Bill Text: NY S00077 | 2023-2024 | General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Republican 14-0)

Status: (Introduced - Dead) 2024-01-03 - REFERRED TO CODES [S00077 Detail]

Download: New_York-2023-S00077-Introduced.html

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                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.