Feb 26, 2008

Top of Form 1
Date: 02/26/2008
Session: Regular
468
1 NEW YORK STATE SENATE
4 THE STENOGRAPHIC RECORD
9 ALBANY, NEW YORK
10 February 26, 2008
11 3:08 p.m.
12
13
14 REGULAR SESSION
15
16
17
18 SENATOR CARL L. MARCELLINO, Acting President
19 STEVEN M. BOGGESS, Secretary
20
21
22
23
24
25
Candyco Transcription Service, Inc.

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1 P R O C E E D I N G S
2 ACTING PRESIDENT MARCELLINO: The
3 Senate will come to order.
4 I ask everyone present to please
5 rise and recite the Pledge of Allegiance.
6 (Whereupon, the assemblage recited
7 the Pledge of Allegiance to the Flag.)
8 ACTING PRESIDENT MARCELLINO:
9 Today to give the invocation we have
10 Dr. Charles Jennings, pastor of the Ridgewood
11 Bible Church in Lockport.
12 PASTOR JENNINGS: Thank you for
13 inviting me to this noble chamber. May I
14 invite you to join with me to approach the
15 throne of heaven.
16 Almighty God, we thank You, Lord,
17 that it is by Your design and Your purpose
18 that You have created us for intimacy with
19 You. And Lord God, I'm amazed at such amazing
20 grace, that You would want us to experience a
21 relationship with You, the living creator.
22 And so, Father, I ask, Lord, that
23 by Your mercy and grace You would work in our
24 lives. Father, draw us to learn more of Your
25 love, Your great love for us, and learn to

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1 love You more.
2 Almighty God, Creator, Father, I
3 thank You, Lord, that You've also created us
4 in Your image, that we can reflect even Your
5 character in this world. And I pray for all
6 that are gathered in this room today that we
7 might learn to reflect Your holiness, Your
8 goodness, Your kindness, Your justice.
9 Father God, may we learn to love
10 others, even one another, as You have loved
11 us. Almighty God, I thank You, King of the
12 universe, that You have also created us to
13 exercise dominion in this earth according to
14 Your will.
15 And I ask for these Senators,
16 Father God, that You would work in their lives
17 to enable them, to empower them, to grant them
18 wisdom, that they might exercise their
19 legislative power and their governing
20 abilities to accomplish Your purposes.
21 Father, You have revealed to us
22 even through Your prophet Micah that You
23 desire for us to do justly and to love mercy
24 and to walk humbly with our God.
25 And so, Lord God, I ask, Father,

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1 that You would work in a mighty way to lead

2 these noble Senators to do justly. O Father,
3 I would pray, Lord, that You would also guide
4 them to love mercy. And O Father, may You
5 draw them to walk humbly with You.
6 And so, Father, I ask that Your
7 blessing would be upon them, their staff,
8 their families and this great work that You
9 have called them to.
10 For I ask this all in the great
11 name of my savior, the Lord Jesus Christ.
12 Amen.
13 ACTING PRESIDENT MARCELLINO: May
14 we have the reading of the Journal, please.
15 THE SECRETARY: In Senate,
16 Monday, February 25, the Senate met pursuant
17 to adjournment. The Journal of Friday,
18 February 22, was read and approved. On
19 motion, Senate adjourned.
21 Hearing no objection, the Journal stands
22 approved as read.
23 Presentation of petitions.
24 Messages from the Assembly.
25 Messages from the Governor.

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1 Reports of standing committees.
2 Reports of select committees.
3 Communications and reports from
4 state officers.
5 Motions and resolutions.
6 Senator Skelos.
7 SENATOR SKELOS: Mr. President, I
8 believe there's a substitution at the desk, if
9 we could make it at this time.
11 Secretary will read the substitution.
12 THE SECRETARY: On page 25,
13 Senator Skelos moves to discharge, from the
14 Committee on Codes, Assembly Bill Number 9480
15 and substitute it for the identical Senate
16 Bill Number 6499, Third Reading Calendar 322.
18 Substitution ordered.
19 Senator Skelos.
20 SENATOR SKELOS: Mr. President,
21 if we could adopt the Resolution Calendar,
22 with the exception of Resolutions 4270, 4271,
23 and 4366.
25 question is on the adoption of the Resolution

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1 Calendar, with the exception of Resolutions
2 4270, 4271, and 4366. All in favor signify by
3 saying aye.
4 (Response of "Aye.")
6 Opposed, nay.
7 (No response.)
9 Resolution Calendar is adopted, with the
10 exceptions that were mentioned by the Deputy
11 Majority Leader.
12 Senator Skelos.
14 there's a resolution by Senator Thompson at
15 the desk. If we could have the title read,
16 move for its immediate adoption, and Senator
17 Thompson has offered it up for cosponsorship.
19 Secretary will read.
20 THE SECRETARY: By Senator
21 Thompson, Legislative Resolution Number 4270,
22 memorializing Governor Eliot Spitzer to
23 proclaim March of 2008 as Red Cross Month in
24 the State of New York.
25 ACTING PRESIDENT MARCELLINO: On

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1 the resolution, all in favor signify by saying
2 aye.
5 Opposed, nay.
6 (No response.)
8 resolution is adopted.
9 And the resolution is open for
10 cosponsorship by the usual procedure, that if

11 anyone wishes not to be on it they should
12 notify the desk.
13 Senator Skelos.
15 Senator Thompson has another resolution at the
16 desk. If we could have the title read, move
17 for its immediate adoption, and open it up for
18 cosponsorship.
22 Thompson, Legislative Resolution Number 4271,
23 recognizing March 8, 2008, as International
24 Women's Day in the State of New York.

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2 aye.
5 Opposed, nay.
6 (No response.)
9 And again, the usual procedure.
10 Anyone not wanting to be on the resolution
11 please notify the desk.
12 Senator Skelos.

14 there's a resolution at the desk by Senator
15 Volker. If we could have the title read, move
16 for its immediate adoption, and open it up for
17 cosponsorship.
21 Volker, Legislative Resolution Number 4366,
23 proclaim April 27 through May 3, 2008, as
24 Municipal Clerks Week in the State of
25 New York.

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3 aye.
6 Opposed, nay.
7 (No response.)
10 Again, anyone wishing not to be on
11 this resolution please notify the desk.
12 Senator Skelos.
14 there's a resolution at the desk by Senator
15 Griffo. If we could have it read in its
16 entirety and move for its immediate adoption.

18 Secretary will please read the resolution.
20 Griffo, Legislative Resolution Number 4434,
22 proclaim February 26, 2008, as Spina Bifida
23 Awareness and Prevention Day in the State of
24 New York.
25 "WHEREAS, Spina bifida is a birth

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1 defect that involves the incomplete
2 development of the spinal cord or its
3 coverings; and
4 "WHEREAS, Spina bifida occurs at
5 the end of the first month of pregnancy; and
6 "WHEREAS, Neural tube defects are
7 costly and can result in lifelong disabilities
8 and death; and
9 "WHEREAS, There are many
10 New Yorkers living with spina bifida for whom
11 health and support services are critical to
12 their well-being and improving their quality
13 of life; and
14 "WHEREAS, Every year in the United
15 States approximately 3,000 pregnancies are
16 negatively impacted by neural tube defects;
17 and
18 "WHEREAS, Folic acid is the single
19 most effective weapon against spina bifida;

20 and
21 "WHEREAS, January 7-13, 2008, was
22 National Folic Acid Awareness Week; and
23 "WHEREAS, Studies have shown that
24 taking folic acid decreases the risk of neural
25 tube defects; and

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1 "WHEREAS, It is estimated that
2 50 percent of all pregnancies are unplanned.
3 Folic acid education can help women of
4 childbearing age understand the benefits of
5 taking a daily multivitamin to avoid these
6 birth defects; and
7 "WHEREAS, Experts recommend that
8 all women of childbearing age in the United
9 States who are capable of becoming pregnant
10 should consume 400 micrograms of folic acid
11 per day for the purpose of reducing their risk
12 of having a pregnancy affected with spina
13 bifida; and
14 "WHEREAS, In 2003, 1,000 fewer
15 babies were born with a serious birth defect
16 of the brain and spine because of the
17 B-vitamin folic acid; and
18 "WHEREAS, It is the sense of this
19 Legislative Body to recognize this day in the
20 State of New York to raise awareness regarding
21 the challenges of living with spina bifida and
22 steps that can be taken to prevent spina

23 bifida; now, therefore, be it
24 "RESOLVED, That this Legislative
25 Body pause in its deliberations to memorialize

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1 Governor Eliot Spitzer to proclaim
2 February 26, 2008, as Spina Bifida Awareness
3 and Prevention Day in the State of New York;
4 and be it further
5 "RESOLVED, That copies of this
6 resolution, suitably engrossed, be transmitted
7 to the Honorable Eliot Spitzer, Governor of
8 the State of New York, and the Spina Bifida
9 Association of Albany/Capital District of
10 New York."
11 ACTING PRESIDENT MARCELLINO: To
12 speak on the resolution, Senator Griffo.
13 SENATOR GRIFFO: Thank you,
14 Mr. President.
15 As I was approached by individuals
16 involved with the fight against spina bifida,
17 I found this very interesting and very
18 challenging as we look at healthcare in
19 general.
20 We always are concerned, as we look
21 to wellness efforts, to provide education and
22 awareness to specific issues and concerns
23 related to health and wellness. Also,
24 prevention -- what type of undertakings can we
25 enlist that will prevent, through examinations

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1 or taking certain medication to help prevent
2 certain activity or illness. And beyond that,
3 the most important element is the research
4 that can be conducted so in the future we can
5 prevent some of this.
6 The statistics were somewhat
7 alarming in this particular case. There are,
8 in this country, over 65 million women of
9 childbearing age. Over 50 percent of the
10 pregnancies are unplanned.
11 And this spina bifida can occur
12 without any kind of indication. It doesn't
13 matter the family history. There isn't
14 anything that can truly tell anybody how to
15 expect this. So many families are so
16 surprised when this diagnosis appears during
17 the pregnancy.
18 So I think it's important, the
19 recent research by the CDC shows that we have
20 cases of over 70,000 people in the United
21 States living with this birth defect and that
22 by right now taking a multivitamin with
23 B-vitamin with folic acid we can help prevent
24 some of this during the early stages of
25 pregnancy.

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1 I find that it is imperative that

2 we as a state begin to partner with
3 organizations who are trying to increase
4 awareness and trying to educate and inform not
5 only the medical profession but individuals,
6 particularly of childbearing age, of the risks
7 absorbed with spina bifida.
8 So today this is the beginning, to
9 continue to raise awareness, to talk about the
10 prevention techniques that can be utilized,
11 and also that we continue to urge for a
12 partnership in developing the research to try
13 to help cure this.
14 And today in the west gallery we
15 have a number of individuals who have been
16 very involved from the Capital Region. I want
17 to introduce Karen Wentworth, who's the
18 executive director of the Spina Bifida
19 Association in Scotia. The Gallagher family
20 is here. The Wyszomirski family is here.
21 But there are three people I want
22 to really identify, three individuals who have
23 had spina bifida and are living with spina
24 bifida. One is a young adult by the name of
25 Shameka Andrews. She has been Miss Wheelchair

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1 New York for 2006, and she is from Albany.
2 The other is Alexa Wyszomirski, from Colonie,
3 and she has spina bifida. And the youngster
4 up there -- I met with all of these

5 individuals earlier. They're quite
6 interesting people and have some interesting
7 stories. And I want to introduce also
8 Madeline Gallagher, Matte Gallagher, who's up
9 there too, up in the west gallery.
10 So we want to thank all of you for
11 your efforts in continuing to help us educate,
12 to prevent as much as possible, and to
13 encourage research and partnership so we can
14 prevent this from occurring to other families
15 across this state. So thank you very much.
16 Thank you, Mr. President.
18 Senator Breslin, on the resolution.
19 SENATOR BRESLIN: Thank you,
20 Mr. President.
21 I salute you, Senator Griffo, for
22 introducing this resolution and for giving us
23 information about spina bifida.
24 As many of you may not know, spina
25 bifida, there are more cases than muscular

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1 dystrophy, cystic fibrosis, and multiple
2 sclerosis combined in this country.
3 And I look up and see members of
4 the Gallagher family, a very prominent family
5 in the Albany area that I've respected for
6 many, many years. And I commend you for your
7 outreach work and your work to tell others how

8 you can prepare before and during pregnancy to
9 prevent this disease.
10 Thank you very much, Mr. President.
12 Thank you, Senator.
13 Senator Stachowski.
14 SENATOR STACHOWSKI: I too would
15 like to rise and congratulate Senator Griffo
16 on this resolution.
17 I have a friend that I used to
18 share a house with when I was younger, after
19 college. And when he got married, his first
20 daughter was born. And we were all looking
21 forward to it because he was 6-foot-6 and his
22 wife was 6-foot-3. And we thought even if
23 it's a girl, it's going to be this great
24 athlete.
25 And his daughter had spina bifida.

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1 And they told him that she would be dead by
2 the time she was eight months old. And she
3 just had her 30th birthday, and she's doing
4 very well.
5 But in the course of that, I was
6 involved with the Spina Bifida Association in
7 Western New York, and they picked up a really
8 high-profile board member whose husband's name
9 is Scotty Bowman. And they lived in Buffalo
10 ever since he was a scout there. And

11 Mrs. Bowman got high profile for them, and
12 they still do a lot of active work.
13 And I just wanted to commend you on
14 your advocacy, and congratulations on being
15 loving parents to a challenged child.
16 And I just again want to thank
17 Senator Griffo for sponsoring this resolution
18 and making more people aware of this health
19 problem.
20 Thank you.
21 ACTING PRESIDENT MARCELLINO: Any
22 other Senator wishing to be heard on this
23 resolution?
24 Seeing none, all in favor of the
25 resolution signify by saying aye.

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3 Opposed, nay.
4 (No response.)
6 Hearing none, the resolution is adopted.
7 Senator Skelos.
8 SENATOR SKELOS: If we could go
9 to the noncontroversial reading of the
10 calendar.
12 Secretary will read the noncontroversial
13 calendar.
14 THE SECRETARY: Calendar Number
15 186, by Senator DeFrancisco, Senate Print
16 2063, an act to amend the Estates, Powers and
17 Trusts Law, in relation to distribution.
19 Read the last section.
20 THE SECRETARY: Section 2. This
21 act shall take effect on the first of January.
23 Call the roll.
24 (The Secretary called the roll.)
25 THE SECRETARY: Ayes, 48.

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2 bill is passed.
4 243, by Senator Fuschillo, Senate Print 5047,
5 an act to amend the General Business Law and
6 the Correction Law, in relation to the use of
7 inmate labor.
11 act shall take effect on the 90th day.
13 Call the roll.

17 bill is passed.
19 272, by Senator Golden, Senate Print 1148, an
20 act to amend the Executive Law, in relation to
21 designating.
25 act shall take effect on the first of January.

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2 Call the roll.
6 bill is passed.
8 275, by Senator LaValle, Senate Print 1244, an
9 act to amend the Education Law, in relation to
10 inclusion.
14 act shall take effect immediately.
16 Call the roll.

20 bill is passed.
22 308, by Senator Skelos, Senate Print 432A, an
23 act to amend the Penal Law, in relation to
24 sexual assault.

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3 act shall take effect on the first of
4 November.
6 Call the roll.
10 bill is passed.
12 310, by Senator Nozzolio, Senate Print 703C,
13 an act to amend the Penal Law, in relation to
14 adding.
19 November.
21 Call the roll.

24 Senator Nozzolio, to explain his vote.
25 SENATOR NOZZOLIO: Thank you,

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1 Mr. President.
2 Mr. President and my colleagues,
3 the measure we have before us today is
4 extremely important because the numbers of
5 people affected are growing exponentially each
6 day. It's estimated that one in 15 children
7 ages 10 to 17 have been threatened or harassed
8 while they have been online. That there is
9 cyberbullying and cyberbullies that are
10 praying on their peers and young people from
11 across this nation.
12 One of those young courageous
13 individuals, a young lady by the name of
14 Alexandra Emanuel, from Auburn, New York,
15 brought this issue to my attention, an issue
16 that is confronting our communities in every
17 corner of New York and is unfortunately seeing
18 more and more children suffering across
19 America.
20 This enhances the penalties for
21 anyone who engages in cyberbullying. Violence
22 at any level, whether it be on the schoolyard
23 or on the computer online, should not be
24 tolerated.
25 And the ramifications of the

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1 activity are enormous. We've seen children
2 engage in very destructive behavior as victims
3 of cyberbullying. Some have even committed
4 suicide as a result of being harassed,
5 continually harassed online.
6 This legislation draws the line.
7 And I want to thank, again, Alex Emanuel for
8 her courage in helping us move this issue
9 forward.
10 We have a way to go. The New York
11 State Assembly needs to follow our lead and
12 enact this legislation. It's my hope that
13 with our leadership today in enacting this
14 bill, we will see the Assembly follow suit
15 soon after and protect the children of
16 New York State.
17 Mr. President, I support this
18 measure, and I'm urging my colleagues to do
19 likewise. And I appreciate their support.
21 Senator Nozzolio will be recorded in the
22 affirmative.
23 Please announce the results.
24 THE SECRETARY: Ayes, 52. Nays,
25 0.

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2 bill is passed.
4 312, by Senator Little, Senate Print 1116B, an
6 providing.
11 November.
13 Call the roll.
16 Senator Little, to explain her vote.
17 SENATOR LITTLE: Thank you,
18 Mr. President.
19 This is a bill that I've sponsored
20 for the past three years. It has passed the
21 Senate unanimously for the past two years.
22 It's a topic that received a great
23 deal of attention last fall when there was a
24 report made about the number of teachers and
25 school employees having relationships with

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1 students, inappropriate relationships with
2 students within their school district.
3 We've also seen a lot of attention
4 given to teachers who have had relationships

5 with students who are under the age of 17, and
6 that results in statutory rape.
7 What this bill does is this bill
8 amends Section 130 of the Penal Law, which
9 talks about client-patient relationships, and
10 says that any teacher or employee or volunteer
11 of a school district cannot have a sexual
12 relationship with any student, full-time
13 student of that school.
14 Now, it exempts anyone when there
15 is less than a four-year differential or when
16 two people are married.
17 But what we have seen happen -- and
18 I have examples of this in my district -- is a
19 teacher who has a relationship with a
20 17-or-18-year-old student, and you cannot deny
21 that that teacher holds something over, power
22 over that student.
23 I've read in an affidavit --
25 Excuse me, Senator. If we could just keep it

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1 down. The stenographer is having trouble
2 hearing. Thank you.
3 Senator.
4 SENATOR LITTLE: I've read in an
5 affidavit where a teacher said they would not
6 give a recommendation to that student in the
7 class and for the college that they intended

8 to go to.
9 So this is really a serious issue
10 that happens to many students in New York
11 State. What happens after it becomes known is
12 the teacher is usually released from that
13 school, loses their job. However, there is no
14 real penalty here.
15 And in one case we found that the
16 teacher had a relationship with a 17-year-old
17 girl. Three years before, he'd had a
18 relationship with another 17-year-old-girl,
19 and a few years before that he'd had another
20 relationship with another 17-year-old. The
21 entire time, he was married.
22 So what this bill does is
23 approaches that and makes a penalty out of any
24 of these inappropriate relationships between a
25 member of a school district -- an employee, a

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1 volunteer -- and a full-time student of that
2 district.
3 I vote aye, and I thank my
4 colleagues for supporting this bill.
6 Senator Little will be recorded in the
7 affirmative.
8 Announce the results, please.
10 0.
12 bill is passed.
14 316, by Senator Skelos, Senate Print 2374, an
15 act to amend the Criminal Procedure Law, in
16 relation to the statute of limitations.
20 act shall take effect immediately.
22 Call the roll.
25 Senator DeFrancisco, to explain his vote.

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1 SENATOR DeFRANCISCO: Yes, I'm
2 going to vote aye on this legislation, but I
3 just want to put on the record that when there
4 is further negotiations on this type of bill,
5 which I'm in favor of -- namely, to keep open
6 a case and extend the statute of limitations
7 when DNA evidence is found at the scene and
8 there's no match, simply because there's no
9 match in the system at that point -- the
10 objectionable part that I hope will be
11 corrected is the fact that under the other two
12 examples of where the statute of limitations
13 is extended -- namely, where the

14 identification of an individual is
15 continuously known but they couldn't find him,
16 or the person was continuously out of the
17 jurisdiction -- on each of those they said, at
18 the outside, it's extended by five additional
19 years beyond the normal statute of
20 limitations.
21 That is not the case in this new
22 category where DNA evidence is found at the
23 scene. I think there should be an outside
24 limit -- although there should be an extension
25 of time to try to find the perpetrator, there

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1 ought to be some definite outside limit than
2 infinity.
3 So hopefully when this goes
4 further, we would have some kind of limit in
5 that legislation.
6 I vote aye.
8 Senator DeFrancisco will be recorded in the
9 affirmative.
10 Announce the results, please.
12 1. Senator Duane recorded in the negative.
14 bill is passed.
16 318, by Senator Lanza, Senate Print 4053, an

18 making Internet impersonation a crime.
23 November.
25 Call the roll.

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4 bill is passed.
6 322, substituted earlier today by Member of
7 the Assembly Lentol, Assembly Print Number
8 9480, an act to amend the Penal Law, in
9 relation to aggravated harassment.
14 November.
16 Call the roll.
19 Senator Skelos, to explain his vote.

21 this legislation that passed the Senate last
22 year -- and hopefully the Assembly will pass
23 it this year -- would make it a crime of
24 aggravated harassment if a person displays a
25 noose with the intent to harass, annoy,

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1 threaten or alarm another individual.
2 This would be similar to what
3 exists in the Penal Law right now concerning
4 the display of swastikas or burning a cross.
6 Senator Skelos will be recorded in the
7 affirmative.
8 Senator Skelos.
9 SENATOR SKELOS: I apologize, the
10 Assembly did pass the bill this year. Not
11 last year. They have passed it. So hopefully
12 now I'll amend my statement and say I hope the
13 Governor signs the bill.
15 Your amended statement is accepted. You'll
16 still be recorded in the affirmative, sir.
17 Announce the results.
19 0.
21 bill is passed.
22 Senator Skelos, that completes the

23 calendar.
25 is there any further business at the desk?

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2 desk is clear, sir.
3 SENATOR SKELOS: There being
4 none, I move we stand adjourned until
5 Wednesday, February 27th, at 11:00 a.m.
7 motion, the Senate will stand adjourned until
8 Wednesday, February 27th, at 11:00 a.m.
9 (Whereupon, at 3:36 p.m., the
10 Senate adjourned.)
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Top of Form 1

1 NEW YORK STATE SENATE

4 THE STENOGRAPHIC RECORD

9 ALBANY, NEW YORK

10 February 26, 2008

18 SENATOR CARL L. MARCELLINO, Acting President

19 STEVEN M. BOGGESS, Secretary

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2 ACTING PRESIDENT MARCELLINO: The

3 Senate will come to order.

4 I ask everyone present to please

5 rise and recite the Pledge of Allegiance.

6 (Whereupon, the assemblage recited

7 the Pledge of Allegiance to the Flag.)

8 ACTING PRESIDENT MARCELLINO:

9 Today to give the invocation we have

10 Dr. Charles Jennings, pastor of the Ridgewood

11 Bible Church in Lockport.

12 PASTOR JENNINGS: Thank you for

13 inviting me to this noble chamber. May I

14 invite you to join with me to approach the

16 Almighty God, we thank You, Lord,

17 that it is by Your design and Your purpose

18 that You have created us for intimacy with

19 You. And Lord God, I'm amazed at such amazing

20 grace, that You would want us to experience a

21 relationship with You, the living creator.

22 And so, Father, I ask, Lord, that

23 by Your mercy and grace You would work in our

24 lives. Father, draw us to learn more of Your

25 love, Your great love for us, and learn to

1 love You more.

2 Almighty God, Creator, Father, I

3 thank You, Lord, that You've also created us

4 in Your image, that we can reflect even Your

5 character in this world. And I pray for all

6 that are gathered in this room today that we

7 might learn to reflect Your holiness, Your

8 goodness, Your kindness, Your justice.

9 Father God, may we learn to love

10 others, even one another, as You have loved

11 us. Almighty God, I thank You, King of the

12 universe, that You have also created us to

13 exercise dominion in this earth according to

15 And I ask for these Senators,

16 Father God, that You would work in their lives

17 to enable them, to empower them, to grant them

18 wisdom, that they might exercise their

19 legislative power and their governing

20 abilities to accomplish Your purposes.

21 Father, You have revealed to us

22 even through Your prophet Micah that You

23 desire for us to do justly and to love mercy

24 and to walk humbly with our God.

25 And so, Lord God, I ask, Father,

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1 that You would work in a mighty way to lead

3 I would pray, Lord, that You would also guide

4 them to love mercy. And O Father, may You

5 draw them to walk humbly with You.

6 And so, Father, I ask that Your

7 blessing would be upon them, their staff,