• ABC
• CPL 
  • CRIMINAL PROCEDURE LAW Index
  •  
  • CPL Listed by Article
  • CPL Listed by Part
  •  
  • Part 1 - General Provisions
  • Part 2 - The Principal Proceedings
  • Part 3 - Special Proceedings
• Penal 
  • PENAL LAW Index
  •  
  • Penal Law Listed by Article
  • Penal Law Listed by Part
  •  
  • Part 1 - General Provisions
  • Part 2 - Sentences
  • Part 3 - Specific Offenses
  • Part 4 - Administrative Provisions
  •  
  • Alphabetical List Penal Offenses
  • Most Viewed Penal Law Articles
  • Penal Law Common Search Terms
• VTL 
  • VEHICLE TRAFFIC LAW Index
  •  
  • VTL Listed by Article
  •  
  • Title I - Words Phrases Defined
  • Title II - DMV Commissioner
  • Title III - Safety Responsibility
  • Title IV - Registration of Vehicles
  • Title V - Drivers Licenses
  • Title VI - Accidents and Reports
  • Title VII - Rules of the Road
  • Title VIII - Powers of Authorities
  • Title IX - Penalties, Fines, Forfeitures
  • Title X - Uniform Vehicle Title Act
  • Title XI - Registration of Snowmobiles...
  • Title XII - Effect of Chapter
• Site Map

Article 35 - NY Penal Law

• NY Laws ›
• Penal Law ›
• Part 1 ›
• Title C ›
• Article 35

S 35.00 Justification; a defense.
  In any prosecution for an offense, justification, as defined in
sections 35.05 through 35.30, is a defense.

S 35.05 Justification; generally.
  Unless otherwise limited by the ensuing provisions of this article
defining justifiable use of physical force, conduct which would
otherwise constitute an offense is justifiable and not criminal when:
  1. Such conduct is required or authorized by law or by a judicial
decree, or is performed by a public servant in the reasonable exercise
of his official powers, duties or functions; or
  2. Such conduct is necessary as an emergency measure to avoid an
imminent public or private injury which is about to occur by reason of a
situation occasioned or developed through no fault of the actor, and
which is of such gravity that, according to ordinary standards of
intelligence and morality, the desirability and urgency of avoiding such
injury clearly outweigh the desirability of avoiding the injury sought
to be prevented by the statute defining the offense in issue.  The
necessity and justifiability of such conduct may not rest upon
considerations pertaining only to the morality and advisability of the
statute, either in its general application or with respect to its
application to a particular class of cases arising thereunder. Whenever
evidence relating to the defense of justification under this subdivision
is offered by the defendant, the court shall rule as a matter of law
whether the claimed facts and circumstances would, if established,
constitute a defense.

S 35.10 Justification; use of physical force generally.
  The use of physical force upon another person which would otherwise
constitute an offense is justifiable and not criminal under any of the
following circumstances:
  1. A parent, guardian or other person entrusted with the care and
supervision of a person under the age of twenty-one or an incompetent
person, and a teacher or other person entrusted with the care and
supervision of a person under the age of twenty-one for a special
purpose, may use physical force, but not deadly physical force, upon
such person when and to the extent that he reasonably believes it
necessary to maintain discipline or to promote the welfare of such
person.
  2. A warden or other authorized official of a jail, prison or
correctional institution may, in order to maintain order and discipline,
use such physical force as is authorized by the correction law.
  3. A person responsible for the maintenance of order in a common
carrier of passengers, or a person acting under his direction, may use
physical force when and to the extent that he reasonably believes it
necessary to maintain order, but he may use deadly physical force only
when he reasonably believes it necessary to prevent death or serious
physical injury.
  4. A person acting under a reasonable belief that another person is
about to commit suicide or to inflict serious physical injury upon
himself may use physical force upon such person to the extent that he
reasonably believes it necessary to thwart such result.
  5.  A  duly licensed physician, or a person acting under a physician's
direction, may use physical force for the  purpose  of  administering  a
recognized  form  of treatment which he or she reasonably believes to be
adapted to promoting the physical or mental health of the patient if (a)
the treatment is administered with the consent of the patient or, if the
patient is under the age of eighteen years  or  an  incompetent  person,
with  the consent of the parent, guardian or other person entrusted with
the patient's care and supervision, or (b) the treatment is administered
in an emergency when the  physician  reasonably  believes  that  no  one
competent  to  consent  can  be  consulted and that a reasonable person,
wishing to safeguard the welfare of the patient, would consent.
  6. A person may, pursuant to the ensuing provisions of  this  article,
use  physical  force upon another person in self-defense or defense of a
third person, or in defense of premises, or in order to prevent  larceny
of  or criminal mischief to property, or in order to effect an arrest or
prevent an escape from custody. Whenever a person is authorized  by  any
such  provision  to use deadly physical force in any given circumstance,
nothing contained in any other such provision may be deemed to negate or
qualify such authorization.

S 35.15 Justification; use of physical force in defense of a person.
  1.  A  person  may,  subject to the provisions of subdivision two, 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
withdrawn   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
agreement not specifically authorized by law.
  2.  A  person  may  not  use deadly physical force upon another person
under circumstances specified in subdivision one 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 actor is  under  no
duty to retreat if he or she is:
  (i) in his or her dwelling and 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; 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.

S 35.20 Justification; use of physical force in defense of premises and
             in defense of a person in the course of burglary.
  1. Any person may use physical force upon another person  when  he  or
she  reasonably  believes  such  to be necessary to prevent or terminate
what he or she reasonably believes to be  the  commission  or  attempted
commission by such other person of a crime involving damage to premises.
Such  person  may  use  any  degree of physical force, other than deadly
physical force, which he or she reasonably believes to be necessary  for
such  purpose, and may use deadly physical force if he or she reasonably
believes such to be necessary to prevent or terminate the commission  or
attempted commission of arson.
  2.  A  person  in  possession  or control of any premises, or a person
licensed or privileged to be thereon or therein, may use physical  force
upon  another  person  when  he  or  she  reasonably believes such to be
necessary to prevent or terminate what he or she reasonably believes  to
be  the  commission  or  attempted  commission by such other person of a
criminal trespass upon such premises. Such person may use any degree  of
physical  force,  other  than  deadly  physical  force,  which he or she
reasonably believes to be necessary for such purpose, and may use deadly
physical force in order  to  prevent  or  terminate  the  commission  or
attempted  commission  of arson, as prescribed in subdivision one, or in
the course of  a  burglary  or  attempted  burglary,  as  prescribed  in
subdivision three.
  3.  A person in possession or control of, or licensed or privileged to
be in, a dwelling or an occupied building, who reasonably believes  that
another  person is committing or attempting to commit a burglary of such
dwelling or building, may use deadly  physical  force  upon  such  other
person  when  he  or  she  reasonably  believes  such to be necessary to
prevent or terminate the commission  or  attempted  commission  of  such
burglary.
  4.  As  used  in  this section, the following terms have the following
meanings:
  (a) The terms "premises," "building" and "dwelling" have the  meanings
prescribed in section 140.00;
  (b)  Persons "licensed or privileged" to be in buildings or upon other
premises include, but are not limited to:
  (i) police officers or peace officers acting  in  the  performance  of
their duties; and
  (ii)  security  personnel  or  employees  of  nuclear powered electric
generating facilities located within the state who are employed as  part
of  any security plan approved by the federal operating license agencies
acting in the performance of their duties at such generating facilities.
For purposes of this subparagraph, the term  "nuclear  powered  electric
generating  facility"  shall  mean a facility that generates electricity
using nuclear power for sale, directly or  indirectly,  to  the  public,
including the land upon which the facility is located and the safety and
security zones as defined under federal regulations.

S 35.25 Justification; use of physical force to prevent or terminate
             larceny or criminal mischief.
  A person may use physical force, other  than  deadly  physical  force,
upon  another  person  when  and to the extent that he or she reasonably
believes such to be necessary to prevent or terminate  what  he  or  she
reasonably believes to be the commission or attempted commission by such
other person of larceny or of criminal mischief with respect to property
other than premises.

S 35.27 Justification; use of physical force in resisting arrest prohibited.
  A person may not use physical force to resist an arrest, whether
authorized or unauthorized, which is being effected or attempted by a
police officer or peace officer when it would reasonably appear that the
latter is a police officer or peace officer.

S 35.30 Justification; use of physical force in making an arrest or in
             preventing an escape.
   1. A police officer or a peace officer, in the course of effecting  or
  attempting  to  effect  an  arrest,  or  of  preventing or attempting to
  prevent the escape from custody, of a person whom he or  she  reasonably
  believes  to  have committed an offense, may use physical force when and
  to the extent he or she reasonably believes  such  to  be  necessary  to
  effect  the  arrest,  or  to  prevent  the  escape  from  custody, or in
  self-defense or to defend a third person from what he or she  reasonably
  believes  to  be  the use or imminent use of physical force; except that
  deadly physical force may be used for such purposes only when he or  she
  reasonably believes that:
    (a) The offense committed by such person was:
    (i)  a  felony  or  an attempt to commit a felony involving the use or
  attempted use or threatened imminent use of  physical  force  against  a
  person; or
    (ii)  kidnapping,  arson,  escape in the first degree, burglary in the
  first degree or any attempt to commit such a crime; or
    (b) The offense committed or attempted by such person was a felony and
  that, in the course of resisting arrest therefor or attempting to escape
  from custody, such person is armed with a firearm or deadly weapon; or
    (c) Regardless of the particular offense which is the subject  of  the
  arrest  or  attempted  escape,  the  use  of  deadly  physical  force is
  necessary to defend the police  officer  or  peace  officer  or  another
  person  from  what  the  officer  reasonably  believes  to be the use or
  imminent use of deadly physical force.
    2. The fact that a police officer or a peace officer is  justified  in
  using deadly physical force under circumstances prescribed in paragraphs
  (a)  and  (b)  of  subdivision one does not constitute justification for
  reckless conduct by such police officer or peace officer amounting to an
  offense against or with respect to innocent persons whom he  or  she  is
  not seeking to arrest or retain in custody.
    3.  A  person  who  has  been  directed by a police officer or a peace
  officer to assist such police officer or  peace  officer  to  effect  an
  arrest  or  to  prevent  an  escape from custody may use physical force,
  other than deadly physical force, when and to the extent that he or  she
  reasonably  believes  such  to  be  necessary  to  carry out such police
  officer's or peace officer's direction, unless he or she knows that  the
  arrest  or  prospective  arrest is not or was not authorized and may use
  deadly physical force under such circumstances when:
    (a)  He  or  she  reasonably  believes  such  to  be   necessary   for
  self-defense  or to defend a third person from what he or she reasonably
  believes to be the use or imminent use of deadly physical force; or
    (b) He or she is directed or authorized  by  such  police  officer  or
  peace  officer  to use deadly physical force unless he or she knows that
  the police officer or peace officer is  not  authorized  to  use  deadly
  physical force under the circumstances.
    4.  A private person acting on his or her own account may use physical
  force, other than deadly physical force, upon another person when and to
  the extent that he or she reasonably believes such to  be  necessary  to
  effect  an arrest or to prevent the escape from custody of a person whom
  he or she reasonably believes to have committed an offense  and  who  in
  fact  has  committed such offense; and may use deadly physical force for
  such purpose when he or she reasonably believes such to be necessary to:
    (a) Defend himself, herself or a third person  from  what  he  or  she
  reasonably  believes  to  be  the use or imminent use of deadly physical
  force; or
    (b)  Effect  the  arrest  of  a  person  who  has  committed   murder,
  manslaughter  in  the  first  degree, robbery, forcible rape or forcible
  criminal sexual act and who is in immediate flight therefrom.
    5.  A  guard,  police officer or peace officer who is charged with the
  duty of guarding prisoners in a detention  facility,  as  that  term  is
  defined  in  section  205.00, or while in transit to or from a detention
  facility, may use physical force when and to the extent that he  or  she
  reasonably  believes  such  to  be  necessary to prevent the escape of a
  prisoner from a detention facility or  from  custody  while  in  transit
  thereto or therefrom.

Top of Page