STATE OF NEW YORK
        ________________________________________________________________________

                                          3718

                               2021-2022 Regular Sessions

                    IN SENATE

                                    January 30, 2021
                                       ___________

        Introduced  by  Sen.  ORTT  --  read twice and ordered printed, and when
          printed to be committed to the Committee on Codes

        AN ACT to amend the penal law, the criminal procedure law and the  civil
          practice  law  and rules, in relation to the justified use of physical
          force

          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, as added by chapter 73 of
     2  the laws of 1968, subdivisions 1 and 2 as amended by chapter 511 of  the
     3  laws of 2004, is amended to read as follows:
     4  § 35.15 Justification; use of physical force in defense of a person.
     5    1.  A person may, subject to the provisions of subdivision two of this
     6  section, use physical force upon another person when and to  the  extent
     7  he  or  she  reasonably believes such to be necessary to defend himself,
     8  herself or a third person from what he or she reasonably believes to  be
     9  the use or imminent use of unlawful physical force by such other person,
    10  unless:
    11    (a)  The  latter's  conduct  was  provoked by the actor with intent to
    12  cause physical injury to another person; or
    13    (b) The actor was the initial aggressor; except that in such case  the
    14  use of physical force is nevertheless justifiable if the actor has with-
    15  drawn from the encounter and effectively communicated such withdrawal to
    16  such  other person but the latter persists in continuing the incident by
    17  the use or threatened imminent use of unlawful physical force; or
    18    (c) The physical force involved is the product of a combat  by  agree-
    19  ment not specifically authorized by law.
    20    2.  A  person  may  not  use deadly physical force upon another person
    21  under circumstances specified in subdivision one of this section unless:
    22    (a) The actor reasonably believes that such other person is  using  or
    23  about  to  use  deadly  physical force. [Even in such case, however, the
    24  actor may not use deadly physical force if he or  she  knows  that  with

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02253-01-1

        S. 3718                             2

     1  complete  personal safety, to oneself and others he or she may avoid the
     2  necessity of so doing by retreating; except that the] The actor is under
     3  no duty to retreat if he or she is:
     4    (i)  in  his  or  her  dwelling  or  any other place that he or she is
     5  lawfully permitted to be and is not the initial aggressor; or
     6    (ii) a police officer or peace officer or a person assisting a  police
     7  officer or a peace officer at the latter's direction, acting pursuant to
     8  section 35.30 of this article; or
     9    (b) He or she reasonably believes that such other person is committing
    10  or  attempting  to commit a kidnapping, forcible rape, forcible criminal
    11  sexual act or robbery; or
    12    (c) He or she reasonably believes that such other person is committing
    13  or attempting to commit a burglary, and the circumstances are such  that
    14  the  use  of deadly physical force is authorized by subdivision three of
    15  section 35.20 of this article.
    16    § 2. Section 35.05 of the penal law is amended by adding a new  subdi-
    17  vision 3 to read as follows:
    18    3.  When  a defendant has offered the defense of justification for the
    19  threatened or actual use of deadly force, the court shall  instruct  the
    20  jury  that  they  shall  not be permitted to consider the possibility of
    21  retreat as a factor in determining whether a person  who  threatened  or
    22  used  deadly  force  reasonably believed that the force was necessary to
    23  prevent death or serious bodily injury to himself or another.
    24    § 3. Section 35.10 of the penal law is amended by adding a new  subdi-
    25  vision 7 to read as follows:
    26    7.  A  person  who is justified in threatening or using physical force
    27  against another person in defense of himself, herself,  another  person,
    28  or  property  pursuant to this section is immune from criminal and civil
    29  liability for any damages incurred by  the  aggressor  pursuant  to  the
    30  application of reasonable physical force or threatened use of force.
    31    §  4.  Subdivision 1 of section 120.14 of the penal law, as amended by
    32  chapter 222 of the laws of 1994, is amended to read as follows:
    33    1. He or she intentionally places or attempts to place another  person
    34  in  reasonable fear of physical injury, serious physical injury or death
    35  by displaying a deadly weapon, dangerous instrument or what  appears  to
    36  be  a  pistol,  revolver,  rifle, shotgun, machine gun or other firearm;
    37  provided, however, that where a person is justified in the use of  phys-
    38  ical  force  upon  another  person in self-defense or defense of a third
    39  person, or in defense of premises under the provisions of article  thir-
    40  ty-five  of  this  chapter,  such  person  shall not be liable under the
    41  provisions of this subdivision; or
    42    § 5. Section 140.10 of the criminal procedure law is amended by adding
    43  a new subdivision 4 to read as follows:
    44    4.  No person shall be arrested pursuant to this section for a use  of
    45  force,  unless  the police officer believes that there is probable cause
    46  to find that the use of force was not justifiable under article  thirty-
    47  five of the penal law.
    48    § 6. Section 180.10 of the criminal procedure law is amended by adding
    49  a new subdivision 8 to read as follows:
    50    8.  Upon  arraignment, if a defendant offers the defense of justifica-
    51  tion to any allegation involving the use of  physical  force,  including
    52  deadly  physical  force,  the court shall dismiss the charges unless the
    53  court determines by clear and convincing evidence that the use  of  such
    54  physical force by the defendant was not reasonable or justified.
    55    §  7.  Rule  3211  of  the  civil practice law and rules is amended by
    56  adding a new subdivision (i) to read as follows:

        S. 3718                             3

     1    (i) (1) Motion to dismiss; use of force; justification.  A  party  may
     2  move  to  dismiss  a  cause of action on the basis that the moving party
     3  used reasonable force under section 35.15 of the penal law. Upon  filing
     4  a  motion  to dismiss, the court shall hold a hearing prior to trial and
     5  shall grant such motion unless the party responding to the motion proves
     6  by  clear  and convincing evidence that the use of force was not reason-
     7  able or justified.
     8    (2) The court shall  award  reasonable  attorney  fees,  court  costs,
     9  compensation for any loss of income and all other expenses incurred by a
    10  person  in  defense of any civil action arising from the person's use of
    11  reasonable force pursuant to section 35.15 of the penal law if the court
    12  finds that the defendant's actions were justified and dismisses the case
    13  under this subdivision.
    14    § 8. The civil practice law and rules  is  amended  by  adding  a  new
    15  section 3012-c to read as follows:
    16    §  3012-c.  Certificate of merit in certain actions to recover damages
    17  for personal injury, injury to property or wrongful death.  (a)  In  any
    18  action  to  recover  damages  for personal injury, injury to property or
    19  wrongful death brought by an individual who committed  a  crime  against
    20  the  respondent, where the injuries complained of resulted from a use of
    21  physical force or deadly physical force by the respondent at the time of
    22  the commission of the crime, the complaint shall  be  accompanied  by  a
    23  certificate,  signed  by the attorney for the plaintiff, certifying that
    24  the attorney has reviewed the facts of the case and that, to the best of
    25  such attorney's knowledge, information and belief there is a  reasonable
    26  basis  for  the  commencement of such action and that the respondent was
    27  not justified in the use of physical  force  or  deadly  physical  force
    28  against the plaintiff.
    29    (b) Where a certificate is required pursuant to this section, a single
    30  certificate shall be filed for each action even if more than one defend-
    31  ant has been named in the complaint or is subsequently named.
    32    (c) If the attorney for the plaintiff fails to provide the certificate
    33  as required by subdivision (a) of this section the court may dismiss the
    34  complaint  or  make  such final or conditional order with regard to such
    35  failure as is just including but not limited to denial of the accrual of
    36  any interest, costs, attorneys' fees and other  fees,  relating  to  the
    37  underlying  mortgage debt. Any such dismissal shall be without prejudice
    38  and shall not be on the merits.
    39    § 9. This act shall take effect immediately;  provided  however,  that
    40  section  five  of this act shall take effect upon the repeal of subdivi-
    41  sion 4 of section 140.10 of  the  criminal  procedure  law  pursuant  to
    42  section 59 of chapter 222 of the laws of 1994, as amended.