Penal Law Section 35.15 distinguishes ordinary physical force from deadly physical force. Its retreat rule applies to deadly force under the circumstances described in subdivision two. The rule and its exceptions must be read together.[1]
The Duty to Retreat
When a person reasonably believes another is using or about to use deadly physical force, and neither the dwelling nor officer exception applies, the person may not use deadly force if the person knows the necessity can be avoided by retreating with complete personal safety to the person and others. This does not independently authorize deadly force. The other justification requirements in Section 35.15 still apply.[1]
The retreat language appears in subdivision two, which governs deadly physical force. Subdivision one separately addresses when ordinary physical force may be justified.[1]
The Dwelling Exception
Section 35.15(2)(a)(i) removes the retreat duty when the actor is in the actor's dwelling and is not the initial aggressor. It does not eliminate the remaining requirements for justified deadly force.[1]
What Can Qualify as a Dwelling
Section 140.00 defines a dwelling as a building usually occupied by a person lodging there at night. A building includes its ordinary meaning and also a structure, vehicle, or watercraft used for overnight lodging, among other listed uses.[2]
- A yard or driveway is not a building merely because it surrounds a dwelling.
- Whether a porch is part of the building depends on the actual structure and facts. It should not be categorically included or excluded.
- An ordinary vehicle is not automatically a dwelling, but a vehicle used for overnight lodging can fall within the building definition and can qualify as a dwelling if it is usually occupied for lodging at night.
- A place of business qualifies for this no-retreat exception only if it also meets the statutory dwelling definition.
Location classifications can be fact-specific. The no-retreat exception uses the statutory dwelling category. It does not extend to every place that might be described as premises.[1][2]
No General Stand-Your-Ground Rule
New York has not enacted a general rule eliminating retreat wherever a person may lawfully be. Under Section 35.15, the question is whether the person knew retreat could avoid the need for deadly force with complete personal safety, unless a statutory exception applies.[1]
Officer and Assistant Exception
The retreat exception also covers a police officer, peace officer, or person assisting such an officer at the officer's direction when acting pursuant to Penal Law Section 35.30. It is not a blanket exception for every act performed while an officer is on duty.[1]