Authorizes a person to use physical force, including deadly physical force in defense of a person, in defense of a premises or in defense of a dwelling, residence or vehicle under specific circumstances; creates a presumption that a reasonable fear of death or great bodily harm exists under certain circumstances.
STATE OF NEW YORK
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3211
2009-2010 Regular Sessions
IN SENATE
March 12, 2009
___________
Introduced by Sens. MAZIARZ, LARKIN, MORAHAN, RANZENHOFER, SEWARD --
read twice and ordered printed, and when printed to be committed to
the Committee on Codes
AN ACT to amend the penal law, in relation to authorizing a person to
use physical force, including deadly physical force in defense of a
person, in defense of a premises or in defense of a dwelling, resi-
dence or vehicle under specific circumstances and in relation to
creating a presumption that a reasonable fear of death or great bodily
harm exists under certain circumstances; and repealing certain
provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 35.15 of the penal law is REPEALED and a new
2 section 35.15 is added to read as follows:
3 § 35.15 Justification; use of physical force in defense of a person.
4 1. A person is justified in the use of physical force, except deadly
5 physical force, against another when and to the extent that the person
6 reasonably believes that such conduct is necessary to defend himself or
7 herself or another against the other's imminent use of unlawful force.
8 2. A person is justified in the use of deadly physical force and does
9 not have a duty to retreat if:
10 (a) he or she reasonably believes that such force is necessary to
11 prevent imminent death or great bodily harm to himself or herself or
12 another;
13 (b) he or she reasonably believes that such other person is committing
14 or attempting to commit a kidnapping, forcible rape, forcible criminal
15 sexual act or robbery;
16 (c) he or she reasonably believes that such other person is committing
17 or attempting to commit a burglary, and the circumstances are such that
18 the use of deadly physical force is necessary to prevent or terminate
19 the commission or attempted commission of such burglary;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01522-01-9
S. 3211 2
1 (d) a police officer or peace officer, or a person assisting a police
2 officer or a peace officer at the direction of such police officer or
3 peace officer, is acting pursuant to section 35.30 of this article; or
4 (e) under those circumstances permitted pursuant to section 35.25 of
5 this article.
6 3. A person is not justified in the use of the force described in
7 subdivisions one and two of this section when:
8 (a) he or she is attempting to commit, committing, or escaping after
9 the commission of, a murder, kidnapping, forcible rape, forcible crimi-
10 nal sexual act, robbery or burglary;
11 (b) he or she initially provokes the use of force against himself or
12 herself, unless:
13 (i) such force is so great that the person reasonably believes that he
14 or she is in imminent danger of death or great bodily harm and that he
15 or she has exhausted every reasonable means to escape such danger other
16 than the use of force which is likely to cause death or great bodily
17 harm to the assailant; or
18 (ii) in good faith, the person withdraws from physical contact with
19 the assailant and indicates clearly to the assailant that he or she
20 desires to withdraw and terminate the use of force, but the assailant
21 continues or resumes the use of force; or
22 (c) the physical force involved is the product of a combat by agree-
23 ment not specifically authorized by law.
24 § 2. Section 35.20 of the penal law is REPEALED and a new section
25 35.20 is added to read as follows:
26 § 35.20 Justification; use of physical force in defense of premises.
27 1. A person is justified in the use of physical force, except deadly
28 physical force, against another when and to the extent that the person
29 reasonably believes that such conduct is necessary to prevent or termi-
30 nate the other's trespass on, or other tortious or criminal interference
31 with, either real property other than a dwelling, or personal property,
32 lawfully in his or her possession or in the possession of another who is
33 a member of his or her immediate family or household or a person whose
34 property he or she has a legal duty to protect.
35 2. A person is justified in the use of a deadly physical force only
36 if:
37 (a) he or she reasonably believes that such force is necessary to
38 prevent imminent death or great bodily harm to himself or herself or
39 another;
40 (b) he or she reasonably believes that such other person is committing
41 or attempting to commit a kidnapping, forcible rape, forcible criminal
42 sexual act, robbery or arson;
43 (c) he or she reasonably believes that such other person is committing
44 or attempting to commit a burglary, and the circumstances are such that
45 the use of deadly physical force is necessary to prevent or terminate
46 the commission or attempted commission of such burglary; or
47 (d) a police officer or peace officer, or a person assisting a police
48 officer or a peace officer at the latter's direction, is acting in the
49 performance of his or her duties.
50 3. A person does not have a duty to retreat if the person is in a
51 place where he or she has a right to be.
52 § 3. Section 35.25 of the penal law is REPEALED and a new section
53 35.25 is added to read as follows:
54 § 35.25 Justification; use of deadly physical force in defense of a
55 dwelling, residence or occupied vehicle.
S. 3211 3
1 1. A person is presumed to have held a reasonable fear of imminent
2 death or great bodily harm to himself or herself or another when using
3 deadly physical force if:
4 (a) the person against whom the deadly physical force was used was in
5 the process of unlawfully and forcefully entering, or had unlawfully and
6 forcibly entered a dwelling, residence, or occupied vehicle, or if that
7 person had removed or was attempting to remove another against that
8 person's will from the dwelling, residence, or occupied vehicle; and
9 (b) the actor who uses deadly physical force knew or had reason to
10 believe that an unlawful and forcible entry or unlawful and forcible act
11 was occurring or had occurred.
12 2. The presumption set forth in subdivision one of this section does
13 not apply if:
14 (a) the person against whom the deadly physical force is used, has the
15 right to be in or is a lawful resident of the dwelling, residence, or
16 vehicle, such as an owner, lessee, or titleholder, and there is not an
17 injunction for protection from domestic violence or a written judicial
18 order of no contact against that person;
19 (b) the person who uses deadly physical force is engaged in an unlaw-
20 ful activity or is using the dwelling, residence, or occupied vehicle to
21 further unlawful activity; or
22 (c) the person against whom deadly physical force is used is a police
23 officer or peace officer, who enters or attempts to enter a dwelling,
24 residence, or vehicle in the performance of his or her official duties
25 and the officer identified himself or herself in accordance with any
26 applicable law or the person using deadly physical force knew or reason-
27 ably should have known that the person entering or attempting to enter
28 was a police officer or peace officer.
29 3. A person who unlawfully and by force enters, or attempts to enter,
30 a person's dwelling, residence, or occupied vehicle is presumed to be
31 doing so with the intent to commit an unlawful act involving force or
32 violence.
33 4. As used in this section, the following terms have the following
34 meanings:
35 (a) "Dwelling" is a building or conveyance of any kind, including any
36 attached porch, whether the building or conveyance is temporary or
37 permanent, mobile or immobile, which has a roof over it, including a
38 tent, and is designed to be occupied by people lodging therein at night;
39 (b) "Residence" is a dwelling in which a person resides either tempo-
40 rarily or permanently or is visiting as an invited guest;
41 (c) "Vehicle" is a conveyance of any kind, whether or not motorized,
42 which is designed to transport people or property.
43 § 4. Subdivision 3 of section 265.35 of the penal law, as renumbered
44 by chapter 1041 of the laws of 1974, is amended to read as follows:
45 3. Any person who, otherwise than in self defense, in defense of prem-
46 ises or in the discharge of official duty, (a) wilfully discharges any
47 species of firearms, air-gun or other weapon, or throws any other deadly
48 missile, either in a public place, or in any place where there is any
49 person to be endangered thereby, or, in Putnam county, within one-quar-
50 ter mile of any occupied school building other than under supervised
51 instruction by properly authorized instructors although no injury to any
52 person ensues; (b) intentionally, without malice, points or aims any
53 firearm or any other gun, the propelling force of which is gunpowder, at
54 or toward any other person; (c) discharges, without injury to any other
55 person, firearms or any other guns, the propelling force of which is
56 gunpowder, while intentionally without malice, aimed at or toward any
S. 3211 4
1 person; or (d) maims or injures any other person by the discharge of any
2 firearm or any other gun, the propelling force of which is gunpowder,
3 pointed or aimed intentionally, but without malice, at any such person,
4 is guilty of a class A misdemeanor.
5 § 5. This act shall take effect on the first of November next succeed-
6 ing the date on which it shall have become a law.
