Tuesday, March 22, 2005

1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 March 22, 2005 11 3:04 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 LT. GOVERNOR MARY O. DONOHUE, President 19 STEVEN M. BOGGESS, Secretary 20 21 22 23 24 25

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(518) 371-8910 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 please come to order. 4 I ask everyone present to please 5 rise and repeat with me the Pledge of 6 Allegiance. 7 (Whereupon, the assemblage recited 8 the Pledge of Allegiance to the Flag.) 9 THE PRESIDENT: With us this 10 afternoon to give the invocation is the 11 Reverend Andrew J. Zack, pastor of Love Joy 12 Gospel Church in Lancaster, New York. 13 REVEREND ZACK: Thank you for the 14 privilege of being with you. Would you bow 15 with me. 16 Father, we are thankful for the 17 many blessings that we enjoy at Your hand. 18 And, Lord, I thank You for all that 19 is available to us, wisdom and power and 20 strength. I thank You for each member of this 21 Senate that serves you the way that they do. 22 I pray for great wisdom and unity and blessing 23 to be here in this room today. 24 In the name of Jesus, amen. 25 THE PRESIDENT: Reading of the

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(518) 371-8910 1 Journal. 2 THE SECRETARY: In Senate, 3 Monday, March 21, the Senate met pursuant to 4 adjournment. The Journal of Sunday, March 20, 5 was read and approved. On motion, Senate 6 adjourned. 7 THE PRESIDENT: Without 8 objection, the Journal stands approved as 9 read. 10 Presentation of petitions. 11 Messages from the Assembly. 12 Messages from the Governor. 13 Reports of standing committees. 14 The Secretary will read. 15 SENATOR SKELOS: Madam President. 16 THE PRESIDENT: Senator Skelos. 17 SENATOR SKELOS: If we can 18 temporarily lay aside the report of the 19 Judiciary Committee and continue. 20 THE PRESIDENT: Motions and 21 resolutions. 22 Senator Farley. 23 SENATOR FARLEY: Thank you, Madam 24 President. 25 On behalf of Senator Nozzolio, I

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(518) 371-8910 1 move that the following bill be discharged 2 from its respective committee and be 3 recommitted with instructions to strike the 4 enacting clause. That's Senate Number 2506. 5 THE PRESIDENT: So ordered, 6 Senator Farley. 7 Senator Skelos. 8 SENATOR SKELOS: Madam President, 9 I move that we adopt the Resolution Calendar, 10 with the exception of Resolutions 877 and 995. 11 THE PRESIDENT: All in favor of 12 so adopting the Resolution Calendar, with the 13 exceptions of Resolutions 877 and 995, please 14 signify by saying aye. 15 (Response of "Aye.") 16 THE PRESIDENT: Opposed, nay. 17 (No response.) 18 THE PRESIDENT: The Resolution 19 Calendar is so adopted. 20 Senator Skelos. 21 SENATOR SKELOS: Madam President, 22 at this time, Resolution 877, by Senator Rath, 23 could we have the title read and move for its 24 immediate adoption. 25 THE PRESIDENT: The Secretary

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(518) 371-8910 1 will read. 2 THE SECRETARY: By Senator Rath, 3 Legislative Resolution Number 877, 4 commemorating the 75th Anniversary of Cub 5 Scouts. 6 THE PRESIDENT: Senator Rath. 7 SENATOR RATH: Madam President, 8 I'd like to open this resolution up for 9 sponsorship by the entire membership. 10 THE PRESIDENT: Any member who 11 does not wish to be a cosponsor of this 12 resolution, please notify the desk. 13 On the resolution, all those in 14 favor please signify by saying aye. 15 (Response of "Aye.") 16 THE PRESIDENT: Opposed, nay. 17 (No response.) 18 THE PRESIDENT: The resolution is 19 adopted. 20 Senator Skelos. 21 SENATOR SKELOS: Madam President, 22 there's a Resolution 995 at the desk, by 23 Senator Spano. Could we have the title read 24 and move for its immediate adoption. 25 THE PRESIDENT: The Secretary

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(518) 371-8910 1 will read. 2 THE SECRETARY: By Senator Spano, 3 Legislative Resolution Number 995, 4 memorializing Governor George E. Pataki to 5 proclaim March 22, 2005, as Diabetes Alert Day 6 in the State of New York. 7 THE PRESIDENT: All in favor 8 please signify by saying aye. 9 (Response of "Aye.") 10 THE PRESIDENT: Opposed, nay. 11 (No response.) 12 THE PRESIDENT: The resolution is 13 adopted. 14 Senator Skelos. 15 SENATOR SKELOS: Madam President, 16 Senator Spano would like to open the 17 resolution up for cosponsorship. If anybody 18 wishes not to cosponsor it, they should notify 19 the desk. 20 THE PRESIDENT: Any member who 21 does not wish to be a cosponsor of the 22 previous resolution, please notify the desk. 23 Senator Skelos. 24 SENATOR SKELOS: I have a 25 Resolution 1014 at the desk. Can we have the

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(518) 371-8910 1 title read and move for its immediate 2 adoption. 3 THE PRESIDENT: The Secretary 4 will read. 5 THE SECRETARY: By Senator 6 Skelos, Legislative Resolution Number 1014, 7 memorializing Governor George E. Pataki to 8 proclaim March 25, 2005, as Greek Independence 9 Day in New York State, and honoring the 10 Federation of Hellenic-American Societies of 11 Greater New York. 12 THE PRESIDENT: Senator Skelos. 13 SENATOR SKELOS: Madam President, 14 I'd like to put every member on the 15 resolution. If they wish not to sponsor the 16 resolution, they should notify the desk. 17 THE PRESIDENT: Any member who 18 does not wish to sponsor this pending 19 resolution, please notify the desk. 20 On the resolution, all in favor 21 please signify by saying aye. 22 (Response of "Aye.") 23 THE PRESIDENT: Opposed, nay. 24 (No response.) 25 THE PRESIDENT: The resolution is

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(518) 371-8910 1 adopted. 2 Senator Skelos. 3 SENATOR SKELOS: Madam President, 4 if we could now go to the reading of the 5 Judiciary Committee report. 6 THE PRESIDENT: The Secretary 7 will read. 8 THE SECRETARY: Senator 9 DeFrancisco, from the Committee on Judiciary, 10 reports the following nominations. 11 As a judge of the Court of Claims, 12 Jill Konviser-Levine, of New York City. 13 THE PRESIDENT: Senator 14 DeFrancisco. 15 SENATOR DeFRANCISCO: Thank you, 16 Madam President. 17 I rise to move the nomination of 18 Jill Konviser-Levine to the Court of Claims. 19 Her record was reviewed carefully by my staff. 20 She appeared before the Judiciary Committee 21 and was unanimously approved for 22 recommendation to the full body to confirm the 23 nomination. 24 And I would move her nomination to 25 the Court of Claims.

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(518) 371-8910 1 THE PRESIDENT: Senator Volker. 2 SENATOR VOLKER: Madam President, 3 Jill Konviser-Levine is someone who I have 4 known for many years, one of the brightest 5 young people that I have known in the criminal 6 justice area. She has a background going back 7 many years to New York City, and of course 8 represented the Governor in many, many 9 negotiations over the years that I had some 10 part in. 11 And I used to call her a very quick 12 study. The problem is she was a much quicker 13 study than I was, so that some of these issues 14 that came across our desk very quickly, she 15 was always much more on top of it than I was. 16 So I just want to say that she is 17 one of the brighter people that I have ever 18 known, and she'll be a great judge. And as 19 the Governor knows very well, this is an 20 excellent nomination to the Court of Claims. 21 THE PRESIDENT: Senator Balboni. 22 SENATOR BALBONI: Madam 23 President, so oftentimes we have the people 24 who are behind the scenes in this legislative 25 dance, and they are truly the ones who move

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(518) 371-8910 1 issues forward. 2 And Jill Konviser, for years as the 3 counsel to the Governor on criminal justice 4 issues, would be one of those faceless, 5 nameless people who would work day in and day 6 out, through the night, time and time again to 7 try to bring the parties together and advocate 8 the position of the Governor, but at the same 9 time come to a result. 10 And I had the privilege of working 11 with Jill when we were doing the "Weapons of 12 Mass Destruction" bill. And as many of you 13 may or may not know, that was a very 14 contentious issue. And what impressed me so 15 much was that along with Joe Messina and Jill 16 Konviser, we'd sit and negotiate for hours and 17 talk about the most minute details of this 18 proposal, and Jill would know about it. And 19 the information would change, and Jill would 20 know about it. 21 And she never lost her temper, she 22 always had the eye on the ball. And frankly, 23 in my practice, I've always wanted that in a 24 judge. I've always wanted somebody who could 25 have passion for the issue and for the facts,

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(518) 371-8910 1 but never lose perspective or their temper. 2 And I think that she's got the 3 perfect temperament to be a justice, and she's 4 going to be a great addition to the bench. 5 I'm just sorry I haven't gotten the chance to 6 do any more negotiations with her. 7 Thank you very much, Madam 8 President. 9 THE PRESIDENT: Senator 10 DeFrancisco. 11 SENATOR DeFRANCISCO: Yes, I just 12 wanted to add that, along the same lines that 13 Senator Balboni just mentioned, I remember 14 when Jill Konviser was with the Governor's 15 office and she traveled to my office in 16 Syracuse, with the Governor, to meet the 17 Grieshaber family to start the discussions 18 that led to a very significant piece of 19 legislation that I know she helped to craft, 20 Jenna's Law. A very significant piece of 21 legislation. She was there from the ground 22 floor. 23 What I didn't know was when she 24 came, she had only been with the Governor for 25 a very, very short time. She told me that

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(518) 371-8910 1 today. Which kind of surprised me, because 2 she seemed to have a command of the issue. 3 So this is an excellent candidate, 4 an excellent nomination by the Governor, and 5 she's going to make a fantastic judge. 6 THE PRESIDENT: The question is 7 on the nomination. 8 Senator Stavisky, first. 9 SENATOR STAVISKY: Very briefly, 10 Madam President. 11 I have only heard the best things 12 about the nominee from one of my neighbors 13 whose judgment I respect immeasurably, and I'm 14 delighted to support this nomination. 15 Thank you. 16 THE PRESIDENT: The question is 17 on the nomination of Jill Konviser-Levine of 18 New York City as a judge of the Court of 19 Claims. All in favor please signify by saying 20 aye. 21 (Response of "Aye.") 22 THE PRESIDENT: Opposed, nay. 23 (No response.) 24 THE PRESIDENT: The nominee is 25 hereby confirmed.

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(518) 371-8910 1 Congratulations and best wishes. 2 (Standing ovation.) 3 THE PRESIDENT: Judge 4 Konviser-Levine is accompanied by her husband, 5 William; her daughter, Sonya; her father, 6 Verb; her sister, Estelle, and friends. 7 Best wishes for a great celebration 8 and continued success, as we're confident you 9 will have, Judge. 10 The Secretary will read. 11 THE SECRETARY: As a judge of the 12 Court of Claims, Jeremiah J. Moriarty III, of 13 Franklinville. 14 THE PRESIDENT: Senator 15 DeFrancisco. 16 SENATOR DeFRANCISCO: I rise to 17 move the nomination of Jeremiah J. Moriarty 18 III for the position of judge of the Court of 19 Claims. 20 We've reviewed in our office, 21 through my staff, his qualifications. We had 22 a hearing this morning in the Judiciary 23 Committee, and this candidate was also 24 unanimously recommended to the full body for 25 confirmation as a judge of the Court of

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(518) 371-8910 1 Claims. 2 Probably the most important 3 advocate for Judge Moriarty unfortunately 4 cannot be here today, Senator McGee, in view 5 of an illness. She sent a letter that she 6 asked that I read in lieu of a seconding 7 speech on her behalf. 8 "I regret that I am unable to be in 9 the Senate chamber today to second the 10 nomination of a man that I have known for many 11 years as a friend, colleague and neighbor. As 12 the representative for Southwestern New York, 13 I am proud to give my support to Jeremiah J. 14 Moriarty III, of Franklinville, for his 15 nomination as a judge of the Court of Claims. 16 "Whether through government or 17 charitable activity, Jerry Moriarty has 18 touched the lives of hundreds of residents in 19 the Cattaraugus community. Through his 20 visionary leadership and deft understanding of 21 the law, for more than 30 years Jerry Moriarty 22 has dedicated his life to public service, 23 holding various positions at all levels of 24 government, including Cattaraugus County 25 legislator and City of Salamanca attorney.

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(518) 371-8910 1 "Personally, I know him to be a 2 gifted man of intellect with a fierce devotion 3 to the law and a passionate heart for the 4 community. I know that New York State will be 5 well served with Jeremiah Moriarty on the 6 bench of the Court of Claims. 7 "For this reason, I am pleased and 8 proud to support the nomination of Jeremiah J. 9 Moriarty III, of Franklinville, as judge of 10 the Court of Claims." 11 And reviewing his record, these 12 remarks by Senator McGee are right on point. 13 And I'm proud to move his nomination. 14 THE PRESIDENT: Senator Volker. 15 SENATOR VOLKER: Madam President, 16 I hope my colleagues will excuse me. I know 17 all four of these judges here quite well, 18 especially Judge Moriarty. 19 Jerry Moriarty, I've known him 20 since before, actually, we were in law school 21 together. His father and my father served 22 together in the Legislature. His father was 23 one of the most distinguished gentlemen and 24 legislators I've ever met. And Jerry himself, 25 as I say, we were in law school together,

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(518) 371-8910 1 although he's a little younger than I am, and 2 I practiced law with him. 3 I can only say that he's a 4 gentleman. He's a wonderful example to the 5 community. And I have to tell you one story. 6 He's the only county chairman I know of who, 7 several years ago, was able to elect a person 8 who died nine days before the election. 9 (Laughter.) 10 SENATOR VOLKER: So 11 congratulations, Jerry. 12 THE PRESIDENT: Senator Rath. 13 SENATOR RATH: Madam President, I 14 would like to echo Senator Volker's remarks. 15 But I'd particularly like to respond and echo 16 Senator McGee's remarks. I know how badly she 17 feels, first of all, not being here, because 18 of illness, but particularly today, because it 19 has long been a dream of hers to be able to 20 see Judge Moriarty ascend to the Court of 21 Claims. 22 Those of us in Western New York all 23 seem to know each other in Western New York, 24 and the bench and the bar have had high regard 25 for Judge Moriarty for a long, long time. He

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(518) 371-8910 1 will be a true addition to the Court of 2 Claims, and I'm happy to stand up and speak on 3 his behalf. 4 THE PRESIDENT: The question now 5 is on the nomination of Jeremiah J. Moriarty 6 III, of Franklinville, as a judge of the Court 7 of Claims. All in favor please signify by 8 saying aye. 9 (Response of "Aye.") 10 THE PRESIDENT: Opposed, nay. 11 (No response.) 12 THE PRESIDENT: The nominee is 13 hereby confirmed. 14 Congratulations, Judge Moriarty. 15 (Standing ovation.) 16 THE PRESIDENT: I'd like to also 17 add my personal satisfaction that Judge 18 Moriarty has been nominated. I've known him 19 as a person of intellect, a fine lawyer, and a 20 gentleman. 21 Best wishes for continued success, 22 Judge. 23 Judge Moriarty is accompanied by 24 his fiancee, Toni Litzinger; his daughter and 25 son-in-law, Thomas and Kathleen Cristy and

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(518) 371-8910 1 children; his son and daughter-in-law John and 2 Patricia Moriarty and children -- this is 3 definitely a family affair -- his son Andrew 4 Moriarty -- there's more -- his sister Mary 5 Ellen Moriarty and nephew Nicholas Butterini; 6 his brother and sister-in-law Daniel and 7 Marylu Moriarty; his sisters-in-law Marianne 8 Laine and Cindy Abbott-Letro; and his friends 9 Dr. David and Susan Szczerbacki and Robert 10 Sobeck. 11 Have a great celebration. 12 The Secretary will read. 13 THE SECRETARY: As a judge of the 14 Court of Claims, Melvin L. Schweitzer, of 15 New York City. 16 THE PRESIDENT: Senator 17 DeFrancisco. 18 SENATOR DeFRANCISCO: Madam 19 President, I again rise to move the nomination 20 of another fine candidate nominated by the 21 Governor, Melvin L. Schweitzer, of New York 22 City, as a judge of the Court of Claims. 23 He also -- his qualifications were 24 reviewed carefully by our office. He appeared 25 before the Senate Judiciary Committee today

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(518) 371-8910 1 and also was unanimously recommended to this 2 full body for confirmation. 3 He also has the strong 4 recommendation of Senator Roy Goodman, a true 5 legend in these chambers, who made a personal 6 call to make certain that we did the right 7 thing today. 8 So I'm proud to move the nomination 9 of Melvin L. Schweitzer. 10 THE PRESIDENT: Senator Maltese. 11 SENATOR MALTESE: Madam 12 President, I rise to second the nomination of 13 Melvin L. Schweitzer and to commend the 14 Governor on a fine appointment. 15 Melvin Schweitzer is also a 16 graduate of Fordham Law School, joining the 17 illustrious alumni of Fordham Law School on 18 the bench in the Court of Claims. 19 Certainly his experience in 20 government, economic development, government 21 securities, public securities will stand him 22 in good stead. 23 He was affiliated with one of the 24 most distinguished firms in the country, 25 certainly, if not in the world, Rogers &

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(518) 371-8910 1 Wells, which was founded by former Secretary 2 of State Bill Rogers, who served under 3 President Nixon. It was also a firm my 4 long-time colleague Kierno Daugherty [ph] was 5 associated with. 6 He has served for many years as a 7 commissioner of the Port Authority and is a 8 distinguished author and writer of many 9 publications. 10 I again commend the Governor on 11 this fine choice and second the nomination. 12 THE PRESIDENT: The question is 13 on the nomination of Melvin L. Schweitzer, of 14 New York City, as a judge of the Court of 15 Claims. All in favor please signify by saying 16 aye. 17 (Response of "Aye.") 18 THE PRESIDENT: Opposed, nay. 19 (No response.) 20 THE PRESIDENT: The nominee is 21 hereby confirmed. 22 Congratulations, Judge Schweitzer. 23 (Standing ovation.) 24 THE PRESIDENT: Judge Schweitzer 25 is accompanied today by his family and

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(518) 371-8910 1 friends, including Maxine Schweitzer, Corinne 2 Timor and Mitchell Friedman. 3 Have a great celebration, and good 4 luck. 5 The Secretary will continue to 6 read. 7 THE SECRETARY: As justice of the 8 Supreme Court of the Seventh Judicial 9 District, Matthew A. Rosenbaum, of Rochester. 10 THE PRESIDENT: Senator 11 DeFrancisco. 12 SENATOR DeFRANCISCO: I rise to 13 move the nomination of Matthew A. Rosenbaum 14 for the position of justice of the Supreme 15 Court of the Seventh Judicial District. 16 His qualifications were also 17 reviewed. He appeared and was unanimously 18 recommended to this full body for 19 confirmation. I proudly move the nomination 20 of Mr. Rosenbaum. 21 Would you please recognize Senator 22 Alesi to second. 23 THE PRESIDENT: Senator Alesi. 24 SENATOR ALESI: Thank you, Madam 25 President.

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(518) 371-8910 1 This is quite an honor to welcome 2 not only a dear friend but, from the 3 appearance of it, the entire town of Penfield, 4 New York, as well. 5 (Laughter.) 6 SENATOR ALESI: There's an old 7 saying that the apple doesn't fall too far 8 from the tree. As I look up into the gallery 9 there, I see, just behind the nominee, 10 somebody else that we might all recognize. 11 Sitting next to his lovely wife, Judith, is 12 former Justice Richard Rosenbaum and a former 13 chairman of the Republican State Committee. 14 And when I think about his legacy 15 and all of the things he has done for our 16 community back in the Rochester area and in 17 the entire state of New York, I think about 18 the legacy that is about to become with his 19 son, Matthew, who is our nominee. 20 He is eminently well qualified to 21 build his own legacy, but it is true that many 22 of the things he will bring to the bench he 23 will bring as something that he was given as a 24 question of heritage, not the least of which 25 is his superb intellect.

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(518) 371-8910 1 In fact, Matthew and his father 2 both attended the same college, although they 3 went to different law schools. And I am sure 4 that they both will apply -- or Matthew will 5 at least display the same superb intellect 6 that his father did. And he'll develop his 7 own strength of character. And I know that 8 firsthand from dealing with him. 9 He is a solid person and an 10 upstanding member of our community. I think 11 that the values that he will bring to the 12 bench will be values that are a matter of 13 learning the law but also understanding that 14 when you apply the law, whether it is to a 15 person or to a business, that justice deserves 16 to be served with objectivity, but not in an 17 impersonal way. And knowing Matt, I know that 18 that is the kind of balance that he will bring 19 to the bench. 20 Matthew Rosenbaum is, as I said, an 21 upstanding member of our community. He was a 22 partner in Gray Feldman & Rosenbaum, but he's 23 also served the community in other ways -- 24 volunteer legal services, as a hearing officer 25 for the Department of Health, the Higher

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(518) 371-8910 1 Educational Services Corp. He's also on the 2 board as a trustee of the Hillel School and 3 the Jewish Community Center. He's also been 4 recognized in our community as one of the 5 people most likely to succeed by the Rochester 6 Business Journal, honored as one of the 7 40-and-under people that were recognized this 8 year. 9 But having said all of these things 10 that come from a resume, I'd simply like to 11 speak from my heart, recognizing Matthew and 12 once again recognizing his family and the 13 values that emanate from being a part of that 14 family, a part of the community that I 15 recognized earlier in the town of Penfield in 16 the county of Monroe. 17 I don't think that the people in 18 this state could be better served when it 19 comes to choosing a Supreme Court justice than 20 they will be with Matthew Rosenbaum and as 21 they were at one time with Richard Rosenbaum. 22 It is true that the apple didn't 23 fall too far from the tree, and that a great 24 legacy will be built upon and renewed and 25 fashioned in its own way with Matthew

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(518) 371-8910 1 Rosenbaum as a Supreme Court justice. 2 THE PRESIDENT: Senator Robach. 3 SENATOR ROBACH: Yes, Madam 4 President. If I could just take a moment, 5 this is a very happy day for all of us in the 6 Rochester area. 7 My colleague, Senator Alesi, did a 8 great job in highlighting all the 9 accomplishments legally of Matt Rosenbaum, his 10 keen legal mind. But I guess the part I would 11 like to add to, also, Mr. Rosenbaum is not 12 only someone who has added greatly to the 13 legal qualities in Rochester, but he's really 14 been a community person, someone who's 15 involved in his faith community, in activities 16 for young people, and someone who's really a 17 decent person, has a strong sense of fair 18 play, intelligent. 19 The best compliment I can say is 20 not only do I think he's qualified to be a 21 judge, I'd like him for a neighbor. He's a 22 good, decent human being, and I think that's 23 the kind of people we should have on the 24 bench. 25 He comes from a history, a legacy

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(518) 371-8910 1 of great community service, and I know will 2 add to it greatly as a Supreme Court justice 3 and serve the people of not only Rochester and 4 Monroe County but all of New York State in an 5 exemplary fashion. 6 Congratulations. I'm happy to 7 second this nomination. 8 THE PRESIDENT: Senator Nozzolio. 9 SENATOR NOZZOLIO: Thank you, 10 Madam President. On the nomination. 11 Madam President and my colleagues, 12 I rise with great happiness in support of this 13 excellent nomination to serve as a justice of 14 New York State Supreme Court. 15 The Seventh Judicial District is a 16 broad, sprawling region that is larger than 17 many states, so Judge Rosenbaum will have many 18 challenges ahead in serving the people of this 19 state and the people of this district. 20 But I am very confident that, as 21 Senator Alesi and Senator Robach so eloquently 22 stated, Matt Rosenbaum is up to the task. He 23 is a fine man, he is a wonderful lawyer, he 24 will serve as an excellent member of the 25 judiciary.

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(518) 371-8910 1 I could not sit down, though, by 2 indicating that the apple doesn't fall far 3 from the tree. That his father, Richard 4 Rosenbaum, served with great distinction in 5 this same capacity as a member of the New York 6 Supreme Court. 7 That I think Matt is a much better 8 boxer than his father, although his father was 9 an excellent boxer in his day. And that 10 certainly those people who were KO'd in his 11 home school of Hobart and William Smith 12 certainly remember those punches. 13 I am pleased, though, that this new 14 generation of Rosenbaums are going to be 15 serving in the judiciary. I know they will 16 carry on this proud legacy. 17 I'm proud to stand here and second 18 the nomination of Matt Rosenbaum to serve in 19 the New York State Supreme Court. 20 Thank you, Madam President. 21 THE PRESIDENT: Senator Volker. 22 SENATOR VOLKER: Madam President, 23 I would be neglectful if I didn't say 24 something about Matthew Rosenbaum, although 25 obviously I knew his father much better. Dick

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(518) 371-8910 1 Rosenbaum was a close friend of my father's, 2 and I knew him for many, many years. And I 3 knew Matt, however, when he was a lot younger. 4 But his record is clear, and I 5 commend the Governor. It is interesting that 6 the talk about the family falling from the 7 tree is so true. And in fact, the previous 8 judge who was confirmed, Judge Schweitzer, was 9 a friend of my father's also. 10 This was a day in which I knew 11 every judge who was here. And I'm very proud 12 of that because I want to tell you something, 13 and we just talked about it, that this 14 probably is one of the best group of judges 15 from the standpoint of intelligence and 16 ability that we have had. And I've been on 17 the Judiciary Committee I can't remember how 18 long -- about 25 years, I guess. 19 And if there's ever a time that the 20 Governor should be commended -- but more than 21 that, we commend the individuals who are here, 22 their families. 23 And, Matthew, good luck to you. 24 And I can assure you that I know you will 25 continue one of the most distinguished names

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(518) 371-8910 1 in all of New York culture, and that's 2 Rosenbaum. 3 Congratulations. 4 THE PRESIDENT: The question is 5 on the nomination of Matthew A. Rosenbaum, of 6 Rochester, as justice of the Supreme Court of 7 the Seventh Judicial District. 8 All in favor please signify by 9 saying aye. 10 (Response of "Aye.") 11 THE PRESIDENT: Opposed, nay. 12 (No response.) 13 THE PRESIDENT: The nominee is 14 hereby confirmed. 15 Congratulations and best wishes for 16 what we know will be excellence. 17 (Standing ovation.) 18 THE PRESIDENT: Judge Rosenbaum 19 is accompanied by his wife, Hope; his 20 children, Jacob, Madeline, and Lily; his 21 mother and father, Richard and Judith 22 Rosenbaum; his in-laws, William and Adrienne 23 Rockwood, and many other, as we see, family 24 and friends. 25 Have a wonderful celebration.

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(518) 371-8910 1 Senator Skelos. 2 SENATOR SKELOS: Madam President, 3 would you please recognize Senator Little. 4 THE PRESIDENT: Senator Little. 5 SENATOR LITTLE: Thank you. 6 We have a resolution before us, 7 Number 917, commemorating the 60th anniversary 8 of the United States Marines raising the flag 9 on Mount Surabaci on the Island of Iwo Jima, 10 by Senator Larkin. And Senator Larkin asked 11 me if I would speak on this resolution. 12 It's a tremendous privilege to be 13 able to speak on this very special resolution. 14 The battle for Iwo Jima 60 years ago may best 15 be known for the raising of the flag on top of 16 Mount Surabaci. It is the kind of thing that 17 the military did through the years as they 18 conquered or accomplished a mission, was to 19 raise the American flag. 20 News photographer Joe Rosenthal's 21 Pulitzer Prize-winning photograph of the flag 22 raising is a permanent reminder of all of the 23 valor, courage and sacrifice that has defined 24 one of our nation's most heroic battles. The 25 flag raising the photograph depicted was a

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(518) 371-8910 1 moving moment in our nation's history -- but 2 for the U.S. Marines, victory on Iwo Jima was 3 still many weeks away, and the cost of that 4 victory was far greater than anyone could have 5 imagined. 6 Literally inching their way across 7 the island, daily gains were measured in 8 yards. The Marines were able to secure Iwo, 9 an island one-third the size of Manhattan, 10 after 36 days of brutal combat. Its two 11 available airstrips were vital for the 12 long-range bombing missions over mainland 13 Japan. The success of the Allied forces in 14 the Pacific could not be assured otherwise. 15 And by war's end, 2400 B-29 bombers carrying 16 27,000 crewmen had made emergency landings on 17 Iwo Jima. 18 This is a photo that is in all of 19 our minds and something that makes all of us 20 feel very emotional and proud to know what 21 some of our military have accomplished and the 22 pride with which they raise the American flag 23 of this country. 24 Thank you. 25 THE PRESIDENT: Thank you,

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(518) 371-8910 1 Senator Little. 2 This resolution was previously 3 adopted today. 4 Senator Skelos. 5 SENATOR SKELOS: Madam President, 6 if we could go to the noncontroversial reading 7 of the calendar. 8 THE PRESIDENT: The Secretary 9 will read. 10 THE SECRETARY: Calendar Number 11 166, by Senator Balboni, Senate Print 180, an 12 act to amend the Penal Law, in relation to 13 nuclear powered electric generating 14 facilities. 15 ACTING PRESIDENT WINNER: Read 16 the last section. 17 THE SECRETARY: Section 6. This 18 act shall take effect immediately. 19 ACTING PRESIDENT WINNER: Call 20 the roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes, 60. 23 ACTING PRESIDENT WINNER: The 24 bill is passed. 25 THE SECRETARY: Calendar Number

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(518) 371-8910 1 167, by Senator Balboni, Senate Print -- 2 SENATOR SKELOS: Lay it aside for 3 the day. 4 ACTING PRESIDENT WINNER: The 5 bill is laid aside for the day. 6 THE SECRETARY: Calendar Number 7 168, by Senator Balboni, Senate Print 184, an 8 act to amend the Executive Law, in relation to 9 requiring. 10 ACTING PRESIDENT WINNER: Read 11 the last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 ACTING PRESIDENT WINNER: Call 15 the roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes, 60. 18 ACTING PRESIDENT WINNER: The 19 bill is passed. 20 THE SECRETARY: Calendar Number 21 184, by Senator Maziarz, Senate Print 2603, an 22 act to amend the Workers' Compensation Law, in 23 relation to the definition of employer. 24 ACTING PRESIDENT WINNER: Read 25 the last section.

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(518) 371-8910 1 THE SECRETARY: Section 2. This 2 act shall take effect immediately. 3 ACTING PRESIDENT WINNER: Call 4 the roll. 5 (The Secretary called the roll.) 6 THE SECRETARY: Ayes, 60. 7 ACTING PRESIDENT WINNER: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 194, by Senator LaValle, Senate Print 1148, an 11 act to amend the Education Law, in relation to 12 the unlawful sale of dissertations, theses and 13 term papers. 14 ACTING PRESIDENT WINNER: Read 15 the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT WINNER: Call 19 the roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes, 60. 22 ACTING PRESIDENT WINNER: The 23 bill is passed. 24 THE SECRETARY: Calendar Number 25 205, by Senator Saland, Senate Print 466, an

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(518) 371-8910 1 act to amend the Penal Law, in relation to 2 establishing. 3 ACTING PRESIDENT WINNER: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the first of 7 November. 8 ACTING PRESIDENT WINNER: Call 9 the roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Those recorded in 12 the negative on Calendar Number 205 are 13 Senators DeFrancisco and Montgomery. 14 Ayes, 58. Nays, 2. 15 ACTING PRESIDENT WINNER: The 16 bill is passed. 17 THE SECRETARY: Calendar Number 18 209, by Senator Padavan, Senate Print 545, an 19 act to amend the Penal Law, in relation to 20 making citizenship document fraud. 21 ACTING PRESIDENT WINNER: Read 22 the last section. 23 THE SECRETARY: Section 2. This 24 act shall take effect on the first of 25 November.

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(518) 371-8910 1 ACTING PRESIDENT WINNER: Call 2 the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Those recorded in 5 the negative on Calendar Number 209 are 6 Senators Duane and Gonzalez. 7 Ayes, 58. Nays, 2. 8 ACTING PRESIDENT WINNER: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 210, by Senator Marcellino, Senate Print 663, 12 an act to amend the Penal Law, in relation to 13 including the theft of dogs and cats. 14 ACTING PRESIDENT WINNER: Read 15 the last section. 16 THE SECRETARY: Section 3. This 17 act shall take effect on the first of 18 November. 19 ACTING PRESIDENT WINNER: Call 20 the roll. 21 (The Secretary called the roll.) 22 ACTING PRESIDENT WINNER: Senator 23 Montgomery, to explain her vote. 24 SENATOR MONTGOMERY: Yes, Mr. 25 President, to explain my vote.

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(518) 371-8910 1 I know that this bill has been on 2 the calendar in prior years, and I have 3 actually voted for the bill. But I'm going to 4 vote no today. 5 I'm changing my vote because I have 6 had the occasion, in the last couple of years 7 especially, to find so many people who have a 8 felony conviction on their records. And it 9 prevents them from doing a lot of things to 10 just make a living, and especially getting a 11 job and getting certain kinds of assistance 12 for higher education and so forth and so on. 13 So I'm going to change my vote, 14 because I don't think that we need to charge a 15 person with an E felony for theft of dogs and 16 cats. I certainly think that we should do 17 something, and in fact there already is in law 18 that that is a misdemeanor. And I think that 19 that is correct, that they should be charged 20 at least with a misdemeanor, but certainly not 21 with a felony. 22 So I'm going to change my vote 23 today. I'm voting no. 24 ACTING PRESIDENT WINNER: Senator 25 Montgomery in the negative.

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(518) 371-8910 1 Senator Marcellino. 2 SENATOR MARCELLINO: Yeah, to 3 explain my vote. 4 I can't believe what I just heard, 5 that we are going to vote no on a bill to give 6 penalties to people who commit a crime because 7 if they commit a crime they won't be able to 8 do something later on in life. 9 You commit a crime, you hurt 10 somebody. People love their pets. Their pets 11 are part of their families -- in some cases, 12 in many cases, more important than some 13 members of the family. 14 But to say I'm going to vote 15 against a bill because the perpetrator of this 16 heinous crime will be punished for it, I think 17 that's just incredulous. 18 I vote aye. 19 ACTING PRESIDENT WINNER: Senator 20 Marcellino will be recorded in the 21 affirmative. 22 Announce the results. 23 THE SECRETARY: Those recorded in 24 the negative on Calendar Number 210 are 25 Senators Hassell-Thompson and Montgomery.

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(518) 371-8910 1 Ayes, 59. Nays, 2. 2 ACTING PRESIDENT WINNER: The 3 bill is passed. 4 THE SECRETARY: Calendar Number 5 213, by Senator Golden, Senate Print 1197, an 6 act to amend the Penal Law, in relation to 7 increasing the penalties. 8 ACTING PRESIDENT WINNER: Read 9 the last section. 10 THE SECRETARY: Section 4. This 11 act shall take effect on the first of 12 November. 13 ACTING PRESIDENT WINNER: Call 14 the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Those recorded in 17 the negative on Calendar Number 213 are 18 Senators Andrews, Duane, Hassell-Thompson, 19 L. Krueger, Montgomery and Parker. 20 Ayes, 55. Nays, 6. 21 ACTING PRESIDENT WINNER: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 24 214, by Senator Winner, Senate Print 1428, an 25 act to amend the Penal Law, in relation to the

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(518) 371-8910 1 imposition of driver's license suspensions. 2 ACTING PRESIDENT WINNER: Read 3 the last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect on the first of 6 November. 7 ACTING PRESIDENT WINNER: Call 8 the roll. 9 (The Secretary called the roll.) 10 ACTING PRESIDENT WINNER: Senator 11 DeFrancisco, to explain his vote. 12 SENATOR DeFRANCISCO: I'm voting 13 no, not because I'm in favor of the violation 14 of the laws concerning marijuana, I just -- 15 and I clearly understand the intent behind the 16 bill, because it's difficult to get fines paid 17 for this type of offense. And there's really 18 very little remedy that the justices have. 19 The only reason I'm voting no is 20 that I just can't see a nexus between a 21 marijuana offense and whether you should be on 22 the road driving. And there's got to be 23 another remedy that we could come up with that 24 would allow town justices to collect fines. 25 So that's the reason I'm voting no.

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(518) 371-8910 1 ACTING PRESIDENT WINNER: Senator 2 DeFrancisco will be recorded in the negative. 3 THE SECRETARY: Those recorded in 4 the negative on Calendar Number 214 are 5 Senators DeFrancisco, Duane, Gonzalez, 6 Hassell-Thompson, Montgomery, Parker and 7 Schneiderman. Also Senator Andrews. 8 Ayes, 53. Nays, 8. 9 ACTING PRESIDENT WINNER: The 10 bill is passed. 11 THE SECRETARY: Calendar Number 12 283, by Senator Spano, Senate Print 3008, an 13 act to amend the Labor Law, in relation to 14 permitting employers and employees. 15 ACTING PRESIDENT WINNER: Read 16 the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT WINNER: Call 20 the roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes, 61. 23 ACTING PRESIDENT WINNER: The 24 bill is passed. 25 Senator Skelos, that completes the

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(518) 371-8910 1 reading of the noncontroversial calendar. 2 SENATOR SKELOS: Thank you, Mr. 3 President. 4 I think that also completes the 5 controversial calendar and the 6 noncontroversial calendar. 7 And Resolution 917, by Senator 8 Larkin, concerning the 60th anniversary of the 9 raising of the flag on the island of Iwo Jima, 10 with the consent of the Minority, we'd like to 11 put every member on the resolution. If 12 anybody wishes not to sponsor the resolution, 13 they should notify the desk. 14 Is there any housekeeping at the 15 desk, Mr. President? 16 ACTING PRESIDENT WINNER: There 17 is not. 18 SENATOR SKELOS: Would you please 19 recognize Senator Schneiderman. 20 ACTING PRESIDENT WINNER: Senator 21 Schneiderman. 22 SENATOR SCHNEIDERMAN: Thank you, 23 Mr. President. 24 I have a motion at the desk, and I 25 would like to have it called up at this time.

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(518) 371-8910 1 ACTING PRESIDENT WINNER: The 2 Secretary will read. 3 THE SECRETARY: Senate Print 4 1576, by Senator Schneiderman, an act to amend 5 the Education Law. 6 ACTING PRESIDENT WINNER: Senator 7 Schneiderman. 8 SENATOR SCHNEIDERMAN: Thank you. 9 Mr. President, this is a motion to 10 put on the calendar a piece of legislation 11 that I think is really very difficult to 12 oppose. Unfortunately, while this bill has 13 been passing the Assembly for years, it has 14 been held up in this house. I hope this year 15 we can change that. There is some support on 16 the other side of the aisle. We need to get 17 the bill to the floor. 18 The bill we're seeking to put on 19 the Senate calendar today would make emergency 20 contraception available without requiring that 21 women go through the current procedure of 22 finding a doctor, getting a prescription, 23 finding a pharmacy and then taking it to the 24 pharmacy. 25 This would provide for a supervised

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(518) 371-8910 1 regimen by which this could be dispensed. It 2 does not make it an over-the-counter product, 3 but it illuminates the critical barriers to 4 women getting this product at the time that 5 they need it. 6 We're talking about a product 7 that's clearly safe. It's been in use in 8 Europe for over 25 years. And it clearly 9 prevents pregnancy. It is really just a high 10 dosage of the material in birth control pills. 11 And it prevents people from getting pregnant 12 who would sometimes then get abortions. 13 The estimates are staggering of 14 the -- according to the New England Journal of 15 Medicine, the use of emergency contraception 16 can prevent as many as 1.7 million unintended 17 pregnancies that occur each year in the United 18 States, and including as many as 800,000 19 pregnancies which now result in abortions. 20 It's been proven to reduce a 21 woman's risk of pregnancy by 75 percent if the 22 first dose is taken within 72 hours of the 23 failure of a birth control method or 24 unprotected sex. 25 So this is an approved product by

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(518) 371-8910 1 the FDA. It's effective. It prevents 2 pregnancies. If you're opposed to abortion, 3 it prevents abortions. 4 And last year we passed a -- last 5 cycle we passed a piece of legislation that 6 had also been held up that ensured that 7 hospital emergency rooms make emergency 8 contraception available to rape survivors. 9 That was a great step. But there are many, 10 many other women in New York who are being 11 denied this product, being prevented from 12 getting it by the failure of this house to 13 bring this bill to the floor. 14 The key fact that compels us to 15 pass this legislation this year is this. When 16 you're dealing with emergency contraception, 17 every hour counts. The procedure we're 18 talking about would simply make it easier for 19 women to get it quickly. Every hour counts 20 when you need access to emergency 21 contraception. If you wait another 10 hours, 22 another 12 hours, it is less likely to be 23 effective. We're forcing women who don't want 24 to get pregnant to get pregnant. 25 This is a time of fiscal crisis.

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(518) 371-8910 1 Let's pay attention to what the Comptroller of 2 the State of New York has said. He documented 3 in a report issued in 2003 that improved 4 access to emergency contraception will save 5 New York State more than $450 million a year. 6 So this is a fiscal issue, it's a 7 medical issue, but, most fundamentally, this 8 is a moral issue. This is something that 9 really almost rises to the level of shameful 10 neglect, when this house refuses to put a bill 11 on the floor to allow a safe product to be 12 available to women when they need it so that 13 they can avoid becoming pregnant. 14 This is a simple piece of 15 legislation. I urge everyone to vote yes and 16 bring it to the floor. And I urge my 17 colleagues on the other side of the aisle -- 18 and there are those here who have supported 19 this legislation who may need a little boost 20 from their leadership from time to time -- 21 that this is the year to do it. 22 Let's not force another group of 23 thousands of women in New York State to become 24 pregnant because of inaction by the New York 25 State Senate. Every year we wait forces more

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(518) 371-8910 1 people into this horrible, horrible situation. 2 So I urge everyone to vote yes, and 3 let's pass this bill this year. 4 Thank you, Mr. President. 5 ACTING PRESIDENT WINNER: All 6 those Senators in favor of the petition out of 7 committee please signify by raising their 8 hands. 9 THE SECRETARY: Those recorded in 10 agreement are Senators Andrews, Breslin, 11 Brown, Connor, Dilan, Duane, Gonzalez, 12 Hassell-Thompson, Klein, L. Krueger, 13 C. Kruger, Montgomery, Onorato, Oppenheimer, 14 Parker, Paterson, Sabini, Sampson, Savino, 15 Schneiderman, Serrano, A. Smith, M. Smith, 16 Stavisky and Valesky. 17 ACTING PRESIDENT WINNER: The 18 petition is not agreed to. 19 Senator Skelos. 20 SENATOR SKELOS: Mr. President, 21 there being no further business to come before 22 the Senate, I move that we stand adjourned 23 until tomorrow, Wednesday, March 23rd, at 24 3:00 p.m. 25 ACTING PRESIDENT WINNER: On

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(518) 371-8910 1 motion, the Senate stands adjourned until 2 Wednesday, March 23rd, at 3:00 p.m. 3 (Whereupon, at 3:52 p.m., the 4 Senate adjourned.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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(518) 371-8910