Monday, May 14, 2007

1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 May 14, 2007 11 3:16 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR THOMAS P. MORAHAN, 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 MORAHAN: The 3 Senate will come to order. 4 I ask all in attendance to please 5 rise and recite with me the Pledge of 6 Allegiance to our Flag. 7 (Whereupon, the assemblage recited 8 the Pledge of Allegiance to the Flag.) 9 ACTING PRESIDENT MORAHAN: We're 10 joined today by the Reverend Peter G. Young, 11 from Mother Theresa Community in Albany, who 12 will give us the invocation. 13 REVEREND YOUNG: Thank you, 14 Senator. Let us pray. 15 By being a Senator, you have been 16 accepted into a leadership position so that 17 you can more fully serve the people of 18 New York State. 19 In this spirit of community, our 20 prayer on this beautiful May day will be to 21 better achieve the goal of dedicated 22 representation in the power that is entrusted 23 to all of our legislative leadership. May you 24 attain your satisfaction in your services to 25 your constituents.

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(518) 371-8910 1 We ask You this through God. Amen. 2 ACTING PRESIDENT MORAHAN: Thank 3 you, Reverend Young. 4 Reading of the Journal. 5 THE SECRETARY: In Senate, 6 Sunday, May 13, the Senate met pursuant to 7 adjournment. The Journal of Saturday, May 12, 8 was read and approved. On motion, Senate 9 adjourned. 10 ACTING PRESIDENT MORAHAN: 11 Without objection, the Journal stands approved 12 as read. 13 Presentation of petitions. 14 Messages from the Assembly. 15 Messages from the Governor. 16 Reports of standing committees. 17 Reports of select committees. 18 Communications and reports from 19 state officers. 20 Motions and resolutions. 21 Senator Robach. 22 SENATOR ROBACH: Yes, 23 Mr. President. These amendments are offered 24 on the following Third Reading Calendar bills: 25 Senator Fuschillo, on page 17,

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(518) 371-8910 1 Calendar Number 136, Senate Print Number 2 2360A; 3 Senator Little, page 36, Calendar 4 Number 630, Print Number 3814; 5 Senator Lanza, page 35, Calendar 6 Number 629, Print Number 3584; 7 Senator Fuschillo, page 43, 8 Calendar Number 753, Print Number 5035; 9 And lastly, Senator Nozzolio, 10 page 37, Calendar Number 682, Print Number 11 4118. 12 ACTING PRESIDENT MORAHAN: The 13 amendments are received and adopted, and the 14 bills will retain their place on the Third 15 Reading Calendar. 16 Senator Bonacic. 17 SENATOR BONACIC: Thank you, 18 Mr. President. 19 On behalf of Senator LaValle, I 20 wish to call up his bill, Print Number 3821, 21 recalled from the Assembly, which is now at 22 the desk. 23 ACTING PRESIDENT MORAHAN: The 24 Secretary will read. 25 THE SECRETARY: Calendar Number

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(518) 371-8910 1 550, by Senator LaValle, Senate Print 3821, an 2 act to amend the Alcoholic Beverage Control 3 Law. 4 SENATOR BONACIC: Mr. President, 5 I now move to reconsider the vote by which the 6 bill was passed. 7 ACTING PRESIDENT MORAHAN: Call 8 the roll on reconsideration. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes, 42. 11 SENATOR BONACIC: Mr. President, 12 I now offer the following amendments. 13 ACTING PRESIDENT MORAHAN: The 14 amendments are received and adopted. 15 SENATOR BONACIC: This is a 16 second matter by Senator LaValle. I move that 17 the following bills be discharged from their 18 respective committees and be recommitted with 19 instructions to strike the enacting clause: 20 Senate Bill Number 1688. 21 ACTING PRESIDENT MORAHAN: So 22 ordered. 23 SENATOR BONACIC: Thank you, 24 Mr. President. 25 ACTING PRESIDENT MORAHAN: You're

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(518) 371-8910 1 welcome, Senator. 2 Senator Skelos. 3 SENATOR SKELOS: Mr. President, 4 Resolution 1154, by Senator Wright, was 5 previously adopted. Could we have it read in 6 its entirety at this time, and please 7 recognize Senator Wright. 8 ACTING PRESIDENT MORAHAN: The 9 Secretary will read. 10 THE SECRETARY: By Senator 11 Wright, Legislative Resolution Number 1154, 12 congratulating the Hammond Central High School 13 Girls Basketball Team and Coach Shawn H. Dack 14 upon the occasion of capturing the New York 15 State Class D Championship. 16 "WHEREAS, Excellence and success in 17 competitive sports can be achieved only 18 through strenuous practice, team play and team 19 spirit, nurtured by dedicated coaching and 20 strategic planning; and 21 "WHEREAS, Athletic competition 22 enhances the moral and physical development of 23 the young people of this state, preparing them 24 for the future by instilling in them the value 25 of teamwork, encouraging a standard of healthy

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(518) 371-8910 1 living, imparting a desire for success, and 2 developing a sense of fair play and 3 competition; and 4 "WHEREAS, The Hammond Central High 5 School Girls Basketball Team are the New York 6 State Class D champions. Hammond's historical 7 state championship is the first ever 8 basketball title for a Section X team; and 9 "WHEREAS, The Hammond Lady Red 10 Devils defeated S.S. Seward by a score of 52 11 to 51 in a thrilling comeback win to claim the 12 state crown on Sunday, March 18, 2007, at 13 Hudson Valley Community College, Troy, 14 New York; and 15 "WHEREAS, After shooting a dismal 16 eight for 32 from the field, Hammond trailed 17 34-22 at halftime. The Lady Red Devils then 18 made serious adjustments to get back into the 19 game; and 20 "WHEREAS, With 15 seconds left to 21 play in the game, the Lady Red Devils hit a 22 three-pointer to take the lead for good as 23 they stymied S.S. Seward for the New York 24 State Class D Championship; and 25 "WHEREAS, The athletic talent

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(518) 371-8910 1 displayed by this team is due in great part to 2 the efforts of Coach Shawn Dack, a skilled and 3 inspirational tutor, respected for his ability 4 to develop potential into excellence; and 5 "WHEREAS, The team's overall record 6 is outstanding, and the team members were 7 loyally and enthusiastically supported by 8 family, fans, friends and the community at 9 large; and 10 "WHEREAS, The hallmarks of the 11 Hammond Central High School Girls Basketball 12 Team, from the opening of the season to 13 participation in the championship, were a 14 sisterhood of athletic ability, of good 15 sportsmanship, of honor and of scholarship, 16 demonstrating that these team players were 17 second to none; and 18 "WHEREAS, Athletically and 19 academically, the team members have proven 20 themselves to be an unbeatable combination of 21 talents reflecting favorably on their school; 22 and 23 "WHEREAS, Coach Shawn Dack has done 24 a superb job in guiding, molding and inspiring 25 the team members toward their goals; and

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(518) 371-8910 1 "WHEREAS, Sports competition 2 instills the values of teamwork, pride and 3 accomplishment, and Coach Shawn Dack and these 4 outstanding athletes have clearly made a 5 contribution to the spirit of excellence which 6 is a tradition of their school; now, 7 therefore, be it 8 "RESOLVED, That this Legislative 9 Body pause in its deliberations to 10 congratulate the Hammond Central High School 11 Girls Basketball Team, its members -- Emily 12 Moquin, Brittany Kenyon, Nicole Davidson, 13 Aubrie Dunn, Cassie Cunningham, Brooke 14 Hollister, Katlyn Hunt, Whitney Atkins, 15 Malynda Jenne, Sarah Sheridan, Sara Measheaw, 16 and Jessica Martin -- and Coaches Shawn Dack, 17 Larry Hollister and Chet Truskowski, 18 Superintendent Doug McQueen and Scorekeeper 19 Cathy Tulley, on their outstanding season and 20 overall team record; and be it further 21 "RESOLVED, That copies of this 22 resolution, suitably engrossed, be transmitted 23 to the Hammond Central High School Girls 24 Basketball Team and to the aforementioned 25 staff."

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(518) 371-8910 1 ACTING PRESIDENT MORAHAN: 2 Senator Wright. 3 SENATOR WRIGHT: Thank you, 4 Mr. President. 5 I rise to welcome the New York 6 State champions for basketball. The Class D 7 champions from Hammond have joined us here in 8 the chambers today. I would ask them to rise, 9 if they would please stand. 10 For those of you who are not 11 familiar with it, Hammond is not a very big 12 place. It's a crossroads in St. Lawrence 13 County. And this small high school has 14 produced these young ladies, who are not only 15 statewide champions but all of them are 16 returning next year. So we're hoping that 17 we're going to see a repeat of the 18 championship. 19 And to give you some sense of how 20 proud Hammond is, the school superintendent 21 also serves as an assistant coach. The mayor 22 has joined us today also, Shelley Young, 23 because her daughter is on the team. 24 Hammond is all about what I think 25 we believe very strongly in this chamber, the

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(518) 371-8910 1 values of community, the values of family. 2 And this team and this school district typify 3 that. 4 And so we're very pleased and proud 5 of their accomplishment. We're very 6 appreciative of the Senate enacting this 7 resolution today, recognizing not only their 8 athletic achievement but their ability to 9 serve as role models to young women throughout 10 this state, women who demonstrate that they 11 can achieve an accomplishment, that they serve 12 their peers well, that they can serve as role 13 models. 14 So it's my honor to represent them 15 and their families in Hammond. It's my honor 16 to welcome them here to the Capitol today. 17 And it's my honor to express my appreciation 18 on behalf of Senator Bruno and all the members 19 of the Senate today in recognizing your 20 accomplishments. 21 Well done. Congratulations. 22 (Applause.) 23 ACTING PRESIDENT MORAHAN: Thank 24 you, Senator Wright. 25 Senator Volker.

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(518) 371-8910 1 SENATOR VOLKER: I just want to 2 say, as the -- some people up there say the 3 second Senator from Hammond, I've spent a lot 4 of time fishing at Black Lake for the last 45 5 years. And Hammond is actually the town where 6 the cottages we've stayed at is. 7 And I know a lot about the town. 8 The people there love Jim Wright, and they 9 should. It's a great place. 10 And I want to congratulate you on 11 behalf of myself and my family. And my 12 daughter and my family would think I was 13 remiss if I didn't say something good, because 14 they've always loved the town of Hammond. 15 Congratulations. 16 ACTING PRESIDENT MORAHAN: Thank 17 you, Senator Volker. 18 The resolution was adopted on March 19 27th. 20 And as Senator Wright pointed out, 21 these young ladies are in the gallery today. 22 Congratulations. Well done; a great 23 accomplishment. Thank you. 24 SENATOR SKELOS: Mr. President. 25 ACTING PRESIDENT MORAHAN:

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(518) 371-8910 1 Senator Skelos. 2 SENATOR SKELOS: If we could go 3 to the noncontroversial reading of the 4 calendar. 5 ACTING PRESIDENT MORAHAN: The 6 Secretary will read. 7 THE SECRETARY: Calendar Number 8 232, by Senator Farley, Senate Print 2864, an 9 act to amend the Banking Law, in relation to 10 enforcement. 11 ACTING PRESIDENT MORAHAN: Read 12 the last section. 13 THE SECRETARY: Section 2. 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: Ayes, 56. 21 ACTING PRESIDENT MORAHAN: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 24 475, by Senator Rath, Senate Print 1756A, an 25 act to amend the Vehicle and Traffic Law and

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(518) 371-8910 1 the Penal Law, in relation to suspension. 2 ACTING PRESIDENT MORAHAN: Read 3 the last section. 4 THE SECRETARY: Section 3. This 5 act shall take effect on the first of 6 November. 7 ACTING PRESIDENT MORAHAN: Call 8 the roll. 9 (The Secretary called the roll.) 10 ACTING PRESIDENT MORAHAN: 11 Announce the results. 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 475 are 14 Senators Duane and Sabini. 15 Ayes, 54. Nays, 2. 16 ACTING PRESIDENT MORAHAN: The 17 bill is passed. 18 THE SECRETARY: Calendar Number 19 537, by Senator Volker, Senate Print 3910, an 20 act to amend the Criminal Procedure Law, in 21 relation to a sentence of parole supervision. 22 ACTING PRESIDENT MORAHAN: Read 23 the last section. 24 THE SECRETARY: Section 3. This 25 act shall take effect immediately.

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(518) 371-8910 1 ACTING PRESIDENT MORAHAN: Call 2 the roll. 3 (The Secretary called the roll.) 4 ACTING PRESIDENT MORAHAN: 5 Announce the results. 6 THE SECRETARY: Ayes, 56. 7 ACTING PRESIDENT MORAHAN: The 8 bill is passed. 9 THE SECRETARY: Calendar Number 10 610, by Senator Larkin, Senate Print 2721, an 11 act to amend the Racing, Pari-Mutuel Wagering 12 and Breeding Law, in relation to the 13 imposition of fines. 14 ACTING PRESIDENT MORAHAN: Read 15 the last section. 16 THE SECRETARY: Section 3. This 17 act shall take effect immediately. 18 ACTING PRESIDENT MORAHAN: Call 19 the roll. 20 (The Secretary called the roll.) 21 ACTING PRESIDENT MORAHAN: 22 Announce the results. 23 THE SECRETARY: Ayes, 56. 24 ACTING PRESIDENT MORAHAN: The 25 bill is passed.

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(518) 371-8910 1 THE SECRETARY: Calendar Number 2 639, by Senator Golden, Senate Print -- 3 SENATOR DUANE: Lay it aside, 4 please. 5 ACTING PRESIDENT MORAHAN: The 6 bill is laid aside. 7 THE SECRETARY: Calendar Number 8 642, by Senator Libous, Senate Print -- 9 SENATOR DUANE: Lay it aside, 10 please. 11 ACTING PRESIDENT MORAHAN: The 12 bill is laid aside. 13 THE SECRETARY: Calendar Number 14 644, by Senator DeFrancisco, Senate Print 15 2739, an act to amend the Penal Law, in 16 relation to establishing. 17 ACTING PRESIDENT MORAHAN: Read 18 the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect on the first of 21 November. 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 Announce the results. 2 THE SECRETARY: Ayes, 56. 3 ACTING PRESIDENT MORAHAN: The 4 bill is passed. 5 THE SECRETARY: Calendar Number 6 655, by Senator Volker, Senate Print 4146, an 7 act to amend the Criminal Procedure Law, in 8 relation to final orders of observation. 9 ACTING PRESIDENT MORAHAN: Read 10 the last section. 11 THE SECRETARY: Section 4. This 12 act shall take effect on the 30th day. 13 ACTING PRESIDENT MORAHAN: Call 14 the roll. 15 (The Secretary called the roll.) 16 ACTING PRESIDENT MORAHAN: 17 Announce the results. 18 THE SECRETARY: Ayes, 56. 19 ACTING PRESIDENT MORAHAN: The 20 bill is passed. 21 THE SECRETARY: Calendar Number 22 707, by Senator Flanagan, Senate Print 796, an 23 act to amend the Tax Law, in relation to 24 exemptions. 25 ACTING PRESIDENT MORAHAN: There

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(518) 371-8910 1 is a local fiscal impact note at the desk. 2 Read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect on the first day of a 5 sales tax quarterly period. 6 ACTING PRESIDENT MORAHAN: Call 7 the roll. 8 (The Secretary called the roll.) 9 ACTING PRESIDENT MORAHAN: 10 Announce the results. 11 THE SECRETARY: Ayes, 55. Nays, 12 1. Senator Duane recorded in the negative. 13 ACTING PRESIDENT MORAHAN: The 14 bill is passed. 15 THE SECRETARY: Calendar Number 16 716, by Senator Young, Senate Print 3714, an 17 act to amend the Agriculture and Markets 18 Law -- 19 SENATOR SKELOS: Lay it aside for 20 the day, please. 21 ACTING PRESIDENT MORAHAN: The 22 bill is laid aside for the day. 23 THE SECRETARY: Calendar Number 24 734, by Senator C. Kruger, Senate Print 4541, 25 an act to amend the Family Court Act and the

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(518) 371-8910 1 Domestic Relations Law, in relation to orders 2 of protection. 3 ACTING PRESIDENT MORAHAN: Read 4 the last section. 5 THE SECRETARY: Section 8. This 6 act shall take effect on the 90th day. 7 ACTING PRESIDENT MORAHAN: Call 8 the roll. 9 (The Secretary called the roll.) 10 ACTING PRESIDENT MORAHAN: 11 Announce the results. 12 THE SECRETARY: Ayes, 56. 13 ACTING PRESIDENT MORAHAN: The 14 bill is passed. 15 THE SECRETARY: Calendar Number 16 752, by Senator Fuschillo, Senate Print 4964, 17 an act to amend the General Business Law, in 18 relation to mail order and telephone order 19 merchandise. 20 ACTING PRESIDENT MORAHAN: Read 21 the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 24 ACTING PRESIDENT MORAHAN: Call 25 the roll.

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(518) 371-8910 1 (The Secretary called the roll.) 2 ACTING PRESIDENT MORAHAN: 3 Announce the results. 4 THE SECRETARY: Ayes, 56. 5 ACTING PRESIDENT MORAHAN: The 6 bill is passed. 7 THE SECRETARY: Calendar Number 8 757, by Senator Marcellino, Senate Print 4368, 9 an act to amend the Tax Law, in relation to 10 making technical corrections. 11 ACTING PRESIDENT MORAHAN: Read 12 the last section. 13 THE SECRETARY: Section 4. 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: Ayes, 56. Nays, 21 0. 22 ACTING PRESIDENT MORAHAN: The 23 bill is passed. 24 THE SECRETARY: Calendar Number 25 758, by Senator DeFrancisco, Senate Print 53,

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(518) 371-8910 1 an act to amend the Vehicle and Traffic Law, 2 in relation to penalties for littering. 3 ACTING PRESIDENT MORAHAN: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the first of 7 November. 8 ACTING PRESIDENT MORAHAN: Call 9 the roll. 10 (The Secretary called the roll.) 11 ACTING PRESIDENT MORAHAN: 12 Announce the results. 13 THE SECRETARY: Ayes, 56. 14 ACTING PRESIDENT MORAHAN: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 762, by Senator Griffo, Senate Print 880, an 18 act to amend the Highway Law, in relation to 19 designation of the "Griffiss Veterans' 20 Memorial Parkway." 21 ACTING PRESIDENT MORAHAN: Read 22 the last section. 23 THE SECRETARY: Section 3. This 24 act shall take effect immediately. 25 ACTING PRESIDENT MORAHAN: Call

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(518) 371-8910 1 the roll. 2 (The Secretary called the roll.) 3 ACTING PRESIDENT MORAHAN: 4 Announce the results. 5 THE SECRETARY: Ayes, 56. 6 ACTING PRESIDENT MORAHAN: The 7 bill is passed. 8 THE SECRETARY: Calendar Number 9 769, by Senator Winner, Senate Print 3237, an 10 act to amend the Highway Law, in relation to 11 authorizing. 12 ACTING PRESIDENT MORAHAN: Read 13 the last section. 14 THE SECRETARY: Section 5. This 15 act shall take effect immediately. 16 ACTING PRESIDENT MORAHAN: Call 17 the roll. 18 (The Secretary called the roll.) 19 ACTING PRESIDENT MORAHAN: 20 Announce the results. 21 THE SECRETARY: Ayes, 56. 22 ACTING PRESIDENT MORAHAN: The 23 bill is passed. 24 THE SECRETARY: Calendar Number 25 777, by Senator LaValle, Senate Print 4299, an

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(518) 371-8910 1 act to amend the Highway Law, in relation to 2 designating. 3 ACTING PRESIDENT MORAHAN: Read 4 the last section. 5 THE SECRETARY: Section 4. This 6 act shall take effect on the 30th day. 7 ACTING PRESIDENT MORAHAN: Call 8 the roll. 9 (The Secretary called the roll.) 10 ACTING PRESIDENT MORAHAN: 11 nnounce the results. 12 THE SECRETARY: Ayes, 56. 13 ACTING PRESIDENT MORAHAN: The 14 bill is passed. 15 THE SECRETARY: Calendar Number 16 790, by Senator Maziarz, Senate Print 21, an 17 act to authorize the First Volunteer Fire 18 Company of Bergholz, Inc. 19 ACTING PRESIDENT MORAHAN: Read 20 the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT MORAHAN: Call 24 the roll. 25 (The Secretary called the roll.)

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(518) 371-8910 1 ACTING PRESIDENT MORAHAN: 2 Announce the results. 3 THE SECRETARY: Ayes, 55. Nays, 4 1. Senator Duane recorded in the negative. 5 ACTING PRESIDENT MORAHAN: The 6 bill is passed. 7 THE SECRETARY: Calendar Number 8 795, by Senator Morahan, Senate Print 1475, an 9 act authorizing Northeastern Conference 10 Corporation of Seventh Day Adventists. 11 ACTING PRESIDENT MORAHAN: Read 12 the last section. 13 THE SECRETARY: Section 2. 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: Ayes, 54. Nays, 21 2. Senators Bonacic and Larkin recorded in 22 the negative. 23 ACTING PRESIDENT MORAHAN: The 24 bill is passed. 25 THE SECRETARY: Calendar Number

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(518) 371-8910 1 803, by Senator Trunzo, Senate Print 3260, an 2 act in relation to authorizing the assessor of 3 the Town of Brookhaven. 4 ACTING PRESIDENT MORAHAN: Read 5 the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT MORAHAN: Call 9 the roll. 10 (The Secretary called the roll.) 11 ACTING PRESIDENT MORAHAN: 12 Announce the results. 13 THE SECRETARY: Ayes, 54. Nays, 14 2. Senators Bonacic and Larkin recorded in 15 the negative. 16 ACTING PRESIDENT MORAHAN: The 17 bill is passed. 18 THE SECRETARY: Calendar Number 19 805, by Senator Trunzo, Senate Print 3262, an 20 act in relation in authorizing the assessor of 21 the Town of Islip. 22 ACTING PRESIDENT MORAHAN: Read 23 the last section. 24 THE SECRETARY: Section 2. This 25 act shall take effect immediately.

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(518) 371-8910 1 ACTING PRESIDENT MORAHAN: Call 2 the roll. 3 (The Secretary called the roll.) 4 ACTING PRESIDENT MORAHAN: 5 Announce the results. 6 THE SECRETARY: Ayes, 54. Nays, 7 2. Senators Bonacic and Larkin recorded in 8 the negative. 9 ACTING PRESIDENT MORAHAN: The 10 bill is passed. 11 THE SECRETARY: Calendar Number 12 817, by Senator Flanagan, Senate Print 4175, 13 an act to amend the Public Authorities Law, in 14 relation to powers. 15 ACTING PRESIDENT MORAHAN: Read 16 the last section. 17 THE SECRETARY: Section 3. This 18 act shall take effect immediately. 19 ACTING PRESIDENT MORAHAN: Call 20 the roll. 21 (The Secretary called the roll.) 22 ACTING PRESIDENT MORAHAN: 23 Announce the results. 24 THE SECRETARY: Ayes, 56. 25 ACTING PRESIDENT MORAHAN: The

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(518) 371-8910 1 bill is passed. 2 THE SECRETARY: Calendar Number 3 825, by Senator LaValle, Senate Print 3922, an 4 act to amend the Education Law, in relation to 5 disclosure of gifts. 6 ACTING PRESIDENT MORAHAN: Read 7 the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect on the first of August. 10 ACTING PRESIDENT MORAHAN: Call 11 the roll. 12 (The Secretary called the roll.) 13 ACTING PRESIDENT MORAHAN: 14 Announce the results. 15 THE SECRETARY: Ayes, 56. 16 ACTING PRESIDENT MORAHAN: The 17 bill is passed. 18 Senator Skelos, that completes the 19 noncontroversial reading of the calendar. 20 SENATOR SKELOS: Thank you, 21 Mr. President. If we could ring the bells and 22 then move on to the controversial reading of 23 the calendar. 24 ACTING PRESIDENT MORAHAN: The 25 Secretary will ring the bells.

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(518) 371-8910 1 The Secretary will read. 2 THE SECRETARY: Calendar Number 3 639, by Senator Golden, Senate Print 319, an 4 act to amend the Penal Law and the Criminal 5 Procedure Law. 6 SENATOR DUANE: Explanation, 7 please. 8 ACTING PRESIDENT MORAHAN: 9 Senator Golden, an explanation has been 10 requested. 11 SENATOR GOLDEN: Thank you, 12 Mr. President. 13 We're introducing the death penalty 14 today because we believe it will save lives 15 and bring crime down across the state of 16 New York. 17 We've seen, in 1977, when the 18 Supreme Court took out the death penalty, 19 we've seen crime rise across the State of 20 New York, over 900,000 crimes and over 2245 21 homicides in 1992 and 1993. And then we've 22 seen the death penalty put back in by our 23 Governor, Governor Pataki at that point, 24 reinstated. 25 And even though we put nobody to

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(518) 371-8910 1 death in this state between 1995 and 2003, 2 when they took out -- when the Supreme Court 3 found that it was not justified on the jury 4 sentencing portion of it, we've seen crime 5 come down across this state drastically, to 6 below 300,000 crimes committed across this 7 state, to less than 600 homicides in 2005 and 8 2004. 9 And the Supreme Court again found 10 that the jury section, the sentencing section 11 of this law was unconstitutional. So what 12 we're doing here today is correcting that and 13 moving the death penalty for those that would 14 kill police officers, state troopers, those 15 that would kill peace officers, and those that 16 would kill correction officers and correction 17 employees in their line of duty. 18 And the question is why do we do 19 that today. Well, we do it today because 20 we've seen over 10 police officers and 21 troopers killed in the past year and a half, a 22 rise in numbers that we haven't seen since the 23 '70s, an outstanding number of police officers 24 and state troopers being assassinated. One 25 most recently in Utica, where they walked up

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(518) 371-8910 1 behind the state trooper and they shot him in 2 the back of the head. 3 And we've seen most recently 4 Trooper Brinkerhoff, and we see most recently 5 the case with Trooper Andrew Sperr. And we 6 see a host of cases and a host of crimes that 7 are going up across the cities and state, and 8 the number of homicides that are going up as 9 well. 10 And I point out Andrew Sperr 11 because the codefendants in that case, while 12 being questioned in a jury trial, stated the 13 reason that they shot and killed Trooper Sperr 14 is because there is no death penalty here in 15 the State of New York and that all they would 16 get is time in jail. 17 And then we see studies, the Mocan 18 and Gittings study that shows each individual 19 execution results in a decrease of five 20 murders, and we see the study of Shepherd 21 coming out of the University of Chicago. That 22 confirms that, but decreases it by three 23 murders instead of five. 24 So we see crimes of passion coming 25 down. We see homicides and murders of police

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(518) 371-8910 1 officers and state troopers coming down. We 2 see in 1995 where you had 10 to 14 murders per 3 100,000 people, and you seen that drop to 8.5 4 in 1995, and you seen a drop to 4.5 per 5 100,000 in 2005. That's not coincidence. 6 Those are direct statistics that prove that 7 this is a deterrent. 8 So what we've done is presently, in 9 the case where the jury is deadlocked and the 10 defendant is automatically sentenced to an 11 indeterminate term with a minimum of 20 to 25 12 years to life, we've changed that. In a 13 deadlock provision, we've changed it to life 14 imprisonment without parole. And we've 15 reduced it and been more specific as to who it 16 would apply to, and that's to peace officers, 17 police officers and correction officers across 18 the state of New York. 19 The states that have this, in Texas 20 and North Carolina, we see two police officers 21 dying by gunshot. We see the same in South 22 Carolina and Florida. And here in New York, 23 just since the beginning of 2007, we have four 24 officers fallen by gunshot. Fifty-seven law 25 enforcement officers across the country since

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(518) 371-8910 1 the beginning of this year, and 23 of them 2 have died by gunfire. 3 Thirty-eight states have the death 4 penalty, and the United States government has 5 it. And in all these cases we see -- in a 6 majority of the cases we see a remarkable drop 7 in crime and a remarkable drop in homicides 8 and deaths against police officers. 9 So today we're asking our 10 colleagues in the State Senate here to vote, 11 to vote for those that have died, for those 12 families that have lost loved ones across this 13 great state, and to tell them that we are 14 going to do what's right for the police 15 officers and the state troopers, for the 16 correction officers and peace officers, for 17 their families here in this great state. 18 We need to stop this open season on 19 troopers and police officers. And this, 20 ladies and gentlemen, is exactly what it is -- 21 it's an open season to kill law enforcement. 22 The majority of this state is in favor. In 23 recent polling, 76 percent across the state of 24 New York believe that we should have a death 25 penalty for those that would kill police

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(518) 371-8910 1 officers and troopers in the line of duty. 2 So I ask my colleagues on both 3 sides to search their conscience and to vote 4 for a piece of legislation that will save 5 lives and at the same time bring down crime 6 across the State of New York. 7 And I'm hoping that my colleagues 8 in the Assembly -- and if this bill gets to 9 the floor of the Assembly, you would have over 10 100 votes in that Assembly for this bill. We 11 need this bill. We need this legislation. 12 And we would have unanimous support in the 13 Assembly if this bill were to hit the floor. 14 So we're hoping here that 15 colleagues on the other side will join us and 16 vote their conscience for all those troopers, 17 all those officers, all those correction 18 officers and all those peace officers that go 19 out each and every day and put their lives on 20 the line for us. 21 ACTING PRESIDENT MORAHAN: 22 Senator Bruno. 23 SENATOR BRUNO: Thank you, 24 Mr. President. And thank you, Senator. And 25 thank you, Senator Golden. Thank you for

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(518) 371-8910 1 introducing this legislation; thank you for 2 your explanation on the reasons why the 3 passage of this is so compelling. 4 And no one takes pleasure in 5 proposing a death penalty for anyone. No one 6 takes any pleasure in that. It's tragic that 7 it's necessary. But as the Senator may have 8 reviewed, this year, the last several months, 9 four police officers killed. The last year, 10 10 law enforcement personnel killed. 11 As you heard in testimony, with one 12 of the killers who stepped out of his car and 13 shot a law enforcement person right in the 14 face, say to his colleague in the car before 15 he stepped out: "New York State doesn't have 16 a death penalty?" He said no. "Well, then, 17 it's just a question of how much time you 18 get -- short time, long time." Now, that's 19 testimony in a deposition. He goes out and 20 shoots a cop. 21 Now, I would ask anyone here who 22 doesn't want to be supportive, when a person 23 who kills a police officer is incarcerated for 24 a length of time, for life, would you guard 25 him? Like Lemuel Smith killed corrections

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(518) 371-8910 1 officers. Why? Couldn't get two life 2 sentences. Right? So you could kill a 3 corrections officer with impunity, and held 4 harmless. Now, think about that. Would you 5 go in and guard that person? I don't think 6 so. 7 Would you want your son or your 8 daughter, your father or your mother, your 9 grandfather or your grandmother to have to do 10 that? I don't think so. I don't think so. 11 So we're asking that this bill be 12 supported and sent to the Assembly. Governor 13 Spitzer, in his wisdom, has indicated public 14 support for passage of this legislation. So 15 we're appealing to Governor Spitzer, who uses 16 his bully pulpit very effectively when he 17 wants to, to stand up, speak up, speak out, 18 travel this state and go into the Assembly 19 districts and go into the districts where 20 people are reluctant or unwilling to stand up 21 for people who are in law enforcement. 22 We're asking the Governor to do 23 that, because he says he supports it. And I 24 believe him. I believe this Governor. And 25 for the people that are here, the young

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(518) 371-8910 1 people, if this Governor wants to make this 2 law, he can do it. He is extremely 3 persuasive. 4 So we're appealing to the Governor. 5 The Assembly, they've had their opportunities 6 since this law, parts of it were struck down 7 as unconstitutional. They have not addressed 8 this issue, and they're indicating 9 uncertainty. 10 Senator Golden, you're right. This 11 bill on the floor would pass in an 12 overwhelming way. Why? Because the great 13 majority of people in the Legislature want to 14 protect people who dedicate their lives to 15 protecting the innocent, to protecting women, 16 children, innocent people. They get up in the 17 morning, they answer calls. They're cruising, 18 walking, in their cars, never knowing what 19 circumstance is going to take place. 20 We attended the funeral of Trooper 21 Brinkerhoff and saw his 29-year-old wife, a 22 widow, 7-month-old baby. Killed. Trooper 23 Longobardo, my district, killed. Young widow; 24 young child, I think a year old. Think about 25 their lives and how their lives have changed.

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(518) 371-8910 1 Think about the 10 police officers 2 killed in the last year. Think about their 3 lives when their families get up every 4 morning, they go to bed every night, and 5 there's empty space. Think about a mother on 6 Mother's Day, with a son killed. Killed by 7 whom? By animals, by people who are truly 8 demented, to look at someone and shoot them 9 right in the face. Think about that. 10 So we're appealing for support. 11 We're asking you to examine yourselves. And 12 again, I'll close and say no one takes 13 pleasure in proposing a death penalty for a 14 killer. But if it's ever valid, it is to 15 protect people who are peace officers, who are 16 there to protect all of the innocent people 17 who can't protect themselves. 18 I would not be in the chamber 19 smiling. I wouldn't be doing that. I would 20 be thinking and praying for the people who 21 have departed who were in law enforcement, 22 whose names are numbered over there in that 23 monument. 24 This is Law Enforcement Week this 25 week. We're going to go over there to that

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(518) 371-8910 1 monument, and we're going to be adding in 2 engraved way to that monument there. And I've 3 been there for the last 12 years, and it 4 almost brings you to tears when you see the 5 children, you see the fathers and the mothers 6 and the wives and the husbands of someone that 7 has been killed by a criminal -- and, more 8 times than not, who have killed before. 9 The father of a slain officer was 10 in here two weeks ago. The person that killed 11 his son had killed someone 12 years before. 12 Went to prison and got out, killed a young 13 man. Think about that. 14 And what does a parent say as they 15 are describing what took place in their 16 families? What do they say? They're in 17 appealing for support and for help from all of 18 us. And we owe it to them. We owe it to 19 them, to the families, to the survivors, to 20 those that are out there every day, in or out 21 of uniform, protecting us, protecting you. 22 Protecting you. Protecting me. Protecting 23 all of us. That's that they do. And they're 24 prepared to give their lives. 25 We have to be prepared to do what

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(518) 371-8910 1 we're elected to do, and that's help protect 2 those that are in law enforcement and who are 3 peace officers. I urge you to join us in 4 supporting this legislation, send it to the 5 Assembly. And with the support of the 6 Governor, hopefully we'll see it become law. 7 Thank you, Mr. President. 8 ACTING PRESIDENT MORAHAN: Thank 9 you, Senator Bruno. 10 Senator Bonacic. 11 SENATOR BONACIC: Thank you, 12 Mr. President. 13 I think that this should be the 14 number-one legislative priority before session 15 ends. What could be more important than 16 public safety for our families that results in 17 protecting the first line of defense that 18 protects our families? And that is our law 19 enforcement communities. 20 I know that the anti-death penalty 21 advocates were up here last week and they 22 spoke of why we should not do a death penalty 23 for cop killers. I heard things like the cost 24 of prosecution. I heard the delays that it 25 will take to prosecute. I heard arguments

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(518) 371-8910 1 about gun control. I heard so many other 2 arguments that have nothing to do with us 3 tackling the issue of a death penalty for cop 4 killers. 5 Now, when Trooper Brinkerhoff was 6 killed, the latest, two weeks ago, there was 7 rage. There was a lot of emotion. And 8 everyone said, Well, that's a knee-jerk 9 reaction, talking about a death penalty for 10 cop killers. I say that it's about justice, 11 just punishment, and deterrence. 12 You've heard from Senator Golden 13 who himself was a detective, who's a wounded 14 police officer, who knows a little bit about 15 what police officers do. You heard Senator 16 Bruno speak about how we have to protect our 17 law enforcement community, peace officers, 18 correction officers. 19 You heard a story when Anthony 20 Horton, they took his testimony of a witness, 21 an accomplice, and he said before they killed 22 a cop approaching the car, that if New York 23 State does not have a death penalty. Do you 24 honestly believe that a death penalty for cop 25 killers is not a deterrence when there are

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(518) 371-8910 1 statistics that show that homicides against 2 police officers and murderers -- they fall 3 down, the statistics, if a death penalty for 4 cop killers is in place. 5 Now, I'm one of those that listens 6 to my constituents, that doesn't think life 7 imprisonment with parole is just punishment 8 when you take a police officer's life. Talk 9 to that police officer's wife, talk to that 10 police officer's parents, speak to the 11 children of that police officer about what is 12 just punishment. And there are a majority of 13 people in the state of New York that feel life 14 imprisonment without parole is not just 15 punishment. It's not a picnic, but for some 16 three meals a day, a bed and cable TV is not 17 that bad. 18 Now, when is the time that we 19 should act on a death penalty legislation? 20 When? Two weeks ago, before Trooper David 21 Brinkerhoff was killed, was that the 22 appropriate time? 23 Maybe it was April 11, 2007. Maybe 24 that was the date. Because that's when Utica 25 police officer Tom Lindsey was killed. No,

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(518) 371-8910 1 no, that wasn't the time. 2 Maybe it was March 13, 2007. 3 That's when two New York City police officers, 4 Eugene Marshalik and Nicholas Pekearo, were 5 killed, gunned down by evil cowards. Wait. 6 Was that a knee-jerk reaction that we 7 talked -- no, let's go back. Let's go to 8 August 31, 2006. Trooper Joseph Longobardo 9 was killed. And he has a son now that's 20 10 months old. 11 If that is not the right time, 12 maybe we should have done it on February 28, 13 2006, because that's when Trooper Sperr was 14 killed. Now, Trooper Sperr, when he was 15 killed, he had surviving four brothers, six 16 sisters and parents. And that killer is 17 getting medical treatment from the state for 18 his wounds. Do you think they think life 19 without parole is just punishment? 20 But wait. Maybe February 27, 2006, 21 was appropriate. That's when New Hartford 22 police officer Joseph Corr was shot and 23 killed, leaving a wife and daughter. 24 This isn't about compassion 25 politics. This is about justice and

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(518) 371-8910 1 deterrence and protection for our families. 2 Now, I can go on and on and on and 3 give you more police officers' names and 4 dates. But you know the time that we should 5 have been debating the death penalty and 6 talking about it? That was June 25, 2004. 7 And you know why that day was the appropriate 8 time? Because that was the day after the 9 Court of Appeals said that our death penalty 10 legislation was unconstitutional. 11 So I ask you, had we talked about 12 the death penalty then and implemented it, 13 maybe these 10 officers would still be alive 14 today. 15 I think we have to give juries and 16 judges an alternative to see when the 17 punishment fits the crime. A terrorist cop 18 killer, undisputed evidence, no chance of 19 nailing the wrong defendant? It is just to 20 take that evil person's life. 21 The time for justice is now, not to 22 keep talking about the death penalty when the 23 next police officer gets killed. I know this 24 chamber will be generally supportive. And, 25 you know, there's something morally and

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(518) 371-8910 1 ethically wrong with our system when a power 2 broker in the Assembly like Sheldon Silver can 3 put his thumb on a bill and not let it come to 4 the floor, when the majority of the people in 5 the state of New York want their elected 6 legislators to vote up or down. 7 We know where law enforcement 8 stands. We know where peace officers stand, 9 we know where correction officers stand. And 10 everyone knows where the majority of this 11 Senate stands, and that's with the law 12 enforcement community. I vote aye. 13 Thank you, Mr. President. 14 ACTING PRESIDENT MORAHAN: Thank 15 you, Senator Bonacic. 16 Senator Schneiderman. 17 SENATOR SCHNEIDERMAN: Thank you, 18 Mr. President. 19 I believe there's an amendment at 20 the desk. I ask that the reading of the 21 amendment be waived and that I be heard on the 22 amendment. 23 ACTING PRESIDENT MORAHAN: The 24 reading is waived, and you may be heard on the 25 amendment.

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(518) 371-8910 1 SENATOR SCHNEIDERMAN: Thank you, 2 Mr. President. 3 This is as serious an issue as any 4 we deal with here in the Senate. The decision 5 as to whether or not we will impose the 6 ultimate sanction of a state-imposed death 7 penalty is a profound and serious decision. I 8 know everyone here takes it with the gravity 9 that it deserves. 10 This amendment has a very simple 11 purpose, and I hope that we can get truly 12 bipartisan support for it. Because if 13 anything, I think it makes the case of those 14 who argue for stiffer sentences and argue for 15 the death penalty a stronger case. This is an 16 amendment that ensures that before we pass a 17 bill to impose this ultimate sanction, we take 18 every step possible to ensure that innocent 19 people are not wrongfully convicted. 20 Now, we know through the work of 21 the Innocence Project at Cardozo Law School 22 and others that innocent people are convicted 23 of serious crimes of murder, of attempted 24 murder, of rape in the state of New York. 25 Senator Volker, indeed, is a

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(518) 371-8910 1 sponsor of a bill that would move the claims 2 for compensation for people who are wrongfully 3 convicted in New York to the front of the 4 line, as it were, when they're seeking to get 5 into the judicial system after being locked up 6 for crimes they didn't commit. 7 We also know that there are people 8 who are put on death row in states that have 9 the death penalty who are wrongfully 10 convicted. May 11, 2007, saw this headline: 11 "Breaking News, Oklahoma Man Freed, 124th 12 death penalty exoneration." 13 So, ladies and gentlemen, with all 14 due respect to my colleagues' assertion of 15 facts and statistics, the one fact that is 16 unassailable is that we convict innocent 17 people in this state. This amendment contains 18 several components that would enable us to at 19 least say as a Senate, as a body, we are 20 taking every step possible with the technology 21 that is now available to us to ensure that no 22 innocent person is executed in this state. 23 First, this amendment would ensure 24 that our advanced DNA technology is applied to 25 every single case. Currently in the state of

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(518) 371-8910 1 New York, it is not. We would preserve DNA 2 evidence, we would require that every 3 defendant have access to DNA screening of 4 their crime. We would enable people who plead 5 guilty -- and many people who plead guilty to 6 crimes they did not commit, whether you like 7 to believe it or not, the DNA evidence has 8 shown that in case after case. This would 9 enable people who plead guilty and are later 10 exonerated by DNA evidence to have the 11 opportunity to get out. 12 ACTING PRESIDENT MORAHAN: 13 Senator Schneiderman, may I interrupt you? 14 SENATOR SCHNEIDERMAN: Yes, 15 Mr. President. 16 ACTING PRESIDENT MORAHAN: 17 Senator Winner, why do you rise? 18 SENATOR WINNER: Senator Morahan, 19 would Senator Schneiderman yield to a 20 question? 21 ACTING PRESIDENT MORAHAN: 22 Senator Schneiderman, will you yield? 23 SENATOR SCHNEIDERMAN: If I might 24 just finish my very brief overview summary, I 25 am always glad to engage Senator Winner in a

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(518) 371-8910 1 dialogue, and I look forward to doing so on 2 this issue. 3 ACTING PRESIDENT MORAHAN: 4 Continue, Senator. 5 SENATOR SCHNEIDERMAN: But just 6 to finish this paragraph, if I may. 7 It is amazing that we do not 8 already have rules requiring the 9 preservation -- not just the preservation of 10 evidence; we preserve DNA evidence. But there 11 is no law requiring that it be catalogued and 12 organized so that you can find it. 13 We have had cases -- and I met 14 several weeks ago with a man who did 22 years. 15 And despite repeated requests that they find 16 his DNA and test it, the DNA warehouse in 17 New York City responded they couldn't find it, 18 it was lost, it was lost. When they finally 19 found it, he was exonerated. He got out after 20 22 years. 21 This amendment would ensure that 22 people who make false confessions have the 23 opportunity to have those reviewed. It would 24 require the videotaping of confessions and 25 overrule the Second Department's ruling in

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(518) 371-8910 1 People v. Birdsong, which indicates that even 2 if DNA evidence exonerates someone, if they 3 pled guilty they can't get out. 4 And this amendment would correct 5 the woeful procedure for eyewitness testimony 6 that operates in many jurisdictions in this 7 state. Seventy-five percent of the cases in 8 which people were wrongfully convicted and 9 later exonerated by DNA evidence involve 10 eyewitness testimony. 11 Everyone here who's tried a 12 criminal case knows how shaky eyewitness 13 testimony is. People testify to remembering 14 all sorts of things that they may or may not 15 have seen. It is a very dangerous straw on 16 which to build a prosecution for the death 17 penalty. 18 So I would urge all of you, my 19 colleagues, whether you support the death 20 penalty or oppose the death penalty, let us 21 not take this step, let us not send to the 22 Assembly a bill for this ultimate sanction 23 that does not also include the provisions to 24 ensure that no person is wrongfully convicted. 25 Keep in mind that every time

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(518) 371-8910 1 someone is wrongfully convicted, the real 2 perpetrator is still out there. This is a 3 pro-law enforcement move, in my view. This 4 ensures that the innocent stay out and that 5 the guilty are apprehended. 6 In the Governor's proposed 7 expanding of the DNA database, there's no 8 point in expanding it -- I support expansion 9 of the database, but there's no point in 10 expanding it unless we pass this amendment 11 requiring that it all be cataloged and 12 organized so we can use it. There's no point 13 in expanding it unless we change the laws to 14 require that every crime scene get the DNA 15 evidence and the fingerprint evidence into the 16 system that our technology provides for. 17 Ladies and gentlemen, let us not 18 execute one innocent person in this state. We 19 have the technology and the ability to make 20 sure that we at least do everything possible 21 to ensure that that does not take place. And 22 by supporting this amendment, you would 23 provide support, I believe, to one of the most 24 important things that we can do in the 25 New York State Senate, which is to provide for

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(518) 371-8910 1 a system of justice for all. 2 I assure you the people who suffer 3 wrongful convictions are not a lot of rich 4 white people. We all know that the imposition 5 of the death penalty in the criminal justice 6 system in general has discriminatory aspects 7 to it by class, by race. People with 8 developmental disabilities more likely to 9 suffer. People with low intelligence are more 10 likely to suffer. 11 The FBI did the only study that I 12 know of where they examined DNA exclusions of 13 defendants in cases for all arrests and 14 indictments of people in violent crimes -- and 15 this was written up back in 1996 -- and they 16 found that for arrests and indictments, 17 24 percent of those arrested and indicted were 18 later excluded by DNA evidence. 19 Now, most of those people were poor 20 people of color. And I'd urge all of you when 21 you say, Well, people doubt the validity of 22 the criminal justice system, people are 23 questioning the police, people aren't 24 cooperating with the police -- maybe we should 25 pass this amendment, add this to your bill and

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(518) 371-8910 1 restore the confidence that the innocent are 2 not convicted and that people are not 3 discriminated against based on class and race 4 by our criminal justice system. 5 This would go a long way, ladies 6 and gentlemen. I hope we can get bipartisan 7 support for this amendment. The Governor has 8 just introduced his own DNA bill, which 9 includes some of these provisions but not all 10 of them. Let us work together. If for some 11 bizarre reason this amendment does not pass 12 this house today and become added to this 13 legislation, let us work together to come up 14 with a solid proposal so that every step is 15 taken. 16 We are joined today by Douglas 17 Warney, who is someone who served nine years 18 for a crime he did not commit in Rochester, 19 New York. He has a history of mental health 20 issues. He knew the victim. There was a lot 21 of circumstantial evidence. He was convicted. 22 Nine years later, he was exonerated. 23 Now, that's the kind of thing that 24 should not ever take place in the state of 25 New York, where we have the technology

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(518) 371-8910 1 available, if this house will act, to ensure 2 it doesn't take place. 3 You all know -- and I know my 4 colleagues from Western New York know the 5 situation regarding Anthony Capozzi. That's 6 why Senator Volker sponsored the bill to move 7 the claims for compensation for those 8 wrongfully imprisoned to the front of the 9 line. 10 We all have heard of Jeffrey 11 Deskovic, made famous in last year's attorney 12 general race because one of the candidates for 13 attorney general, when she was the district 14 attorney in Westchester County, refused his 15 request to run a DNA check. And when the new 16 DA came in and ran the DNA check, he was 17 exonerated. 18 Let's not let that happen. Let's 19 not let one person go to death row in this 20 state for a crime they didn't commit. And 21 until you enact the provisions in this 22 amendment into law, you cannot give that 23 assurance to the public. 24 So I hope everyone here will 25 support this amendment and we can get on to

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(518) 371-8910 1 the debate. Whether you're for the death 2 penalty or against the death penalty, I would 3 hope that there's no one here who believes 4 that the death penalty should be applied to 5 innocent people. And it's incumbent on us to 6 ensure that it never, ever is. I hope that 7 everyone here will support the amendment. 8 And with that, if he still wants to 9 talk with me, I'm happy to chat with the man 10 with the plan, Senator George Winner. 11 SENATOR WINNER: Will Senator 12 Schneiderman yield for a question? 13 ACTING PRESIDENT MORAHAN: 14 Senator Schneiderman, after that short 15 paragraph, would you yield to a question? 16 (Laughter.) 17 SENATOR SCHNEIDERMAN: Yes. That 18 was just the intro to my lengthy answer to the 19 question. But I'd be happy to yield. 20 ACTING PRESIDENT MORAHAN: 21 Proceed. 22 SENATOR WINNER: Senator 23 Schneiderman, you made reference repeatedly to 24 the DNA availability. And certainly those 25 that have been exonerated for certain crimes

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(518) 371-8910 1 is a result of, in many instances if not most 2 of the instances, the availability of advanced 3 DNA availability and testing. 4 Can you tell me why, Senator 5 Schneiderman, there is such a reluctance on 6 the part of all of your buddies in the 7 Assembly to expand the DNA database so that 8 more of those types of discoveries of 9 innocence can be accomplished, not only in 10 this instance, in the instance of 11 capital-punishment crimes, but in the instance 12 of all of the variety of crimes that DNA 13 evidence would be able to uncover? 14 Can you tell me why? And also 15 whether or not you're in support of Governor 16 Spitzer's proposal to expand that base. 17 Because in fact I think your 18 conference has been largely in opposition to 19 that in the past. And that as a result, I 20 think that that in and of itself, that type of 21 action has resulted in a number of innocent 22 people not being released from prison. 23 SENATOR SCHNEIDERMAN: I'd like 24 to thank the Senator for his question. It's a 25 good question.

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(518) 371-8910 1 As to all my buddies in the 2 Assembly, both of them actually support the 3 expansion of the DNA database. 4 (Laughter.) 5 SENATOR WINNER: Well, that's one 6 more than you had last year. 7 SENATOR SCHNEIDERMAN: That's 8 right, I've doubled the number. 9 As to the rest of the issue, this 10 is a very serious issue. I would urge you, 11 though, to take a look, in all seriousness, at 12 the provisions in the amendment and at the 13 provisions in bills that are sponsored now by 14 Assemblyman Lentol, the chair of the Assembly 15 Codes Committee, who is a supporter, as I am, 16 of expanding the DNA database. 17 The problem that many people have 18 identified is if there is not -- if we don't 19 pass the bill that's again in this amendment 20 to require the organizing, the cataloging of 21 DNA evidence, to require that it be secured so 22 that it cannot be used for any other purpose 23 except criminal justice purposes -- there has 24 been a tremendous concern about it being used 25 for other things; for example, discrimination

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(518) 371-8910 1 in employment. The DNA evidence is held after 2 it shouldn't be held and can be available to 3 be used for other purposes. 4 The issue is the management of this 5 powerful but potentially tremendously 6 dangerous tool. This exposes all of us, from 7 the inside out, to scrutiny that many people 8 have been concerned about. There's some civil 9 liberty issues that have been raised. 10 Now again, I do support the 11 expansion of the DNA database. And I think 12 you're actually incorrect. I think most of 13 the people in my conference have supported 14 expansions of the DNA database. But how, 15 given your desire to expand it, can we not 16 pass this amendment and ensure that everyone 17 has access it, to require that every 18 crime-scene piece of evidence that is 19 susceptible to DNA testing be tested? 20 I mean, DNA evidence should not be 21 available only to those who can hire their own 22 experts. Everyone who is being prosecuted for 23 a serious crime in this state should have 24 access to it. Even people who plead guilty, 25 even people who have eyewitnesses testify

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(518) 371-8910 1 against them. We have to ensure that everyone 2 has access to the proof of guilt or the proof 3 of innocence. 4 So I would urge you that expansion 5 of the database I don't think is that serious 6 a problem right now, because, Senator Winner, 7 as everyone knows, we haven't cataloged the 8 DNA we've already got in the database. We are 9 years behind. 10 So I'm in favor of expanding the 11 database, but let's be real about this. This 12 house will not pass the legislation -- and I'm 13 not singling us out. We need the Assembly to 14 pass this legislation too. But it has been 15 introduced by the chair of Codes Committee. 16 This house will not pass the legislation to 17 provide that DNA evidence be cataloged, be 18 organized, be used in every case where it's 19 possible to exonerate or to convict. 20 Let's do that first, and let's do 21 that today. Let's add this to this death 22 penalty bill, which I have a sneaking 23 suspicion may pass this house. And if it 24 does, what a strong message you will be 25 sending to the Assembly and to the Governor --

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(518) 371-8910 1 whose bill I think is a good start but needs 2 some work -- that we don't ever want to see an 3 innocent person put to death in New York 4 State, and we don't want to see any innocent 5 people locked up, as Mr. Warney was, because 6 of the failure of this Legislature to provide 7 the guidelines and the resources to our 8 criminal justice system to keep innocent 9 people out of jail. 10 SENATOR WINNER: Mr. President, 11 will Senator Schneiderman yield to a question? 12 ACTING PRESIDENT MORAHAN: 13 Senator, will you continue to yield? 14 SENATOR SCHNEIDERMAN: I will be 15 happy to yield for another question. 16 ACTING PRESIDENT MORAHAN: 17 Proceed, Senator. 18 SENATOR WINNER: Senator 19 Schneiderman, in the event that your amendment 20 were to prevail, would you then support the 21 bill? 22 SENATOR SCHNEIDERMAN: Through 23 you, Mr. President, I would not, because of 24 issue that I will raise later. 25 But I do believe that with or

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(518) 371-8910 1 without my support, there's a significant 2 possibility that it will pass. 3 And I would urge all of my 4 colleagues that before you take the step to 5 impose the state-sanctioned death penalty, you 6 have to take every step possible to ensure 7 that no innocent person is ever subject to it. 8 So there will be people voting for 9 and against this bill who are in support of my 10 amendment. I would think that in good 11 conscience every member of this house should 12 support an amendment to provide every step 13 possible to ensure that New York State never 14 executes an innocent man or woman. 15 Thank you, Mr. President. 16 ACTING PRESIDENT MORAHAN: Thank 17 you, Senator. 18 On the amendment, those Senators in 19 agreement please signify by raising your 20 hands. 21 THE SECRETARY: Those recorded in 22 agreement are Senators Adams, Breslin, Diaz, 23 Duane, Gonzalez, Hassell-Thompson, Huntley, 24 L. Krueger, Montgomery, Oppenheimer, Perkins, 25 Sabini, Sampson, Savino, Schneiderman,

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(518) 371-8910 1 Serrano, Smith, Stavisky, Stewart-Cousins, 2 Thompson and Valesky. 3 ACTING PRESIDENT MORAHAN: The 4 amendment is not agreed to. 5 Senator Diaz. 6 SENATOR DIAZ: Thank you, 7 Mr. President. 8 I rise to express my opposition to 9 this bill. And what I base my opposition is 10 two -- for two reasons. First, it is morally 11 wrong, and, second, it is humanly and socially 12 unjust. 13 First I have to tell you that I am 14 the father, the proud father of a daughter who 15 happens to be a police sergeant in the City of 16 New York, and her husband is a retired police 17 is the too. So if we look at this bill from 18 that side of the story, I have reason to 19 support the bill. But I'm not. 20 As a father, I see the anguish, the 21 agony, the desperation of parents of police 22 officers when they go out on their duties and 23 you don't even know if they're going to come 24 back. So yes, I understand the intent of the 25 piece of legislation to protect the life of

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(518) 371-8910 1 police officers. 2 But one of the fellow Senators here 3 gave us so many dates and so many reasons why 4 to support the legislation, and he gave me 5 about four or five cases where a police 6 officer was shot and killed. I have to tell 7 you that for any one of those cases of a 8 police officer being shot, I could give you 15 9 or 20 cases of a bodeguero being shot, of a 10 taxi driver being shot, of a senior citizen 11 being shot, of those young children that have 12 been raped and killed. 13 So for every police officer that 14 gets shot -- and my daughter is a police 15 officer -- which I understand, I understand 16 the agony and the anguish of the parent. I 17 don't ever want that to happen to my daughter 18 or to any other police officer. 19 But so many other people have been 20 killed. As I said before, bodegueros, store 21 owners, taxi drivers, children, young guys, 22 women, women being marked for death by their 23 husbands sometimes, or vice versa. So there 24 are many other people that die. 25 And what is the irony of this?

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(518) 371-8910 1 That the bill only calls for the death penalty 2 on those who kill police officers or peace 3 officers. That is sending a message, sending 4 a message to the criminals out there that if 5 you are looking for someone to kill, you're 6 better off killing a bodeguero or you're 7 better off killing a woman or you're better 8 off killing a child or you are better off 9 killing a senior citizen. Or killing a taxi 10 driver, you're better off. So don't go and 11 kill a police officer, because you're going to 12 get the death penalty. Go kill somebody else, 13 and you might go free. 14 So the bill, the bill is sending a 15 message, is humanly wrong, sending a message 16 that the life of a police officer is worth 17 more than the life of a child and than the 18 life of any other human being, of any other 19 resident of New York State. 20 If you're going to do that, be fair 21 to everybody. Every single life is sacred. 22 Life is precious. Not only police officers -- 23 I understand my daughter, it's my only 24 daughter. Can you imagine what would happen 25 if somebody killed my daughter? God forbid.

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(518) 371-8910 1 God bless her wherever she is. I know what's 2 going to happen. I know the agony. I know 3 what would go through me. 4 So yes, I want the police officers 5 to be protected. But not saying that their 6 life is worth more than the bodegueros in my 7 district and in the city of New York, and the 8 taxi drivers, the gypsy drivers, and the young 9 people in our district that have been killed, 10 they have been killed from left to right. 11 So it is humanly wrong for me to 12 support this bill. But it's not only for that 13 reason that I'm opposing this bill; it's also 14 because I am a pastor. I am a preacher, an 15 evangelical Pentecostal minister. And my 16 religion teaches that life is sacred 17 everywhere. 18 What I don't understand, I don't 19 understand that, I want somebody here to 20 explain to me is that we don't know what is 21 late-term abortion, or what they call partial 22 birth abortion. We all know what it means. 23 We all know what it is. 24 Partial birth abortion is when a 25 woman gives birth after nine months and they

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(518) 371-8910 1 take out the baby halfway and then if they 2 decide that they don't want the baby, they 3 kill the baby. But because the baby has not 4 been born completely, only partial, so they 5 say it's okay, it was not alive. 6 That's alive. That is alive. And 7 I don't understand how come some people oppose 8 the death penalty and are in favor of partial 9 birth abortion. That doesn't make sense. 10 ACTING PRESIDENT MORAHAN: 11 Senator, will you suffer an interruption? 12 SENATOR DIAZ: No, no, after I 13 finish. I am -- 14 ACTING PRESIDENT MORAHAN: 15 Senator Montgomery, why do you rise? 16 SENATOR MONTGOMERY: Mr. 17 President, would Senator Diaz answer a 18 question? 19 SENATOR DIAZ: I will answer all 20 the questions that Senator Montgomery want to 21 ask me, or anybody else, after I finish my 22 exposition on partial birth abortion. 23 ACTING PRESIDENT MORAHAN: The 24 Senator will not yield at this time. 25 SENATOR DIAZ: Partial birth

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(518) 371-8910 1 abortion is a crime. It's killing. It's 2 murder. So if you are against partial birth 3 abortion, you're supposed to be against the 4 death penalty. But if you are in favor of the 5 death penalty, you're supposed to be against 6 partial birth abortion. 7 So it doesn't make sense. That's 8 why I'm opposing this bill, because it's 9 humanly wrong and because it's morally wrong. 10 Life is sacred everywhere, at all stages of 11 life. See those children there that just 12 came? Look at those children. So that bill 13 says that if anybody kills one of those 14 children, if anybody kills one of those 15 children, they don't get the death sentence. 16 But if somebody kills a police officer, then 17 they get the death sentence. 18 No. It's wrong. So, ladies and 19 gentlemen, I'm here to say that yes, I'm the 20 father of a police officer, a sergeant, a 21 woman, my daughter, my only daughter. And I 22 understand the basis or the intent of the 23 bill. But I have to oppose, strongly oppose 24 the bill, because it does not cover everybody. 25 It makes some life worth more than others, and

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(518) 371-8910 1 that is wrong. 2 And also I oppose the bill because 3 I believe -- I'm pro-life, I believe in life. 4 Life is sacred from conception to the end. So 5 if you kill somebody, if you kill somebody, 6 then you kill everybody. If you oppose some 7 kind of murder, then you have to oppose the 8 whole life. 9 So, Mr. President, I thank you for 10 your attention. And if Senator Montgomery 11 wants to ask me any question, I am willing and 12 able to answer whatever questions she wants to 13 ask me. 14 ACTING PRESIDENT MORAHAN: 15 Senator Montgomery, do you still wish to ask 16 the Senator to yield? 17 SENATOR MONTGOMERY: Mr. 18 President, through you, I know that Senator 19 Diaz identified his credentials as a minister, 20 and certainly we're appreciative of that. 21 I just also wanted to inquire of 22 him what are his credentials as a physician. 23 Because he was describing a medical procedure, 24 and I just wondered if he also is a physician. 25 ACTING PRESIDENT MORAHAN:

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(518) 371-8910 1 Senator Diaz, do you choose to answer the 2 question? 3 SENATOR DIAZ: I am not a 4 physician. I am not a doctor. 5 I only know that partial birth 6 abortion is when the baby is almost fully 7 born, halfway out -- halfway out -- and the 8 mother has the opportunity to check the baby 9 and if the mother decides that she doesn't 10 want the baby, then they kill the baby. 11 I don't have to be a doctor -- I 12 don't have to be a doctor to know that that's 13 a fully life -- all fully, completely life. 14 So I don't have to be a doctor to know that. 15 And now you're going to tell me, 16 Oh, that's to protect the life of the woman. 17 To protect the life of the woman if the baby 18 is already halfway out, tell me that the woman 19 has been already -- and by the way, in every 20 other stage of birth, the life of the woman 21 has been protected. You don't need partial 22 birth abortion to protect the life of the 23 woman. The life of the woman is always 24 taken -- always taken first. 25 So thank you. Another question?

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(518) 371-8910 1 ACTING PRESIDENT MORAHAN: 2 Senator Diaz, let me just respectfully remind 3 you and Senator Montgomery that that is really 4 not on the bill that's on the floor. And I'm 5 not about to tell you what to do, what not to 6 do. But if she has no more questions, you now 7 can sit down. 8 SENATOR DIAZ: Thank you, sir. 9 ACTING PRESIDENT MORAHAN: 10 Senator Griffo. 11 SENATOR GRIFFO: Thank you, 12 Mr. President. 13 Did you know that 1,533 law 14 enforcement officers were killed in the last 15 10 years? That's an average death of one 16 every 58 hours. Approximately during the 17 hours of 8:00 to 10:00 every night, some of 18 the most concerned hours -- because during 19 that period we see the most killings of police 20 officers, 8:00 to 10:00 each evening. 21 The average age of those police 22 officers that were killed over the last 23 century is about 38 years old. The youngest 24 of them, seven of them, were 19 years of age. 25 And since the court ruling, if we look at the

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(518) 371-8910 1 four years prior to the Court of Appeals 2 ruling, there were five officers killed in the 3 line of duty. Since the court made its 4 decision in 2004, over 13 officers have been 5 killed, almost three times the amount prior to 6 the ruling of the Court of Appeals. 7 Across this state, men and women 8 who serve and protect us are in danger as 9 never before. The chief of police from Utica, 10 a long-time state police officer and public 11 servant, echoed what Senator Golden said. He 12 called it open season. Because never before 13 have individuals in this society been so 14 willing and ready to pull the trigger, because 15 there's an absence of fear and respect of laws 16 that govern each and every one of us. 17 In the last year I have attended 18 two funerals for police officers in my 19 community, a community that really cares and 20 has a good quality of life. Both of these 21 young police officers, Officer Corr from 22 New Hartford and Officer Lindsey from Utica, 23 were in the prime of their lives. They did 24 nothing wrong but serve the public to the best 25 of their ability.

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(518) 371-8910 1 Officer Lindsey was assassinated 2 about a month ago, shot directly and killed in 3 cold blood. Officer Corr responded to a 4 robbery, from an individual who had 50 prior 5 arrests, and was killed in a gun battle. 6 Officer Corr as well as Officer 7 Lindsey had families, and many of those family 8 members, whether they were parents or 9 children, when they said goodbye to their 10 loved one, knowing that there was a risk, did 11 not expect that they would not see them again. 12 In fact, in Officer Corr's 13 situation, a young child under five, this 14 young girl, when she sees police officers 15 gather a year later, still looks to see if her 16 daddy is in that line. 17 I can tell you today, as I have 18 spoken to families and as I have talked to law 19 enforcement officials within my community, 20 that they believe it is imperative that we not 21 only give them equipment and resources but we 22 put into law protection that is necessary as 23 they go out and do their jobs. As we debate 24 this bill in this chamber, hundreds and 25 hundreds of men and women are on the street to

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(518) 371-8910 1 protect us, men and women of law enforcement, 2 and they expect that we do what we can to 3 ensure that we protect them. 4 And I do believe that this capital 5 punishment bill will be a deterrent and does 6 provide for the ultimate sanction because of 7 the act of violence that is committed by these 8 criminals upon these good law enforcement 9 officers who serve and protect us on a regular 10 basis. 11 I applaud Senator Golden for his 12 initiative. And I want to thank Senator 13 Volker for his long-time career as a champion 14 for the rights of law enforcement and trying 15 to protect them in doing the right thing. And 16 this legislation, in my opinion, is the right 17 thing. 18 I hope today that we cannot only 19 stand here together and bring this bill to 20 passage, but that we can use everything within 21 our resources to continue to convince our 22 colleagues in the other house and the 23 leadership in that house that they should do 24 likewise, that they should allow this vote to 25 take place so that the elected representatives

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(518) 371-8910 1 of the people have an opportunity to express 2 their opinion to represent the will of the 3 majority of the people of this state. 4 There are many graves along 5 hillsides that cry out for justice. We have 6 the opportunity today to begin to take a step 7 to do what's right to ensure that we continue 8 to send the message that is necessary that we 9 will put in place laws to protect law 10 enforcement, that they will serve as a 11 deterrent, and that you will suffer the 12 ultimate sanction if you commit this act of 13 reckless, cowardly violence against those who 14 have been sworn to protect us. 15 Thank you, Mr. President. 16 ACTING PRESIDENT MORAHAN: Thank 17 you, Senator. 18 Senator Winner. 19 SENATOR WINNER: Thank you, 20 Mr. President. 21 On March 1 of 2006, Trooper Andrew 22 Sperr was on a routine patrol in the town of 23 Big Flats in Chemung County in the Southern 24 Tier of New York when he came upon a vehicle 25 turning off of a road on to a more remote area

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(518) 371-8910 1 and thought that there was something amiss 2 because the license plate on the back of the 3 vehicle was hanging down. 4 Little did he know that only 5 minutes before that vehicle was apprehended by 6 Trooper Sperr that the two men inside had been 7 participating in a robbery of a branch of a 8 local bank in Big Flats, and as a result they 9 were attempting to drive away and change 10 vehicles a short distance away from where 11 Trooper Sperr put on his lights and pulled 12 that vehicle over. 13 Trooper Sperr was totally unaware 14 of what would befall him subsequent to that, 15 when in fact an individual by the name of 16 Andrew Horton opened fire on Trooper Sperr as 17 he approached the vehicle, striking him a 18 couple of times, and Trooper Sperr returned 19 fire, wounding both of the people in the 20 vehicle. 21 But at the same time, Trooper Sperr 22 also fell to the ground. And then 23 unfortunately, before the individuals left the 24 scene, Andrew Horton went back over to Trooper 25 Sperr as he's lying on the ground with his

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(518) 371-8910 1 knees up, obviously severely wounded, and 2 executed him right there. 3 I don't know -- you know, I'm not 4 really worried about whether or not the DNA 5 was right, I'm not really worried about 6 whether or not there was an Innocence Project 7 in place, I'm not worried about any of all 8 these wonderful pronouncements as far as we're 9 concerned about those defendants. In fact, 10 they admitted fundamentally their crimes and 11 were convicted, both of them, of their 12 participation in that act. 13 Now, there's been some reference to 14 the fact of the testimony in that proceeding 15 in the Chemung County Court in September of 16 2006. And you know, there's always been a lot 17 of allegations that there's no deterrence 18 effect with regard to capital punishment. And 19 certainly we've heard that over and over and 20 over from the opponents. And sometimes they 21 can be very persuasive, because it's been 22 difficult to get your hands on direct 23 empirical knowledge of the existence of the 24 deterrence of capital punishment in a specific 25 action.

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(518) 371-8910 1 So you can see how astonished I was 2 when I picked up a newspaper one day, the day 3 after the testimony of Andrew Horton's driver 4 in that vehicle, a guy named Brian Adams, 5 another real great citizen, who in his trial 6 made some rather startling representations as 7 to what went on and what Andrew Horton did in 8 fact tell him. 9 And just for the record, I think it 10 might be helpful if I just repeated a couple 11 of those questions so that you can see for 12 yourself whether or not Andrew Sperr, Trooper 13 Andy Sperr might be alive today if in fact we 14 had capital punishment in New York State. The 15 questions go as follows. 16 Question -- these are to Brian 17 Adams, the defendant in that -- or, excuse me, 18 a witness in that proceeding, the trial of 19 Andrew Horton for the murder of Andrew Sperr. 20 Brian Adams: "I thought it was a 21 regular traffic stop." That's the answer. 22 "All right. Now, as the lights are 23 on and he's behind you and before you pull 24 over, what does Tony say to you?" 25 "Answer: Do I want to do a little

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(518) 371-8910 1 bit of time or a lot of time." 2 "Question: Okay. Did that mean 3 anything to you at that point?" 4 "Answer: Not at that point." 5 "Question: All right. What else 6 did he tell you?" 7 "Answer: That he was going to 8 shoot the cop." 9 "Question: All right. Did he 10 mention the death penalty?" 11 "Answer: Yes." 12 "Question: What did he say about 13 the death penalty?" 14 "Answer: That New York don't have 15 the death penalty, that they can just give him 16 life in prison." 17 Now, we all know that he went on 18 and shot that officer, and gunfire was 19 exchanged. And I also made representations to 20 you as to what occurred in the final moments 21 of Andrew Sperr's life. 22 And here's the question: "All 23 right. At some point did you attempt to see 24 where the trooper was?" 25 "Answer: Yes."

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(518) 371-8910 1 "Question: And where did you see 2 him?" 3 "Answer: Laying on the ground by 4 his vehicle." 5 "Question: Okay. And at that 6 point, what was he doing?" 7 "Answer: Laying on his back." 8 "Question: Okay. Was he 9 shooting?" 10 "Answer: No." 11 "Question: Did there come a time 12 in which you and Mr. Horton made a run for the 13 Taurus?" 14 "Answer: Yes." 15 "Question: Now, as you made a run 16 for the Taurus, did you look to your left to 17 see the condition of the trooper?" 18 "Answer: Yes. I looked over and 19 he was laying on the ground not moving." 20 "Question: Okay. What about his 21 knees, legs?" 22 "Answer: They were up in the air." 23 "Question: When you say 'up in the 24 air,' you mean bent?" 25 "Answer: Yes. His feet were on

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(518) 371-8910 1 the ground." 2 "Question: Okay. Then at some 3 point when you reached the Taurus, did 4 something happen?" 5 "Answer: Yes. Mr. Horton fired at 6 the trooper again." 7 "Question: Okay. Did he say 8 something after he fired at the trooper?" 9 "Answer: Yes, he said he killed 10 the mother -- you know what." 11 Now, my heart really bleeds for 12 that guy. And I'm sure that he had all the 13 due process in the world. But one thing he 14 would have had if we had capital punishment on 15 the books was the appropriate punishment for 16 that behavior. And that's unfortunate that we 17 don't have it. 18 Not only do we have empirical 19 evidence of the fact that Andrew Sperr may be 20 alive if we had capital punishment in this 21 state, we also have a clear indication of an 22 individual who would have deserved to receive 23 the ultimate punishment for the actions that 24 he committed. 25 Now, I know that Senator Bruno

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(518) 371-8910 1 mentioned that it's unfortunate that the 2 Governor does not put in the same amount of 3 effort that he put in -- 4 ACTING PRESIDENT MORAHAN: Excuse 5 me, Senator. 6 Senator Serrano, why do you rise? 7 SENATOR SERRANO: Will Senator 8 Winner yield for a question, please. 9 ACTING PRESIDENT MORAHAN: 10 Senator Winner, will you yield? 11 SENATOR WINNER: Yes, I'll yield. 12 ACTING PRESIDENT MORAHAN: The 13 Senator yields. 14 SENATOR SERRANO: Thank you very 15 much. 16 Senator, very quickly, have you 17 ever witnessed an execution, whether live or 18 on videotape? 19 SENATOR WINNER: No, I have not, 20 Senator. 21 SENATOR SERRANO: Okay. Would 22 you agree that -- 23 SENATOR WINNER: Are you asking 24 me to yield again? 25 ACTING PRESIDENT MORAHAN:

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(518) 371-8910 1 Senator, do you wish the Senator to continue 2 to yield? 3 SENATOR SERRANO: Will he yield? 4 ACTING PRESIDENT MORAHAN: 5 Senator, do you yield? 6 SENATOR WINNER: Yes. 7 SENATOR SERRANO: Thank you. 8 Through you, Mr. President, I apologize. 9 Would you say that a person who is 10 deranged in the manner in which you're 11 expressing so eloquently would have any regard 12 for any human life, including their own? 13 SENATOR WINNER: Senator, I can 14 only tell you that in fact the testimony of 15 Brian Adams indicated that Mr. Horton 16 specifically, in a lucid moment, indicated -- 17 without any way, shape or form of being in 18 doubt -- that he was going to kill that 19 trooper, particularly because there wasn't 20 capital punishment in New York State. 21 And that was the testimony in 22 court, under oath, for -- obviously not by a 23 particularly wonderfully credible individual 24 as far as his character, however. But he had 25 no reason to make that story up. There was no

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(518) 371-8910 1 offer with regard to testimony to elicit any 2 kind of representations with regard to any 3 plea bargaining, as far as making any 4 representations as far as the existence of 5 capital punishment. It made absolutely no 6 sense. 7 He offered what is very, very 8 credible as far as the motive of Mr. Horton in 9 killing that trooper at that time, and that 10 was because he wanted -- he thought that that 11 would be the way to get away and also he would 12 not suffer capital punishment as a result. 13 And also I can tell you, Senator, 14 that there was no allegations of any 15 incompetency of Andrew Horton with regard to 16 his ability to stand trial and no evidence of 17 mental defect or the like. He was a perfectly 18 rational, deliberate, terrible person. 19 And I might also ask you, 20 parenthetically, Senator, in response also, 21 have you ever witnessed a cop killing? 22 SENATOR SERRANO: No. 23 SENATOR WINNER: Well, I haven't 24 witnessed an execution either. 25 SENATOR SERRANO: Okay.

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(518) 371-8910 1 Mr. President, will the Senator continue to 2 yield? 3 ACTING PRESIDENT MORAHAN: 4 Senator Winner, will you continue to yield? 5 SENATOR WINNER: Yes, I yield. 6 SENATOR SERRANO: Okay. So would 7 you say that a person who is a killer in the 8 fashion in which you've just described, the 9 horrific fashion -- you used the word "lucid." 10 Would you consider that person who can 11 engage -- who can bring themselves to do 12 something that no one else here really could, 13 would you really consider them to be lucid 14 people? 15 SENATOR WINNER: Senator, I don't 16 even know whether or not -- there are 17 standards in the law as far as determinations 18 as to whether or not someone is competent to 19 stand trial or whether the actions that 20 someone had committed were in fact as a result 21 of extreme emotional distress and/or certainly 22 whether or not they had some mental defect or 23 inability to understand right or wrong. 24 Those are not the standards that 25 were applicable in this particular instance.

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(518) 371-8910 1 None of those were ever raised as far as the 2 actions of Andrew Horton. 3 Andrew Horton's just a bad person 4 who deserved capital punishment as a result of 5 the action that he committed. And as a 6 result, I think that under those circumstances 7 the punishment for his act of murdering 8 Trooper Andrew Sperr certainly warranted 9 capital punishment. And not only as a 10 punishment, but certainly would have -- as I 11 indicated, the existence of capital punishment 12 may very well have acted as a deterrent to 13 have prevented his death. 14 SENATOR SERRANO: Mr. President, 15 through you, will the Senator continue to 16 yield? 17 ACTING PRESIDENT MORAHAN: 18 Senator Winner, do you continue to yield? 19 SENATOR WINNER: Sure. 20 ACTING PRESIDENT MORAHAN: The 21 Senator yields. 22 SENATOR SERRANO: Thank you. 23 So you're saying two different 24 things, Senator. On the one hand you're 25 saying that this person deserved capital

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(518) 371-8910 1 punishment, and then on the other hand you're 2 saying that it would be a deterrent. You seem 3 to be mixing apples and oranges. 4 SENATOR WINNER: I don't know why 5 I'm not -- 6 SENATOR SERRANO: Vengeance, are 7 you addressing -- 8 SENATOR WINNER: I don't know 9 why -- never mind, I'll let you ask your 10 question. 11 SENATOR SERRANO: Okay. 12 Vengeance and deterrence really are 13 not necessarily the same thing. So would you 14 say that having a death penalty would be a 15 deterrent for someone who is so depraved and 16 so obviously willing to die, if they're 17 willing to kill someone, how would it make 18 them -- if they have no regard for human life, 19 how will saving their own life mean anything 20 to them? 21 For you and I, it would. But the 22 question I'm trying to ask, do you really 23 believe that it's a deterrent if someone is so 24 sick that they would kill a police officer? 25 SENATOR WINNER: Senator, in

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(518) 371-8910 1 response to your question, I don't want to 2 reread the testimony. I'm only giving you the 3 words of Andrew Horton as expressed to Brian 4 Adams, who was his co-bad guy. 5 And, you know, you can say all you 6 want, this is what he said and this is -- and 7 what he said was that he asked, inquired 8 whether or not New York had a death penalty. 9 And implied, without any question, that his 10 intention was to kill that trooper because 11 there was no death penalty in New York State. 12 That's what he said. You can try 13 to twist it around whatever way you want to, 14 but I'm reading it and -- I almost fell off 15 the chair when I saw this testimony myself, 16 but there it is. And it says without any 17 hesitation whatsoever that that was a 18 motivation of Andrew Horton to kill Trooper 19 Andrew Sperr. 20 Therefore, it only is logical that 21 if in fact we had capital punishment, that he 22 might not have done it. 23 SENATOR SERRANO: Mr. President, 24 will the Senator yield for another question? 25 SENATOR WINNER: Sure.

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(518) 371-8910 1 ACTING PRESIDENT MORAHAN: The 2 Senator will yield for another question. 3 SENATOR SERRANO: So, Senator 4 Winner, since the data that we have from other 5 states in our nation regarding the death 6 penalty does not support your assertion that 7 it is a deterrent, would you then conclude 8 that imposing a death penalty is more of a 9 need for vengeance or it is really a 10 deterrent? Honestly. 11 SENATOR WINNER: If I may 12 respond, Senator. 13 I didn't say and I don't agree that 14 the evidence from other states does not 15 demonstrate that having capital punishment is 16 not a deterrent. Senator Golden I think amply 17 pointed out the statistics with regard to 18 other states that have capital punishment, 19 indicating that in fact there is a 20 significantly lower amount of assaults and 21 murders of police officers in those states 22 that have capital punishment. So therefore I 23 don't accept your premise. 24 As far as vengeance is concerned, I 25 can only say that that's for someone of a

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(518) 371-8910 1 little higher authority to deal with than 2 myself. 3 All I can tell you is that in this 4 instance, I can tell you that there is no 5 question that this evidence is that capital 6 punishment is a deterrent in this particular 7 case. And that's why I cited it as being as 8 startling with regard to its demonstration of 9 deterrent fact. And therefore, under those 10 circumstances, I think the testimony speaks 11 for itself. 12 ACTING PRESIDENT MORAHAN: Thank 13 you, Senator. 14 SENATOR SERRANO: Thank you. No 15 further questions. 16 ACTING PRESIDENT MORAHAN: Thank 17 you, Senator. 18 SENATOR WINNER: I just want to 19 continue briefly on the bill. 20 ACTING PRESIDENT MORAHAN: 21 Senator Winner. 22 SENATOR WINNER: Thank you, 23 Mr. President. 24 Again, I think that Senator Bruno 25 indicated that it would be helpful if the

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(518) 371-8910 1 Governor, who purports to be in support of 2 this measure, would utilize the same amount of 3 energy in establishing priorities that he has 4 used on some other issues that are certainly, 5 I think, vastly less significant as far as 6 their impact and importance to the people of 7 the state of New York than having a deterrent 8 measure in place to provide for protection for 9 our police officers. 10 And then lastly, Mr. President, you 11 know, the Assembly has been playing an 12 interesting cute little game here of having it 13 both ways. On the one hand, they have voted 14 and put in place capital punishment in 1995, 15 as this house did as well and was signed into 16 law by Governor Pataki, yet some of the same 17 people that voted for that and put it in place 18 are out there now purportedly changing their 19 minds and not willing to correct that which 20 the Court of Appeals determined in its 21 decision in People v. LaValle that set forth 22 the provisions that the instructions were 23 invalid. 24 You know, the problem I have is 25 that if you want to be intellectually honest

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(518) 371-8910 1 with regard to that position, repeal, have the 2 courage to repeal capital punishment. If you 3 want to fix it, it's on the books, it has a 4 technical glitch, then repeal it. It's still 5 there. It just needs to be fixed as far as 6 the instructions are concerned. 7 There has never been any attempt to 8 try to take it off the books. In fact, I 9 don't think such a measure, if it were put on 10 the floor of the Assembly, would have a 11 ghost's chance of passage. 12 In fact, as has been pointed out, 13 if you put this provision on the floor of the 14 New York State Assembly, a body that I served 15 in for 26 years, I can tell you that without a 16 doubt this bill would pass overwhelmingly. 17 Mr. President, thank you for your 18 indulgence. 19 ACTING PRESIDENT MORAHAN: Thank 20 you, Senator. 21 Senator Volker. 22 SENATOR VOLKER: Mr. President, 23 let's understand what we're talking about. 24 We're not talking about, by the way, voting 25 for the death penalty or against the death

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(518) 371-8910 1 penalty. 2 I mean, the problem I think is -- 3 and Eric, you made all the arguments for 4 southern states and all that stuff about race 5 and so forth, which we have refuted on this 6 floor year after year after year. This has 7 state has one of the best records for not only 8 executions but for any kind of criminal 9 proceedings on race and so forth in the 10 country. 11 Senator Diaz, I just want to tell 12 you, if your daughter is a police officer, 13 she's a thousand times more likely to be 14 murdered than the average person. Police 15 officers are -- I forget -- the numbers are 16 incredible on assaults. I only say that 17 because you should be aware of that. 18 But let me just say what this is 19 about. What this is about is -- and I'll go 20 into a little bit of the history before this. 21 We are voting, and it comes in about three 22 lines. It says the deadlock provision. And 23 this happens when somebody has already gone 24 through two trials. The first trial is to 25 find guilt or innocence. The second trial is

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(518) 371-8910 1 to find what the sentence should be. 2 If the jury cannot agree, then 3 presently the law, which by a four-to-three 4 vote by the Court of Appeals -- which I think 5 most scholars truly believe was just a way for 6 them to get out of doing the death penalty -- 7 was that the person would be sentenced to 20 8 to 25 years to life. 9 Now, it would seem to me that 10 logically, frankly, the person -- if they're 11 that avid to keep them in jail, they would say 12 either life without parole or the death 13 penalty. But the court, looking for an out -- 14 and unfortunately that out came right here. 15 Rick Dollinger was standing right over there, 16 Senator Dollinger, when we debated the death 17 penalty. And they were desperately looking 18 for something to get on us. Remember, the 19 vast majority of people -- in fact, I think 20 Rick voted for it, if I'm not mistaken. I'm 21 pretty sure he was one of them who voted for 22 it. 23 But he argued that provision. And 24 I said: "Rick, you mean to tell me that you 25 really believe" -- and by the way, we were

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(518) 371-8910 1 both quoted in the decision, the People v. 2 LaValle decision. That's one of the few times 3 I've ever been quoted in a Court of Appeals 4 decision. I would have been impressed if they 5 had have found in my behalf, but they didn't 6 find in my behalf. 7 They said that somehow it might 8 influence the jury, because by deadlocking 9 they would then look to the death penalty 10 instead of letting him out. I am not exactly 11 sure -- that kind of logic, to me, it's jury 12 nullification logic is what it is. It's a 13 Court of Appeals that didn't trust juries. 14 Except they really didn't -- it wasn't they 15 didn't trust the jury, they just were afraid 16 to go through with the death penalty. 17 So what we're doing today is 18 basically saying instead of after the deadlock 19 provision the sentence would be life, meaning 20 50 to 25 to life, it will be life without 21 parole. That's what we're doing today. 22 That's it. That's the big deal. That's it. 23 Now, why is this bill -- and this 24 bill, by the way, is interesting because in 25 1973 -- and let me just give you a quick

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(518) 371-8910 1 resume. My father was on the Bartlett 2 Commission in 1965 when the murder rate was 3 very low and the violent crime rate was very 4 low. There wasn't a lot of drugs around then, 5 either. Nelson Rockefeller was the governor, 6 very liberal governor. New York at the time, 7 the city, had a very low crime rate. 8 So the governor asked Dick 9 Bartlett, who later became the head of Albany 10 Law School, to do the Bartlett Commission to 11 recommend getting rid of the death penalty. 12 So they did. They recommended getting rid of 13 the death penalty. 14 My father did the minority report. 15 He came home -- and I can remember it like it 16 was yesterday -- he slumped in his chair and 17 said, "Well, now the murder rate will begin to 18 rise and the violent crime rate eventually 19 will rise with it, and on will come abortion, 20 just as day follows night." 21 Because once the death penalty 22 goes, abortion will come right afterwards. 23 The death penalty is sort of an 24 acknowledgment -- the lack of death penalty -- 25 that we don't really care that much, whether

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(518) 371-8910 1 we like it or not, that we are willing to not 2 punish criminals to the greatest extent. 3 Now, none of us want to believe 4 that, but it's a fact. So the murder rate 5 soared. And then he said, by the way, before 6 he died: "Dale, someday -- and I hope you're 7 one of the people that restores it -- someday 8 the murder rate will get so bad, and the 9 violent crime rate, that it will be restored. 10 And the violent crime rate and the murder rate 11 will then drop off, and then -- I hope you're 12 not there -- someday then people will want to 13 get rid of it again." 14 And he said it might even be the 15 courts, because our courts have not reacted 16 well to this. Because we have a nature here 17 in New York that has tough laws but not the 18 strongest judges in the world as far as 19 enacting it. 20 In 1973 I did what amounts to this 21 bill, without the two juries and so forth. 22 And I did it because the Supreme Court of the 23 United States said this was the way to do it. 24 We did it, it was signed into law. Within a 25 year, they reversed themselves and said no.

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(518) 371-8910 1 And the Supreme Court -- and then 2 in the Fitzpatrick case -- Fitzpatrick was a 3 wonderful guy. He murdered a Boy Scout 4 leader, a Boy Scout and the Boy Scout's 5 father. He looked like a studious-looking 6 guy. You see him, I mean you wouldn't believe 7 it. Very bright fellow. But he was a 8 murderer. 9 Anyways, after that we kept -- then 10 it was reversed again in the Fitzpatrick case. 11 Lemuel Smith, who killed five people and 12 eventually murdered Donna Payant in the prison 13 system, he got -- he's still in prison, by the 14 way. One of the most dangerous inmates you're 15 ever going to see, because he's at least a 16 six-time killer. 17 And this bill, by the way, will at 18 least remedy that, so at least he got -- 19 something you could do with him. He could 20 kill ten people and there's not a darn thing 21 you can do unless this provision is put back 22 into law. 23 So anyways, we went to '94, we 24 restored the death penalty by a huge vote. 25 The murder rate dropped off dramatically. I

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(518) 371-8910 1 find it very hard to believe -- anybody that 2 does not believe in deterrence had better take 3 a look. At one of the police memorials here 4 about five years ago, not one police officer 5 was killed. Not one. And we were amazed. 6 That was unusual. But police officer killings 7 dropped off dramatically all over this state 8 after we restored the death penalty. 9 The one thing we know -- and by the 10 way, the other states, that's all hogwash. I 11 mean, it all fluctuates all over the place. 12 And by the way, New York has had the best 13 record on innocence and guilty of any state in 14 the union. 15 And one of the things they don't 16 tell you, you talk about the Capozzi case. 17 The Capozzi case was a rape case. If it had 18 been a death penalty case, I think he probably 19 would have got off, almost certainly. Because 20 we look at these cases so closely. 21 There's never been a person in this 22 state executed -- and we've looked into them 23 back and forth and, I mean, you can't 24 imagine -- where there's ever been strong 25 evidence. Oh, there's been allegations.

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(518) 371-8910 1 By the way, there's one thing I 2 want to tell you about Illinois, the 11 people 3 that were exonerated because of DNA. We know 4 one, for sure, murdered the guy. Remember, 5 what DNA does, it eliminates the evidence. It 6 doesn't necessarily mean the person didn't 7 commit the crime. In fact, some people that 8 looked at these cases have told me that seven 9 of those 11 people actually committed the 10 crimes, it's just the evidence was bad. 11 In the "wilding" case in New York 12 City, I mean, the problem was they came up 13 with a DNA they couldn't account for, so they 14 found these people innocent. They confessed 15 publicly. That's a problem. 16 The Innocence Project has this big 17 problem. They want to find people innocent. 18 I understand that. But they don't want to 19 find people guilty. They have always fooled 20 around with DNA and attacked DNA on the basis 21 of the fact that it might be used in criminal 22 cases against people who are guilty. I've 23 always had a problem with that. 24 Listen, I'm the guy that started 25 DNA. I'm the guy that did the first bills.

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(518) 371-8910 1 And I remember the defense attorneys were all 2 against it. Why? Because they thought people 3 were going to be prosecuted. And I said, 4 "Well, what about innocent people? We're 5 going to find some people innocent." That 6 didn't matter at the time, because they didn't 7 realize how extensive this could be. 8 By the way, the provision that 9 Senator Schneiderman talked about, a little 10 modified version is in a bill which we're 11 going to pass. I just want you to know. I 12 mean, we're concerned about that. We're going 13 to do that. We're never going to let the 14 possibility of somebody be executed here go by 15 the boards. That's not going to happen. 16 It's a little different than -- in 17 fact, I was just talking to Joe Massena, who's 18 our criminal justice guy, and I said, Is that 19 the same, pretty well the same one? And he 20 said pretty well. It's a little bit 21 different. 22 But don't worry, we're concerned 23 about DNA quality just as you are. I mean, 24 the last thing in the world I ever want, I'll 25 tell you that right now -- and probably I

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(518) 371-8910 1 could have if I put enough heat on, because -- 2 is get the death penalty defense people out of 3 the budget. I probably could have, because 4 the Pataki people wanted to. The reason we 5 didn't was I knew we were going to restore the 6 death penalty ultimately. 7 And you know we have the best 8 defense operation in the country in this 9 state. Even though we don't actually have a 10 death penalty now, we still have an operation 11 going that moves along while we're waiting for 12 it to be restored, which I believe will be 13 this year. I'm one of those foolish people, 14 maybe -- I'm not foolish. This bill is going 15 to become law, I'll tell you right now. 16 Why is it just for police and 17 correction officers? Because it's the fastest 18 way to get it through the Assembly. I'm not 19 kidding anybody. 20 I think that Governor Spitzer 21 eventually will put the pressure on the 22 Assembly, as he did on workers' comp, civil 23 confinement. You wait and see. 24 So what you're voting today is to 25 decide whether you want to be part of a change

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(518) 371-8910 1 in this bill. The next thing you should know 2 is there's a new person in town on the Court 3 of Appeals. He's a solid guy who is -- I'm 4 not telling you that he's pro-death penalty 5 necessarily, but I know him very well and I 6 believe he'll do the right thing. And I can't 7 imagine him not voting in favor of this 8 change. 9 By the way, the reason we haven't 10 had these bills before this is because we were 11 waiting for the Taylor case to be decided. I 12 won't get into the detail. There's a case 13 before the Court of Appeals called Taylor 14 where the judge and the prosecutor anticipated 15 the Court of Appeals was going to do what they 16 did on this, and actually they charged what 17 the Court of Appeals said should be charged. 18 In other words, they told the jury the right 19 language. 20 And we were hoping to get that case 21 before the Court of Appeals before we had a 22 chance to do this bill, because at least what 23 they could have said is you're correct, that 24 bill -- even if they didn't actually move 25 ahead with the case.

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(518) 371-8910 1 The final thing I want to say to 2 you is that if the Court of Appeals had 3 declared our statute unconstitutional, the DAs 4 and the attorney general in this state were 5 prepared to go to the Supreme Court of the 6 United States to overturn it. The only way 7 they could avoid that happening for sure was 8 the way they did it. It was pretty clever, 9 I'm the first to admit. But remember, you'd 10 have a constitutional challenge then. 11 This bill and the death penalty has 12 been tested over and over and over again. And 13 I think it's the right thing to do. But I 14 think the first thing we have to do is deal 15 with the problem of police officers, police 16 killings. As was said here, I think there's 17 seven troopers and three or four other police 18 officers. Actually, I think it might be 11 19 now. One guy was on the -- he was not a 20 police officer, he was an auxiliary. Eleven 21 people were killed. 22 And, Senator Diaz, the other thing 23 I want to tell you is remember that our prison 24 system now has umpteen numbers of people who 25 are in prison for life without parole.

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(518) 371-8910 1 Then there's the fellow that almost 2 killed me. That fellow is in for 50 years to 3 life. You talk about a dangerous guy. He 4 murdered somebody in Texas. When I was a 5 police officer -- I won't get into the 6 details -- I ended up -- he reached for a .45, 7 but fortunately I got to him before he pulled 8 the .45 out and I stuck the gun in his ear. 9 He said, I was going to give you 10 the bill -- the gun, I'm sorry. And I said 11 yeah, bullet by bullet. He then murdered two 12 people. So he's in jail for 50 years to life. 13 He writes me every once in a while asking me 14 to help him get out, but obviously I don't pay 15 much attention to him. 16 But there's the kind of guy -- that 17 guy killed three people, almost killed four 18 people. The point is these are the people 19 we're trying to deal with, because those 20 people will also very possibly think before 21 they do anything. 22 ACTING PRESIDENT MORAHAN: 23 Senator Diaz, why do you rise? 24 SENATOR DIAZ: Mr. President, 25 will the Senator yield for a question.

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(518) 371-8910 1 ACTING PRESIDENT MORAHAN: 2 Senator Volker, will you yield for one 3 question? 4 SENATOR VOLKER: One question. 5 SENATOR DIAZ: Senator Volker, do 6 you really believe that the death penalty is a 7 deterrent? 8 SENATOR VOLKER: Absolutely. 9 There's no question in my mind. And let me 10 just tell you that the proof is in the 11 pudding -- 12 SENATOR DIAZ: Just -- 13 SENATOR VOLKER: Wait a minute. 14 No, no, I get to answer. 15 Every time the death penalty has 16 been found against, the murder rate has 17 soared, particularly among law enforcement 18 people. And every time we restore it, the 19 murder rate goes down. It's a fact. It's 20 very difficult to deal with because we don't 21 want to believe it, but it's a fact. 22 ACTING PRESIDENT MORAHAN: Thank 23 you, Senator. 24 SENATOR DIAZ: Mr. President, 25 will the Senator still yield?

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(518) 371-8910 1 SENATOR VOLKER: Yes. 2 ACTING PRESIDENT MORAHAN: The 3 Senator continues to yield. 4 SENATOR DIAZ: So if the death 5 penalty is a deterrent, as you say, wouldn't 6 you like it to be a deterrent for everybody? 7 SENATOR VOLKER: Yes. 8 SENATOR DIAZ: So why not include 9 everyone in the bill? 10 SENATOR VOLKER: That's next 11 week. 12 SENATOR DIAZ: Next week? 13 SENATOR VOLKER: Well, next week 14 or the week after. We're going to do that, 15 yes, absolutely. That's my bill. 16 SENATOR DIAZ: Mr. President, 17 will the Senator yield for another question? 18 SENATOR VOLKER: Yes. 19 ACTING PRESIDENT MORAHAN: The 20 Senator will continue to yield. 21 SENATOR DIAZ: Wouldn't you say 22 that this bill is sending a message that the 23 life of a police officer is worth more than 24 the life of other people? 25 SENATOR VOLKER: Yeah, it is.

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(518) 371-8910 1 Because the police officer is so much more 2 likely to be killed. It's not that it's more, 3 it's just that they're more likely to be 4 killed, so you need a bigger deterrent. 5 SENATOR DIAZ: Who said that? 6 SENATOR VOLKER: The statistics 7 show it's a thousand times more likely that a 8 police officer is to be killed than an average 9 person. 10 SENATOR DIAZ: Will the Senator 11 still yield? 12 ACTING PRESIDENT MORAHAN: 13 Senator Volker, do you continue to yield? 14 SENATOR VOLKER: Yes. 15 SENATOR DIAZ: I would like to 16 bring you to my district and show you some 17 statistics on police officers and the people 18 that get killed. And I'll show you, Senator, 19 and I assure you, Senator, that you're wrong. 20 When you say that the life of a police officer 21 is worth more than any other life in the State 22 of New York, you're wrong on that. And that 23 you are wrong by saying that a police officer 24 is more likely to get killed than any other 25 citizen.

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(518) 371-8910 1 SENATOR VOLKER: You can say it's 2 wrong, and you'll be totally wrong. 3 ACTING PRESIDENT MORAHAN: Excuse 4 me, Senator Volker. 5 Senator, was that a question? 6 SENATOR DIAZ: I don't know what 7 it was. It was a statement, maybe. 8 Mr. President, you know, we have to 9 stop with the ironies here. This is serious 10 business here. We're talking about life. 11 We're talking about that any life in the State 12 of New York is the same. To say that the life 13 of a police officer is worth more -- 14 ACTING PRESIDENT MORAHAN: 15 Senator Diaz, just to keep order for a 16 moment -- 17 SENATOR DIAZ: Okay. 18 ACTING PRESIDENT MORAHAN: 19 Senator Volker has the floor. You're not 20 asking him to yield any longer. Senator 21 Volker is just about finished -- 22 SENATOR VOLKER: Yes, I am 23 finished. 24 ACTING PRESIDENT MORAHAN: -- and 25 we'll go to the next speaker.

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(518) 371-8910 1 SENATOR VOLKER: Except to say, 2 Senator, I never said it was worth more. I'm 3 telling you -- Senator, please. I meant -- 4 and I said this -- and I think because you 5 have decided that police officers are not as 6 likely to get killed as other people, you are 7 wrong. 8 Every statistic in this nation 9 shows that the most dangerous job in the world 10 is being a police officer. And next is being 11 a fireman, by the way. Do you think your 12 average citizen is more likely to be killed 13 than a fireman? Of course not. This is fact. 14 You're saying a lot of people are killed. 15 You're right. We'll pass a death penalty bill 16 and then it will be better. 17 But I'm going to finish by saying 18 that you can say all you want that a police 19 officer is not a dangerous occupation, but it 20 is. And it's been proved. And it's time to 21 pass Senator Golden's bill right now. 22 ACTING PRESIDENT MORAHAN: Thank 23 you, Senator. 24 Senator Little. 25 SENATOR LITTLE: Thank you,

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(518) 371-8910 1 Mr. President. 2 I too rise in support of this piece 3 of legislation, because I think it's a very 4 important piece of legislation. 5 I also agree that the killing of a 6 police officer, a person who has been willing 7 to risk their lives in order to protect the 8 community, is an assault on the community. If 9 you're willing to commit a murder against a 10 police officer in uniform, or knowingly 11 knowing that that is a police officer, you are 12 willing to kill just about anyone in the 13 community. 14 And I think that having this death 15 penalty option, which is something we are 16 trying to correct since the Supreme Court 17 showed that we needed to change, certainly 18 will help not only as a deterrent but also as 19 a means of punishment and injustice. 20 I also believe that this is the 21 time to do it. The tragedies that we have 22 heard talked about today are real tragedies, 23 and it's unfortunate that we cannot change any 24 of those. We cannot restore life to any of 25 those lost lives. But hopefully we can pass

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(518) 371-8910 1 this piece of legislation that will prevent 2 someone else from being killed. 3 The numbers are rising, and it's 4 alarming. The disrespect or the disregard for 5 a person who is a law enforcement person is 6 something that we need to address and do so 7 with this piece of legislation. 8 But I also would like to speak 9 about this in regard to not only those law 10 enforcement officers who work to protect our 11 neighborhoods to make them safer, but for 12 those correction officers who work in some of 13 the most dangerous neighborhoods in the 14 country. 15 I happen to represent 12 facilities 16 within my district, and over 5,000 correction 17 officers who spend each and every day working 18 in a correctional facility, taking risks but 19 doing it in order to protect our communities. 20 Many of these inmates are serving 21 life without parole. We have a case going on 22 in one of our courts in one of the counties 23 that I represent where an inmate assaulted a 24 correction officer and he also, through his 25 civil rights, insisted on a trial. So there's

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(518) 371-8910 1 a trial going on right now about the assault 2 of this correction officer. This inmate is 3 serving life without parole. 4 Now, the results of the trial, if 5 they prove him guilty -- and they have 6 substantial evidence against this person -- 7 what are they going to add as a punishment to 8 this crime? More life without parole? What 9 happens when an inmate kills a correction 10 officer, and it has happened, and that person 11 has life without parole? Do we give them a 12 second life without parole? 13 We need something not only as a 14 means of punishment and justice, but we need 15 it as a deterrent for many of these people who 16 are serving life without parole in our 17 correctional facilities and have no incentive 18 to do anything any differently. 19 So I am very proud to stand here 20 today in support of this piece of legislation, 21 and I look forward to it moving through the 22 Assembly and being signed by the Governor. 23 Thank you. 24 ACTING PRESIDENT MORAHAN: Thank 25 you, Senator Little.

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(518) 371-8910 1 Senator Duane. 2 SENATOR DUANE: Thank you, 3 Mr. President. 4 I understand that there's probably 5 not too much more to be said about the death 6 penalty. But I would be remiss if I didn't 7 just say that I believe that it's morally and 8 ethically wrong. I don't think the State of 9 New York has the right to take a life away, 10 any more than anyone else has the right to 11 take a life away. 12 I want to just, since Texas has 13 been brought up a few times here, just to talk 14 about some of the things that people in Texas 15 have said just right before they were going to 16 be put to death. 17 "The reason it took them so long is 18 because they couldn't find a vein. You know 19 how I hate needles. I used to stay in a 20 doctor's office. Tell the guys on death row 21 that I'm not wearing a diaper. I can't think 22 of anything else. You all stay strong. Now 23 you can put all this aside. Don't bury in me 24 in the prison cemetery, bury me right beside 25 Momma. Don't bury me to the left of Dad, bury

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(518) 371-8910 1 me on the right side of Mom." 2 "All praises be to God. I would 3 like to say to the Garza family, see my smile? 4 It is not from happiness. I took a father. 5 It wasn't my fault, it was an accident. God 6 knows the truth. If my life could bring your 7 father back, then let it be. Don't take my 8 smile for disrespect. If I see your father, I 9 will ask his forgiveness. I told the judge 10 the truth, it was an accident. I'll smile and 11 I'm not sad. If my life could make you happy, 12 be free. I'll say when I see him I'm sorry. 13 I have no anger nor fear. Mom, have no fear. 14 Mommy, I will be home when I get there." 15 Another one: "To my family, first 16 and foremost, I love you all. The calmness 17 that I was just telling you about, I still 18 have it. You are Mario's uncle, correct? I 19 just wanted you to know that I wronged your 20 family. I received nothing. I was not paid. 21 I took his life for the love of a friend. I 22 love you all. I just want you to know that. 23 I know he does, I feel it. I'm all right. 24 Make sure Momma knows, all right? Jermaine, I 25 love you too, man."

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(518) 371-8910 1 "Yes, sir, I do" -- this is when 2 they're all being asked if they had a final 3 statement. "I'd like to say I love my mother, 4 brother, sister, grandmother, cousins and 5 nieces and my brothers and sisters I have 6 never met. I do apologize to the Service 7 family. I am responsible for them losing 8 their mother, their father and their 9 grandmother. I never meant for them to be 10 taken. I'm sorry for what I did, and I take 11 responsibility for what I did. That's all, 12 Warden." 13 When asked, another person, right 14 before they were put to death: "I do. I 15 would like to tell everybody that I'm sorry 16 about the situation that happened. My bad. 17 Everybody is here because of what happened. 18 I'd like to thank everybody that's been here 19 through the years. The little kids overseas, 20 they really changed me. Sister Doris, mom, 21 brother, sisters, Dad, I love you all. My 22 brother, where is my stunt double when you 23 need one? My Lord is my life and savior, 24 nothing shall I fear." 25 Justin Fuller, when he was asked if

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(518) 371-8910 1 he wanted to make a last statement: "Yes, I 2 do. I'd like to tell my family thank you for 3 your support, and my friends, and let everyone 4 know that you must stay strong for each other. 5 Take care of yourselves. That's it, Warden." 6 And James Clark, this is what he 7 had to say right before he was put to death: 8 "Uh, uh, I don't know. Uh, I don't know what 9 to say. I don't know. I didn't know anybody 10 was there" -- meaning the people on the other 11 side of the window. "Howdy," as he waved to 12 them. He was put to death. 13 "Yes, sir. I charge the people of 14 the jury, trial judge, the prosecutor that 15 cheated to get this conviction, I charge each 16 and every one of you with the murder of an 17 innocent man. All the way to CCA, federal 18 court, Fifth Circuit of the Supreme Court. 19 You will answer to your maker when God has 20 found out that you executed an innocent man. 21 May God have mercy on you. My love to my son, 22 my daughter, Nancy, Cathy, Randy and my future 23 grandchildren. I ask for forgiveness for all 24 of the poison I brought into the U.S., the 25 country I love. Please forgive me for my

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(518) 371-8910 1 sins. If my murder makes it easier for 2 everyone else to get the forgiveness, please 3 be a part of the healing. Go ahead, Warden, 4 murder me. Jesus, take me home." 5 And finally, from Derrick O'Brien: 6 "I do. I'm sorry. I have always been sorry. 7 It's the worst mistake that I ever made in my 8 whole life, not because I am here but because 9 of what I did. I hurt a lot of people, you 10 and my family. I am sorry. I have always 11 been sorry. I am sorry. You look after each 12 other. I love you all. Be there for one 13 another, all right? But I am sorry, very 14 sorry. I love you too. All right?" 15 Well, we don't live in Texas. And 16 even though we've had a ten-year experiment 17 with the death penalty, no one has been put to 18 death here. Although I have to say, you know, 19 I wasn't here, but the Legislature was in such 20 a hurry to pass a death penalty bill that they 21 drafted it poorly. Not unusual, 22 unfortunately, here in the Legislature. But 23 that was one of the reasons why it was thrown 24 out by the Court of Appeals. 25 So I feel like saying, you know,

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(518) 371-8910 1 you had your chance, you blew it. Right? And 2 the world has changed and moved on since then, 3 and more and more people realize the 4 immorality of the death penalty. 5 You know, I just, you know, I could 6 argue -- you know, I know what the other side 7 is going to say. I can argue it as well -- 8 better than some of them. And somehow I think 9 that it's not really a productive use of our 10 time to do this. I mean, I am virtually 11 certain the Assembly is not going to pass this 12 bill. 13 So, you know, for people who are 14 the victims or their family members were the 15 victim of a terrible crime and who support the 16 death penalty, I mean this kind of gives them 17 false hope. Right? And that's not fair to 18 the police either, by the way. 19 So ten years of an experiment that 20 failed here in New York State. You're going 21 to hear statistics -- some people will make 22 them up, some people actually have backup for 23 their statistics. But, you know, let's do 24 some meaningful legislation. Let's do other 25 things like make sure that our law enforcement

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(518) 371-8910 1 people have the best possible training and the 2 best possible defense against violent 3 criminals. Let's do things like that. Let's 4 spend our time productively that way. 5 You know -- you know, been there, 6 done that, didn't work. Let's move on to 7 things that will really help the people of the 8 State of New York. 9 Thank you. 10 ACTING PRESIDENT MORAHAN: Thank 11 you, Senator Duane. 12 Senator Krueger. 13 SENATOR LIZ KRUEGER: Thank you, 14 Mr. President. 15 I rise to speak on the bill. And a 16 lot of people have spoken, and there's been a 17 lot of misinformation given, so I will start 18 with some facts. 19 The case against the death penalty 20 has already been made over the years in 21 New York. Actually, in 1841 the New York 22 State Assembly -- that was 1841 -- recommended 23 abolition of the punishment of death by law. 24 Among other things, the report said that "the 25 uncertainty of conviction by juries for

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(518) 371-8910 1 capital offenses has grown almost into a 2 proverb. In the clearest case, it is 3 constantly seen they will not convict." 4 More than a century later, in 1965, 5 the Temporary Commission on the Revision of 6 the Penal Law and the Criminal Code, chaired 7 by Republican Richard Bartlett of Glens Falls, 8 concluded: "The death penalty was a barbarism 9 which had a seriously baneful effect on the 10 administration of criminal justice." The 11 commission observed that erroneous convictions 12 and executions were inevitable and would 13 destroy the moral force of the entire penal 14 law, that the death penalty could not be 15 administered in the United States with even 16 rough equality, and that the number of cruel 17 and repulsive murders never will be greatly 18 influenced by abolition of the death penalty. 19 U.S. Supreme Court Justice Ruth 20 Bader Ginsberg has stated she's never seen a 21 death penalty case on appeal in front of the 22 U.S. Supreme Court in which the defendant was 23 well represented at trial. 24 There are approximately 20,000 25 criminal homicides in this country each year,

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(518) 371-8910 1 and only about 50 result in a death penalty 2 execution. Fifty out of 20,000. Were those 3 people each year really the most evil of all? 4 Senator Duane just read from some of them. It 5 appears we are executing the criminals with 6 the worst lawyers, not the worst criminals. 7 And capital punishment has proved 8 not to protect our police officer or our other 9 citizens, although passing a bill today may 10 allow us to believe we're doing something. 11 But we're not assuring justice, and we're not 12 protecting our citizens or our police. We've 13 seen the data over and over and over again. 14 The Assembly held hearings when our 15 death penalty law was not upheld by the 16 courts, and a Republican Senator named John 17 Dunne testified at those hearings. And he 18 testified about having been a supporter of the 19 death penalty and having been named by Senate 20 Majority Leader Joe Bruno as one of the first 21 members of the Capital Defender Board. And he 22 said that that experience, which he felt he 23 was prepared for, opened his eyes as to how 24 impossible it was to implement a fair death 25 penalty statute.

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(518) 371-8910 1 And he talked about a specific case 2 in his testimony, the case of a man named 3 Lemuel Smith in the '80s who was tried and 4 sentenced to death for the murder of a prison 5 guard, and a year and a half later he was 6 spared the death sentence when the mandatory 7 death penalty for lifers who kill was ruled 8 unconstitutional. 9 And Smith, according to Senator 10 John Dunne, was already a despised and legally 11 vulnerable lifer at the time of the alleged 12 homicide. He unsuccessfully sought counsel 13 for two weeks and for nine days he was 14 interrogated, implicated on television as the 15 murderer. He was locked in special housing. 16 His teeth were seized from him. And 22 days 17 after the murder, he finally secured defense 18 counsel. And thereafter he was deprived in 19 any real sense of the effective assistance of 20 that counsel for a period of 15 months, 26 21 weeks of which were involved in defense 22 applications for compensation. 23 The prosecution received 24 approximately $10 for every dollar given to 25 the defense. Much that needed to be done by

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(518) 371-8910 1 defense counsel in a death penalty case was 2 simply never attempted. The case was 3 improperly investigated, leads were ignored, 4 and much evidence was overlooked. 5 And there's been other research 6 done about the fact that the death penalty can 7 be applied erroneously just as likely in 8 capital cases against private citizens as 9 against police officers or peace officers or 10 prison guards. 11 And there's documentation of the 12 fact that, despite one of my colleagues' 13 earlier statement that there's a lower rate of 14 death of police and correction officers in 15 states with the death penalty, that actually 16 the data is just the opposite. The data is 17 that states without the death penalty have 18 lower criminal homicide rates, including 19 police officers on duty do not suffer a higher 20 rate of criminal assault and homicide in 21 states that have abolished the death penalty 22 than they do in death penalty states. 23 And lethal assaults against police 24 were significantly less frequent in abolition 25 states than in death penalty states, and that

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(518) 371-8910 1 there is no support for the view that the 2 death penalty provides a more effective 3 deterrent to police homicides than alternative 4 sanctions. Not a single year has there been 5 evidence found that police are safer in 6 jurisdictions that provide for capital 7 punishment. 8 And prisoners and prison personnel 9 do not suffer a higher rate of criminal 10 assault or homicide from life-term prisoners 11 in abolition states than they do in all death 12 penalty states. Between 1984 and 1989, 17 13 prison staff were murdered by prisoners in 10 14 states. And of these murders, 88 percent 15 occurred in death penalty jurisdictions, just 16 as about 88 percent of all the prisoners in 17 those 10 states were in death penalty 18 jurisdictions. 19 Evidently the threat of the death 20 penalty does not exert even an incremental 21 deterrent effect over the threat of a lesser 22 punishment in the abolitionist states. 23 And there's data from our own 24 district attorneys and prison wardens here in 25 New York State that correctional workers from

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(518) 371-8910 1 across the country feel that lifers presented 2 fewer disciplinary problems than the general 3 population, and 92 percent said lifers were 4 more cooperative than the rest of the 5 population. 6 And there's the data from the 7 Innocence Project, from the Columbia 8 professors, from New Yorkers Against the Death 9 Penalty, from the moratorium states, from the 10 Governor of Illinois, pages and pages of 11 documentation and statistics and reports 12 showing us that the death penalty will not 13 make us safer. 14 The death penalty is not a perfect 15 system. To put one innocent person to death 16 challenges all of us in our society as to what 17 our rule role is as government. It makes us a 18 lesser people. It encourages a culture of 19 violence. It is always irrevocable. There's 20 no degree of due process that is sufficient to 21 correct the state's execution of an innocent 22 person. 23 And over and over again, over a 24 hundred times we have seen innocent people on 25 death row being released. And yet over and

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(518) 371-8910 1 over again, we don't do the research on people 2 who are executed to find out how many of them, 3 if they'd had the right lawyers, if they'd had 4 the right due process would have also been 5 found to be innocent. 6 We have a solid system of criminal 7 justice. We have the ability to put people in 8 jail for life without parole to protect our 9 citizens from evil people. 10 Reinstating the death penalty for 11 any subuniverse of violent criminals or any 12 subcategory of crime doesn't change the 13 fundamental questions of whether or not we 14 should have a death penalty, whether or not we 15 need to have a death penalty, or whether we 16 could justify under our existing systems of 17 law the fact that we have proven one thing 18 with our death penalty in the 1800s and the 19 1900s -- and I hope no longer in the 21st 20 century -- that mistakes are made, they will 21 continue to be made. This is a model of 22 criminal justice that has no place in the 23 state of New York, and there's no 24 justification for it. 25 And I suppose last, because a great

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(518) 371-8910 1 deal has been discussed about the horrors of 2 when a police officer is killed on duty, or 3 the pain to their families, well, the same 4 data is true from all of the research that 5 putting someone to death for a criminal act 6 solves none of the problems for the victim's 7 families who are left behind. And in fact, as 8 we see over and over again, large numbers of 9 victims' families have come forward to urge us 10 not to have a death penalty. 11 So I don't believe it's a different 12 story for the victims, whether or not their 13 spouse was in law enforcement. It's a 14 dangerous job. We can and should do much more 15 to address the underlying risks of being a 16 police officer. 17 But again the data shows that when 18 you ask district attorneys and police chiefs 19 what they think we should do to protect 20 officers, they don't talk about the death 21 penalty. They talk about gun control, they 22 talk about swifter trial procedures, they talk 23 about better training, they talk about the 24 need to have more officers on the streets. 25 They're not the ones saying this is their

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(518) 371-8910 1 priority. 2 And so it is terrible when anyone 3 is murdered. It is terrible when a police 4 officer or a peace officer or a corrections 5 officer is murdered in the line of duty. But 6 it doesn't change the fundamental flaws in any 7 modern-world construction of the death 8 penalty. It doesn't give their lives back to 9 us. And it doesn't solve their families' 10 loss. 11 So I will vote no on this bill. I 12 am very glad I currently live in a state 13 without the death penalty. I am not a 14 minority. The majority of New Yorkers do not 15 want a death penalty, because they understand 16 the facts as I have described them and as so 17 many of my colleagues today have already 18 spoken about. The death penalty will not make 19 us safer, it will not make our police officers 20 safer, but it will perhaps make us lesser as a 21 moral society doing right. 22 Thank you, Mr. President. I vote 23 no. 24 ACTING PRESIDENT MORAHAN: Thank 25 you, Senator Krueger.

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(518) 371-8910 1 Senator Marcellino. 2 SENATOR MARCELLINO: Thank you, 3 Mr. President. 4 We've heard a lot of discussion 5 lately about statistics, pro and con: is the 6 death penalty a deterrent, is it not. 7 Mr. President, I wonder if Senator Golden 8 would yield for a question. 9 ACTING PRESIDENT MORAHAN: 10 Senator Golden, will you yield for a question? 11 SENATOR GOLDEN: I do. 12 ACTING PRESIDENT MORAHAN: The 13 Senator yields. 14 SENATOR MARCELLINO: Senator 15 Golden, you at the beginning of the statement 16 of your opening remarks issued some statistics 17 on the number of police officer deaths or the 18 number of homicides before the death penalty 19 was instituted and after it and then before 20 the current problem with the death penalty law 21 and then subsequent to its knocking off. 22 Could you please repeat those 23 statistics for us? 24 SENATOR GOLDEN: Certainly. 25 The numbers between 1977 and 1995,

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(518) 371-8910 1 it was consistent, between 10 and 14 murders 2 per 100,000 people. And then it goes on to 3 say only once did it drop to 10 or right below 4 10. And in 1995, the year the death penalty 5 was reinstated, the murder rate dropped to 8.5 6 per 100,000 and has steadily decreased to a 7 low of 4.35 per 100,000 in 2005. 8 Even without a single execution 9 taking place, the presence of the death 10 penalty here in New York has coincided with 11 much of the lower murder rates that we see 12 today that exist. 13 So the numbers are outstanding and 14 the studies -- that's the U.S. government 15 numbers. University of Chicago, the study of 16 Mocan and Gittings, that each individual 17 execution resulted in a decrease of about five 18 murders. And on the flip side, they found 19 when a death sentence was reduced, there was 20 an increase of five murders, an increase. 21 So the study of Shepherd, a similar 22 study that verifies the research but says that 23 it decreases by three murders, not five 24 murders. And these are crimes of passion. 25 And we thought that we couldn't do anything

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(518) 371-8910 1 about crimes of passion, but crimes of passion 2 were decreased as well. 3 These are statistics by both the 4 U.S. government and by the University of 5 Chicago. 6 SENATOR MARCELLINO: Thank you, 7 Senator Golden. 8 Mr. President, I believe the 9 statistics speak for themselves. Despite all 10 philosophical pros and cons one way or the 11 other, the statistics are there. When the 12 death penalty is in existence, the murder rate 13 drops. When the death penalty is not in 14 existence, the murder rate rises. 15 Senators, the numbers were just 16 recited to you. Nothing anyone has said has 17 called those numbers into question. They are 18 a fact. You might not like the facts, but 19 they're the facts. 20 Thank you, Mr. President. 21 ACTING PRESIDENT MORAHAN: Thank 22 you, Senator. 23 Senator Schneiderman. 24 SENATOR SCHNEIDERMAN: Thank you, 25 Mr. President.

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(518) 371-8910 1 I appreciate Senator Marcellino 2 teeing up my commentary. In fact, those 3 statistics have been completely undercut by 4 the January 2007 New Jersey Death Penalty 5 Study Commission report, which examined the 6 very studies Senator Golden has cited and the 7 studies that refuted them. 8 A thorough inquiry was undertaken 9 into the literature on the death penalty in 10 this state, but not by the Senate, by the 11 New York State Assembly in April 2005. And 12 the last time we debated the death penalty in 13 this house, my colleagues and I cited numerous 14 studies consistently demonstrating the lack of 15 a deterrent effect -- or, excuse me, let me 16 state this carefully, the lack of any credible 17 empirical evidence of a deterrent effect in 18 states that have the death penalty. 19 Indeed, all these citations of the 20 numbers of peace officers and police officers 21 killed by my colleagues on the other side of 22 the aisle have omitted one salient fact, which 23 is that most of them have been in states where 24 they have the death penalty. There is no 25 deterrent effect.

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(518) 371-8910 1 If you don't want to do this as 2 we're doing it today, anecdotally, with people 3 citing one study or another study or facts 4 like the testimony that I see that you credit 5 by Mr. Adams, the codefendant in this 6 horrendous crime -- who was, in fact, a 7 prosecution witness testifying under an 8 agreement with the prosecutors when he said 9 that the murderer had said, "Oh, is there a 10 death penalty in New York State?" 11 I spent two years working in a 12 prison. I never met a street criminal who 13 said before a crime: "Excuse me, Jerome, what 14 is the status of the death penalty in our 15 state now, or do you get life without parole?" 16 And he says: "No. Actually, in fact, 17 recently there's been a decision of the U.S. 18 Supreme Court invalidating it." "Oh, in fact, 19 then I think I'll go out and commit this 20 heinous blood-lust crime." 21 That's not the way they operate. 22 If you spend any time at all with dangerous 23 street criminals, you know that these are not 24 the kinds of people who are deterred through 25 this sort of logical process.

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(518) 371-8910 1 I will concede that it may be true 2 for people like ourselves, for white-collar 3 criminals, which I used to defend. And as 4 I've said often, you know, you want to see -- 5 I'm not in favor of the death penalty, but if 6 you want to put in effect the death penalty 7 for securities fraud, you will have the 8 cleanest markets in the world, I assure you of 9 that. 10 But the people who commit the 11 crimes we're talking about, crimes of 12 violence, are not deterred. 13 And, ladies and gentlemen, last 14 time we were here debating this and I offered 15 up and others offered up all of the testimony, 16 all of the studies that were adduced and 17 brought forth in the Assembly hearings and 18 that have been updated by the recent 19 New Jersey study and hearings, my colleagues 20 on the other side of the aisle said, We will 21 hold hearings. 22 And, you know, my friend and 23 personal hero Senator Volker stated we will -- 24 "I want to tell you, if the Assembly does not 25 pass this bill this year" -- I'm quoting --

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(518) 371-8910 1 "they're going to get their hearings. We're 2 going around the state then." 3 Now, let's not do this in a 4 haphazard way. Let's not make up facts. Just 5 because you say it doesn't make it so. 6 And I respectfully submit -- and 7 I've been studying this for years, I spent two 8 years working in a prison before I went to law 9 school and I've been looking at sentencing and 10 at issues related to sentencing and the death 11 penalty for most of my adult life -- I have 12 never seen a peer-reviewed study survive 13 scrutiny that has found that the death penalty 14 is a deterrent. 15 It doesn't work on the people 16 you're concerned about, ladies and gentlemen. 17 The stuff that's being cited here are studies 18 that in some cases have been directly refuted. 19 And if we're not going to have a 20 hearing and we're not going to really look at 21 all the evidence, I don't think we're doing 22 our job. 23 So I would respectfully urge my 24 colleagues that we do what we said we were 25 going to do in 2005. Let's hold hearings,

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(518) 371-8910 1 let's get all the evidence out. And I really 2 do believe that some of you who are in favor 3 of this bill will change your minds as 4 Republican governors, senators, our colleague, 5 Senator Dunne, the Republican governor of 6 Illinois, who imposed a moratorium, the 7 Republican governor of Massachusetts, 8 others -- jurists, members of the courts -- 9 have changed their mind about the death 10 penalty. 11 We know from the presence of the 12 folks here from the Innocence Project that 13 innocent people are put on death row. I wish 14 I should share the overwhelming confidence my 15 colleagues express that no innocent person has 16 ever been executed in New York State. I don't 17 see how you can possibly say that. 18 Thank you, Mr. President. I'm 19 urging everyone to vote no. 20 ACTING PRESIDENT MORAHAN: Thank 21 you, Senator Schneiderman. 22 Senator Nozzolio. 23 SENATOR NOZZOLIO: Thank you, 24 Mr. President. Mr. President, on the bill. 25 Senator Schneiderman is right,

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(518) 371-8910 1 innocent people are being put to death each 2 and every day all across this state. And 3 those people are wearing badges and are 4 protecting us and are putting themselves in 5 harm's way and are risking their lives and are 6 being executed in a war that's being waged 7 against police officers across New York State. 8 That is undeniable. 9 Senator Golden's bill is putting 10 forth, hopefully, a component that will help 11 end that war. At the very least, provide 12 additional protection so that those who may be 13 thinking about getting away with a crime, not 14 doing the time by perpetrating a murder 15 against a police officer -- that's the 16 innocent victim in this case, the police 17 officer. 18 It's not, as Senator Schneiderman 19 suggests, and others have suggested, that our 20 focus is about an innocent person being put to 21 death because of a conviction, while that's 22 certainly a concern. But our primary concern 23 needs to be placed about the innocent police 24 officers that are being put to death by this 25 war.

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(518) 371-8910 1 That's why I rise, Mr. President, 2 in support of this measure. That's why I say 3 to my colleagues on the other side of the 4 aisle, certainly everyone is entitled to due 5 process. The conviction of the wrong person 6 is something that our criminal justice system 7 has been for centuries trying to prevent. The 8 technology available today, with the DNA 9 database to establish everyone who's been 10 convicted of a crime, be it a misdemeanor or a 11 felony, supply their DNA so that we will have, 12 as DNA has proven, that there are some people 13 who were not guilty of crimes, that those 14 people should be let out of jail because 15 they're innocent. 16 DNA can help us find the innocent, 17 but it also can help us find the guilty. And 18 that's something that this Senate Republican 19 body has fought for and pushed for and will 20 continue to fight for until we have an 21 adequate DNA database in New York State. 22 I'd like to just in a few short 23 moments discuss an element that's been missing 24 from the debate, a lengthy debate, a good 25 debate. I applaud the sponsors of this

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(518) 371-8910 1 legislation, particularly Senators Golden and 2 Volker, who have stood so tall against this 3 war being waged against the innocent of our 4 state. 5 We have incarcerated in New York 6 State well over 60,000 people in our state 7 correctional facilities and tens of thousands 8 more across the rest of our correctional 9 system. If you put an individual -- and 10 opponents of this legislation are saying that 11 an individual should have life without parole. 12 Well, I say to the advocates who are pushing 13 life without parole, how many life without 14 parole sentences can you serve? 15 Putting those individuals that are 16 incarcerated in a jail facility places our 17 correction officers, our other correctional 18 personnel at tremendous risk. What is to 19 deter a murderer already serving life without 20 parole behind the walls of a correctional 21 facility from murdering a correction officer, 22 murdering a correctional employee, murdering a 23 teacher, someone who's in the jail system 24 entrusted with the custodianship for that 25 system -- or, for that matter, another inmate?

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(518) 371-8910 1 Inmates murder inmates all the time in 2 New York State. 3 What type of deterrent is life 4 without parole to a person who's already 5 sentenced to life without parole? That person 6 will be a time bomb within the correctional 7 system, will murder and seek to murder 8 additional inmates, will put at tremendous 9 risk our correction officers of this state. 10 That's where the opponents' logic 11 is faulty on this legislation, Mr. President. 12 And I respectfully appreciate the opportunity 13 to speak on this measure and certainly support 14 it, urge my colleagues to do likewise. 15 ACTING PRESIDENT MORAHAN: Thank 16 you, Senator Nozzolio. 17 Senator Connor. 18 SENATOR CONNOR: Thank you, 19 Mr. President. 20 You know, I look around and I 21 realize that of the members currently serving, 22 since Senator Marchi retired, I have served 23 and been in opposition to the death penalty 24 longest of any member in this chamber. 25 And I first engaged in a debate

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(518) 371-8910 1 against the death penalty within weeks of 2 arriving here in 1978. And what was 3 interesting then is I debated against some -- 4 because I notice previous speakers seem to say 5 this is a partisan issue. It's not. When I 6 first arrived here, there were at least four 7 or five Republican members who were in 8 opposition to the death penalty. One 9 persisted; Senator Marchi. Four or five 10 others changed their position. 11 I saw a couple of Democrats that I 12 served with in those early days change from 13 opposition to being pro-death penalty. And 14 indeed one member, after the 1982 15 redistricting, switched from being for the 16 death penalty to being against the death 17 penalty, having left the more conservative 18 parts of his district to me. 19 When I first arrived here, I would 20 without a doubt say that my district 21 overwhelmingly supported the death penalty, a 22 product of two things: the nature of the then 23 district -- and that's before I got the other 24 Senator's more conservative parts -- and a 25 product of the times. Some of the members

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(518) 371-8910 1 against whom I debated then, Long Island 2 Republicans, had once in the '60s proudly led 3 the effort to repeal the death penalty in this 4 state and had subsequently, in the early '70s, 5 switched. That's apart from the ones who 6 switched in the late '70s. 7 So I've seen this issue go back and 8 forth. I have to say that in some cases 9 perhaps the switch involved a conscientious 10 change on the part of the members. Most often 11 it reflected the politics of their district, 12 the changing attitudes of the public. 13 In the late '70s a colleague of 14 mine told the story of chatting with a priest 15 from his district. This colleague was not 16 Catholic, but he was talking to a monsignor, 17 and he said, "What do you think of the death 18 penalty?" And the pastor said to him: "Vox 19 populi, vox Dei." The voice of the people is 20 the voice of God. My colleague said, "Yes 21 Monsignor, but does God change his mind every 22 ten years?" 23 The fact is I've seen the public 24 mood shift. Today I have no doubt that the 25 majority of the voters in my district are

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(518) 371-8910 1 opposed to the death penalty. For the first 2 twenty years I opposed it, I had no doubt -- 3 and I think I was right -- that a substantial 4 majority supported it. Things change. The 5 public attitude changes. 6 You know, in the late '70s and 7 through the '80s, crime was enormously high. 8 People were fearful, and they naturally lashed 9 out at the sociopaths who were inflicting so 10 much harm and damage by committing crimes. 11 But through all these debates, 12 there's one thing I'm sure of. And I've heard 13 the statistics against the death penalty. I 14 don't believe most of them. And I've heard 15 the statistics to justify the death penalty, 16 and I don't believe most of them. Because 17 they're just statistics. They lack any real 18 evidence of causation. 19 We heard earlier murders were down 20 in the last 12 years. Well, so are robberies 21 and car thefts and rapes and every category of 22 crime is down, crimes for which there was no 23 death penalty in effect. 24 So I don't doubt Senator Golden's 25 statistics, I just doubt the imputation to

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(518) 371-8910 1 them of any kind of causation or relationship 2 between the penalty or not. In my gut I've 3 always believed when people said it's a 4 deferent that the kind of sociopaths who 5 commit these crimes -- and someone mentioned 6 crimes of passion. Certainly there's no 7 deterrent there, I don't care what the 8 statistics say. 9 But the kind of lawless sociopath 10 who would shoot at a police officer obviously 11 not only has a total disregard for the 12 sanctity of life, for the societal role that 13 police officers play as our protectors and as 14 our servants and the servants of the peace, 15 but they have a total disregard for their own 16 life. 17 You know, if being a police officer 18 is one of the most dangerous occupations, 19 being a criminal who shoots at police officers 20 has got to rank up there as one of the more 21 dangerous things for one to do for one's own 22 personal safety. Because if you're not killed 23 in that gun battle and the standoff and the 24 manhunt that will result, you're in high 25 likelihood of being killed. And, you know,

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(518) 371-8910 1 maybe the number of murders are down in the 2 last 12 years because the number of robberies 3 are down. But I don't impute causation. 4 And I don't believe that these kind 5 of vicious, vicious sociopaths are deterred by 6 any consideration of law, order, their own 7 safety, their own future. They either think 8 they're going to get away with it or they 9 don't care. They're committing suicide by 10 shooting at police officers. 11 So I just don't buy deterrence. I 12 wish there was -- I wish I could be convinced 13 that there was a deterrent, whether it be the 14 death penalty or something else. I just don't 15 buy it. It's not there. 16 The closest argument that I always 17 listen to is the one Senator Nozzolio made 18 about the safety of correction officers when 19 you have people incarcerated for life without 20 parole who have proven by their past conduct 21 that they are killers. And that argument, I 22 listen to that. That does concern me. 23 There's some concern there. 24 But I think there are measures we 25 can take to ensure that such people don't harm

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(518) 371-8910 1 either other inmates or personnel in our 2 correctional facilities. You know, we know 3 who they are and we know how dangerous they 4 are. And I've got to believe there are just 5 ways -- you know, those kind of prisoners, no 6 one suggests that they should be moved from 7 cell to cell without being chained, 8 handcuffed, and appropriately guarded. They 9 certainly aren't given -- they shouldn't be 10 given the run of the yard, so to speak, in the 11 prisons. 12 So what are we left with? Well, 13 the death penalty, I guess, is a certain raw 14 justice. A certain raw justice, if you go by 15 the Code of Hammurabi or the Old Testament -- 16 an eye for an eye, a tooth for a tooth, a son 17 for a son, a father for a son. That strikes 18 people. But you know what? Legal codes 2,000 19 and 3,000 years old, aren't we better than 20 that now? Don't we proclaim we have a more 21 civilized society today than 2500 years ago or 22 3,000 years ago? I would hope so, you know. 23 And back then they didn't have 24 correctional facilities if they did have a raw 25 sense of justice or blood for blood. Today we

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(518) 371-8910 1 have better ways of dealing with virtually 2 every problem than they did then, and 3 certainly we have a better way of dealing now. 4 The political punch is not there 5 for the death penalty. You can try and revive 6 it all you want. It's not there now. Ten 7 years from now it may be different. Ten years 8 ago it was different, and 15 years before that 9 it was the other way. That's politics. 10 My opposition to the death penalty 11 is simply fundamental. It is unworthy of the 12 civilized society we hope to be living in in 13 this, the 21st century. That's why I'm 14 opposed to the death penalty. 15 ACTING PRESIDENT MORAHAN: Thank 16 you, Senator Connor. 17 Senator Parker. 18 SENATOR PARKER: Mr. President, 19 on the bill. 20 ACTING PRESIDENT MORAHAN: 21 Senator Parker, on the bill. 22 SENATOR PARKER: Let me begin by 23 saying this is a well-intentioned bill. And 24 let me thank Senator Golden for his interest 25 in this issue, for his courageousness in

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(518) 371-8910 1 bringing this to the floor. Because this is a 2 truly important issue. I don't think there's 3 one member of this body who is not concerned 4 with safety in their community. 5 And all of us have police officers 6 who live amongst our districts. We count on 7 police officers for our safety, and we count 8 on corrections officers as well. My nephew is 9 a corrections officer. I have a 10 brother-in-law who's a corrections officer. 11 We want them protected. We don't want 12 anything to happen to them. However, this 13 bill is not the way to protect them. 14 We oftentimes talk about how to 15 protect communities by raising penalties. 16 That becomes kind of the ongoing theme in this 17 body. Because every time we want to protect a 18 class of people, we give the death penalty, we 19 subscribe more jail time, we raise penalties 20 and raise penalties and raise penalties. But 21 never do we actually do the real kind of 22 programmatic things that it takes to in fact 23 deal with the issues that we attempt to 24 address in this body. 25 So we talk about gang violence, but

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(518) 371-8910 1 never do we come up with programmatic dollars 2 to in fact engage our young people after 3 school. We talk about drugs in our community, 4 but we never, ever come up with dollars to 5 develop programs to both prevent people from 6 getting on drugs but then also to do serious 7 intervention with people after they get on to 8 help them get off. 9 And this is the same kind of road 10 that we're -- down the primrose path that 11 we're going down now that doesn't really lead 12 us to where we ought to be going. We all want 13 safe communities. We want our neighbors, our 14 friends, our families safe. We want police 15 officers safe. We want peace officers safe. 16 We want corrections officers safe. But 17 unfortunately, this bill is not going to do 18 that. 19 Just like when we talked about 20 raising penalties for people who sell drugs in 21 schoolyards. The reality is if you want to 22 stop people from selling drugs in schoolyards, 23 put a cop there and people won't sell drugs in 24 school yards. It's really not that hard. The 25 reality is anybody who is selling drugs in a

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(518) 371-8910 1 schoolyard is not saying what the penalty is, 2 especially if they don't think they're going 3 to get caught because there's no prevention. 4 I've been recently talking to 5 nurses, I have lots of nurses in my district. 6 And I've been talking to folks from the 7 New York State Nurses Association, and they're 8 really concerned about violence against two 9 nurses. A really serious issue, and this body 10 ought to take that up at some point. And they 11 really want to raise the penalties 12 specifically for people who assault nurses. 13 I certainly think we ought to 14 protect nurses. But really what I've said to 15 them is that, you know, we ought to consider 16 the bill, but the reality is that what we 17 ought to do if we want to protect nurses is 18 work and develop a hospital safety bill that 19 in fact requires a certain level of security 20 or police presence on the floors where this 21 stuff is in fact happening. 22 We know where it's happening. 23 Because essentially at the end of the day, if 24 you in fact assault a nurse or if you kill a 25 cop -- this bill is not going to stop anybody

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(518) 371-8910 1 from killing cops. We will get some justice. 2 Vengeance will be ours, sayeth the New York 3 State Senate. But this is certainly not going 4 to lead us to less occurrences of police 5 officers, peace officers and corrections 6 officers being killed or harmed. 7 The only way that's going to happen 8 is in fact if we take some serious 9 programmatic steps that we know work in terms 10 of dealing with this issue. And people can 11 claim that they don't really know the numbers, 12 they can say, oh, this study and that study. 13 You can always find a study that says what you 14 want it to say. 15 We want our communities safe. We 16 want our police officers safe. We want our 17 children safe. But this bill is not the way 18 that we in fact get it done. 19 If we want to protect peace 20 officers and police officers and Department of 21 Corrections officers, we need to provide more 22 training. We need to make sure they have the 23 right equipment. We need to make sure there 24 are staffing levels that are appropriate in 25 Department of Corrections facilities. We need

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(518) 371-8910 1 to make sure that our police are staffed in a 2 way that you don't have one and two cars out 3 in sectors the way we have in New York City 4 right now. You know, you go to a midnight 5 tour and, you know, most of our communities 6 have only got two cars out, two sector cars. 7 And the reality is that, you know, 8 we have not even returned to the level of 9 staffing in the New York City Police 10 Department that we were the morning of 9/11. 11 So here we are, six years later, in a 12 brand-new world where we say to ourselves that 13 we understand the reality of terrorism and 14 where we understand that first responders are 15 going to be critical in both preventing and 16 responding to a possible terrorist attack, and 17 we still haven't even gotten our police 18 department up to a staffing level where we can 19 even pretend to respond to these things let 20 alone, you know, prevent something 21 catastrophic from happening. 22 If you want to in fact protect 23 police officers or you want to protect 24 Department of Corrections officers, you want 25 to protect peace officers -- which we all want

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(518) 371-8910 1 to do -- let's in fact put some money where 2 our mouths are. 3 Where is the bill that in fact will 4 bring the New York City Police Department, put 5 their pay in parity with police officers from 6 around the state? Senator Golden, where is 7 that bill? I would love to see that bill. 8 It's rhetorical, but I would love to see a 9 bill, you being a former police officer in 10 New York City, that says it's not enough to 11 today pay starting police officers in New York 12 City $25,000. 13 We can't get the best and brightest 14 in our police department paying them $25,000. 15 Particularly when we raised the standard to 16 now requiring 60 credits of college to in fact 17 make that happen, and we're going to give 18 people $25,000. To do what you have described 19 yourself as being, you know, the most 20 dangerous job in America. 21 So let's put more money into making 22 sure that we get the best and the brightest, 23 that we get people who have the proper 24 training, that we make sure we have the best 25 equipment for our police officers. Because I

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(518) 371-8910 1 want that for my police officers in the 66 in 2 my district, in the 63 in my district, in the 3 67 in my district, in the 79 in my district, 4 in the 70 in my district. I have the largest 5 command in New York City in my district. And 6 we are, in that command, almost a hundred cops 7 less than we were the morning of 9/11. 8 In a world where we're clear that 9 terrorism can happen, in fact, at any moment, 10 where amber, orange alerts and red alerts and 11 all kinds of things are the order of the day, 12 we still have not gotten back to where we need 13 to in terms of staffing. Let's in fact bring 14 a bill there that would encourage more people 15 and encourage retention into the police 16 department. 17 Now, being that we have some 18 agreement, I'm going to assume, in making sure 19 that we have proper staffing levels because we 20 all want to make our police officers safe, the 21 problem with this bill is that this bill 22 unfortunately does not make us safe. Because 23 in fact we do know that the death penalty is 24 not a deterrent for people committing crimes. 25 And I'm going to quote Roger Hood

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(518) 371-8910 1 in a book called "The Death Penalty: A 2 Worldwide Perspective." This is from the 3 Oxford Clarion Press, third edition, 2002, 4 page 230. And it reads: "Scientific studies 5 have consistently failed to find convincing 6 evidence that the death penalty deters crime 7 more effectively than other punishments. The 8 most recent survey of research findings on the 9 relationship between the death penalty and 10 homicide rates conducted for the United 11 Nations in 1988 and updated in 2002 concluded, 12 and I quote, 'It is not prudent to accept the 13 hypothesis that capital punishment deters 14 murder to a marginally greater extent than 15 does the threat and application of the 16 supposedly lesser punishment of life 17 imprisonment.'" 18 We know it doesn't work. And we 19 talk about, you know, as my colleague Senator 20 Connor has alluded to, you know, what we're 21 hearing from Senator Golden, at least with his 22 statistics, is what we call a spurious 23 relationship. It is that we are not in fact 24 accounting for all of the variables that in 25 fact might be impacting a particular

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(518) 371-8910 1 situation. 2 We know that over the last 12 years 3 as crime has gone down, again, as Senator 4 Connor has indicated, the economy has been up. 5 And there's far more of a relationship between 6 a good economy and deterring crime than there 7 is in the death penalty. 8 So if you in fact want to really 9 stop crime in our communities, what we need to 10 be passing -- and I would love to work with 11 you to pass this -- is a full employment law 12 in the State of New York. Why don't we have a 13 full employment law? Last time there was full 14 employment for black folks in this state, it 15 was slavery. 16 We need a full employment law. 17 Where you have an economic theory that is 18 based on an optimal level of unemployment, so 19 you create a reserve pool of labor, you are 20 certainly by definition relegating some people 21 to the informal economy and the underground 22 economy. Let's have a full employment law, 23 and let's get rid of crime. 24 You can applaud. 25 The other issue that really is

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(518) 371-8910 1 important for us to deal with is the issue of 2 race and class as it relates to the death 3 penalty. That without a doubt -- and this is 4 not even up, really, for debate. This is just 5 a matter of fact -- that African-Americans and 6 Latinos are more likely to be subject to the 7 death penalty than whites. Those killing 8 whites are more likely to be subject to the 9 death penalty than those killing blacks. 10 Point blank, period, end of story. There's 11 not even a debate. 12 However, if you want to hear some 13 of the numbers -- and this is from the Death 14 Penalty Information Center. This is 15 exonerations by race since 1973, exonerations. 16 And this is actually in New York State. 17 Blacks, 62; whites, 48; Latinos, 12; and 18 others, 1. 19 We know, by and large -- and not 20 because, you know, every single police officer 21 is racist. But let's be clear, there's racism 22 in our criminal justice system at almost every 23 single level. I mean, nobody in our 24 districts. In other districts, though, that 25 happens.

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(518) 371-8910 1 And so the reality is we have to 2 compensate for the failures of what happens on 3 the ground. And we certainly cannot continue 4 to let African-Americans and Latinos be the 5 overwhelming victims of an unjust and racist 6 criminal justice system. 7 And we also need to just look at 8 the issue of how many innocent people -- and 9 we'll never really know this -- over the 10 years, how many innocent people have actually 11 been killed by the death penalty. With all 12 the number of exonerations, with the Innocence 13 Project, with all the DNA testing that we're 14 seeing now, almost daily we're seeing people 15 being released based on new DNA tests. And 16 the only thing that's keeping it from 17 happening more often is literally we are not 18 putting more money into things like the 19 Innocence Project to in fact make sure that 20 these tests are going to last. 21 And so I've seen lots of bills come 22 across my desk here in the Senate that talk 23 about using DNA testing. And we ought to use 24 it, but we ought to in fact use it as well, 25 just like we use it to convict people, we

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(518) 371-8910 1 ought to be also using it to exonerate people. 2 And so let's put some money into making sure 3 innocent people aren't the victims of the 4 death penalty in this state. 5 And my last point -- and I know 6 you've all been waiting for this, not because 7 you're so interested, but just because it's my 8 last point -- is really the expense of this. 9 In a body that is so cognizant of how much 10 money we're spending, it is interesting that 11 when we talk about blood killing and revenge, 12 the sky is the limit. 13 And frankly, my Republican 14 colleagues here are nothing but a microcosm of 15 what we see on the national level with, you 16 know, the bloodletting in Iraq. It's that, 17 you know, in the first year that the federal 18 government put $89 billion into Iraq, the 19 fifty states of the United States were in over 20 $70 billion worth of debt, including the State 21 of New York, who had $12 billion worth of 22 debt. And in that year that we had 23 $12 billion of debt, our Republican governor 24 could not get a dime from the Republican 25 president of this country to in fact deal with

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(518) 371-8910 1 Medicaid, deal with housing, deal with 2 education, deal with transportation. 3 And this is the same thing we're 4 falling into now. You want to, you know, ramp 5 up the death penalty, you want to pour all 6 this money into executing people, but where's 7 the money to live? So, you know, we don't 8 fully fund schools, we don't fully fund 9 housing. 10 I'm getting letters now from the 11 New York City Housing Authority about the fact 12 that they're about to go bankrupt and we have 13 no money for affordable housing for people -- 14 many of which, if they're forced out of this 15 housing, will probably wind up on death row. 16 So I guess they'll wind up with 17 state-subsidized housing either way. Maybe 18 that's the plan. 19 But we don't have any money to 20 subsidize affordable housing, but we can put 21 more money, good money after bad into this. 22 This is simply not the way. I want my 23 community to be safe, like I know everybody 24 here wants that we want our communities to be 25 safe. We want our police officers safe, we

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(518) 371-8910 1 want our peace officers safe, we want our 2 corrections officers safe. 3 But unfortunately, Mr. President, 4 this isn't the way. I'll be voting nay. 5 ACTING PRESIDENT MORAHAN: Thank 6 you, Senator Parker. 7 Senator Maziarz. 8 SENATOR MAZIARZ: Thank you, 9 Mr. President. Hopefully to close. 10 Mr. President, this is a great 11 emotional debate. And really what I think 12 we're debating is not the death penalty for 13 those who would kill police officers, although 14 that's specifically what this bill is about. 15 But we know -- and the conversation kind of 16 drifts off here -- this is really a debate 17 about whether there should be a death penalty 18 in the state of New York. 19 And my good friend and colleague 20 Senator Duane read some very emotional 21 statements about individuals just before they 22 were being executed. Unfortunately, we don't 23 have any testimony here about the last words 24 of a 20-year-old college student, young woman, 25 life ahead of her, doing great in life, while

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(518) 371-8910 1 some perpetrator has his hands around her neck 2 and is choking her last breath out of her body 3 and killing her. 4 We don't have the last words of an 5 80-year-old widow living alone as a burglar 6 didn't find what he wanted and put the gun in 7 front of her face and pulled the trigger. We 8 don't know what her last words. 9 We don't know the last words of the 10 7-year-old child who was raped and beaten to 11 death. We don't know what that child's last 12 words were. 13 You know, one reference was made, 14 and it's always made, to the Assembly having 15 hearings. You know, I asked Jill Cahill's 16 sister -- I have referenced Jill Cahill on 17 this floor many times, and will until the day 18 I don't serve here anymore -- she wanted to 19 testify at those Assembly hearings. And they 20 told her, no, not really, your side will be 21 well represented and your testimony will be 22 too graphic when you talk about how her 23 husband poured arsenic down her throat. 24 Poured arsenic down her throat. 25 You know, we talked about the death

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(518) 371-8910 1 penalty being a deterrent. And, you know, 2 again statistics and citing that it's not a 3 deterrent. I don't know, I think it's a 4 deterrent. 5 There was an individual by the name 6 of Arthur Shawcross in Monroe County, the city 7 of Rochester. Arthur Shawcross raped, beat 8 and murdered two young children in the 1960s. 9 And of course with our liberal laws and our 10 liberal judges that we have in the Court of 11 Appeals, eventually Arthur Shawcross gets out 12 of jail. Arthur Shawcross, shortly after he 13 got out of jail, proceeded to murder women in 14 the city of Rochester and in Monroe County. 15 Arthur Shawcross was convicted of 16 murdering 12 women in Monroe County. You know 17 who they were? Drug dealers, prostitutes. He 18 murdered them -- and by the way, he said -- he 19 was convicted of murdering 12; it was more 20 like 20, was one of the comments he made. 21 You know what Arthur Shawcross 22 would do? He would dump the bodies in remote 23 areas of Monroe County, and he would come back 24 days later and sometimes weeks later and he 25 would urinate on the bodies. That's how he

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(518) 371-8910 1 got caught, by returning to the scene of where 2 he dumped those bodies. 3 Is the death penalty a deterrent? 4 I'll tell you this much. If Arthur Shawcross 5 had been executed for murdering, beating and 6 raping those two young children, there would 7 be 12 to 24 women in the city of Rochester 8 maybe alive today. 9 Mr. President, I wholeheartedly 10 support this bill. Thank you. 11 ACTING PRESIDENT MORAHAN: Thank 12 you. 13 Is there any other Senator wishing 14 to be heard? Any other Senator wishing to 15 debate? The debate is closed. 16 Senator Golden, to close. 17 SENATOR GOLDEN: Thank you, 18 Mr. President. 19 I have listened to this debate here 20 today and have heard that the statistics that 21 were used were debunked in January of 2007. 22 Well, I wish my colleague had further went 23 down in LexisNexis to March 29th of 2007, in 24 the Supreme Court, which said most recent -- 25 the study that I've quoted -- the most recent

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(518) 371-8910 1 and most methodical, advanced scholarship on 2 the issue. And it did say, though, that the 3 debate will continue. 4 I listened to Senator Duane read 5 off a number of letters. And each one of the 6 letters said that they were sorry, most of 7 them, and said that they were responsible for 8 their actions. Well, they're darn right they 9 were responsible for their actions. They took 10 a life and they paid for it with their lives. 11 I've listened to -- the most 12 disingenuous portion of this debate was 13 putting forward a 22-page bill, which of 14 course was to create an issue so the Senate 15 Democrats wouldn't have to vote on the death 16 penalty. And then, in their own statement, 17 said they weren't going to vote for the death 18 penalty anyway. 19 It's a joke. Officers are dying 20 across this state, and my colleagues think 21 this is a joke, that we can pass all sorts of 22 legislation with no intention of voting for 23 it. Even if we had voted for your amendment, 24 you would not have voted for the bill. 25 Is that what we're going to tell

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(518) 371-8910 1 the officers and the state troopers, the 2 correction officers? Is that what we're going 3 to all the people that work for government? 4 Is that what we're going to tell them, it's a 5 joke? It's not a joke. 6 Then I heard it was black and white 7 issues. Of course I guess nobody wanted to do 8 their homework on that either. Because when 9 you see the numbers on that in 2005, 60 people 10 were executed in this country. Thirty-eight 11 were white, 19 were black, the rest were 12 Hispanic. In 2006, 53 inmates were executed. 13 Thirty-two were white, 21 were black. And 14 since 1977 to 2005, 1,000 people have been 15 executed. Fifty-eight percent were white, 34 16 percent were black, and 7 percent were 17 Hispanic. 18 I've listened to every argument 19 possible here today, and not one of them, not 20 one of them is legitimate. And the only thing 21 I do know is that we buried 10 officers in a 22 year and a half, five already this year -- 23 five this year -- and 57 across the nation. 24 Fifty-seven officers across the nation. We 25 must think we're somebody different here.

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(518) 371-8910 1 Thirty-eight states have the death penalty, 2 and the United States government has the death 3 penalty. But we think we're different. 4 And that's why we're going to see 5 the deaths of police officers and the deaths 6 of state troopers continue to go up, we're 7 going to see homicides across this state 8 continue to go up, and we're going to start to 9 see crime go out of control here in this state 10 again. Because nobody here wants to take 11 responsibility for their actions. 12 The right thing to do here is to 13 vote for this bill. The right thing is to 14 send a message across this state that we care 15 for our officers and we care for the people 16 that live in this state. The right thing to 17 do here is to vote yes and to send this over 18 to the Assembly and then to the Governor for 19 his signature, and send the right message to 20 the 19.5 million people that live here in this 21 great state and to each and every police 22 officer and state trooper across the cities 23 and state of New York. 24 I vote aye, Mr. President. Thank 25 you.

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(518) 371-8910 1 ACTING PRESIDENT MORAHAN: Thank 2 you, Senator Golden. 3 Read the last section. 4 THE SECRETARY: Section 5. This 5 act shall take effect immediately. 6 ACTING PRESIDENT MORAHAN: Call 7 the roll. 8 (The Secretary called the roll.) 9 ACTING PRESIDENT MORAHAN: 10 Senator Maltese, to explain his vote. 11 SENATOR MALTESE: Mr. President, 12 I've listened to the debate this year and I've 13 listened to the debate over many of these 14 years. I have not heard a single argument 15 from the opposition to this bill that really 16 would explain the lack of a death penalty to 17 the widows and the families of those law 18 enforcement officers that would be protected 19 to some extent by this bill. 20 I heard my good colleague Senator 21 Schneiderman say that in his experience he has 22 not come across people who would be deterred 23 from committing a grievous crime because of 24 the death penalty. 25 Well, I can say in my 3 1/2 years

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(518) 371-8910 1 as a prosecutor, as deputy chief of the 2 homicide bureau, that I spoke to perpetrators 3 and would-be perpetrators who explained how 4 they did not carry a deadly weapon or did not 5 load their firearms because they were 6 concerned that they might be subject to a 7 death penalty. 8 I disagree with those that would 9 say that our correction officers would not be 10 somewhat protected because those same felons, 11 those same perpetrators within the 12 correctional institution would know full well 13 that they would face the ultimate penalty 14 rather than adding a life sentence onto a life 15 sentence onto a life sentence. 16 Mr. President, this bill should be 17 passed here and now so that we can at least 18 say we have attempted to do something and we 19 have done something to protect the lives of 20 our law enforcement officers. 21 Mr. President, I vote aye. 22 ACTING PRESIDENT MORAHAN: Thank 23 you, Senator. Senator Maltese will be 24 recorded in the affirmative. 25 Announce the results.

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(518) 371-8910 1 I'm sorry. Senator 2 Hassell-Thompson, please, to explain her vote. 3 SENATOR HASSELL-THOMPSON: Thank 4 you, Mr. President. To explain my vote. Just 5 very quickly. I'll read this because it will 6 go faster. 7 I'm voting no because I believe 8 sincerely that the system of capital 9 punishment violates the constitutional 10 guarantee of equal protection under the law 11 under the 14th Amendment of the State 12 Constitution. 13 Equal protection requires that the 14 state laws treat an individual in the same 15 manner as others in similar conditions and 16 situations. 17 The death penalty is imposed in a 18 manner that differentiates among defendants 19 based on their race or the race of the victim. 20 The death sentence is disproportionately 21 imposed on minority defendants and in cases 22 where the victim is white. 23 The New York State Constitution 24 provides greater protection against 25 discrimination than the federal Constitution.

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(518) 371-8910 1 And because of that, the death penalty would 2 and should fail under state equal-protection 3 constitutional analysis. 4 The antidiscrimination clause of 5 the State Constitution explicitly outlaws 6 discrimination, no matter what the source, on 7 the basis of race, color or religion. 8 The broader scope of equal 9 protection provided under the New York State 10 Constitution could not countenance a pattern 11 of unequal application of the death penalty 12 where defendants charged with killing white 13 victims are 4.3 times more likely to be 14 sentenced to death as defendants charged with 15 killing blacks, where it is more likely than 16 not that the race of the victim will determine 17 whether a defendant receives a death sentence, 18 and where cases involving black defendants and 19 white victims are more likely to result in a 20 death sentence than cases featuring any other 21 racial combination of defendant and victim. 22 Brooklyn Law School, Ursula 23 Bentele. 24 Mr. President, I will be voting no. 25 ACTING PRESIDENT MORAHAN: Thank

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(518) 371-8910 1 you, Senator Hassell-Thompson. You will be 2 recorded in the negative. 3 Announce the results. 4 THE SECRETARY: Those recorded in 5 the negative on Calendar Number 639 are 6 Senators Adams, Breslin, Connor, Diaz, Dilan, 7 Duane, Gonzalez, Hassell-Thompson, Huntley, 8 L. Krueger, Montgomery, Oppenheimer, Parker, 9 Perkins, Sabini, Sampson, Savino, 10 Schneiderman, Serrano, Smith, Stavisky, 11 Stewart-Cousins, Thompson and Valesky. 12 Ayes, 37. Nays, 24. 13 ACTING PRESIDENT MORAHAN: The 14 bill is passed. 15 Senator Robach. 16 SENATOR ROBACH: We're going to 17 lay 642 aside for the day, Mr. President. 18 ACTING PRESIDENT MORAHAN: 19 Calendar Number 642 is laid aside for the day. 20 Senator Robach. 21 SENATOR ROBACH: Yes, 22 Mr. President. Is there any further business 23 at the desk? 24 ACTING PRESIDENT MORAHAN: There 25 is no further business at the desk, Senator.

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(518) 371-8910 1 SENATOR ROBACH: One quick 2 announcement. There will be an immediate 3 meeting of the Senate Committee on Conference 4 Committees in Room 332. 5 ACTING PRESIDENT MORAHAN: There 6 will be an immediate meeting of the Senate 7 Committee on Conference Committees in the 8 Majority Conference Room, 332. 9 SENATOR ROBACH: There being 10 nothing else, I recommend that we adjourn 11 until Tuesday, May 15th, at 3:00 p.m. Move 12 and also recommend it, Mr. President. 13 ACTING PRESIDENT MORAHAN: On 14 motion, the Senate stands adjourned until 15 Tuesday, May 15th, at 3:00 p.m. 16 (Whereupon, at 6:30 p.m., the 17 Senate adjourned.) 18 19 20 21 22 23 24 25

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(518) 371-8910