New York is a duty-to-retreat state. It does not have a Stand Your Ground law. Penal Law 35.15(2)(a) provides that a person who reasonably believes...
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New York is a duty-to-retreat state. It does not have a Stand Your Ground law. Penal Law 35.15(2)(a) provides that a person who reasonably believes another is using or about to use deadly physical force "may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating." The statute lists only two exceptions to that retreat obligation. The first is the Castle Doctrine at Penal Law 35.15(2)(a)(i), which applies when the actor is "in his or her dwelling and not the initial aggressor." The second, at Penal Law 35.15(2)(a)(ii), covers police officers, peace officers, and persons assisting them at their direction under Penal Law 35.30.
This section addresses when force is justified in self-defense. It is separate from the question of whether carrying the firearm was lawful in the first place. New York requires a license to carry a handgun under Penal Law 400.00, and unlicensed possession is itself a crime (for example, criminal possession of a firearm under Penal Law 265.01-b, a class E felony). A justified act of self-defense does not cure an unlawful-carry charge, and the two are analyzed independently.
Penal Law 35.00 provides that "In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense." Justification is therefore raised and decided inside a criminal case. It is not an advance permission slip.
Penal Law 35.15(1) allows a person to use physical force upon another "when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person." Both the belief that force is necessary and the amount of force used are measured against that reasonableness standard. The justification does not apply if the other person's conduct "was provoked by the actor with intent to cause physical injury to another person" (Penal Law 35.15(1)(a)), if the actor "was the initial aggressor" (Penal Law 35.15(1)(b)), or if the force "is the product of a combat by agreement not specifically authorized by law" (Penal Law 35.15(1)(c)). The initial-aggressor bar has a narrow withdrawal exception: force is justifiable again only if the actor "has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force."
Deadly physical force is governed by Penal Law 35.15(2). That subdivision opens "A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless," so the subdivision one exclusions for provocation, initial aggression, and combat by agreement carry forward into every deadly-force route below. Deadly force is permitted only in these narrower circumstances:
The duty to retreat appears within Penal Law 35.15(2)(a). Even when a person reasonably believes the attacker is using or about to use deadly physical force, the statute provides that the actor "may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating." In plain terms, deadly force is off the table if the defender knows a completely safe retreat is available.
The statute then lists exceptions. The actor is under no duty to retreat if he or she is:
The retreat obligation is written into paragraph (2)(a), which covers the general deadly-force scenario. The separate justifications in paragraphs (2)(b) and (2)(c) (certain forcible felonies, and burglary under the circumstances described in Penal Law 35.20(3)) do not contain a retreat clause of their own. They are not a way around subdivision one, though. All of Penal Law 35.15(2) operates "under circumstances specified in subdivision one," so a person who provoked the encounter, was the initial aggressor without an effective withdrawal, or entered a combat by agreement is outside paragraphs (2)(b) and (2)(c) as well.
Penal Law 35.15(2)(a)(i) lifts the retreat obligation only for an actor who is "in his or her dwelling and not the initial aggressor." Both conditions have to be met, and the exception removes the retreat requirement only. Everything else in the statute still applies: the actor must reasonably believe the other person "is using or about to use deadly physical force" under Penal Law 35.15(2)(a), and under Penal Law 35.15(1) must reasonably believe the force used is necessary. Being at home is not itself a justification to use deadly physical force.
Article 35 does not define "dwelling" for the retreat exception. Penal Law 35.20(4)(a) gives "premises," "building" and "dwelling" the meanings prescribed in Penal Law 140.00, but by its own terms that cross-reference reads "As used in this section," meaning Penal Law 35.20. For the Penal Law 35.15(2)(a)(i) exception the Court of Appeals held in People v. Hernandez, 98 NY2d 175 (2002), that "dwelling" "refers to a person's residence," and that whether a particular location is part of it "depends on the extent to which defendant (and persons actually sharing living quarters with defendant) exercises exclusive possession and control over the area in question." On the facts of that case "the lobby and common stairwell were not part of defendant's dwelling."
Do not assume these areas are part of your dwelling for retreat purposes:
If retreat from a place like that can be made with complete personal safety to yourself and others, Penal Law 35.15(2)(a) requires it. Where the line falls in a specific situation is a question for a New York attorney and, in the end, for the court.
Penal Law 35.20 addresses the use of force to defend premises:
Penal Law 35.20(4)(a) gives "premises," "building" and "dwelling" the meanings prescribed in Penal Law 140.00. Penal Law 35.20(4)(b) adds that persons "licensed or privileged" to be in buildings or on premises include, but are not limited to, police officers and peace officers acting in the performance of their duties, and approved security personnel or employees of nuclear powered electric generating facilities in the state.
Those imported definitions are broader than everyday usage. Penal Law 140.00(2) defines "building," in addition to its ordinary meaning, to include "any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein," an elementary or secondary school, an inclosed motor truck, or an inclosed motor truck trailer. It also provides that where a building consists of two or more units separately secured or occupied, each unit is both a separate building and part of the main building. Penal Law 140.00(3) then defines "dwelling" as "a building which is usually occupied by a person lodging therein at night." So for Penal Law 35.20 purposes a camper, motor home, or boat used for overnight lodging can be a building, and one usually occupied by a person lodging in it at night can meet the dwelling definition. Because Penal Law 35.20(4) is written "As used in this section," those definitions do not carry over to the retreat exception in Penal Law 35.15(2)(a)(i). Treat the two questions separately.
Penal Law 35.10(6) adds that whenever a person is authorized by a provision of Article 35 to use deadly physical force in a given circumstance, "nothing contained in any other such provision may be deemed to negate or qualify such authorization." That rule keeps one provision from cancelling another. It does not create authorization on its own, so the elements of Penal Law 35.20(3) still have to be satisfied before it does any work.
New York has not enacted a Stand Your Ground law. Unlike states that remove the duty to retreat anywhere a person has a legal right to be, New York keeps the retreat requirement in Penal Law 35.15(2)(a) everywhere outside the dwelling, subject only to the officer exception in Penal Law 35.15(2)(a)(ii) and to the separate deadly-force justifications in Penal Law 35.15(2)(b) and (2)(c), which are not retreat exceptions but different routes to justification with their own elements.
On a public street, in a store, in a workplace, or in a business the person does not occupy as a dwelling, a defender relying on paragraph (2)(a), the general deadly-force route, who knows a retreat can be made with complete personal safety to himself or herself and others must retreat before using deadly physical force.
Paragraphs (2)(b) and (2)(c) work differently, and the difference matters most in exactly the situation people ask about. In People v. Goetz the Court of Appeals said that "the portion of section 35.15 (2) (b) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate 'retreat' requirement." So a person who reasonably believes another is committing or attempting one of the felonies listed in (2)(b), which include robbery, kidnapping and the forcible sexual offenses, is not under the paragraph (2)(a) duty to retreat.
That is not permission to stand your ground in public. Goetz went on to hold that "the general 'necessity' requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2) (b)," so the force must still be what the actor reasonably believes necessary to avert the threat, and the subdivision one bars on provocation, initial aggression and combat by agreement still apply. Whether (2)(b) or (2)(c) reaches a particular set of facts is a question for a New York attorney and, in the end, for the court.
A vehicle needs one qualification, because the boundary is not quite where people assume. Penal Law 140.00(2) does include a "vehicle or watercraft used for overnight lodging of persons" within the term "building," and Penal Law 140.00(3) defines a dwelling as a building "usually occupied by a person lodging therein at night." Those are the definitions Penal Law 35.20(4) imports for defense of premises, and they can reach a camper or a live-aboard boat. A car driven to work and parked is not being used for overnight lodging, and Penal Law 35.20(4) does not carry those definitions into the retreat exception at Penal Law 35.15(2)(a)(i) in any case. Assume the retreat duty applies in your vehicle, and take anything unusual about how a vehicle is used to a New York attorney rather than deciding it in the moment.
| Statute | Subject |
|---|---|
| Penal Law 35.00 | Justification is a defense in a prosecution for an offense |
| Penal Law 35.10(6) | Where a provision of Article 35 authorizes deadly physical force, no other provision negates or qualifies that authorization |
| Penal Law 35.15(1) | Justification for physical force other than deadly physical force in defense of a person; provocation, initial aggressor, and combat by agreement exclusions |
| Penal Law 35.15(2)(a) | Deadly force standard and duty to retreat with complete personal safety |
| Penal Law 35.15(2)(a)(i) | Castle Doctrine: no duty to retreat in the dwelling when not the initial aggressor |
| Penal Law 35.15(2)(a)(ii) | No duty to retreat for police officers, peace officers, and persons assisting them under Penal Law 35.30 |
| Penal Law 35.15(2)(b) | Deadly force against certain forcible felonies (kidnapping, robbery, forcible sexual offenses) |
| Penal Law 35.15(2)(c) | Deadly force against burglary, as authorized by Penal Law 35.20(3) |
| Penal Law 35.20(1)-(3) | Defense of premises; deadly force for arson and for burglary of a dwelling or an occupied building |
| Penal Law 35.20(4) | "Premises," "building," and "dwelling" defined by reference to Penal Law 140.00; who is "licensed or privileged" |
| Penal Law 35.25 | Force other than deadly physical force to prevent larceny or criminal mischief to property other than premises |
| Penal Law 35.27 | Physical force to resist an arrest by a police officer or peace officer is prohibited, authorized or not |
| Penal Law 140.00(2)-(3) | "Building" includes a structure, vehicle, or watercraft used for overnight lodging; "dwelling" is a building usually occupied by a person lodging in it at night |
| Penal Law 265.01-b | Criminal possession of a firearm, a class E felony |
The statutory text above is what controls. The Court of Appeals has then decided how far a defendant's dwelling reaches on the facts of particular cases. These decisions are fact-specific, and their current force should be confirmed with a New York attorney before anyone relies on them.
| Case | Holding |
|---|---|
| People v Tomlins, 213 NY 240 (1914) | "It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat." The statutory exception now at Penal Law 35.15(2)(a)(i) also requires that the actor not be the initial aggressor |
| People v Hernandez, 98 NY2d 175 (2002) | "Dwelling" in Penal Law 35.15(2)(a)(i) "refers to a person's residence," and whether an area is part of it "depends on the extent to which defendant (and persons actually sharing living quarters with defendant) exercises exclusive possession and control over the area in question." The lobby and common stairwell of the apartment building were not part of the defendant's dwelling |
| People v Aiken, 4 NY3d 324 (2005) | A defendant standing in the doorway between his apartment and the common hall of a multi-unit building has a duty under Penal Law 35.15 to retreat into his home when he can safely do so |
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