New York is a duty-to-retreat state. It does not have a Stand Your Ground law. Outside the home, a person must retreat from a confrontation before using...
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New York is a duty-to-retreat state. It does not have a Stand Your Ground law. Outside the home, a person must retreat from a confrontation before using deadly physical force when retreat can be made with complete personal safety. The main exception is the Castle Doctrine, which removes the retreat obligation when the defender is inside their own dwelling and was not the initial aggressor.
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 35.15(1) allows a person to use ordinary (non-deadly) physical force when and to the extent he or she reasonably believes it 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. That justification does not apply if the actor provoked the encounter with intent to cause physical injury, was the initial aggressor (subject to a withdrawal exception), or the force is the product of combat by agreement not authorized by law (Penal Law 35.15(1)(a)-(c)).
Deadly physical force is governed by Penal Law 35.15(2) and is permitted only in 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) do not contain a retreat clause of their own.
Under Penal Law 35.15(2)(a)(i), a person who is in his or her dwelling and was not the initial aggressor has no duty to retreat before using deadly physical force in lawful self-defense. A person lawfully present in their own home, faced with what they reasonably believe to be the use or imminent use of deadly physical force, may stand their ground inside the dwelling.
New York courts have applied a strict definition of "dwelling" for this purpose. Whether a particular area counts as part of the dwelling turns on the extent to which the defendant exercises exclusive possession and control over the area (People v Hernandez, 98 NY2d 175 (2002)).
Areas generally treated as part of the dwelling:
Areas generally not treated as part of the dwelling:
In People v Aiken, 4 NY3d 324 (2005), the Court of Appeals held that a defendant standing in the doorway of his apartment, straddling the private apartment and the public hallway, was not entitled to a Castle Doctrine instruction. The court reasoned that the threshold was a hybrid private-public space and that the defendant could have closed the door to be secure within his home.
Penal Law 35.20 addresses the use of force to defend premises:
The terms "premises," "building," and "dwelling" in this section carry the meanings set out in Penal Law 140.00 (Penal Law 35.20(4)). Because of this cross-reference, the definition of "dwelling" used for defense of premises under 35.20 is drawn from the burglary statute and is not necessarily identical to the dwelling concept applied to the retreat exception in 35.15.
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 everywhere outside the dwelling (subject only to the statutory exceptions in Penal Law 35.15(2)(a)(ii), and the separate justifications in 35.15(2)(b) and (2)(c)). On a public street, in a vehicle, or in a business the person does not occupy as a dwelling, a defender who can retreat with complete personal safety must do so before resorting to deadly force.
| Statute | Subject |
|---|---|
| Penal Law 35.15(1) | Justification for ordinary physical force in defense of a person |
| Penal Law 35.15(2)(a) | Deadly force standard and duty to retreat |
| 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)(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 35.20(3) |
| Penal Law 35.20(1)-(3) | Defense of premises; deadly force for arson and burglary of a dwelling or occupied building |
| Penal Law 35.20(4) | "Premises," "building," and "dwelling" defined by reference to Penal Law 140.00 |
| Case | Holding |
|---|---|
| People v Tomlins, 213 NY 240 (1914) | Foundational statement of the New York rule that a person assailed in his own dwelling is not required to retreat |
| People v Hernandez, 98 NY2d 175 (2002) | Whether an area is part of the dwelling depends on the defendant's exclusive possession and control |
| People v Aiken, 4 NY3d 324 (2005) | The doorway or threshold of an apartment is not part of the dwelling for Castle Doctrine purposes |
This page covers one part of our New York concealed carry guide.
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