S T A T E O F N E W Y O R K
________________________________________________________________________
108
2025-2026 Regular Sessions
I N S E N A T E
(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:
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 SUCH PERSON IS WITHIN
TWENTY-FIVE FEET OF A POLICE OFFICER OR PEACE OFFICER ENGAGED IN THE
PERFORMANCE OF THEIR DUTIES AND SUCH 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 (t) and (u) of subdivision 4 of section 510.10 of the
criminal procedure law, paragraph (t) as amended and paragraph (u) as
added by section 2 of subpart B of part UU of chapter 56 of the laws of
2022, are amended and a new paragraph (v) is added to read as follows:
(t) any felony or class A misdemeanor involving harm to an identifi-
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
firearm as defined in section 265.01-b of the penal law, where such
charge arose from conduct occurring while the defendant was released on
[his or her] THEIR own recognizance, released under conditions, or had
yet to be arraigned after the issuance of a desk appearance ticket for a
separate felony or class A misdemeanor involving harm to an identifiable
person or property, or any charge of criminal possession of a firearm as
defined in section 265.01-b of the penal law, 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 quali-
fying offense as defined in this subdivision. For the purposes of this
paragraph, "harm to an identifiable person or property" shall include
but not be limited to theft of or damage to property. However, based
upon a review of the facts alleged in the accusatory instrument, if the
court determines that such theft is negligible and does not appear to be
in furtherance of other criminal activity, the principal shall be
released on [his or her] THEIR own recognizance or under appropriate
non-monetary conditions; [or]
(u) criminal possession of a weapon in the third degree as defined in
subdivision three of section 265.02 of the penal law or criminal sale of
a firearm to a minor as defined in section 265.16 of the penal law[.];
OR
(V) FAILURE TO RETREAT AS DEFINED IN SECTION 205.40 OF THE PENAL LAW.
§ 3. Subparagraphs (xx) and (xxi) of paragraph (b) of subdivision 1 of
section 530.20 of the criminal procedure law, subparagraph (xx) as
amended and subparagraph (xxi) as added by section 4 of subpart C of
part UU of chapter 56 of the laws of 2022, are amended and a new subpar-
agraph (xxii) is added to read as follows:
(xx) any felony or class A misdemeanor involving harm to an identifi-
able person or property, or any charge of criminal possession of a
firearm as defined in section 265.01-b of the penal law where such
charge arose from conduct occurring while the defendant was released on
[his or her] THEIR own recognizance, released under conditions, or had
yet to be arraigned after the issuance of a desk appearance ticket 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. For the purposes of this paragraph, "harm to an
identifiable person or property" shall include but not be limited to
theft of or damage to property. However, based upon a review of the
facts alleged in the accusatory instrument, if the court determines that
such theft is negligible and does not appear to be in furtherance of
other criminal activity, the principal shall be released on [his or her]
THEIR own recognizance or under appropriate non-monetary conditions;
[or]
(xxi) criminal possession of a weapon in the third degree as defined
in subdivision three of section 265.02 of the penal law or criminal sale
of a firearm to a minor as defined in section 265.16 of the penal
law[.]; OR
(XXII) FAILURE TO RETREAT AS DEFINED IN SECTION 205.40 OF THE PENAL
LAW.
§ 4. Paragraphs (t) and (u) of subdivision 4 of section 530.40 of the
criminal procedure law, paragraph (t) as amended and paragraph (u) as
S. 108 3
added by section 4 of subpart B of part UU of chapter 56 of the laws of
2022, are amended and a new paragraph (v) is added to read as follows:
(t) any felony or class A misdemeanor involving harm to an identifi-
able person or property, or any charge of criminal possession of a
firearm as defined in section 265.01-b of the penal law, where such
charge arose from conduct occurring while the defendant was released on
[his or her] THEIR own recognizance, released under conditions, or had
yet to be arraigned after the issuance of a desk appearance ticket for a
separate felony or class A misdemeanor involving harm to an identifiable
person or property, or any charge of criminal possession of a firearm as
defined in section 265.01-b of the penal law, 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 quali-
fying offense as defined in this subdivision. For the purposes of this
paragraph, "harm to an identifiable person or property" shall include
but not be limited to theft of or damage to property. However, based
upon a review of the facts alleged in the accusatory instrument, if the
court determines that such theft is negligible and does not appear to be
in furtherance of other criminal activity, the principal shall be
released on [his or her] THEIR own recognizance or under appropriate
non-monetary conditions; [or]
(u) criminal possession of a weapon in the third degree as defined in
subdivision three of section 265.02 of the penal law or criminal sale of
a firearm to a minor as defined in section 265.16 of the penal law[.];
OR
(V) 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.