S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3718
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             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:
 
   Section  1.  Section 35.15 of the penal law, as added by chapter 73 of
 the laws of 1968, subdivisions 1 and 2 as amended by chapter 511 of  the
 laws of 2004, is amended to read as follows:
 § 35.15 Justification; use of physical force in defense of a person.
   1.  A person may, subject to the provisions of subdivision two OF THIS
 SECTION, use physical force upon another person 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,
 unless:
   (a)  The  latter's  conduct  was  provoked by the actor with intent to
 cause physical injury to another person; or
   (b) The actor was the initial aggressor; except that in such case  the
 use of physical force is nevertheless justifiable if the actor has with-
 drawn 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; or
   (c) The physical force involved is the product of a combat  by  agree-
 ment not specifically authorized by law.
   2.  A  person  may  not  use deadly physical force upon another person
 under circumstances specified in subdivision one OF THIS SECTION unless:
   (a) The actor reasonably believes that such other person is  using  or
 about  to  use  deadly  physical force. [Even in such case, however, the
 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

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 complete  personal safety, to oneself and others he or she may avoid the
 necessity of so doing by retreating; except that the] THE actor is under
 no duty to retreat if he or she is:
   (i)  in  his  or  her  dwelling  OR  ANY OTHER PLACE THAT HE OR SHE IS
 LAWFULLY PERMITTED TO BE and IS not the initial aggressor; or
   (ii) a police officer or peace officer or a person assisting a  police
 officer or a peace officer at the latter's direction, acting pursuant to
 section 35.30 OF THIS ARTICLE; or
   (b) He or she reasonably believes that such other person is committing
 or  attempting  to commit a kidnapping, forcible rape, forcible criminal
 sexual act or robbery; or
   (c) He or she reasonably believes that such other person is committing
 or attempting to commit a burglary, and the circumstances are such  that
 the  use  of deadly physical force is authorized by subdivision three of
 section 35.20 OF THIS ARTICLE.
   § 2. Section 35.05 of the penal law is amended by adding a new  subdi-
 vision 3 to read as follows:
   3.  WHEN  A DEFENDANT HAS OFFERED THE DEFENSE OF JUSTIFICATION FOR THE
 THREATENED OR ACTUAL USE OF DEADLY FORCE, THE COURT SHALL  INSTRUCT  THE
 JURY  THAT  THEY  SHALL  NOT BE PERMITTED TO CONSIDER THE POSSIBILITY OF
 RETREAT AS A FACTOR IN DETERMINING WHETHER A PERSON  WHO  THREATENED  OR
 USED  DEADLY  FORCE  REASONABLY BELIEVED THAT THE FORCE WAS NECESSARY TO
 PREVENT DEATH OR SERIOUS BODILY INJURY TO HIMSELF OR ANOTHER.
   § 3. Section 35.10 of the penal law is amended by adding a new  subdi-
 vision 7 to read as follows:
   7.  A  PERSON  WHO IS JUSTIFIED IN THREATENING OR USING PHYSICAL FORCE
 AGAINST ANOTHER PERSON IN DEFENSE OF HIMSELF, HERSELF,  ANOTHER  PERSON,
 OR  PROPERTY  PURSUANT TO THIS SECTION IS IMMUNE FROM CRIMINAL AND CIVIL
 LIABILITY FOR ANY DAMAGES INCURRED BY  THE  AGGRESSOR  PURSUANT  TO  THE
 APPLICATION OF REASONABLE PHYSICAL FORCE OR THREATENED USE OF FORCE.
   §  4.  Subdivision 1 of section 120.14 of the penal law, as amended by
 chapter 222 of the laws of 1994, is amended to read as follows:
   1. He or she intentionally places or attempts to place another  person
 in  reasonable fear of physical injury, serious physical injury or death
 by displaying a deadly weapon, dangerous instrument or what  appears  to
 be  a  pistol,  revolver,  rifle, shotgun, machine gun or other firearm;
 PROVIDED, HOWEVER, THAT WHERE A PERSON IS JUSTIFIED IN THE USE OF  PHYS-
 ICAL  FORCE  UPON  ANOTHER  PERSON IN SELF-DEFENSE OR DEFENSE OF A THIRD
 PERSON, OR IN DEFENSE OF PREMISES UNDER THE PROVISIONS OF ARTICLE  THIR-
 TY-FIVE  OF  THIS  CHAPTER,  SUCH  PERSON  SHALL NOT BE LIABLE UNDER THE
 PROVISIONS OF THIS SUBDIVISION; or
   § 5. Section 140.10 of the criminal procedure law is amended by adding
 a new subdivision 4 to read as follows:
   4.  NO PERSON SHALL BE ARRESTED PURSUANT TO THIS SECTION FOR A USE  OF
 FORCE,  UNLESS  THE POLICE OFFICER BELIEVES THAT THERE IS PROBABLE CAUSE
 TO FIND THAT THE USE OF FORCE WAS NOT JUSTIFIABLE UNDER ARTICLE  THIRTY-
 FIVE OF THE PENAL LAW.
   § 6. Section 180.10 of the criminal procedure law is amended by adding
 a new subdivision 8 to read as follows:
   8.  UPON  ARRAIGNMENT, IF A DEFENDANT OFFERS THE DEFENSE OF JUSTIFICA-
 TION TO ANY ALLEGATION INVOLVING THE USE OF  PHYSICAL  FORCE,  INCLUDING
 DEADLY  PHYSICAL  FORCE,  THE COURT SHALL DISMISS THE CHARGES UNLESS THE
 COURT DETERMINES BY CLEAR AND CONVINCING EVIDENCE THAT THE USE  OF  SUCH
 PHYSICAL FORCE BY THE DEFENDANT WAS NOT REASONABLE OR JUSTIFIED.
   §  7.  Rule  3211  of  the  civil practice law and rules is amended by
 adding a new subdivision (i) to read as follows:

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   (I) (1) MOTION TO DISMISS; USE OF FORCE; JUSTIFICATION.  A  PARTY  MAY
 MOVE  TO  DISMISS  A  CAUSE OF ACTION ON THE BASIS THAT THE MOVING PARTY
 USED REASONABLE FORCE UNDER SECTION 35.15 OF THE PENAL LAW. UPON  FILING
 A  MOTION  TO DISMISS, THE COURT SHALL HOLD A HEARING PRIOR TO TRIAL AND
 SHALL GRANT SUCH MOTION UNLESS THE PARTY RESPONDING TO THE MOTION PROVES
 BY  CLEAR  AND CONVINCING EVIDENCE THAT THE USE OF FORCE WAS NOT REASON-
 ABLE OR JUSTIFIED.
   (2) THE COURT SHALL  AWARD  REASONABLE  ATTORNEY  FEES,  COURT  COSTS,
 COMPENSATION FOR ANY LOSS OF INCOME AND ALL OTHER EXPENSES INCURRED BY A
 PERSON  IN  DEFENSE OF ANY CIVIL ACTION ARISING FROM THE PERSON'S USE OF
 REASONABLE FORCE PURSUANT TO SECTION 35.15 OF THE PENAL LAW IF THE COURT
 FINDS THAT THE DEFENDANT'S ACTIONS WERE JUSTIFIED AND DISMISSES THE CASE
 UNDER THIS SUBDIVISION.
   § 8. The civil practice law and rules  is  amended  by  adding  a  new
 section 3012-c to read as follows:
   §  3012-C.  CERTIFICATE OF MERIT IN CERTAIN ACTIONS TO RECOVER DAMAGES
 FOR PERSONAL INJURY, INJURY TO PROPERTY OR WRONGFUL DEATH.  (A)  IN  ANY
 ACTION  TO  RECOVER  DAMAGES  FOR PERSONAL INJURY, INJURY TO PROPERTY OR
 WRONGFUL DEATH BROUGHT BY AN INDIVIDUAL WHO COMMITTED  A  CRIME  AGAINST
 THE  RESPONDENT, WHERE THE INJURIES COMPLAINED OF RESULTED FROM A USE OF
 PHYSICAL FORCE OR DEADLY PHYSICAL FORCE BY THE RESPONDENT AT THE TIME OF
 THE COMMISSION OF THE CRIME, THE COMPLAINT SHALL  BE  ACCOMPANIED  BY  A
 CERTIFICATE,  SIGNED  BY THE ATTORNEY FOR THE PLAINTIFF, CERTIFYING THAT
 THE ATTORNEY HAS REVIEWED THE FACTS OF THE CASE AND THAT, TO THE BEST OF
 SUCH ATTORNEY'S KNOWLEDGE, INFORMATION AND BELIEF THERE IS A  REASONABLE
 BASIS  FOR  THE  COMMENCEMENT OF SUCH ACTION AND THAT THE RESPONDENT WAS
 NOT JUSTIFIED IN THE USE OF PHYSICAL  FORCE  OR  DEADLY  PHYSICAL  FORCE
 AGAINST THE PLAINTIFF.
   (B) WHERE A CERTIFICATE IS REQUIRED PURSUANT TO THIS SECTION, A SINGLE
 CERTIFICATE SHALL BE FILED FOR EACH ACTION EVEN IF MORE THAN ONE DEFEND-
 ANT HAS BEEN NAMED IN THE COMPLAINT OR IS SUBSEQUENTLY NAMED.
   (C) IF THE ATTORNEY FOR THE PLAINTIFF FAILS TO PROVIDE THE CERTIFICATE
 AS REQUIRED BY SUBDIVISION (A) OF THIS SECTION THE COURT MAY DISMISS THE
 COMPLAINT  OR  MAKE  SUCH FINAL OR CONDITIONAL ORDER WITH REGARD TO SUCH
 FAILURE AS IS JUST INCLUDING BUT NOT LIMITED TO DENIAL OF THE ACCRUAL OF
 ANY INTEREST, COSTS, ATTORNEYS' FEES AND OTHER  FEES,  RELATING  TO  THE
 UNDERLYING  MORTGAGE DEBT. ANY SUCH DISMISSAL SHALL BE WITHOUT PREJUDICE
 AND SHALL NOT BE ON THE MERITS.
   § 9. This act shall take effect immediately;  provided  however,  that
 section  five  of this act shall take effect upon the repeal of subdivi-
 sion 4 of section 140.10 of  the  criminal  procedure  law  pursuant  to
 section 59 of chapter 222 of the laws of 1994, as amended.