Establishes the crime of failure to retreat when a person who is within twenty-five feet of a police officer or peace officer engaged in the performance of his or her duties and the police officer or peace officer orders such person to halt or retreat and the person fails to do so immediately; requires the posting of bail.
STATE OF NEW YORK
________________________________________________________________________
77
2023-2024 Regular Sessions
IN SENATE(Prefiled)
January 4, 2023
___________
Introduced by Sens. GALLIVAN, BORRELLO, GRIFFO, HELMING, LANZA, MATTERA,
OBERACKER, O'MARA, ORTT, PALUMBO, STEC, TEDISCO, WEIK -- read twice
and ordered printed, and when printed to be committed to the Committee
on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to establishing the crime of failure to retreat
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding a new section 205.40 to
2 read as follows:
3 § 205.40 Failure to retreat.
4 A person is guilty of failure to retreat when he or she is within
5 twenty-five feet of a police officer or peace officer engaged in the
6 performance of his or her duties and the police officer or peace officer
7 orders such person to halt or retreat and the person fails to do so
8 immediately.
9 An individual shall not be guilty of this offense if such individual
10 (a) suffers from a physical disability or physical injury and halting or
11 retreating would exacerbate such disability or injury, or (b) a physical
12 barrier makes it physically impossible for the individual to halt or
13 retreat.
14 Under this section, police officer and peace officer are as defined
15 under section 1.20 of the criminal procedure law.
16 Failure to retreat is a class D felony.
17 § 2. Paragraphs (t) and (u) of subdivision 4 of section 510.10 of the
18 criminal procedure law, paragraph (t) as amended and paragraph (u) as
19 added by section 2 of subpart B of part UU of chapter 56 of the laws of
20 2022, are amended and a new paragraph (v) is added to read as follows:
21 (t) any felony or class A misdemeanor involving harm to an identifi-
22 able person or property, or any charge of criminal possession of a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00541-01-3
S. 77 2
1 firearm as defined in section 265.01-b of the penal law, where such
2 charge arose from conduct occurring while the defendant was released on
3 his or her own recognizance, released under conditions, or had yet to be
4 arraigned after the issuance of a desk appearance ticket for a separate
5 felony or class A misdemeanor involving harm to an identifiable person
6 or property, or any charge of criminal possession of a firearm as
7 defined in section 265.01-b of the penal law, provided, however, that
8 the prosecutor must show reasonable cause to believe that the defendant
9 committed the instant crime and any underlying crime. For the purposes
10 of this subparagraph, any of the underlying crimes need not be a quali-
11 fying offense as defined in this subdivision. For the purposes of this
12 paragraph, "harm to an identifiable person or property" shall include
13 but not be limited to theft of or damage to property. However, based
14 upon a review of the facts alleged in the accusatory instrument, if the
15 court determines that such theft is negligible and does not appear to be
16 in furtherance of other criminal activity, the principal shall be
17 released on his or her own recognizance or under appropriate non-mone-
18 tary conditions; [or]
19 (u) criminal possession of a weapon in the third degree as defined in
20 subdivision three of section 265.02 of the penal law or criminal sale of
21 a firearm to a minor as defined in section 265.16 of the penal law[.];
22 or
23 (v) failure to retreat as defined in section 205.40 of the penal law.
24 § 3. Subparagraphs (xx) and (xxi) of paragraph (b) of subdivision 1 of
25 section 530.20 of the criminal procedure law, subparagraph (xx) as
26 amended and subparagraph (xxi) as added by section 4 of subpart C of
27 part UU of chapter 56 of the laws of 2022, are amended and a new subpar-
28 agraph (xxii) is added to read as follows:
29 (xx) any felony or class A misdemeanor involving harm to an identifi-
30 able person or property, or any charge of criminal possession of a
31 firearm as defined in section 265.01-b of the penal law where such
32 charge arose from conduct occurring while the defendant was released on
33 his or her own recognizance, released under conditions, or had yet to be
34 arraigned after the issuance of a desk appearance ticket for a separate
35 felony or class A misdemeanor involving harm to an identifiable person
36 or property, provided, however, that the prosecutor must show reasonable
37 cause to believe that the defendant committed the instant crime and any
38 underlying crime. For the purposes of this subparagraph, any of the
39 underlying crimes need not be a qualifying offense as defined in this
40 subdivision. For the purposes of this paragraph, "harm to an identifi-
41 able person or property" shall include but not be limited to theft of or
42 damage to property. However, based upon a review of the facts alleged in
43 the accusatory instrument, if the court determines that such theft is
44 negligible and does not appear to be in furtherance of other criminal
45 activity, the principal shall be released on his or her own recognizance
46 or under appropriate non-monetary conditions; [or]
47 (xxi) criminal possession of a weapon in the third degree as defined
48 in subdivision three of section 265.02 of the penal law or criminal sale
49 of a firearm to a minor as defined in section 265.16 of the penal
50 law[.]; or
51 (xxii) failure to retreat as defined in section 205.40 of the penal
52 law.
53 § 4. Paragraphs (t) and (u) of subdivision 4 of section 530.40 of the
54 criminal procedure law, paragraph (t) as amended and paragraph (u) as
55 added by section 4 of subpart B of part UU of chapter 56 of the laws of
56 2022, are amended and a new paragraph (v) is added to read as follows:
S. 77 3
1 (t) any felony or class A misdemeanor involving harm to an identifi-
2 able person or property, or any charge of criminal possession of a
3 firearm as defined in section 265.01-b of the penal law, where such
4 charge arose from conduct occurring while the defendant was released on
5 his or her own recognizance, released under conditions, or had yet to be
6 arraigned after the issuance of a desk appearance ticket for a separate
7 felony or class A misdemeanor involving harm to an identifiable person
8 or property, or any charge of criminal possession of a firearm as
9 defined in section 265.01-b of the penal law, provided, however, that
10 the prosecutor must show reasonable cause to believe that the defendant
11 committed the instant crime and any underlying crime. For the purposes
12 of this subparagraph, any of the underlying crimes need not be a quali-
13 fying offense as defined in this subdivision. For the purposes of this
14 paragraph, "harm to an identifiable person or property" shall include
15 but not be limited to theft of or damage to property. However, based
16 upon a review of the facts alleged in the accusatory instrument, if the
17 court determines that such theft is negligible and does not appear to be
18 in furtherance of other criminal activity, the principal shall be
19 released on his or her own recognizance or under appropriate non-mone-
20 tary conditions; [or]
21 (u) criminal possession of a weapon in the third degree as defined in
22 subdivision three of section 265.02 of the penal law or criminal sale of
23 a firearm to a minor as defined in section 265.16 of the penal law[.];
24 or
25 (v) failure to retreat as defined in section 205.40 of the penal law.
26 § 5. This act shall take effect on the thirtieth day after it shall
27 have become a law.
