Monday, February 14, 2011

1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 February 14, 2011 11 3:12 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR JOHN J. FLANAGAN, Acting President 19 FRANCIS W. PATIENCE, Secretary 20 21 22 23 24 25

Candyco Transcription Service, Inc. 1 P R O C E E D I N G S 2 ACTING PRESIDENT FLANAGAN: The 3 Senate will come to order. 4 I ask everyone present to please 5 rise and repeat the Pledge of Allegiance. 6 (Whereupon, the assemblage recited 7 the Pledge of Allegiance to the Flag.) 8 ACTING PRESIDENT FLANAGAN: 9 Today's invocation will be offered by the 10 Reverend Peter Young -- who is looking quite 11 sporting in his Valentine's sweater -- from 12 Mother Teresa Community in Albany. 13 REVEREND YOUNG: Let us pray. 14 Dear God, on this Valentine's Day 15 You have given us the command to love one 16 another. God, by Your love You made a world 17 where we have become neighbors to each other 18 and we are enabled to love one another. 19 Grant that we too may be, in this 20 Senate, striving toward a way of life in 21 keeping with God's law of love. 22 Amen. 23 ACTING PRESIDENT FLANAGAN: The 24 reading of the Journal. 25 THE SECRETARY: In Senate,

Candyco Transcription Service, Inc. 1 Sunday, February 13, the Senate met pursuant 2 to adjournment. The Journal of Saturday, 3 February 12, was read and approved. On 4 motion, Senate adjourned. 5 ACTING PRESIDENT FLANAGAN: 6 Without objection, the Journal stands approved 7 as read. 8 Presentation of petitions. 9 Messages from the Assembly. 10 Messages from the Governor. 11 Reports of standing committees. 12 The Secretary will read. 13 THE SECRETARY: Senator Bonacic, 14 from the Committee on Judiciary, reports the 15 following nomination. 16 As a judge of the Court of Claims, 17 Stephen Mignano, of Cortlandt Manor. 18 ACTING PRESIDENT FLANAGAN: 19 Senator Bonacic. 20 SENATOR BONACIC: Thank you, 21 Mr. President. 22 I'm pleased today to put forth the 23 nomination of Judge Stephen Mignano to a seat 24 on the Court of Claims. He has presently been 25 a Court of Claims judge. We're going to have

Candyco Transcription Service, Inc. 1 him appointed for another nine years. 2 He was unanimously recommended for 3 reappointment by the New York State Judicial 4 Screening Committee. Today the Judiciary 5 Committee met on his nomination. He was 6 approved unanimously. 7 I met privately with the judge, and 8 I can tell you that his performance as a Court 9 of Claims judge has been exemplary in the 10 past. 11 He is a constituent of Senator 12 Ball, and Senator Ball wishes him well. 13 He resides in Cortlandt Manor, a 14 graduate of Fordham University and Seton Hall 15 Law School. He is joined today by his lovely 16 wife, Barbara, his son David, and 17 daughter-in-law Anylza. 18 I am pleased to move the 19 nomination, Mr. President. 20 ACTING PRESIDENT FLANAGAN: The 21 question is on the confirmation of Stephen 22 Mignano as judge of the Court of Claims. All 23 those in favor signify by saying aye. 24 (Response of "Aye.") 25 ACTING PRESIDENT FLANAGAN:

Candyco Transcription Service, Inc. 1 Opposed, nay. 2 (No response.) 3 ACTING PRESIDENT FLANAGAN: The 4 nomination is approved, and Judge Stephen 5 Mignano is confirmed as a judge of the Court 6 of Claims. 7 Congratulations, Judge. 8 (Applause.) 9 ACTING PRESIDENT FLANAGAN: 10 Reports of select committees. 11 Communications and reports from 12 state officers. 13 Motions and resolutions. 14 Senator Libous. 15 SENATOR LIBOUS: Mr. President, 16 would you please call on Senator Breslin. 17 ACTING PRESIDENT FLANAGAN: 18 Senator Breslin. 19 SENATOR BRESLIN: Mr. President, 20 on behalf of Senator C. Kruger, I move that 21 the following bill be discharged from its 22 respective committee and be recommitted with 23 instructions to strike the enacting clause. 24 That's Bill 2133. 25 ACTING PRESIDENT FLANAGAN: So

Candyco Transcription Service, Inc. 1 ordered. 2 SENATOR BRESLIN: Thank you, 3 Mr. President. 4 ACTING PRESIDENT FLANAGAN: 5 Senator Libous. 6 SENATOR LIBOUS: Thank you, 7 Mr. President. 8 For Senator Johnson, I move that 9 the following bill be discharged from its 10 respective committee and be recommitted with 11 instructions to strike the enacting clause. 12 And that's Senate Number 966, please. 13 ACTING PRESIDENT FLANAGAN: So 14 ordered. 15 Senator Libous. 16 SENATOR LIBOUS: Thank you, 17 Mr. President. 18 I believe that Senator Sampson has 19 a privileged resolution at the desk. I ask 20 that the title be read and we move for its 21 immediate adoption. 22 ACTING PRESIDENT FLANAGAN: The 23 Secretary will read. 24 THE SECRETARY: By Senator 25 Sampson, legislative resolution congratulating

Candyco Transcription Service, Inc. 1 Gavina Guadarrama upon the occasion of 2 celebrating her 100th birthday. 3 ACTING PRESIDENT FLANAGAN: The 4 question is on the resolution. All those in 5 favor signify by saying aye. 6 (Response of "Aye.") 7 ACTING PRESIDENT FLANAGAN: 8 Opposed, nay. 9 (No response.) 10 ACTING PRESIDENT FLANAGAN: The 11 resolution is adopted. 12 Senator Libous. 13 SENATOR LIBOUS: Thank you, 14 Mr. President. There will be an immediate 15 meeting of the Rules Committee in Room 332, 16 and I ask that the Senate stand at ease. 17 ACTING PRESIDENT FLANAGAN: There 18 is an immediate meeting of the Rules Committee 19 in Room 332, and the Senate will stand at 20 ease. 21 (Whereupon, the Senate stood at 22 ease at 3:17 p.m.) 23 (Whereupon, the Senate reconvened 24 at 3:42 p.m.) 25 ACTING PRESIDENT FLANAGAN: The

Candyco Transcription Service, Inc. 1 Senate will come to order. 2 Senator Libous. 3 SENATOR LIBOUS: Thank you, 4 Mr. President. 5 Can we go back to the reports of 6 standing committees so we can read the report 7 of the Rules Committee. 8 ACTING PRESIDENT FLANAGAN: 9 Reports of standing committees. 10 The Secretary will read. 11 THE SECRETARY: Senator Skelos, 12 from the Committee on Rules, reports the 13 following bill direct to third reading: 14 Senate Print 3216, by Senator 15 Martins, an act to amend the Election Law. 16 ACTING PRESIDENT FLANAGAN: 17 Senator Libous. 18 SENATOR LIBOUS: I move to accept 19 the report of the Rules Committee, 20 Mr. President. 21 ACTING PRESIDENT FLANAGAN: All 22 in favor of accepting the report of the Rules 23 Committee signify by saying aye. 24 (Response of "Aye.") 25 ACTING PRESIDENT FLANAGAN:

Candyco Transcription Service, Inc. 1 Opposed, nay. 2 (No response.) 3 ACTING PRESIDENT FLANAGAN: The 4 Rules report is adopted. 5 Senator Libous. 6 SENATOR LIBOUS: Thank you, 7 Mr. President. 8 May we take up the noncontroversial 9 reading of the calendar, please. 10 ACTING PRESIDENT FLANAGAN: The 11 Secretary will read. 12 THE SECRETARY: Calendar Number 13 19, by Senator Maziarz, Senate Print 256, an 14 act to -- 15 SENATOR BRESLIN: Lay it aside. 16 ACTING PRESIDENT FLANAGAN: The 17 bill is laid aside. 18 THE SECRETARY: Calendar Number 19 21, by Senator Fuschillo, Senate Print 527, an 20 act to amend the Penal Law. 21 ACTING PRESIDENT FLANAGAN: Read 22 the last section. 23 THE SECRETARY: Section 3. This 24 act shall take effect on the first of 25 November.

Candyco Transcription Service, Inc. 1 ACTING PRESIDENT FLANAGAN: Call 2 the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes, 59. 5 ACTING PRESIDENT FLANAGAN: The 6 bill is passed. 7 THE SECRETARY: Calendar Number 8 24, by Senator Marcellino, Senate Print 943, 9 an act to amend the Penal Law. 10 ACTING PRESIDENT FLANAGAN: Read 11 the last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect on the first of January 14 next succeeding. 15 ACTING PRESIDENT FLANAGAN: Call 16 the roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes, 59. 19 ACTING PRESIDENT FLANAGAN: The 20 bill is passed. 21 THE SECRETARY: Calendar Number 22 42, by Senator Hannon, Senate Print 960, an 23 act to direct state agencies which apply for 24 federal medical assistance waivers. 25 ACTING PRESIDENT FLANAGAN: Read

Candyco Transcription Service, Inc. 1 the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT FLANAGAN: Call 5 the roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes, 59. 8 ACTING PRESIDENT FLANAGAN: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 43, by Senator Hannon, Senate Print -- 12 SENATOR BRESLIN: Lay it aside. 13 ACTING PRESIDENT FLANAGAN: The 14 bill is laid aside. 15 THE SECRETARY: Calendar Number 16 44, by Senator Seward, Senate Print 2387, an 17 act to amend the Public Health Law. 18 ACTING PRESIDENT FLANAGAN: Read 19 the last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 ACTING PRESIDENT FLANAGAN: Call 23 the roll. 24 (The Secretary called the roll.) 25 THE SECRETARY: Ayes, 59.

Candyco Transcription Service, Inc. 1 ACTING PRESIDENT FLANAGAN: The 2 bill is passed. 3 THE SECRETARY: Calendar Number 4 45, by Senator Martins, Senate Print 2339A, an 5 act to amend the Election Law. 6 ACTING PRESIDENT FLANAGAN: Read 7 the last section. 8 THE SECRETARY: Section 5. This 9 act shall take effect immediately. 10 ACTING PRESIDENT FLANAGAN: Call 11 the roll. 12 (The Secretary called the roll.) 13 ACTING PRESIDENT FLANAGAN: 14 Senator Krueger, to explain her vote. 15 SENATOR LIZ KRUEGER: Thank you, 16 Mr. President. 17 I find myself needing to vote no on 18 this bill today even though I am empathetic 19 with villages who find that there are 20 challenges for them to deal with the new 21 optical scanning machines approved by the 22 State of New York. 23 But fundamentally, even if this is 24 only a two-year delay, disability advocates 25 from throughout the state have raised a

Candyco Transcription Service, Inc. 1 concern that their rights to a private vote on 2 a disability-accessible machine will not be 3 available because of this law. 4 And because I don't believe anyone 5 should ever have their right to vote 6 compromised, I find myself voting no. 7 Thank you, Mr. President. 8 ACTING PRESIDENT FLANAGAN: 9 Senator L. Krueger in the negative. 10 Announce the results. 11 THE SECRETARY: Those recorded in 12 the negative on Calendar Number 45 are 13 Senators Avella, L. Krueger and Oppenheimer. 14 SENATOR OPPENHEIMER: Mr. 15 President, I raised my hand to be recognized. 16 ACTING PRESIDENT FLANAGAN: 17 Senator Oppenheimer, would you like to explain 18 your vote? 19 SENATOR OPPENHEIMER: Yes, I 20 would like to explain my vote. 21 I agree with what Senator Krueger 22 has said, and I think all of us agree with the 23 intent of HAVA and trying to make certainly 24 our disabled citizens able to vote as easily 25 as possible, and we do believe in that.

Candyco Transcription Service, Inc. 1 But I can only recount what 2 happened in the County of Westchester where it 3 seemed like every possible machine that could 4 break did break. And so the villages are 5 saying if we go back to the lever, either just 6 for our village elections -- which are in just 7 a few weeks -- if we could go back to that for 8 one year, a maximum of two years, until we 9 straighten out what the problems are, because 10 they were horrendous. 11 So this is a temporary thing, and 12 it's to address a very immediate problem of 13 the village elections in the third week of 14 March. And I think many villages in our state 15 support this, but certainly I can tell you all 16 of Westchester would support it, because we 17 had quite a mess in Westchester. 18 ACTING PRESIDENT FLANAGAN: 19 Senator Oppenheimer to be recorded in the 20 affirmative. 21 The Secretary will announce the 22 results. 23 THE SECRETARY: In relation to 24 Calendar Number 45, those recorded in the 25 negative are Senators Avella and L. Krueger.

Candyco Transcription Service, Inc. 1 Also Senator Squadron. 2 Ayes, 56. Nays, 3. 3 ACTING PRESIDENT FLANAGAN: The 4 bill is passed. 5 THE SECRETARY: Calendar Number 6 54, by Senator Seward, Senate Print 2371, an 7 act to amend the Vehicle and Traffic Law. 8 ACTING PRESIDENT FLANAGAN: Read 9 the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect immediately. 12 ACTING PRESIDENT FLANAGAN: Call 13 the roll. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes, 59. 16 ACTING PRESIDENT FLANAGAN: The 17 bill is passed. 18 THE SECRETARY: Calendar Number 19 58, by Senator Robach, Senate Print 487, an 20 act to amend the Penal Law. 21 ACTING PRESIDENT FLANAGAN: Read 22 the last section. 23 THE SECRETARY: Section 2. This 24 act shall take effect on the first of 25 November.

Candyco Transcription Service, Inc. 1 ACTING PRESIDENT FLANAGAN: Call 2 the roll. 3 (The Secretary called the roll.) 4 ACTING PRESIDENT FLANAGAN: 5 Senator Robach, to explain his vote. 6 SENATOR ROBACH: Yes, just 7 briefly, Mr. President. 8 I want to thank my colleagues who 9 support this. I know everyone in this chamber 10 cares a great deal about protecting the 11 public, but especially when it comes to young 12 children. 13 And this bill really came from an 14 incident that happened firsthand in my 15 district in the City of Rochester, where 16 parents, who unfortunately their child was 17 involved in an incident once already, were 18 shocked to find out that the offender, who was 19 on probation, had violated more people. 20 And this bill simply will make sure 21 that sentences are not run concurrently, 22 they're run consecutively. And these people 23 that prey on a large number of children quite 24 frankly will get a fairer sentence and be 25 incarcerated longer to protect additional

Candyco Transcription Service, Inc. 1 numbers of our children. 2 I wish we had the magic bullet, but 3 we don't. We know the recidivism rate is very 4 high for pedophiles. And I think this bill 5 goes a long way not only to address the 6 concerns of my constituents who had to go 7 through this, but hopefully will protect 8 children and people all across New York State 9 as we move forward. 10 And I want to thank my colleagues 11 for their support in helping protect the 12 public. 13 ACTING PRESIDENT FLANAGAN: 14 Senator Robach to be recorded in the 15 affirmative. 16 The Secretary will announce the 17 results. 18 THE SECRETARY: Those recorded in 19 the negative on Calendar Number 58 are 20 Senators Hassell-Thompson, Montgomery and 21 Perkins. 22 Ayes, 56. Nays, 3. 23 ACTING PRESIDENT FLANAGAN: The 24 bill is passed. 25 THE SECRETARY: Calendar Number

Candyco Transcription Service, Inc. 1 59, by Senator Klein, Senate Print 1042, an 2 act to amend the Penal Law. 3 ACTING PRESIDENT FLANAGAN: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the 90th day. 7 ACTING PRESIDENT FLANAGAN: Call 8 the roll. 9 (The Secretary called the roll.) 10 ACTING PRESIDENT FLANAGAN: 11 Senator Klein, to explain his vote. 12 SENATOR KLEIN: Thank you, 13 Mr. President. 14 Unfortunately, one of the crimes 15 that continues to rise in many of our 16 communities is car theft. This legislation I 17 think is a very positive approach because it's 18 going to expand the list of predicate 19 misdemeanor convictions in the preceding 20 10 years that would bump up a charge of 21 unauthorized use of a motor vehicle in the 22 third degree. 23 One of the things that seems to 24 happen time and time again is the same people 25 committing these crimes over and over again.

Candyco Transcription Service, Inc. 1 So I think this is a very positive approach to 2 make sure that those who commit the crime of 3 stealing our cars are able to actually 4 eventually do jail time when they actually 5 commit these offenses time and time again. 6 I vote yes, Mr. President. 7 ACTING PRESIDENT FLANAGAN: 8 Senator Klein to be recorded in the 9 affirmative. 10 The Secretary will announce the 11 results. 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 59 are 14 Senators Hassell-Thompson, Montgomery, and 15 Perkins. 16 Ayes, 56. Nays, 3. 17 ACTING PRESIDENT FLANAGAN: The 18 bill is passed. 19 THE SECRETARY: Calendar Number 20 61, by Senator Saland, Senate Print 1417A, an 21 act to amend the Penal Law. 22 ACTING PRESIDENT FLANAGAN: Read 23 the last section. 24 THE SECRETARY: Section 12. This 25 act shall take effect on the first of

Candyco Transcription Service, Inc. 1 November. 2 ACTING PRESIDENT FLANAGAN: Call 3 the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes, 58. Nays, 6 1. Senator Montgomery recorded in the 7 negative. 8 ACTING PRESIDENT FLANAGAN: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 62, by Senator Golden, Senate Print 1423, an 12 act to amend the Criminal Procedure Law and 13 the Executive Law. 14 ACTING PRESIDENT FLANAGAN: Read 15 the last section. 16 SENATOR MONTGOMERY: Explanation. 17 THE SECRETARY: Section 4. This 18 act shall take effect -- 19 SENATOR MONTGOMERY: Mr. 20 President, I asked for an explanation. 21 ACTING PRESIDENT FLANAGAN: 22 Senator Montgomery, would you like the bill 23 laid aside? 24 SENATOR MONTGOMERY: Yes, 25 Mr. President.

Candyco Transcription Service, Inc. 1 ACTING PRESIDENT FLANAGAN: The 2 bill is laid aside. 3 THE SECRETARY: Calendar Number 4 64, by Senator Skelos, Senate Print 1826, an 5 act to amend the Penal Law. 6 ACTING PRESIDENT FLANAGAN: Read 7 the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect on the first of 10 November. 11 ACTING PRESIDENT FLANAGAN: Call 12 the roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes, 59. 15 ACTING PRESIDENT FLANAGAN: The 16 bill is passed. 17 Senator Libous, that completes the 18 noncontroversial reading of the calendar. 19 SENATOR LIBOUS: Thank you, 20 Mr. President. 21 Mr. President, at this time, 22 because Senator Rivera is a new member and he 23 was not in the chamber on a vote, I would ask 24 you for unanimous consent to allow him to 25 explain how he would have liked to vote.

Candyco Transcription Service, Inc. 1 This is a courtesy that I would ask 2 the chamber because he is a new member. It's 3 not something that I want to start getting 4 into a habit of, as we did before. But I 5 would like at this time to ask unanimous 6 consent for our new member to explain his 7 vote. 8 ACTING PRESIDENT FLANAGAN: 9 Senator Rivera. 10 SENATOR RIVERA: Thank you, 11 Senator Libous. 12 I was out of the chamber, but had I 13 been in the chamber I would have voted in the 14 negative on Calendar Number 45, and I would 15 like the record to reflect that. 16 Thank you, Senator Libous. 17 ACTING PRESIDENT FLANAGAN: 18 Senator Rivera will be recorded in the 19 negative. 20 Senator Libous. 21 SENATOR LIBOUS: Thank you, 22 Mr. President. Can we go to the controversial 23 calendar, please. 24 ACTING PRESIDENT FLANAGAN: Ring 25 the bells. The sergeant-at-arms will ring the

Candyco Transcription Service, Inc. 1 bells. 2 (Pause.) 3 SENATOR LIBOUS: Mr. President. 4 ACTING PRESIDENT FLANAGAN: 5 Senator Libous. 6 SENATOR LIBOUS: Are we going to 7 have the reading of the noncontroversial 8 calendar? 9 ACTING PRESIDENT FLANAGAN: 10 Senator Libous, I believe we are on the 11 controversial reading. 12 SENATOR LIBOUS: Or, I'm sorry, 13 the controversial calendar. Thank you. 14 ACTING PRESIDENT FLANAGAN: Thank 15 you. 16 The Secretary will read. 17 THE SECRETARY: Calendar Number 18 19, by Senator Maziarz, Senate Print 256, an 19 act to amend the Penal Law. 20 SENATOR GIANARIS: Explanation, 21 please. 22 ACTING PRESIDENT FLANAGAN: 23 Senator Maziarz, an explanation has been asked 24 for by Senator Gianaris. 25 SENATOR MAZIARZ: Thank you very

Candyco Transcription Service, Inc. 1 much, Mr. President. 2 This bill goes back to the 3 2005-2006 session. It's one that we have 4 passed here in the Senate twice before, by 5 unanimous votes. 6 This bill came to me from a 7 situation that actually took place in my 8 district. It creates a Class B misdemeanor of 9 surreptitious surveillance when, for no 10 legitimate purposes, a person intentionally 11 observes an individual with unaided eyes or 12 with an imaging device while an individual is 13 dressing or undressing and at a time and place 14 when the victim has a reasonable expectation 15 of privacy. These areas include a bedroom, 16 changing room, fitting room, restroom, 17 bathroom, washroom, shower, tanning bed or 18 booth, and any room assigned to a guest in a 19 hotel, motel, spa or inn. 20 In December of 2004 a 21 perpetrator -- it happened to be in my 22 district -- looked over the top of a tanning 23 booth wall to view a young girl who was 24 unclothed at the time. The defendant did this 25 purely for his own gratification. He was

Candyco Transcription Service, Inc. 1 charged with disorderly conduct but was later 2 acquitted because the appeals court held that 3 disorderly conduct was a public, not a private 4 matter. 5 Back in 2003 we passed a similar 6 law to make it a crime to videotape someone in 7 a similar situation. This was called 8 Stephanie's Law. However, it did not allow 9 someone to be charged if the images were not 10 recorded. 11 As we move into an age where there 12 are more and more opportunities for predators 13 to use technology to exploit others, a law 14 like this is needed, we think, now more than 15 ever. 16 Just some other examples. In July 17 of 2009, Erin Andrews, a popular sports 18 reporter, was viewed in her hotel room by a 19 perpetrator using a peephole camera. The 20 video was later sold and placed on the 21 Internet. While the FBI was able to charge 22 the perpetrator with interstate stalking in 23 this case -- because he crossed state lines -- 24 he could not have been charged in New York 25 State because the footage was recorded. What

Candyco Transcription Service, Inc. 1 would have happened if it wasn't recorded, if 2 he was just there viewing it? 3 So I think this bill is very 4 important. I think this bill offers another 5 layer of protection for people who may be in a 6 situation where they for whatever reason -- 7 and in this instance it was a tanning bed 8 where they are unclothed and someone uses some 9 type of recording device unbeknownst to them. 10 Thank you, Mr. President. 11 ACTING PRESIDENT FLANAGAN: Thank 12 you, Senator Maziarz. 13 Senator Gianaris, why do you rise? 14 SENATOR GIANARIS: Would Senator 15 Maziarz yield for a question. 16 ACTING PRESIDENT FLANAGAN: 17 Senator Maziarz, will you yield for a 18 question? 19 SENATOR MAZIARZ: Absolutely, 20 Mr. President. 21 ACTING PRESIDENT FLANAGAN: 22 Senator Gianaris. 23 SENATOR GIANARIS: Thank you, 24 Mr. President. 25 This bill creates a rebuttable

Candyco Transcription Service, Inc. 1 presumption that there is no legitimate 2 purpose for a surveillance under certain 3 circumstances. Would the sponsor agree that a 4 rebuttable presumption is something that is 5 treated as true under the law with respect to 6 the initial charging of a crime? 7 SENATOR MAZIARZ: No, I would not 8 agree to that. 9 SENATOR GIANARIS: Would the 10 sponsor continue to yield. 11 ACTING PRESIDENT FLANAGAN: 12 Senator Maziarz, will you continue to yield? 13 SENATOR MAZIARZ: Yes, 14 Mr. President, I would. 15 SENATOR GIANARIS: Would the 16 sponsor please explain to me what his view of 17 a rebuttable presumption under the law is? 18 SENATOR MAZIARZ: I don't -- 19 ACTING PRESIDENT FLANAGAN: 20 Senator Maziarz. 21 SENATOR MAZIARZ: Through you, 22 Mr. President. I'm not sure exactly sure how 23 there could ever be a legitimate purpose of 24 surreptitiously recording someone without 25 their -- well, obviously, if it's

Candyco Transcription Service, Inc. 1 surreptitious, without their knowledge, in a 2 situation like this young woman was recorded 3 or like this newspaper reporter was recorded. 4 I don't know -- I guess I just don't know 5 under what circumstances that would be agreed 6 to. 7 SENATOR GIANARIS: Would the 8 sponsor continue to yield, Mr. President. 9 ACTING PRESIDENT FLANAGAN: 10 Senator Maziarz. 11 SENATOR MAZIARZ: Certainly, 12 Mr. President. 13 SENATOR GIANARIS: With respect, 14 I don't think that previous answer addressed 15 the question, which is what -- your 16 legislation creates a rebuttable presumption, 17 by its own words, on line 30 of page 2. 18 And I'm simply asking what is your 19 view of what a rebuttable presumption does 20 under the law, since you disagreed with how I 21 characterized it earlier? 22 ACTING PRESIDENT FLANAGAN: 23 Senator Maziarz. 24 SENATOR MAZIARZ: I think I've -- 25 I feel I've already answered the question,

Candyco Transcription Service, Inc. 1 Mr. President. 2 ACTING PRESIDENT FLANAGAN: 3 Senator Gianaris, Senator Maziarz has already 4 answered your question. Would you like him to 5 continue to yield? 6 SENATOR GIANARIS: Yes, please, 7 Mr. President. 8 ACTING PRESIDENT FLANAGAN: 9 Senator Maziarz, will you continue to yield? 10 SENATOR MAZIARZ: Yes, Mr. 11 President. 12 SENATOR GIANARIS: Well, let me 13 say it this way. As I understand it, a 14 rebuttable presumption is something under the 15 law that is presumed to be true and can be 16 rebutted, but is presumed to be true as an 17 initial matter under the law. And in 18 subdivision 2, this legislation creates a 19 rebuttable presumption that surveillance, when 20 it's taking place in certain locations, is 21 conducted for no legitimate purpose. 22 So, for example, if it's in a 23 bedroom, a changing room, a fitting room, a 24 restroom, a toilet, bathroom, washroom, shower 25 or any room assigned to guests or patrons in a

Candyco Transcription Service, Inc. 1 spa, hotel, motel or inn, there is a 2 rebuttable presumption that such person did so 3 for no legitimate purpose. 4 My concern is that a law 5 enforcement officer who is conducting 6 surveillance for law enforcement purposes is 7 not exempted from those terms. So by mere 8 fact of where the surveillance is taking 9 place, this legislation creates a presumption 10 that it is taking place for no legitimate 11 purpose. 12 So a police officer or a detective 13 or anyone that's engaging in an investigation 14 who is surveilling someone will be doing it, 15 as a matter of law, for no legitimate purpose, 16 which would subject them to this new crime, 17 and that they would have to bear the burden of 18 disproving that that's the case. And I think 19 that's a burden we don't want to place on our 20 law enforcement personnel. 21 I guess I would ask whether you 22 agree with my characterization or not. 23 ACTING PRESIDENT FLANAGAN: 24 Senator Maziarz. 25 SENATOR MAZIARZ: Well, through

Candyco Transcription Service, Inc. 1 you, Mr. President, I would answer that by 2 saying that this bill has passed on two 3 different occasions. No law enforcement 4 agency, member of any law enforcement force 5 that I'm aware of has ever raised any 6 objections or raised that particular point. 7 And unfortunately -- I would hope 8 that this wouldn't happen, but perhaps that 9 perpetrator, the perpetrator, acting not in 10 his capacity -- or her capacity or his 11 capacity as a law enforcement officer, could 12 be breaking the law by doing this for their 13 own purposes, not for any legitimate law 14 enforcement purpose. 15 I assume that if it was a 16 legitimate law enforcement purpose, Senator 17 Gianaris, that they would have obtained the 18 necessary warrants or judicial approval to do 19 this. 20 SENATOR GIANARIS: Would the 21 sponsor continue to yield, Mr. President? 22 ACTING PRESIDENT FLANAGAN: 23 Senator Maziarz. 24 SENATOR MAZIARZ: Certainly, 25 Mr. President.

Candyco Transcription Service, Inc. 1 SENATOR GIANARIS: Senator 2 Maziarz may presume that if there's a warrant 3 that it would not be for a legitimate purpose, 4 but his legislation does not presume that. 5 His legislation presumes the exact opposite by 6 creating a presumption that it is not done for 7 a legitimate purpose. 8 Is Senator Maziarz aware that 9 Section 250.65 of the Penal Law creates 10 specific exemptions for law enforcement 11 personnel in very similar circumstances as it 12 relates to other crimes? 13 ACTING PRESIDENT FLANAGAN: 14 Senator Maziarz. 15 SENATOR MAZIARZ: I'm sorry, 16 Senator, could you repeat that? I was -- 17 SENATOR GIANARIS: Yes. The 18 question is whether the sponsor is aware that 19 Section 250.65 creates specific exemptions for 20 law enforcement personnel engaged in 21 activities related to their duties for other 22 crimes, through the similar circumstance? 23 SENATOR MAZIARZ: Through you, 24 Mr. President, I am aware of that, yes. The 25 answer is yes.

Candyco Transcription Service, Inc. 1 SENATOR GIANARIS: And if the 2 sponsor would continue to yield, Mr. 3 President. 4 ACTING PRESIDENT FLANAGAN: 5 Senator Maziarz, will you continue to yield? 6 SENATOR MAZIARZ: I will continue 7 to yield. 8 SENATOR GIANARIS: The question I 9 have, because I understand the importance of 10 preventing inappropriate surreptitious 11 surveillance -- I think we can all agree on 12 that. But if the answer is as simple as 13 including this new section of law in the 14 exemptions for law enforcement personnel, why 15 was that not done? 16 It was something that was raised in 17 committee when it originally came up. It 18 seems to me to be a simple solution to the 19 problem. 20 ACTING PRESIDENT FLANAGAN: 21 Senator Gianaris, is there a question with 22 that or is it just a statement? 23 SENATOR GIANARIS: No, I'm sorry, 24 the question was why was it not included in 25 Section 250.65 of the Penal Law, where other

Candyco Transcription Service, Inc. 1 exemptions for law enforcement personnel are 2 also included. 3 ACTING PRESIDENT FLANAGAN: 4 Senator Maziarz. 5 SENATOR MAZIARZ: Well, through 6 you, Mr. President, thank you. 7 Because the simple answer, I guess, 8 Senator Gianaris, is that I didn't think it 9 was necessary to put it in this bill. I think 10 it's very comprehensive. I think that every 11 one of our colleagues in 2005-2006 felt that 12 this bill was sufficient in its current form. 13 SENATOR GIANARIS: Thank you, 14 Senator Maziarz. 15 SENATOR MAZIARZ: Just through 16 you, Mr. President, or on the bill -- 17 ACTING PRESIDENT FLANAGAN: 18 Senator Maziarz. 19 SENATOR MAZIARZ: -- I wish we 20 could get your former colleagues in the other 21 house to agree to that, Senator Gianaris. 22 Thank you, Mr. President. 23 ACTING PRESIDENT FLANAGAN: 24 Senator Gianaris. 25 SENATOR GIANARIS: On the bill,

Candyco Transcription Service, Inc. 1 Mr. President. 2 ACTING PRESIDENT FLANAGAN: 3 Senator Gianaris, on the bill. 4 SENATOR GIANARIS: I would just 5 like to reiterate that this is a bill with a 6 worthy goal but one that is drafted in a way 7 that creates an undue burden on our law 8 enforcement personnel, who conduct 9 surveillance on a regular basis. There's an 10 easy fix which exists in the law for so many 11 other crimes where we realize that it serves 12 at cross purposes with -- or it would fringe 13 upon our law enforcement personnel doing their 14 duties, and there are exemptions. 15 This issue was raised in committee 16 as the bill went through the legislative 17 process. It would have been very easy to fix. 18 I have not heard an answer that specifically 19 addresses why this drafting issue was not 20 corrected. 21 I heard the sponsor talk about the 22 lack of opposition from law enforcement 23 organizations. I would argue it's because of 24 the second problem he raised, which is that 25 the other house hasn't shown any willingness

Candyco Transcription Service, Inc. 1 to consider or pass this bill, that it hasn't 2 hit their radar. That doesn't mean we should 3 pass legislation that's poorly drafted and 4 would hurt our law enforcement personnel, who 5 we should be helping rather than hurting. 6 And for that reason, Mr. President, 7 I'll be voting in the negative. 8 ACTING PRESIDENT FLANAGAN: Thank 9 you, Senator Gianaris. 10 Senator Saland. 11 SENATOR SALAND: Thank you, 12 Mr. President. Mr. President, on the bill. 13 ACTING PRESIDENT FLANAGAN: 14 Senator Saland, on the bill. 15 SENATOR SALAND: I would 16 respectfully submit, notwithstanding Senator 17 Gianaris's pointed questions, that in fact 18 what we're evidencing is -- or what we're 19 witnessing is a bit of sophistry. 20 If a presumption is rebuttable, in 21 fact what happens is it is presumed, under 22 Senator Maziarz's bill, that the person did so 23 for no legitimate reason, observed through the 24 naked eye for no legitimate reason. 25 Who determines whether or not to go

Candyco Transcription Service, Inc. 1 forward with respect to that rebuttable 2 presumption? Well, that would be the 3 prosecution, that would be a determination 4 that was going to be made by law enforcement 5 authorities, whether in fact that 6 individual -- who might be a member of law 7 enforcement, a policeman, a deputy sheriff -- 8 whether in fact he was doing it for a 9 legitimate purpose. 10 If in fact he wasn't doing it for a 11 legitimate purpose, then the presumption would 12 be applicable. If he or she was a voyeur, 13 then why should they be treated any 14 differently than anybody else? 15 But were they doing it for 16 legitimate purposes, were they doing it 17 pursuant to some law enforcement 18 investigation, there is nobody who's going to 19 claim that in fact they're in violation of 20 this law. It is a bit of trying to figure out 21 almost like how many specious arguments can 22 you put together for purposes of creating a 23 problem where none really exists. 24 We're not talking about 25 surveillance here with the use of some kind of

Candyco Transcription Service, Inc. 1 technology or equipment, we're talking about 2 whether in fact a law enforcement official -- 3 who may, under certain circumstances, be 4 called upon to observe -- is doing it lawfully 5 or unlawfully. That decision is going to be 6 made very simply. Either there's going to be 7 a criminal complaint that's going to be filed 8 by the district attorney's office because in 9 fact the individual exceeded their authority, 10 was doing for some prurient interest, or in 11 fact they're going to say there was a 12 perfectly legitimate reason for that person to 13 have done so. 14 I don't see the problem. As was 15 mentioned by Senator Maziarz, this bill has 16 passed unanimously previously. And I see no 17 reason why it shouldn't pass unanimously again 18 this afternoon. 19 Thank you, Mr. President. 20 ACTING PRESIDENT FLANAGAN: Thank 21 you, Senator Saland. 22 Is there any other Senator wishing 23 to be heard? 24 Hearing none, the debate is closed. 25 The Secretary will ring the bell.

Candyco Transcription Service, Inc. 1 Read the last section. 2 THE SECRETARY: Section 3. This 3 act shall take effect on the first of 4 November. 5 ACTING PRESIDENT FLANAGAN: Call 6 the roll. 7 (The Secretary called the roll.) 8 ACTING PRESIDENT FLANAGAN: The 9 Secretary will announce the results. 10 THE SECRETARY: Those recorded in 11 the negative on Calendar Number 19 are 12 Senators Gianaris, Hassell-Thompson, Huntley, 13 L. Krueger, Montgomery, Perkins, Rivera and 14 Squadron. 15 Absent from voting: Senator 16 Parker. 17 Ayes, 51. Nays, 8. 18 ACTING PRESIDENT FLANAGAN: The 19 bill is passed. 20 The Secretary will continue to 21 read. 22 THE SECRETARY: Calendar Number 23 43, by Senator Hannon, Senate Print 961, an 24 act to amend the Public Health Law. 25 SENATOR BRESLIN: Explanation,

Candyco Transcription Service, Inc. 1 please. 2 ACTING PRESIDENT FLANAGAN: 3 Senator Hannon, an explanation has been 4 requested by Senator Breslin. 5 SENATOR HANNON: Thank you. 6 This bill would provide that the 7 Department of Health must post on its website 8 the Medicaid state plan and any changes 9 thereto. 10 ACTING PRESIDENT FLANAGAN: 11 Senator Breslin, why do you rise? 12 SENATOR BRESLIN: Thank you, 13 Mr. President. Would the sponsor yield to a 14 question or two? 15 ACTING PRESIDENT FLANAGAN: 16 Senator Hannon, will you yield? 17 SENATOR HANNON: Yes. 18 ACTING PRESIDENT FLANAGAN: 19 Senator Breslin, before you -- Senator 20 Breslin -- if we can have a little order in 21 the chamber, it might make this go a little 22 more smoothly. 23 Senator Breslin. 24 SENATOR BRESLIN: Through you, 25 Mr. President. Under federal law, when does

Candyco Transcription Service, Inc. 1 an amendment to the Medicaid state law take 2 effect? 3 SENATOR LIBOUS: Excuse me, 4 Mr. President. 5 ACTING PRESIDENT FLANAGAN: 6 Senator Libous. 7 SENATOR LIBOUS: Senator Breslin, 8 if you would bear with me. 9 The conversations in the chamber 10 are supposed to be only of those who have the 11 floor, not of those who are not on the floor 12 or those who are sitting in the back seats. 13 If you have conversations you're 14 leading, please leave the chamber. The 15 conversations are supposed to be only among 16 the members on the floor called on by the 17 president. 18 Thank you, Mr. President. 19 SENATOR BRESLIN: And thank you, 20 Senator Libous. 21 ACTING PRESIDENT FLANAGAN: 22 Senator Breslin, have you finished your 23 question? 24 SENATOR BRESLIN: Well, I'll 25 repeat it. Under federal law, when does an

Candyco Transcription Service, Inc. 1 amendment to the Medicaid state plan take 2 effect? 3 SENATOR HANNON: When the CMS 4 division of the federal government approves 5 it. 6 SENATOR BRESLIN: And -- 7 ACTING PRESIDENT FLANAGAN: 8 Senator Breslin, would you like Senator Hannon 9 to continue to yield? 10 SENATOR BRESLIN: If he would, 11 please. It's somewhat difficult having 12 Senator Hannon right behind me and to address 13 the floor. 14 ACTING PRESIDENT FLANAGAN: 15 Senator Breslin, if you address it through the 16 chair, it will go just fine. 17 SENATOR BRESLIN: Thank you very 18 much. 19 And, Senator Hannon -- through you, 20 Mr. President -- how long can that waiver 21 process take? 22 SENATOR HANNON: That can take 23 any number of months or years. It can be a 24 very extended period, unfortunately. 25 SENATOR BRESLIN: And through

Candyco Transcription Service, Inc. 1 you, Mr. President, will the sponsor continue 2 to yield. 3 ACTING PRESIDENT FLANAGAN: 4 Senator Hannon, will you continue to yield? 5 SENATOR HANNON: That I do. 6 SENATOR BRESLIN: When the state 7 budgets -- how are Medicaid changes budgeted 8 for? 9 SENATOR HANNON: Are you asking 10 how the state changes the Medicaid plan? 11 SENATOR BRESLIN: Yes. 12 SENATOR HANNON: And how it 13 budgets for the changes in that Medicaid plan? 14 SENATOR BRESLIN: Mm-hmm. 15 SENATOR HANNON: I would say by 16 passage of the appropriations bill that deals 17 with that specific matter and by the passage 18 of the Article 7 bill that deals with 19 implementation of that matter. And that's 20 done on an annual basis presumably by April 1 21 of each year. 22 SENATOR BRESLIN: Again through 23 you, Mr. President, will the sponsor continue 24 to yield? 25 ACTING PRESIDENT FLANAGAN:

Candyco Transcription Service, Inc. 1 Senator Hannon, will you continue to yield? 2 SENATOR HANNON: Yes. 3 SENATOR BRESLIN: I was really 4 referring to situations that involve 5 retroactivity. And does this bill in any way 6 complicate the possibility of retroactivity? 7 SENATOR HANNON: No. In fact, 8 this takes questions of retroactivity and 9 makes it simpler for the affected individuals 10 who will have to implement the changes in the 11 Medicaid plan. Because in a number of 12 instances it's not clear when CMS will grant 13 that approval. 14 But also it is not clear when the 15 state will submit amendments to the Medicaid 16 plan. There are amendments that have been 17 passed as statute by this body, by the other 18 body, signed by the Governor, and have yet to 19 be submitted to the federal government for 20 approval. 21 Now, this is a switch than just a 22 few years ago when the state had, as a matter 23 of right, the ability just to file changes to 24 the Medicaid plan and it was effected. The 25 federal government has changed the regulation

Candyco Transcription Service, Inc. 1 so that nobody -- nothing can be effective now 2 until it approves it. 3 Now, you're going to say 4 retroactivity. But what happens when a 5 provider -- a home healthcare agency, a group 6 of nursing homes, a group of hospitals, any 7 type of professionals that will be subject to 8 Medicaid -- when they are affected and they 9 don't know whether or not it's been submitted? 10 So that all of a sudden, as is the case that 11 CMS just approved on March 1, 2010, payments 12 for prenatal care assistance services -- 13 which, by the statute that the state had, were 14 effective in 2007. 15 Unless you follow what my proposed 16 law would be, people who might be affected by 17 that don't have warning when it's been 18 submitted. So what I'm trying to do is have a 19 transparency. 20 Now, I will tell you this is not an 21 academic matter. The Governor, in his wisdom, 22 has said to the Legislature and to the 23 Medicaid Redesign Team the $2.85 billion that 24 he proposes to cut from health services paid 25 for by Medicaid in this state for the next

Candyco Transcription Service, Inc. 1 year are subject to the Medicaid Redesign 2 Team's recommendations. So now we've moved 3 what would ordinarily be budget conferences 4 off to this team for at least a month, then 5 we're going to go through a very shortened 6 process of adopting a budget, hopefully 7 nowhere near last year's travesty when, in an 8 emergency spending bill towards the end of the 9 session, the budget for health was squeezed 10 into it, it was adopted, and people to this 11 day are still asking exacting what was passed, 12 what did it mean, how did it change Medicaid. 13 What I'm proposing to do is we're 14 going to take a system that has unfortunately 15 become murky and opaque over the past few 16 years, make it public and let everybody know 17 what is happening, what is pending, and when 18 it's approved. 19 SENATOR BRESLIN: Through you, 20 Mr. President, possibly if I -- would the 21 sponsor continue to yield. 22 ACTING PRESIDENT FLANAGAN: 23 Senator Hannon, will you continue to yield? 24 SENATOR HANNON: Yes. 25 SENATOR BRESLIN: I think if I

Candyco Transcription Service, Inc. 1 use an example, nursing homes, for instance, 2 have been waiting years to have the federal 3 government approve rates. If there was an 4 approval -- 5 ACTING PRESIDENT FLANAGAN: 6 Excuse me. Senator Breslin, it would be very 7 helpful for the stenographer if you could face 8 your microphone so she can properly hear you. 9 SENATOR BRESLIN: And please 10 excuse me, Senator Hannon. 11 Nursing homes in New York State 12 have been waiting years for their rate 13 changes. They budgeted for these rates. They 14 are expecting these rates to be approved. If 15 your bill passes, will they have any problems 16 in receiving the approved rates because there 17 won't be a retroactive part of it? 18 SENATOR HANNON: First of all, 19 you're presuming there won't be a retroactive 20 part of it. People will deal with 21 retroactivity as they have always dealt with 22 it. We pass statutes, tax statutes and 23 reimbursement statutes, that are retroactive. 24 And they need to be clear. 25 Under my bill, what will happen is

Candyco Transcription Service, Inc. 1 there will be more clarity than there is at 2 present, and I don't believe that there will 3 be any problems whatsoever. And in fact, 4 since the time I've introduced this bill, 5 there have been no comments by any of the 6 affected entities to that effect. 7 SENATOR BRESLIN: Thank you, 8 Mr. President. 9 ACTING PRESIDENT FLANAGAN: Is 10 there any other Senator wishing to be heard? 11 Hearing none, the debate is closed. 12 The Secretary will ring the bell. 13 The Secretary will read the last 14 section. 15 THE SECRETARY: Section 2. This 16 act shall take effect on the 60th day. 17 ACTING PRESIDENT FLANAGAN: Call 18 the roll. 19 (The Secretary called the roll.) 20 ACTING PRESIDENT FLANAGAN: The 21 Secretary will announce the results. 22 THE SECRETARY: Those recorded in 23 the negative on Calendar Number 43 are 24 Senators Breslin, Huntley, L. Krueger and 25 Squadron.

Candyco Transcription Service, Inc. 1 Absent from voting: Senators 2 Adams, Parker and Stavisky. 3 Ayes, 53. Nays, 4. 4 ACTING PRESIDENT FLANAGAN: The 5 bill is passed. 6 THE SECRETARY: Calendar Number 7 62, by Senator Golden, Senate Print 1423, an 8 act to amend the Criminal Procedure Law and 9 the Executive Law. 10 SENATOR MONTGOMERY: Explanation. 11 ACTING PRESIDENT FLANAGAN: 12 Senator Golden, Senator Montgomery has 13 requested an explanation. 14 SENATOR GOLDEN: Thank you, 15 Mr. President. 16 This bill permits the disclosure of 17 arrests and prosecution records of applicants 18 for employment in the police department and 19 law enforcement agencies. 20 This has been passed in 2006 and 21 2008. It allows for disclosure of all 22 criminal histories of all applicants for 23 employment by the police department and other 24 law enforcement agencies. 25 It is vitally important that police

Candyco Transcription Service, Inc. 1 departments and other law enforcement agencies 2 have the ability to conduct those background 3 checks of potential employees. Current law 4 provides an ability to do so when an applicant 5 is potentially a police officer or a peace 6 officer. Law enforcement agencies may, in 7 that instance, receive criminal histories that 8 include sealed cases terminated in favor of 9 accused. 10 Employment by police agencies is by 11 definition sensitive in nature. Civilian 12 employees may have access to highly 13 confidential information and may occupy 14 positions of trust. Police agencies are 15 responsible for both conventional crime 16 fighting and counterterrorism efforts. Drug 17 task forces, gang task forces, organized crime 18 task forces, all of these different task 19 forces are available to the police department 20 and have highly sensitive material. And we 21 ask that a background check be made on all 22 employees similar to that of police officers 23 and peace officers. 24 ACTING PRESIDENT FLANAGAN: Thank 25 you, Senator Golden.

Candyco Transcription Service, Inc. 1 Senator Montgomery, why do you 2 rise? 3 SENATOR MONTGOMERY: Yes, 4 Mr. President. Would the sponsor, Senator 5 Golden, answer a question, clarification, 6 yield for a question? 7 ACTING PRESIDENT FLANAGAN: 8 Senator Golden, will you yield? 9 SENATOR GOLDEN: Yes, 10 Mr. President. 11 SENATOR MONTGOMERY: Senator 12 Golden, you mentioned in your remarks that the 13 law enforcement currently already is 14 authorized to make complete background checks 15 on those persons who are looking to become 16 uniformed police officers. Is that not 17 correct? 18 SENATOR GOLDEN: That's correct, 19 yes, Senator. 20 SENATOR MONTGOMERY: If Senator 21 Golden would continue to yield. 22 ACTING PRESIDENT FLANAGAN: 23 Senator Golden, will you continue to yield? 24 SENATOR GOLDEN: Yes, 25 Mr. President.

Candyco Transcription Service, Inc. 1 SENATOR MONTGOMERY: However, 2 this particular bill would now extend that 3 authority to have sealed records in 4 noncriminal convictions; is that not right? 5 Isn't that a change in this current law, 6 proposed? 7 SENATOR GOLDEN: It's not a 8 change, Mr. President. It is the same as the 9 2006 and 2008 bill. 10 SENATOR MONTGOMERY: Mr. 11 President, if Senator Golden would continue to 12 yield. 13 ACTING PRESIDENT FLANAGAN: 14 Senator Golden, will you continue to yield? 15 SENATOR GOLDEN: Yes, 16 Mr. President. 17 SENATOR MONTGOMERY: Senator 18 Golden, I'm afraid that you misunderstood my 19 question. I intended to ask you whether or 20 not this bill would open up sealed records 21 even for noncriminal convictions. 22 SENATOR GOLDEN: And the answer 23 is yes, Mr. President. 24 SENATOR MONTGOMERY: Okay. And 25 one last question, Mr. President.

Candyco Transcription Service, Inc. 1 ACTING PRESIDENT FLANAGAN: 2 Senator Golden, will you yield to one last 3 question from Senator Montgomery? 4 SENATOR GOLDEN: Yes, 5 Mr. President. 6 ACTING PRESIDENT FLANAGAN: 7 Senator Montgomery. 8 SENATOR MONTGOMERY: Yes. And is 9 it not correct that this legislation also now 10 includes or you are looking to include all 11 people who are seeking nonuniform positions, 12 civilian positions in law enforcement, to open 13 up, unseal all records? 14 SENATOR GOLDEN: Yes, 15 Mr. President. 16 If I may add, Mr. President, in the 17 memo, memorandum of support from the New York 18 City Mayor's office, it says, on the bottom of 19 the last paragraph on page 1: "Further, in no 20 cases are records of potential civilian 21 employees of law enforcement agencies made 22 available. Employment by a police agency is 23 by definition sensitive in nature." 24 So if the question is would those 25 records be unsealed and could people have

Candyco Transcription Service, Inc. 1 access to those sealed records, the answer is 2 no. 3 SENATOR MONTGOMERY: Thank you, 4 Senator Golden. 5 SENATOR GOLDEN: You're welcome. 6 SENATOR MONTGOMERY: On the bill, 7 Mr. President. 8 ACTING PRESIDENT FLANAGAN: 9 Senator Montgomery, on the bill. 10 SENATOR MONTGOMERY: Every year 11 we seem to be attempting to provide access to 12 sealed records by more and more agencies. And 13 certainly law enforcement agencies already 14 have the option to unseal records. 15 However, there is a reason for the 16 judicial system allowing for the sealing of 17 records. It is my understanding that the 18 purpose is to make sure that indiscretions 19 that end up being either nonviolent, 20 nonprosecutorial or that are done at a very, 21 very young age and we would like to see a 22 young person have access and an option to 23 continuing their lives, that we seal the 24 records. 25 However, law enforcement can unseal

Candyco Transcription Service, Inc. 1 all records. We understand that. Now what 2 Senator Golden is trying to do is to allow 3 records that are clearly noncriminal 4 convictions, they are considered violations, 5 they now want to unseal violations. And he 6 wants to give the same latitude to unseal all 7 records, including violations, for civilian 8 employees, for people seeking civilian 9 employment. 10 So I'm going to vote no on this 11 legislation. I think it has absolutely 12 nothing to do with homeland security, 13 notwithstanding the mayor's yellow and red 14 flags that he always raises. 15 I think that this is a violation of 16 the rights of people who really should not be 17 prevented from employment because they have a 18 noncriminal conviction sometime in their past 19 which has been sealed. And if they're looking 20 for civilian employment and they have 21 noncriminal violations that have been sealed, 22 we should not be preventing them from 23 employment even with law enforcement. 24 So, Mr. President, I vote no on 25 this legislation. And I ask that my

Candyco Transcription Service, Inc. 1 colleagues join me in rejecting this 2 legislation that is, on face, practically 3 unconstitutional. 4 Thank you, Mr. President. 5 ACTING PRESIDENT FLANAGAN: Thank 6 you, Senator Montgomery. 7 Senator Golden. 8 SENATOR GOLDEN: Just in 9 clarification -- 10 ACTING PRESIDENT FLANAGAN: 11 Senator Golden, excuse me. 12 Senator Espaillat, why do you rise? 13 SENATOR ESPAILLAT: Yes, 14 Mr. President. Would Senator Golden yield for 15 a couple of questions? 16 ACTING PRESIDENT FLANAGAN: 17 Senator Golden, you have the floor. Are you 18 on the bill? Would you yield to Senator 19 Espaillat? 20 SENATOR GOLDEN: Well, for 21 clarification, then I'll take the question. 22 For clarification, unsealing a 23 record doesn't mean you're not going to get a 24 job. There are many police officers, when the 25 police department unseals their records,

Candyco Transcription Service, Inc. 1 they've have been arrested for misdemeanors 2 and in some cases felonies, and they go on to 3 become police officers on the New York City 4 Police Department and around the State of 5 New York. It does not deny you the ability to 6 get a job. 7 It does open up the ability for the 8 police department to see what type of 9 character you are, what type of person you 10 are, what is your background. And I think the 11 police department is entitled to that, and to 12 make sure that you are honest when you made 13 out your application and that you did 14 everything correctly. That's all that does. 15 Yes, sir. Yes, Mr. President. 16 ACTING PRESIDENT FLANAGAN: 17 Senator Espaillat. 18 SENATOR ESPAILLAT: Yes. These 19 cases would also -- would they include 20 civilian positions for folks that have been 21 arrested in the past and yet they have 22 concluded in a dismissal? 23 SENATOR GOLDEN: Yes, sir. 24 SENATOR ESPAILLAT: So would the 25 Senator continue to yield?

Candyco Transcription Service, Inc. 1 ACTING PRESIDENT FLANAGAN: 2 Senator Golden, would you continue to yield? 3 SENATOR GOLDEN: Yes, 4 Mr. President. 5 SENATOR ESPAILLAT: So if a young 6 person committed an infraction or was arrested 7 for an infraction or a misdemeanor charge and 8 that young person was -- later on the case was 9 dismissed, that person, if they apply for a 10 civilian position within the police 11 department, will now be subject to have that 12 record be shown, that dismissal be shown to 13 the police department? 14 SENATOR GOLDEN: That is correct, 15 Mr. President. It's done for police officers, 16 it's done for peace officers, and it would be 17 done for secretaries, it would be done for the 18 fingerprint technician, it would be done for 19 people that would have low-level and 20 high-level information. That we, I believe, 21 in this day and age should know who's on the 22 police departments and who's working inside 23 our precincts and in our cyber intelligence 24 divisions. 25 SENATOR ESPAILLAT: Would the

Candyco Transcription Service, Inc. 1 Senator continue to yield, Mr. President? 2 ACTING PRESIDENT FLANAGAN: 3 Senator Golden, will you continue to yield? 4 SENATOR GOLDEN: Yes, 5 Mr. President. 6 SENATOR ESPAILLAT: So if someone 7 was arrested as a youthful offender for car 8 theft and that person then went ahead and his 9 case was dismissed, and now ten years later he 10 applies to become a clerk within the police 11 department, that person will now have to 12 compete with someone else who perhaps has not 13 been arrested, although his case was 14 dismissed, that may be considered a factor in 15 deciding whether or not that person will get 16 the job? 17 SENATOR GOLDEN: Mr. President, 18 through you. Again, there are many people on 19 the New York City Police Department and in 20 civilian life within the police departments 21 that have had past felonies committed and are 22 still police officers and working as civilians 23 for the New York City Police Department. 24 The answer is yes. And it did not 25 deny them the ability to get that job.

Candyco Transcription Service, Inc. 1 SENATOR ESPAILLAT: Mr. 2 President, I believe this bill -- 3 ACTING PRESIDENT FLANAGAN: 4 Senator Espaillat, are you asking Senator 5 Golden to continue to yield? 6 SENATOR ESPAILLAT: No, no, no. 7 This is on the bill. 8 ACTING PRESIDENT FLANAGAN: 9 Senator Golden had the floor. 10 Senator Golden, are you finished 11 with your remarks? 12 SENATOR GOLDEN: Yes, 13 Mr. President. 14 ACTING PRESIDENT FLANAGAN: 15 Senator Espaillat on the bill. 16 SENATOR ESPAILLAT: Yes, 17 Mr. President. Thank you. 18 This bill overreaches. I would 19 consider this if it was based on conviction. 20 I think that the police department, peace 21 officers -- the police department or anybody 22 else has the right to inquire into somebody's 23 past and determine whether or not that person 24 has been convicted of a crime -- a 25 misdemeanor, a felony.

Candyco Transcription Service, Inc. 1 But to have the police department 2 now determine the future employment of someone 3 based potentially on an arrest that resulted 4 in a dismissal is overreaching, and I will be 5 voting no on this bill. 6 ACTING PRESIDENT FLANAGAN: Thank 7 you, Senator Espaillat. 8 Are there any other Senators 9 wishing to be heard? 10 Hearing none, the debate is closed. 11 The Secretary will ring the bell. 12 The Secretary will read the last 13 section. 14 THE SECRETARY: Section 4. This 15 act shall take effect on the 90th day. 16 ACTING PRESIDENT FLANAGAN: Call 17 the roll. 18 (The Secretary called the roll.) 19 ACTING PRESIDENT FLANAGAN: The 20 Secretary will announce the results. 21 THE SECRETARY: Those recorded in 22 the negative on Calendar Number 62 are 23 Senators Adams, Espaillat, Hassell-Thompson, 24 Huntley, Montgomery, Peralta, Perkins and 25 Rivera.

Candyco Transcription Service, Inc. 1 Absent from voting: Senators 2 Parker and Smith. 3 Ayes, 50. Nays, 8. 4 ACTING PRESIDENT FLANAGAN: The 5 bill is passed. 6 Senator Libous, that completes the 7 controversial reading of the calendar. 8 SENATOR LIBOUS: Could we go to 9 the noncontroversial reading of the 10 supplemental calendar. 11 ACTING PRESIDENT FLANAGAN: The 12 Secretary will make the substitution. 13 THE SECRETARY: In relation to 14 Calendar Number 83, Senator Martins moves to 15 discharge, from the Committee on Rules, 16 Assembly Bill Number 3093B and substitute it 17 for the identical Senate Bill Number 3216, 18 Third Reading Calendar 83. 19 ACTING PRESIDENT FLANAGAN: 20 Substitution ordered. 21 The Secretary will read. 22 THE SECRETARY: Calendar Number 23 83, by Member of the Assembly Schimel, 24 Assembly Print Number 3093B, an act to amend 25 the Election Law.

Candyco Transcription Service, Inc. 1 ACTING PRESIDENT FLANAGAN: Read 2 the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT FLANAGAN: Call 6 the roll. 7 (The Secretary called the roll.) 8 ACTING PRESIDENT FLANAGAN: 9 Senator Krueger, to explain her vote. 10 SENATOR LIZ KRUEGER: Thank you, 11 Mr. President. 12 A little earlier on the active list 13 we passed a variation on this bill and I rose 14 then to say why I would vote no, which is that 15 we will continue to be disenfranchising the 16 voters of various villages who may be too 17 disabled to be able to cast their vote in a 18 private manner on the old type of pre-HAVA 19 machines. 20 And it is for the same reason, 21 despite the fact this is a more limited bill, 22 that I will be voting no on this bill as well. 23 Thank you, Mr. President. 24 ACTING PRESIDENT FLANAGAN: 25 Senator Krueger, thank you.

Candyco Transcription Service, Inc. 1 Those Senators wishing to be 2 recorded in the negative, if you could please 3 raise your hands again. 4 SENATOR PERKINS: Point of order, 5 Mr. President. 6 ACTING PRESIDENT FLANAGAN: 7 Senator Perkins, why do you rise? 8 SENATOR PERKINS: I'm trying to 9 be clear about which bill we're voting on. I 10 thought this was -- we took this bill earlier 11 based on a substitution that we had a Rules 12 Committee meeting with. Is this the same 13 bill? 14 ACTING PRESIDENT FLANAGAN: 15 Senator Perkins, we are on Supplemental 16 Calendar 8A, Calendar Number 83. The bill has 17 been substituted, having already passed in the 18 Assembly. 19 SENATOR PERKINS: Am I to 20 understand this is the Rules version of that 21 bill? 22 ACTING PRESIDENT FLANAGAN: Yes. 23 SENATOR PERKINS: Okay, thank 24 you. 25 THE SECRETARY: In relation to

Candyco Transcription Service, Inc. 1 Calendar Number 83, those Senators recorded in 2 the negative are Senators Avella, L. Krueger, 3 Parker, Rivera and Squadron. 4 Ayes, 55. Nays, 5. 5 ACTING PRESIDENT FLANAGAN: The 6 bill is passed. 7 Senator Libous, that completes the 8 noncontroversial reading of the calendar. 9 (Applause.) 10 SENATOR LIBOUS: Thank you, 11 Mr. President. Before we -- I guess, 12 Mr. President, the excitement is on the floor 13 because I was about to announce that Senator 14 Martins passed his first and second bill 15 today. 16 Congratulations. 17 (Applause.) 18 SENATOR LIBOUS: Mr. President, 19 would you call on Senator Hassell-Thompson, 20 please, for an announcement. 21 ACTING PRESIDENT FLANAGAN: 22 Senator Hassell-Thompson for an announcement. 23 SENATOR HASSELL-THOMPSON: Thank 24 you, Mr. President. 25 There will be an immediate meeting

Candyco Transcription Service, Inc. 1 of the Democratic Conference in Room 312. 2 ACTING PRESIDENT FLANAGAN: Thank 3 you, Senator Hassell-Thompson. 4 Senator Libous. 5 SENATOR LIBOUS: Thank you, 6 Mr. President. 7 On behalf of Senator Skelos, I hand 8 up the following committee assignments and ask 9 that they be filed in the Journal. 10 ACTING PRESIDENT FLANAGAN: So 11 ordered. 12 Senator Libous. 13 SENATOR LIBOUS: Mr. President, 14 there being no further business, the Senate 15 will adjourn until Tuesday, February 15th, at 16 11:30 a.m. 17 ACTING PRESIDENT FLANAGAN: On 18 motion, the Senate stands adjourned until 19 Tuesday, February 15th, at 11:30 a.m. 20 (Whereupon, at 4:48 p.m., the 21 Senate adjourned.) 22 23 24 25

Candyco Transcription Service, Inc.