Senate Bill S8821

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8821
 
                             I N  S E N A T E
 
                               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:
 
   Section 1. The penal law is amended by adding a new section 205.40  to
 read as follows:
 § 205.40 FAILURE TO RETREAT.
   A  PERSON  IS  GUILTY  OF  FAILURE TO RETREAT WHEN HE OR SHE 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.
   AN INDIVIDUAL SHALL NOT BE GUILTY OF THIS OFFENSE IF  SUCH  INDIVIDUAL
 (A) SUFFERS FROM A PHYSICAL DISABILITY OR PHYSICAL INJURY AND HALTING OR
 RETREATING WOULD EXACERBATE SUCH DISABILITY OR INJURY, OR (B) A PHYSICAL
 BARRIER  MAKES  IT  PHYSICALLY  IMPOSSIBLE FOR THE INDIVIDUAL TO HALT OR
 RETREAT.
   UNDER THIS SECTION, POLICE OFFICER AND PEACE OFFICER  ARE  AS  DEFINED
 UNDER SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW.
   FAILURE TO RETREAT IS A CLASS D FELONY.
   §  2. Paragraphs (s) and (t) of subdivision 4 of section 510.10 of the
 criminal procedure law, as added by section 2 of part UU of  chapter  56
 of  the  laws  of  2020, are amended and a new paragraph (u) is added to
 read as follows:
   (s) a felony, where the defendant qualifies  for  sentencing  on  such
 charge  as a persistent felony offender pursuant to section 70.10 of the
 penal law; [or]
   (t) any felony or class A misdemeanor involving harm to  an  identifi-
 able  person or property, where such charge arose from conduct occurring
 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
 
 released  under  conditions for a separate felony or class A misdemeanor
 involving harm to an identifiable person or property, provided, however,
 that the prosecutor must show  reasonable  cause  to  believe  that  the
 defendant  committed the instant crime and any underlying crime. For the
 purposes of this subparagraph, any of the underlying crimes need not  be
 a qualifying offense as defined in this subdivision[.]; OR
   (U) FAILURE TO RETREAT AS DEFINED IN SECTION 205.40 OF THE PENAL LAW.
   § 3. Subparagraphs (xix) and (xx) of paragraph (b) of subdivision 1 of
 section 530.20 of the criminal procedure law, as amended by section 3 of
 part UU of chapter 56 of the laws of 2020, are amended and a new subpar-
 agraph (xxi) is added to read as follows:
   (xix)  a  felony, where the defendant qualifies for sentencing on such
 charge as a persistent felony offender pursuant to section 70.10 of  the
 penal law; [or]
   (xx)  any felony or class A misdemeanor involving harm to an identifi-
 able person or property, where such charge arose from conduct  occurring
 while  the  defendant  was  released  on  his or her own recognizance or
 released under conditions for a separate felony or class  A  misdemeanor
 involving harm to an identifiable person or property, provided, however,
 that  the  prosecutor  must  show  reasonable  cause to believe that the
 defendant committed the instant crime and any underlying crime. For  the
 purposes  of this subparagraph, any of the underlying crimes need not be
 a qualifying offense as defined in this subdivision[.]; OR
   (XXI) FAILURE TO RETREAT AS DEFINED IN SECTION  205.40  OF  THE  PENAL
 LAW.
   §  4. Paragraphs (s) and (t) of subdivision 4 of section 530.40 of the
 criminal procedure law, as added by section 4 of part UU of  chapter  56
 of  the  laws  of  2020, are amended and a new paragraph (u) is added to
 read as follows:
   (s) a felony, where the defendant qualifies  for  sentencing  on  such
 charge  as a persistent felony offender pursuant to section 70.10 of the
 penal law; [or]
   (t) any felony or class A misdemeanor involving harm to  an  identifi-
 able  person or property, where such charge arose from conduct occurring
 while the defendant was released on  his  or  her  own  recognizance  or
 released  under  conditions for a separate felony or class A misdemeanor
 involving harm to an identifiable person or property, provided, however,
 that the prosecutor must show  reasonable  cause  to  believe  that  the
 defendant  committed the instant crime and any underlying crime. For the
 purposes of this subparagraph, any of the underlying crimes need not  be
 a qualifying offense as defined in this subdivision[.]; OR
   (U) FAILURE TO RETREAT AS DEFINED IN SECTION 205.40 OF THE PENAL LAW.
   §  5.  This  act shall take effect on the thirtieth day after it shall
 have become a law.