Regular Session - January 31, 2012

                                                                   310

 1               NEW YORK STATE SENATE

 2                          

 3                          

 4              THE STENOGRAPHIC RECORD

 5                          

 6                          

 7                          

 8                          

 9                  ALBANY, NEW YORK

10                  January 31, 2012

11                     11:25 a.m.

12                          

13                          

14                  REGULAR SESSION

15  
    
16  
    
17  
    
18  SENATOR JOSEPH E. ROBACH, Acting President
    
19  FRANCIS W. PATIENCE, Secretary
    
20  
    
21  
    
22  

23

24

25

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 1               P R O C E E D I N G S 

 2               ACTING PRESIDENT ROBACH:  The 

 3  Senate will come to order.  

 4               I ask everyone present to please 

 5  rise and repeat with me the Pledge of Allegiance.

 6               (Whereupon, the assemblage recited 

 7  the Pledge of Allegiance to the Flag.)

 8               ACTING PRESIDENT ROBACH:   In the 

 9  absence of clergy, may we all please bow our 

10  heads in a moment of silence.

11               (Whereupon, the assemblage respected 

12  a moment of silence.)

13               ACTING PRESIDENT ROBACH:   The 

14  reading of the Journal.

15               THE SECRETARY:   In Senate, Monday, 

16  January 30th, the Senate met pursuant to 

17  adjournment.  The Journal of Sunday, 

18  January 29th, was read and approved.  On motion, 

19  Senate adjourned.

20               ACTING PRESIDENT ROBACH:   Without 

21  objection, the Journal stands approved as read.

22               Presentation of petitions.

23               Messages from the Assembly.

24               Messages from the Governor.

25               Reports of standing committees.

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 1               Reports of select committees.

 2               Communications and reports from 

 3  state officers.

 4               Motions and resolutions.  

 5               Senator Libous.

 6               SENATOR LIBOUS:   Mr. President, I 

 7  believe Senator Breslin, if you could call on 

 8  him, has a motion.

 9               ACTING PRESIDENT ROBACH:   Senator 

10  Breslin.

11               SENATOR BRESLIN:   Thank you, 

12  Mr. President.  

13               On behalf of Senator Duane, I move 

14  that the following bill be discharged from its 

15  respective committee and be recommitted with 

16  instructions to strike the enacting clause:  Bill 

17  Number 2873.

18               ACTING PRESIDENT ROBACH:   So 

19  ordered.

20               SENATOR BRESLIN:   Thank you, 

21  Mr. President.

22               ACTING PRESIDENT ROBACH:   Thank 

23  you.  

24               Senator Libous.

25               SENATOR LIBOUS:   Thank you, 

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 1  Mr. President.  

 2               At this time could we please adopt 

 3  the Resolution Calendar, with the exception of 

 4  Resolutions 3118, 3124 and 3127.

 5               ACTING PRESIDENT ROBACH:   All in 

 6  favor of adopting the Resolution Calendar, with 

 7  the exceptions noted, please signify by saying 

 8  aye.

 9               (Response of "Aye.")

10               ACTING PRESIDENT ROBACH:   Those 

11  opposed, nay.

12               (No response.)

13               ACTING PRESIDENT ROBACH:   The 

14  Resolution Calendar is adopted.

15               Senator Libous.

16               SENATOR LIBOUS:   Thank you, 

17  Mr. President.

18               I believe there's a resolution at 

19  the desk by Senator Farley, Number 3118.  And I 

20  ask that we read it in its entirety and then call 

21  on Senator Farley, please.

22               ACTING PRESIDENT ROBACH:   The 

23  Secretary will read.

24               THE SECRETARY:   Legislative 

25  Resolution Number 3118, by Senator Farley, 

                                                               314

 1  congratulating the Schalmont Girls Soccer Team 

 2  upon the occasion of capturing the New York State 

 3  Class B Championship.  

 4               "WHEREAS, The State of New York 

 5  takes great pride in acknowledging the 

 6  outstanding achievements of its student athletes; 

 7  and 

 8               "WHEREAS, The Schalmont Girls 

 9  Soccer Team exhibited remarkable athletic 

10  ability, inspirational sportsmanship, and 

11  extraordinary teamwork in winning the New York 

12  State Class B Championship; and 

13               "WHEREAS, The team, led by Head 

14  Coach Angelo Caschera and Assistant Coaches 

15  Alaina Lange and Karen Ryder, consists of Karley 

16  Murray, Angelina Gazzillo, Katie Saccocio, Hannah 

17  Saccocio, Madeline Saccocio, Nicoletta Cuttita, 

18  Hailee Metzold, Rachael Gac, Jenna Saccocio, 

19  Ciara Vitallo, Megan Strijek, Amanda Mascitelli, 

20  Allie Gallo, Isabella Borini, Taylor Florio, 

21  Shanna Reagan, Alexandra Cardinal, Diana DiCocco, 

22  and Gabrielle Juers; and 

23               "WHEREAS, The Sabres finished their 

24  season with an impressive 23-0 record; and 

25               "WHEREAS, The team scored 131 goals 

                                                               315

 1  in those games, while allowing only seven goals.  

 2  They shut out their opponents 17 times; and 

 3               "WHEREAS, on November 19, 2011, the 

 4  Sabres defeated defending champions Bronxville by 

 5  a score of 4-0 in the semifinal; and 

 6               "WHEREAS, The following day, they 

 7  defeated Greece-Odyssey by a score of 4-0 at the 

 8  Class B State Championships held at Tompkins 

 9  Cortland Community College; and 

10               "WHEREAS, Forward Megan Strijek was 

11  named one of the tournament's Most Outstanding 

12  Players, and the Sabres were awarded the 

13  Sportsmanship Award; and 

14               "WHEREAS, The team is an 

15  inspiration to student athletic teams across 

16  New York State; now, therefore, be it 

17               "RESOLVED, That this Legislative 

18  Body pause in its deliberations to congratulate 

19  the Schalmont Girls Soccer Team upon the occasion 

20  of capturing the New York State Class B 

21  Championship; and be it further 

22               "RESOLVED, That copies of this 

23  resolution, suitably engrossed, be transmitted to 

24  the members of the Schalmont Girls Soccer Team."

25               ACTING PRESIDENT ROBACH:   Senator 

                                                               316

 1  Farley on the resolution.

 2               SENATOR FARLEY:   Thank you very 

 3  much, Mr. President.

 4               I'm very pleased to rise to 

 5  acknowledge up in the gallery the New York State 

 6  Champion Class B Girls Soccer Team.  You know, 

 7  they're a remarkable group, this Schalmont 

 8  School.  

 9               And incidentally, before I go on to 

10  their remarkable accomplishment, I must say that 

11  Schalmont High School is one of the finest 

12  academic institutions in my district, and 

13  certainly in Schenectady County, and truly a fine 

14  school.

15               You know, we're pleased to have 

16  with us today in the gallery the head coach, 

17  Angelo Caschera, and the Schalmont athletic 

18  director, John Gallo, and of course assistant 

19  coaches, and many of the team's more important 

20  parents who are up there on behalf of their 

21  charges.

22               Now, this remarkable team was able 

23  to shut out their points on 17 different 

24  occasions.  The Sabres, as they're called, 

25  finished with a 23-0 record, one of the finest of 

                                                               317

 1  any champion that was ever nominated.  This 

 2  special recognition was given to Megan Strijek, 

 3  who was featured -- she was also named the Most 

 4  Outstanding Player.  And, you know, this team, 

 5  besides being outstanding, was given the 

 6  Sportsmanship Award.  

 7               The sportsmanship, the teamwork, 

 8  the academic ability that is attributed to this 

 9  school makes everybody very proud.  I'm proud to 

10  represent them, and in a few moments I'm going to 

11  have a picture taken with them out of the 

12  staircase.  We're honored to have them in this 

13  chamber.  

14               And, Mr. President, if you would 

15  please acknowledge their presence.

16               ACTING PRESIDENT ROBACH:   Thank 

17  you.  

18               On behalf of Senator Farley and all 

19  of us, congratulations.  It's extra hard for me, 

20  having a daughter at Greece-Odyssey who you beat.

21               (Laughter.)

22               ACTING PRESIDENT ROBACH:   But 

23  congratulations, you've earned it.  The day is 

24  yours.  Welcome to the chamber.

25               (Applause.)

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 1               SENATOR FARLEY:   Mr. President, 

 2  I'd like to pass that resolution also.

 3               ACTING PRESIDENT ROBACH:   On the 

 4  resolution, all those in favor signify by saying 

 5  aye.

 6               (Response of "Aye.")

 7               ACTING PRESIDENT ROBACH:   Any 

 8  opposed, nay.

 9               (No response.)

10               ACTING PRESIDENT ROBACH:   The 

11  resolution is adopted.

12               Senator Libous.

13               SENATOR LIBOUS:   Mr. President, I 

14  believe there's a resolution at the desk by 

15  Senator Sampson, Number 3124.  I ask that you 

16  please read it in its entirety, and I believe you 

17  should call on Senator Sampson immediately 

18  following the reading of the resolution.

19               ACTING PRESIDENT ROBACH:   The 

20  Clerk will read.

21               THE SECRETARY:   Legislative 

22  Resolution Number 3124, by Senator Sampson, 

23  memorializing Governor Andrew M. Cuomo to 

24  proclaim February 2012 as Black History Month in 

25  the State of New York.

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 1               "WHEREAS, Black History Month, 

 2  previously known as Negro History Week, was 

 3  founded by Dr. Carter G. Woodson, and was first 

 4  celebrated on February 1, 1926.  Since 1976, it 

 5  has become a nationally recognized month-long 

 6  celebration, held each year during the month of 

 7  February, to acknowledge and pay tribute to 

 8  African-Americans neglected by both society and 

 9  the history books; and 

10               "WHEREAS, The month of February 

11  observes the rich and diverse heritage of our 

12  great state and nation; and 

13               "WHEREAS, Black History Month seeks 

14  to emphasize black history is American history; 

15  and 

16               "WHEREAS, Black History Month is a 

17  time to reflect on the struggles and victories of 

18  African-Americans throughout our country's 

19  history and to recognize their numerous valuable 

20  contributions to the protection of our democratic 

21  society in war and in peace; and 

22               "WHEREAS, Some African-American 

23  pioneers whose many accomplishments, all of which 

24  took place during the month of February, went 

25  unnoticed, as well as numerous symbolic events in 

                                                               320

 1  February that deserve to be memorialized 

 2  include:  

 3               "John Sweat Rock, a noted Boston 

 4  lawyer, who became the first African-American 

 5  admitted to argue before the U.S. Supreme Court 

 6  on February 1, 1865, and the first 

 7  African-American to be received on the floor of 

 8  the U.S. House of Representatives; 

 9               "Jonathan Jasper Wright, the first 

10  African-American to hold a major judicial 

11  position, who was elected to the South Carolina 

12  Supreme Court on February 1, 1870; 

13               "President Abraham Lincoln submits 

14  the proposed 13th Amendment to the U.S. 

15  Constitution, abolishing slavery, to the states 

16  for ratification on February 1, 1865; 

17               "Civil rights protester Jimmie Lee 

18  Jackson dies from wounds inflicted during a 

19  protest on February 26, 1965, leading to the 

20  historic Selma, Alabama, civil rights 

21  demonstrations, including Bloody Sunday, in which 

22  600 demonstrators, including Martin Luther King, 

23  Jr., were attacked by police; 

24               "Autherine J. Lucy became the first 

25  African-American student to attend the University 

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 1  of Alabama on February 3, 1956.  She was expelled 

 2  three days later 'for her own safety' in response 

 3  to threats from a mob.  In 1992, Autherine Lucy 

 4  Foster graduated from the university with a 

 5  master's degree in education, the same day her 

 6  daughter, Grazia Foster, graduated with a 

 7  bachelor's degree in corporate finance; 

 8               "The Negro Baseball League was 

 9  founded on February 3, 1920; 

10               "Jack Johnson, the first 

11  African-American World Heavyweight Boxing 

12  Champion, won his first title on February 3, 

13  1903; and

14               "Reginald F. Lewis, born on 

15  December 7, 1942, in Baltimore, Maryland, 

16  received his law degree from Harvard Law School 

17  in 1968.  He was a partner in Murphy, Thorpes & 

18  Lewis, the first black law firm on Wall Street, 

19  and in 1989 he became president and CEO of 

20  TLC Beatrice International Food Company, the 

21  largest black-owned business in the United 

22  States; and 

23               "WHEREAS, In recognition of the 

24  vast contributions of African-Americans, a joyful 

25  month-long celebration is held across New York 

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 1  State and across the United States, with many 

 2  commemorative events to honor and display the 

 3  cultural heritage of African-Americans; and 

 4               "WHEREAS, This Legislative Body 

 5  commends the African-American community for 

 6  preserving, for future generations, its 

 7  centuries-old traditions that benefit us all and 

 8  add to the color and beauty of the tapestry which 

 9  is our American society; now, therefore, be it 

10               "RESOLVED, That this Legislative 

11  Body pause in its deliberations to memorialize 

12  Governor Andrew M. Cuomo to proclaim February 

13  2012 as Black History Month in the State of 

14  New York; and be it further 

15               "RESOLVED, That copies of this 

16  resolution, suitably engrossed, be transmitted to 

17  the Honorable Andrew M. Cuomo, Governor of the 

18  State of New York, and to the events 

19  commemorating Black History Month throughout 

20  New York State."

21               ACTING PRESIDENT ROBACH:   Senator 

22  Sampson.

23               SENATOR SAMPSON:   Thank you very 

24  much, Mr. President.  

25               Each February -- it starts 

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 1  tomorrow, February 1st.  Today is January 31st.  

 2  And I've always said that Black History Month is 

 3  not only confined to the month of February but, 

 4  every day, history is being completed.  

 5               Our nation designates this 

 6  month-long period of time to pay tribute to the 

 7  vast and unique cultural and historical 

 8  contributions made by African-Americans.  Black 

 9  History Month is a time of great celebrations.  

10  It is also a time of reflection, a time to look 

11  back and appreciate the struggles and victories 

12  of African-Americans throughout this country and 

13  throughout history.  

14               But it is more than just 

15  celebrating African-American community; it's 

16  about celebrating diversity.  It's about 

17  celebrating all communities, not just one 

18  community.  And it also must be a time to promote 

19  fairness and equity.  This month-long celebration 

20  shows what is possible for any culture to do when 

21  you remove the barriers that exist and give them 

22  the opportunity to excel to their greatest 

23  potential.

24               This unique heritage of the 

25  African-American community must never be 

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 1  forgotten.  And we must honor this and honor 

 2  those distinguished men and women who have done a 

 3  great deal not only in promoting balance in their 

 4  own communities but balance throughout this 

 5  country.

 6               So I want to thank my colleagues, 

 7  but most of all I want to thank this body for 

 8  recognizing the historical significance not only 

 9  of African-Americans but all cultures.

10               Thank you very much, Mr. President.

11               ACTING PRESIDENT ROBACH:   Thank 

12  you, Senator Sampson.

13               Senator Hassell-Thompson.

14               SENATOR HASSELL-THOMPSON:   Thank 

15  you, Mr. President.

16               I rise to thank our leader Senator 

17  Sampson for putting forth this resolution this 

18  morning.  I'm a lot older than he, and therefore 

19  remember when we celebrated Black History Month 

20  for only a week.  And at that time, while it was 

21  never a struggle to find heroes and sheroes from 

22  that era, it was harder to find people who would 

23  support the fact that African-Americans in this 

24  country had made substantial contributions to the 

25  building, development, and growth of the United 

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 1  States of America.

 2               And now, across the country, in 

 3  most places we celebrate one month of Black 

 4  History Month.  I look forward to the day when we 

 5  become so engrained into this society, in our 

 6  textbooks and in every piece of literature that 

 7  allows us to be reflected as the true citizens of 

 8  the world that we are, that we will not need to 

 9  have to celebrate a month, but that people will 

10  accept and acknowledge that African-Americans are 

11  here to stay.

12               Thank you, Mr. President.

13               ACTING PRESIDENT ROBACH:   Thank 

14  you, Senator Hassell-Thompson.

15               Senator Larkin.

16               SENATOR LARKIN:   Thank you, 

17  Mr. President.

18               You know, every year we go through 

19  Martin Luther King's Day and Black History 

20  Month.  You know, I take pride in it.  I had the 

21  distinct honor of being selected in May of 1949 

22  to command an all -- in those days they were 

23  called black or Negro.  Today we honor them by 

24  calling them African-Americans.

25               These are people that half of my 

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 1  company were told by a judge "Go to the army or 

 2  go to jail."  We took over, five new officers, 

 3  all white, all young lieutenants.  Four of them 

 4  well-educated -- one was drafted by the Giants, 

 5  but he served his Army career and never got back 

 6  to the Giants -- and myself.  

 7               The first thing we did, we sat down 

 8  and we said, Look, your unit, our unit was moved 

 9  15 miles away from the rest of the battalion 

10  because of what we did wrong.  We were rated the 

11  last in all of training in the Eighth Army, 

12  700,000 troops.  We sat down and we said, This is 

13  the end of the road.  Nobody will call us 

14  Number 10, no one will do it.  And we built pride 

15  and esprit.  

16               The first time these men ever 

17  played a football or a basketball game against a 

18  white unit, they didn't know what.  And as 

19  Sergeant Burchini said to me, from West Virginia, 

20  he said, "What do I do when I tackle him?"  I 

21  said, "Drop him."  He said, "From up here or down 

22  here."  I said, Any place.  But don't let me look 

23  at it."  

24               We won.  We won the battalion 

25  championship.  And to summarize, in May of 1950 

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 1  we were selected the number-one training and 

 2  maintenance unit in Eighth Army.  General 

 3  Eichelberger come down to present the awards, 

 4  commanding general of Eighth Army, and he said, 

 5  "How did you turn this around from zero to 100?"  

 6  We said:  "Very simple.  We treated these 

 7  individuals as men, not as just another piece of 

 8  a soldier." 

 9               We treated these men with something 

10  of pride.  We took the wives of the NCOs and 

11  said, "Come to the mess hall and show us what we 

12  should bring to these people."

13               I remember Sergeant Dobson's wife 

14  saying to a young soldier who was dating a 

15  Japanese girl:  "I know your mother, and I'm 

16  going to write her and tell her." 

17               And it built supreme prestige, 

18  because they all felt they were part of 

19  something.  Nobody was downgrading them.  All of 

20  the bad that we had, we corrected it within a 

21  year.  Somebody said to me, "You felt good."  I 

22  said "Damn good."  

23               We went to Korea.  My first 

24  killed-in-action was August 4th at 2:30 in the 

25  afternoon:  Bobby Maples, from Savannah, 

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 1  Georgia.  And when he got killed, everybody in 

 2  that unit took a few tears, because they said 

 3  this wasn't a black man, this was an Army 

 4  sergeant, the pride and joy of the 212th.  

 5               And you know our nation is not going 

 6  to go up when we talk down.  Our nation is going 

 7  to get up when we start to say we are not afraid 

 8  to deal with you, you shouldn't be afraid to deal 

 9  with us.

10               Black History Month isn't something 

11  we should celebrate once a year, but Black 

12  History Month has to be included in all of the 

13  rest of what we're doing.  Because we're one 

14  nation:  United we stand, divided we fall.  

15               Thank you.  

16               ACTING PRESIDENT ROBACH:   Thank 

17  you.

18               Senator Perkins.

19               SENATOR PERKINS:   Thank you very 

20  much.  

21               I'm going to be brief because the 

22  resolution in and of itself is eloquent and 

23  speaks well for all of us.  

24               And for me, you know, this is a 

25  month in which we not only recognize the great 

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 1  contributions of the African-American black 

 2  community and that history of struggle, but it 

 3  also reminds us of a struggle of a community that 

 4  was opening doors not just for themselves but for 

 5  others as well.

 6               And I say that because I want to 

 7  recognize some young people for whom we're hoping 

 8  doors will be opened for them.  These are young 

 9  people from the New York State Youth Leadership 

10  Council that join us in the seating above.  

11               And I want to just make sure that 

12  they understand that the dreams that we have 

13  fulfilled and recognize in Black History Month, 

14  we will also recognize that those are the dreams 

15  that you as Dreamers, as you're called, will also 

16  be able to share in as this body moves forward in 

17  the spirit of Black History Month, in the spirit 

18  of Dr. King, in the spirit of all those leaders 

19  that this country has been able to bring forth 

20  that opened up those doors.  

21               So for me, Black History Month is 

22  an opportunity to remind all of us that this is a 

23  door-opening kind of a society, a welcoming kind 

24  of a society.  And these Dreamers are next, we 

25  hope, in terms of that welcoming opportunity.  

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 1               Thank you.

 2               ACTING PRESIDENT ROBACH:   Thank 

 3  you, Senator Perkins.

 4               Senator Diaz.

 5               SENATOR DIAZ:   Thank you, 

 6  Mr. President.

 7               I also would like to join Senator 

 8  Sampson in supporting this resolution.  

 9               As a black Puerto Rican, with kinky 

10  hair and broken English, I would like to say that 

11  the African-American community in New York City, 

12  in the state, but especially in Bronx County, has 

13  been one of the strongest things that we have 

14  gotten.  It's well-known that to get elected, 

15  Bronx-wide, citywide, any minority has to be 

16  together, Hispanic and African-American.  

17               And without the African-American 

18  support in our communities, it's difficult for 

19  any candidate to get elected.  And they have been 

20  a strong force politically, culturally, any which 

21  way.

22               Since I became Senator, I have 

23  taken it upon myself to honor those communities.  

24  For example, in Puerto Rico we call it "abrazo."  

25  An abrazo means an embrace.  And I have done 

                                                               331

 1  every year the Abrazo Dominicano for the 

 2  Dominican community.  And I do Abrazo Boricua for 

 3  the Puerto Rican community.  I also do Abrazo 

 4  Garifuna for the people from Honduras.  

 5               And today, now, on February 24th, 

 6  for the first time ever we are having the first 

 7  abrazo, African-American Abrazo, embrace, in the 

 8  Maestros Restaurant.  And we are honoring five 

 9  categories, in education, heroism, youth, 

10  religion, and community service.  

11               And we do that to recognize that 

12  this community, the African-American community, 

13  has been -- I mean, we owe too much to them.  We 

14  owe too much to them, and we have to recognize 

15  they have been the force.  

16               The only sad thing that I have to 

17  say, that Harlem was once the bastion of the 

18  African-American community.  And Harlem now is 

19  beautiful, Harlem now has many businesses, but 

20  the leadership in Harlem allowed their residents 

21  to be pushed out.  And now Harlem is no longer 

22  the Harlem that it used to be.  Even though it's 

23  beautiful, even though it has a lot of business, 

24  even though the 125th Street is excellent.  But 

25  President Bill Clinton came with all his business 

                                                               332

 1  colleagues and took over.  

 2               And I hope that we learned that 

 3  lesson and that we in the Bronx County and in 

 4  other areas continue to build, continue to fight 

 5  to build houses and business, but do not allow 

 6  our community to be pushed out as happened in 

 7  Harlem.

 8               Congratulations to the 

 9  African-American community in their month, and I 

10  again am proud to join Senator Sampson in this 

11  resolution.  

12               Thank you.

13               ACTING PRESIDENT ROBACH:   Seeing 

14  no other Senator wishing to be heard, on the 

15  resolution, all those in favor signify by saying 

16  aye.

17               (Response of "Aye.")

18               ACTING PRESIDENT ROBACH:   Opposed, 

19  nay.

20               (No response.)

21               ACTING PRESIDENT ROBACH:   The 

22  resolution is adopted.

23               Senator Libous.

24               SENATOR LIBOUS:   Mr. President, I 

25  believe there's another privileged resolution at 

                                                               333

 1  the desk, by Senator Squadron.  It's Number 

 2  3127.  At this time could we read it in its 

 3  entirety and then call on Senator Squadron.

 4               ACTING PRESIDENT ROBACH:   The 

 5  Secretary will read.

 6               THE SECRETARY:   Legislative 

 7  Resolution Number 3127, by Senator Squadron, 

 8  mourning the untimely death of Police Officer 

 9  Alain Schaberger of the New York Police 

10  Department 84th Precinct on March 13, 2011.

11               "WHEREAS, It is the sense of this 

12  Legislative Body to convey its grateful 

13  appreciation and heartfelt regret in recognition 

14  of the loss of a courageous police officer who 

15  dedicated his purposeful life and career in 

16  faithful service to his family and to the 

17  residents of the 84th Precinct; and 

18               "WHEREAS, It is with profound 

19  sadness that this Legislative Body records the 

20  passing of Police Officer Alain Schaberger, who 

21  made the ultimate sacrifice on March 13, 2011, 

22  while faithfully executing his responsibilities, 

23  serving with dedication, loyalty and compassion, 

24  and who devoted his life and career to serve and 

25  protect; and 

                                                               334

 1               "WHEREAS, Alain Schaberger proudly 

 2  served his country as a member of the United 

 3  States Navy from 1991 to 1995; and 

 4               "WHEREAS, On July 2, 2001, Police 

 5  Officer Alain Schaberger was appointed to a 

 6  Midtown Manhattan precinct.  Five years later, he 

 7  was assigned to the 84th Precinct in Brooklyn, 

 8  New York, working the midnight shift with 

 9  enthusiasm and dedication; and 

10               "WHEREAS, Alain Schaberger was a 

11  decorated police officer, having earned an 

12  Excellent Police Duty medal.  Residents of the 

13  84th Precinct truly benefited from his loyalty 

14  and commitment to the safety of the community; 

15  and 

16               "WHEREAS, On the morning of 

17  March 13, 2011, Police Officer Alain Schaberger 

18  was among the officers who responded to a 

19  domestic violence dispute in Boerum Hill, 

20  Brooklyn.  It was on this morning that he gave 

21  the ultimate sacrifice while serving the 

22  community; and 

23               "WHEREAS, Police Officer Alain 

24  Schaberger's exemplary life was cut short by the 

25  violence he sought to combat; and 

                                                               335

 1               "WHEREAS, The loving son of Paul 

 2  and May Schaberger, Police Officer Alain 

 3  Schaberger exemplified what it means to give of 

 4  himself in providing vital police services in 

 5  keeping with the noble mission of the 84th 

 6  Precinct; and 

 7               "WHEREAS, Police Officer Alain 

 8  Schaberger leaves behind a legacy which will long 

 9  endure the passage of time and will remain as a 

10  comforting memory to all he served and 

11  befriended.  He will be deeply missed and truly 

12  merits the grateful tribute of this Legislative 

13  Body; now, therefore, be it 

14               "RESOLVED, That this Legislative 

15  Body pause in its deliberations to mourn the 

16  untimely death of Police Officer Alain 

17  Schaberger, noting the significance of his 

18  contributions on behalf of the citizens of this 

19  noble Empire State, and expressing its deepest 

20  condolences to his family; and be it further 

21               "RESOLVED, That copies of this 

22  resolution, suitably engrossed, be transmitted to 

23  Paul and May Schaberger and to Captain Mark 

24  DiPaolo, 84th Precinct Commanding Officer."

25               ACTING PRESIDENT ROBACH:   Senator 

                                                               336

 1  Squadron.

 2               SENATOR SQUADRON:   Thank you, 

 3  Mr. President.

 4               As the resolution says, Police 

 5  Officer Alain Schaberger dedicated his life to 

 6  public service.  For those of us in this chamber 

 7  who ourselves are committed to public service, 

 8  the sort of service that Police Officer 

 9  Schaberger gave his life to is something that we 

10  really should honor, and we should honor even 

11  without the sacrifice and the tragic way in which 

12  his life ended.  

13               He served our nation in the Navy 

14  for four years, with distinction, and then he 

15  served on the New York City Police Force in my 

16  neighborhood in downtown Brooklyn.  And on 

17  March 13, 2011, he was called, just a routine 

18  call -- just another domestic violence dispute, 

19  in fact -- and he was called to a home, and there 

20  he was killed by a serial domestic violence 

21  offender.  

22               The person who killed him had had a 

23  variety of -- had been cited or called for 

24  domestic violence 12 times in the decade 

25  preceding.  And on this morning he killed 

                                                               337

 1  Officer Schaberger, he pushed him off of the 

 2  stoop, and tragically, Officer Schaberger's life 

 3  was lost.

 4               You know, the way in which 

 5  Officer Schaberger perished says so much about 

 6  everyone who serves in uniform, especially in the 

 7  police forces and the armed forces of this 

 8  nation.  Every day, what is routine -- the 

 9  Resolution Calendar, in our life -- what is 

10  routine for them could end up being 

11  life-threatening, could end up leading to a 

12  tragedy.  And yet every day these folks, these 

13  noble public servants, put on their uniforms and 

14  they go out and they operate to keep us safe, 

15  with no regard for the risk that they are 

16  facing.  

17               And for Officer Schaberger, for so 

18  many others who served in uniform and have lost 

19  their lives, it is really appropriate for us to 

20  take a moment and honor his life.

21               Along with Senator Golden on the 

22  other side of the aisle, I have been working 

23  closely with the Schaberger family on a piece of 

24  legislation in his name, in his honor, to crack 

25  down on serial domestic violence offenses.  In 

                                                               338

 1  this state we simply don't do enough to prevent 

 2  domestic violence offenders from acting again, to 

 3  stop them, until they have committed serious 

 4  injury or killed a victim.  That has to end.  

 5               In the name of Officer Schaberger, 

 6  in the name of so many other victims, in the name 

 7  of everyone who wears a uniform to protect us, we 

 8  need to move forward with this resolution and 

 9  also with that legislation in order to make our 

10  state a safer place and fully honor their lives.

11               I am very honored today that we are 

12  joined by Officer Schaberger's parents; Paul and 

13  May Schaberger have come up.  

14               And as I've said to them on 

15  numerous occasions when Officer Schaberger was 

16  honored as the Cop of the Year in the 84th 

17  Precinct posthumously, when we have had other 

18  celebrations at the 84th Precinct and memorials 

19  for Officer Schaberger's life, when you go 

20  through the sort of tragedy that Mr. and 

21  Mrs. Schaberger have, to turn outward and turn to 

22  the community and try to make something of it and 

23  make a change is an extraordinary thing.  It 

24  takes extraordinary strength and is courageous in 

25  its own way.  

                                                               339

 1               So I really thank you so much for 

 2  being here today and for the work that you're 

 3  doing, along with Senator Golden and myself, to 

 4  get legislative change in this state as well.

 5               So to Paul and May Schaberger, to 

 6  the commanding officer of the 84th Precinct, 

 7  Inspector Mark DiPaolo, to everyone who serves in 

 8  uniform and to everyone who's been a victim of 

 9  domestic violence, let's take a moment to honor 

10  Officer Schaberger and his life.  

11               Thank you very much for being here.

12               (Standing ovation.)  

13               ACTING PRESIDENT ROBACH:   Senator 

14  Adams.

15               SENATOR ADAMS:   Thank you, 

16  Mr. President.  I just want to add my voice to 

17  Officer Schaberger's life and what it means.  

18               That was my adjacent precinct.  

19  When I was a lieutenant in the Police Department, 

20  I was in the 88th Precinct, next to the 

21  84th Precinct.  

22               And I think that oftentimes we 

23  should be proud of our record on dealing with the 

24  issue of domestic violence, particularly some of 

25  the things that Senator Hassell-Thompson has done 

                                                               340

 1  throughout the years.  This is part of the family 

 2  that actually is impacted from domestic 

 3  violence.  Often people state that, well, it's 

 4  just a simple argument, it's just a simple 

 5  problem within the household -- when in fact it's 

 6  not.  

 7               Domestic violence is one of the 

 8  most dangerous assignments a police officer can 

 9  respond to.  He or she receives more injuries 

10  from responding to a domestic violence incident.  

11  And there are mandatory response mechanisms that 

12  police agencies across the country put in place 

13  because they know when an officer responds to a 

14  domestic violence incident, they are likely also 

15  to be a victim of that violence.

16               So the incident that this 

17  officer responded to was one of the highest 

18  number of crimes that he could respond to.  We 

19  often think about burglary and robbery and those 

20  seven major crimes, but let me tell you, when we 

21  pass legislation about ending domestic violence, 

22  we are not only saving the lives of the men and 

23  women inside the household, we're saving the 

24  lives of the men and women who are responding to 

25  those incidents, and we are preventing the family 

                                                               341

 1  of law enforcement from losing another officer.  

 2               To lose an officer in this 

 3  magnitude, it impacts the entire law enforcement 

 4  community.  But that impact doesn't stop at the 

 5  precinct door, it impacts the family members.  A 

 6  mother never stops mourning when she loses her 

 7  son prematurely to violence.  No police officer 

 8  or sergeant or commander wants to knock on the 

 9  door and tell a family member that your son was 

10  lost while they were on patrol.  

11               And I can tell you firsthand, I'm 

12  sure this mother went countless nights about 

13  hearing that phone ring late at night or early in 

14  the morning, hoping and holding her breath that 

15  that wasn't some form of response that she lost 

16  her son.  

17               So when we fight for domestic 

18  violence, when we pass legislation, when Ruth 

19  Hassell-Thompson spearheads some of the important 

20  legislation around domestic violence, it's not 

21  only about the family members, it's not only 

22  about husband and wife, it's about are we going 

23  to make our society safer, are we going to 

24  prevent a habitual domestic violence person from 

25  going to the street, taking a firearm and killing 

                                                               342

 1  an entire family and then killing anyone that is 

 2  in his path.  

 3               And it's not only husband and wife, 

 4  it's boyfriend and girlfriend.  We have a high 

 5  number of domestic violence incidents of teenage 

 6  children in schools, people, young people who 

 7  live together.  So domestic violence is a real 

 8  incident.  We can no longer take the belief that 

 9  we can ignore it, it's just two people having an 

10  argument, "Go walk it off, young man, and come 

11  back when you're fine."  No.  

12               People who abuse their spouses 

13  should be held responsible for that, and our laws 

14  must make sure that they're held accountable.

15               And so I thank Senator Squadron for 

16  introducing this resolution.  I stand in support 

17  of it.  And our entire legislative body 

18  understands your pain, the family of your pain, 

19  and we will do all that we can to end the problem 

20  of domestic violence in the spirit of your son.  

21               Thank you very much.  Thank you, 

22  Mr. President.

23               ACTING PRESIDENT ROBACH:   Thank 

24  you, Senator Adams.

25               Senator Zeldin.

                                                               343

 1               SENATOR ZELDIN:   I'm compelled to 

 2  stand and offer my condolences as well.  

 3               I was actually at the funeral for 

 4  Officer Schaberger out in my district.  And, you 

 5  know, you might think that your family is only as 

 6  large as your son and your daughter and your 

 7  parents, grandparents.  There was a small family 

 8  that was around him that day.  But what was so 

 9  inspiring for me was seeing all of the uniformed 

10  officers that traveled all the way out from 

11  New York City, thousands of them, so well-dressed 

12  and disciplined, to really show the family that 

13  their family is a lot more extended than you 

14  might think, on that day and since.

15               His loss really impacted a lot of 

16  us.  And I'm really happy that Senator Squadron 

17  put forward this resolution to honor the loss of 

18  your son.  Domestic violence unfortunately takes 

19  place way too much in each of our districts all 

20  across the state and all across this country.  

21  And hopefully the legacy that he leaves behind is 

22  one that is not in vain or forgotten.

23               I'm just compelled not only to 

24  offer up my condolences, but to also thank the 

25  NYPD for being there in such force to offer their 

                                                               344

 1  support for your family.  And on behalf of really 

 2  all the residents from your area out on 

 3  Long Island, we just want to let you know that 

 4  we're all here for you as well.

 5               ACTING PRESIDENT ROBACH:   I think 

 6  before we officially ratify the resolution, it 

 7  would be fitting if we all stood and took a 

 8  moment of silence on behalf of Officer Alain 

 9  Schaberger, his commitment, and his giving the 

10  ultimate sacrifice to the residents of New York 

11  and New York State.

12               (Whereupon, the assemblage respected 

13  a moment of silence.)

14               ACTING PRESIDENT ROBACH:   Thank 

15  you.

16               On the resolution, all those in 

17  favor signify by saying aye.

18               (Response of "Aye.")

19               ACTING PRESIDENT ROBACH:   Opposed, 

20  nay.

21               (No response.)

22               ACTING PRESIDENT ROBACH:   The 

23  resolution is adopted.

24               Senator Libous.

25               SENATOR LIBOUS:   Mr. President, at 

                                                               345

 1  this time could we now have the reading of the 

 2  noncontroversial calendar, please.

 3               ACTING PRESIDENT ROBACH:   The 

 4  Secretary will read.

 5               THE SECRETARY:   Calendar Number 

 6  91, by Senator Little, Senate Print 5525B, an act 

 7  to amend the General Municipal Law.

 8               ACTING PRESIDENT ROBACH:   Read the 

 9  last section.

10               THE SECRETARY:   Section 2.  This 

11  act shall take effect immediately.

12               ACTING PRESIDENT ROBACH:   Call the 

13  roll.

14               (The Secretary called the roll.)

15               ACTING PRESIDENT ROBACH:   Senator 

16  Little to explain her vote.

17               SENATOR LITTLE:   Thank you, 

18  Mr. President.  

19               This is a very important piece of 

20  legislation to offer some mandate relief to our 

21  local governments.  The result of this piece of 

22  legislation will be that it will allow New York 

23  governments to piggyback and to join 48 other 

24  states in a cooperative purchasing venture.

25               What will happen here is that we 

                                                               346

 1  will have cooperative purchasing, or this would 

 2  allow it, between New York's local governments 

 3  and the federal, state, and local governments 

 4  elsewhere in the entire country.

 5               If the procurement has been done 

 6  with the procurement process, and it also does 

 7  not relieve any government from the obligation to 

 8  comply with the Minority and Women-Owned Business 

 9  Enterprise program or the preferred source 

10  requirements of Section 162 of the State Finance 

11  Law, it will be allowed.

12               It's a program that will expand and 

13  allow flexibility to our governments.  It will 

14  reduce administrative and product costs, it will 

15  increase efficiencies, and it will stretch 

16  shrinking budgets of local governments in these 

17  difficult times.

18               I thank you all for voting for this 

19  measure, and I look forward to it becoming law.

20               Thank you.

21               ACTING PRESIDENT ROBACH:   Senator 

22  Little will be recorded in the affirmative.

23               Announce the results.

24               THE SECRETARY:   Ayes, 57.

25               ACTING PRESIDENT ROBACH:   The bill 

                                                               347

 1  is passed.

 2               THE SECRETARY:   Calendar Number 

 3  95, by Senator Fuschillo, Senate Print 527, an 

 4  act to amend the Penal Law.

 5               ACTING PRESIDENT ROBACH:   Read the 

 6  last section.

 7               THE SECRETARY:   Section 3.  This 

 8  act shall take effect on the first of November.

 9               ACTING PRESIDENT ROBACH:   Call the 

10  roll.

11               (The Secretary called the roll.)

12               THE SECRETARY:   Ayes, 56.  Nays, 

13  1.  Senator Duane recorded in the negative.

14               ACTING PRESIDENT ROBACH:   The bill 

15  is passed.

16               THE SECRETARY:   Calendar Number 

17  96, by Senator Klein, Senate Print 578, an act to 

18  amend the Penal Law.

19               ACTING PRESIDENT ROBACH:   Read the 

20  last section.

21               THE SECRETARY:   Section 3.  This 

22  act shall take effect on the first of November.

23               ACTING PRESIDENT ROBACH:   Call the 

24  roll.

25               (The Secretary called the roll.)

                                                               348

 1               THE SECRETARY:   Ayes, 56.  Nays, 

 2  1.  Senator Duane recorded in the negative.

 3               ACTING PRESIDENT ROBACH:   The bill 

 4  is passed.

 5               THE SECRETARY:   Calendar Number 

 6  98, by Senator Addabbo, Senate Print 1242, an act 

 7  to amend the Penal Law.

 8               ACTING PRESIDENT ROBACH:   Read the 

 9  last section.

10               THE SECRETARY:   Section 2.  This 

11  act shall take effect on the first of November.

12               ACTING PRESIDENT ROBACH:   Call the 

13  roll.

14               (The Secretary called the roll.)

15               THE SECRETARY:   Ayes, 57.

16               ACTING PRESIDENT ROBACH:   The bill 

17  is passed.

18               THE SECRETARY:   Calendar Number 

19  102, by Senator Skelos, Senate Print 1999, an act 

20  to amend the Criminal Procedure Law.

21               ACTING PRESIDENT ROBACH:   Read the 

22  last section.

23               THE SECRETARY:   Section 6.  This 

24  act shall take effect on the first of November.

25               ACTING PRESIDENT ROBACH:   Call the 

                                                               349

 1  roll.

 2               (The Secretary called the roll.)

 3               THE SECRETARY:   Ayes, 55.  Nays, 

 4  2.  Senators Duane and Perkins recorded in the 

 5  negative.

 6               ACTING PRESIDENT ROBACH:   The bill 

 7  is passed.

 8               THE SECRETARY:   Calendar Number 

 9  103, by Senator Lanza, Senate Print 2950, an act 

10  to amend the Penal Law.

11               ACTING PRESIDENT ROBACH:   Read the 

12  last section.

13               THE SECRETARY:   Section 2.  This 

14  act shall take effect on the 30th day.

15               ACTING PRESIDENT ROBACH:   Call the 

16  roll.

17               (The Secretary called the roll.)

18               THE SECRETARY:   Ayes, 57.

19               ACTING PRESIDENT ROBACH:   The bill 

20  is passed.

21               THE SECRETARY:   Calendar Number 

22  104, by Senator Nozzolio, Senate Print 4472, an 

23  act to amend the Criminal Procedure Law.

24               ACTING PRESIDENT ROBACH:   Read the 

25  last section.

                                                               350

 1               THE SECRETARY:   Section 2.  This 

 2  act shall take effect on the 90th day.

 3               ACTING PRESIDENT ROBACH:   Call the 

 4  roll.

 5               (The Secretary called the roll.)

 6               THE SECRETARY:   Ayes, 57.

 7               ACTING PRESIDENT ROBACH:   The bill 

 8  is passed.

 9               THE SECRETARY:   Calendar Number 

10  105, by Senator Fuschillo, Senate Print 6280A, an 

11  act to amend the Executive Law.

12               ACTING PRESIDENT ROBACH:   Read the 

13  last section.

14               THE SECRETARY:   Section 2.  This 

15  act shall take effect immediately.

16               ACTING PRESIDENT ROBACH:   Call the 

17  roll.

18               (The Secretary called the roll.)

19               THE SECRETARY:   Ayes, 57.

20               ACTING PRESIDENT ROBACH:   The bill 

21  is passed.

22               THE SECRETARY:   Calendar Number 

23  108, by Senator Marcellino, Senate Print 945, an 

24  act to amend the Vehicle and Traffic Law.

25               ACTING PRESIDENT ROBACH:   Read the 

                                                               351

 1  last section.

 2               THE SECRETARY:   Section 3.  This 

 3  act shall take effect on the first of November.

 4               ACTING PRESIDENT ROBACH:   Call the 

 5  roll.

 6               (The Secretary called the roll.)

 7               THE SECRETARY:   Ayes, 57.

 8               ACTING PRESIDENT ROBACH:   The bill 

 9  is passed.

10               THE SECRETARY:   Calendar Number 

11  127, by Senator Griffo, Senate Print 1315 --

12               SENATOR BRESLIN:   Lay it aside.

13               ACTING PRESIDENT ROBACH:   The bill 

14  is laid aside.

15               THE SECRETARY:   Calendar Number 

16  128, by Senator Saland, Senate Print 5560A --

17               SENATOR BRESLIN:   Lay it aside.

18               ACTING PRESIDENT ROBACH:   The bill 

19  is laid aside.

20               Senator Libous, that concludes the 

21  noncontroversial reading of the calendar.

22               SENATOR LIBOUS:   Thank you, 

23  Mr. President.  

24               May we now have the controversial 

25  reading of the calendar.

                                                               352

 1               ACTING PRESIDENT ROBACH:   The 

 2  Clerk will ring the bells and get the members in 

 3  the chamber for the controversial calendar.

 4               The Secretary will read.

 5               THE SECRETARY:   Calendar Number 

 6  127, by Senator Griffo, Senate Print 1315, an act 

 7  to amend the Alcoholic Beverage Control Law.

 8               SENATOR BRESLIN:   Explanation.

 9               ACTING PRESIDENT ROBACH:   An 

10  explanation has been requested.  

11               Senator Griffo.

12               SENATOR GRIFFO:   Thank you, 

13  Mr. President.

14               Essentially, this bill is a 

15  reflection of contemporary times, and it 

16  establishes some balance within the Alcoholic 

17  Beverage Control Law.  

18               The current law really protected 

19  wholesalers against large breweries.  We see now 

20  times changing, and one of the most rapid sectors 

21  of growth is for small brewers and craft 

22  breweries throughout our state and across the 

23  nation right now.  So the current law makes it 

24  very difficult for the craft industry to be 

25  competitive and to be released contractually.  

                                                               353

 1               So what this bill will do will 

 2  modify that.  But also, in order to ensure 

 3  fairness, the bill will require that any brewer, 

 4  before leaving the contract, to pay fair market 

 5  rate to the distributor.  And there are other 

 6  specifics within the memo.

 7               Thank you.

 8               SENATOR DILAN:   Mr. President, on 

 9  the bill.

10               ACTING PRESIDENT ROBACH:   Senator 

11  Dilan on the bill.

12               SENATOR DILAN:   This bill was 

13  vetoed in 2008 by Governor David Paterson, citing 

14  concerns that no evidence had been provided that 

15  the termination provisions under the Alcoholic 

16  Beverage and Control Law are not adequate or fair 

17  to the parties to the agreements between brewers 

18  and beer wholesalers to grant such a remedy.  

19               The Governor went on to note, in 

20  his veto message, if a small brewer is 

21  dissatisfied with the sales performance of the 

22  wholesaler, the brewer has a path to remedy 

23  through the current language of Section 55C of 

24  the ABC Law.

25               Another significant concern is the 

                                                               354

 1  establishment of fair market value.  Since many 

 2  of the small breweries are new to the market and 

 3  have not been selling for a long time, it would 

 4  be nearly impossible to come up with an accurate 

 5  estimate of fair market value for terminating an 

 6  agreement.  

 7               The Governor also indicated that 

 8  under Section 55C, it is not clear why this bill 

 9  is necessary at all.

10               Also, this bill would have an 

11  impact in the New York City area, namely 

12  Kings County, up to maybe possibly 100 to 200 

13  jobs.

14               So I urge my colleagues to vote no 

15  on this bill.  Thank you.

16               ACTING PRESIDENT ROBACH:   Any 

17  other Senator wishing to be heard?

18               The debate is closed.  The 

19  Secretary will ring the bells.  

20               I ask all members to please come to 

21  their seat in the chamber.

22               Read the last section.

23               THE SECRETARY:   Section 2.  This 

24  act shall take effect on the first of January.

25               ACTING PRESIDENT ROBACH:   Call the 

                                                               355

 1  roll.

 2               (The Secretary called the roll.)

 3               ACTING PRESIDENT ROBACH:   Announce 

 4  the results.

 5               THE SECRETARY:   In relation to 

 6  Calendar Number 127, those recorded in the 

 7  negative are Senators Dilan, Espaillat, Gianaris, 

 8  Golden and Sampson.  

 9               Absent pursuant to Rule 9:  

10  Senators DeFrancisco, Ball and Krueger.

11               Ayes, 51.  Nays, 5.

12               ACTING PRESIDENT ROBACH:   The bill 

13  is passed.

14               The Secretary will read.

15               THE SECRETARY:   Calendar Number 

16  128, by Senator Saland, Senate Print 5560A, an 

17  act to amend the Executive Law.

18               SENATOR BRESLIN:   Explanation.

19               ACTING PRESIDENT ROBACH:   An 

20  explanation has been requested, Senator Saland.

21               SENATOR SALAND:   Thank you, 

22  Mr. President.

23               Mr. President, this is an 

24  all-Penal-Law-crimes data bank expansion and an 

25  all-felony data bank inclusion.  So as a result 

                                                               356

 1  of this legislation, all felonies and all 

 2  Penal Law misdemeanors would be included in our 

 3  DNA data bank.

 4               Under the current law, all felonies 

 5  and 36 misdemeanors are included.  And as a 

 6  result of that, in excess of 50 percent -- I 

 7  believe some 52 percent -- of all Penal Law 

 8  crimes are not required to be subjected to the 

 9  DNA data bank requirements.

10               Now, there's nothing particularly 

11  complex about this bill.  It expands what we 

12  started in 1996.  There has been certainly a path 

13  that we have followed from 1996 in the name of 

14  public safety.  We started off with homicides and 

15  certain sex offenses.  We then went to all 

16  felonies and some misdemeanors.  And I believe in 

17  2007 or 2006 we added yet one more misdemeanor to 

18  arrive at the numbers that I alluded to earlier.

19               DNA is both capable of being used 

20  as a sword and as a shield -- or perhaps, as I've 

21  said on other occasions, it's a sword that cuts 

22  both ways.  

23               As the Governor mentioned in his 

24  State of the State address, some 2700 people have 

25  been convicted by reason of being able to be 

                                                               357

 1  traced through the DNA data bank, and some 

 2  27 people, nearly 10 percent of all of those who 

 3  have been exonerated in this nation, have been 

 4  exonerated thanks to the DNA data bank.

 5               DNA is truly the cutting edge.  For 

 6  many, many decades fingerprinting was the marvel 

 7  of the criminal justice system; now it's 

 8  currently DNA.  DNA is based on science, it's 

 9  scrutinized, accreditations are required.  It is 

10  a very carefully monitored system and one in 

11  which, since its inception, there have been no 

12  abuses or no violations of privacy.

13               ACTING PRESIDENT ROBACH:   Excuse, 

14  Senator Saland.  

15               Excuse me.  Let's just have a 

16  little silence.  This is an important topic, and 

17  let's give Senator Saland the courtesy so we can 

18  hear what he has to say.

19               Thank you.

20               SENATOR SALAND:   Thank you, 

21  Mr. President.

22               The purpose of this bill, by 

23  expanding it to all crimes, is to take care of a 

24  plethora of reported cases in which people have 

25  been victimized, and often in severe and heinous 

                                                               358

 1  fashion -- sexual assaults, homicides, 

 2  burglaries, robberies -- which effectively, 

 3  had we had an all-crimes DNA bill enacted into 

 4  law, the commission of an earlier misdemeanor, 

 5  which is often a gateway crime, would have helped 

 6  resolve those cases.  

 7               When we did the expansion back in 

 8  2006 and included petit larceny, there have been 

 9  nearly 900 hits since then, 900 hits over that 

10  period of time.  For sexual assaults, for 

11  homicides, some 51 homicides have been closed, 

12  open homicides have been closed due to the 

13  inclusion of petit larceny in the DNA data bank.  

14  Robberies, burglaries.  Serious, serious felonies 

15  that were resolved because we included gateway 

16  crimes; in this case, petit larceny.

17               The use of DNA will protect the 

18  public by leading to more convictions.  It will 

19  protect the innocent by leading to exonerations.  

20  It will protect those who may be removed as 

21  suspects.  DNA works, works well, and is accepted 

22  as being state of the art and not merely 

23  scientifically based but scientifically reliable.

24               With that, Mr. President, I thank 

25  you for the opportunity.

                                                               359

 1               ACTING PRESIDENT ROBACH:   Thank 

 2  you, Senator Saland.

 3               Senator Hassell-Thompson.

 4               SENATOR HASSELL-THOMPSON:   Thank 

 5  you, Mr. President.

 6               I had thought to offer a hostile 

 7  amendment on this bill, but it's been my 

 8  experience that even when you have a better 

 9  mousetrap it doesn't necessarily work in this 

10  body.  So I've just decided that I wanted to just 

11  speak on the bill.

12               ACTING PRESIDENT ROBACH:   Senator 

13  Hassell-Thompson on the bill.

14               SENATOR HASSELL-THOMPSON:   Let me 

15  put it in a historical context.  

16               For several years we've attempted 

17  to put a DNA bill in the budget and we've 

18  discussed, at least in this house, how do we move 

19  forward on DNA.  And I know that there is this 

20  sense that nobody wants DNA -- or few people 

21  don't want DNA.  Everybody thinks that DNA is a 

22  very excellent tool to be used in criminal 

23  investigations.  

24               But what has been said for the last 

25  four years that I'm aware of is that the 

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 1  presenting bills do not allow us the safeguards 

 2  that are most necessary to ensure that we have 

 3  the best bill possible.  Simply, more DNA is not 

 4  always better for New York's criminal justice 

 5  system.  If instead New York State is smart about 

 6  how to use and learn from DNA to increase the 

 7  fairness and effectiveness of our criminal 

 8  justice system, we can then be the model for 

 9  other states as we could be.  

10               To that, New York State should 

11  advocate for sequential and double-blind lineups 

12  as used by the FBI.  We need to enact eyewitness 

13  identification reform to prevent 

14  misidentification.  The bill should require that 

15  custodial interrogation be videotaped or 

16  electronically recorded.  We should better enable 

17  the wrongfully convicted to prove their innocence 

18  through post-conviction DNA testing.

19               This includes removing needless 

20  barriers to testing, enabling judges to order 

21  comparisons of crime-scene DNA and fingerprints 

22  to DNA and fingerprint databases, enabling the 

23  judge then to order a search and/or inventory of 

24  evidence upon a credible petition for 

25  post-conviction DNA testing and enacting a 

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 1  moratorium on the destruction of biological 

 2  evidence until best practices have been 

 3  established by the New York State experts.

 4               We need to expand jurisdiction of 

 5  the New York State Commission on Forensic 

 6  Science.  Our pioneering commission was once a 

 7  leader but has not kept up with its potential to 

 8  enable forensic science to provide justice.  

 9               The commission's reach should be 

10  extended to establish new protocols and best 

11  practices, those standards with regard to 

12  crime-scene investigation, scientific 

13  methodology, laboratory procedures, and report 

14  writing in various forms of forensic analysis, 

15  including those performed in police departments.

16               I have a constituent, Alan Newton, 

17  who was imprisoned for 21 years for a rape he did 

18  not commit.  New York City somehow could not find 

19  his evidence in the property clerk's office for 

20  12 years.  When the evidence was found and 

21  compared, Newton was exonerated.

22               This shows a need for legislation 

23  regarding the collection and preservation of the 

24  evidence containing DNA.  We need to prohibit all 

25  DNA databases not explicitly established by 

                                                               362

 1  statute and enact legislative guidelines for the 

 2  practice of familial or partial-match DNA 

 3  database searches.  We need to enable innocent 

 4  persons wrongfully convicted due to 

 5  police-induced false confession to receive 

 6  compensation as others do.

 7               There is no same-as for this bill 

 8  in the Assembly -- not because the Assembly does 

 9  not want to pass a DNA bill, but the Assembly 

10  knows, as I do, we can and should do a better 

11  bill as the Empire State.

12               DNA has incredible probative value 

13  to solve crimes.  Fortunately, New York already 

14  uses its database of convicted felons and other 

15  serious offenders as one way to enhance justice 

16  and safety.  

17               Yet simply focusing on the status 

18  quo is not enough.  We must heed the lesson about 

19  how wrongful convictions happen when we have 

20  learned from DNA exonerations if we are to 

21  prevent future wrongful convictions, recognize 

22  wrongful convictions where they may have 

23  occurred, and prevent future victims at the hands 

24  of unidentified real perpetrators.  Doing so 

25  simply makes our criminal justice system more 

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 1  accurate and effective as well as fair.

 2               Our existing DNA database has 

 3  tremendous potential to solve crimes and prevent 

 4  wrongful convictions, much of which is wasted.  

 5  Judges are not empowered to order comparisons of 

 6  crime-scene DNA and DNA databases.  DNA database 

 7  hits often don't turn into convictions, and the 

 8  state typically does not even know why that is 

 9  the case.

10               Fresh DNA database hits to solved 

11  crimes are typically ignored, although they can 

12  indicate a wrongful conviction and identify the 

13  real perpetrator of these crimes.

14               DNA is only probative in about 

15  10 percent of crimes.  Reforms can increase 

16  accuracy of all investigations.  Each wrongful 

17  conviction proven with the certainty of 

18  post-conviction DNA testing is not only a tragedy 

19  but also an opportunity to learn what misled 

20  police, prosecutors, judges, and jury to believe 

21  that an innocent person was guilty of a heinous 

22  crime.

23               Expanding DNA databases in New York 

24  exacerbates racial disparities and 

25  inefficiencies.  New York already enjoys a robust 

                                                               364

 1  convicted-offender database.  As the New York 

 2  Civil Liberties Union notes, studies of the UK's 

 3  DNA database expansion show clearly diminishing 

 4  returns because most people are unlikely to 

 5  commit serious crimes for which DNA evidence 

 6  might be relevant.  

 7               Because people of color are more 

 8  likely to be stopped, searched, arrested, 

 9  prosecuted and convicted of low-level crimes also 

10  committed by others, the disproportionate racial 

11  impact of the criminal justice system is 

12  exacerbated by the expansion to lower levels of 

13  crime.

14               Familial searching, particularly if 

15  performed without proper protocols, can extend 

16  the racial disparity and disproportionality to 

17  innocent family members.  Local DNA databases and 

18  the practice of familial or partial-match 

19  searches must be regulated by this legislation.  

20               Many of the things that I've asked 

21  for -- most of the things that I've asked for are 

22  not included in this database.  If the idea of 

23  the State of New York is to achieve justice, then 

24  a better bill is required.

25               Thank you, Mr. President.

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 1               ACTING PRESIDENT ROBACH:   Thank 

 2  you, Senator Hassell-Thompson.

 3               Senator Gallivan.

 4               SENATOR GALLIVAN:   Thank you, 

 5  Mr. President.  On the bill.

 6               ACTING PRESIDENT ROBACH:   On the 

 7  bill.

 8               SENATOR GALLIVAN:   As a former law 

 9  enforcement officer, I can say without hesitation 

10  that the use of DNA evidence in criminal 

11  investigations has proven to be the most 

12  effective tool in law enforcement at its disposal 

13  for identifying, arresting, and prosecuting 

14  criminals since the advent of fingerprinting.  

15               Since the state established the DNA 

16  data bank in 1994 there have been no reported 

17  breaches of security or breaches of privacy that 

18  we are aware of.

19               Since the data bank was expanded in 

20  2006, the DNA data bank has thus far assisted in 

21  over 2700 convictions and, as important, 27 

22  exonerations.

23               And I would like to bring to my 

24  colleagues' attention just one case in Western 

25  New York.  In early 1991, an individual was 

                                                               366

 1  charged and convicted with patronizing a 

 2  prostitute.  Had DNA evidence been used back then 

 3  to the extent we're proposing today, it would 

 4  have been discovered that this individual was the 

 5  notorious Western New York serial killer and 

 6  rapist known as the Bike Path Rapist.

 7               Ultimately, DNA evidence collected 

 8  through other means led to the conviction of this 

 9  individual as the Bike Path Rapist in 2007, but 

10  not until after an intervening 16 years.  Many 

11  more women were brutalized, women were murdered, 

12  and a man was falsely accused and convicted and 

13  spent nearly 20 years in prison.

14               This law will ensure justice is 

15  served and, as important, injustice is prevented.

16               Thank you, Mr. President.

17               ACTING PRESIDENT ROBACH:   Thank 

18  you, Senator Gallivan.

19               Senator Marcellino.

20               SENATOR MARCELLINO:   Thank you, 

21  Mr. President.

22               Earlier today I attended a press 

23  conference at which Senator Saland spoke, 

24  Senator Skelos, Senator Gallivan and others 

25  spoke.  And at that press conference were members 

                                                               367

 1  of the law enforcement community from all over 

 2  the state and all levels of the law enforcement 

 3  community.  They spoke with one voice in support 

 4  of this legislation.  

 5               The key theme was that this 

 6  legislation will free the innocent, will 

 7  exonerate the wrongfully accused, and will 

 8  convict the guilty.  That's absolutely an 

 9  imperative.  The bonus, the bonus you just heard 

10  from Senator Gallivan:  It will prevent other 

11  crimes from being committed by career criminals, 

12  these people who go out and do it all the time.  

13  The minor crimes that sometimes we catch them on 

14  are just side issues.  They've committed many, 

15  many others during and before.

16               So this data bank is an imperative 

17  issue, and law enforcement really needs this tool 

18  in order to keep our communities safe.  The whole 

19  idea is to make our communities safe, where 

20  people can raise their families in peace and 

21  security.  

22               This bill may not be the most 

23  perfect bill in the world, but this bill, 

24  according to law enforcement and according to 

25  other levels of government, will go a long way 

                                                               368

 1  towards doing that.

 2               I urge support, and I urge a yes 

 3  vote, and I intend to vote for this bill, 

 4  Mr. President.

 5               ACTING PRESIDENT ROBACH:   Thank 

 6  you, Senator Marcellino.

 7               Senator Golden.

 8               SENATOR GOLDEN:   I too rise, 

 9  Mr. President, to congratulate my colleague 

10  Senator Saland, and of course my leader Dean 

11  Skelos, and all of the Democrats and the 

12  Republicans in this conference that will be 

13  voting for this bill, because it makes good 

14  sense.

15               This bill, if you take a look at 

16  crimes that were committed and the homicides that 

17  were committed in the City of New York in the 

18  1980s and the 1990s, we were killing 2,100 and 

19  2,200 people in 1992-1993, and over 900,000 

20  crimes were being committed.

21               This was put together, this bill, 

22  the DNA bill, in 1993.  This bill helped to put 

23  10,000 people into jail for crimes that they 

24  they'd committed -- 3500 sexual assaults, 

25  900 homicides.  And since we've expanded this 

                                                               369

 1  bill in 2006, another 1400 people have gone to 

 2  jail because of being able to identify those that 

 3  were committing those crimes.

 4               Had we had this earlier, all those 

 5  people that suffered, that suffered because we 

 6  didn't have this tool for the police 

 7  department -- and as we've seen by the Senator 

 8  explaining how this rapist in upstate New York, 

 9  Pat Gallivan, how we went in there and they were 

10  able to take this guy off the street.  Had they 

11  had the information and the tools before, they 

12  could have taken him off earlier off the street, 

13  and people would not have been raped and killed.  

14               This is an important bill to move 

15  forward.  It's a bill that's good for our city 

16  and for our state.  It does what's right for the 

17  families and for the children and for our 

18  communities, and it brings safety to our 

19  communities and to our families.  

20               So I will vote yes on this bill, 

21  and I applaud my colleague for this bill and the 

22  colleagues that will be voting for it.

23               ACTING PRESIDENT ROBACH:   Seeing 

24  no other Senator wishing to be heard, debate is 

25  closed.

                                                               370

 1               Can we ring the bells to get the 

 2  members to the chamber for the vote.  

 3               Read the last section.

 4               THE SECRETARY:   Section 3.  This 

 5  act shall take effect October 1, 2012.

 6               ACTING PRESIDENT ROBACH:   Call the 

 7  roll.

 8               (The Secretary called the roll.)

 9               ACTING PRESIDENT ROBACH:   Senator 

10  Hassell-Thompson to explain her vote.

11               SENATOR HASSELL-THOMPSON:   Thank 

12  you.  Thank you, Mr. President.

13               I have heard the supporting 

14  testimonies by many of my colleagues.  And while 

15  I am totally in agreement with them, my 

16  contention is that this is not just far from 

17  perfect, but this is not even the best bill that 

18  we could possibly offer to the people of the 

19  State of New York.  

20               And while I also have members of 

21  law enforcement in my family and those that I 

22  regard highly, their safety and the safety of all 

23  the citizens of this state are of major concern 

24  to me, but at the same time fairness and justice 

25  runs very close alongside that.  

                                                               371

 1               Therefore, I think that we should 

 2  ask for and require for ourselves the best bill 

 3  that we could possibly do, and this is not it.  I 

 4  will be voting no.

 5               ACTING PRESIDENT ROBACH:   Senator 

 6  Hassell-Thompson will be recorded in the 

 7  negative.

 8               Senator Duane to explain his vote.

 9               SENATOR DUANE:   Thank you, 

10  Mr. President.

11               There's simply no data.  There is 

12  no data that -- well, there's no data.  So 

13  there's no data that proves that there are more 

14  cold-hit convictions.  

15               I think we all know that this 

16  version of a DNA bill is going nowhere.  

17  Obviously we need more discussions generally.  

18  Certainly in this house, both sides; the other 

19  house, both sides.  

20               Those discussions of course should 

21  be around data, of which there is no data that 

22  exists.  There just is no -- there's no data.  It 

23  does not exist.  So until we have real 

24  discussions and we have real data, I'm going to 

25  vote no.  And so obviously on this bill I am 

                                                               372

 1  voting no.

 2               Thank you, Mr. President.

 3               ACTING PRESIDENT ROBACH:   Senator 

 4  Duane will be recorded in the negative.

 5               Senator Perkins to explain his 

 6  vote.

 7               SENATOR PERKINS:   Thank you very 

 8  much.

 9               You know, in the course of the 

10  debate it was pointed out that this is not a 

11  perfect bill.  And the concern I have is when 

12  it's not a perfect bill, who suffers the 

13  imperfection?  

14               And I raise that because, you know, 

15  in case we forget, there was a case that resulted 

16  in a great tragedy because of imperfect use of 

17  technology.  Some of you may remember the Central 

18  Park Five case in which five young men from my 

19  neighborhood, from my district, some of whom 

20  lived in the same development that I lived in, 

21  were railroaded because of racial reasons into 

22  confessing on videotape that they raped the 

23  Central Park jogger.  Technology, you might say, 

24  convicted them.

25               The fact of the matter is that 

                                                               373

 1  those tapes, upon closer review by organizations 

 2  like the Innocence Project, ultimately revealed 

 3  that they were innocent, because in fact the 

 4  tapes were not done properly.  

 5               But because of the railroading and 

 6  the rush to judgment, and the racial climate that 

 7  was taking place at the time -- very often which 

 8  we still see when we talk about stop-and-frisk 

 9  and mass incarceration -- we cannot always assume 

10  that some technology that may be state of the art 

11  is actually going to be used in the way that it 

12  should be used, and in fact whether or not it's 

13  truly the state of the art.

14               So clearly just the notion, just 

15  the recognition that this science is not perfect 

16  raises for me the concern as to who will become 

17  the victims of its imperfection.  And 

18  unfortunately, in the context in which we are 

19  today as far as justice is concerned, as far as 

20  policing and other kinds of such efforts are 

21  concerned, the victims tend to be, for the most 

22  part, people of color.

23               And so I cannot at this point 

24  support this particular bill, not to mention that 

25  it's a one-house bill on top of it.  But I think 

                                                               374

 1  that there are opportunities for us to look at 

 2  this bill closer.  We should be having hearings 

 3  around a bill like this, we should be hearing 

 4  from other experts, others who are in the civil 

 5  rights and the civil justice community, before we 

 6  begin to rush and pass a very, very touchy bill 

 7  such as this.  

 8               It was earlier mentioned others who 

 9  supposedly had DNA evidence that would have 

10  released them from having served, and that DNA 

11  evidence was lost until after that person had 

12  served -- his name was Alan Newton -- had served 

13  a substantial amount of time.

14               So I think we should take a much 

15  more careful look at this, to the extent that we 

16  would not be able to say this is not a perfect 

17  bill, because then we would be opening up the 

18  door for those imperfections to be affecting 

19  someone and especially people of color.  And 

20  that's a very big concern of mine.

21               ACTING PRESIDENT ROBACH:   Thank 

22  you, Senator Perkins.

23               SENATOR PERKINS:   Thank you.  I'm 

24  going to be voting no --

25               ACTING PRESIDENT ROBACH:   Recorded 

                                                               375

 1  in the negative --

 2               SENATOR PERKINS:  -- and I look 

 3  forward to revisiting this at a time in the 

 4  future.

 5               ACTING PRESIDENT ROBACH:   Senator 

 6  Perkins to be recorded in the negative.

 7               Senator Saland.

 8               SENATOR SALAND:   Thank you, 

 9  Mr. President.  Just to briefly explain my vote 

10  and perhaps clear up some misconceptions.  

11               Number one, when one takes DNA, the 

12  only thing that DNA basically tells you regarding 

13  physical characteristics is gender.  It doesn't 

14  tell you anything about race, ethnicity, color of 

15  your eyes, color of your hair, anything else.

16               Number two, many of the things that 

17  have been referred to here on the floor are 

18  totally extraneous to the issue of taking of 

19  DNA.  Some of the things that the Innocence 

20  Project have in the Assembly bill just have no 

21  relationship whatsoever to the taking of DNA.  

22               They want to ensure that 

23  confessions are videotaped.  That has no 

24  relevance whatsoever to DNA.  It's totally 

25  extraneous.  That takes up a large part of the 

                                                               376

 1  Assembly bill to which allusion was made earlier.

 2               We do not allow the taking of 

 3  familial DNA.  The law doesn't permit it.  So 

 4  that takes care of that one.

 5               This is supported not only by law 

 6  enforcement but by victims' advocacy groups.  The 

 7  bottom line is that this bill is a bill that 

 8  ensures public safety to a greater degree than it 

 9  currently is, a vastly greater degree.

10               And I would merely point out two 

11  statistics provided through the offices of DCJS.  

12  Approximately 89 percent of the 3,547 offenders 

13  linked to a sexual assault through DNA were in 

14  the data bank for a non-sex crime such as petit 

15  larceny or trespassing.  

16               Expanding the DNA data bank will 

17  help bring justice to victims of color.  In 2010, 

18  86.7 percent of the victims of nondomestic 

19  homicide were black or Hispanic.  Holding their 

20  attackers accountable will make their communities 

21  and the whole of New York State safer.  

22               I vote in the affirmative.

23               ACTING PRESIDENT ROBACH:   Announce 

24  the results.

25               THE SECRETARY:   In relation to 

                                                               377

 1  Calendar 128, those recorded in the negative are 

 2  Senators Breslin, Duane, Hassell-Thompson, 

 3  Montgomery, Parker, Perkins, Rivera, and Serrano.

 4               Absent from voting:  Senator 

 5  Espaillat.

 6               Absent from voting pursuant to 

 7  Rule 9:  Senators DeFrancisco, Dilan, Krueger, 

 8  and Nozzolio.

 9               Ayes, 47.  Nays, 8.

10               ACTING PRESIDENT ROBACH:   The bill 

11  is passed.

12               Senator Libous.

13               SENATOR LIBOUS:   Thank you, 

14  Mr. President.  Is there any further business at 

15  the desk?  

16               ACTING PRESIDENT ROBACH:   There is 

17  none.

18               SENATOR LIBOUS:   Mr. President, 

19  I'm calling an immediate meeting of the Health 

20  Committee in Room 124.  There will be an 

21  immediate meeting of the Health Committee in 

22  Room 124.

23               There being no further business 

24  before the Senate today, I move that we adjourn 

25  until Monday, February 6th, at 3:00 p.m. -- the 

                                                               378

 1  day after the Giants will win the Super Bowl, 

 2  Mr. President -- intervening days being 

 3  legislative days.

 4               ACTING PRESIDENT ROBACH:   On 

 5  motion, the Senate stands adjourned until Monday, 

 6  February 6, at 3:00 p.m., intervening days being 

 7  legislative days.

 8               (Whereupon, at 12:49 p.m., the 

 9  Senate adjourned.)

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