Article 35 – NY Penal Law
DEFENSE OF JUSTIFICATION
35.00 Justification; a defense.
35.05 Justification; generally.
35.10 Justification; use of physical force generally.
35.15 Justification; use of physical force in defense of a person.
35.20 Justification; use of physical force in defense of premises
and in defense of a person in the course of burglary.
35.25 Justification; use of physical force to prevent or
terminate larceny or criminal mischief.
35.27 Justification; use of physical force in resisting arrest prohibited.
35.30 Justification; use of physical force in making an arrest
or in preventing an escape.
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.
