Tuesday, January 30, 2007

1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 January 30, 2007 11 3:08 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR CARL L. MARCELLINO, Acting 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 ACTING PRESIDENT MARCELLINO: The 3 Senate will come to order. 4 I ask everyone present to please 5 rise and recite with me the Pledge of 6 Allegiance. 7 (Whereupon, the assemblage recited 8 the Pledge of Allegiance to the Flag.) 9 ACTING PRESIDENT MARCELLINO: The 10 invocation today will be given by Reverend 11 Robert Quick, pastor of the First Baptist 12 Church of North Tonawanda. 13 REVEREND QUICK: Thank you. 14 Let's pray. 15 Our Heavenly Father, we thank You 16 for the opportunity we have to come before You 17 and do Your business. Father, we thank You 18 that this is a place where those who minister 19 for You minister to us. We pray, Father, for 20 wisdom upon this body, and give them great 21 guidance. We ask, Father, in Jesus' name. 22 Amen. 23 ACTING PRESIDENT MARCELLINO: 24 Thank you, Reverend. 25 May we have the reading of the

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(518) 371-8910 1 Journal. 2 THE SECRETARY: In Senate, 3 Monday, January 29, the Senate met pursuant to 4 adjournment. The Journal of Friday, 5 January 26, was read and approved. On motion, 6 Senate adjourned. 7 ACTING PRESIDENT MARCELLINO: 8 Without objection, the Journal stands approved 9 as read. 10 Presentation of petitions. 11 Messages from the Assembly. 12 Messages from the Governor. 13 Reports of standing committees. 14 Reports of select committees. 15 Communications and reports from 16 state officers. 17 Motions and resolutions. 18 Senator Skelos. 19 SENATOR SKELOS: Mr. President, 20 if we could adopt the Resolution Calendar, 21 with the exception of Resolutions 246 and 247. 22 ACTING PRESIDENT MARCELLINO: All 23 in fave of adopting the Resolution Calendar, 24 with the exception of Resolutions 246 and 247, 25 signify by saying aye.

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(518) 371-8910 1 (Response of "Aye.") 2 ACTING PRESIDENT MARCELLINO: 3 Opposed, nay. 4 (No response.) 5 ACTING PRESIDENT MARCELLINO: The 6 Resolution Calendar is adopted. 7 Senator Skelos. 8 SENATOR SKELOS: Mr. President, 9 if we could take up -- 10 ACTING PRESIDENT MARCELLINO: 11 Excuse me, Senator. 12 Could we have some order here. 13 Thank you. 14 Senator Skelos. 15 SENATOR SKELOS: Mr. President, 16 if we could take up Resolution 246, by Senator 17 Griffo, have the title read, move for its 18 immediate adoption, and open it up for 19 cosponsorship. 20 ACTING PRESIDENT MARCELLINO: The 21 Secretary will read. 22 THE SECRETARY: By Senator 23 Griffo, Legislative Resolution Number 246, 24 honoring the memory and celebrating the life 25 of the late New York State Senator William H.

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(518) 371-8910 1 Hampton. 2 ACTING PRESIDENT MARCELLINO: The 3 question is on the resolution. All in favor 4 signify by saying aye. 5 (Response of "Aye.") 6 ACTING PRESIDENT MARCELLINO: 7 Opposed, nay. 8 (No response.) 9 ACTING PRESIDENT MARCELLINO: The 10 resolution is adopted. 11 Senator Skelos. 12 SENATOR SKELOS: If we could put 13 all members on the resolution. If anybody 14 wishes not to sponsor the resolution, they 15 should notify the desk. 16 ACTING PRESIDENT MARCELLINO: So 17 ordered, Senator Skelos. 18 SENATOR SKELOS: If we could take 19 up Resolution 247, by Senator Seward, have the 20 title read, and move for its immediate 21 adoption. 22 ACTING PRESIDENT MARCELLINO: The 23 Secretary will read. 24 THE SECRETARY: By Senator 25 Seward, Legislative Resolution Number 247,

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(518) 371-8910 1 mourning the untimely death of Shawn Falter of 2 Homer, New York, and paying tribute to his 3 courageous actions as a member of the United 4 States Army. 5 ACTING PRESIDENT MARCELLINO: The 6 question is on the resolution. All in favor 7 signify by saying aye. 8 (Response of "Aye.") 9 ACTING PRESIDENT MARCELLINO: 10 Opposed, nay. 11 (No response.) 12 ACTING PRESIDENT MARCELLINO: The 13 resolution is adopted. 14 Senator Skelos. 15 SENATOR SKELOS: Mr. President, 16 Senator Seward would like to open up the 17 resolution for cosponsorship. If anybody 18 wishes not to sponsor the resolution, they 19 should notify the desk. 20 ACTING PRESIDENT MARCELLINO: So 21 ordered. 22 SENATOR SKELOS: Mr. President, 23 if we could go to the noncontroversial reading 24 of the calendar. 25 ACTING PRESIDENT MARCELLINO: The

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(518) 371-8910 1 Secretary will read. 2 THE SECRETARY: Calendar Number 3 22, by Senator DeFrancisco, Senate Print 99, 4 an act to amend the Penal Law, in relation to 5 the crime of aggravated harassment. 6 ACTING PRESIDENT MARCELLINO: 7 Read the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect on the first of 10 November. 11 ACTING PRESIDENT MARCELLINO: 12 Call the roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes, 38. Nays, 15 2. Senators Duane and Montgomery recorded in 16 the negative. 17 ACTING PRESIDENT MARCELLINO: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 25, by Senator Alesi, Senate Print 163, an act 21 to amend the Penal Law, in relation to the 22 crime of false personation. 23 SENATOR MONTGOMERY: Lay it 24 aside. 25 ACTING PRESIDENT MARCELLINO: Lay

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(518) 371-8910 1 the bill aside. 2 SENATOR SKELOS: Lay it aside for 3 the day, please. 4 ACTING PRESIDENT MARCELLINO: Lay 5 the bill aside for the day. 6 THE SECRETARY: Calendar Number 7 28, by Senator Morahan, Senate Print 246, an 8 act to amend the Penal Law, in relation to 9 providing. 10 ACTING PRESIDENT MARCELLINO: 11 Read the last section. 12 THE SECRETARY: Section 4. This 13 act shall take effect on the first of 14 November. 15 ACTING PRESIDENT MARCELLINO: 16 Call the roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes, 41. 19 ACTING PRESIDENT MARCELLINO: The 20 bill is passed. 21 THE SECRETARY: Calendar Number 22 31, by Senator Alesi, Senate Print 278, an act 23 to amend the Penal Law, in relation to 24 establishing. 25 ACTING PRESIDENT MARCELLINO:

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(518) 371-8910 1 Read the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect on the first of 4 November. 5 ACTING PRESIDENT MARCELLINO: 6 Call the roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes, 45. 9 ACTING PRESIDENT MARCELLINO: The 10 bill is passed. 11 THE SECRETARY: Calendar Number 12 36, by Senator Volker, Senate Print 650, an 13 act to amend the Mental Hygiene Law and 14 others. 15 ACTING PRESIDENT MARCELLINO: 16 Read the last section. 17 THE SECRETARY: Section 25. This 18 act shall take effect immediately. 19 ACTING PRESIDENT MARCELLINO: 20 Call the roll. 21 (The Secretary called the roll.) 22 ACTING PRESIDENT MARCELLINO: 23 Senator Klein, why do you rise? 24 SENATOR KLEIN: Mr. President, 25 I'd like the opportunity to explain my vote.

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(518) 371-8910 1 ACTING PRESIDENT MARCELLINO: 2 Senator Klein, to explain his vote. 3 SENATOR KLEIN: I rise in support 4 of this legislation. And I know there's been 5 some changes since the last bill, which we 6 passed on special session. And I certainly 7 believe that the time is now to finally pass a 8 civil confinement law in New York State. 9 When we open up our newspapers, 10 both our daily and our local newspapers, we 11 constantly see localities across the state of 12 New York trying to pass what I consider to be 13 piecemeal laws. They're trying to ban Level 2 14 and 3 sexual predators from living within 200 15 feet of a school; in essence, preventing these 16 individuals from living anywhere in a city or 17 town. That's not the answer. 18 I think we're also seeing that 19 Megan's Law is merely a Band-Aid approach, 20 after years and years of using that as a way 21 to protect our children and our families from 22 dangerous sexual predators. 23 So I think it's important now that 24 we finally pass civil confinement, because 25 quite frankly I think it's the only answer to

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(518) 371-8910 1 make sure that someone is not released until 2 they're ready to join society once again 3 safely. 4 I conducted a study last year where 5 I looked at all the zip codes in the City of 6 New York as well as Westchester County. And 7 when looking at those zip codes, we found that 8 on average there were seven Level 3 sexual 9 predators living in each of those zip codes. 10 Just this past weekend, Congressman 11 Anthony Weiner released a study which found 12 that 85 percent of the Level 2 and 3 sexual 13 predators presently living in New York City 14 are living within five blocks of a school; 15 38 percent are living within a block of a 16 school. That's a serious problem. 17 And I think what we're doing now is 18 we're giving residents all over the state of 19 New York a false sense of hope that they're 20 actually safe from a violent sexual predator. 21 When you look at the statistics, it 22 becomes even more apparent that we need to 23 pass this law. First, a Level 3 sexual 24 predator or a dangerous sexual predator is 25 four times more likely to commit the same or

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(518) 371-8910 1 similar crime when they're released from 2 prison. It's also the only type of criminal 3 where there's a greater propensity to commit 4 this crime as they get older and older. 5 So I'm hopeful that we'll quickly 6 reconvene our conference committee, work out I 7 believe the minor differences in the two 8 pieces of legislation, and, finally, keep the 9 residents and especially our families of 10 New York State safe from violent sexual 11 predators. 12 I vote yes, Mr. President. 13 ACTING PRESIDENT MARCELLINO: 14 Senator Klein will be recorded in the 15 affirmative. 16 Senator Volker, to explain his 17 vote. 18 SENATOR VOLKER: Mr. President, 19 very quickly. 20 This bill is essentially the same 21 bill as we passed in 2006 in January and then 22 again in December, in the special session. 23 There's a couple of differences, though, that 24 should be noted. And frankly, we added a lot 25 of language here relating to treatment.

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(518) 371-8910 1 One of the arguments that the 2 Assembly made -- which frankly we thought was 3 rather interesting, because we were never 4 opposed to treatment -- was that they wanted 5 strict intensive supervision. So in this bill 6 we have defined strict and intensive 7 supervision. In fact, one of the questions we 8 asked was, What the hell is that? Excuse me: 9 What is that? And we defined it sort of in 10 this bill. 11 The defendant would be subject to 12 six face to face-to-face and six collateral 13 visits with a parole officer each month. And 14 there are other restrictions on monitoring and 15 approval of the offender's residency, which 16 also would be conditions of transitional 17 parole. 18 These would occur when a person was 19 released from the intense supervision 20 internally; that is, in a facility. And that 21 facility, by the way, is already ready to open 22 very shortly, and it's going to be a totally 23 separate facility in the grounds of the 24 St. Lawrence Psychiatric Center in Bridgeview. 25 The interesting thing is that a

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(518) 371-8910 1 couple of the opposition memos say they want 2 to make sure that the site is run by OMH -- it 3 is -- and it's separate -- it is. Clearly, 4 the trial lawyers are opposed because any -- 5 they want litigation. And we understand that. 6 But what this bill does, in my 7 opinion, is very close to what the Assembly 8 wanted. And we firmly believe -- and we've 9 been talking with the Governor, and I think 10 the Governor -- let's just say this. I think 11 within a week or two I think the Governor will 12 come out with a bill pretty close to ours. 13 And whether we need a conference 14 committee to go on -- because there's just a 15 couple, in my opinion, a couple of changes 16 which can be done, and we may not even need a 17 conference committee. That is, we can just 18 agree. 19 I feel very strongly that this 20 agreement is going to come within the next 21 month. I think it would have happened in 22 December except that other issues got in the 23 way, so to speak, in my opinion. And those 24 other issues meant that we couldn't come to an 25 agreement between a Governor and a Speaker who

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(518) 371-8910 1 detested each other. 2 So at any rate, this is basically 3 the same bill, with additions to it that I 4 think make it more palatable to the Assembly 5 and, frankly, I think make it more palatable 6 to many of the people who have opposed it. 7 The main opposition to this bill is 8 just the idea of civil confinement. And I 9 understand that. None of us like it. On the 10 other hand, if we're going to deal with people 11 that we can't anywhere else -- any which other 12 way else to deal with, this is something we 13 need to do. 14 I vote aye. 15 ACTING PRESIDENT MARCELLINO: 16 Senator Volker will be recorded in the 17 affirmative. 18 Senator Nozzolio. 19 SENATOR NOZZOLIO: Thank you, 20 Mr. President. I rise to request permission 21 to explain my vote. 22 Mr. President and my colleagues, 23 this is a very important measure. That 24 Senator Volker is to be given yeoman credit 25 for consistently driving this issue.

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(518) 371-8910 1 This is an extremely important 2 measure to protect our families in New York 3 State. The Senate has continually led with 4 legislation to establish a zero tolerance for 5 violence and a zero tolerance for sexual 6 predators in New York. 7 With Senator Skelos many years ago 8 focusing on Megan's Law, during that process 9 it became clear, time and again: Once a sex 10 predator, always a sex predator. And that 11 regardless of how much incarceration time, 12 that that individual has demonstrated a clear 13 danger to society and needs to be constantly 14 monitored. 15 Megan's Law, zero tolerance for 16 violence, zero tolerance for sexual predating, 17 that's what this Senate has stood for. And we 18 in this measure before us will continue to 19 stand tall to ensure that those who are not 20 becoming rehabilitated do not come out into 21 society and become a danger to children and 22 families. 23 I congratulate my Senate colleagues 24 for supporting this measure. That it is the 25 next step in ensuring that our children are

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(518) 371-8910 1 safe and that we have a system of laws in this 2 state that is clearly to protect victims 3 before they become victims. 4 Thank you, Mr. President. I vote 5 aye. 6 ACTING PRESIDENT MARCELLINO: 7 Senator Nozzolio will be recorded in the 8 affirmative. 9 Senator Thompson. 10 SENATOR THOMPSON: Thank you, 11 Mr. President. 12 First I'd like to congratulate one 13 of my colleagues, Senator Volker, for his 14 effort on this bill. 15 I just have two things that are of 16 concern. One is that cities like Buffalo and 17 Niagara Falls are very cash-strapped, and they 18 have a problem with people who would be 19 impacted by this law, particularly those 20 predators. But part of the challenge we face 21 is that these cash-strapped communities cannot 22 afford to disseminate the information on who 23 these predators are. 24 And hopefully sometime this year 25 we'll be able to address that so that we can

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(518) 371-8910 1 get information on some of the government 2 websites, the school districts, and we'll have 3 the capacity to notify many of the local 4 residents. 5 We also have seen study after study 6 across the state where people are living right 7 next to schools. And many of our urban school 8 districts don't have the resources that are 9 necessary to empower the parents, to empower 10 the residents. And I believe that that 11 loophole needs to be addressed and corrected, 12 and hopefully we can work to address that 13 issue in the near future. 14 Thank you. I'm in support of the 15 bill. 16 ACTING PRESIDENT MARCELLINO: 17 Senator Thompson will be recorded in the 18 affirmative. 19 Senator Montgomery. 20 SENATOR MONTGOMERY: Yes, 21 Mr. President. I rise to commend my 22 colleagues on trying to deal with this very, 23 very difficult issue. 24 I just -- one of the attempts that 25 has been made in this house, and I support

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(518) 371-8910 1 that attempt, is that I think it's Senator 2 LaValle's bill which calls for, I believe, 3 chemical castration. 4 And since this seems to be such a 5 very, very difficult situation to deal with -- 6 some people apparently just cannot control 7 their sexual addictions and the problems that 8 they have that's associated with it -- and I 9 believe we should really consider, very, very 10 seriously, passing Senator LaValle's bill. 11 People who have a need for that 12 should be able to get it. And then some 13 people -- maybe we won't have to spend all of 14 this money on civil confinement if people are 15 able to access this. And in some instance 16 they may even want physical castration. 17 That's fine with me too, as long as it's 18 voluntary. 19 So I offer that because I think 20 Senator LaValle has tried that legislation, 21 and I urge him to reintroduce that. And that 22 should really be a part of our package, that 23 people should be able to receive, on a 24 volunteer basis, at the least chemical 25 castration services.

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(518) 371-8910 1 Thank you. 2 ACTING PRESIDENT MARCELLINO: 3 Senator Montgomery, how shall I record your 4 vote? In the negative? 5 SENATOR MONTGOMERY: Yes. 6 ACTING PRESIDENT MARCELLINO: 7 Senator Montgomery will be recorded in 8 negative. 9 Senator Golden. 10 SENATOR GOLDEN: Thank you, 11 Mr. President. 12 I too rise to commend Senator 13 Volker for reintroducing this bill again this 14 year. 15 And I hope that the Governor is 16 sincere in his approach in allowing this not 17 only for discussion, but to bring it forward 18 and to pass it as a law of the state that 19 those that would go after our children here in 20 the state of New York, causing them harm, that 21 they would be placed and kept placed in jail 22 if in fact they were found at a psychiatric 23 hearing not to be fit to be allowed to be 24 returned to the community. 25 There are over 550,000 convicted

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(518) 371-8910 1 sex offenders here in this nation, of which we 2 cannot find 100,000 of them. One hundred 3 thousand cannot be found here in this nation. 4 I dare to say -- we had 5 Mr. Lunsford up here last year. His daughter 6 Jessica, she was killed by a registered sex 7 offender, Evander Couey. And I dare to say in 8 my community on a regular basis I talk of 9 those that come in from around the country and 10 hide within the city of New York because it's 11 great to be able to hide in plain sight and 12 walk through the city of New York and not be 13 found. 14 And in my community, we had a 15 gentleman not too long ago that came in from 16 New Jersey -- never told Jersey he was 17 leaving, never told New York he was coming -- 18 and came and had molested many of the children 19 in the 6-1 precinct area. This was only six 20 months ago, another sex offender that had 21 served time that had been released to the 22 communities. 23 And we have studies, studies from 24 the Washington State Institute. After six 25 years after release, 57 percent of the

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(518) 371-8910 1 subjects were convicted of a new felony 2 offense. Forty percent were convicted of a 3 new felony against a person offense, including 4 sex offense. Almost one-third committed a new 5 felony sex offense, and 16 percent failed to 6 register as sex offenders. 7 The Center for Sex Offender 8 Management: Recidivism depends on how the 9 population is defined. Child molesters have a 10 recidivism rate of 52 percent over 25 years, 11 and rapists, 39 percent. 12 In Brooklyn, there are 1555 13 registered sex offenders, of which 345 of them 14 are Level 3 sex offenders. And just looking 15 at the Level 3 sex offenders in Brooklyn, 16 recidivism statistics indicate that somewhere 17 between 18, or 5.3, and 113 or 33 percent of 18 these people will commit another sex crime 19 within six years. And as many as 172 may 20 reoffend over a 25-year period. 21 This law is long overdue here in 22 this state. Our children and our families 23 deserve it. And hopefully, God willing, we 24 will move Senator Volker's bill and we will 25 get it passed this year, unified with the

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(518) 371-8910 1 Assembly, the Senate, and the Governor so that 2 we can protect our children in this great 3 state. 4 I vote aye. 5 ACTING PRESIDENT MARCELLINO: 6 Senator Golden will be recorded in the 7 affirmative. 8 Senator Libous. 9 SENATOR LIBOUS: Thank you, 10 Mr. President. 11 And I too want to applaud Senator 12 Volker for bringing this legislation up again 13 and passing this house almost unanimously time 14 and time again. 15 The frustration that I have, and 16 actually the frustration that my constituents 17 have, is that this is common sense. Why can't 18 we put legislation together that both houses 19 can agree on and that the Governor can sign? 20 Every day in my district, at the 21 local level, there are town ordinances, city 22 ordinances to try to make changes to protect 23 citizens and particularly young children from 24 these dangerous sex offenders and predators 25 who are released from state facilities. I

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(518) 371-8910 1 think it's just common sense that we enact 2 this law and put it on the books to protect 3 our children. 4 Mr. President, I guess what's 5 frustrating is that if you look at the bills 6 in both houses, they're fairly similar, with 7 just minor changes here and there. And it 8 just doesn't make sense that the Assembly just 9 fails to move forward on the provisions, as in 10 Senator Volker's bill, to make sure that 11 before dangerous predators are released that 12 the hearing take place. 13 It makes no sense to me and it 14 makes no sense to the constituents that I 15 serve when I explain to them the hangup or the 16 difference is that what the Senate is trying 17 to do is make sure, before a dangerous 18 predator is released, that the hearing take 19 place, that they're not on the streets, that 20 they're not preying on our children. They 21 feel that that's common sense. 22 I would hope that members of the 23 Assembly are listening today. I would hope 24 that Governor Spitzer is listening today. The 25 time has come that we have a unanimous piece

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(518) 371-8910 1 of legislation that passes in both houses, 2 that's signed by the Governor, to protect the 3 children of the state. 4 I vote aye. 5 ACTING PRESIDENT MARCELLINO: 6 Thank you, Senator Libous. You will be 7 recorded in the affirmative. 8 Senator Bonacic, to explain his 9 vote. 10 SENATOR BONACIC: Thank you, 11 Mr. President. 12 I stand also and I thank Senator 13 Volker for drafting this legislation and 14 passing it in the Senate. 15 Level 3 sexual predators are the 16 worst kind of felons that prey on our children 17 and our families and our community. When we 18 talk to the police and the prosecutors, there 19 was one statistic that always knocked my socks 20 off, and it's horrifying. And that is before 21 a sexual predator is caught, he would have 22 committed somewhere between 100 and 113 acts 23 upon children or adults before they nail him. 24 It is an illness, and it is an 25 evil. And when we incarcerate this felon

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(518) 371-8910 1 after he is -- he or she is convicted, and 2 they serve their time, you can argue, Well, 3 they've served their time, they should be 4 allowed to go back into the community. 5 But you've heard my colleagues 6 speak to this issue. There are studies that 7 the recidivism rate is over 50 percent that 8 they will commit the same horrendous acts of 9 assault, rape or murder of children and mainly 10 women. 11 Another reason for civil 12 confinement is certainly the first priority is 13 to protect our families and our communities. 14 But in a humane way. They could be treated 15 with medication, with counseling, to give them 16 a fighting chance to see if they can ever 17 overcome this horrible addiction to evil and 18 commission of a crime. 19 So let's not let this delay -- you 20 know, there was an incident unrelated to this 21 particular crime of sexual predators, and we 22 had an incident occur this weekend with cell 23 towers. Remember, up in the Adirondacks? Two 24 people were in a car accident. They couldn't 25 get out of the car, they couldn't use their

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(518) 371-8910 1 cellphones because there was no service 2 because there was a fight going on, the 3 environmental community versus the people that 4 wanted cell towers. And two people died for 5 inaction. 6 How long has the Assembly and the 7 Senate not acted on civil confinement? And 8 when you look at the statistics -- because we 9 can chart what these Level 3 sexual predators 10 are -- you know where most of them are? 11 They're in the metropolitan area. They're in 12 New York City, they're in the Bronx, they're 13 in Brooklyn, they're in Queens. 14 So as we play with language and 15 don't do a bill, how many of these sexual 16 predators who are now out of jail, are not 17 civilly confined, are committing multiple, 18 repeated assaults, rape and murder on children 19 and women? 20 For those reasons, I vote yes. And 21 I thank you, Mr. President. 22 ACTING PRESIDENT MARCELLINO: 23 Senator Bonacic will be recorded in the 24 affirmative. 25 Senator Liz Krueger, to explain her

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(518) 371-8910 1 vote. 2 SENATOR LIZ KRUEGER: Thank you. 3 I think we're actually on the bill 4 still, Mr. President. 5 ACTING PRESIDENT MARCELLINO: No, 6 we're explaining the vote. We're on a roll 7 call. 8 SENATOR LIZ KRUEGER: Oh, we're 9 explaining the vote. I thought it seemed to 10 be longer than a few minutes. 11 ACTING PRESIDENT MARCELLINO: The 12 chair has been lenient in enforcing our 13 two-minute rule, but -- 14 SENATOR LIZ KRUEGER: That's why 15 I lost track. Thank you. 16 ACTING PRESIDENT MARCELLINO: You 17 have the floor, Senator. 18 SENATOR LIZ KRUEGER: Thank you, 19 Mr. President. 20 Well, I have some dilemmas here. I 21 spoke to some experts who came to speak to me, 22 and I thought that they would tell me, because 23 they were professionals in the field, that 24 they had concerns about this bill and civil 25 confinement.

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(518) 371-8910 1 And what they told me surprised me, 2 because they said: No, you're looking at this 3 wrong. There are people who should just have 4 longer terms in prison because they are 5 dangerous and they are predatory and they are 6 recidivists. And unfortunately, there may not 7 be mental health services out there that can 8 address their problems. 9 So they raised the concern to me, 10 one, that the costs of civil confinement could 11 be as high as a quarter million dollars a year 12 per person, compared to prison costs, which 13 are about $40,000 per year. 14 They raised concerns that mandating 15 people into civil confinement was going to 16 drain money that is desperately needed in the 17 mental health care system within prison and 18 within communities that is already so 19 desperately short. We are so short on funds 20 for community-based mental health care 21 services, for institutional-based mental 22 health care services. 23 And they said they think we're 24 doing this wrong, but they're not disagreeing 25 with Senator Volker or anyone who already

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(518) 371-8910 1 articulately raised the fact that we have to 2 protect our society from violent sexual 3 predators. There's no one who would debate 4 that point. 5 But they were saying there's still 6 a better way for us to think this through, 7 which is to ensure longer prison terms for 8 people who are found guilty of these crimes, 9 to ensure that we have adequate mental health 10 care services before people end up, I think as 11 Senator Bonacic just described, as addicted in 12 some way to evil. 13 That we should have upfront mental 14 health services for people who appear to be at 15 risk of going down the road where they end up 16 in this situation. That we should also face 17 the fact that if you look at the studies from 18 every other state, once you've put somebody 19 into civil confinement, apparently they never 20 get out, statistically. 21 And one might argue that that might 22 be protecting people from the dangers of 23 violent predators, and I'm not sure I would 24 argue that one, but at a cost of up to 25 $250,000 a year for life.

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(518) 371-8910 1 Senator Montgomery talked about 2 Senator LaValle's bill on chemical castration 3 and the question of if it's a voluntary setup, 4 might that be a way to address some concerns. 5 And we don't address that in this bill. 6 I talked to professionals who 7 technically would be the people making the 8 decisions within Senator Volker's bill about 9 whether someone was civil confined or let out, 10 and they said, "Let's be honest. None of us 11 are ever going to vote to let them out. We're 12 not going to want to take that heat." 13 So they're admitting that once we 14 make a civil confinement decision, that's it 15 forever. And you ask have to ask the 16 question -- because once we pass laws, it's 17 tough for us to go back and change them later, 18 especially on an issue that is so sensitive 19 and so press-driven as sexual predators -- do 20 we want to have life imprisonment, life civil 21 confinement for sexual predators when they're 22 in their 70s, when they're in their 80s, when 23 they're in their 90s, where the data shows 24 that in fact they are not statistically at 25 risk of continuing to be predators?

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(518) 371-8910 1 So I will vote for the bill. And 2 frankly I think it would be hard for us not to 3 vote for the bill today. But I hope as we go 4 forward in negotiations with the other house 5 and with the new Governor, we think through 6 not my analysis that we don't be this tough -- 7 because these are scary people. I know I'm 8 scared for my constituents -- but that we 9 think through what is best practice, what are 10 our options here, and are we not thinking as 11 broadly as we should about what we can do to 12 protect our communities. 13 So I will vote yes, but I hope we 14 will expand on this bill before it becomes 15 law. 16 Thank you, Mr. President. 17 ACTING PRESIDENT MARCELLINO: 18 Thank you, Senator Krueger. You will be 19 recorded in the affirmative. 20 Senator Robach, to explain his 21 vote. 22 SENATOR ROBACH: Yes, 23 Mr. President. 24 I rise to support this bill and 25 applaud my colleague Senator Volker, who has

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(518) 371-8910 1 done a great job of not only framing this 2 issue but keeping it alive. 3 And while I would agree with 4 Senator Krueger that I do think that these 5 people should get much, much longer sentences, 6 sometimes in the realm of government we only 7 have our vote or our issue, we have to get 8 things through all sides. 9 And I know, coming from the 10 Assembly, that oftentimes many of the bills I 11 supported over there that would have given 12 longer sentences were not able to pass that 13 house. 14 And I think that frustrates us 15 because -- or at least me, because when I'm 16 dealing with the public what they want is not 17 politics, they want protection. This is about 18 children, about families, about victims. And 19 they're really asking us, in any way we can, 20 can we better protect their kids. 21 Now, I don't think it's going to 22 cost a quarter of a million dollars. I do 23 believe that's a fear, not a fact. And we 24 should probably try to do it in the most 25 cost-beneficial way. But I don't know if we

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(518) 371-8910 1 in this house want to not vote for a bill 2 because of a price tag when it comes to less 3 victims in this area. 4 I had the opportunity earlier in my 5 life to work with crime victims, and I can 6 tell you the stories are not only tragic, 7 hurtful, but they are the kind of wounds that, 8 more than the physical offenses, are things 9 that stay with these people for a lifetime. 10 So I think this is a very, very 11 important bill off of anybody's politics. I 12 do hope sincerely that we do come to some 13 three-way agreement and that we get this done, 14 first step. Then I would agree, second step, 15 and I would support those things from chemical 16 castration to longer sentences or anything we 17 could do, again, to be preventive but balance 18 those scales of justice back to the offended, 19 not the offenders. 20 And I'll end with this. It's very, 21 very frustrating -- I've seen it firsthand -- 22 of people coming out of jail, off probation, 23 who say right to the very authorities that are 24 supposed to be protecting the public: Hey, 25 look, this is just what I do. Don't be mad at

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(518) 371-8910 1 me. Don't expect anything different. 2 When you have that kind of person 3 and those kind of statements, there really is 4 only one choice for us as lawmakers. That's 5 to change the policy that's not going to let 6 them out to prey. 7 So I gladly cast my vote in the 8 affirmative, Mr. President. 9 ACTING PRESIDENT MARCELLINO: 10 Thank you, Senator Robach. You will be 11 recorded in the affirmative. 12 Senator Diaz, to explain his vote. 13 SENATOR DIAZ: Thank you, 14 Mr. President. I have to explain my vote, 15 which I'm voting yes. 16 Mr. President and ladies and 17 gentlemen, I am reading the legislative 18 history of this bill. And it shows that in 19 1998, the bill came, Senate Bill Number 70659 20 [sic] and passed this Senate, this chamber, 59 21 votes to 1, being Senator Leichter, the one 22 that voted against. 23 In 1999, Senate Bill 5093 passed 24 the Senate 56 to 1, Senator Duane voting 25 against.

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(518) 371-8910 1 In 2000, Senate Bill 5093 again 2 passed the Senate 59 to 1. Senator Duane 3 voted against. 4 In 2001, Senate Bill 5385 passed 5 the Senate 56 to 0. 6 In 2003, Senate Bill 5556 passed 7 the Senate 59 to 2, Duane and Montgomery. 8 In 2004, Senate Bill 5556 passed 9 the Senate 59 to 2 again, Duane and 10 Montgomery. 11 In 2005, Senate Bill 3273 passed 12 the Senate 58 to 2, Duane and Montgomery. 13 In 2006, Senate Bill 6325 passed 14 the Senate, Duane and Montgomery. In 2006 15 again, in extraordinary session, Senate Bill 16 6325 passed 60 to 0. 17 What am I doing and what am I 18 saying? I'm saying that every year we come 19 here and the Majority has the opportunity, 20 being the majority, to be the one to introduce 21 the bill. 22 Then we have to take and to listen 23 to each and every one of the 33 or 34 members 24 of the Majority standing in front of the 25 cameras lecturing us and talking like the bill

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(518) 371-8910 1 has any opposition. And they get up and they 2 stand there and they -- owoo, owoo -- 3 lecturing us like we are opposing the bill. 4 Why are you going through this 5 mockery and this game? You have no opposition 6 here. We have been supporting the bill every 7 time. The only reason, that you are the ones 8 that introduce the bill. But we -- the most, 9 the most negative votes that this bill has 10 gotten is two. We Democrats have been in 11 favor of this bill. 12 So why every year you have to start 13 trying to lecture us so people on the camera 14 can see you and say, Oh, the Democrats don't 15 want the bill? We have no problem with the 16 bill. We're supporting the bill. Every 17 single year you have our support. 18 Please don't lecture us anymore. 19 Stop the game. This bill has no reason to be 20 discussed in here. We have no opposition. 21 This is a bill, easy thing to do. Go talk to 22 the other side of the hall and lecture them. 23 But please stop that game. 24 I'm voting yes, Mr. President. 25 ACTING PRESIDENT MARCELLINO:

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(518) 371-8910 1 Thank you for voting yes, Senator Diaz. 2 Senator Little, to explain her 3 vote. 4 Can we have a little order, please, 5 in the house. Please. 6 Thank you. 7 SENATOR LITTLE: Thank you, 8 Mr. President. 9 As I sit here, I too can't help but 10 think about the cellphone issue, as Senator 11 Bonacic mentioned. This is -- getting 12 cellphones on the Northway is something that I 13 have worked on for about -- since 2000. 14 We have a general agreement that 15 yes, we need to have cellphones there. What 16 kind and how to go about doing it has been a 17 debate. But to tell the Langners that we are 18 working on it and that we know it's an issue 19 that needs to be done is little consolation. 20 And as we sit here and talk about 21 civil confinement, I think I'm correct in 22 saying that the Assembly agrees it needs to 23 happen, the Governor agrees it needs to 24 happen, the Senate agrees it needs to happen. 25 Let's just hope that it happens and that we

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(518) 371-8910 1 get an agreement so that this is not a work in 2 progress and some other child or adult is 3 killed or whatever by a person who would have 4 qualified for civil confinement and should 5 have been civilly confined. 6 On this bill, I vote aye. Thank 7 you. 8 ACTING PRESIDENT MARCELLINO: 9 Thank you, Senator Little. You will be 10 recorded in the affirmative. 11 Senator Schneiderman. 12 SENATOR SCHNEIDERMAN: Thank you, 13 Mr. President. 14 I will be also supporting this 15 bill. And I appreciate the fact that there 16 have been some positive changes made. 17 I would like to suggest, though, 18 that the single major problem remaining with 19 the bill that I'm not sure would withstand a 20 legal challenge, quite honestly -- and the 21 problem, I told Senator Volker this before, I 22 don't think is with the United States Supreme 23 Court, I think it would be with the Court of 24 Appeals of our own state. 25 The problem is you have great

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(518) 371-8910 1 due-process protections provided for people 2 going -- being -- before they are civilly 3 confined. And this is something that has been 4 developed over a course of years and there 5 have been hearings held. I think Senator 6 Klein held hearings that really jump-started 7 this process in our house to move this along. 8 It has something that members of the Assembly 9 and of the Senate in both parties, as 10 Senator Diaz points out, have supported for a 11 long time. 12 The difficulty from my point of 13 view comes from the fact that after all this 14 due process, before people are civilly 15 confined, the burden is all put an OMH 16 commissioner to -- and this is the language of 17 the statute -- get a psychiatric report and 18 make a determination in writing as to whether 19 the person is no longer a sexually violent 20 predator. 21 Ladies and gentlemen, what OMH 22 commissioner is going to put their career on 23 the line by letting someone out, given the 24 standards that have been set here? 25 I think we have to pass a statute

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(518) 371-8910 1 that does not essentially sentence everyone 2 put into this program to lifetime 3 incarceration, which is the functional effect, 4 I believe, as currently structured. 5 There are ways to remedy this. And 6 I am going to vote in support of it in the 7 hopes that as we move forward towards actually 8 passing a law we can change this. But there 9 has to be something more in the nature of a 10 presumption, some more process, some provision 11 of legal services for the annual evaluation, 12 some way that someone who is already in the 13 program has a realistic chance of someday 14 getting out. I'm not sure you're going to 15 survive a constitutional challenge if you 16 don't provide that. 17 With the hope that that change will 18 be made, and commendations to everyone who 19 continues to work on improving this bill, I 20 will be voting in support of it. 21 Thank you, Mr. President. 22 ACTING PRESIDENT MARCELLINO: 23 Thank you, Senator Schneiderman. You will be 24 recorded in the affirmative. 25 Senator Griffo, to explain his

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(518) 371-8910 1 vote. 2 SENATOR GRIFFO: Thank you, 3 Mr. President. 4 As we have this discussion today 5 and we talk about how we have to have this 6 law, it's even more important to say that we 7 must have this law. This is a good piece of 8 legislation, and it's also an essential piece 9 of legislation. 10 I defy anyone to go out into their 11 community to talk to their constituents and to 12 ask them how they feel -- and I know that from 13 talking to people in my community, no one 14 would sit here today and tell or express to 15 any of us as representatives that we should 16 not do something and that we should not do 17 something right now. Because there is no 18 greater opportunity that we all have as a body 19 to do something to protect society, to have a 20 tremendous impact in making this a safer 21 community. 22 So I think this -- I want to also 23 applaud Senator Volker for his persistence, 24 and this entire body. Because now we need to 25 really come together to bring that message,

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(518) 371-8910 1 Senator Diaz, to the other house and to ensure 2 that they understand and appreciate the 3 sensitivity of this bill, the timeliness of 4 this bill. And let's get something done to 5 make a difference to protect our communities 6 across the state. 7 Thank you. I vote aye. 8 ACTING PRESIDENT MARCELLINO: 9 Thank you, Senator Griffo. You will be 10 recorded in the affirmative. 11 Senator Lanza, to explain his vote. 12 SENATOR LANZA: Thank you, 13 Mr. President. I rise also to support this 14 bill and thank my colleague Senator Volker for 15 putting it on the floor. 16 Senator Diaz, thou protest too 17 much. You talk about the fact that there's 18 unanimity of support here. And I hear 19 questions being raised, I hear problems being 20 talked about with respect to this bill. 21 We hear talk about the costs of 22 civil confinement. Well, I tell you the cost 23 of doing nothing is something that we can't 24 afford to do. 25 We talk about the fact that perhaps

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(518) 371-8910 1 civil confinement is a de facto life sentence. 2 I say good, so be it. 3 We hear that there may be other 4 alternatives, longer prison sentences. I 5 agree. How about a lifetime sentence? Why 6 don't we put that on the floor and see what 7 kind of support we have? 8 Senator Diaz, you hit it perfectly, 9 I think, with respect to why this hasn't 10 moved. You seem to understand and appreciate 11 why it's not law. I suggest to you that you 12 convince your Democratic colleagues across the 13 hall to see it the way you see it, to support 14 this measure, to make sure that we protect our 15 children. 16 If we -- and I speak not as a 17 member of the State Senate, but a member of 18 the state government -- if we cannot protect 19 our children from being sexually molested, 20 assaulted and raped, then we have no business 21 being here. Going to fold up the tent and go 22 home. 23 We owe that to them. As a 24 civilized, decent society, we should do no 25 less.

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(518) 371-8910 1 And so I thank you again, Senator 2 Volker, for putting this on the floor. And I 3 vote aye. 4 ACTING PRESIDENT MARCELLINO: 5 Senator Lanza will be recorded in the 6 affirmative. 7 Senator Duane, to explain his vote. 8 SENATOR DUANE: Thank you, 9 Mr. President. 10 I also want to commend Senator Diaz 11 and the comments that he made, and to point 12 out to members that are less familiar with the 13 New York State Senate that it's always 14 appropriate to debate and critique in this 15 body, that that's what the people of the State 16 of New York expect us to do every day that 17 we're here. 18 And as we work to pass substantive 19 legislation, we need to make sure that we in a 20 civil and a collegial way make sure that every 21 point of view is heard and that questions are 22 answered. And I think the people in the state 23 expect no less. 24 And I'll be voting in the negative, 25 as you know, Mr. President, but I want to

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(518) 371-8910 1 commend my colleagues on both sides of the 2 aisle and, as a former member of the 3 conference committee, both sides of the aisle 4 in the other house on their hard work on 5 trying to come together on consensus on this 6 legislation. 7 And I'm confident that, along with 8 the Governor, soon we will have legislation 9 that will pass with the majority of the 10 members of both houses. 11 Thank you, Mr. President. 12 ACTING PRESIDENT MARCELLINO: 13 Thank you, Senator Duane. You will be 14 recorded in the negative. 15 Announce the results, please. 16 I'm sorry. Senator Perkins, to 17 explain his vote. 18 SENATOR PERKINS: Thank you so 19 much. 20 I'm not going to be able at this 21 time to vote on this legislation. I want to 22 thank Senator Krueger and Senator Schneiderman 23 for their arguments, which helped to be 24 convincing for me, even though they may have 25 taken the other position.

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(518) 371-8910 1 I want to thank Senator Volker for 2 the work that he's done on this legislation. 3 I think it's a step in the right direction. 4 I'm glad to hear that this process 5 is evolving. Because while I strongly 6 identify with the intentions of this 7 legislation, I am looking forward to those 8 changes that will come as a result of the 9 discussions between the two houses, the 10 Congress -- I mean the Governor, as well as 11 ourselves, so that I can find myself more 12 comfortable in a position that I feel is the 13 right position for me to take. 14 So I want to be recorded in the 15 negative. 16 ACTING PRESIDENT MARCELLINO: 17 Senator Perkins, you will be recorded in the 18 negative. Is that correct? 19 SENATOR PERKINS: Yes. 20 ACTING PRESIDENT MARCELLINO: 21 Thank you. 22 Is there any other member wishing 23 to be heard on this piece of legislation? 24 Seeing none, announce the results, 25 please.

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(518) 371-8910 1 THE SECRETARY: Those recorded in 2 the negative on Calendar Number 36 are 3 Senators Duane, Montgomery, and Perkins. 4 Ayes, 55. Nays, 3. 5 ACTING PRESIDENT MARCELLINO: The 6 bill is passed. 7 Senator Skelos. 8 SENATOR SKELOS: Mr. President, 9 is there any further business to come before 10 the Senate? 11 ACTING PRESIDENT MARCELLINO: 12 There is none, Senator. The house is clean. 13 SENATOR SKELOS: There being 14 none, I move we stand adjourned until 15 Wednesday, January 31st, at 11:00 a.m. 16 ACTING PRESIDENT MARCELLINO: On 17 motion, the Senate stands adjourned until 18 Wednesday, January 31st, at 11:00 a.m. 19 (Whereupon, at 3:56 p.m., the 20 Senate adjourned.) 21 22 23 24 25

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