S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8026
 
                             I N  S E N A T E
 
                             January 20, 2022
                                ___________
 
 Introduced  by Sen. BORRELLO -- 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
 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:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

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   (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:
   (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
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 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.