 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8821
 
                    IN SENATE
 
                                      July 20, 2020
                                       ___________
 
        Introduced  by  Sens. GALLIVAN, AKSHAR, AMEDORE, BORRELLO, BOYLE, FUNKE,
          HELMING, JORDAN, LANZA, LAVALLE, LITTLE,  O'MARA,  ORTT,  RANZENHOFER,
          RITCHIE,  ROBACH,  SERINO,  SEWARD,  TEDISCO -- read twice and ordered
          printed, and when printed to be committed to the Committee on Rules
 
        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 (s) and (t) of subdivision 4 of section 510.10 of the
    18  criminal procedure law, as added by section 2 of part UU of  chapter  56
    19  of  the  laws  of  2020, are amended and a new paragraph (u) is added to
    20  read as follows:
    21    (s) a felony, where the defendant qualifies  for  sentencing  on  such
    22  charge  as a persistent felony offender pursuant to section 70.10 of the
    23  penal law; [or]
    24    (t) any felony or class A misdemeanor involving harm to  an  identifi-
    25  able  person or property, where such charge arose from conduct occurring
    26  while the defendant was released on  his  or  her  own  recognizance  or
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16963-02-0

        S. 8821                             2
 
     1  released  under  conditions for a separate felony or class A misdemeanor
     2  involving harm to an identifiable person or property, provided, however,
     3  that the prosecutor must show  reasonable  cause  to  believe  that  the
     4  defendant  committed the instant crime and any underlying crime. For the
     5  purposes of this subparagraph, any of the underlying crimes need not  be
     6  a qualifying offense as defined in this subdivision[.]; or
     7    (u) failure to retreat as defined in section 205.40 of the penal law.
     8    § 3. Subparagraphs (xix) and (xx) of paragraph (b) of subdivision 1 of
     9  section 530.20 of the criminal procedure law, as amended by section 3 of
    10  part UU of chapter 56 of the laws of 2020, are amended and a new subpar-
    11  agraph (xxi) is added to read as follows:
    12    (xix)  a  felony, where the defendant qualifies for sentencing on such
    13  charge as a persistent felony offender pursuant to section 70.10 of  the
    14  penal law; [or]
    15    (xx)  any felony or class A misdemeanor involving harm to an identifi-
    16  able person or property, where such charge arose from conduct  occurring
    17  while  the  defendant  was  released  on  his or her own recognizance or
    18  released under conditions for a separate felony or class  A  misdemeanor
    19  involving harm to an identifiable person or property, provided, however,
    20  that  the  prosecutor  must  show  reasonable  cause to believe that the
    21  defendant committed the instant crime and any underlying crime. For  the
    22  purposes  of this subparagraph, any of the underlying crimes need not be
    23  a qualifying offense as defined in this subdivision[.]; or
    24    (xxi) failure to retreat as defined in section  205.40  of  the  penal
    25  law.
    26    §  4. Paragraphs (s) and (t) of subdivision 4 of section 530.40 of the
    27  criminal procedure law, as added by section 4 of part UU of  chapter  56
    28  of  the  laws  of  2020, are amended and a new paragraph (u) is added to
    29  read as follows:
    30    (s) a felony, where the defendant qualifies  for  sentencing  on  such
    31  charge  as a persistent felony offender pursuant to section 70.10 of the
    32  penal law; [or]
    33    (t) any felony or class A misdemeanor involving harm to  an  identifi-
    34  able  person or property, where such charge arose from conduct occurring
    35  while the defendant was released on  his  or  her  own  recognizance  or
    36  released  under  conditions for a separate felony or class A misdemeanor
    37  involving harm to an identifiable person or property, provided, however,
    38  that the prosecutor must show  reasonable  cause  to  believe  that  the
    39  defendant  committed the instant crime and any underlying crime. For the
    40  purposes of this subparagraph, any of the underlying crimes need not  be
    41  a qualifying offense as defined in this subdivision[.]; or
    42    (u) failure to retreat as defined in section 205.40 of the penal law.
    43    §  5.  This  act shall take effect on the thirtieth day after it shall
    44  have become a law.
Establishes the crime of failure to retreat

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