Penal Law Article 35: Self-Defense, Deadly Force, and Retreat

New York Penal Law Article 35 is the state’s law of justification: it sets out when you can legally use physical force, including deadly force, without facing criminal liability. It covers self-defense, defense of others, defense of your home and property, force used during arrests, and force by people acting in authority roles like parents, teachers, and corrections officers. The single most important feature of the statute is one most people don’t realize: once you raise justification, the prosecution has to disprove it beyond a reasonable doubt.

Who Has to Prove Justification

Section 35.00 calls justification a “defense,” which under New York law is sharply different from an “affirmative defense.”¹ An affirmative defense puts the burden on the defendant. Justification keeps it on the prosecution. Once you introduce some evidence supporting the claim, the People must prove beyond a reasonable doubt that you were not justified.²

That changes the shape of a trial. You don’t have to take the stand to explain yourself. If witness testimony, physical evidence, or the circumstances of the incident raise a reasonable possibility of justification, the judge must instruct the jury on it, and the jury must acquit unless the prosecution eliminates that possibility.

The Reasonable Belief Standard

Nearly every provision in Article 35 turns on whether you held a “reasonable belief” that force was necessary. New York uses a two-part test. You must have actually believed you faced a threat and that force was needed to meet it. And a reasonable person in your position, knowing what you knew, must have shared those beliefs.²

Honest but unreasonable belief is not enough. If you genuinely thought you were about to be attacked but no reasonable person would have reached that conclusion, the defense fails. The upside: if your belief was honest and reasonable, it doesn’t matter that you turned out to be wrong. A reasonable mistake of fact doesn’t destroy the defense.²

Self-Defense With Non-Deadly Force

Under Section 35.15(1), you can use physical force against another person when you reasonably believe it’s necessary to defend yourself or a third person from someone else’s unlawful physical force, either already happening or about to happen.³ The force must be proportional. Shoving back after a shove is within the statute. Breaking someone’s arm because they poked your chest is not.

Three situations wipe out the defense. You cannot claim self-defense if you were the initial aggressor, unless you clearly withdrew from the encounter, communicated that withdrawal, and the other person kept coming. You cannot claim it if the fight was pre-arranged by agreement. And the force you’re defending against has to be unlawful, which means you can’t use this defense against, for example, a police officer making a lawful arrest.³

When Deadly Force Is Allowed

Section 35.15(2) sets a much higher bar for deadly force. It’s permitted when you reasonably believe someone is using or about to use deadly physical force against you or another person.³ Deadly physical force means force capable of causing death or serious physical injury. Pulling a knife on someone who slapped you is not proportional and the statute won’t protect you.

Deadly force is also justified to stop certain violent felonies in progress even if the attacker hasn’t shown deadly force themselves: kidnapping, forcible rape, forcible criminal sexual acts, and robbery.³ The law treats these crimes as inherently violent enough to presume a deadly-level threat.

A separate provision in Section 35.20(3) allows deadly force against someone committing or attempting a burglary of a dwelling or occupied building, when the occupant reasonably believes that level of force is necessary to stop it.⁴ This is often misread as blanket permission to shoot any intruder. It isn’t. The reasonable-belief requirement still applies to the specific circumstances of that burglary.

Duty to Retreat and the Castle Doctrine

New York is not a stand-your-ground state. Before using deadly force, you must retreat if you know you can do so with complete safety for yourself and others.³ More than half of U.S. states have scrapped this requirement; New York has kept it.⁵ The phrase “with complete personal safety” matters. If retreating would expose you to further danger, you don’t have to try.

Three exceptions remove the duty to retreat:

You are in your own dwelling and were not the initial aggressor.³
You are a police or peace officer acting under Section 35.30, or you are helping one.
You reasonably believe the attacker is committing kidnapping, forcible rape, forcible criminal sexual acts, robbery, or certain burglaries.⁵

What Counts as Your Dwelling

The dwelling exception is narrower than most people assume. Under New York case law, a dwelling is a space where you live and from which others are ordinarily excluded. The test is whether you exercise exclusive possession and control over the area.⁶

Apartment building lobbies and stairwells don’t qualify because they’re shared. Hotel corridors are out. Courts have recognized that a brownstone hallway with a locked front door and limited access can be part of the dwelling because of its degree of privacy.⁶ If you share your home with the person threatening you, the castle doctrine still applies; the exception covers co-occupants.

Defending Your Home and Property

Section 35.20 authorizes non-deadly force to protect premises in two scenarios. Anyone can use reasonable force to stop someone from damaging a building or property. And a person who possesses, controls, or is authorized to be on premises can use reasonable force to prevent or end a criminal trespass.⁴ If someone refuses to leave your home after being asked, you can physically remove them, but only with the amount of force reasonably necessary. Deadly force is not available for simple trespass.

Deadly force under Section 35.20(3) is limited to burglaries of dwellings or occupied buildings, and only when you reasonably believe it’s necessary to stop the burglary.⁴ Automated lethal devices like booby traps and spring guns are never justified. The statute doesn’t allow a device that applies deadly force when you aren’t present to assess the situation yourself.

For property other than premises, Section 35.25 allows non-deadly force when you reasonably believe someone is committing or attempting larceny or criminal mischief against your belongings.⁷ Deadly force is never authorized to protect property alone. You can grab someone running off with your bike. You cannot shoot them.

Force During Arrests

Section 35.30 governs force used in arrest situations by both officers and citizens. A police officer or peace officer may use reasonable non-deadly force to make an arrest or prevent an escape.⁸ Deadly force by an officer is authorized only when the officer reasonably believes one of the following:

The person committed or attempted a felony involving the use, attempted use, or threatened imminent use of physical force against another.
The person committed or attempted kidnapping, arson, first-degree escape, or first-degree burglary.
The person committed a felony and is armed with a firearm or deadly weapon while resisting arrest or escaping.
Deadly force is necessary to defend the officer or another from what the officer reasonably believes is the use or imminent use of deadly physical force.

Being justified in using deadly force against a suspect does not justify reckless conduct toward bystanders.⁸ An officer firing into a crowd during a pursuit can’t hide behind justification for injuries to innocent people.

If an officer directs you to help make an arrest, Section 35.30(3) allows you to use non-deadly force to carry out that direction, as long as you don’t know the arrest is unauthorized. You can use deadly force only if you reasonably believe it’s needed for self-defense or defense of another, or if the officer specifically directs you to use it and you don’t know the officer lacks that authority.⁸

You Cannot Resist Arrest, Even an Unlawful One

Section 35.27 draws a bright line. You may not use physical force to resist an arrest by someone who reasonably appears to be a police or peace officer, even if the arrest itself is unauthorized.⁹ If you are completely innocent and the arrest is a mistake, your remedy is in court, not on the street. Fighting back can produce separate criminal charges on top of whatever brought the officer to you in the first place.

Parents, Teachers, and Other Authority Roles

Section 35.10 covers force used in specific roles rather than in self-defense. Parents, guardians, and others entrusted with the care of a person under 21 or an incompetent person may use non-deadly physical force when they reasonably believe it’s necessary for discipline or welfare. Teachers and school officials get the same latitude for students in their care.¹⁰ Deadly force is never allowed under this provision, and the force used can be no more than reasonably necessary.

Licensed physicians, or people acting under a physician’s direction, may use force to administer recognized medical treatment, but only with the patient’s consent or, in an emergency, when no competent person can be consulted and a reasonable person would consent to safeguard the patient. Prison wardens and authorized correctional officials may use force as authorized by the Correction Law to maintain order and discipline. People responsible for keeping order on common carriers can use non-deadly force to do so, and deadly force only when they reasonably believe it’s necessary to prevent death or serious physical injury.¹⁰

Emergency Necessity

Section 35.05 covers two broader categories of justified conduct beyond self-defense. First, conduct required or authorized by law, or performed by a public servant reasonably exercising official duties, is justified. Second, conduct that would otherwise be criminal is justified if it’s necessary as an emergency measure to avoid imminent injury that the person didn’t cause, and the harm being avoided clearly outweighs the harm caused by the otherwise-criminal act.¹¹

This is New York’s necessity defense. Breaking into a cabin during a blizzard to avoid freezing would fit. So might speeding a critically injured person to a hospital. The bar is high: the emergency must be imminent, you cannot have created the situation, and the balance of harms must clearly tip toward your actions. The judge decides as a matter of law whether the facts could even support the defense before it reaches the jury.¹¹

What Article 35 Doesn’t Protect You From

Understanding what the statute says and successfully raising it in court are different problems. The prosecution gets to attack the reasonableness of your belief, the proportionality of your response, and whether you could have retreated. Juries evaluate those questions with the benefit of hindsight even though the legal standard tells them not to.

Two outside risks deserve attention. If you used a firearm and are a person prohibited from possessing one, federal courts read any necessity defense extremely narrowly: you generally need to show you possessed the weapon only for the duration of the emergency and disposed of it as soon as the danger passed. Keeping it afterward, hiding it, or failing to explain the situation to law enforcement will typically sink the defense. A justified shooting under state law can still produce a federal felon-in-possession conviction if the defendant held the firearm a moment longer than necessary.

New York also has no statutory civil immunity for someone who uses justified force. Unlike roughly two dozen states that shield self-defense actors from civil suits, a person acquitted or never charged under Article 35 may still be sued for damages by the person they used force against, or by that person’s family. A criminal finding of justification is strong evidence in a civil case, but it is not an automatic shield.

1
New York State Senate. New York Penal Law 35.00 – Justification; a Defense
2
New York State Unified Court System. CJI2d Justification Use of Physical Force in Defense of a Person
3
New York State Senate. New York Penal Law 35.15 – Justification; Use of Physical Force in Defense of a Person
4
New York State Senate. New York Penal Law 35.20 – Justification; Use of Physical Force in Defense of Premises and in Defense of a Person in the Course of Burglary
5
Justia. Stand Your Ground Laws 50-State Survey
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New York State Unified Court System. CJI2d Justification Use of Deadly Physical Force
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New York State Senate. New York Penal Law 35.25 – Justification; Use of Physical Force to Prevent or Terminate Larceny or Criminal Mischief
8
New York State Senate. New York Penal Law 35.30 – Justification; Use of Physical Force in Making an Arrest or in Preventing an Escape
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New York State Senate. New York Penal Law 35.27 – Justification; Use of Physical Force in Resisting Arrest Prohibited
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New York State Senate. New York Penal Law 35.10 – Justification; Use of Physical Force Generally
11
New York State Unified Court System. CJI2d Justification Emergency Measure 35.05(2)