3 THE SECRETARY: Senator Marchi. 4 SENATOR MARCHI: Mr. President, if 5 I may briefly. 6 I've raised this consideration 7 many times before and I'm going to vote yes on it 8 because I feel that it's symbolic. I just don't 9 feel -- I feel that the practice is wrong. On 10 the other hand, it's tied to -- it's tied to tax 11 dollars and that is not the way to approach it. 12 I think Senator Paterson came 13 close to that. It's tied to what's appropriated 14 and doesn't go directly to the question of what 15 happens to that baby under any circumstance. 16 We're not speaking about abortion. We're 17 speaking about confining the limits of it to 18 those who must have it through taxpayer dollars. 19 That, I think many of us have very 20 deep reservations about that baby. That baby 21 certainly can't speak for itself and for 22 thousands of years in every known civilization, 23 it was just a practice that was shunned and 24 anybody who went to law school at the time I did, 25 you know, it was a crime at that time, but -- and 1 certainly the circumstances are very compelling, 2 probably more compelling with poor people than it 3 is with anybody else, but I still think this is 4 the only way which we can continue to manifest a 5 deep concern over the feeling that prompts - 6 that urges and reinforces our problems with the 7 whole abortion issue. 8 So I'm going to vote aye, but I - 9 I just wish we could have attacked this more 10 frontally. At one time I even said, well, 11 suppose it was only members of the Senate. I 12 don't know. It must have been many years ago. I 13 believe you spoke on that one too for public 14 employees or something, you know, who were who 15 are all insured. That's another thing. People 16 are insured and these insurance laws are passed 17 by us which provide for it. 18 So we don't attack that. I mean, 19 it's -- you know, the only slender read that 20 addresses this problem is the question of who 21 pays for it. 22 Well, I'll vote aye as a symbolic 23 identification with my deep concern with the 24 abortion issue because I don't think what we have 25 now is acceptable. On the other hand, 1 alternatives are presently lacking. 2 THE SECRETARY: Senator Markowitz. 3 SENATOR MARKOWITZ: No. 4 THE SECRETARY: Senator Maziarz. 5 SENATOR MAZIARZ: Yes. 6 THE SECRETARY: Senator Meier. 7 SENATOR MEIER: Yes. 8 THE SECRETARY: Senator Mendez. 9 SENATOR MENDEZ: No. 10 THE SECRETARY: Senator 11 Montgomery. 12 SENATOR MONTGOMERY: No. 13 THE SECRETARY: Senator Nanula. 14 (Negative indication.) 15 Senator Nozzolio. 16 SENATOR NOZZOLIO: Aye. 17 THE SECRETARY: Senator Onorato. 18 (Affirmative indication.) 19 Senator Oppenheimer. 20 SENATOR OPPENHEIMER: No. 21 THE SECRETARY: Senator Padavan. 22 SENATOR PADAVAN: Yes. 23 THE SECRETARY: Senator Paterson. 24 SENATOR PATERSON: No. 25 THE SECRETARY: Senator Present. 1 SENATOR PRESENT: No. 2 THE SECRETARY: Senator Rath. 3 SENATOR RATH: Aye. 4 THE SECRETARY: Senator Rosado. 5 SENATOR ROSADO: Yes. 6 THE SECRETARY: Senator Saland. 7 SENATOR SALAND: Aye. 8 THE SECRETARY: Senator Sampson. 9 SENATOR SAMPSON: No. 10 THE SECRETARY: Senator Santiago. 11 (There was no response.) 12 Senator Seabrook. 13 SENATOR SEABROOK: No. 14 THE SECRETARY: Senator Seward. 15 SENATOR SEWARD: No. 16 THE SECRETARY: Senator Skelos. 17 SENATOR SKELOS: Yes. 18 THE SECRETARY: Senator Smith. 19 SENATOR SMITH: No. 20 THE SECRETARY: Senator Spano. 21 SENATOR SPANO: No. 22 THE SECRETARY: Senator 23 Stachowski. 24 SENATOR STACHOWSKI: Yes. 25 THE SECRETARY: Senator Stafford. 1 SENATOR STAFFORD: Aye. 2 THE SECRETARY: Senator Stavisky. 3 SENATOR STAVISKY: No. 4 THE SECRETARY: Senator Trunzo. 5 SENATOR TRUNZO: Yes. 6 THE SECRETARY: Senator Velella. 7 SENATOR VELELLA: Yes. 8 THE SECRETARY: Senator Volker. 9 SENATOR VOLKER: Yes. 10 THE SECRETARY: Senator Waldon. 11 (Negative indication.) 12 Senator Wright. 13 SENATOR WRIGHT: Aye. 14 ACTING PRESIDENT MEIER: Call the 15 absentees. 16 THE SECRETARY: Senator Abate. 17 (There was no response.) 18 Senator Dollinger. 19 (There was no response.) 20 Senator Gold. 21 (There was no response.) 22 Senator Gonzalez. 23 SENATOR GONZALEZ: No. 24 THE SECRETARY: Senator Santiago. 25 (There was no response.) 1 ACTING PRESIDENT MEIER: Announce 2 the results. 3 THE SECRETARY: Ayes 33, nays 24. 4 ACTING PRESIDENT MEIER: The bill 5 is passed. 6 Senator Balboni. 7 SENATOR BALBONI: The house will 8 stand at ease temporarily, please. 9 ACTING PRESIDENT MEIER: The 10 Senate will stand at ease temporarily. 11 (Whereupon, the Senate stood at 12 ease 7:31 p.m. until 7:35 p.m.) 13 SENATOR SKELOS: Mr. President. 14 ACTING PRESIDENT MEIER: Senator 15 Skelos. 16 SENATOR SKELOS: Senator Leichter 17 has a motion to discharge which he has assured me 18 will be done expeditiously and to the members of 19 the Majority, after we adjourn, there will be a 20 Majority Conference. 21 Senator Leichter. 22 ACTING PRESIDENT MEIER: Senator 23 Leichter. 24 SENATOR LEICHTER: Yes. Thank you 25 very much, Senator Skelos, and I also thank you 1 and the Majority for allowing me to put this over 2 from yesterday to today and the reason that I 3 will be brief aside from the late hour is that 4 this bill is so compelling and so clear it 5 doesn't need a lengthy explanation. 6 Mr. President, I guess is the bill 7 properly before the house? 8 ACTING PRESIDENT MEIER: Not yet, 9 Senator Leichter. What's the number? 10 SENATOR LEICHTER: This is Senate 11 2981-A. 12 ACTING PRESIDENT MEIER: The 13 Secretary will read. 14 THE SECRETARY: By Senator 15 Leichter, Senate Print 2981-A, an act to amend 16 the Environmental Conservation Law. 17 ACTING PRESIDENT MEIER: Senator 18 Leichter. 19 SENATOR LEICHTER: Mr. President, 20 thank you. 21 I waive the reading and I ask an 22 opportunity to explain and speak in support of 23 the motion to discharge. 24 This is the Private Environmental 25 Law Enforcement Act we headed before. What it 1 seeks to do is to empower the citizens of this 2 state to bring private actions to enforce the 3 environmental laws of the state of New York. 4 It's a right that exists 5 nationwide. It's a right that's been granted by 6 Congress to the people of the United States. 7 It's a right that exists in many states because 8 it recognizes the interest that each and everyone 9 has, all of the citizens of this state in having 10 a clean environment, and we appreciate and 11 understand that the government by itself is not 12 in a position to enforce the laws. It's not in a 13 position to bring all the suits that need to be 14 brought, and so what this bill will do and 15 achieve is to stop pollution, by catching more 16 polluters, compliments government's enforcement 17 efforts, create more disincentives to pollute, 18 improves environmental standards and prevents 19 environmental degradation. It's an important 20 right that every citizen should have. We ought 21 to pass this bill. 22 Mr. President, I urge all of the 23 members to support this motion. 24 Thank you. 25 ACTING PRESIDENT MEIER: The 1 question is on the motion to discharge. All 2 those in favor signify by saying aye. 3 SENATOR PATERSON: Party vote in 4 the affirmative. 5 SENATOR SKELOS: Party vote in the 6 negative. 7 ACTING PRESIDENT MEIER: Call the 8 roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 26, nays 35. 11 Party vote. 12 SENATOR OPPENHEIMER: May I 13 explain my vote? 14 ACTING PRESIDENT MEIER: Senator 15 Oppenheimer to explain her vote. 16 SENATOR OPPENHEIMER: Is that 17 possible? I thank you very much, Mr. President. 18 There are some common 19 misconceptions that I just wanted to very briefly 20 clear up. One is that there are going to be tons 21 of frivolous suits and all I can tell you is that 22 this has simply not happened. It's not been 23 documented. 24 Between 1981 and 1987, 75 of the 25 total 78 citizen suits that were brought in New 1 York under federal law were disposed of in the 2 plaintiff's favor, which means that they were 3 valid cases and even in the three that were 4 tossed out, they weren't tossed out because they 5 were frivolous. 6 There's another misconception that 7 citizen suits are anti-farmer and in all the 8 states that have citizen suit provisions 9 applicable to farmers, there is not one reported 10 case of a suit filed against a farmer, including 11 those northeast states with similar patterns of 12 development and demographics to us. So that is 13 another false statement. 14 And I just want to say that 32 15 other states have this provision for citizen 16 suits and it's worked terrifically well and it's 17 been in federal statute forever, for many, many 18 years. 19 So there's no earthly reason why 20 we don't have it in New York State. 21 SENATOR SKELOS: Results, please. 22 ACTING PRESIDENT MEIER: Announce 23 the results. 24 THE SECRETARY: Ayes 26, nays 35. 25 Party vote. 1 ACTING PRESIDENT MEIER: The 2 motion is defeated. 3 Senator Skelos. 4 SENATOR SKELOS: Mr. President, we 5 have one more motion. 6 Would you recognize Senator 7 Gentile, please. 8 ACTING PRESIDENT MEIER: Senator 9 Gentile. 10 SENATOR GENTILE: Thank you, Mr. 11 President. 12 I believe there's a motion at the 13 desk. 14 ACTING PRESIDENT MEIER: The 15 Secretary will read. 16 THE SECRETARY: By Senator 17 Gentile, Senate Print 1462-B, an act to amend the 18 Tax Law. 19 ACTING PRESIDENT MEIER: Senator 20 Gentile. 21 SENATOR GENTILE: I would ask that 22 the reading be waived and I be allowed to 23 explain. 24 ACTING PRESIDENT MEIER: The 25 reading will be waived and you may proceed to 1 explain. 2 SENATOR GENTILE: Thank you. 3 Despite the late hour, Mr. 4 President, this motion to discharge contains some 5 good news and that good news is that in the past 6 week the budget committees had recommended that 7 the repeal of the sales tax on clothing also 8 include footwear in this year's budget and my 9 motion deals with the Bill 1462-B, which is my 10 bill, to repeal the sales tax on clothing and 11 footwear up to $500. 12 While I applaud the budget 13 committees for getting on board with this issue 14 of including shoes and increasing that exemption, 15 it's really not enough. It's really not enough 16 especially when we consider that states like 17 Connecticut, Massachusetts, New Hampshire, New 18 Jersey, Pennsylvania, Rhode Island all have 19 significant sales tax exemptions or no sales tax 20 at all, and that certainly puts our state at an 21 economic disadvantage, and I must say that this 22 effort has taken a bipartisan track. 23 This effort for the sales - 24 repeals of the sales tax on clothing and footwear 25 is supported by the Republican Governor to the 1 Republican mayor of New York City, to even this 2 esteemed leader, Majority Leader in this house, 3 Senator Bruno who has indicated that he has a 4 priority to cut taxes that create the -- create 5 the most jobs the fastest and that Senator Bruno 6 believes that as a principle, sales tax on 7 clothing and shoes is wrong, but that's good to 8 hear given the fact that sales tax on clothing 9 and shoes is highly regressive. It is, I agree, 10 with Senator Bruno, the wrong tax. To tax 11 necessities is wrong. It's wrong for budget 12 draft consumers and it's wrong for trying to 13 boost our economy. 14 So I applaud Senator Bruno for 15 that position. Indeed, I have thousands of 16 signatures in my hometown of Brooklyn and my 17 hometown of Staten Island attesting to the fact 18 that the people of this state want this repeal of 19 this sales tax up to $500 and to include shoes. 20 If the experimental weeks of the 21 repeal of the sales tax has taught us anything, 22 Mr. President, it has taught us that lower taxes 23 can spur economic activity. 24 Indeed, the Department of Taxation 25 and Finance has reported that in the September 1 and January one-week experiments, 92 percent of 2 the retailers experienced increases in clothing 3 and footwear sales and 63 percent of consumers 4 stated that the exemption affected their 5 purchases. Those are outstanding -- outstanding 6 numbers. How anyone can impose the repeal of the 7 sales tax on clothing and footwear based on those 8 numbers, it's hard to believe. 9 Another economic reality about 10 this bill, Mr. President, is that with the sales 11 tax in place, less retail activity means fewer 12 jobs. People spend less and we lose jobs as a 13 result. 14 Right now New York City, for 15 example, loses more than $700 million in economic 16 activity to New Jersey. That translates into a 17 loss of almost 20,000 new jobs for New York City 18 residents. 19 Increased activity brings jobs. 20 We have that surplus to spend here. The 21 Governor, for example, had created a $100 million 22 pool for unspecified tax cuts. The New York 23 State Economic Development Corporation estimates 24 that the tax eliminating the sales tax on 25 clothing and footwear would bring the City $1.4 1 billion in new economic activity and nearly 2 20,000 new jobs and create enough new revenue 3 from other sales corporate and income taxes to 4 recover almost 40 percent of the forgone sales 5 tax revenue. Almost 40 percent will be recovered 6 in new economic activity and call it my 7 conservative view, Mr. President, but my 8 conservative view says that for the other revenue 9 that is not created -- that is not recovered from 10 the economic activity, creating jobs in the free 11 market is a better jobs program and a better use 12 for those tax dollars than giving those tax 13 dollars to the government to spend. That's my 14 conservative view and that is something -- that 15 is why I think this is important to put forth in 16 this house today. 17 In fact, I think it's so important 18 that I took great note in noting that just 19 yesterday several of my Republican colleagues 20 also have introduced a similar legislation in 21 this house yesterday led by, I believe Senator 22 Maltese. 23 So it is clear that there's great 24 bipartisan support with the mayor of New York 25 City, the Governor, members of this house. There 1 should be no reason why we can't take a 2 bipartisan approach and to discharge this bill 3 from committee. It's good enough for a one-week 4 exemption. It should be good enough for a 5 52-week exemption. 6 Mr. President, I ask these 7 members, especially those who support the other 8 bill, that this is the bill we can move forward 9 with. 10 Thank you, Mr. President. 11 ACTING PRESIDENT MEIER: The 12 question is on the motion to discharge. All 13 those in favor signify by saying aye. 14 SENATOR PATERSON: Party vote in 15 the affirmative. 16 SENATOR SKELOS: Party vote in the 17 negative. 18 ACTING PRESIDENT MEIER: Call the 19 roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 26, nays 35. 22 Party vote. 23 ACTING PRESIDENT MEIER: The 24 motion is defeated. 25 Senator Skelos. 1 SENATOR SKELOS: Is there any 2 housekeeping at the desk? 3 ACTING PRESIDENT MEIER: There is 4 no housekeeping at the desk. 5 SENATOR SKELOS: Just a reminder 6 to the members of the Majority that there will be 7 an immediate conference in the Majority 8 Conference Room and there being no further 9 business, I move we adjourn until tomorrow, April 10 9th, at 12:00 noon. 11 ACTING PRESIDENT MEIER: On 12 motion, the Senate stands adjourned until 13 Thursday, April 9th, at 12:00 noon. 14 (Whereupon, at 7:42 p.m., the 15 Senate adjourned.) 16 17 18 19 20 21 22 23 24 25