Tuesday, February 7, 2006

1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 February 7, 2006 11 3:16 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, February 6, the Senate met pursuant to 18 adjournment. The Journal of Sunday, 19 February 5, was read and approved. On motion, 20 Senate adjourned. 21 THE PRESIDENT: Without 22 objection, the Journal stands approved as 23 read. 24 Presentation of petitions. 25 Messages from the Assembly.

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(518) 371-8910 1 Messages from the Governor. 2 Reports of standing committees. 3 Reports of select committees. 4 Communications and reports from 5 state officers. 6 Reports of standing committees. 7 The Secretary 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 Lawrence V. Cullen, of Forest Hills. 13 THE PRESIDENT: Senator 14 DeFrancisco. 15 SENATOR DeFRANCISCO: Madam 16 President, I'm proud to rise to move the 17 nomination of Lawrence V. Cullen, of Forest 18 Hills, as judge of the Court of Claims. It's 19 an excellent appointment by Governor Pataki. 20 His background and the 21 qualifications were fully reviewed, and he was 22 found to be well qualified. And earlier this 23 day, the Senate Judiciary Committee 24 unanimously recommended his nomination to the 25 full Senate.

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(518) 371-8910 1 I would request that you would 2 please acknowledge Senator Maltese to second 3 this motion. 4 THE PRESIDENT: Senator Maltese. 5 SENATOR MALTESE: Yes, I first 6 acknowledge a great debt of gratitude to 7 Governor Pataki for this appointment. 8 The appointment to the Court of 9 Claims of Lawrence V. Cullen follows in the 10 tradition of bipartisan appointments and 11 enhances the judiciary in Queens County, as in 12 other portions of this state. 13 This particular appointment, Judge 14 Cullen, has the advantage of appointing 15 someone to the bench who has just recently 16 served a too-brief term filling in as a 17 justice of the Supreme Court in Queens County. 18 His credentials are indeed very 19 impressive. But in addition to impressive 20 credentials at the bench and bar, he in 21 addition is a disabled vet, a veteran of the 22 United States Marine Corps. 23 And I'd like to, if briefly, just 24 enumerate that he has won the following 25 decorations from our great country: Combat

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(518) 371-8910 1 Duty, Republic of Vietnam, Bronze Star with 2 Device, Air Medal, Purple Heart, Vietnam 3 Campaign Medal with Good Conduct Medal, 4 Vietnam Service Medal, National Defense Medal, 5 Vietnam Cross of Gallantry with Palm, 6 Presidential Unit Citation, Navy Unit 7 Citation, Meritorious Unit Citation, New York 8 State Conspicuous Service Cross. 9 Most of all, he exemplifies what is 10 good and great in our country. Coming from a 11 family of six children, with his parents dying 12 at a very young age, he made his own way in 13 the world and has achieved a great deal so 14 that he today is before us to be confirmed as 15 a Court of Claims judge for the State of 16 New York. 17 He has many, many honors and many 18 professional memberships and accolades. He 19 was created a Knight of the Holy Sepulchre of 20 Jerusalem in 1991 by His Holiness Pope Paul 21 II, elevated to Commander and Knight Commander 22 and Knight Grand Cross. 23 There are many other achievements 24 that he has accomplished in his life. He is 25 here today with his wife, Margaret, his

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(518) 371-8910 1 daughter, Anya, his son, Patrick. And a good 2 and close friend and advisor, a mentor, Judge 3 Al Lerner is here with him today. 4 Madam President, I am very pleased 5 today to second the nomination of Larry Cullen 6 for a judge of the Court of Claims. 7 THE PRESIDENT: Senator Malcolm 8 Smith. 9 SENATOR MALCOLM SMITH: Thank you 10 very much, Madam President. I also rise to 11 second the nomination of Lawrence Cullen. 12 You know, Senator DeFrancisco made 13 the statement earlier in our committee, and 14 it's very true, there's very few sole 15 practitioners who actually rise to or ascend 16 to the bench to the point of being on the 17 Court of Claims. 18 Lawrence Cullen, who as a sole 19 practitioner distinguished himself in the 20 borough of Queens in the City of New York, in 21 addition, the state of New York now knows the 22 benefit of Lawrence Cullen and his intellect 23 with regard to the bench. 24 He and his wife have two children, 25 their daughter, Anya, and their son, Patrick.

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(518) 371-8910 1 And most importantly, and I think 2 Senator Maltese talked about it, Lawrence 3 Cullen actually served his country as well. 4 Amongst many of his accomplishments, he also 5 has a Purple Heart, which I know many people 6 hold dear to them. 7 Lawrence, I know you're up there -- 8 there you are. He's up there. 9 A very honorable individual, and I 10 think the Governor deserves the type of praise 11 for this particular person he put on the 12 bench. It's not often you get somebody who's 13 just an everyday person, and that's the way 14 Judge Cullen is -- just an ordinary guy, 15 doesn't have any chips on his shoulders, not 16 pretentious, somebody you can approach at all 17 times. And I think the Court of Claims is 18 going to do well by having him on the bench. 19 It's my pleasure to second his 20 nomination. 21 THE PRESIDENT: Senator Ada 22 Smith. 23 SENATOR ADA SMITH: Thank you 24 very much, Madam President. I too would like 25 to second the nomination of Lawrence V.

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(518) 371-8910 1 Cullen. 2 And I'm very proud today and I'm 3 thankful to the Governor for both of these 4 nominees, because I have the privilege of 5 representing a part of Forest Hills and a part 6 of Howard Beach, along with Senator Maltese. 7 But I'd like to note that Lawrence 8 Cullen was a product of the CUNY School of 9 Law. And most of us from the city hold CUNY 10 very dear to us. And he's very dear to 11 Senator Malcolm Smith because he went to 12 Fordham. 13 But he has truly practiced in what 14 we consider the vineyards. He has proven 15 himself over and over again. And he is truly 16 deserving of this honor, and we wish him well. 17 Thank you. 18 THE PRESIDENT: The question now 19 is on the nomination of Lawrence V. Cullen, of 20 Forest Hills, as a judge of the Court of 21 Claims. All in favor please signify by saying 22 aye. 23 (Response of "Aye.") 24 THE PRESIDENT: Opposed, nay. 25 (No response.)

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(518) 371-8910 1 THE PRESIDENT: The nominee is 2 hereby confirmed. 3 Congratulations, Judge Cullen. And 4 best wishes for continued success. 5 (Applause.) 6 THE PRESIDENT: The Secretary 7 will continue to read. 8 THE SECRETARY: As a judge of the 9 Court of Claims, Cassandra M. Mullen, of 10 Howard Beach. 11 THE PRESIDENT: Senator 12 DeFrancisco. 13 SENATOR DeFRANCISCO: I'm again 14 proud to rise to move the nomination of 15 Cassandra M. Mullen for Court of Claims, 16 another excellent choice by Governor Pataki. 17 Her qualifications have been 18 thoroughly reviewed. She met this morning 19 before the Senate Judiciary Committee, was 20 found to be well qualified, and her nomination 21 was also unanimously referred to the full 22 Senate for a vote. 23 I again would like to request that 24 you would please recognize Senator Maltese for 25 a second.

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(518) 371-8910 1 THE PRESIDENT: Senator Maltese. 2 SENATOR MALTESE: Yes, Madam 3 President, I again wish to express sincere 4 appreciation to Governor George Pataki for 5 this excellent appointment. 6 The fact that both appointments 7 were made in one day reflect on a true 8 bipartisan spirit for the Judiciary and bodes 9 well for the continued health and vital of our 10 judiciary in New York State. 11 Cassandra Mullen is here today as a 12 result of a long and distinguished record of 13 achievement as a trial attorney. Her 14 background includes many, many honors -- at 15 law school, at St. Johns Law School, and 16 receiving a scholarship to law school -- but, 17 in addition, many, many medals and 18 achievements: Best Speaker in the Nation, 19 Irving Kaufman Securities Law Moot 20 Competition; winner, Reverend Tinnelly Moot 21 Court Award; winner, Bosch Award, First Place 22 Speaker; winner, 1986 scholarship award 23 granted by the Defense Association; Excellence 24 in Appellate Advocacy; Who's Who in American 25 Law Schools.

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(518) 371-8910 1 She has just -- it would take an 2 extended period of time to indicate some of 3 the positions that she has performed in in 4 great distinction. But they include the 5 Nassau County District Attorney's Office, 6 where she served two years; Legal Aid of 7 Nassau County, where she served three years; 8 New York State Department of Law, where she 9 served two years; Travelers Insurance Company 10 for five years; the American International 11 Group for one year; the New York State 12 Attorney General's office for two years; a 13 private firm, Valenti & Mullen; Countrywide 14 Insurance Company, where she served for a 15 year; and just recently where she served the 16 City of Yonkers as corporation counsel and 17 served with great distinction. 18 She received the approval and 19 approbation of not only myself but Senator 20 Nicholas Spano. I wish to also indicate that 21 Senator Padavan and myself originally had 22 recommended her to the Governor, and we're 23 very, very pleased that he saw fit to appoint 24 her to this distinguished court. 25 She is accompanied today by her

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(518) 371-8910 1 daughter, Victoria Mansfield; her mother, 2 Eleanor Mullen; her brother, Jack Mullen; her 3 sister-in-law, Sandra Hirsch; aunt, Mary 4 Gramuglia; cousin, John Gramuglia; and her 5 daughter's friends, Kerri Ann Gayle and 6 Jessica Hamel. 7 Mr. President, I am very pleased 8 and honored to submit today and second the 9 nomination of Cassandra Mullen as a judge of 10 the New York State Court of Claims. 11 ACTING PRESIDENT MEIER: Senator 12 Connor. 13 SENATOR CONNOR: Thank you, Mr. 14 President. 15 I had the distinct pleasure to meet 16 Cassandra Mullen five or six months ago. And, 17 you know, I've been a lawyer for -- I'm not 18 even going to say -- over 35 years. And you 19 know, you see other lawyers, you meet other 20 lawyers, you engage, you work with other 21 lawyers. But I've all found the best way or 22 the way that you most realize the quality of a 23 lawyer is when the lawyer is your adversary. 24 And I met Ms. Mullen in a case -- we're 25 actually waiting for a decision. She withdrew

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(518) 371-8910 1 two weeks ago as opposing counsel because of 2 the Governor's nomination. 3 But I have to say, having her as an 4 advocate, at first I -- after our first 5 encounter in court, I said to my client, 6 "They've got a real lawyer on the other side. 7 She's really smart and she's really good and 8 knows what she's doing." Because you learn 9 that when you're standing next to someone in 10 court and they're your adversary. 11 Secondly, I learned as the case 12 progressed that she's a pleasant person to 13 deal with, that she is a courteous lawyer. 14 And those of us who have been 15 lawyers for a long time remember certainly a 16 time when that was the measure of the bar, the 17 kind of professional courtesies we afforded 18 one another. Hopefully -- and from various 19 benches, the lack of that in some younger 20 lawyers has been decried recently in the last 21 couple of years. 22 But I can tell you, Mr. President, 23 that Cassandra Mullen is a professional, she's 24 smart, she's a vigorous advocate -- I want to 25 assure her client, she's a vigorous advocate

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(518) 371-8910 1 for her client's cause, and she is a pleasure 2 to work with in terms of the kind of 3 courtesies that she extends to fellow members 4 of the bar and to adversaries. 5 So I am delighted to vote in favor 6 of this nominee. I congratulate the Governor 7 on such a wonderful appointment. I 8 congratulate Senator Maltese on his 9 recommendation of such a fine candidate for 10 the court. 11 Thank you. 12 ACTING PRESIDENT MEIER: Senator 13 Ada Smith. 14 SENATOR ADA SMITH: Thank you, 15 Mr. President. 16 I too rise to commend the Governor 17 for this wonderful nomination and to thank 18 Senator Maltese for once again being so wise 19 in recommending my neighbor. 20 And I know that she is going to 21 make each and every one of us proud. And as 22 Senator Connor says, she brings much to this 23 position. She brings grace, she brings 24 knowledge, and she brings experience. 25 Thank you, Governor Pataki.

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(518) 371-8910 1 ACTING PRESIDENT MEIER: Any 2 other Senator wish to be heard on the 3 nomination? 4 The question, then, is on the 5 confirmation of Cassandra M. Mullen as a judge 6 of the Court of Claims. All those in favor 7 signify by saying aye. 8 (Response of "Aye.") 9 ACTING PRESIDENT MEIER: Those 10 opposed, nay. 11 (No response.) 12 ACTING PRESIDENT MEIER: Judge 13 Mullen is confirmed. 14 Judge Mullen is with us today in 15 the gallery. Judge. She's accompanied by her 16 daughter, Victoria Mansfield; by her mother, 17 Eleanor Mullen; her brother, Jack; her 18 sister-in-law, Sandra Hirsch; her aunt, Mary 19 Gramuglia; her cousin, John Gramuglia; and her 20 daughter's friends, Kerri Ann Gayle and 21 Jessica Hamel. 22 Judge, we congratulate you and we 23 wish you well. 24 (Applause.) 25 ACTING PRESIDENT MEIER: The

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(518) 371-8910 1 Secretary will read the report of the Finance 2 Committee. 3 THE SECRETARY: Senator Johnson, 4 from the Committee on Finance, reports the 5 following nominations: 6 As a member of the Ogdensburg 7 Bridge and Port Authority, Donald J. Hooper, 8 of Ogdensburg. 9 As a member of the Veterans Affairs 10 Commission, Anthony S. Esposito, of 11 Guilderland. 12 As members of the Medical Advisory 13 Committee, Carl P. Sahler, Jr., M.D., Ph.D., 14 of Canandaigua, and Kathleen Benson Smith, of 15 Oswego. 16 As a member of the Mental Health 17 Services Council, John V. Oldfield, Ph.D., of 18 Syracuse. 19 As a member of the Board of 20 Visitors of the St. Lawrence Psychiatric 21 Center, Richard M. LaValley, of Canton. 22 And as a member of the Board of 23 Visitors of the New York State Home for 24 Veterans and their Dependents at Oxford, 25 Richard M. Pedro, of Owego.

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(518) 371-8910 1 ACTING PRESIDENT MEIER: The 2 question is on the confirmation of the 3 above-named nominees. All those in favor 4 signify by saying aye. 5 (Response of "Aye.") 6 ACTING PRESIDENT MEIER: Those 7 opposed, nay. 8 (No response.) 9 ACTING PRESIDENT MEIER: The 10 nominees are confirmed. 11 The Secretary will continue to 12 read. 13 THE SECRETARY: As a member of 14 the State Civil Service Commission, Caroline 15 W. Ahl, of Loudonville. 16 ACTING PRESIDENT MEIER: Senator 17 Skelos. 18 SENATOR SKELOS: Move the 19 nomination. 20 ACTING PRESIDENT MEIER: The 21 question is on the confirmation of Carolyn W. 22 Ahl as a member of the State Civil Service 23 Commission. All those in favor signify by 24 saying aye. 25 (Response of "Aye.")

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(518) 371-8910 1 ACTING PRESIDENT MEIER: Those 2 opposed, nay. 3 (No response.) 4 ACTING PRESIDENT MEIER: The 5 nominee is confirmed. 6 Caroline Ahl is with us in the 7 gallery here today, and she's joined by her 8 husband, Dave. 9 We wish you well and congratulate 10 you. 11 (Applause.) 12 ACTING PRESIDENT MEIER: The 13 Secretary will continue to read. 14 THE SECRETARY: As a member of 15 the New York State Employment Relations Board, 16 Dean H. Leith, Jr., of Troy. 17 ACTING PRESIDENT MEIER: Senator 18 Bruno. 19 SENATOR BRUNO: Mr. President and 20 colleagues, I am proud to endorse the 21 Governor's recommendation to serve on the 22 Employment Relations Board -- a neighbor, a 23 friend, a person who has vast experiences in 24 business: Dean Leith. 25 Dean participated early in his

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(518) 371-8910 1 career in the formation of a company with nine 2 employees doing about $200,000 first year. 3 Grew the company to about $150 million, 1100 4 employees, and moved on with his life. 5 He's got a tremendous background. 6 We're proud to be able to recommend him and to 7 endorse the Governor's nomination for the 8 Employment Relations Board. 9 I would move the nomination, Mr. 10 President. 11 ACTING PRESIDENT MEIER: The 12 question is on the confirmation of Dean Leith 13 as a member of the New York State Employment 14 Relations Board. All those in favor signify 15 by saying aye. 16 (Response of "Aye.") 17 ACTING PRESIDENT MEIER: Those 18 opposed, nay. 19 (No response.) 20 ACTING PRESIDENT MEIER: The 21 nominee is confirmed. 22 Mr. Leith is with us in the gallery 23 today. 24 And, sir, we congratulate you and 25 we wish you well with your duties.

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(518) 371-8910 1 (Applause.) 2 SENATOR BRUNO: Mr. President, 3 can we at this time return to messages from 4 the Assembly. 5 ACTING PRESIDENT MEIER: Messages 6 from the Assembly. 7 SENATOR BRUNO: And is there a 8 message from the Assembly referencing 9 Assembly 9462, a bill that previously passed 10 both houses, was vetoed by the Governor and 11 unanimously overridden in the Assembly 12 yesterday? 13 ACTING PRESIDENT MEIER: Yes, 14 there is. The chair hands down a message from 15 the Assembly. 16 The Secretary will read. 17 THE SECRETARY: Assembly Bill 18 Number 9462, Veto Number 1, an act to amend 19 the Public Health Law. 20 SENATOR BRUNO: I would move, 21 Mr. President, to override the Governor's 22 veto. 23 ACTING PRESIDENT MEIER: The 24 Secretary will read the title of the bill. 25 THE SECRETARY: Calendar Number

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(518) 371-8910 1 88, by Member of the Assembly Gottfried, 2 Assembly Print Number 9462, Veto Message 3 Number 1, an act to amend the Public Health 4 Law. 5 ACTING PRESIDENT MEIER: The bill 6 is before the house. 7 I'll put the motion of Senator 8 Bruno to override the veto before you. 9 Senators, ought the same become a law 10 notwithstanding the veto of the Governor? 11 The Secretary will read the last 12 section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT MEIER: Call the 16 roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes, 58. 19 ACTING PRESIDENT MEIER: The 20 motion to override the veto is carried. 21 SENATOR BRUNO: Mr. President, 22 can we at this time return to motions and 23 resolutions. 24 ACTING PRESIDENT MEIER: Motions 25 and resolutions.

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(518) 371-8910 1 Senator Nozzolio. 2 SENATOR NOZZOLIO: Mr. President, 3 I move that the following bills be discharged 4 from their respective committees and be 5 recommitted with instructions to strike the 6 enacting clause: 2062A, 2063A, 2442, 2443, 7 3822, 5745A. 8 ACTING PRESIDENT MEIER: So 9 ordered. 10 Senator Bruno. 11 SENATOR BRUNO: Mr. President, I 12 believe I have a privileged resolution at the 13 desk. I would ask at this time that it be 14 read in its entirety and move for its 15 immediate adoption. 16 ACTING PRESIDENT MEIER: The 17 Secretary will read the privileged resolution. 18 THE SECRETARY: By Senator Bruno, 19 Legislative Resolution Number 3409, 20 recognizing February 10, 2006, as Blue Friday. 21 "WHEREAS, The State of New York 22 takes great pride in participating in 23 significant days of recognition; and 24 "WHEREAS, Albany radio station WGNA 25 has teamed up with the Capital District

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(518) 371-8910 1 Chapter of Concerns of Police Survivors, Inc., 2 known as COPS, in recognizing February 10, 3 2006, as 'Blue Friday' in honor of all law 4 enforcement officers who have given their 5 lives in the line of duty as well as all of 6 those still serving; and 7 "WHEREAS, COPS, organized in 1984 8 with approximately 110 members, has grown into 9 a nationwide nonprofit organization with 48 10 chapters throughout the United States and an 11 affiliate in the United Kingdom. Its mission 12 is to help rebuild the lives of survivors of 13 law enforcement officers killed in the line of 14 duty by serving as a clearinghouse for federal 15 and state benefits information and resources 16 that may be available to the surviving 17 families; and 18 "WHEREAS, COPS also provides 19 training to law enforcement agencies on 20 survivor victimization issues and educates the 21 public of the need to support the law 22 enforcement profession and its survivors; and 23 "WHEREAS, Each year between 140 and 24 160 officers are killed in the line of duty 25 and their families and coworkers are left to

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(518) 371-8910 1 cope with the tragic loss; and 2 "WHEREAS, Today COPS' membership, 3 including spouses, children, parents, 4 siblings, significant others and coworkers of 5 officers killed in the line of duty consists 6 of more than 12,000 families; and 7 "WHEREAS, February 10 is a reminder 8 to pay tribute to those in the law enforcement 9 community who have made the ultimate 10 sacrifice; and 11 "WHEREAS, On February 10, 2006, 12 from 6:00 a.m. until 10:00 a.m., WGNA, 13 DeNooyer Chevrolet, and COPS will be taking a 14 Donation for a Carnation, selling blue 15 carnations and special edition 'Blue Friday' 16 T-shirts at DeNooyer Chevrolet, Colonie, 17 New York, and at the Wilton Mall, Saratoga 18 Springs, New York. All proceeds will go 19 directly to COPS; and 20 "WHEREAS, In addition, the Western 21 Chapter of COPS, headquartered in Buffalo, and 22 the Southern Chapter, headquartered in 23 Binghamton, are encouraging supporters to wear 24 blue on that day; and 25 "WHEREAS, The State of New York is

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(518) 371-8910 1 eternally grateful for the service of its 2 brave men and women in law enforcement and 3 applauds the efforts of COPS to assist the 4 families of those who have made the ultimate 5 sacrifice; now, therefore, be it 6 "RESOLVED, That this Legislative 7 Body pause in its deliberations to recognize 8 February 10, 2006, as 'Blue Friday'; and be it 9 further 10 "RESOLVED, That copies of this 11 resolution, suitably engrossed, be transmitted 12 to WGNA and COPS." 13 ACTING PRESIDENT MEIER: Senator 14 Bruno. 15 SENATOR BRUNO: Mr. President and 16 colleagues, this resolution, you heard it, sad 17 in the message that it relates that 140, 160 18 people who step out, step up -- to do what? 19 Face what truly is an enemy out there of 20 society. 21 We celebrate constantly and 22 recognize the men and women in uniform by the 23 hundreds of thousands all over the world, 24 keeping peace, fighting for peace, protecting 25 our liberties. These people in blue or in

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(518) 371-8910 1 uniform who step out every single day. 2 And many of them, as we've heard, 3 140 to 160 a year, give their lives in the 4 fight against evil. They don't have to, they 5 elect to. And they leave behind wives, 6 husbands, children who suffer the pain and the 7 trauma and the anguish. 8 So it's appropriate that we, 9 through this resolution, recognize this Friday 10 as "Blue Friday," respecting and honoring the 11 memory of so many that have made the ultimate 12 sacrifice. 13 Locally I see Mayor Jennings is 14 here. Lieutenant John Finn, not too many 15 months ago, gave his life on the streets a few 16 minutes from here, leaving a family behind, 17 like the 12,000-plus families that are out 18 there. 19 But there are people who step up to 20 help alleviate the pain. We can never replace 21 the individuals that are gone, but they help 22 with the trauma and alleviate the pain in 23 life. 24 And I would just like to 25 acknowledge some of the individuals who help

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(518) 371-8910 1 so much, raising money to help the families in 2 a transition in their lives. Some of them are 3 here: WGNA radio hosts Sean McMaster and 4 Richie Philips and other representatives of 5 the press; Albany Police Officer Pat Fox; Town 6 of Corinth Officer Somma; Troy Police Officer 7 Bob Fitzgerald. 8 We really thank you for your 9 service for those that you represent, thank 10 you for everything that you do on a minute, 11 hourly, daily basis to make a quality of life 12 for all of us that we can enjoy as free 13 people. Because you can live in fear on the 14 streets in your business and in your homes, or 15 you can live as free people. And it's these 16 people in the front lines, many of them 17 prepared and have given their lives so that we 18 all can enjoy a quality of life. 19 Thank you, Mr. President. 20 ACTING PRESIDENT MEIER: Senator 21 Farley. 22 SENATOR FARLEY: Thank you, Mr. 23 President. 24 I guess the resolution of Senator 25 Bruno has said it all. But let me just say

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(518) 371-8910 1 this. That Blue Friday, this Friday coming 2 up, is a day that we're going to recognize and 3 support the police forces throughout our state 4 and nation that really have put their lives on 5 the line for us. 6 There's barely a community, 7 including my own in Schenectady, that hasn't 8 lost police officers in the line of duty. 9 And, you know, I have to pay 10 tribute to the number-one radio station in 11 this area, WGNA -- one of my favorites, 12 incidentally -- with the dynamic duo who's up 13 there in the audience, Sean McMaster and 14 Richie Philips, and the other officers of 15 WGNA, for making this possible to go out and 16 raise some money on behalf of COPS. They're 17 going to be selling blue carnations and 18 T-shirts and so forth at the DeNooyer 19 Chevrolet and Wilton Mall and be there live. 20 You know, it's so important that 21 this Capital District and the area get out and 22 support this effort because what we're doing 23 is supporting the families and children and 24 loved ones of officers who have lost their 25 lives.

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(518) 371-8910 1 You know, the police officers that 2 were acknowledged here, we're very honored to 3 have you here in the front row. But we also 4 have some police officers that serve here in 5 the Senate. They had a career here. And with 6 that, I'm going to yield to them and I'm sure 7 that they may want to say something about 8 their brethren. 9 ACTING PRESIDENT MEIER: Senator 10 Golden. 11 SENATOR GOLDEN: Thank you, Mr. 12 President. 13 Thank you, Senator Farley and 14 Senator Bruno, for your comments. Thank you, 15 officers, for being here today. 16 "Blue Friday," on February 10, 17 2006, is a day of honor for all those police 18 officers that we've lost across this country. 19 And if you look at just the number 20 that we've lost here in the city and state of 21 New York, just in a few short months we've 22 lost over four police officers: Kevin Lee, 23 Officer Lee, Officer Frank Hennessy, Officer 24 Danny Enchautegui, and Dillon Stewart gunned 25 down in the streets in the city of New York.

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(518) 371-8910 1 And if you take a look at the 2 school safety agent, Vivian Samuels, and 3 Deputy Sheriff Eric Loiselle from the Essex 4 County Sheriff's Department, and a senior 5 investigator, Thomas O'Neill, and Police 6 Officer William Rivera, who all died this past 7 year fighting for this great city and this 8 great state. Over 140 to 160 officers each 9 year killed in the line of duty. 10 Just this fall we've seen how many 11 officers have died and how many were wounded, 12 nine in the City of New York since June. 13 These deaths compelled me to act quickly with 14 my colleagues here in this chamber and in the 15 Assembly chamber in drafting comprehensive 16 legislation, the Crimes Against Police Act, so 17 that we can stop this brutal killing of 18 officers here in the city and state of 19 New York. 20 As a former New York City police 21 officer, I have firsthand experience with the 22 dangers that our finest face each and every 23 day and the heartbreak experienced by all of 24 us when a police officer is killed in the line 25 of duty.

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(518) 371-8910 1 I applaud each and every man and 2 woman that wears blue here in the city and 3 state and across this great nation. And I 4 applaud WGNA, who won the New York State 5 Broadcasters Community Service Award for this 6 most recent event. 7 We cannot pay enough attention to 8 our officers and to their families. What this 9 group does, it gives counselling to the 10 members or the survivors, the wives and 11 husbands, it takes their children to summer 12 camps and gives them counseling, and it gets 13 the family out and involved in day-to-day 14 life. 15 And you've done so many great 16 things. We applaud you officers. We applaud 17 all of the officers here in the State of 18 New York. Thank you and God bless your 19 efforts. 20 Thank you very, very much. 21 ACTING PRESIDENT MEIER: Senator 22 Volker. 23 SENATOR VOLKER: Mr. President, 24 it's been a while since I was a police 25 officer -- actually, 32 years, since I just

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(518) 371-8910 1 began my 30th year on February 3rd in the 2 Senate here. I missed one month between a 3 defeat in '74 and my election in '75. 4 While I was with the Depew Police 5 Department, I was president of the PBA and I 6 was active in the statewide law enforcement 7 people. And the reason I'm mentioning that is 8 I think one of the problems that we're dealing 9 with in this state right now -- and although 10 it doesn't pertain directly to the situation 11 today, we're very happy that WGNA and so many 12 people are supporting the wives, families, and 13 so forth of police officers. 14 It's a -- the new target, 15 unfortunately, of business is police officers, 16 and complaining about their benefits and 17 complaining about their salaries. 18 I always laugh a little bit because 19 all the police officers that have been killed 20 in Erie County in the last thirty years, I 21 could name every one of them. And in fact my 22 office, I think like most former police 23 officers, pays very special attention to the 24 families of those that have been killed. In 25 fact, I've helped getting jobs and education

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(518) 371-8910 1 and so forth. 2 Because there's one thing I do 3 know, and that is that a law enforcement 4 officer's life is a life that is difficult. 5 And it's difficult for their families. So 6 difficult, in fact, that when they are killed, 7 it crushes the very fabric of the families. 8 And whether they're killed, by the way, by 9 bullet or knives or in an accident, whatever 10 it is, it is very, very difficult. 11 And as a former police officer and 12 as a person that represents legally and here 13 in the Senate, I think, a lot of police 14 officers, let me thank all those that are 15 ready to help. Because I just don't believe 16 and I think our problem is I just don't 17 believe people really understand, unless 18 you've been there, the kind of problems that 19 police officers have been confronted with, not 20 only in New York City and Buffalo -- and in 21 Buffalo we're way short of cops, we know that. 22 They don't even realize in the 23 county that the local government got rid of 24 the sheriff's department undercover people in 25 Buffalo, and they're surprised that the drug

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(518) 371-8910 1 problems in Buffalo seem to be increasing. 2 And I only mention this because 3 there is an ignorance of how many law 4 enforcement people there are and how many it 5 takes to keep places safe, whether it's 6 Amherst, New York, or whether it's Depew, 7 New York, where I live, or Yonkers or the City 8 of New York or Albany. And I know a lot of 9 Albany police officers. Unfortunately, I've 10 known several who have died. 11 All I can say is thank you, on 12 behalf of this Senate. Senator Bruno said it 13 a lot better than I can. But also thank you 14 to those people that pay attention to the 15 families and to the children and to those that 16 are left behind. And I applaud you. 17 ACTING PRESIDENT MEIER: Senator 18 Morahan. 19 SENATOR MORAHAN: Thank you, Mr. 20 President. 21 I rise today to salute the men in 22 blue, the men and women who serve on the front 23 lines, providing our safety, protecting us and 24 our children and our grandchildren. 25 I stand also in honor of my

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(518) 371-8910 1 father-in-law, my wife's father, Officer James 2 M. Killion, who on January 29, 1935, was shot 3 dead as a New York City police officer trying 4 to thwart a holdup on Fifth Avenue in New York 5 City. 6 His young widow -- he was only 29 7 years of age. He had two children; my wife 8 was only 18 months old. That young widow, 9 Nellie Thompson Killion, received $125 a month 10 from 1935 till the 1950s, and she raised her 11 two children, Joan and Helen, and supported 12 her mother and her father and went to work 13 every day of her life. 14 And I know what it is to see that 15 impact on his children, who virtually never 16 knew their father. And he sacrificed his life 17 to the people of New York City. And I'm sure 18 at that time they had felt he was the last 19 police officer who would be cut down in the 20 line of duty. But it goes on. 21 My wife is a founding member of the 22 Law Enforcement Memorial in Washington, which 23 she was there for the inauguration with 24 President Bush. We brought our grandchildren 25 there to have them understand what sacrifice

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(518) 371-8910 1 is for the community. 2 And these tragedies and these acts 3 of violence continue today and will continue 4 tomorrow, unfortunately. And I think anything 5 we do as a society to support the families of 6 those who laid down their lives so we could 7 live in peace and in safety -- they need that 8 support. 9 It's my honor to say thank you to 10 the men and women in blue, to the law 11 enforcement people across this nation who 12 stand in defense of our homes and our lives. 13 Thank you. It is indeed an honor to 14 participate today and wish everyone well on 15 "Blue Friday." 16 Thank you very much. 17 ACTING PRESIDENT MEIER: The 18 question, then, is on the resolution. All 19 those in favor signify by saying aye. 20 (Response of "Aye.") 21 ACTING PRESIDENT MEIER: Those 22 opposed, nay. 23 (No response.) 24 ACTING PRESIDENT MEIER: The 25 resolution is unanimously adopted.

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(518) 371-8910 1 Senator Bruno. 2 SENATOR BRUNO: Mr. President, 3 can I suggest that we open this resolution to 4 all the members in the chamber unless they go 5 to the desk privately and ask not to be put 6 on. 7 ACTING PRESIDENT MEIER: All 8 members will be listed as sponsoring the 9 resolution unless they notify the desk 10 otherwise. 11 SENATOR BRUNO: Can we give a 12 standing ovation to the men represented here. 13 (Standing ovation.) 14 ACTING PRESIDENT MEIER: Senator 15 Bruno. 16 SENATOR BRUNO: Thank you, Mr. 17 President. 18 Mr. President, can we at this time 19 adopt the Resolution Calendar, with the 20 exception of Resolution 3383. 21 ACTING PRESIDENT MEIER: All in 22 favor of adopting the Resolution Calendar, 23 with the exception of Resolution 3383, signify 24 by saying aye. 25 (Response of "Aye.")

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(518) 371-8910 1 ACTING PRESIDENT MEIER: Those 2 opposed, nay. 3 (No response.) 4 ACTING PRESIDENT MEIER: The 5 Resolution Calendar is adopted. 6 Senator Bruno. 7 SENATOR BRUNO: And, Mr. 8 President, can we at this time take up Senate 9 Resolution 3383, by Senator Golden, have the 10 title read, and move for its immediate 11 adoption. 12 ACTING PRESIDENT MEIER: The 13 Secretary will read. 14 THE SECRETARY: By Senator 15 Golden, Legislative Resolution Number 3383, 16 commending Moshe Yedid upon the occasion of 17 his designation for special recognition by 18 Hatzolah of Flatbush. 19 ACTING PRESIDENT MEIER: Senator 20 Golden. 21 SENATOR GOLDEN: Thank you, Mr. 22 President. I would like to talk about a 23 little hero today, a little hero who was 24 about -- how old? About 12, I guess, when 25 this all went down.

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(518) 371-8910 1 Moshe Yedid is one of nine 2 children. He has three older brothers and 3 five sisters, one of whom is his twin sister. 4 Moshe is a sixth-grade student, is well-liked, 5 responsible, and hardworking, and is already 6 recognized as a leader and has plenty of 7 leadership qualities. 8 Two years ago, Moshe's father 9 became seriously ill and Moshe had already 10 spent countless hours studying and playing 11 ball with his father. During his dad's 12 illness, Moshe demonstrated great courage and 13 determination. Concerned for his dad's 14 health, Moshe wanted to help care for his 15 father and did so, bringing his father meals 16 and reading for him and adjusting his machine 17 as he needed it. 18 Soon after, his dad passed away. 19 Moshe decided to show his appreciation to the 20 Hatzolah of Flatbush, a volunteer EMS and 21 ambulance service, for the care and the 22 kindness that Hatzolah had given to his father 23 and to his family because of the numerous 24 visits that they had made, the countless 25 visits by his father for his father's illness.

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(518) 371-8910 1 During the week, in the mourning 2 following his dad's death, Moshe collected 3 several thousand dollars to benefit Hatzolah. 4 He has also recently begun a small business of 5 selling potato chips, in the hope that he 6 might one day purchase an ambulance for 7 Hatzolah in his father's name. 8 Moshe exemplifies this potential of 9 our most precious resource, our youth. And 10 today, as his dad smiles down on him and his 11 family, I am proud to recognize the value of 12 his labor and the promise of his future and 13 the inspiration and model he represents for 14 his family, his peers, and his community. 15 Ladies and gentlemen, help me 16 welcome Moshe and his family and his friends 17 as he sits up there in the gallery and 18 congratulate him for his great valor. 19 Thank you, Moshe. 20 (Standing ovation.) 21 ACTING PRESIDENT MEIER: Senator 22 Golden. 23 SENATOR GOLDEN: If everybody can 24 sign on to that resolution. 25 ACTING PRESIDENT MEIER: Yes,

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(518) 371-8910 1 we'll take care of that. 2 The question is on the resolution. 3 All those in favor signify by saying aye. 4 (Response of "Aye.") 5 ACTING PRESIDENT MEIER: Those 6 opposed, nay. 7 (No response.) 8 ACTING PRESIDENT MEIER: The 9 resolution is unanimously adopted. 10 And by request of the sponsor, 11 Senator Golden, we'll add everyone's name, any 12 member not wishing to have their name added to 13 notify the desk. 14 Congratulations, Moshe. 15 Senator Skelos. 16 SENATOR SKELOS: Please recognize 17 Senator Montgomery. 18 ACTING PRESIDENT MEIER: Senator 19 Montgomery. 20 SENATOR MONTGOMERY: Yes, Mr. 21 President, thank you. I rise to speak on my 22 resolution, Number 3403, in honor of Sadie 23 Feddoes. 24 And I must begin by saying that 25 some of my best friends are Republicans.

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(518) 371-8910 1 Sadie Feddoes was a Republican. But she was a 2 very good friend, a wonderful woman. 3 She was a Caribbean woman, and she 4 had all of the qualities of someone that you 5 would want to be a mentor and to really give 6 the kind of support and guidance that she 7 always was very, very willing to give. She 8 was truly a sister. 9 So I am very honored to be able to 10 memorialize her in this resolution, along with 11 a number of my colleagues, so that we will 12 never forget that Sadie Feddoes was a good 13 friend. 14 She served as vice president and 15 community and government relations officer for 16 Citibank. She worked there for over 40 years, 17 when she retired. And she was also a 18 columnist for the Amsterdam News for many, 19 many years -- many decades, actually. And her 20 role as a columnist was to really follow the 21 elected officials to see what we were doing 22 and to report about it. And it was always 23 wonderful to be able to pick up the Amsterdam 24 News and read the Sadie Feddoes column. 25 She was also on the board and

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(518) 371-8910 1 served for some time as chair of 2 Bedford-Stuyvesant Restoration, I believe 3 which was the first not-for-profit community 4 corporation in the nation. And Sadie Feddoes, 5 in her capacity as board member, was extremely 6 supportive. 7 So we are really fortunate to have 8 had a person like Sadie, who, though she 9 worked in the corporate world, was very, very 10 much a part of the community activities that 11 went on in her own community and for people 12 across the state. 13 So I'm honored to be able to speak 14 and to introduce this resolution. I thank my 15 colleagues for joining me. And I would ask 16 that any of our colleagues who would like to 17 be part of this resolution, I would like to 18 open it up for sponsorship broadly. 19 Thank you. 20 ACTING PRESIDENT MEIER: Thank 21 you, Senator Montgomery. 22 The resolution was previously 23 adopted, and the sponsor has requested it be 24 open for cosponsorship. 25 Senator Libous.

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(518) 371-8910 1 SENATOR LIBOUS: Mr. President, 2 there will be an immediate meeting of the 3 Rules Committee in the Majority Conference 4 Room, and the Senate will stand at ease until 5 the Rules Committee is convened. 6 ACTING PRESIDENT MEIER: 7 Immediately meeting of the Rules Committee in 8 the Senate Majority Conference Room. The 9 Senate will stand at ease pending the report 10 of the Rules Committee. 11 (Whereupon, the Senate stood at 12 ease at 4:07 p.m.) 13 (Whereupon, the Senate reconvened 14 at 4:14 p.m.) 15 ACTING PRESIDENT MEIER: Senator 16 Skelos. 17 SENATOR SKELOS: Mr. President, 18 if we could return to reports of standing 19 committees, I believe there's a report of the 20 Rules Committee at the desk. I ask that it be 21 read. 22 ACTING PRESIDENT MEIER: Can we 23 have a little order in the chamber, please. 24 The Secretary will read the report 25 of the Rules Committee.

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(518) 371-8910 1 THE SECRETARY: Senator Bruno, 2 from the Committee on Rules, reports the 3 following bill direct to third reading: 4 Senate Print 6300A, by Senator 5 Volker, an act to amend the Tax Law. 6 ACTING PRESIDENT MEIER: Senator 7 Skelos. 8 SENATOR SKELOS: I move to accept 9 the report of the Rules Committee. 10 ACTING PRESIDENT MEIER: All 11 those in favor of accepting the report of the 12 Rules Committee signify by saying aye. 13 (Response of "Aye.") 14 ACTING PRESIDENT MEIER: Those 15 opposed, nay. 16 (No response.) 17 ACTING PRESIDENT MEIER: The 18 report of the Rules Committee is accepted. 19 The bill is reported to third 20 reading. 21 Senator Skelos. 22 SENATOR SKELOS: Mr. President, 23 if we could go to the noncontroversial reading 24 of the calendar. 25 ACTING PRESIDENT MEIER: The

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(518) 371-8910 1 Secretary will conduct the noncontroversial 2 reading of the calendar. 3 THE SECRETARY: Calendar Number 4 18, by Senator Volker, Senate Print 6277A, an 5 act to amend the Penal Law and others, in 6 relation to the crime of incest. 7 ACTING PRESIDENT MEIER: Read the 8 last section. 9 THE SECRETARY: Section 31. This 10 act shall take effect on the first of 11 November. 12 ACTING PRESIDENT MEIER: Call the 13 roll. 14 (The Secretary called the roll.) 15 ACTING PRESIDENT MEIER: Senator 16 Savino, to explain her vote. 17 SENATOR SAVINO: Thank you, Mr. 18 President. 19 I want to rise to explain my vote, 20 and I want to thank Senator Volker for 21 bringing this bill to the floor today. 22 This is an issue that's very 23 important to me. In fact, I had introduced a 24 similar bill on this, and I'm happy that this 25 bill is going to get voted on, that there is

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(518) 371-8910 1 an companion in the Assembly, and that 2 hopefully we'll get this signed by the 3 Governor and passed into law. 4 This bill relates to incest. And 5 incest, the current law back dates back to the 6 16th century. And certainly it is outdated, 7 but it doesn't do anything to address the 8 impact of incest on children and their 9 families. 10 And I want to share with you an 11 experience I had. As many of you know, I 12 began my career as a caseworker in the child 13 welfare administration. And the first case 14 that I had that was handed to me after I 15 received my training was the case of a young 16 woman by the name of Alicia. She was a 17 24-year-old woman who had four children by the 18 time she was 22. She herself had been a 19 product of the foster care system and an 20 incredibly dysfunctional family. 21 But her four children were taken 22 away from her because she was found guilty of 23 failure to protect and endangering the welfare 24 of a child. And what she did wrong was she 25 allowed her brother, who was 22 years old, to

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(518) 371-8910 1 babysit her children. She had a two-year-old 2 girl who he sexually abused routinely, and it 3 came to her attention only when she presented 4 with VD. 5 Her daughter and her two siblings 6 went into foster care for five years. Alicia 7 lost all three of her children, including one 8 to adoption that she never saw again. She was 9 sentenced to five years' probation and, 10 because of many problems that she had, she 11 violated her probation and she actually went 12 to jail and served it out there. 13 Her brother, who was 22, who 14 repeatedly raped her two-year-old daughter, 15 went to jail for 18 months. So a two-year-old 16 girl spent more time in foster care, her 17 mother lost all three of her children and went 18 to jail, and this individual, the perpetrator, 19 spent less time in jail than anybody else. 20 That is an inequity that we can 21 correct with this bill today. And I want to 22 thank Senator Volker for bringing it to the 23 floor. 24 Thank you. 25 ACTING PRESIDENT MEIER: Senator

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(518) 371-8910 1 Savino will be recorded in the affirmative. 2 The Secretary will announce the 3 results. 4 THE SECRETARY: Ayes, 58. 5 ACTING PRESIDENT MEIER: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 56, by Senator Volker, Senate Print 3117, an 9 act to amend the Penal Law, in relation to the 10 unlawful operation of a recording device. 11 ACTING PRESIDENT MEIER: Read the 12 last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect on the first of 15 November. 16 ACTING PRESIDENT MEIER: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes, 57. Nays, 20 1. Senator Duane recorded in the negative. 21 ACTING PRESIDENT MEIER: The bill 22 is passed. 23 THE SECRETARY: Calendar Number 24 61, by Senator Volker, Senate Print 5622, an 25 act to amend the Penal Law, in relation to

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(518) 371-8910 1 arson in the first degree. 2 ACTING PRESIDENT MEIER: Read the 3 last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect on the 30th day. 6 ACTING PRESIDENT MEIER: Call the 7 roll. 8 (The Secretary called the roll.) 9 THE SECRETARY: Ayes, 58. 10 ACTING PRESIDENT MEIER: The bill 11 is passed. 12 THE SECRETARY: Calendar Number 13 67, by Senator Spano, Senate Print 5956, an 14 act to amend the Penal Law, in relation to 15 authorizing. 16 ACTING PRESIDENT MEIER: Read the 17 last section. 18 THE SECRETARY: Section 5. This 19 act shall take effect on the first of 20 November. 21 ACTING PRESIDENT MEIER: Call the 22 roll. 23 (The Secretary called the roll.) 24 THE SECRETARY: Ayes, 58. 25 ACTING PRESIDENT MEIER: The bill

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(518) 371-8910 1 is passed. 2 THE SECRETARY: Calendar Number 3 68, by Senator Saland, Senate Print 6289, an 4 act to amend the Penal Law, in relation to the 5 crime of endangering the welfare of a child. 6 ACTING PRESIDENT MEIER: Read the 7 last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT MEIER: Call the 11 roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes, 58. 14 ACTING PRESIDENT MEIER: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 74, by Senator Maltese, Senate Print 1156, an 18 act to amend the Labor Law and the Education 19 Law, in relation to prohibiting. 20 ACTING PRESIDENT MEIER: Read the 21 last section. 22 THE SECRETARY: Section 7. This 23 act shall take effect immediately. 24 ACTING PRESIDENT MEIER: Call the 25 roll.

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(518) 371-8910 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes, 58. 3 ACTING PRESIDENT MEIER: The bill 4 is passed. 5 THE SECRETARY: Calendar Number 6 80, by Senator Maltese, Senate Print 5463, an 7 act to amend the Labor Law, in relation to the 8 special task force for the apparel industry. 9 ACTING PRESIDENT MEIER: Read the 10 last section. 11 THE SECRETARY: Section 8. This 12 act shall take effect on the 120th day. 13 ACTING PRESIDENT MEIER: Call the 14 roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes, 58. 17 ACTING PRESIDENT MEIER: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 134, by Senator Rath, Senate Print 1513, an 21 act to amend the Penal Law, in relation to 22 endangering the welfare of a child. 23 ACTING PRESIDENT MEIER: Read the 24 last section. 25 THE SECRETARY: Section 2. This

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(518) 371-8910 1 act shall take effect on the first of 2 November. 3 ACTING PRESIDENT MEIER: Call the 4 roll. 5 (The Secretary called the roll.) 6 ACTING PRESIDENT MEIER: The 7 Secretary will announce the results. 8 THE SECRETARY: Ayes, 57. Nays, 9 1. Senator Montgomery recorded in the 10 negative. 11 ACTING PRESIDENT MEIER: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 135, by Senator Rath, Senate Print 1521, an 15 act to amend the Penal Law, in relation to 16 assaults. 17 ACTING PRESIDENT MEIER: Read the 18 last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect on the first of 21 November. 22 ACTING PRESIDENT MEIER: Call the 23 roll. 24 (The Secretary called the roll.) 25 ACTING PRESIDENT MEIER: Senator

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(518) 371-8910 1 Hassell-Thompson, to explain her vote. 2 SENATOR HASSELL-THOMPSON: Thank 3 you, Mr. President. 4 When this vote came before us 5 before, I had voted no. And I continue to 6 have some very strong feelings about how we 7 extend sentences and how we strengthen the 8 laws in the State of New York. 9 But in this last two years, as a 10 person who represents the borough president of 11 the Bronx, in conjunction with Assemblywoman 12 Naomi Rivera, on the issues of domestic 13 violence, I have had the opportunity to meet 14 with groups and individuals who talk about the 15 repeated instances of domestic violence 16 against children as well as against women. 17 And so that it becomes incumbent 18 upon me, as someone who is representing that 19 population, to look carefully and sensitively 20 at the way in which we enact laws here in 21 these chambers. 22 My concern continues to be that we 23 spend a lot of our time talking about being 24 punitive and we don't spend an equal amount of 25 time trying to look at changing paradigms to

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(518) 371-8910 1 talk to why people find themselves 2 perpetuating certain crimes that they do. 3 So that I would hope that even as 4 we explore how to imprison and to incarcerate 5 those persons who commit domestic-violence 6 acts against people in our communities, we 7 also begin to look carefully at what is the 8 root cause and begin to put budgetary dollars 9 toward the exploration and treatment. 10 So I will be voting yes on this 11 bill, but I would like us to continue to work 12 on both aspects of this very serious and 13 growing problem that we are finding in our 14 communities. 15 ACTING PRESIDENT MEIER: Senator 16 Hassell-Thompson will be recorded in the 17 affirmative. 18 The Secretary will announce the 19 results. 20 THE SECRETARY: Ayes, 58. 21 ACTING PRESIDENT MEIER: The bill 22 is passed. 23 THE SECRETARY: Excuse me. In 24 relation to Calendar Number 135: Ayes, 57. 25 Nays, 1. Senator Montgomery recorded in the

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(518) 371-8910 1 negative. 2 ACTING PRESIDENT MEIER: The bill 3 is passed. 4 THE SECRETARY: Calendar Number 5 137, by Senator Golden, Senate Print 3433, an 6 act to amend the Penal Law, in relation to 7 endangering the welfare of a child. 8 ACTING PRESIDENT MEIER: Read the 9 last section. 10 THE SECRETARY: Section 6. This 11 act shall take effect on the first of 12 November. 13 ACTING PRESIDENT MEIER: Call the 14 roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes, 57. Nays, 17 1. Senator Montgomery recorded in the 18 negative. 19 ACTING PRESIDENT MEIER: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 147, by Senator Meier, Senate Print -- 23 SENATOR SCHNEIDERMAN: Lay it 24 aside. 25 ACTING PRESIDENT MEIER: Lay the

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(518) 371-8910 1 bill aside. 2 THE SECRETARY: In relation to 3 Calendar Number 230, Senator Volker moves to 4 discharge, from the Committee on 5 Investigations and Government Operations, 6 Assembly Bill Number 9461A and substitute it 7 for the identical Senate Bill Number 6300A, 8 Third Reading Calendar 230. 9 ACTING PRESIDENT MEIER: 10 Substitution ordered. 11 The Secretary will read. 12 THE SECRETARY: Calendar Number 13 230, by Member of the Assembly Tokasz, 14 Assembly Print Number 9461A, an act to amend 15 the Tax Law. 16 ACTING PRESIDENT MEIER: Read the 17 last section. 18 THE SECRETARY: Section 2. This 19 act shall take effect immediately. 20 SENATOR VOLKER: To explain my 21 vote, please. 22 ACTING PRESIDENT MORAHAN: Call 23 the roll. 24 (The Secretary called the roll.) 25 ACTING PRESIDENT MORAHAN:

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(518) 371-8910 1 Senator Volker, to explain his vote. 2 SENATOR VOLKER: Two things. 3 One, for the benefit of my colleagues, you 4 probably aren't aware, the last three mayors 5 of the City of Buffalo have been senators and 6 have come from the Senate minority. I just 7 want you all to know that. 8 For some years there's been a 9 debate in Erie County over sharing of this 10 sales tax. This is a sales tax, a temporary 11 tax that was done in 1985 as a result of a 12 fiscal crisis in 1985. There's been an 13 agreement this year to share with the city and 14 with the towns and villages the amount of 15 $6 million each; that is, 6 million for the 16 city and 6 million for the towns and villages. 17 I mention that because we have been 18 working with the control boards, both the city 19 and the county. We intend, by the way, to 20 make sure that the county is made whole and 21 that there is no interruption in county funds. 22 The sharing does not start until 23 January 1st of 2007. In fact, one thing 24 that's really good about this bill is that I 25 don't have to have the sales tax as my first

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(518) 371-8910 1 chapter next year, because this is going to go 2 on for two years. 3 Obviously, we are always 4 uncomfortable about doing this. But without 5 this, the real property taxes in Erie County 6 would probably go up somewhere in the area of 7 30 to 50 percent. It's very possible. 8 In any case, this is something I 9 think that needs to be done. We'd rather not 10 do it. But frankly, due to the fiscal 11 situation in Erie County, which has 12 deteriorated badly in the last four years -- 13 by the way, I want to mention to everybody the 14 lowest taxes, real property taxes in the State 15 of New York in a suburban area are in Western 16 New York. It's not well known, but it's true. 17 That's real property taxes. However, 18 unfortunately, we have a high sales tax. 19 At any rate, I vote aye. 20 ACTING PRESIDENT MORAHAN: 21 Senator Rath, to explain her vote. 22 SENATOR RATH: Thanks, 23 Mr. Chairman. This is -- I guess I would call 24 this a rather nostalgic vote. I was the 25 minority leader in the county legislature when

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(518) 371-8910 1 we put this tax in, and it was always to be a 2 temporary tax. The 1 percent sales tax was to 3 come off. 4 Well, as has happened in many 5 places throughout not only New York State but 6 the United States, I would guess, costs have 7 gone up. The tax never came off. 8 And at that time we were always 9 going to share it. And you'll be interested 10 to know that Erie County shares more 11 dramatically than any other county in the 12 state. We not only share with the cities, the 13 towns, the villages, but also with the Buffalo 14 School District. 15 So we share generously with all of 16 these other jurisdictions. So that means 17 there's less there for the county. And as 18 Senator Volker has said, the county has gone 19 through some difficult, difficult times, as 20 I'm sure you've been noticing. 21 But I rose today because there is a 22 question that I think needs to be addressed on 23 a broad scale. I think it's easy enough for 24 us to figure out who does what when we're 25 talking about providing services. Who pays

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(518) 371-8910 1 for what is maybe a little more complex, 2 because sometimes it's a mixture of state 3 money and county money and federal money. But 4 the big question is who takes credit for what. 5 And that question burns in the minds of 6 everyone who talks about reducing taxes and 7 providing quality services. 8 What's happening here today is that 9 some of the dollars that were used to provide 10 services by Erie County will be going to the 11 towns and the cities and the villages. Will 12 they be providing the services that the county 13 used to provide and can't provide now because 14 they don't have the money? I don't know. 15 It's kind of like a balloon: You 16 squeeze it at one end and it pops out the 17 other end. You let go here, and it pops back 18 the other way. And so someone is going to be 19 picking up the cost of those services, or 20 someone is going to be reducing services. 21 But the bigger question beyond 22 that -- and this is why I have risen today, as 23 I said, to explain my vote and to vote in 24 favor of this -- is because now the money will 25 be going a different entity: towns, cities,

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(518) 371-8910 1 and villages. I will be writing to my cities, 2 towns and villages, asking them to reduce 3 taxes in their jurisdiction. 4 It is my hope that Erie County will 5 find ways to reduce their taxes and be 6 accountable. But now these other 7 municipalities will have more taxes than they 8 had before. They will have a windfall. And 9 you know what? Maybe they'll be more 10 accountable than Erie County has been. I hope 11 so. Or maybe the taxpayers would just rather 12 not have the services, maybe they'd rather 13 have the money back and not have so much come 14 out of their pockets. 15 But we're going to have a better 16 chance of finding out now this way. Eighteen, 17 twenty years -- what was it, Dale, 1985? 18 SENATOR VOLKER: 1985. 19 SENATOR RATH: Okay, over 20 20 years. Over 20 years we've been waiting for 21 this chance to see this happen. It's going to 22 happen. 23 And we will let you know what 24 happens when the jury comes back after a 25 couple of years. We'll see if everyone in

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(518) 371-8910 1 Erie County has gotten a rebate from the fact 2 that we have shared sales tax with the towns, 3 villages and cities. 4 Thank you. 5 ACTING PRESIDENT MORAHAN: 6 Senator Malcolm Smith, to explain his vote. 7 SENATOR MALCOLM SMITH: Thank you 8 very much, Mr. President. 9 I just rise briefly to thank 10 Senator Volker, in particular because, as you 11 know, a good colleague of ours who has 12 distinguished himself in this body by the name 13 of Senator Byron Brown is now the mayor of 14 Buffalo. And as we all know, Buffalo is under 15 the jurisdiction of the financial control 16 board. 17 And this particular bill will go a 18 long way in helping Senator Byron Brown to the 19 tune of $6 million. So I vote aye. 20 ACTING PRESIDENT MORAHAN: Thank 21 you, Senator. 22 Senator Statis -- Stachowski, on 23 the bill. 24 SENATOR STACHOWSKI: Thank you, 25 Mr. President. That's easy for you to say.

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(518) 371-8910 1 But I also rise to explain my vote. 2 Senator Volker always has to have this as his 3 first chapter of the year, the Erie County 4 sales tax. And at least next year it won't 5 be, because this is the first time we're doing 6 it for two years. 7 And although the media has reported 8 that we're causing an instant hole in the 9 county's budget, they get the whole, according 10 to the memo, roughly $121 million again this 11 year, which they've been getting for twenty 12 years, and at a growing pace. I think it 13 started around $80 million, maybe 85. 14 And the fact is that the shared 15 part of this sales tax is only going to be 16 about 12.5 million, if the agreement serves my 17 memory correctly. So that it's not really 18 being shared at the same proportion that the 19 standard formula is. I don't believe the 20 school districts are getting any of it. 21 And so that the towns and the 22 city -- and the city, which has the hard 23 control board, as opposed to county's soft 24 control board, can use the money very much and 25 so can the other small cities in the area.

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(518) 371-8910 1 So hopefully they'll do the right 2 thing with the money, the county will find a 3 way to survive without the small amount out of 4 an ever-growing sales tax bonus that they get 5 by this extra sales tax and the previous extra 6 percent we passed a few weeks ago that 7 everybody seems to have forgotten -- back in 8 Western New York, not necessarily in this 9 chamber. 10 So hopefully this will serve as a 11 step forward. Maybe, as Senator Rath said, it 12 will serve as the start of people being more 13 careful about what they do with their finances 14 and try to streamline their governments and 15 make things more affordable for the people 16 that live there. 17 I vote aye. 18 ACTING PRESIDENT MORAHAN: Thank 19 you, Senator. 20 Announce the results. 21 THE SECRETARY: Ayes, 58. 22 ACTING PRESIDENT MORAHAN: The 23 bill is passed. 24 Senator Skelos, that completes the 25 reading of the noncontroversial calendar.

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(518) 371-8910 1 SENATOR SKELOS: Thank you, Mr. 2 President. 3 If we could go to the controversial 4 calendar. I think first we'll ring the bells 5 and let everybody know. 6 ACTING PRESIDENT MORAHAN: The 7 Secretary will ring the bells. 8 The Secretary will read. 9 THE SECRETARY: Calendar Number 10 147, by Senator Meier, Senate Print 6481A, an 11 act to amend the Penal Law and others, in 12 relation to establishing the offense of 13 aggravated murder of a child and making 14 technical corrections thereto. 15 SENATOR SCHNEIDERMAN: 16 Explanation. 17 ACTING PRESIDENT MORAHAN: 18 Senator Meier, an explanation has been 19 requested. 20 SENATOR MEIER: Thank you, Mr. 21 President. 22 This bill establishes a new Class 23 A-I felony of aggravated murder of a child. 24 And it provides for a mandated life sentence 25 without parole upon conviction for that crime.

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(518) 371-8910 1 The crime of aggravated murder of a 2 child occurs when the perpetrator is 18 years 3 of age and they are the parent, the guardian, 4 or other person legally responsible for the 5 care of that child, no matter how brief the 6 charge of that care may be, and they cause the 7 death of a child less than 14 years old. 8 And the standard is with depraved 9 indifference they recklessly engage in conduct 10 which creates a grave risk of serious injury 11 or death to the child and thereby causes the 12 death, or where it's done as a case of 13 intentional homicide. 14 Under current law, someone who uses 15 torture, who uses the most excruciating means 16 to murder a small child can wind up being 17 sentenced to as little as 15 years to life, 18 and that would mean the possibility of parole 19 within as little as 15 years. This corrects 20 what we believe is not just an outrage but an 21 obvious oversight in the law. 22 ACTING PRESIDENT MORAHAN: Thank 23 you, Senator. 24 Senator Sampson. 25 SENATOR SAMPSON: Thank you, Mr.

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(518) 371-8910 1 President. Would the sponsor yield for a 2 couple of questions. 3 ACTING PRESIDENT MORAHAN: 4 Senator Sampson has requested you to yield, 5 Senator. 6 SENATOR MEIER: Gladly, Mr. 7 President. 8 SENATOR SAMPSON: Through you, 9 Mr. President. When you talk about legally 10 responsible, would that include a common-law 11 wife or a common-law husband under the terms 12 of being legally responsible? 13 SENATOR MEIER: Well, there's -- 14 common-law marriage was abolished in New York 15 in the 1930s, as a matter of statute. 16 But what it does include is anyone 17 charged with the care of that child for a 18 period, no matter how brief. So it would 19 include a parent, it would include a guardian, 20 it might include a babysitter, a live-in 21 boyfriend or girlfriend, someone visiting -- 22 so long as for any period, however brief, the 23 care of that child is entrusted to them. 24 SENATOR SAMPSON: Through you, 25 Mr. President, if the sponsor would continue

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(518) 371-8910 1 to yield. 2 ACTING PRESIDENT MORAHAN: 3 Senator Meier, do you continue to yield? 4 SENATOR MEIER: Yes, Mr. 5 President. 6 ACTING PRESIDENT MORAHAN: The 7 Senator yields. 8 SENATOR SAMPSON: Through you, 9 Mr. President, when you say a brief period of 10 time, are we talking about 24 hours, are we 11 talking about a couple of days? When you have 12 a live-in boyfriend who may be a transient who 13 comes in and out of the home, at what point in 14 time does he become legally responsible for 15 the care of children that may not be his? 16 SENATOR MEIER: Well, Mr. 17 President, let me tell you the intent of this 18 bill. 19 When that person has enough time 20 with that child, as the live-in boyfriend -- I 21 guess he was the occasional live-in 22 boyfriend -- had with Quachaun Browne, he had 23 enough time to brutally murder that little 24 boy, that's enough time, Senator. That 25 triggers this, life without parole.

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(518) 371-8910 1 SENATOR SAMPSON: Mr. President, 2 would the sponsor continue to yield. 3 ACTING PRESIDENT MORAHAN: 4 Senator Meier, do you continue to yield? 5 SENATOR MEIER: Certainly, Mr. 6 President. 7 ACTING PRESIDENT MORAHAN: The 8 Senator yields. 9 SENATOR SAMPSON: But when you're 10 looking at the statute and you talk about 11 legally responsible and the period of time, we 12 need to understand whether or not does that 13 individual fit within the legal framework of 14 this piece of legislation. 15 SENATOR MEIER: Well, Mr. 16 President, with all due respect to the 17 distinguished Senator, there's ample case law 18 on this. We have experience in the homicide 19 statutes with regard to a person left in a 20 position of responsibility to watch a child. 21 We have experience with other 22 homicide statutes in terms of just these kinds 23 of situations -- a babysitter, a boyfriend, a 24 neighbor that someone says "Watch my daughter 25 while I go to the store." It is in fact a

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(518) 371-8910 1 jury question. It's an element that the 2 prosecutor must prove. But we do have case 3 law experience that it doesn't require all 4 that much time. 5 But, you know, we're really asking 6 how many angels can dance on the head of a pin 7 here. When we look at what happens in these 8 cases, and if you talk about trying to protect 9 children, we know what happens. We know who 10 Nixzmary Brown's murderer was. We know it was 11 her stepfather and someone who routinely lived 12 in that residence. That should not be a big 13 problem of proof. 14 We know who Quachaun -- we know who 15 the person, the defendant in the Quachaun 16 Browne case will be. That was a live-in 17 boyfriend, a member of that household. That 18 should not be a difficult matter of proof. 19 And, Mr. President, I understand 20 perhaps what the Senator's concern may be from 21 a legal point of view, but I don't think it 22 diminishes the necessity of passing this law 23 that in some instances prosecutors may have a 24 difficult time proving some elements. That 25 may be true in some cases, but I suspect not

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(518) 371-8910 1 so in the majority of cases. 2 In fact, Mr. President, if you want 3 to talk about difficulty in proving a case, I 4 spoke over the telephone to the district 5 attorney who's going to be responsible for 6 this case. And if he wanted to get a 7 conviction for an A-I felony on this case and 8 to prove that the child was murdered after 9 first having been tortured, in order to get an 10 A-I felony conviction showing that torture was 11 the means, if you will, that led up to the 12 child's death, he has to show that the 13 torturer derived gratification or pleasure and 14 prove that beyond a reasonable doubt. 15 That's a difficult item of proof, 16 to get into the rather byzantine, bizarre and 17 sick mind of somebody who would take pleasure 18 from torturing a child. 19 So this is designed to protect 20 children. It's designed to give prosecutors 21 an additional tool to do that. And the fact 22 that in some hypothetical case there may be a 23 problem of proof on an element is hardly a 24 reason to question the bill. 25 SENATOR SAMPSON: Through you,

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(518) 371-8910 1 Mr. President, if the sponsor would continue 2 to yield. 3 ACTING PRESIDENT MORAHAN: 4 Senator Meier, do you continue to yield? 5 SENATOR MEIER: Yes. 6 SENATOR SAMPSON: I'm not 7 questioning the importance of this bill. The 8 only thing I'm pointing out is there could be 9 a problem when you have a defense attorney on 10 the other side that when you talk about being 11 legally responsible and you're dealing with 12 the issue of in some of these households you 13 have single parents and you have a common-law 14 wife or a common-law husband who may be a 15 transient, who may be a guest at the time. 16 We're trying to create a statute 17 that punishes these individuals to give them 18 life in prison. But if you leave that door 19 open, you won't get the punishment that you're 20 seeking with respect to this legislation. 21 SENATOR MEIER: Mr. President, 22 the bill clearly says -- 23 ACTING PRESIDENT MORAHAN: 24 Senator Meier, do you continue to yield? 25 SENATOR MEIER: Yes.

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(518) 371-8910 1 The bill speaks in terms of a 2 person in a position of trust. The bill 3 clearly says, if you turn to page 3, beginning 4 with line 30, person in a position of trust 5 means any person who is charged with any duty 6 or responsibility for the health, education, 7 welfare, supervision, or care of another 8 person, either independently or through 9 another person. Through another person. In 10 other words, the mother, the father, whomever 11 asks someone else, no matter how brief. 12 Now, I think that's pretty clear. 13 Now, can we sit around and hypothetically 14 think of areas where a prosecutor might have a 15 little bit of a problem establishing that? 16 Yeah, he might. And is it inevitable that 17 some defense lawyer is going to take a line of 18 attack through that? You bet. That's what 19 defense lawyers do. 20 But I think we've got it covered to 21 the greatest extent possible, based on the 22 case law that we have, based on our prior 23 experience with these kind of statutes. 24 SENATOR SAMPSON: Thank you, Mr. 25 President.

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(518) 371-8910 1 ACTING PRESIDENT MORAHAN: Thank 2 you, Senators. 3 Senator Diaz. 4 SENATOR DIAZ: I yield. 5 ACTING PRESIDENT MORAHAN: 6 Senator Montgomery. 7 SENATOR MONTGOMERY: Thank you, 8 Mr. President. Thank you, Senator Diaz, for 9 yielding. 10 Mr. President, I would like to 11 speak on the legislation. 12 I understand, I see now that 13 Senator Meier has given a name to this 14 legislation. This is the Nixzmary Brown Act, 15 is that what this is? I believe. Nixzmary's 16 Law. 17 Mr. President, Nixzmary Brown and 18 her family lived in my district, and they 19 actually lived right across the street in 20 front of a precinct. And this clearly is one 21 of the great tragedies in my district for a 22 child, but it is certainly not the first one. 23 And I think that one of the 24 problems that we have to Senator Meier's 25 legislation, and to all of us who are trying

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(518) 371-8910 1 desperately to figure out how do we prevent 2 this happening, that family violence is very 3 troubling and very, very complex and difficult 4 to deal with. 5 And so it's not just the Nixzmarys, 6 but it's all of the people who witness it. 7 Usually in cases where children are abused, 8 women are abused in the same household. And 9 so -- and it's difficult even to have those 10 people who are abused actually decide that 11 they must leave in order to save their own 12 lives. 13 So it's very, very complex. I 14 don't have the answers, and I'm sure that most 15 of us don't. 16 But what we have done here in 17 Senator Meier's bill and the other legislation 18 today, in the name of looking to figure out to 19 help children, we have just created sentencing 20 laws, because that's easy. And we have longer 21 sentences, sentences of life without parole 22 for parents -- 23 SENATOR MEIER: Mr. President, 24 will Senator Montgomery yield for a question? 25 ACTING PRESIDENT MORAHAN:

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(518) 371-8910 1 Senator Montgomery, do you yield for a 2 question from Senator Meier? 3 SENATOR MONTGOMERY: I would like 4 to finish, and I would be happy to answer any 5 questions. 6 ACTING PRESIDENT MORAHAN: The 7 Senator does not yield at this moment. 8 SENATOR MEIER: I thank the 9 Senator. Thank you. 10 ACTING PRESIDENT MORAHAN: The 11 Senator does not yield at this moment. 12 Continue, Senator. 13 SENATOR MONTGOMERY: We're 14 creating a sentence of life without parole for 15 parents. And certainly parents should be 16 punished if they kill their children or maim 17 them or harm them or abuse them. And we 18 certainly do have and Senator Meier certainly 19 has introduced legislation to address that. 20 But I think this now has gone 21 further than just looking for ways to punish 22 the parents. There are so many nuances, so 23 many different aspects to this issue. So a 24 quick fix is not what we really need. It may 25 satisfy us for our political purposes, but it

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(518) 371-8910 1 does not address the issue. 2 Now, I am proposing -- and I hope 3 that we can have a discussion about this -- 4 that we look at creating, especially in 5 New York City but hopefully statewide, 6 something akin to what has been done in other 7 cities, namely Philadelphia, where I have 8 visited and talked to people who have done 9 this because they had similar problems and 10 looked for solutions. 11 I'm proposing that there be an 12 emergency response team made up of people not 13 where we just send a social worker into a 14 situation that is possibly dangerous for that 15 person, but where we have a team that is 16 comprised of the ACS plus all of the other 17 agencies, human services agencies, as well as 18 law enforcement. 19 Because this was a violent home. 20 Social workers were obviously afraid to go 21 into it. And once the child was reported and 22 there was some contact with that family, the 23 situation only got worse. 24 This was a father who was 25 unemployed from his security job. What a

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(518) 371-8910 1 horrible situation. You have five or six 2 children, you live in a one- or two-bedroom 3 apartment, and you have lost your security 4 job. And it goes on and on, the horrors of 5 this story. 6 So we need to have a mechanism 7 where we can address these issues before a 8 child dies. Hopefully, before a woman dies. 9 Because in many situations, if it's not one of 10 the children, it is the woman. 11 Let's step back and think through 12 what makes some sense. Let's work together. 13 Because this is not Nixzmary's Law. This is 14 not -- this doesn't address what happened to 15 Nixzmary, because this doesn't address her 16 family. No one is talking about what happened 17 to her mother before. She was 27 years old, 18 Mr. President, and she had five or six 19 children, and her oldest child is 7 years old. 20 This doesn't talk about Nixzmary. 21 This just talks about our need to rush and say 22 if you do something, let's give you a longer 23 sentence, ignore the possibility of judges 24 having anything to say about it, let's just go 25 life without parole and that will solve the

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(518) 371-8910 1 problem. This doesn't speak to Nixzmary. I 2 object to this bill being named Nixzmary's 3 Law. It's really not. 4 So, Mr. President, I'm going to 5 vote against this. That child lived in my 6 district, and I have pain about that. And I 7 would like to see something done to help 8 families who are caught up in a situation like 9 Nixzmary's family so we don't lose another 10 child and we don't lose another woman like 11 I've lost women in my district to domestic 12 violence. 13 So it's not Nixzmary's Law, it's 14 not the right thing to do, and I am voting no 15 on this bill. 16 Thank you. 17 ACTING PRESIDENT MORAHAN: Thank 18 you, Senator. 19 Senator Meier. 20 SENATOR MEIER: Will Senator 21 Montgomery yield for a question? 22 ACTING PRESIDENT MORAHAN: 23 Senator Montgomery, will you yield to Senator 24 Meier? 25 SENATOR MONTGOMERY: Yes, I will.

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(518) 371-8910 1 SENATOR MEIER: Mr. President, I 2 wonder if the Senator could tell us what she 3 thinks an appropriate penalty would be if -- 4 SENATOR MONTGOMERY: Well -- 5 SENATOR MEIER: Well, let me 6 finish the question, Senator. 7 SENATOR MONTGOMERY: Yes, go 8 ahead. 9 SENATOR MEIER: -- what an 10 appropriate penalty would be in a case where 11 the following facts were proven: where a 12 26-year-old, fully grown man brutally beats 13 and tortures a 7-year-old child to death. 14 What's the appropriate penalty, Senator? 15 SENATOR MONTGOMERY: Mr. 16 President, I'm looking at this -- I don't have 17 the law book in front of me, but this says 18 that a parent or a guardian who is convicted 19 of murdering his or her child less than 20 14 years of age can be -- and who 21 intentionally murders his or her child is 22 subject to a parole-eligible sentence of 23 between 15 to 25 years and a maximum of life. 24 We now have in law a bill, a law 25 which allows us to -- in the event the judge

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(518) 371-8910 1 makes a determination that that is correct 2 thing to do, we can sentence them to life. So 3 it's not that we don't have a law that would 4 allow us to do it, we just don't have a system 5 which protects families and children in this 6 situation from being killed, hopefully. 7 That's what I'm looking for, 8 Senator Meier. I'm not looking for 9 necessarily another sentencing bill, because 10 we have that. You said it. It's in your memo 11 right here. You say we have -- we can do 12 that, we can punish them, sentence them to 13 life. It's up to the judge to make the 14 decision. 15 That's what I would like to see us 16 use. But I would also like for us to focus on 17 how do we keep those children from being 18 killed in the first place. 19 SENATOR MEIER: Would the Senator 20 yield for another question? 21 ACTING PRESIDENT MORAHAN: 22 Senator Montgomery, do you yield? 23 SENATOR MONTGOMERY: Yes, I do. 24 ACTING PRESIDENT MORAHAN: The 25 Senator yields.

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(518) 371-8910 1 SENATOR MEIER: Mr. President, I 2 would ask the Senator if she understands that 3 when we talk about 15 years to life, that's 4 what is called an indeterminate sentence. And 5 at the end of 15 years, the New York State 6 Board of Parole can parole someone under such 7 a sentence. 8 So I would ask the Senator if she 9 would feel that under the hypothetical that I 10 posed to her, a 26-year-old, fully grown man 11 tortures and beats a 7-year-old little girl to 12 death -- while, by the way, she begs for 13 mercy, begs for help, and he beats and 14 tortures her to death -- do you think it's 15 appropriate that that man can be out on the 16 street at age 41 years with a full, long life 17 ahead of him? Is that appropriate? 18 SENATOR MONTGOMERY: Mr. 19 President, I want to be very clear. It is not 20 appropriate for any parent to kill their 21 child. It is not appropriate for any person 22 to kill another person. We have laws that 23 deal with that. And we have punishment that 24 deals with it. 25 And all I'm saying to you, Senator

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(518) 371-8910 1 Meier, is that -- in answer, Mr. President, 2 through you, in answer to his inquiry -- I 3 think it's a rhetorical question that he asks, 4 absolutely, because we have checks all along 5 the way. We have the sentencing judge, we 6 have the parole system. And so there are 7 checks along the way if indeed it is necessary 8 that a person spends their life in prison. We 9 have a number of people who are spending their 10 lives in prison. 11 That, I think, our system takes 12 care of. What our system has not been able to 13 do successfully is to have a mechanism whereby 14 we can identify, early enough to intervene, 15 symptoms and signals where things have gone 16 wrong for a child. A child who comes to 17 school obviously having been abused by 18 someone, someplace. Who do we report to? Who 19 reports them? Who goes to check on the 20 report? That's where we have not been able to 21 establish a working, workable system. 22 So what I'm talking about is not 23 looking for another way -- another extension 24 of the penalty. I'm looking for a way to 25 hopefully prevent another child or another

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(518) 371-8910 1 woman from being killed and to be able to pick 2 up the signals early, to be able to intervene 3 appropriately early, and to avoid this kind of 4 horrible death. 5 Let's use Nixzmary for a positive, 6 positive response from our Legislature and our 7 government officials for once and not to just 8 run and look for another criminal justice 9 bill. So this is not Nixzmary's Law. We 10 should retract that. It's Senator Meier's 11 extension of the Criminal Justice Act to 12 provide life without parole for parents. 13 Thank you. 14 ACTING PRESIDENT MORAHAN: Thank 15 you, Senator. 16 Senator Little. 17 SENATOR LITTLE: Thank you, Mr. 18 President. 19 I'd like to take this opportunity 20 to speak on this bill because I think what 21 we're doing today is very important and 22 certainly very appropriate. 23 There is no greater gift, I don't 24 believe, than the gift of a child in your 25 life, be it a biological child, an adopted

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(518) 371-8910 1 child, or a child in your custody. And as the 2 mother of six children, I just fail to 3 comprehend how any parent, mother or father, 4 could stand by and watch a helpless child -- 5 and really, all children under the age of 14 6 are vulnerable and helpless. They can't 7 really defender themselves. They are subject 8 to our control, the control of their parent. 9 But to sit by and watch and to 10 allow what happened to this child is 11 absolutely unbelievable to me. It is inhuman 12 that you could allow that to happen. Children 13 are a precious gift. 14 Recently, in my district, we just 15 had another sad incident. A young mother, 34, 16 had seven children, none in her custody except 17 this eighth child. The eighth child she slept 18 with, at seven months old, while she was 19 allegedly intoxicated and using pharmaceutical 20 drugs, prescription drugs. The 7-month-old 21 child suffocated. 22 These things should not, cannot 23 happen. And when they do happen, they need an 24 appropriate penalty. This child never had her 25 eighth birthday. And yet the man who caused

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(518) 371-8910 1 her death will celebrate and could celebrate 2 his 41st, 42nd, 45th and 50th birthday as a 3 free person. 4 We need this penalty. We need to 5 say life without parole. We have it for the 6 killing of a child in the course of a sexual 7 act or committing rape. The killing of a 8 child is the killing of a child, a helpless 9 child. We need to have this penalty. And I 10 hope that all of my colleagues will support 11 this bill today. 12 Thank you. 13 ACTING PRESIDENT MORAHAN: 14 Senator Diaz. 15 SENATOR DIAZ: Thank you, Mr. 16 President. I rise to speak on the bill. 17 ACTING PRESIDENT MORAHAN: 18 Senator Diaz, on the bill. 19 SENATOR DIAZ: Last year, three 20 days before Christmas, the Governor called an 21 extraordinary session of the Legislature. 22 That was on Wednesday, December 21, 2005. The 23 purpose of that extraordinary session was in 24 response to pressure mounted by the New York 25 Post and the New York Daily News in regard to

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(518) 371-8910 1 the assassination of two police officers, 2 Officer Daniel Enchautegui and Officer Dillon 3 Stewart. 4 On that day, Wednesday, 5 December 21, 2005, I spoke and voted against 6 the police killer bill. Let me now read my 7 statement from that day. That day, 8 December 21, 2005, I started by saying: "Let 9 me express my condolences to the families of 10 Police Officer Dillon Stewart and Police 11 Officer Daniel Enchautegui and to all of those 12 families who have lost a loved one in the line 13 of duty. As the father of a New York City 14 police sergeant, I could sympathize with their 15 pain, knowing that at any time my family could 16 be next." 17 "I want to make it clear," I said 18 that day, "that I fully support those brave 19 men and women of the New York City Police 20 Department who risk their life in their daily 21 work. However, saying that," I said, "I would 22 like to share with you some of my concern 23 about this legislation" that day. 24 "According to the statistics 25 reported in the New York Post on Monday,

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(518) 371-8910 1 December 19, 2005, in New York City there have 2 been 509 killings, homicides. 62 percent were 3 committed with guns, 59 percent of the victims 4 were black, 27 percent of the victims were 5 Hispanic, and 8 percent of the victims were 6 white." 7 I said that these statistics showed 8 that out of 509 homicides or killings in 9 New York City in 2005, 86 percent of the 10 victims were black and Hispanic. These, I 11 said, I suppose include grocery store owners 12 and workers or what we call bodegueros. 13 These, I said, I suppose include taxi drivers, 14 especially livery car drivers. These, I 15 suppose, include senior citizens and every 16 other citizen in the black and the Hispanic 17 community. 18 After reading these statistics, I 19 said, I have to ask myself the following 20 question. And I asked this question that day: 21 If the black and Hispanic bodegueros or the 22 black and Hispanic bodegueros, taxi drivers, 23 and all senior citizens are the ones getting 24 killed the most, why support legislation that 25 applies only for those that kill members of

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(518) 371-8910 1 the police department and not bodegueros and 2 taxi drivers? 3 I said, "My daughter, my only 4 daughter, is a member of the New York City 5 Police Department. She's a sergeant. And as 6 I said before, at any time my family could be 7 subject to the same suffering as the 8 Enchautegui family and many other police 9 officers' families." 10 Nonetheless, I said -- listen 11 carefully -- nonetheless, I said, I have to 12 ask myself if the life of a police officer is 13 worth more than the life of a bodeguero, a 14 taxi driver, a senior citizen or any other 15 New Yorker. 16 I said: "Are we sending a message 17 to criminals out there telling them that if 18 they want to kill someone that they are better 19 off a choosing a bodeguero, a taxi driver, a 20 senior citizen, or any other because they will 21 get a lesser sentence that way?" 22 "I am in support of legislation," I 23 said, "that increases penalties on anyone that 24 kills or that takes the life of a police 25 officer or anyone else. I believe that if we

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(518) 371-8910 1 are going to send a message to criminals and 2 if we want to stop crime in New York once and 3 for all, we have to toughen penalties for the 4 killing of anyone." 5 Finally, I asked, what is our 6 message today to New Yorkers? Is it that a 7 police officer's life is worth more than other 8 lives? 9 Ladies and gentlemen, on that 10 occasion, Wednesday, December 21, 2005, I 11 advised all of you that every human life has 12 equal value: Black, Hispanic, white, Asian, 13 Indian, police officers, children, taxi 14 drivers, bodegueros or a grocery store worker, 15 senior citizens everywhere. They are all 16 precious lives, and they all have the same 17 value. One is not better than the other. 18 Today, just a few weeks after that 19 day, December 21, 2005, we are facing a 20 situation that I foresaw back then and that 21 only Senator Kevin Parker understood and 22 followed and joined me. Today we are trying 23 to increase penalties for children killers. 24 The brutal murder of Nixzmary Brown 25 by her guardian and the abuse and killings of

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(518) 371-8910 1 many other children cannot be and should not 2 be forgiven. We have to act now. But we 3 could have done it last year. On Wednesday, 4 December 21, 2005, three days before 5 Christmas, we could have done that. 6 Today, one more time, under the 7 pressure of the media, we are dealing with the 8 same problem, increasing penalties for those 9 that kill a child. Last time it was to 10 increase penalties for those that kill a 11 police officer. Contrary to the last bill, I 12 am voting in favor of this bill. 13 However, one more time I am telling 14 all of you that we should not wait until 15 tomorrow, when they kill a few senior citizens 16 or a few taxi drivers or a few bodegueros. 17 And we should not wait until the New York Post 18 and the Daily News start pressuring us to 19 increase penalties on senior citizen killings, 20 and on bodegueros, to act. 21 All life are equal. All life are 22 precious in God's eyes. We are all children 23 of God. And going back to what Senator 24 Montgomery said, and somebody asks: What 25 should we do? Why don't we pay attention

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(518) 371-8910 1 before that? Well, ladies and gentlemen, let 2 me tell you something. Children have been 3 killed in the City of New York, children have 4 been abused, and I see our Mayor next to the 5 commissioner of ACS, Administration for 6 Children's Services, saying that his support 7 for the commissioner has grown. 8 So when is it that we will 9 understand that it's under Commissioner John 10 Mattingly's supervision that those killings 11 and those children have been killed and have 12 been abused? When are we going to ask -- when 13 is the Mayor going to ask him to resign? When 14 are we going to put somebody there that 15 really, really looks into the problem before? 16 Because we have ample information 17 that Nixzmary's killing could have been 18 avoided if the Department of ACS, the 19 Commissioner and the administration of the 20 City of New York, could have done better. 21 The Mayor said we all have failed, 22 the administration has failed, the city has 23 failed. We all have. No, ladies and 24 gentlemen, Mr. Mayor, Commissioner, we have 25 not failed -- you failed. Your administration

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(518) 371-8910 1 failed. And it's about time that the Mayor 2 remove the commissioner so we protect our 3 children better. 4 Thank you. I'm voting yes on this 5 bill. 6 ACTING PRESIDENT MORAHAN: Thank 7 you, Senator. 8 Senator Maltese. 9 SENATOR MALTESE: Mr. President, 10 on behalf of my constituents in Queens County, 11 I wish to express our sincere appreciation to 12 the sponsor of the bill, Ray Meier, and all 13 the other sponsors of the bill, as well as 14 express appreciation to Assemblywoman Nettie 15 Mayersohn, who has been fighting this fight to 16 protect children and to penalize their 17 murderers for many years. 18 She advised me just earlier today 19 that on a comparable bill in her house she has 20 already received assurances from over 100 21 Assembly members that they will cosponsor this 22 bill. 23 Mr. President, Senator Meier has 24 indicated that he spoke to Charles J. Hynes, 25 Joe Hynes, the district attorney of Kings

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(518) 371-8910 1 County, and he has worked with Senator Meier 2 and others on formulating this bill, which 3 admittedly, to my good colleague Senator 4 Montgomery, is a punishment bill. 5 At the same time, we have 6 approached this bill, we in the Senate have 7 approached this question, this issue, in a 8 variety of ways. And tomorrow my 9 understanding is that we will pass legislation 10 that will require caseworkers to receive 11 annual training that will provide educational 12 resources for adoptive and foster parents, 13 that will give caseworkers access to criminal 14 records of those they investigate. 15 And we in the Senate Majority have 16 had repeated meetings with the New York State 17 Child Protective Services, with others in a 18 position of responsibility for protecting the 19 most vulnerable in our society, the children. 20 And we will be holding task-force meetings, 21 hearings, just as has been held and will be 22 held in the Assembly, to address a problem. 23 Almost forty years ago I served as 24 a Queens prosecutor and deputy chief of the 25 homicide bureau and had the responsibility of

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(518) 371-8910 1 investigating some of these same heinous 2 murders -- children killed, raped and 3 murdered, in one case, a 9-year-old girl, by 4 her own father. Similar situations, similar 5 cases where the adequate punishment was not 6 there to at least punish the transgressor, the 7 perpetrator of these horrific crimes. 8 Here we are almost forty years 9 later, and the same crimes are again 10 occurring. And we in the Legislature, because 11 of this little girl, because of this 12 7-year-old girl, Nixzmary Brown, are trying to 13 prevent a horrendous act like that from 14 occurring again. 15 At the same time, we must serve 16 notice that a person in trust with the custody 17 of these most vulnerable of our young, those 18 that entrust their safety, their very lives to 19 the parents, to those that are acting as 20 stepparents or with custody of these children, 21 who have nowhere else to turn, that at least 22 if those children are horribly murdered, 23 tortured, abused, and murdered, that we will 24 exact a penalty of life without parole. 25 Admittedly, this bill doesn't

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(518) 371-8910 1 answer all the concerns and the questions of 2 Senator Montgomery and many others. At the 3 same time, a crime like this speaks out, cries 4 out for some type of punishment that fits the 5 crime. And this punishment does not fit this 6 crime. 7 I know this bill has been labeled 8 and Assemblywoman Mayersohn also is reluctant 9 to label it Nixzmary's Law. But some of us 10 felt that this little 7-year-old girl that had 11 too short a life should be remembered. As I 12 think back over the almost forty years of the 13 hundreds and probably thousands of vulnerable 14 children that have been killed by those that 15 they should be seeking and receiving 16 protection from, this little girl -- and I 17 know that it has received press coverage, and 18 I know that it has aroused anger and outrage 19 on the part of a population beyond New York 20 City, beyond the State of New York, a 21 7-year-old child that was tortured and abused 22 over a lengthy period of time, and so many 23 warnings signals that were ignored. 24 I would hate, I would not wish to 25 be in the place of those ACS workers that

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(518) 371-8910 1 perhaps asked themselves should they have 2 pressed a little harder, should they have 3 received somebody in law enforcement to go 4 with them, should they have pressed for entry 5 into the household, should they have secured 6 assistance from a supervisor. As the 7 supervisors, should they have gotten others to 8 step in and look over the case. 9 Here we had doctors that I believe 10 should have done more to ascertain the causing 11 of bruises and injuries that were patently 12 unexplained. 13 This case cries out for the 14 ultimate punishment. This case -- we cannot 15 take steps to make sure that this never 16 happens again. At the same time, the torture 17 that this child received, the abuse that this 18 child received, tied to a chair by a person 19 who calls himself a man, tied to a chair with 20 the apparent acquiescence of the mother that 21 the child cried out to -- "Mama, Mama, 22 Mama" -- and received no assistance. 23 The neighbors that now say, Maybe I 24 should have heard, maybe I should have stepped 25 in, the relatives that are now bemoaning the

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(518) 371-8910 1 fact that they could have done something, 2 should have done something -- those people 3 will carry that burden for the rest of their 4 lives. 5 We here in the Senate have a 6 responsibility to enact statutes. We try to 7 protect the most vulnerable. In this case, we 8 also must act on our obligation to punish the 9 guilty. Life without parole is too easy for 10 the perpetrators of this heinous crime but is 11 what we can accomplish now and what we should 12 pass and enact into law. 13 ACTING PRESIDENT MORAHAN: Thank 14 you, Senator. 15 Senator Savino. 16 SENATOR SAVINO: Thank you, Mr. 17 President. 18 I rise in support of this bill. 19 And as I said earlier, my experience in the 20 child welfare administration, both before the 21 creation of ACS, the actual creation of it, 22 and its current configuration -- I know that 23 I'm not the only one in this chamber that has 24 experience in this area. 25 I know Senator Meier has been a law

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(518) 371-8910 1 guardian for children. He's uniquely aware of 2 the problems that these families face. I know 3 Senator Robach has experience. I know many of 4 you through your experience in law 5 enforcement, those of you who are social 6 workers or educators have encountered this in 7 your entire career. 8 And as I listen to the debate 9 today, what I hear is a desire to address what 10 we recognize is a heinous crime and a despair 11 over the fact that no matter what we do, we 12 cannot seem to prevent the abuse and neglect 13 of children. 14 Here's a hard and fast reality, 15 ladies and gentlemen. People who are 16 ill-prepared to have children reproduce every 17 day, and we can't legislate against that. 18 People who should not have children are 19 capable of it and they do it and they don't 20 take care of them and they neglect them and 21 they abuse them, and we cannot really stop 22 that from happening. 23 We can punish them when we catch 24 them, but unfortunately, for us to punish 25 them, they have to come to our attention. And

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(518) 371-8910 1 by the time they come to our attention, all 2 too often the damage has been done. Whether 3 it's abuse or neglect or a combination of the 4 two, whether it's educational neglect or 5 medical neglect, first children have to 6 suffer. 7 And I wish that we could craft a 8 piece of legislation that would prevent that 9 from happening. I wish we could do it. 10 The current Administration for 11 Children's Services is not the agency I went 12 to work for 16 years ago, certainly not. It 13 has been through numerous changes. And at one 14 point, because of the death of another little 15 girl just about ten years ago, Elisa 16 Izquierdo, it underwent a major reform and 17 overhaul, and it became a model across the 18 country for child welfare. 19 But like every incarnation of this 20 agency, if you take your eye off the ball, if 21 you shift resources away, if you don't recruit 22 and retain competent staff, if you cut 23 community-based services, if you just don't do 24 the education and outreach to mandated 25 reporters like teachers, like doctors, like

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(518) 371-8910 1 nurses, if you don't encourage people to be 2 vigilant on this, this is what happens. 3 We've seen in the past two years in 4 ACS a mass exodus of people leaving. It's an 5 incredibly difficult job, incredibly 6 difficult. And unless you have knocked on 7 someone's door in the middle of the night and 8 asked them to give you their children, you 9 really cannot understand just how hard it is. 10 That does not mean that there were 11 not mistakes made in this case, and they will 12 be dealt with. However, if we want to have an 13 impact, and I think we do -- what I hear is a 14 frustration and a desire so that there is not 15 another law named another dead child -- then I 16 think what we can do is address some of the 17 inequities in the child welfare system. And 18 it's not just about throwing money at a 19 problem. It really isn't. 20 It's about going back to the model 21 that we started a few years ago, fine-tuning 22 it. Perhaps there's things we can do in the 23 Family Court law. Are there barriers to early 24 intervention in families? Are our teachers 25 aware of the triggers of the child abuse and

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(518) 371-8910 1 neglect? Are they intervening, or are they 2 calling it in? Do our nurses and doctors 3 know, our daycare providers? 4 And how about an outreach in 5 education to the public? Because before ACS 6 may have failed this little girl, before her 7 doctor did, before anybody else did, her 8 family failed her. They stood by and they did 9 not do anything. Her neighbors failed her. 10 The people in her community failed her. You 11 cannot see a child who is viciously abused and 12 not recognize that there's something wrong. 13 So we all have to understand that 14 it is not just the responsibility of 15 government or the criminal justice system. I 16 hate to use the metaphor that it takes a 17 village to raise a child, but in this instance 18 it does. We are all responsible for the 19 children in our lives and our communities. 20 And I hope that we don't just pass this bill 21 today and then forget about it until the next 22 child is dead. 23 Thursday morning the Assembly is 24 convening hearings on this issue. I think it 25 would be wonderful if members of the Senate

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(518) 371-8910 1 who are in New York City could attend, or if 2 the Senate could convene its own hearings. 3 And perhaps we can finally begin to address 4 the triggers that lead to child abuse and 5 neglect in New York City. 6 Thank you. 7 ACTING PRESIDENT MORAHAN: Thank 8 you, Senator. 9 Senator Balboni. 10 SENATOR BALBONI: Mr. President, 11 about a week or two ago we had the 12 anniversary, I think it was over 30 years ago, 13 of the brutal murder of a woman by the name of 14 Kitty Genovese. She died in Queens. She died 15 in the middle of the street. And the 16 neighbors could hear her cries, and they did 17 nothing. 18 That case captivated the United 19 States and came to symbolize crime and fear in 20 our cities and the apathy of our neighbors. 21 Well, so has this case captivated us, because 22 there are many elements that are the same 23 here. 24 That's why I object to the 25 characterization of this bill as merely a

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(518) 371-8910 1 sentencing bill, that somehow by enacting this 2 law we automatically assign to a defendant a 3 penalty. Forgetting that there is a justice 4 system that has our constituents as the jury 5 and elected and appointed officials as the 6 judge who will make determinations, based upon 7 this language, as to guilt or innocence. 8 Likewise, the concern about 9 victim-specific penalties is no concern of 10 mine. It is always in our legislative history 11 that we have decided as a society there are 12 certain members that deserve more protection 13 than others. The Latin phrase that is 14 throughout the law is "parens patriae." We 15 are in a position to protect our children. 16 And if someone attacks my children, they 17 should get a much harder penalty than 18 attacking me. So this is a perfectly 19 appropriate response. 20 And lastly, it is wholly 21 appropriate, and not exclusive in remedy, that 22 we choose to express our outrage as a Senate 23 and as a society that this would occur. And 24 it is depressing to think that anyone would do 25 this to a child -- the most vulnerable, the

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(518) 371-8910 1 most innocent. We give voice to those who do 2 not have a voice. To stand by and let this go 3 by is to stand at the abyss of the breakdown 4 of our society, because there's no more basic 5 job that we have to do than to protect our 6 children. 7 Now, hopefully, in a couple of 8 weeks we'll be voting to spend millions of 9 dollars on Child Protective Services 10 throughout every corner of this state. But 11 going to Senator Savino's point, we can't 12 blame the system, ladies and gentlemen, 13 wholly. Yes, ACS failed this individual 14 child. But it's the individual responsibility 15 of the person who committed the crime that we 16 must look to, and that's who we look to today. 17 I'm going to vote aye on the bill. 18 Thank you, Mr. President. 19 ACTING PRESIDENT MORAHAN: Thank 20 you, Senator Balboni. 21 Senator Marcellino. 22 SENATOR MARCELLINO: Thank you, 23 Mr. President. 24 One problem when you speak late in 25 the session and after a lot of speakers have

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(518) 371-8910 1 spoken before you, many of your points have 2 already been made. So I won't go back over 3 each and every one of them. 4 I too remember the Kitty Genovese 5 case, and I do remember the outcry that 6 occurred after that. And I do remember when 7 they tried to pass legislation, people were 8 standing up and saying: Well, it's not just 9 the punishment, it's the system. And we've 10 got to deal with the system because it failed. 11 It failed. 12 This was in a middle-class 13 neighborhood that this occurred. So it occurs 14 in all neighborhoods. We've had situations 15 tragically occur in my Senate district not 16 that long ago, of a similar nature, where a 17 child was abused. 18 Where were the parents? Where were 19 the schools? Where were the social workers? 20 Where were the courts? Where were the judges, 21 where were the police? We could go on and on 22 and on and lay it off. 23 One of our U.S. Senators said it 24 takes a village -- we've heard that too -- to 25 raise a child. I suggest it takes a community

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(518) 371-8910 1 to protect one. Certainly the parents didn't. 2 What do we do if we pass 3 legislation tomorrow, if we put up legislation 4 that doesn't punish the perpetrator of the 5 act? What if we took the children away from 6 that mother? Would that make us happy? What 7 if we took each and every one of those 8 children out and we said, This is an unfit 9 parent who cannot raise a child because, I 10 don't know, maybe she was a drug addict, maybe 11 she was -- who knows. I don't know the full 12 background. 13 But she was living with a guy who 14 obviously was not stable, and that man killed 15 a helpless child. That man has to be punished 16 for that act. We're going to give him to 17 psychiatry, we're going to put him in an 18 institution where he's given mental health 19 treatment and we don't remember what he did? 20 It's a very difficult question. I 21 agree with you, Senator, it's a complicated 22 issue. But I think what we have to do is 23 separate two things, the social problems from 24 the act itself. The act is unforgivable. I 25 cannot feel sympathy for any adult that

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(518) 371-8910 1 destroys the life of a helpless child. They 2 don't deserve our pity. They just don't 3 deserve it. 4 Senator, I suggest you should 5 change your mind and I think you should vote 6 for this bill, because that's the message that 7 we need to send. I agree with you there has 8 to be an address of the system. We have to 9 look at the cause. Those are the complicated 10 issues, how to help that mother, if she was 11 abused, to come to the right conclusion. 12 How do you prevent someone from 13 having children that they can't care for, 14 perhaps don't even want, but don't know how to 15 stop? It goes on and on and on. It's never 16 ending. And if we keep getting bogged down, 17 the people who destroy a helpless child don't 18 get the punishment they deserve. 19 The punishment this person deserves 20 is Senator Meier's legislation. That person 21 deserves to be off the street and never to see 22 it again. There's no forgiving that. 23 Dealing with the other cause, the 24 other issues, I agree with you. There's the 25 complexity. And I don't have the answer. I

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(518) 371-8910 1 don't have the answer. Perhaps wiser heads 2 will come up with it. But right now we have 3 something before us that we can deal with. 4 And I think we have to get this type of an 5 individual who would act in such a vicious 6 way -- that person has to be taken off the 7 streets to protect society again. 8 We cannot have these people walking 9 around who are going to kill children. We 10 just cannot allow it. As a compassionate 11 society, we want to help people who need help. 12 But as we said before, let the punishment fit 13 the crime. If you commit such a heinous crime 14 as this, you deserve the ultimate punishment. 15 You deserve life imprisonment without parole. 16 Because you don't deserve to be in the company 17 of civilized people. 18 I intend to support this bill. 19 ACTING PRESIDENT MORAHAN: Thank 20 you, Senator Marcellino. 21 Senator Golden. 22 SENATOR GOLDEN: Thank you, Mr. 23 President. 24 I too rise to congratulate my good 25 colleague Ray Meier and Senator Serph Maltese

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(518) 371-8910 1 and others that worked with the district 2 attorney, Joe Hynes, in Brooklyn to put 3 together a piece of legislation that we 4 believe works. 5 And an estimated over 3 million 6 children were reported to child protective 7 service agencies as alleged victims of child 8 abuse. That was in 1998. And over 9 approximately 1 million of these reports were 10 confirmed. The number has not gone down; it 11 continues to go up. In 2003, 77,086 New York 12 State children were abused or neglected -- 17 13 out of every 1,000 children. It gets uglier. 14 Nineteen percent of the victims were aged 2 or 15 younger, and 52 percent are aged 7 or younger. 16 In the nation overall, and here in 17 New York City and New York State, crime has 18 fallen over 22 percent. But in that area, 19 reports of child abuse and neglect have gone 20 up over 8 percent by 1997 and continue to grow 21 to the present date. 22 In 1998, three children a day were 23 being killed and assaulted and abused and 24 neglected. Dead. Figure that's pretty bad. 25 But in 1999, it went up to almost four a day.

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(518) 371-8910 1 And since 1985 the fertility rate has gone up 2 39 percent. 3 I don't know what message we're 4 waiting to send. I think the message that 5 that body is going to send today is the right 6 message: No more Nixzmary Browns here in this 7 city and this state. 8 So again, I urge all of my 9 colleagues to vote for this legislation. And 10 as we see Nixzmary Brown in New York City, 11 we've seen a couple more children since then, 12 and the numbers continue to grow. 13 So I vote aye, Senator Meier, and 14 thank you for your legislation. 15 ACTING PRESIDENT MORAHAN: Thank 16 you, Senator Golden. 17 Senator LaValle. 18 SENATOR LaVALLE: Thank you, Mr. 19 President. 20 It seems whenever we have 21 legislation dealing with our young people, 22 this chamber and the members demonstrate a lot 23 of passion and enthusiasm. And certainly our 24 future are our children. 25 And every member here, every single

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(518) 371-8910 1 member -- I was thinking about this through 2 the debate -- really has always been so 3 supportive in what they do, either in their 4 prior lives before being elected or today, in 5 doing things that protect our children to 6 support our children. 7 I think each and every day we're 8 here in session someone is introducing a bill 9 or a bill is being reported from committee or 10 a bill is being passed on the floor that goes 11 to looking at the society, the problems, and 12 how we can make it a better place, 13 particularly when it concerns our children. 14 This session already, if you look 15 at the bills that we've passed, our focus and 16 the intensity has been there to do just that. 17 We are dealing with a situation where there 18 was obviously a depraved indifference to a 19 life. And I think, as we begin to analyze 20 this, I think members who have spoken have 21 really bifurcated the issues and said, yes, 22 there are issues. 23 And that's what I'm speaking of. 24 Every day we're here, we deal with the issues 25 of how we can protect our children. But once

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(518) 371-8910 1 someone shows depraved indifference for our 2 children, then we say, as a society, we must 3 put a law in effect that says you crossed the 4 line and our society will not stand for that. 5 That's what it's all about. A life has been 6 taken. 7 Senator Meier, you are to be 8 congratulated, Senator Maltese, and others who 9 really spent hands-on time in developing this 10 legislation. 11 All of us know that we keep 12 repairing and fixing the system, as I have 13 said so many times. I am afraid that as much 14 vigor that we put in to fix and repair the 15 societal problems, there are those that are 16 dysfunctional, and all the money that we put 17 into the system, and the hard work in our 18 education system and the social workers, goes 19 for naught. 20 We continue to try. We don't shirk 21 our responsibility; we continue to try to fix 22 the system. But at the same time, we cannot 23 turn our backs when a member of our society 24 shows depraved indifference. He must be 25 punished to protect those that really can't

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(518) 371-8910 1 protect themselves. 2 I will be voting in the 3 affirmative, Mr. President. 4 ACTING PRESIDENT MORAHAN: Thank 5 you, Senator LaValle. 6 Senator Hassell-Thompson. 7 SENATOR HASSELL-THOMPSON: Thank 8 you, Mr. President. 9 I would like if the sponsor would 10 just yield for one question. 11 ACTING PRESIDENT MORAHAN: 12 Senator Meier, will you rise and yield to a 13 question? 14 SENATOR MEIER: Yes, Mr. 15 President. 16 SENATOR HASSELL-THOMPSON: Thank 17 you, Senator. 18 Through you, Mr. President, I just 19 need -- this is a question purely of 20 clarification. 21 By naming this Nixzmary's Law, 22 aren't we presuming -- and I heard you use the 23 language "we know," in your presentation, that 24 he did it, that they did it. But aren't we 25 presuming, before this case has been tried,

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(518) 371-8910 1 that in fact we -- we're almost trying this 2 case in a public manner that might, in fact, 3 interfere with the very thing that we want to 4 try to make happen in this case? That's my 5 only question. 6 ACTING PRESIDENT MORAHAN: 7 Senator Meier. 8 SENATOR MEIER: No. I don't 9 think so at all, Mr. President. 10 We are not prejudging a criminal 11 case. But what we know is somebody beat and 12 tortured this child to death. That is a 13 certainty. The defendant, defendants in this 14 case will have their day in court. 15 What came to light as a result of 16 this case, when you talk to the prosecutor, is 17 the inadequacy of the criminal statutes as 18 they deal with a situation like this. And 19 that's what this case addresses. We're not 20 prejudging any particular defendant. 21 SENATOR HASSELL-THOMPSON: Just 22 on the bill. 23 ACTING PRESIDENT MORAHAN: 24 Senator Hassell-Thompson, on the bill. 25 SENATOR HASSELL-THOMPSON:

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(518) 371-8910 1 Senator Meier, thank you for your 2 clarification. 3 I'm not as clear, however, that 4 some of your colleagues in the presentations 5 today haven't really come very close to the 6 line on that. 7 I think that I've worked with you 8 on enough bills and on enough issues that I 9 really do understand your intent. And I 10 believe that, of a few people in this chamber, 11 I think I believe I understand what's in your 12 heart. And that becomes important to me. 13 It becomes important to me because, 14 as someone who has worked with children for 15 much of my life -- I started my career as a 16 pediatric nurse and then went from pediatric 17 nursing to infant daycare and then worked with 18 families with children and have worked with 19 very troubled families over the course of 20 those many years. 21 And I know that what I've tried 22 very hard never to do is to judge whether 23 parents are good parents or bad parents. But 24 I like to try to talk about whether parents 25 are effective in their parenting or

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(518) 371-8910 1 ineffective. It is very clear that this is 2 way over the line of anything that is even in 3 the realm of parenting. And so it is never my 4 attempt to make excuses. 5 But it is my concern that we are 6 not, in this chamber -- and for the first time 7 I heard Senator Balboni say: In a few weeks, 8 when we get to the budget, we're going to 9 begin to talk about where we're going to put 10 the money. And I think that I have stood in 11 this seat over the six years, going into my 12 sixth year, and said at the point we begin to 13 demonstrate in the budget that we care, then 14 we will truly be able to put our money where 15 our mouth has been. 16 And while I don't think that we 17 certainly need to get caught up in the social 18 implications of this issue, we can't dismiss 19 the social implications. Primarily because 20 the neighbors didn't complain either. Nobody 21 came forth. So we have created a society 22 where our children become an endangered 23 species just by virtue of our own silence. 24 This bill talks about speaking out 25 and sending the message. And I want to send

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(518) 371-8910 1 the message, but I want us to be very, very, 2 very clear that in the process of how we -- I 3 almost said "adjudicate," because sometimes I 4 feel like that's what we do here -- but in the 5 process as to how we enact things, that we are 6 clear about what it is that we're attempting 7 to do and to look beyond this moment and say 8 what is it that we're going to do with the 9 siblings of Nixzmary and what are we going to 10 do on a continuing basis because of the kinds 11 of impact that her death is going to have on 12 the other children in that family as well as 13 her classmates and other children who are 14 affected by this behavior. 15 So let us be clear that we have a 16 big job to do, that this is just the beginning 17 of the effort, and that if we really seek 18 justice and love mercy we will really do our 19 job very well. 20 Thank you. 21 ACTING PRESIDENT MORAHAN: Thank 22 you, Senator. 23 Senator Onorato. 24 SENATOR ONORATO: Mr. President, 25 will the sponsor yield for a brief question?

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(518) 371-8910 1 SENATOR MEIER: Yes, Mr. 2 President. 3 SENATOR ONORATO: Just for a 4 little clarification. I read part of the 5 justification, and the thing that is bothering 6 me, I want to know -- it says you can get an 7 A-I felony for intentionally killing a person 8 under the age of 14 while in the course of 9 committing rape, a criminal sexual act, 10 aggravated sexual abuse or incest against a 11 child, or the depraved indifference or 12 intentional killing of a person under 14 while 13 legally responsible for the care of that 14 child. 15 Now, what if the person who commits 16 the exact same crime is not responsible in any 17 way, shape, or form for the care of the child? 18 Does the same sentence apply to that 19 particular individual with the same crime 20 being committed? 21 ACTING PRESIDENT MORAHAN: 22 Senator Meier, do you yield? 23 SENATOR MEIER: I will yield. 24 And, Mr. President, you have to 25 pull that apart, and it starts getting a

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(518) 371-8910 1 little complicated. It would become an A-I 2 felony and therefore subject to life without 3 parole if it was a matter of -- if there was a 4 sexual offense committed along the way, if 5 there were various -- if the murder took place 6 in the course of committing various other 7 felonies. 8 Part of what we've gotten at here 9 is the depraved indifference statute and 10 elevated that to the A-I felony life without 11 parole, where you compound that by the fact 12 that you've got a person in a position of 13 trust. 14 SENATOR ONORATO: But again 15 through you, Mr. President. 16 ACTING PRESIDENT MORAHAN: 17 Senator, do you continue to yield? 18 SENATOR ONORATO: A person who is 19 not position of trust committing the same 20 crime is subject to the same penalty? 21 SENATOR MEIER: I believe you 22 would, if -- other than the areas that I 23 talked about, I believe you'd be in a category 24 of murder in the second degree. And the 25 sentencing structure -- other than the

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(518) 371-8910 1 categories that I talked, which would be the 2 felony sex crimes and so forth -- counsel has 3 corrected me. 4 If it's an intentional murder of a 5 child, it would still be an A-I felony, but 6 now you're into the indeterminate sentencing 7 category of 25 to life. 8 SENATOR ONORATO: Thank you. 9 ACTING PRESIDENT MORAHAN: 10 Senator Schneiderman. 11 SENATOR SCHNEIDERMAN: Thank you, 12 Mr. President. On the bill very briefly. 13 ACTING PRESIDENT MORAHAN: 14 Senator Schneiderman, on the bill. 15 SENATOR SCHNEIDERMAN: This has 16 been, I think, a very good debate. I do not 17 for a moment doubt the sponsor's sincerity in 18 this. I join some of my colleagues who have 19 worked with him on other issues in the area of 20 social services. 21 I think the message that some of my 22 colleagues are trying to send -- and 23 particularly, Senator Maltese said it as 24 articulately as anyone. The concern is this. 25 If all we do this session is to enact this

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(518) 371-8910 1 bill, then we in the Senate will have failed 2 Nixzmary Brown. 3 The concern is this. If all we do 4 is -- say we do penalty enhancers, we did a 5 tougher sentencing bill, but we don't deal 6 with the other issues that have been raised 7 here on both sides of the aisle, we will have 8 failed Nixzmary Brown. 9 I agree with some of my colleagues 10 that it's hard to accept that this bill, which 11 deals with such a small, if offensive and 12 outrageous, part of this overall problem is to 13 be named Nixzmary's Law. 14 We are not waiting for the budget. 15 And Senator Hassell-Thompson just spoke about 16 this. We're not waiting for the budget. 17 We're dealing with an Executive 18 Budget that proposes, in the face of the 19 childcare system, the child welfare system 20 that was on display in the inquiry into this 21 horrible murder, an Executive Budget that cuts 22 education funding for kindergarten, that cuts 23 money for the Office of Children and Family 24 Services, that cuts OASAS money for 25 community-based providers. Childcare slots,

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(518) 371-8910 1 the advocates tell us, have a backlog of 2 400,000 in this state. So we're not waiting 3 for the budget. We're dealing with it now. 4 I hope that my colleagues on the 5 other side of the aisle are sincere -- I 6 believe that they are -- that we're going to 7 address these other issues. This is a 8 situation, clearly, where the perpetrator 9 bears primary responsibility. I will vote to 10 support this bill. We have to send a strong 11 message. But let's not kid ourselves. 12 There's responsibility to go around everywhere 13 else. 14 To their credit, in the City of 15 New York they have moved quickly to recognize 16 that child welfare workers -- caseloads have 17 grown too high with cuts. They've added more 18 than 300 employees. They're trying to do 19 something. The Assembly, as has been pointed 20 out, is holding hearings. 21 Let's move to address these 22 problems as well. If we have a package of 23 bills that what we can do in the Senate -- we 24 can't solve all the problems. We can't solve 25 the problems of neighbors who remain silent or

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(518) 371-8910 1 of schools that don't take action when they 2 see a 7-year-old child weighing less than 3 40 pounds with bruises. We can't solve those 4 problems. 5 But in this Senate let's at least 6 commit to do everything we can do to provide 7 the funding, the training and the services to 8 ensure that to the best of our ability this 9 never happens to another child. Then we will 10 have a package of bills that we can call 11 Nixzmary's Law. 12 I hope to see that before this 13 session ends. That, I think, is the message 14 that some of you are hearing here. 15 If you want to vote for a penalty 16 enhancer here, let's not send the message that 17 that's what we in the Senate believe is 18 enough, that that's what we believe is the end 19 of our response to this horrible crime. If we 20 only pass this bill, then we also are failing 21 Nixzmary Brown. 22 I will be voting in support of the 23 bill, Mr. President, but I urge my colleagues 24 that we will be coming back to this issue 25 again and again as the session progresses.

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(518) 371-8910 1 Thank you. 2 ACTING PRESIDENT MORAHAN: Does 3 any other Senator wish to be heard? 4 Senator Meier, to close. 5 SENATOR MEIER: Thank you, Mr. 6 President. 7 You really have to pull the issues 8 apart here. And like others who have spoken, 9 I reject the idea that either the setting of 10 this crime or the environment of poverty and 11 deprivation or the gross failings in the 12 system are somehow related to the culpability 13 of whomever did this. 14 So yes, this is both a penalty bill 15 and a protection bill. But we do need to step 16 back, and I will say this. This case and 17 other cases bear examination in terms of 18 looking at what happened here, why did it 19 happen, and where were the lost opportunities 20 to save the life of this child. 21 Nixzmary Brown was absent from the 22 school that she attended for some 46 days. 23 That in and of itself should be prima facie 24 educational neglect, and there should have 25 been an intervention through the Family Court.

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(518) 371-8910 1 I asked the district attorney, 2 Mr. Hynes, "Where do you think along the way 3 here something could have been done?" And we 4 identified some places. There was a point in 5 time when this child was brought to an 6 emergency room and examined by a physician. 7 The physician found that her injuries were 8 consistent to the story given to him by the 9 parents of accidental injury. 10 One of the things we need to look 11 at in the very near future, but it will be a 12 budget issue, is this whole issue of making 13 child advocacy centers available in more 14 communities throughout this state. And that's 15 something that my colleague Senator Saland 16 helped to pioneer here. And some of you are 17 familiar with that. 18 We need the opportunity with a 19 child like this, when there is a question of 20 abuse, to take that child to a child advocacy 21 center, where you've got a trained, 22 multidisciplinary group of people, where the 23 physician who examines the child is not a 24 harried and hurried general practitioner 25 serving in an emergency room on his or her

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(518) 371-8910 1 tour of duty, but a pediatrician who 2 specializes in the area of child abuse and 3 knows what to look for. 4 Those are the kind of things we 5 need to look at. Child protective service 6 workers went to the door of this child twice, 7 and the stepfather stepped outside the door, 8 shut the door behind him, and denied those 9 protective workers entry. 10 That situation might have been 11 different if those workers had been 12 accompanied by a New York City police officer. 13 That situation might have been different if we 14 had, either in regulation or even in 15 state-mandated protocols, that the first 16 refusal gets you a trip to Family Court and a 17 warrant to get in. 18 Those are the kinds of things we 19 need to look at. And those are the kinds of 20 things we are going to look at. Senator Spano 21 in the Investigations Committee, Committee on 22 Social Services, Children and Families -- 23 we're going to look at all those things. 24 We're talking to the professionals. We're 25 talking to the advocacy community. We're

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(518) 371-8910 1 talking to people who have knowledge in this 2 area. 3 But you know what? Sometimes the 4 things that you do first are the things that 5 are obvious. And what is obvious to me is 6 that someone who would torture a 7-year-old 7 child -- while she begs for mercy -- to death 8 deserves more than a shot at parole after 15 9 years. 10 And this is not just punishment, 11 this is a matter of protection. In our 12 tradition of justice in this country, we 13 believe in something that you might call 14 proportional justice. The punishment should 15 fit the crime. The scholars call it 16 distributive justice. 17 But there's something else involved 18 here. You lock up someone so depraved, so 19 irredeemably evil that they would torture a 20 child to death, for the rest of their lives 21 without parole. They will never kill or harm 22 another child again. And if someone who would 23 do this -- you know, that's an old-fashioned 24 term. Somebody laughed at me the other day 25 when I used it. Someone who would do this to

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(518) 371-8910 1 a child is evil. And if they aren't, then 2 evil has no name or no face. 3 And that's what this bill is about. 4 But this is not the end. We have work to do 5 to protect children in this state. I pledge 6 myself to that. And I reach around this 7 chamber for others who will do the same. 8 Thank you, Mr. President. 9 ACTING PRESIDENT MORAHAN: Thank 10 you, Senator Meier. 11 Ring the bells. 12 Read the last section. 13 THE SECRETARY: Section 22. This 14 act shall take effect immediately. 15 ACTING PRESIDENT MORAHAN: Call 16 the roll. 17 (The Secretary called the roll.) 18 ACTING PRESIDENT MORAHAN: 19 Announce the results. 20 THE SECRETARY: Senator 21 Montgomery, to explain her vote. 22 SENATOR MONTGOMERY: Yes, Mr. 23 President, I want to just say how much I 24 appreciate the extensive debate. 25 And I hear my colleagues who agree

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(518) 371-8910 1 with me that they also understand that this 2 really is not helping families like Nixzmary. 3 And this really is not, in so many words, 4 several of my colleagues have indicated, even 5 my Republican colleagues -- Senator 6 Marcellino, I appreciate your words 7 especially -- that this really doesn't address 8 the core issue. 9 So this is the penalty phase that 10 we feel comfortable doing, it's easy to do, 11 it's quick, and it's what the public, quote, 12 unquote, demands, that we punish the guilty. 13 And so, yes, we've done that. 14 But you know, Mr. President, in 15 this budget there are going to be cuts in 16 healthcare for working people, poor working 17 people who work for employers who employ more 18 than a hundred people. And most of those are 19 the places where we all shop. Like Home 20 Depot, and if you eat Kansas Fried Chicken, 21 like I do, and a whole list of over a hundred 22 places where people are immediately going to 23 lose their health insurance because of that 24 budget. 25 Some of those people work for home

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(518) 371-8910 1 healthcare agencies. There is a woman who 2 works for a home health care agency who takes 3 care of my aunt who earns $7 an hour. She 4 will lose her health benefits. 5 I guarantee you, Mr. President, 6 we'll be back with the next sensational 7 killing of a child talking about another kind 8 of penalty, whatever penalty we can come up 9 with at that point. So I understand that. 10 That's how the system works. 11 I feel frustrated and I am ashamed, 12 and I say to this body if we don't do better, 13 if we don't do better than this, we have blood 14 on our hands. Because our people send us here 15 to make a difference in their lives, not to 16 try to figure out how we can arrest every 17 moving person in our state other than the ones 18 who sit in here. And some of us will be going 19 to prison too. 20 So, Mr. President, I'm voting no on 21 this legislation. We're not helping Nixzmary 22 Brown and her family and other children like 23 her in our state. Thank you. I vote no. 24 ACTING PRESIDENT MORAHAN: Thank 25 you. Senator Montgomery will be recorded in

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(518) 371-8910 1 the negative. 2 Senator Malcolm Smith, to explain 3 his vote. 4 SENATOR MALCOLM SMITH: I yield 5 to Senator Stavisky. 6 ACTING PRESIDENT MORAHAN: I have 7 the floor here. 8 Senator Malcolm Smith, to explain 9 his vote. 10 SENATOR MALCOLM SMITH: Mr. 11 President, I yield to Senator Stavisky, 12 please. 13 SENATOR STAVISKY: Thank you. To 14 explain my vote, Mr. President. 15 I hope in the coming weeks that the 16 points that Senator Meier has raised -- and it 17 was a very, I think, intelligent and 18 thoughtful discourse -- that it will be backed 19 up at the budget hearings with the proper 20 appropriations so that we can accomplish all 21 of the things that you speak about. I vote 22 aye. 23 ACTING PRESIDENT MORAHAN: 24 Senator Stavisky will be recorded in the 25 affirmative.

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(518) 371-8910 1 Senator Malcolm Smith. 2 SENATOR MALCOLM SMITH: Mr. 3 President, thank you very much. 4 I do not question the sincerity of 5 Senator Meier and Assemblywoman Nettie 6 Mayersohn, who is from the borough of Queens, 7 who has been championing this issue for quite 8 some time. I congratulate her on her efforts 9 and continued success on this bill. 10 But I do have to stand in support 11 of what Senator Montgomery has put forward. 12 There is no question that this particular 13 crime, no one would want to talk about this in 14 any way that they would accept it or even 15 apologize for what occurred. There's no 16 question about it, it was outrageous. There's 17 no doubt about that. 18 However, putting a Band-Aid on 19 one's body doesn't mean that somebody can't 20 stab you or shoot you somewhere else. And by 21 putting a Band-Aid on this particular problem, 22 yes, we put them away. Yes, we have other 23 laws on the books that will put them away. 24 But the bottom line is if we don't deal with 25 the symptom -- and I heard it today. Senator

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(518) 371-8910 1 Meier mentioned it. I heard Senator Maltese 2 mention it. I know Senator Ruth 3 Hassell-Thompson asked for it. 4 And I just want to be on record, 5 Mr. President, that when the time comes, I 6 hope that we do come back, whether it's one 7 week or it's two weeks, because we do have to 8 deal with the symptoms. There's no question 9 about it. When crimes like this happen, it 10 doesn't happen because that particular parent 11 premeditatively went after that child. It 12 comes from a series of events that drove them 13 to an environment that put them in the frame 14 of mind where they actually committed a crime 15 that in some instances they probably had 16 little control over. 17 So I hope, Mr. President, that we 18 do take the time, enact those things that will 19 counteract the symptoms that have caused this 20 particular problem. If not, as some of my 21 colleagues have said, we will be back here 22 over and over again. 23 What happened to Nixzmary clearly 24 is a problem, but we do have to deal with the 25 symptoms. We've got to have these kind of

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(518) 371-8910 1 things in place that will make sure things 2 like this do not happen again. 3 Thank you very much. 4 ACTING PRESIDENT MORAHAN: Thank 5 you, Senator Smith. 6 Senator Fuschillo, to explain his 7 vote. 8 SENATOR FUSCHILLO: Thank you, 9 Mr. President. 10 I sat here, like all my colleagues, 11 for many hours, and I want to compliment the 12 sponsor, Ray Meier. A lot's been said I agree 13 with, I disagree with. 14 The fact is that this poor girl was 15 helpless. Did the system fail? Senator 16 Smith, the system failed her. Absolutely the 17 system failed her. And it has to be changed. 18 It should have been changed. Maybe there's 19 too much of a backlog. Maybe they're just not 20 taking the phone calls anonymously seriously. 21 But they should. Because the system failed 22 this helpless girl. 23 But the fact remains that this guy 24 killed her. He brutally abused her, he 25 tortured her. And Ray Meier used the word

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(518) 371-8910 1 "evil." I'd like to use something else to 2 describe this guy. But he is evil. And life 3 without parole the same, getting jail, we're 4 throwing the key away. We're not going to 5 allow you at the age of 41, 42 to have the 6 opportunity again to kill somebody. Because 7 that's what we would be doing. 8 So what I hope is that we don't 9 come back to revisit this issue. I hope the 10 Assembly has the courage and leadership to 11 adopt this bill in their house. 12 I'll be voting in the affirmative. 13 ACTING PRESIDENT MORAHAN: 14 Senator Fuschillo will be recorded in the 15 affirmative. 16 Senator Diaz, to explain his vote. 17 SENATOR DIAZ: Thank you, Mr. 18 President. To explain my vote. 19 My mother raised eight children 20 alone. Single mother. Single parent. And 21 there were no welfare. There were no coupons. 22 There were no system that we have now. 23 I can hear people saying the 24 system, we have to do something, why people do 25 things. But you know what happened during the

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(518) 371-8910 1 time that my mother raised us eight children? 2 There were something called value for life. 3 But we have lost that. We have lost that. 4 Senator Montgomery says we don't do 5 better, we're going to have blood on our 6 hands. My dear friend Senator Montgomery, 7 this state and this nation is full of blood on 8 their hands. And one million child every year 9 are aborted. 10 So we have -- we have lost the 11 value of life. And people don't care about 12 life. That's why children have been killed, 13 that's why children are being abused, because 14 we have lost that. Until this nation and the 15 this state are going back to value life, to 16 stop the killing -- not only of Nixzmary, but 17 those unborn children too -- we will always 18 have blood on our hands. 19 I'm voting yes. 20 ACTING PRESIDENT MORAHAN: 21 Senator Diaz will be recorded in the 22 affirmative. 23 Announce the results. 24 THE SECRETARY: Those recorded in 25 the negative on Calendar Number 147 are

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(518) 371-8910 1 Senators Duane, Montgomery, and Parker. 2 Absent from voting pursuant to 3 Rule 9: Senator Breslin. 4 Absent from voting: Senator 5 Wright. 6 Ayes, 53. Nays, 3. 7 ACTING PRESIDENT MORAHAN: The 8 bill is passed. 9 Senator Skelos. 10 SENATOR SKELOS: Mr. President, 11 is there any further business at the desk? 12 ACTING PRESIDENT MORAHAN: There 13 is no housekeeping at the desk, Senator. 14 SENATOR SKELOS: I move we stand 15 adjourned until Wednesday, February 8th, at 16 11:00 a.m. 17 ACTING PRESIDENT MORAHAN: On 18 motion, the Senate stands adjourned until 19 Wednesday, February 8th, 11:00 a.m. 20 (Whereupon, at 6:05 p.m., the 21 Senate adjourned.) 22 23 24 25

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