Senate Transcript - April 12, 2005

p. 2000

1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 April 12, 2005 11 3:12 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: In the absence of 10 clergy, may we bow our heads in a moment of 11 silence, please. 12 (Whereupon, the assemblage 13 respected a moment of silence.) 14 THE PRESIDENT: Reading of the 15 Journal. 16 THE SECRETARY: In Senate, 17 Monday, April 11, the Senate met pursuant to 18 adjournment. The Journal of Sunday, April 10, 19 was read and approved. On motion, Senate 20 adjourned. 21 THE PRESIDENT: Without 22 objection, the Journal stands approved as 23 read. 24 Presentation of petitions. 25 Messages from the Assembly.

p. 2001

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(518) 371-8910 1 Messages from the Governor. 2 Reports of standing committees. 3 The Secretary will read. 4 THE SECRETARY: Senator Johnson, 5 from the Committee on Finance, reports the 6 following nominations: 7 As a member of the State Board of 8 Parole, James B. Ferguson, Jr., Esquire, of 9 Pelham Manor. 10 THE PRESIDENT: Senator Johnson. 11 SENATOR JOHNSON: Move the 12 nomination. 13 THE PRESIDENT: Senator Golden. 14 SENATOR GOLDEN: I stand to 15 recommend the nomination of the new member, 16 James B. Ferguson, to the State Board of 17 Parole. 18 I had the privilege of working with 19 his father in the New York City Police 20 Department. The head of the Emerald Society, 21 he's done an outstanding job in his career in 22 the New York City Police Department. 23 I had the privilege of knowing his 24 son, an outstanding attorney who has done 25 great work in the area of workmen's comp and

p. 2002

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(518) 371-8910 1 will truly be a great asset to the workmen's 2 comp and to the City and State of New York. 3 Thank you, and good luck. 4 THE PRESIDENT: Senator Nozzolio. 5 SENATOR NOZZOLIO: Thank you, 6 Madam President and my colleagues. 7 I rise to add my support for this 8 great nomination. That Mr. Ferguson came 9 before the Crime Victims, Crime and 10 Corrections Committee. The committee 11 thoroughly reviewed his qualifications and 12 were impressed significantly by his 13 in-the-field actions, his career in law 14 enforcement, and his roots, family roots in 15 law enforcement. 16 It's an excellent appointment, and 17 the committee was extremely impressed with his 18 qualifications. 19 Thank you, Madam President. 20 THE PRESIDENT: The question is 21 on the nomination of James B. Ferguson, Jr., 22 to the New York State Board of Parole. All in 23 favor please signify by saying aye. 24 (Response of "Aye.") 25 THE PRESIDENT: Opposed, nay.

p. 2003

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(518) 371-8910 1 (No response.) 2 THE PRESIDENT: The nominee is 3 hereby confirmed. 4 Congratulations, and best wishes to 5 you. 6 (Applause.) 7 THE PRESIDENT: Mr. Ferguson is 8 here this afternoon with his fiancee, Angie 9 Vushaj; Monica Camovic, his stepdaughter -- I 10 apologize, I'm sure, for the pronunciations -- 11 Jean Ferguson, his mother; Barney Ferguson, 12 his father; Andrew Ferguson, his brother; and 13 Tracey Ferguson, his sister-in-law. 14 Have a great celebration. 15 The Secretary will read. 16 THE SECRETARY: As a member of 17 the Workers' Compensation Board, Donna 18 Ferrara, of Albany. 19 THE PRESIDENT: Senator Johnson. 20 SENATOR JOHNSON: Move the 21 nomination. 22 THE PRESIDENT: Senator 23 Fuschillo. 24 SENATOR FUSCHILLO: Please 25 recognize Senator Marcellino first.

p. 2004

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(518) 371-8910 1 THE PRESIDENT: Senator 2 Marcellino. 3 SENATOR MARCELLINO: Thank you, 4 Madam President. 5 It is my pleasure to rise and 6 second the nomination of my good friend Donna 7 Ferrara to be nominated to the Workers' 8 Compensation Board. 9 I've known Donna for a number of 10 years, and I remember walking in an election 11 when she first ran for the Assembly, and she 12 was walking door-to-door and walking so 13 earnestly she forgot to watch where she 14 stepped and actually broke her leg and had to 15 finish the initial campaign on one leg -- and 16 did so, and won handily in that election. 17 She has represented our district 18 exceptionally well in the Assembly, lo these 19 many years. And I know that she leaves the 20 Assembly with mixed emotions. It is a part of 21 her life that she dealt with with great 22 intensity and great aplomb, and I think she 23 handled herself well under very difficult 24 circumstances, being in the minority in the 25 Assembly.

p. 2005

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(518) 371-8910 1 However, she rose up as a ranking 2 member of the Insurance Committee and did very 3 well there and is well-known for her 4 legislative packages. 5 And I think she will serve and I 6 know she will serve with great dignity on the 7 Workmen's Comp Board and be a credit to our 8 Governor and to our state. 9 I wholeheartedly endorse her 10 candidacy and, again, am proud to second the 11 nomination. And with regards to her husband, 12 Bob, and their two lovely children. 13 THE PRESIDENT: Senator 14 Fuschillo. 15 SENATOR FUSCHILLO: Thank you, 16 Madam President. 17 That certainly taught her a lesson, 18 never to walk again with Senator Marcellino on 19 the campaign trail. 20 I rise to second the nomination as 21 well and compliment Governor Pataki on this. 22 And I think if I had to describe Assemblywoman 23 Ferrara, it would probably be class, dignity, 24 and professionalism in every facet of her 25 life.

p. 2006

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(518) 371-8910 1 I've known her for many years. 2 She's with her two beautiful children and her 3 husband. Besides the distinguished career 4 she's had in the Assembly, and certainly a 5 champion of women's rights, Donna is a great 6 mother and a great human being. And I know 7 she'll carry all the traits in her personal 8 life and professional life to the Workers' 9 Compensation Board. 10 Donna, I wish you the best of luck, 11 and congratulations. 12 THE PRESIDENT: Senator Breslin. 13 SENATOR BRESLIN: Thank you, 14 Madam President. 15 I think when you read the 16 nomination you said Donna Ferrara from Albany. 17 So I think that she's probably moved from the 18 Island and now considers the Albany area her 19 home. 20 But I've had the pleasure over the 21 past six years to sit as the ranking Democrat 22 on Insurance while Donna has served as the 23 ranking member on Insurance in the Assembly. 24 And I have found her to be all the qualities 25 that have been expressed by Senators Fuschillo

p. 2007

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(518) 371-8910 1 and Marcellino. She's bright, she's 2 sensitive, she's caring, she's thorough, and 3 she happens to be a wonderful person. 4 It's the Assembly's loss and 5 workmen's comp's gain by having her. She's 6 really a credit to this whole body, and I wish 7 she and Bob and their two children every 8 success in moving from my home district down 9 to, what was it, Long Island or someplace out 10 there. 11 Congratulations, Donna. 12 THE PRESIDENT: Senator LaValle. 13 SENATOR LaVALLE: Thank you, 14 Madam President. 15 I rise to support the nominee. I 16 think the Governor should be applauded for 17 this nomination. 18 Donna Ferrara has a terrific 19 background, having served as a staff member 20 here in the Senate, an Assembly member and 21 ranking member on the Insurance Committee. So 22 it gives her the tools that she needs to 23 really do a topnotch job. And we know that 24 when she gets spirited and focused on 25 something, the job gets done in a first-class

p. 2008

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(518) 371-8910 1 way. 2 So I wish Donna much luck and 3 success. And she may have started her career 4 in Nassau, but she's going to finish her 5 career in the great county of Suffolk. 6 THE PRESIDENT: Senator Maltese. 7 SENATOR MALTESE: I rise, Madam 8 President, to second the nomination of Donna 9 Ferrara. I got to know her working together 10 with the Italian-American Legislators 11 Association, but was always impressed by her 12 ability and her expertise, her desire to do 13 that -- to take that extra step on behalf of 14 not only her constituents but 15 Italian-Americans. 16 And to see her, always smiling, 17 always pleasant, and especially when the two 18 children came, carrying the children, being an 19 expert not only at being a legislator, being 20 an expert representative of her constituents, 21 but at the same time a wife and mother. She 22 made it seem easy, although I'm sure it isn't 23 easy and I'm glad I never had to take her 24 place. 25 I am very proud to second the

p. 2009

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(518) 371-8910 1 nomination, Madam President. 2 THE PRESIDENT: Senator Smith. 3 SENATOR ADA SMITH: Thank you, 4 Madam President. 5 I would like to commend the 6 Governor on this great nomination. I believe 7 that Donna Ferrara has the temperament, the 8 ability, and the will to serve in this 9 capacity. And it's only befitting that this 10 should happen today, on the birthday of her 11 daughter, Kathleen Lillian. 12 Donna has pulled together something 13 that many of us have attempted to do and did 14 not do well, and that was to both have a 15 career and to raise our families. I applaud 16 her for that. I applaud her for all that she 17 has done in the Assembly. 18 And I look forward to working with 19 her in her new capacity, because I know that 20 she will do it well. 21 THE PRESIDENT: Senator Nozzolio. 22 SENATOR NOZZOLIO: Thank you, 23 Madam President. On the nomination. 24 I rise with great pride and 25 enthusiasm to support this excellent

p. 2010

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(518) 371-8910 1 nomination. Governor Pataki again has 2 provided the Legislature with a great 3 opportunity to support a great candidate, and 4 that's what we're doing here today in 5 supporting this nomination. 6 Donna Ferrara has served with 7 distinction in the Assembly. It was a 8 pleasure to work with her during those 9 legislative years. And that I know she will 10 serve with great distinction on the New York 11 State Board of Workers' Compensation. 12 Congratulations to the new 13 commissioner, and thank Governor Pataki for 14 providing this nomination for us to support. 15 Thank you, Madam President. 16 THE PRESIDENT: Senator 17 Stachowski. 18 SENATOR STACHOWSKI: Yes, Madam 19 President, I too rise to second the nomination 20 of Donna Ferrara. 21 As I said in the committee earlier 22 today, I had the good fortune of meeting her 23 when she was an intern for my predecessor, so 24 I saw the government person when we were first 25 starting out. And then years later, after she

p. 2011

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(518) 371-8910 1 went to law school and served as a private 2 practice attorney, our paths crossed again 3 when I was here and she came to the Assembly. 4 So I think that her background as a 5 lawyer and a mother and a good legislator will 6 serve her well in this new job. And I think 7 the Governor did an outstanding choice in 8 picking Donna Ferrara for this position. 9 THE PRESIDENT: Senator Winner. 10 SENATOR WINNER: Thank you, Madam 11 President. I rise in support of my friend 12 Donna Ferrara. 13 Donna, you know we served together 14 for a long time, your entire career in the 15 Assembly. And you served with me for many, 16 many years on the Assembly Republican 17 Leadership Team. You obviously had a great 18 contribution to the Assembly Republican 19 Conference, and you've always been a great 20 friend. 21 And I know you'll do a great job in 22 your new position, and I wish you all the 23 best. 24 THE PRESIDENT: Senator Onorato. 25 SENATOR ONORATO: Madam

p. 2012

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(518) 371-8910 1 President, I too join my colleagues in 2 seconding this nomination of Donna Ferrara. 3 She's done an outstanding job while she was an 4 Assemblywoman, an outstanding job as a mother. 5 And I want to really commend the 6 Governor. He makes some outstanding 7 appointments every once in a while, but this 8 one is exceptional. 9 And I congratulate him for that, 10 and I wish Donna and her family the very, very 11 best of luck in her new career. 12 THE PRESIDENT: Senator Seward. 13 SENATOR SEWARD: Thank you, Madam 14 President. 15 I'm very pleased, personally and 16 professionally, to rise in support of our 17 nominee, Donna Ferrara, to be a member of the 18 Workers' Compensation Board. 19 During the years that Assemblywoman 20 Ferrara was the ranking minority member on the 21 Insurance Committee in the Assembly, we had 22 occasion to be on panels together in front of 23 various insurance groups. And I've always 24 been impressed with Donna's command of the 25 facts and her knowledge of the law and the

p. 2013

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(518) 371-8910 1 process here at the Capitol. 2 She's been an outstanding member of 3 the Assembly. She's proven herself there. 4 And with this new assignment, I am confident 5 that Donna will go on to even greater service 6 on behalf of the people of the State of 7 New York. 8 One of Donna's many outstanding 9 qualities is that she is a people person, very 10 warm and genuine. And as a member of the 11 Workers' Compensation Board, she will be 12 dealing with people at a very vulnerable time 13 in their life. And I know that that 14 combination of the command of the law and her 15 compassion for people and her ability to work 16 with people will be great qualities as she 17 goes on to this new service. 18 So I rise to congratulate, first of 19 all, the Governor for this outstanding 20 nomination, and to congratulate Donna and Bob 21 and their family on this very happy day for 22 them and for the people of the State of 23 New York. 24 THE PRESIDENT: Senator Marchi. 25 SENATOR MARCHI: Madam President,

p. 2014

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(518) 371-8910 1 if your name were also up there -- you know, I 2 just want to be candid with you -- if she 3 pleaded with me with tears running down her 4 face and said, "Please, vote against me," I'm 5 still voting for her. 6 (Laughter.) 7 THE PRESIDENT: Senator 8 Oppenheimer. 9 SENATOR OPPENHEIMER: I think 10 this is a tribute to Donna Ferrara, that we 11 are having this extreme lovefest here, because 12 she's been a good friend to so many of us and 13 I've worked with her on the Legislative 14 Women's Caucus. 15 And I think the thing I find very, 16 very admirable is that she can multitask so 17 many different things and do them all well. 18 Maybe I'm envious. But when she was bringing 19 infants into the chamber and managing to be 20 still a wonderful Assemblywoman and just a 21 wonderful attribute with her constant smile 22 and her interest in you and in the things 23 around her, and the legislation, it's just 24 this is the type of woman that makes us all 25 proud.

p. 2015

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(518) 371-8910 1 So congratulations, Donna. 2 THE PRESIDENT: Senator Volker. 3 SENATOR VOLKER: I just want to 4 say quickly that I've known Donna for many, 5 many years, and the gain of the Workers' Comp 6 Board is our loss, to tell you the truth. I 7 mean, one of the brightest, most pleasant 8 people, and also one of the -- a good friend. 9 But I have to tell you a quick 10 story, that she and I were linked in an 11 incident that happened some years ago. And 12 her husband knows about this, so I don't have 13 to -- it was one of these investigative 14 reporters who was running around looking at 15 our -- the times we were off. In other words, 16 they were saying a lot of legislators are not 17 paying attention. 18 So they listed the number of days 19 that Donna was off, and me, and they said we 20 were the two biggest with days off. And they 21 said that Senator Volker allegedly had cancer 22 surgery, and that Donna Ferrara allegedly had 23 a pregnancy and had a baby. 24 And I just want to tell you about 25 the allegation. The allegation is definitely

p. 2016

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(518) 371-8910 1 a fact, but it was really kind of comical to 2 say "allegedly" -- they must be kidding us. I 3 mean, the point I'm trying to make is it just 4 goes to show you how those things can happen. 5 But there's no question the 6 allegation was correct and that Donna, by the 7 way, with a difficult time, the kids being 8 little and so forth, being here -- but she did 9 a great job. And as I said, their gain is our 10 loss. 11 Good luck to you, Donna. And I'm 12 sorry that you had to move to Suffolk County, 13 but everybody has to do something, and I 14 appreciate it. 15 Thank you. 16 THE PRESIDENT: Senator Alesi. 17 SENATOR ALESI: Thank you, Madam 18 President. 19 I first met Donna Ferrara 13 years 20 ago when we both came to Albany as newly 21 elected members of the Assembly. And I spent 22 three years there before I engineered my own 23 escape, and now I see after 13 years the 24 nominee has engineered her own escape as well. 25 But in the time that we spent

p. 2017

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(518) 371-8910 1 together, I got to know Donna and we became 2 close classmates. We went around the state 3 and pitched reform and many of the things that 4 we're still struggling to do here in Albany. 5 But nobody was more fervent in that effort. 6 And with all of the issues that came before us 7 as members of the minority, nobody was more 8 adept at handling the issues and developing 9 issues as well. 10 I think that if you look at the way 11 Donna has mastered her life and balanced being 12 a mother, a member of the Assembly, and so 13 many other things, that we can trust without 14 any question that she's going to master this 15 job as well. 16 And I wish her well, and I'm so 17 happy to see that she has now escaped the 18 Assembly minority as well. 19 So good luck, Donna. 20 Congratulations. 21 THE PRESIDENT: Senator Maziarz. 22 SENATOR MAZIARZ: Thank you very 23 much, Madam President. 24 Donna, I don't think I've seen such 25 a lovefest in this chamber since we passed on

p. 2018

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(518) 371-8910 1 "Rapp" Rappleyea as a member of the Power 2 Authority. 3 Donna, I just want to add my voice 4 to the chorus here. And I think for your 5 family you can see, by the members of the 6 minority, the members of the majority, the 7 great respect and love that we have for Donna. 8 I know she's going to do a great job on the 9 Workers' Comp Board. 10 Congratulations, Donna. 11 THE PRESIDENT: Senator Hannon. 12 SENATOR HANNON: Madam President, 13 I just want to add my congratulations. 14 Donna, Bob, having had the chance 15 to welcome you into the legislative family 16 originally many years ago, it's actually with 17 great regrets that you're not going to 18 continue in the legislative family. 19 But I know that government will be 20 all the better for your participation, and I 21 wish you Godspeed. 22 THE PRESIDENT: The question is 23 on the nomination of Donna Ferrara as a member 24 of the Workers' Compensation Board. All in 25 favor please signify by saying aye.

p. 2019

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(518) 371-8910 1 (Response of "Aye.") 2 THE PRESIDENT: Opposed, nay. 3 (No response.) 4 THE PRESIDENT: The nominee is 5 confirmed. 6 And congratulations, may you have 7 similar success in your new job. 8 (Extended applause.) 9 THE PRESIDENT: I've been asked 10 also to acknowledge the presence of her 11 husband, obviously the gentleman sitting next 12 to her, Bob Gregory; her daughter, Kathleen; 13 her son, Brendan; and Carol Cardell, who's 14 also with her this afternoon. 15 Have a great celebration. 16 The Secretary will read. 17 THE SECRETARY: As director of 18 the Municipal Bond Bank Agency, Charles 19 Capetanakis, of Brooklyn. 20 As a member of the New York State 21 Housing Finance Agency, Jerome M. Becker, 22 Esquire, of New York City. 23 As a member of the Capital District 24 Transportation Authority, David M. Stackrow, 25 of Wynantskill.

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(518) 371-8910 1 As a member of the Central New York 2 Regional Transportation Authority, H.J. 3 Hubert, Esquire, of Syracuse. 4 As a member of the Ogdensburg 5 Bridge and Port Authority, James Thew, of 6 Waddington. 7 As banking members of the State 8 Banking Board, E. Peter Forrestel, II, of 9 Akron, and Jens A. Westrick, of New York City. 10 As public member of the State 11 Banking Board, Mallory Factor, of New York 12 City. 13 As a member of the board of 14 directors of the Great Lakes Protection Fund, 15 Michael J. Elmendorf, II, of Latham. 16 As a member of the State Public 17 Transportation Safety Board, Daniel J. 18 Texeira, of Brooklyn. 19 As a member of the Finger Lakes 20 State Park, Recreation and Historic 21 Preservation Commission, Paul Hudson, of 22 Canandaigua. 23 As a member of the Palisades 24 Interstate Park Commission, Ann C. O'Sullivan, 25 of Stony Point.

p. 2021

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(518) 371-8910 1 As a member of the Veterans' 2 Affairs Commission, Patrick Devine, of the 3 Bronx. 4 As commissioner of the State 5 Insurance Fund, Charles Scott Bowen, of 6 Binghamton. 7 As members of the Advisory Council 8 on Alcoholism and Substance Abuse Services, 9 Kenneth L. Oakley, Ph.D., of Batavia, and John 10 W. Russell, Jr., of Staten Island. 11 As members of the Citizens Policy 12 and Complaint Review Council, Thomas K. Cross, 13 of LaGrangeville, and Nicholas D. Labella, of 14 Utica. 15 As members of the State Hospital 16 Review and Planning Council, Frederick B. 17 Cohen, Esquire, of Buffalo, and James K. Reed, 18 M.D., of Cohoes. 19 As a member of the Board of 20 Visitors of the Broome Developmental 21 Disabilities Services Office, Nancy Mirabito, 22 of Norwich. 23 As members of the Central New York 24 Developmental Disabilities Services Office, 25 Anna Maria De Riemer-Gallay, of Ava, and Doris

p. 2022

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(518) 371-8910 1 W. Latimer, of Rome. 2 As a member of the Board of 3 Visitors of the Central New York Psychiatric 4 Center, John J. Finn, of Clinton. 5 As a member of the Board of 6 Visitors of the Pilgrim Psychiatric Center, 7 Doris S. Wagner, of West Babylon. 8 As a member of the Board of 9 Visitors of the St. Lawrence Psychiatric 10 Center, Patrick R. Rourk, of Norwood. 11 And as a member of the Board of 12 Visitors of the Taconic Developmental 13 Disabilities Services Office, Cheryl Wilcox, 14 of Wassaic. 15 ACTING PRESIDENT ROBACH: Senator 16 Johnson. 17 SENATOR JOHNSON: Move the 18 nominations. 19 ACTING PRESIDENT ROBACH: The 20 question is on the confirmation of the 21 nominees as read by the Secretary. All in 22 favor signify by saying aye. 23 (Response of "Aye.") 24 ACTING PRESIDENT ROBACH: Any 25 opposed, nay.

p. 2023

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(518) 371-8910 1 (No response.) 2 ACTING PRESIDENT ROBACH: The 3 nominees are hereby confirmed. 4 Senator Skelos. 5 SENATOR SKELOS: Continue in 6 regular order. 7 ACTING PRESIDENT ROBACH: The 8 Secretary will read. 9 SENATOR SKELOS: Communications 10 and reports from state officers, followed by 11 motions and resolutions, if I'm correct. 12 ACTING PRESIDENT ROBACH: Yes. 13 SENATOR SKELOS: Thank you, Mr. 14 President. 15 ACTING PRESIDENT ROBACH: Reports 16 of select committees. 17 Communications and reports from 18 state officers. 19 Motions and resolutions. 20 Senator Farley. 21 SENATOR FARLEY: Thank you, Mr. 22 President. 23 On behalf of Senator Maziarz, who's 24 sitting next to me, on page 23, Calendar 25 Number 390, Senate Print 1984, I ask that that

p. 2024

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(518) 371-8910 1 bill retain its place on the Third Reading 2 Calendar, and I offer amendments to it. 3 On behalf of Senator Marcellino, 4 Mr. President, I offer the following 5 amendments to a bill on page 9, Calendar 113, 6 Senate Print 1771A, and I ask that that bill 7 retain its place on the Third Reading 8 Calendar. 9 On behalf of Senator Maziarz, on 10 page 23 I offer the following amendments to 11 Calendar 392, Senate Print 3102A, and I ask 12 that that bill retain its place on the Third 13 Reading Calendar. 14 ACTING PRESIDENT ROBACH: Thank 15 you, Senator Farley. The amendments are 16 received, and the bills will retain their 17 place on the calendar. 18 Senator Skelos. 19 SENATOR SKELOS: Mr. President, I 20 believe there are substitutions to be made at 21 this time. 22 ACTING PRESIDENT ROBACH: There 23 are. 24 The Secretary will read. 25 THE SECRETARY: On page 9,

p. 2025

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(518) 371-8910 1 Senator Hannon moves to discharge, from the 2 Committee on Health, Assembly Bill Number 5349 3 and substitute it for the identical Senate 4 Bill Number 760, Third Reading Calendar 111. 5 And on page 25, Senator Flanagan 6 moves to discharge, from the Committee on 7 Elections, Assembly Bill Number 1221 and 8 substitute it for the identical Senate Bill 9 Number 2914, Third Reading Calendar 426. 10 ACTING PRESIDENT ROBACH: 11 Substitutions ordered. 12 SENATOR SKELOS: Mr. President, 13 if we could adopt the Resolution Calendar in 14 its entirety. 15 ACTING PRESIDENT ROBACH: All in 16 favor of adopting the Resolution Calendar 17 signify by saying aye. 18 (Response of "Aye.") 19 ACTING PRESIDENT ROBACH: All 20 those opposed, nay. 21 (No response.) 22 ACTING PRESIDENT ROBACH: The 23 Resolution Calendar is adopted. 24 Senator Skelos. 25 SENATOR SKELOS: Mr. President,

p. 2026

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(518) 371-8910 1 if we could go to the noncontroversial reading 2 of the calendar. 3 ACTING PRESIDENT ROBACH: The 4 Secretary will read. 5 THE SECRETARY: Calendar Number 6 16, by Senator Volker, Senate Print 194, an 7 act to amend the Penal Law, in relation to 8 assaults. 9 ACTING PRESIDENT ROBACH: Read 10 the last section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT ROBACH: Call 14 the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes, 59. 17 ACTING PRESIDENT ROBACH: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 206, by Senator Saland, Senate Print 469, an 21 act to amend the Criminal Procedure Law, in 22 relation to authorizing. 23 ACTING PRESIDENT ROBACH: Read 24 the last section. 25 THE SECRETARY: Section 3. This

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(518) 371-8910 1 act shall take effect immediately. 2 ACTING PRESIDENT ROBACH: Call 3 the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes, 58. Nays, 6 1. Senator DeFrancisco recorded in the 7 negative. 8 SENATOR DeFRANCISCO: No. May I 9 be recognized. 10 ACTING PRESIDENT ROBACH: Senator 11 DeFrancisco. 12 SENATOR DeFRANCISCO: Yes, to 13 explain my vote. I vote yes. 14 The confusion was I was attempting 15 to vote no on Calendar Number 16, and I didn't 16 jump quick enough. 17 And I would like to -- I don't know 18 if I could have unanimous consent to vote in 19 the negative on Calendar 16, since I've been 20 present all the way through the proceedings up 21 to this point in time. And I'm also short, so 22 you may not have seen me when I tried to rise 23 and raise my hand. 24 ACTING PRESIDENT ROBACH: Without 25 objection.

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(518) 371-8910 1 SENATOR DeFRANCISCO: Apparently 2 there may be an objection to me doing that 3 under the new improved reform rules that don't 4 allow me to vote while I'm in session 5 continuously. 6 So what I'd like to say is that had 7 I been taller and been able to raise my hand 8 quicker, I would have voted in the negative on 9 Calendar 16. 10 ACTING PRESIDENT ROBACH: The 11 record will so reflect. 12 Read the last section on Calendar 13 206. 14 THE SECRETARY: In relation to 15 Calendar Number 206: Section 3. This act 16 shall take effect immediately. 17 ACTING PRESIDENT ROBACH: Call 18 the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes, 59. 21 ACTING PRESIDENT ROBACH: The 22 bill is passed. 23 SENATOR OPPENHEIMER: Mr. 24 President. 25 ACTING PRESIDENT ROBACH: Senator

p. 2029

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(518) 371-8910 1 Oppenheimer. 2 SENATOR OPPENHEIMER: On behalf 3 of short people, I would like -- had I been 4 not excused, I would have voted against two 5 bills, and I would like to name them: 6 Calendar 192, that's Number 838; and Calendar 7 Number 415, that is Senate 1324. 8 ACTING PRESIDENT ROBACH: The 9 record will so reflect. 10 The Secretary will continue to 11 read. 12 THE SECRETARY: Calendar Number 13 207, by Senator Saland, Senate Print 470, an 14 act to amend the Criminal Procedure Law, in 15 relation to expanding the offenses. 16 ACTING PRESIDENT ROBACH: Read 17 the last section. 18 THE SECRETARY: Section 3. This 19 act shall take effect on the first day of the 20 calendar month next succeeding the 30th day. 21 ACTING PRESIDENT ROBACH: Call 22 the roll. 23 (The Secretary called the roll.) 24 THE SECRETARY: Ayes, 59. 25 ACTING PRESIDENT ROBACH: The

p. 2030

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(518) 371-8910 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 212, by Senator Balboni, Senate Print 930, an 4 act to amend the Civil Practice Law and Rules, 5 in relation to prohibiting. 6 SENATOR SCHNEIDERMAN: Lay it 7 aside. 8 ACTING PRESIDENT ROBACH: The 9 bill is laid aside. 10 THE SECRETARY: Calendar Number 11 219, by Senator LaValle, Senate Print 1626, an 12 act to amend the Criminal Procedure Law, in 13 relation to the commission of crimes. 14 ACTING PRESIDENT ROBACH: Read 15 the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT ROBACH: Call 19 the roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes, 59. 22 ACTING PRESIDENT ROBACH: The 23 bill is passed. 24 THE SECRETARY: Calendar Number 25 334, by Senator Paterson, Senate Print 1313,

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(518) 371-8910 1 an act to amend the Criminal Procedure Law, in 2 relation to admissibility. 3 ACTING PRESIDENT ROBACH: 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 ROBACH: Call 9 the roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes, 59. 12 ACTING PRESIDENT ROBACH: The 13 bill is passed. 14 THE SECRETARY: Calendar Number 15 336, by Senator Padavan, Senate Print 2174, an 16 act to amend the Criminal Procedure Law, in 17 relation to statements. 18 ACTING PRESIDENT ROBACH: Read 19 the last section. 20 THE SECRETARY: Section 3. This 21 act shall take effect immediately. 22 ACTING PRESIDENT ROBACH: Call 23 the roll. 24 (The Secretary called the roll.) 25 THE SECRETARY: Ayes, 59.

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(518) 371-8910 1 ACTING PRESIDENT ROBACH: The 2 bill is passed. 3 THE SECRETARY: Calendar Number 4 338, by Senator Libous, Senate Print 2499, an 5 act to amend the Penal Law, in relation to 6 increasing the penalties. 7 ACTING PRESIDENT ROBACH: Read 8 the last section. 9 THE SECRETARY: Section 5. This 10 act shall take effect on the first of 11 November. 12 ACTING PRESIDENT ROBACH: Call 13 the roll. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes, 59. 16 ACTING PRESIDENT ROBACH: The 17 bill is passed. 18 THE SECRETARY: Calendar Number 19 349, by Senator DeFrancisco, Senate Print 20 3287, an act to amend the Criminal Procedure 21 Law, in relation to statements at sentencing. 22 ACTING PRESIDENT ROBACH: Read 23 the last section. 24 THE SECRETARY: Section 3. This 25 act shall take effect on the 90th day.

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(518) 371-8910 1 ACTING PRESIDENT ROBACH: Call 2 the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes, 59. Nays, 5 1. Senator Montgomery recorded in the 6 negative. 7 ACTING PRESIDENT ROBACH: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 451, by Senator Volker, Senate Print 1524, an 11 act to amend the Criminal Procedure Law, in 12 relation to expanding. 13 ACTING PRESIDENT ROBACH: Read 14 the last section. 15 THE SECRETARY: Section 3. This 16 act shall take effect immediately. 17 ACTING PRESIDENT ROBACH: Call 18 the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes, 59. Nays, 21 1. Senator Duane recorded in the negative. 22 ACTING PRESIDENT ROBACH: The 23 bill is passed. 24 THE SECRETARY: Calendar Number 25 518, by Member of the Assembly Destito,

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(518) 371-8910 1 Assembly Print Number 6714, an act to amend 2 the Public Officers Law, in relation to the 3 date. 4 ACTING PRESIDENT ROBACH: Read 5 the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT ROBACH: Call 9 the roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes, 60. 12 ACTING PRESIDENT ROBACH: The 13 bill is passed. 14 Senator Skelos, that completes the 15 noncontroversial reading of the calendar. 16 SENATOR SKELOS: Thank you. If 17 we could go to the controversial calendar. 18 But prior to taking up Senator 19 Balboni's bill, if we could have the bells 20 rung at this time. 21 ACTING PRESIDENT ROBACH: The 22 Secretary will ring the bell. 23 The Secretary will read. 24 THE SECRETARY: Calendar Number 25 212, by Senator Balboni, Senate Print 930, an

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(518) 371-8910 1 act to amend the Civil Practice Law and Rules. 2 SENATOR SCHNEIDERMAN: 3 Explanation. 4 ACTING PRESIDENT ROBACH: Senator 5 Balboni, an explanation has been requested. 6 SENATOR BALBONI: Thank you, Mr. 7 President. 8 As everybody knows, this bill was 9 one of the first bills I introduced when I 10 came to the State Senate. Because when I was 11 in the Assembly, as Mr. Klein will remember, I 12 couldn't get this bill considered at all. So 13 I passed it back then, and we've passed every 14 year for seven years. This is the eighth year 15 we're considering this bill. 16 And at this point I feel like Henry 17 VIII's seventh wife, who remarked, "I know 18 what to do, I just don't know how to make it 19 interesting." 20 And that is in fact the case we 21 have today: How do we go through the basic 22 concepts of fairness that continue to defy 23 expectations? 24 Now, we've talked about the Bernard 25 McCummings case, or the subway mugger, when

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(518) 371-8910 1 after the guy on the IRT subway robbed 2 someone, he got shot and sued and won, in the 3 Appellate Division, $4 million. 4 We talked about the Barker v. 5 Kallash case, which is a famous Court of 6 Appeals decision where they got one right, 7 where they essentially said that two kids who 8 made a pipe bomb, when the bomb blows up, the 9 one kid cannot sue the other kid. That was a 10 good decision. And that's the case law in 11 this state, but we've never put it into 12 statute. 13 And of course a year ago Thursday 14 the New York Sun published the following 15 article: "Drug Smuggler Sues Queens Hospital. 16 Queens doctors extracted heroin" -- now, I'm 17 going to read you this, because you just -- 18 you can't believe this fact pattern, but it's 19 true. 20 "A convicted drug smuggler suing a 21 Queens hospital for operating on him to remove 22 some of the 51 condoms filled with heroin that 23 he had swallowed testified on videotape 24 yesterday that he was forced to undergo the 25 surgery.

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(518) 371-8910 1 "Speaking on a video made from 2 federal prison, William Kanyi described 3 desperately pleading with doctors not to 4 operate. Then the Ghanaian native pulled up 5 his shirt to reveal the scar on his stomach, 6 lowered his head and cried. 7 "At the time of the operation in 8 March of 1998, Kanyi had just been caught at 9 Kennedy Airport smugging 51 condoms filled 10 with heroin that he had swallowed in Ghana. 11 At that time he was arrested and taken to a 12 Queens hospital, where doctors performed an 13 emergency operation to remove the heroin that 14 remained inside of him and that they feared 15 was leaking and going to kill him." 16 It says here that his urine tested 17 positive for heroin, a good indication that in 18 fact one of the condoms was leaking. And as 19 you know, heroin in somebody's stomach will 20 kill you. 21 So they performed the emergency 22 surgery, they saved his life, and he turns 23 around and he brings a $5 million lawsuit 24 against the hospital. There you go, folks. 25 That's our current justice system.

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(518) 371-8910 1 And on the other side the argument 2 comes back: Well, wait a minute, why don't we 3 simply have the jury decide what's right and 4 what's wrong? The problem with that is, 5 again, process. 6 Before coming to this august body, 7 I was a defense attorney. I defended the 8 County of Nassau. And many times I had cases 9 in which, if we could have gotten summary 10 judgment, we wouldn't have had to have 11 witnesses testify, we wouldn't have had to 12 empanel a jury, we wouldn't have had to have 13 all the resources of the municipality go focus 14 on that first trial. 15 There is a cost associated with 16 trial work that could be avoided if you simply 17 shut the door of the courthouse to the 18 convicted felon. We're not talking about 19 misdemeanants here, we're not talking about 20 negligence here. We're talking about folks 21 who go out and intentionally commit a felony, 22 are convicted and then found to be culpable 23 and denied the ability to sue. 24 Now, there's also been raised, in 25 past years, the issue about police brutality.

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(518) 371-8910 1 Well, what do you do if the individual victim 2 is the victim of police brutality? 3 I have always argued, and most 4 police officers I talk to tell me that the 5 threat of being sued is not what will deter 6 police brutality. What deters police 7 brutality is the thought of going to prison. 8 And that's what happens in police brutality. 9 In addition to which, the federal 10 civil rights violations are still available 11 and, frankly, are a lot more effective when 12 bringing a case against a municipality. You 13 get more money, you get attorneys' fees, it's 14 a lot better in terms of your recovery. 15 So this is holdover from the days 16 back in 19 -- I think it's 1975, when we 17 changed from the former system where we 18 considered if someone did something wrong that 19 they were barred, to a comparative negligence 20 system. And this is a holdover that just 21 frankly doesn't make sense. 22 And I'll make the case again -- and 23 John DeFrancisco, this is for you, because I 24 know that you agree with me on this point. 25 You've got to give people confidence in the

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(518) 371-8910 1 judicial system. Because that's lacking, 2 frankly. And you've got to give people 3 confidence that the playground -- the playing 4 field is even for everyone. And that if you 5 step outside the bounds of society and commit 6 a crime, you can't step back in and use our 7 court system. 8 Thank you very much, Mr. President. 9 ACTING PRESIDENT ROBACH: Senator 10 Balboni, thank you for that brief explanation. 11 (Laughter.) 12 ACTING PRESIDENT ROBACH: Senator 13 DeFrancisco. 14 SENATOR DeFRANCISCO: Will the 15 sponsor yield to a question. 16 SENATOR BALBONI: With delight. 17 I went to law school, by the way. 18 SENATOR DeFRANCISCO: I was going 19 to ask you which law school, but no. 20 The question is, you think that 21 it's a good thing or all right or acceptable 22 for someone who is a victim of police 23 brutality to bring a lawsuit in federal court 24 and recover more, plus attorneys' fees and so 25 forth, like you just said?

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(518) 371-8910 1 SENATOR BALBONI: Do I think that 2 is right and appropriate? Well, that's for 3 the federal judiciary and for the federal 4 Congress to consider. 5 SENATOR DeFRANCISCO: So 6 basically, knowing that the doors are already 7 open in the federal courts for this type of 8 lawsuit that you're trying to prevent in 9 New York State, you would close the doors in 10 the New York courts; is that correct? 11 SENATOR BALBONI: Mr. President, 12 if I may respond to the gentleman, actually in 13 the federal court, as you know, it's a 14 different cause of action than it is in the 15 civil court. 16 In the federal court, what will 17 happen is they say that you have conspired to 18 deprive someone of their civil rights. As 19 opposed to the civil case that's brought in 20 state court, which is basically negligence or 21 intentional acts. 22 SENATOR DeFRANCISCO: Okay. May 23 I ask the sponsor another question. 24 ACTING PRESIDENT ROBACH: Will 25 you continue to yield, Senator Balboni?

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(518) 371-8910 1 SENATOR BALBONI: Yes, I do. 2 SENATOR DeFRANCISCO: I can't 3 remember what the threshold is for a felony in 4 a larceny case. Do you remember, Senator 5 Balboni? Is it a thousand dollars, $1,500? 6 What is it? 7 SENATOR BALBONI: I think it's a 8 thousand dollars. Whatever it is. For 9 purposes of your hypothetical, let's assume 10 it's a thousand dollars. 11 SENATOR DeFRANCISCO: In the same 12 instance that you just talked about, a larceny 13 situation where the person committing the 14 larceny is accosted by someone and injured, 15 does your statute apply to that situation? 16 SENATOR BALBONI: Well, if it 17 would be a situation like the following. You 18 break into someone's home, you take a thousand 19 dollars from their home, and on the way out 20 you trip on their kids' toys and you break 21 your leg. 22 Yes, you shouldn't be able to come 23 and use the courts to sue the homeowner, since 24 you committed the crime. 25 SENATOR DeFRANCISCO: If you --

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(518) 371-8910 1 SENATOR BALBONI: Intentionally. 2 SENATOR DeFRANCISCO: I'm talking 3 about a larceny. Is a larceny one of the 4 crimes that, if convicted, you would be 5 precluded from suing if you were injured? 6 SENATOR BALBONI: As I said. 7 That's the crime I described. 8 SENATOR DeFRANCISCO: There's a 9 difference between a larceny and a burglary. 10 ACTING PRESIDENT ROBACH: 11 Senators, if you could come through the chair, 12 please. 13 SENATOR DeFRANCISCO: Okay. What 14 I'm trying to figure out, isn't it true that a 15 burglary is a different crime than a larceny? 16 SENATOR BALBONI: There were two 17 crimes in there. But it's still -- and the 18 point is, it's a conviction for a felony. 19 A felony is a bad thing, as you 20 know, Senator. And it is intentional actions 21 that we're taking a look at here. 22 SENATOR DeFRANCISCO: Let me give 23 you a specific example. I'm talking about a 24 larceny -- 25 ACTING PRESIDENT ROBACH: Senator

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(518) 371-8910 1 DeFrancisco, would you like Senator Balboni to 2 yield? 3 SENATOR DeFRANCISCO: I would 4 very much like for him to yield. 5 ACTING PRESIDENT ROBACH: Senator 6 Balboni, will you yield? 7 SENATOR BALBONI: Yes, I do. 8 SENATOR DeFRANCISCO: Senator 9 Balboni, let's talk about a larceny, not a 10 burglary. Because I think you will concede 11 that they're two different crimes. 12 SENATOR BALBONI: That's correct. 13 SENATOR DeFRANCISCO: All right. 14 So it's a felony larceny where you steal a 15 thousand dollars from somebody. And in 16 response, the person chases you to get their 17 thousand dollars back that you just stole, and 18 they beat the living daylights out of the 19 person and beat that person up to the point 20 where they're near death. 21 Does that person who's near death 22 as a result of the response by the person 23 committing -- by the person upon whom the 24 larceny was committed, is that person allowed 25 to sue under those circumstances?

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(518) 371-8910 1 SENATOR BALBONI: The answer is, 2 under the bill it depends. 3 As you know, a motion for summary 4 judgment would be made to the court. The 5 court would decide whether or not the actions 6 of the individual were culpable, that they 7 were culpable -- that they were culpable in 8 their own injuries. If they weren't culpable, 9 they could still sue. 10 SENATOR DeFRANCISCO: Well, may I 11 ask another question. 12 ACTING PRESIDENT ROBACH: Senator 13 Balboni, will you continue to yield? 14 SENATOR BALBONI: Yes, I do. 15 SENATOR DeFRANCISCO: Can you 16 explain, under my fact pattern, where the 17 person committing the larceny would not have 18 been considered culpable for his injuries? 19 SENATOR BALBONI: Sure. They're 20 away from the scene and the act is no 21 longer -- it's not in response to the larceny, 22 it's simply a simple assault. 23 The court would then decide it's a 24 separate act. And in fact, the individual who 25 committed the assault is going to be

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(518) 371-8910 1 responsible, and they can be sued and be held 2 criminally liable. 3 SENATOR DeFRANCISCO: May I ask 4 one last question. 5 ACTING PRESIDENT ROBACH: Senator 6 Balboni, do you continue to yield? 7 SENATOR BALBONI: Yes, I do. 8 ACTING PRESIDENT ROBACH: 9 Continue. 10 SENATOR DeFRANCISCO: Can you 11 conceive, Senator Balboni, of any felony where 12 the reaction by the individual who might harm 13 the felonious person, can you think of any 14 case where the reaction was such that it was 15 way in excess of the need, in that particular 16 crime, that would allow this person not to be 17 able to sue or to prevent the person from 18 suing? 19 SENATOR BALBONI: Mr. President, 20 through you, it is certainly the sponsor's 21 intent -- and, you know, there's a great Law 22 Review on this subject, by the way, that 23 explored a lot of different cases. 24 And by going through the case law, 25 what we found is that the courts have been

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(518) 371-8910 1 pretty specific on this and that they're able 2 to decide what is culpable negligence and what 3 is not -- or culpable activity and what is 4 not. 5 And I believe that under the 6 standards in this bill itself that it would 7 give courts the ability to say, you know what, 8 that's such outrageous behavior on the part of 9 the felon that they've got to close the door. 10 But also, if there is a question as 11 to whether or not the person who was the 12 victim of the crime went over the top, that 13 the court could come back and say, you know 14 what, that is a question for the jury, there 15 is a question of fact involved. And therefore 16 it survives the motion for summary judgment. 17 SENATOR DeFRANCISCO: Will the 18 Senator yield to another question, because 19 that raised another question for me. 20 SENATOR BALBONI: Yes, I would. 21 ACTING PRESIDENT ROBACH: Will 22 you continue to yield, Senator Balboni? 23 He continues to yield. 24 SENATOR DeFRANCISCO: Senator 25 Balboni, if the courts have already drawn

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(518) 371-8910 1 these lines in litigated cases so they could 2 determine on a case-by-case basis which is the 3 excessive culpability and which isn't, why the 4 need for the bill? 5 SENATOR BALBONI: Mr. President, 6 through you, in the cases that I did on behalf 7 of the County of Nassau, several of the judges 8 who presided over the trials said: You know, 9 this is so frustrating, here's a guy who's 10 convicted of a felony, shouldn't be in this 11 courtroom, but yet because there is a question 12 of fact, regardless of whether or not they 13 committed the crime -- in other words, they 14 wouldn't take, at the motion for summary 15 judgment point in the trial, the fact that 16 they were convicted of a crime and therefore 17 they were excluded from the courtroom. 18 We have not codified the holding of 19 the Court of Appeals in 1982 in Barker v. 20 Kallash. And that's really all we seek to do 21 here, is take the rule of law as expressed by 22 the Court of Appeals and apply it to statute. 23 And remember, this is not such a 24 huge departure for this state. Prior to 1975, 25 this was the law for all negligence actions.

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(518) 371-8910 1 It was contributory negligence. 2 So all we do is revisit that period 3 of our jurisprudence which contemplated that 4 if you committed the felony, that you can't be 5 allowed into the courtroom. 6 SENATOR DeFRANCISCO: Would he 7 yield to another question. 8 SENATOR BALBONI: Yes, I would. 9 ACTING PRESIDENT ROBACH: Senator 10 Balboni will yield. 11 SENATOR DeFRANCISCO: You're 12 using the rules when we had contributory 13 negligence to justify this particular statute? 14 Is that what you're saying? 15 SENATOR BALBONI: Yes. 16 SENATOR DeFRANCISCO: You're 17 talking about when there was contributory 18 negligence -- it could be 1 percent 19 contributory negligence -- you were barred 20 from the court? 21 SENATOR BALBONI: At that point 22 in time, that's correct. 23 SENATOR DeFRANCISCO: And that 24 was -- are there any jurisdictions, any states 25 in this nation that have that strict

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(518) 371-8910 1 contributory negligence any longer? 2 SENATOR BALBONI: Mr. President, 3 through you, I don't have the list here. But 4 when it comes to convicted felons, yes, there 5 are several states. 6 SENATOR DeFRANCISCO: Thank you, 7 Senator Balboni. I appreciate it. 8 On the bill. 9 ACTING PRESIDENT ROBACH: On the 10 bill, Senator DeFrancisco. 11 SENATOR DeFRANCISCO: Just very 12 briefly, my position is simply this. That if 13 you're a person that does a wrongful act that 14 is injured in the course of that wrongful act, 15 there's many different degrees of wrong. And 16 there's many different degrees -- each case is 17 a different case. 18 And that's the beauty of the court 19 system, that you plead your case and if a jury 20 believes that you're wrong or if, as a matter 21 of law, the court thinks that you should not 22 be allowed to go forward because of a failure 23 of proof, even giving your facts all credence, 24 that's the way the system should work. Not 25 barring somebody based upon a label.

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(518) 371-8910 1 And if there's a Court of Appeals 2 decision that is already out there, there's no 3 need to codify that Court of Appeals decision, 4 because that's the law of the State of 5 New York. 6 But that decision I believe gives 7 much more flexibility to the courts than does 8 this rule that is being submitted in the form 9 of a bill by Senator Balboni, so I'm going to 10 vote against this bill. 11 ACTING PRESIDENT ROBACH: Senator 12 Volker. 13 SENATOR VOLKER: Mr. President, I 14 just want to say very quickly I agree with 15 Senator Balboni, and I don't agree with 16 Senator DeFrancisco. 17 So I'm going to vote for the bill. 18 (Laughter.) 19 ACTING PRESIDENT ROBACH: Senator 20 Schneiderman. 21 SENATOR SCHNEIDERMAN: I just 22 hope that we'll be able to memorialize that 23 portion of debate from Senator Volker. And 24 that's what I'd like him to sign when he 25 retires, as my souvenir of his debates here.

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(518) 371-8910 1 That was brilliant and short. 2 Will the sponsor yield for a 3 question. 4 ACTING PRESIDENT ROBACH: Senator 5 Balboni, will you yield? 6 SENATOR BALBONI: Yes, I do. 7 ACTING PRESIDENT ROBACH: 8 Continue. 9 SENATOR SCHNEIDERMAN: In a 10 situation where someone committed a 11 white-collar crime and a third party, not the 12 victim of the crime, then injured the person, 13 the felon, would an action against that third 14 party also be barred under your bill? 15 SENATOR BALBONI: Maybe. Maybe. 16 SENATOR SCHNEIDERMAN: We can do 17 a specific hypothetical, but is there any -- 18 let me rephrase the question, Your Honor. 19 (Laughter.) 20 SENATOR BALBONI: Move to strike. 21 ACTING PRESIDENT ROBACH: Are you 22 asking Senator Balboni to yield? 23 SENATOR SCHNEIDERMAN: He's 24 moving to strike me, Mr. President. 25 (Laughter.)

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(518) 371-8910 1 SENATOR SCHNEIDERMAN: If the 2 sponsor would continue to yield. 3 ACTING PRESIDENT ROBACH: Senator 4 Balboni? 5 SENATOR BALBONI: Yes, I do. 6 SENATOR SCHNEIDERMAN: There is 7 no distinction in your legislation between an 8 effort to prevent a felon from recovering 9 against a victim of the felony or against a 10 third party that injures the felon in 11 connection with that felony; is that correct? 12 SENATOR BALBONI: As you'll see 13 by the language of the bill -- and since it's 14 so short, for everybody listening at home: 15 "In any action to recover damages for personal 16 injury, injury to property, or wrongful death, 17 any culpable conduct of the claimant or 18 decedent resulting in a felony conviction 19 shall be a complete bar to recovery in such 20 action." 21 So the language of the bill focuses 22 on what the perpetrator does, what the felon 23 does, not what the victim does, whether the 24 victim or a third party. It focuses on your 25 own actions, placing responsibility on the

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(518) 371-8910 1 culpable party. 2 SENATOR SCHNEIDERMAN: Through 3 you, Mr. President, if the sponsor would 4 continue to yield. 5 SENATOR BALBONI: I do. 6 ACTING PRESIDENT ROBACH: Senator 7 Balboni yields. 8 SENATOR SCHNEIDERMAN: So in the 9 situation such as the McCummings case, where 10 Mr. McCummings was involved in mugging someone 11 in the subway but then, after the crime was 12 over and he was running away unarmed, as the 13 court found, a police officer shot him 14 repeatedly in the back, would Mr. McCummings 15 be barred, under your statute, from bringing 16 an action against the police officer? 17 SENATOR BALBONI: Mr. President, 18 through you, let's add some color here. You 19 know, Senator Schneiderman is very good at 20 giving a -- color commentary. Color 21 commentary. 22 (Laughter.) 23 SENATOR SCHNEIDERMAN: He's 24 making one of my points about McCummings right 25 now.

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(518) 371-8910 1 SENATOR BALBONI: Senator 2 Schneiderman, as he is wont to do as an 3 effective trial attorney, kind of glosses over 4 the initial scene, and that is the actual 5 mugging. 6 Well, let me just -- if you hadn't 7 heard this before, allow me to tell you what 8 the victim told me. He was standing on an IRT 9 subway platform waiting for a train when 10 Bernard McCummings -- I can't think of enough 11 pejorative words to talk about Bernard 12 McCummings -- grabbed this guy, who was over 13 62 years old, threw him down on the subway 14 platform, bounced his head off of the cement 15 about seven or eight times, stole his money, 16 and, when the police arrived, fled. 17 Now, I don't know how many people 18 in this chamber are really that sympathetic to 19 Bernard McCummings. I mean, I'd love for him 20 to go away forever. He was preying upon a 21 senior citizen who was doing nothing but 22 standing waiting for a subway train. 23 But anyhow -- you know, and by the 24 way, when a police officer says to you "Stop," 25 you're supposed to stop. And so he even

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(518) 371-8910 1 assumed the risk of running away from a lawful 2 order of a police officer. 3 And, yes, he was shot and was 4 paralyzed. But then he comes and sues and 5 wins $4 million. That, to me, is wrong. 6 That's wrong. And why? Because you know 7 whose responsibility it was for the entire 8 incident? It wasn't the victim's. It wasn't 9 the police officer's. It was McCummings'. 10 He's the one who took the guy and threw him on 11 the ground. 12 And that's the point here. And 13 that's the message. You know, whether or not 14 Senator DeFrancisco's comments or concern 15 about the level of the felony -- it's a 16 felony. Whether it's a white-collar felony, 17 whether it's a larceny, it's a felony. 18 If we in this Legislature want to 19 make a policy where, when we enact a new 20 crime, we say it's a felony but it's not that 21 bad a felony, and so if you're involved in a 22 lawsuit, you can still sue -- if we want to do 23 that carve-out, that's one way to approach it. 24 I don't agree with that approach. 25 But just for a second, Senator

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(518) 371-8910 1 Schneiderman, I would ask you to consider not 2 so much the rights of the criminal but the 3 right of the victim. And I assure you I could 4 come up with scenarios where you might say, 5 you know, it doesn't really quite sound fair. 6 But if we're going to err on the 7 side -- and as you know, law is imperfect. If 8 we're going to err on any side, let's err on 9 the side of the victim. Let's err on the side 10 of the integrity of the judicial system. 11 Let's not err on the side of the guy who went 12 and attacked somebody. 13 SENATOR SCHNEIDERMAN: Thank you, 14 Mr. President. 15 I will speak now on the bill, in 16 deference to some of my colleagues. 17 ACTING PRESIDENT ROBACH: Senator 18 Schneiderman, on the bill. 19 SENATOR SCHNEIDERMAN: I think 20 that the problem we have here, very simply, is 21 that inflammatory rhetoric and hard cases 22 often make bad law, in court and in a 23 legislature. 24 What we have here is a situation in 25 which, in spite of Senator Balboni's artful

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(518) 371-8910 1 effort to evade my last question, this statute 2 would take a well-drafted, carefully 3 constructed rule of law that the Court of 4 Appeals established and replace it with an 5 incomprehensibly drafted, overbroad rule of 6 law to address a problem that, quite honestly, 7 I think is best settled in the courts. 8 Why do I say that? Very simply, 9 Senator Balboni I think conceded, without 10 saying so, that his statute doesn't just apply 11 to victims, it applies to third parties. 12 If there was a businessman 13 committing fraud, if there was a member of a 14 legislature in their office committing 15 fraud -- you know, shaking down a 16 contractor -- and then that contractor and 17 legislator walked to their front door and a 18 community activist said, "You guys are 19 committing fraud," and shot both of them and 20 paralyzed them for life, this bill would bar 21 any recovery against those people. 22 This is absolutely true. It's a 23 felon. Sotto voce. No, no, no. Let me read 24 the statute. And if the sponsor wants to 25 explain it later, he can.

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(518) 371-8910 1 The word "culpable" in this statute 2 does not have any connecting phrase to the 3 conduct of the tortfeasor, the person who 4 injures the felon victim. This says "any 5 culpable conduct of the claimant resulting in 6 a felony conviction." That means culpability 7 for the felony, not culpability related to the 8 tort. 9 This is drafted in a way that it is 10 clear that "culpable" is related to the term 11 "felony." There is no time frame here. There 12 is no statement that culpable conduct has 13 anything to do with the tort. 14 If someone steals a thousand 15 dollars, as our distinguished chairman of the 16 Judiciary Committee pointed out, and then a 17 third-party vigilante shoots the person down 18 and they're paralyzed for life, you're not 19 allowed to have a recovery against that 20 third-party vigilante. 21 Now, let's -- you mentioned police 22 brutality. I'm sorry, Senator Balboni, maybe 23 your experience in Nassau County is different 24 than ours. You stated that what happens in 25 police brutality cases is they get -- police

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(518) 371-8910 1 who abuse their powers get criminally 2 convicted. 3 Those of us in the City of New York 4 have the view that many police officers, in 5 fact, it's not so easy to get those 6 convictions; it's extremely difficult to get 7 those convictions. And the civil justice 8 system has an extremely important role in 9 ensuring proper conduct. 10 But let's think about what we're 11 saying here. We're saying that a rule of law, 12 as Senator DeFrancisco pointed out, that works 13 very well, that was established by the Court 14 of Appeals in the Barker v. Kallash case, 15 should be thrown out. That rule of law says 16 that virtually every case of the type that has 17 been discussed here would be -- in virtually 18 every case, the plaintiff, the felon, would be 19 barred from recovery. 20 This is the law that Senator 21 Balboni would replace: "The courts will not 22 entertain the suit if the plaintiff's conduct 23 constituted a serious violation of the law and 24 the injuries for which he seeks recovery were 25 the direct result of that violation." That is

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(518) 371-8910 1 the law. 2 What's missing in Senator Balboni's 3 statute is that he has no requirement that the 4 injuries were the direct result of the 5 violation. This statute doesn't make any 6 connection between the felony and the tort. 7 You can be walking outside your 8 office after committing a white-collar crime, 9 someone shoots you, no action. You can be 10 walking down the street maybe an hour, two 11 hours later. There's no time frame. There's 12 no nexus between the felony and the tort. 13 This is a poorly drafted statute 14 that has one purpose, and that's to take away 15 issues of fact from a judge and jury so that 16 they can determine is this felon really 17 someone who is so bad that they should be 18 paralyzed for life. 19 If someone is a mule and is 20 smuggling drugs, a poor person, and they show 21 up at Kennedy Airport and someone beats them 22 to within an inch of their life because he 23 says, you know, "I don't like you because 24 you're from South America and I hate people 25 from South America," that there's no tort

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(518) 371-8910 1 action against that person? That's what this 2 law would do. 3 And it would take away a rule of 4 law established by the Court of Appeals that 5 allows the court to dismiss the claims brought 6 by the felon if the plaintiff's conduct 7 constituted a serious violation of law and the 8 injuries for which he seeks recovery were the 9 direct result of that violation. 10 Let's not replace a reasonable rule 11 of law that works pretty well in this state -- 12 as Senator Balboni points out, law is not 13 perfect -- with a rule of law that has 14 absolutely no parameters and is unprecedented, 15 in my view, in the lack of any limitation on 16 the connection between the felony and the 17 tort. 18 "Any culpable conduct of the 19 claimant or decedent resulting in a felony 20 conviction shall be a complete bar to 21 recovery." As Senator Balboni pointed out in 22 last year's debate, the Court of Appeals 23 decision, which Senator DeFrancisco and I 24 think is a pretty good decision, needs to be 25 changed because -- this is what Senator

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(518) 371-8910 1 Balboni said last year -- "It doesn't allow 2 you to make motions for summary judgment at 3 the outset." 4 That's the only change that this 5 would make. This would bar anyone from making 6 their case to a court and letting the court 7 consider whether that felony should preclude 8 recovery. It would close the door to a whole 9 category of people, most of whom never recover 10 now under the current state of law, and it 11 would do so in a way that I really think 12 doesn't set enough parameters to limit these 13 sorts of actions. 14 Think about this before you do it. 15 Let's not take a rule of law that's working 16 pretty well and, because we can use 17 inflammatory rhetoric about how bad criminals 18 are, take away a system of civil justice that 19 helps restrain other citizens from committing 20 additional crimes. 21 I'm sorry, if someone is committing 22 a white-collar fraud and works out of their 23 office and then they're machine-gunned by a 24 third party, I don't think that they should be 25 precluded from going into court to seek

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(518) 371-8910 1 recovery. I think the rule that is 2 established by the Court of Appeals works 3 well. 4 And I would urge, Senator Balboni, 5 that eight is enough. If we ever see this 6 statute again, let's at least try and have 7 some language in here, some sort of connective 8 tissue between the phrase about culpable 9 conduct and the tort. After all, that's what 10 this is about. 11 This is an absolute bar to recovery 12 with no definition of the limits. Presumably, 13 this could refer to a bar of recovery before 14 the felony even takes place, because there's 15 no time frame involved. 16 Again, the Court of Appeals limits 17 the situation with carefully drafted language. 18 Let's not throw out a good decision and 19 replace it with a bad statute. 20 I think that there are 21 situations -- you know, there's an expression 22 where, you know, even hypochondriacs get sick. 23 Well, sometimes you can frame a guilty man. 24 There could be two wrongs in one fact 25 scenario. And we shouldn't allow people to

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(518) 371-8910 1 commit an independent wrong with no fear of 2 retribution just because there's another wrong 3 somehow involved in that fact situation. 4 I vote no, Mr. President, and urge 5 everyone to vote no. 6 ACTING PRESIDENT ROBACH: Senator 7 LaValle. 8 SENATOR LaVALLE: I think, Mr. 9 President, we've seen a very spirited debate. 10 Senator Balboni has presented his case here; 11 Senator DeFrancisco and Senator Schneiderman 12 retorted. But I honestly believe that Senator 13 Balboni has made his case for why we should 14 vote for this legislation. 15 I know as legislators and those of 16 us who are attorneys want to make sure that 17 people under our laws, our Constitution, have 18 their day in court. But if you look at -- and 19 I remember the subway case. I remember people 20 talking about how it was out of the realm of 21 common sense that someone who committed a 22 crime, a mugging, battering someone, who then 23 had the chutzpah to bring a suit against 24 someone. They were a criminal. 25 And, you know, as we walk around

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(518) 371-8910 1 our Senate districts, we hear things from the 2 constituency that should inculcate in our 3 law-making some common sense. Some common 4 sense. 5 But in this case we also, as a 6 matter of public policy, say that a criminal 7 should not gain from the fruits of the crime. 8 So here we're going outside and 9 saying, Well, it's all right to burglarize 10 someone's home, beat someone up and then, if 11 you happen to injure yourself, it's okay to 12 gain under the tort system. It just doesn't 13 make sense. It is not common sense. 14 Now, Senator Schneiderman, you're 15 making points as an attorney. There may be a 16 comma left, there are things -- there's not a 17 nexus. Senator Balboni has been working on 18 this for eight years. And so in the eight 19 years, it would seem to me that colleagues 20 could come together and make, as both 21 attorneys and colleagues, some suggestions 22 that would bring this together. 23 But for me, I have to side with 24 Senator Balboni, because I think common sense 25 really has to prevail in the law-making

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(518) 371-8910 1 process. And I hear this over and over again. 2 So when this comes for a vote, I am going to 3 vote in the affirmative. 4 ACTING PRESIDENT ROBACH: Are any 5 other Senators wishing to be heard? 6 Debate is closed. 7 The Secretary will ring the bell. 8 Read the last section. 9 THE SECRETARY: Section 4. This 10 act shall take effect immediately. 11 ACTING PRESIDENT ROBACH: Call 12 the roll. 13 (The Secretary called the roll.) 14 ACTING PRESIDENT ROBACH: The 15 Secretary will announce the results. 16 THE SECRETARY: Those recorded in 17 the negative on Calendar Number 212 are 18 Senators Andrews, Brown, Connor, DeFrancisco, 19 Dilan, Duane, Gonzalez, Hassell-Thompson, 20 L. Krueger, Montgomery, Parker, Paterson, 21 Schneiderman, Serrano, A. Smith and Stavisky. 22 Ayes, 45. Nays, 16. 23 ACTING PRESIDENT ROBACH: The 24 bill is passed. 25 Senator Skelos, that completes the

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(518) 371-8910 1 controversial reading of the calendar. 2 SENATOR SKELOS: Thank you, Mr. 3 President. If we could just stand at ease. 4 ACTING PRESIDENT ROBACH: The 5 Senate will stand at ease. 6 (Whereupon, the Senate stood at 7 ease at 4:23 p.m.) 8 (Whereupon, the Senate reconvened 9 at 4:54 p.m.) 10 SENATOR SKELOS: Mr. President. 11 ACTING PRESIDENT ROBACH: Senator 12 Skelos. 13 SENATOR SKELOS: Please recognize 14 Senator Krueger. 15 ACTING PRESIDENT ROBACH: Senator 16 Krueger. 17 SENATOR LIZ KRUEGER: Thank you, 18 Mr. President. I believe I have a motion at 19 the desk. And I'd like to waive reading and 20 speak on it at this time. 21 ACTING PRESIDENT ROBACH: Senator 22 Krueger, on the motion. 23 SENATOR LIZ KRUEGER: Thank you, 24 Mr. President. 25 I'm hoping my colleagues will be

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(518) 371-8910 1 joining me as I speak. 2 Today we are bringing a motion to 3 petition from the Committee on Housing 4 Construction and Community Development, Senate 5 Bill 2735, an act affecting the Local 6 Emergency Housing Rent Control Act in relation 7 to New York City housing policy. 8 In fact, what we are asking through 9 this bill is repeal of the Urstadt Law and 10 providing the City of New York with home-rule 11 authority over its own housing policies. 12 Why should we care about housing in 13 New York City? Why should we choose, in 14 Albany, to reverse a law that will give local 15 government in New York City the power to make 16 its own housing policies? 17 It's because we're in a housing 18 crisis in the City of New York, a set of 19 issues that I would argue most people 20 throughout the rest of the state cannot even 21 comprehend, and perhaps wouldn't want local 22 responsibility for, but our city is asking for 23 it. 24 Today the City Council speaker, 25 Gifford Miller, and many members of the City

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(518) 371-8910 1 Council held a press conference calling for 2 the repeal of Urstadt and committing to 3 passing a home-rule message. I believe 4 that -- or I hope that New York City Mayor 5 Michael Bloomberg will follow through with his 6 statements that he supports repeal of Urstadt 7 and sign this home-rule message as well. 8 In the City of New York a report is 9 coming out, I believe today, showing that an 10 average of 57 percent of the income of 11 New Yorkers is being spent trying to pay their 12 rent, that approximately 200,000 low-income 13 households in New York City are paying more 14 than 65 percent of their income just to keep a 15 roof over their heads, which is more than 16 double what the federal government suggests 17 the maximum rent burden should be, of 18 30 percent. 19 I spent 20 years in New York City 20 as an advocate on behalf of people who could 21 not find the income to pay their rent or buy 22 food for their families or ended up in the 23 horrendous situation of using their food 24 dollars to pay rent and turning to emergency 25 food programs or using their rent money to pay

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(518) 371-8910 1 for food and health care and losing their 2 homes. I ran eviction prevention programs. I 3 ran emergency food programs. I talked to 4 people every day for decades about the crises 5 that they were facing in their lives. 6 All the time, Albany had power and 7 control over New York City housing policy, and 8 we failed to take the actions we needed to. 9 We failed to come up with models for expanding 10 affordable housing. We failed to provide 11 New York City the tools to make its own 12 decisions over its own housing destiny. 13 New York City should have that 14 power to make its own decisions on local 15 issues such as housing and housing laws and 16 housing regulations. And in fact, they had 17 that power until a law called the Urstadt Law 18 was passed under Nelson Rockefeller, a law 19 that took the power away from New York City 20 elected officials and moved it to Albany. 21 When the Urstadt bill was passed in 22 1971, it was a controversial bill in this 23 house and in the Assembly. And in fact, it 24 was a package of other housing laws that were 25 so controversial that several of them were

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(518) 371-8910 1 reversed long since then. And yet -- or long 2 since now. And yet today we are still living 3 with the Urstadt Law. 4 If we repeal the Urstadt Law, all 5 it means is that we, the State Legislature, 6 say the City of New York, the only city with 7 over a million people in the state of New 8 York -- hence, this law would only apply to 9 New York City -- that New York City would have 10 returned to itself the critical 11 decision-making powers over affordable housing 12 and options for what they would choose to do. 13 It would not be a magic pill to 14 solve the problems of affordable housing; it 15 would simply give the City Council and the 16 Mayor the power to make their own decisions 17 and have their own debates about how best to 18 address the question of expanded need for 19 affordable housing. 20 In the 33 years, 34 years since the 21 Urstadt Law has prohibited New York City from 22 enacting its own local policies on housing, we 23 have watched a serious housing problem become 24 an epidemic housing crisis. We are in a 25 situation today where the rental vacancy rate

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(518) 371-8910 1 is under 3 percent and, for rents below $500 a 2 month, basically a zero vacancy rate. 3 We are in situation in New York 4 City with the highest number of homeless 5 people since the Depression, with ever-growing 6 demands on our emergency food providers 7 because people have used up all of their 8 income for rent. 9 We are in a situation in New York 10 City where not just the lowest-income 11 New Yorkers face housing crises but our 12 working people in New York, our middle class, 13 are losing their homes. Firefighters, nurses, 14 teachers, police officers, construction 15 workers, senior citizens, artists can no 16 longer afford to live in the City of New York. 17 I explain to the businesses in my 18 community why they have to care about 19 affordable housing, and they agree. They 20 recognize that if anyone who they hope will 21 work for them can't afford to live in New York 22 City, they have no future in business. 23 And when I explain to them what a 24 huge percentage of the annual income of our 25 citizens is going towards rent, they respond

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(518) 371-8910 1 to me: If all their money goes to rent, how 2 will they be able to afford whatever I'm 3 trying to sell them? There will be no money 4 left. 5 So I ask for something very simple 6 from this Legislature. I ask for something 7 that in fact historically has been a 8 Republican Party hallmark, recognition of the 9 importance of home rule, of the rights of 10 localities to make their own decisions about 11 land-use issues and local policies. 12 New York City wants home rule. 13 They want to make their own decisions about 14 housing policy. I would argue many of my 15 colleagues here question why they are making 16 those decisions for New York City's issues of 17 affordable housing. 18 So I hope that my colleagues will 19 join me today in supporting my bill, which 20 would repeal the Urstadt Law. And I hope that 21 when we get a home-rule message from the City 22 of New York, which I expect before we leave 23 session this year, that my colleagues on both 24 sides of the aisle will respect the right of 25 New York City government and the 8.5 million

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(518) 371-8910 1 people who live in the City of New York to 2 make their own decisions about housing 3 policies in the five boroughs. 4 If I were to say I wanted the power 5 to make the housing decisions for Senator 6 Johnson's district or Senator Little's 7 district or Senator Marcellino's district, I 8 can imagine the hue and cry in this room about 9 my right to make decisions about your local 10 land-use policies. 11 And I hope that my colleagues on 12 both sides of the aisle will recognize and 13 respect a parallel argument for the City of 14 New York to determine its own housing 15 policies, its own destiny for its future and 16 for the future of the New Yorkers who want to 17 remain living in the City of New York, who 18 want to work in the City of New York, who want 19 to continue to be taxpayers in the state of 20 New York, tax money that disproportionately 21 comes to us here in Albany. 22 And so I urge you all to join me in 23 taking a vote for the repeal of Urstadt and 24 for the recognition and respect of the 25 home-rule request.

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(518) 371-8910 1 Thank you, Mr. President. 2 ACTING PRESIDENT ROBACH: Thank 3 you, Senator Krueger. 4 All those Senators -- I'm sorry, 5 Senator Diaz, the debate is closed. 6 All those Senators in favor of the 7 petition out of committee please signify by 8 raising their hands. 9 THE SECRETARY: Those in 10 agreement are Senators Andrews, Breslin, 11 Brown, Diaz, Dilan, Duane, Gonzalez, 12 Hassell-Thompson, L. Krueger, Montgomery, 13 Onorato, Parker, Paterson, Sabini, Sampson, 14 Savino, Schneiderman, Serrano, A. Smith, 15 M. Smith, and Stavisky. 16 ACTING PRESIDENT ROBACH: The 17 petition is not agreed to. 18 Senator Skelos. 19 SENATOR DIAZ: I need a point of 20 clarification on something. I need a point of 21 clarification. 22 ACTING PRESIDENT ROBACH: Senator 23 Diaz, do you have a point of order? 24 SENATOR DIAZ: Yes, point of 25 order, yes.

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(518) 371-8910 1 My question is, okay, we're 2 supposed to be voting on something. We have 3 Senators present here, and I see all those 4 chairs empty. And we're supposed to have 5 everyone voting. Everyone that's supposed to 6 be voting, they're supposed to be in their 7 seats. 8 My question is, how come the motion 9 is defeated when nobody is voting? 10 ACTING PRESIDENT ROBACH: Senator 11 Diaz, because this is a canvass of agreement 12 on those who vote yes. 13 SENATOR DIAZ: And another 14 question, Mr. President. How come I wasn't 15 allowed to speak on the motion? Please. 16 Please. 17 ACTING PRESIDENT ROBACH: On 18 motions, the rules are that the sponsor of the 19 petition can speak for 10 minutes, no one 20 else. 21 No slight to you, Senator. Those 22 are the rules. 23 Senator Skelos. 24 SENATOR SKELOS: I believe the 25 canvass was defeated. And the Senate will

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(518) 371-8910 1 stand at ease now. 2 And there will be an immediate 3 conference of the Majority in the Majority 4 Conference Room. 5 ACTING PRESIDENT ROBACH: The 6 Senate will stand at ease. 7 There will be an immediate 8 conference for the Majority. 9 Senator Gonzalez. 10 SENATOR GONZALEZ: There will be 11 an immediate meeting of the Minority 12 Conference in Room 314. 13 ACTING PRESIDENT ROBACH: There 14 will be a conference of the Minority in 15 Room 314 as well. 16 The Senate will stand at ease. 17 (Whereupon, the Senate stood at 18 ease at 5:06 p.m.) 19 (Whereupon, the Senate reconvened 20 at 8:50 p.m.) 21 ACTING PRESIDENT FUSCHILLO: 22 Senator Balboni. 23 SENATOR BALBONI: Mr. President, 24 I would like to call an immediate meeting of 25 the Senate Finance Committee in the Majority

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(518) 371-8910 1 Conference Room at 8:55, in five minutes. 2 ACTING PRESIDENT FUSCHILLO: 3 There will be a meeting of the Finance 4 Committee in the Majority Conference Room at 5 8:55. 6 Thank you, Senator Balboni. 7 The Senate will stand at ease. 8 (Whereupon, the Senate stood at 9 ease at 8:51 p.m.) 10 (Whereupon, the Senate reconvened 11 at 9:14 p.m.) 12 ACTING PRESIDENT BALBONI: 13 Senator Skelos. 14 SENATOR SKELOS: Mr. President, 15 if we could return to reports of standing 16 committees, I believe there's a report of the 17 Finance Committee at the desk. I ask that it 18 be read at this time. 19 ACTING PRESIDENT BALBONI: 20 Reports of standing committees. 21 The Secretary will read. 22 THE SECRETARY: Senator Johnson, 23 from the Committee on Finance, reports the 24 following bill direct to third reading: 25 Senate Print 4270A, Senate Budget

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(518) 371-8910 1 Bill, an act to amend a chapter of the Laws of 2 2005. 3 ACTING PRESIDENT BALBONI: 4 Senator Skelos. 5 SENATOR SKELOS: Mr. President, I 6 ask at this time if we could take up the 7 report of the Finance Committee, 8 noncontroversial. 9 ACTING PRESIDENT BALBONI: The 10 bill is reported directly to the floor without 11 objection. 12 The Secretary will read. 13 THE SECRETARY: Calendar Number 14 560, Senate Budget Bill, Senate Print 4270A, 15 an act to amend a chapter of the Laws of 2005. 16 ACTING PRESIDENT BALBONI: 17 Senator Skelos. 18 SENATOR SKELOS: Mr. President, 19 is there a message of necessity at the desk? 20 ACTING PRESIDENT BALBONI: Yes, 21 there is. 22 SENATOR SKELOS: Move to accept 23 the message. 24 ACTING PRESIDENT BALBONI: All in 25 favor signify by saying aye.

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(518) 371-8910 1 (Response of "Aye.") 2 ACTING PRESIDENT BALBONI: 3 Opposed, nay. 4 (No response.) 5 ACTING PRESIDENT BALBONI: The 6 message is accepted. 7 Read the last section. 8 THE SECRETARY: Section 5. This 9 act shall take effect immediately. 10 ACTING PRESIDENT BALBONI: Call 11 the roll. 12 (The Secretary called the roll.) 13 ACTING PRESIDENT BALBONI: 14 Announce the results. 15 Senator Schneiderman, to explain 16 your vote. 17 SENATOR SCHNEIDERMAN: Thank you, 18 Mr. President. 19 This has been a remarkable process 20 this year for getting the budget through. And 21 I have to say that the -- I've heard Senator 22 Bruno's comments earlier today, not happy 23 about us being here tonight, not happy about 24 doing it with a message of necessity. 25 But I have to say that on the

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(518) 371-8910 1 substance of this, in my view, most of what 2 the Legislature tried to do in the budget 3 bills that we passed earlier still seems to be 4 in here. 5 There are some things that I have 6 issues with. I am concerned still about a 7 lack of accountability in our state's economic 8 development programs. I think that is an 9 ongoing concern. I am still of the belief 10 that we have a long way to go to stabilize and 11 fund adequately our health care system for all 12 the people of this state. 13 But in the scheme of things, I 14 think the Legislature has had a very powerful 15 impact on the Governor's proposals and that 16 the bills we're doing tonight reflect that. 17 So I will be voting in support of this 18 legislation. 19 Thank you, Mr. President. 20 ACTING PRESIDENT BALBONI: 21 Senator Schneiderman will be recorded in the 22 affirmative. 23 Senator Liz Krueger, to explain her 24 vote. 25 SENATOR LIZ KRUEGER: Thank you,

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(518) 371-8910 1 Mr. President. 2 I partially agree with my colleague 3 Senator Schneiderman. We have accomplished 4 some of our goals here. We have addressed 5 some of the issues we did not in the original 6 budget. 7 I just want to highlight a few 8 additional concerns. Again, for the record, 9 the tax cuts that we are making are badly 10 designed, targeted to those least in need of 11 the tax cuts, particularly the single sales 12 tax factor proposal. 13 While there have been some 14 revisions and, quote, unquote, reforms made to 15 Empire Zones, again, I believe the State of 16 New York makes a serious mistake expanding a 17 fatally flawed program for an extended period 18 of time without really asking the hard 19 questions of why are we doing this at all. 20 I want to reemphasize that we put 21 in, again, a hundred million dollars, 22 approximately, for the SURGE [sic] program, 23 which is a memorandum of understanding at this 24 point, where none of us understand what that 25 memo might do or where that money might

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(518) 371-8910 1 actually be spent. 2 We put the $250 million back of 3 Governor Pataki's for a nonexplainable new 4 slush fund for, quote, unquote, 5 high-technology businesses. We call 6 everything a high-tech business claim it's 7 good to give them money. I don't think 8 there's evidence of that. 9 We do seem to have put back some of 10 the lined-out programs in the TANF block grant 11 monies, which I know will make individual 12 programs very happy at this moment in history. 13 But again, the entire idea of doing 14 a flexible funding block grant with TANF money 15 I believe was a very flawed proposal by the 16 Governor. I'm sorry that this Legislature, 17 both houses, ultimately have agreed at least 18 part of it. 19 So while I still would argue this 20 is not a good budget from my perspective, the 21 fact that we are moving forward tonight with 22 some of the improvements, some of the 23 negotiated agreements between both houses and 24 Governor, leaves me in the position where I 25 will vote for the bill but, again, want to

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(518) 371-8910 1 highlight for ourselves we still have so much 2 work to do and we still have so many issues we 3 don't discuss in this budget that we just pass 4 on. And we pass on the costs to the voters in 5 our districts, and we owe them better. 6 So despite my voting yes for this, 7 I still have very serious problems with it. 8 Thank you, Mr. President. 9 ACTING PRESIDENT BALBONI: 10 Senator Liz Krueger will be recorded in the 11 affirmative. 12 Announce the results. 13 THE SECRETARY: Ayes, 61. 14 ACTING PRESIDENT BALBONI: The 15 bill is passed. 16 Senator Skelos. 17 SENATOR SKELOS: Mr. President, 18 if we could stand at ease. 19 ACTING PRESIDENT BALBONI: The 20 house will stand at ease. 21 (Whereupon, the Senate stood at 22 ease at 9:19 p.m.) 23 (Whereupon, the Senate reconvened 24 at 9:33 p.m.) 25 ACTING PRESIDENT BALBONI:

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(518) 371-8910 1 Senator Skelos. 2 SENATOR SKELOS: Mr. President, 3 we're in the process of closing down and 4 printing of a bill. Unfortunately, we 5 probably will not be able to start up again 6 until about 10:30. 7 So if members wish to stay here and 8 chat, that's fine. If they wish to go back to 9 their offices and be productive, that's fine. 10 Whatever you wish to do. But please be back 11 at 10:30. 12 ACTING PRESIDENT BALBONI: The 13 house will stand in recess until 10:30. 14 (Whereupon, the Senate stood at 15 ease at 9:34 p.m.) 16 ACTING PRESIDENT FUSCHILLO: 17 Senator Skelos. 18 SENATOR SKELOS: Mr. President, 19 there will be an immediate meeting of the 20 Finance Committee in the Majority Conference 21 Room. 22 ACTING PRESIDENT FUSCHILLO: 23 There will be an immediate meeting of the 24 Finance Committee in the Majority Conference 25 Room.

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(518) 371-8910 1 The Senate will continue to stand 2 at ease. 3 (Whereupon, the Senate reconvened 4 at 10:48 p.m.) 5 ACTING PRESIDENT BALBONI: 6 Senator Skelos. 7 SENATOR SKELOS: Mr. President, 8 if we could return to reports of standing 9 committees, I believe there's a report of the 10 Finance Committee at the desk. 11 ACTING PRESIDENT BALBONI: The 12 Secretary will read. 13 THE SECRETARY: Senator Johnson, 14 from the Committee on Finance, reports the 15 following bill direct to third reading: 16 Senate Print 4271, Senate Budget 17 Bill, an act to amend a chapter of the Laws of 18 2005. 19 ACTING PRESIDENT BALBONI: The 20 bill is reported directly to third reading. 21 Senator Skelos. 22 SENATOR SKELOS: If we could take 23 up Calendar Number 561. 24 ACTING PRESIDENT BALBONI: The 25 Secretary will read.

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(518) 371-8910 1 THE SECRETARY: Calendar Number 2 561, Senate Budget Bill, Senate Print 4271, an 3 act to amend a chapter of the Laws of 2005. 4 ACTING PRESIDENT BALBONI: 5 Senator Skelos. 6 SENATOR SKELOS: Is there a 7 message of necessity at the desk? 8 ACTING PRESIDENT BALBONI: There 9 is a message. 10 SENATOR SKELOS: Move to accept 11 the message. 12 ACTING PRESIDENT BALBONI: All in 13 favor of accepting the message please signify 14 by saying aye. 15 (Response of "Aye.") 16 ACTING PRESIDENT BALBONI: All 17 those negative. 18 (No response.) 19 ACTING PRESIDENT BALBONI: The 20 message is accepted. 21 Read the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 24 ACTING PRESIDENT BALBONI: Call 25 the roll.

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(518) 371-8910 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes, 61. 3 ACTING PRESIDENT BALBONI: The 4 bill is passed. 5 Senator Skelos. 6 SENATOR SKELOS: Is there any 7 housekeeping at the desk? 8 ACTING PRESIDENT BALBONI: There 9 is no housekeeping at the desk, Senator. 10 SENATOR SKELOS: Mr. President, 11 there being no further business to -- 12 ACTING PRESIDENT BALBONI: Come 13 on, this is important stuff. 14 SENATOR SKELOS: Mr. President, 15 just to remind you that you're supposed to 16 keep your comments short when you're 17 presiding. 18 (Laughter.) 19 SENATOR SCHNEIDERMAN: And 20 otherwise. 21 SENATOR SKELOS: There being no 22 further business to come before the Senate, I 23 move we stand adjourned until Wednesday, 24 April 13th, at 11:00 a.m. 25 ACTING PRESIDENT BALBONI: The

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(518) 371-8910 1 house stands adjourned until Wednesday, 2 April 13th, at 11:00 a.m. 3 (Whereupon, at 10:51 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

Tuesday, April 12, 2005

Transcript

Bills on the floor