Bill Text: NY S00108 | 2025-2026 | 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 their 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) 2025-01-08 - REFERRED TO CODES [S00108 Detail]

Download: New_York-2025-S00108-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                           108

                               2025-2026 Regular Sessions

                    IN SENATE

                                       (Prefiled)

                                     January 8, 2025
                                       ___________

        Introduced by Sens. GALLIVAN, BORRELLO, GRIFFO, HELMING, LANZA, MATTERA,
          OBERACKER,  O'MARA, ORTT, PALUMBO, RHOADS, 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 such  person  is  within
     5  twenty-five  feet  of  a  police officer or peace officer engaged in the
     6  performance of their duties and such 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.
                                                                   LBD00748-01-5
        S. 108                              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] their own recognizance, released under conditions,  or  had
     4  yet to be arraigned after the issuance of a desk appearance ticket for a
     5  separate felony or class A misdemeanor involving harm to an identifiable
     6  person 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] their own  recognizance  or  under  appropriate
    18  non-monetary 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] their own recognizance, released under conditions, or had
    34  yet to be arraigned after the issuance of a desk appearance ticket for a
    35  separate felony or class A misdemeanor involving harm to an identifiable
    36  person or property, provided, however, that  the  prosecutor  must  show
    37  reasonable  cause  to  believe  that the defendant committed the instant
    38  crime and any underlying crime. For the purposes of  this  subparagraph,
    39  any of the underlying crimes need not be a qualifying offense as defined
    40  in  this  subdivision.  For  the purposes of this paragraph, "harm to an
    41  identifiable person or property" shall include but  not  be  limited  to
    42  theft  of  or  damage  to  property. However, based upon a review of the
    43  facts alleged in the accusatory instrument, if the court determines that
    44  such theft is negligible and does not appear to  be  in  furtherance  of
    45  other criminal activity, the principal shall be released on [his or her]
    46  their  own  recognizance  or  under appropriate non-monetary conditions;
    47  [or]
    48    (xxi) criminal possession of a weapon in the third degree  as  defined
    49  in subdivision three of section 265.02 of the penal law or criminal sale
    50  of  a  firearm  to  a  minor  as  defined in section 265.16 of the penal
    51  law[.]; or
    52    (xxii) failure to retreat as defined in section 205.40  of  the  penal
    53  law.
    54    §  4. Paragraphs (t) and (u) of subdivision 4 of section 530.40 of the
    55  criminal procedure law, paragraph (t) as amended and  paragraph  (u)  as
        S. 108                              3

     1  added  by section 4 of subpart B of part UU of chapter 56 of the laws of
     2  2022, are amended and a new paragraph (v) is added to read as follows:
     3    (t)  any  felony or class A misdemeanor involving harm to an identifi-
     4  able person or property, or any  charge  of  criminal  possession  of  a
     5  firearm  as  defined  in  section  265.01-b of the penal law, where such
     6  charge arose from conduct occurring while the defendant was released  on
     7  [his  or  her] their own recognizance, released under conditions, or had
     8  yet to be arraigned after the issuance of a desk appearance ticket for a
     9  separate felony or class A misdemeanor involving harm to an identifiable
    10  person or property, or any charge of criminal possession of a firearm as
    11  defined in section 265.01-b of the penal law,  provided,  however,  that
    12  the  prosecutor must show reasonable cause to believe that the defendant
    13  committed the instant crime and any underlying crime. For  the  purposes
    14  of  this subparagraph, any of the underlying crimes need not be a quali-
    15  fying offense as defined in this subdivision. For the purposes  of  this
    16  paragraph,  "harm  to  an identifiable person or property" shall include
    17  but not be limited to theft of or damage  to  property.  However,  based
    18  upon  a review of the facts alleged in the accusatory instrument, if the
    19  court determines that such theft is negligible and does not appear to be
    20  in furtherance of  other  criminal  activity,  the  principal  shall  be
    21  released  on  [his  or  her] their own recognizance or under appropriate
    22  non-monetary conditions; [or]
    23    (u) criminal possession of a weapon in the third degree as defined  in
    24  subdivision three of section 265.02 of the penal law or criminal sale of
    25  a  firearm  to a minor as defined in section 265.16 of the penal law[.];
    26  or
    27    (v) failure to retreat as defined in section 205.40 of the penal law.
    28    § 5. This act shall take effect on the thirtieth day  after  it  shall
    29  have become a law.