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Manhattan DA Dropping Murder Charge Against Bodega Worker

Manhattan DA Dropping Murder Charge Against Bodega Worker

The second-degree murder charge infuriated people in the neighborhood. This won’t go away for DA Alvin Bragg.

Manhattan District Attorney Alvin Bragg’s office filed a motion to dismiss the second-degree charge against bodega worker Jose Alba, 61.

The office charged Alba with murder for allegedly stabbing Austin Simon, a 35-year-old ex-con, who attacked him in the bodega on July 1.

The motion noted that Alba could have argued at trial that he was acting in self-defense — an argument the bodega worker had repeatedly been making since his arrest.

“One potential defense is that Alba reasonably believed that Simon was about to use deadly physical force,” the dismissal memo noted.

“The law provides that a person may use deadly physical force to defend oneself if the person reasonably believes that another person is using or about to use deadly physical force.”

“… Simon’s conduct in entering the store’s small, private area, throwing Alba against the wall to a place he could not escape, and grabbing him by the collar could inspire deep fear in an older and shorter man as to what might be in store next,” the motion continued.

“This was also in the context of the girlfriend saying five minutes earlier that her boyfriend was going to ‘come down here right now and f–k you up’.”

The motion also suggested that Alba may have assumed he was about to be robbed — and that Simon could have actually committed a crime by cornering the bodega worker behind the counter.

“It is a crime in New York to use physical force to intentionally restrict a person’s movements by moving him from one place to another or by confining him,” the motion said.

“… if Alba reasonably believed that Simon was committing or attempting to commit a burglary of an occupied building, then Alba was permitted to use deadly physical force upon Simon if Alba reasonably believed it to be necessary to prevent or terminate the commission of the burglary.”

“After investigation, the District Attorney’s Office has concluded that a homicide case against Alba could not be proven at trial beyond a reasonable doubt,” the motion continued.

“Consequently, the People will not be presenting the case to the grand jury, and hereby move to dismiss the Criminal Court complaint.”

The footage shows Simon accosting Alba behind the counter:

Footage obtained by the Daily News shows Simon, 34, getting in Alba’s face and shoving the clerk into a chair behind the counter, sending him careening into a wall of merchandise.

Simon then grabbed Alba by the shirt and pulled him from the chair, guiding him away from the counter, ostensibly to make him apologize to the girl. Alba grabbed a nearby knife, though, and stabbed Simon five times.

Simon’s girlfriend stabbed Alba in the arm during the melee.

Alba has no criminal history. He is a hard-working immigrant from the Dominican Republic who became a citizen 14 years ago.

The police arrested Alba. Bragg’s office charged him with murder.

Bragg’s office wanted Alba held on $500,000 bail or bond. The judge dropped it to $250,000. No matter the amount Alba and his family couldn’t pay, he went to Riker’s for five days.

The judge considered Alba a flight risk because the prosecutors told him that “he had a previously planned trip back to the Dominican Republic scheduled for next week.”

The murder charge caused outrage across the city, especially with the footage. Bragg promised the city he would only lock up the violent criminals while telling his office to make some felonies misdemeanors instead.

On the other hand, at the time of the attack, Simon “was already on parole for assaulting a cop.” He also had eight previous busts: assault, robbery, and assault during a domestic dispute.

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Comments

If he were White, he would rot in jail with the Jan 6’ers

The law says you have to retreat

Why in the world would YOU have to retreat when a thug is trying to kill you?

    taurus the judge in reply to gonzotx. | July 19, 2022 at 3:12 pm

    What law says that?

    Also, the retreating statutes ( usually for justification of deadly force) also don’t require retreating when one cant such as being cornered or when the retreat poses equal or greater danger.

      henrybowman in reply to taurus the judge. | July 19, 2022 at 3:50 pm

      In Massachusetts, they convicted an old lady for self-defense without first retreating out of her basement apartment transom-sized “window,” which was higher than she was.

      Stand Your Ground and Castle Doctrines are natural human rights.

      Milhouse in reply to taurus the judge. | July 19, 2022 at 5:55 pm

      NY law says that, and the law of about a dozen other states. But, as you correctly point out, it only applies if it is possible to safely retreat. In this case it wasn’t, so Alba had no such duty.

        The Gentle Grizzly in reply to Milhouse. | July 19, 2022 at 6:10 pm

        The sad part of such laws is that the persecution gets to argue what a safe retreat may be.

        taurus the judge in reply to Milhouse. | July 20, 2022 at 7:22 am

        Now Milhouse, that comment is so misleading, it borders on factually false. ( which is unusual for you as you generally have a high degree of accuracy)

        In EVERY jurisdiction ( not just NY) where a “duty to retreat” exists its never an “absolute”.

        Its framed with various qualifiers which color it ( and unfortunately leaves it open to “interpretation” or that “reasonable person” standard) and a person could get Nifonged.

        I myself was involved with one in a different century where the vic has a heart condition so even “leaving” was not considered a “duty” to the potential risk of the disability.

        Those statutes are NOT “absolutes”. ( but are also ripe for abuse)

        In context with this case, as you stated, the man had no duty to retreat.

    chrisboltssr in reply to gonzotx. | July 19, 2022 at 4:41 pm

    There was no way for Alba to retreat.

    The Gentle Grizzly in reply to gonzotx. | July 19, 2022 at 5:04 pm

    Because the law says so. The law is an ass.

    Milhouse in reply to gonzotx. | July 19, 2022 at 5:54 pm

    The Duty to Retreat was in the common law, and until about 20 years ago it was still the law in almost all of the USA. Gradually most states have got rid of it, but there are still about 13 holdouts, last I heard. Including NY.

      henrybowman in reply to Milhouse. | July 19, 2022 at 7:41 pm

      That’s incredibly misleading. I’ve been teaching gun courses for more than 30 years, and even way back then, Massachusetts was an outlier for demanding duty to retreat.

      Runyan v. State, 57 Ind. 80 (1877), was an Indiana court case that argued natural law and a distinct “American Mind” to reject a duty to retreat when claiming self-defense in a homicide case:

      “A very brief examination of the American authorities makes it evident that the ancient doctrine as to the duty of a person assailed to retreat as far as he can before he is justified in repelling force by force has been greatly modified in this country, and has with us a much narrower application than formerly. Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement, or even to save human life, and that tendency is well illustrated by the recent decisions of our courts bearing on the general subject of the right of self-defense.”

      This was affirmed in citation by SCOTUS in Beard v. US (1895):

      “The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner and with a deadly weapon, and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon in such way and with such force as, under all the circumstances, he at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life or to protect himself from great bodily injury.”

      SCOTUS claims the negation of duty to retreat appears far back in English law, citing both East’s Pleas of the Crown and Foster’s Crown Cases. They reaffirmed this finding more recently in Brown v. US, 1920.

      Now, there is a long-standing duty to break off real or perceived aggression before engaging in self-defense, as described in Rowe v. US (1896):

      “the deceased used language of a character offensive to the accused; that the accused thereupon kicked at or struck at the deceased, hitting him lightly, and then stepped back and leaned against a counter; that the deceased immediately attacked the accused with a knife, cutting his face, and that the accused then shot and killed his assailant.”

      The court found that the act of stepping back “in good faith withdraw[ing]from further contest” restored the defendant’s right of self-defense.

      Even in this case, the court notes:

      “After saying that both the accused and the deceased were upon the same plane in respect of the place or house in which they were at the time, each having the right to be there, the court proceeded: Neither one of them was required to retreat under such circumstances, because the hotel or temporary stopping place of a man may be regarded as his dwelling place, and the law of retreat in a case like that is different from what it would be on the outside.”

      Stand your Ground and Castle Doctrine. Clear as a bell, as rung over 120 years ago.

taurus the judge | July 19, 2022 at 3:09 pm

Nobody need be happy about this- look at the bigger picture.

Look at all the public pressure (and video) it took to “undo” what never should have been done in the first place.

All that happened here was they ( the left0 showed their true colors and ONLY relented when the sheer volume of evidence ( and a vide0 worked against them for WEEKS forcing them to relent.

Even then if it were not for the cumulative expectation of a red MAGA wave November looming- even with all the above they would never have relented.

I’m glad the motion is going through and the guy will be free but lets not forget the greater issue that it never should have happened and they didn’t relent because they realized they were wrong”- they relented only for political gain and expediency.

    Maybe they learned something from the Rittenhouse case. If you have video of an obvious self defense case and everybody knows it, maybe you shouldn’t prosecute.
    Of course this guy didn’t use an evil AR-15 and didn’t cross state lines so maybe that is why they wised up.

      henrybowman in reply to Martin. | July 19, 2022 at 7:46 pm

      Well, you posit this example as a “lesson to be learned.” I think Democrats see it as an “outlier to be swept under the rug.”
      Destroying the citizens’ right of self-defense against their hired brownshirts is a major part of their overall game plan.
      There are no “lessons” here, only “setbacks.”

      taurus the judge in reply to Martin. | July 20, 2022 at 8:04 am

      Hard for me to accept the left has actually “learned” anything.

      Let me put this in proper “liberal speak” and their context.

      They do NOT see “obvious self defense” and they don’t believe the “minions” are smart enough to actually “know” anything.

      What they see is a workable out ( defense) to their attack on individual rights that they don’t feel they can build and sell an effective countermeasure for so they will “fight another day” rather than face an outright loss which could compound interest in future cases.

2smartforlibs | July 19, 2022 at 3:18 pm

This insanity will continue till Nov. then it will go nuts.

LukeHandCool | July 19, 2022 at 3:29 pm

See!!?? Our ruling class DOES show mercy. Sometimes. After lots and lots of public outcry. Outcry over one of the very rare cases that actually make it through to the public’s awareness. Some steam must then be released. Lest the unwashed plebs explode. It’s a well-engineered system that know when to grudgingly open a valve and relieve just a little pressure.

Why was Alba arrested in the first place?
If the arrest was justified, why wasn’t he released (subject to re-arrest if later found facts warranted re-arrest) by the police before this even became known by the Manhattan DA’s office?

By dropping the murder charge, Alvin Bragg has nothing to Brag, but rather should be ashamed of himself for charging Alba in the first place.

It took long enough since there was very clear video of the incident and the man is clearly at no fault other than defending himself when given no other choice.

The language of the District Attorney’s office is troubling–they’re not acknowledging that they believe in the right of self-defense. They’re just saying they don’t think they can make a charge of murder since the defendant can argue self-defense, so they’re dumping the case.

If they truly believed in the right of self-defense, they would not have brought the charges to begin with.

    henrybowman in reply to rochf. | July 19, 2022 at 8:03 pm

    “they’re not acknowledging that they believe in the right of self-defense.”

    People would be amazed if they realized the prevalence of this aberrant philosophy:

    Published 8-28-99, under the heading “What About Guns For Protection?”
    Response is the last line, “Editor’s Note.”

    “Once again, the [Worcester MA] Telegram & Gazette’s periodic statement of editorial policy (Aug 22) declares that “government should not interfere with the right of responsible citizens to own firearms for legitimate purposes – hunting, target shooting and collecting”.

    Once again, personal protection is notable in its absence from your list of legitimate purposes, which seems unduly focused on sports and hobbies.

    Will you please clarify for your readership once and for all whether or not you consider self-protection to be a legitimate reason to own a firearm?”

    Carl Travers
    Northboro

    EDITOR’S NOTE: We do not.

    It ain’t just Quakers and hippies, people.

chrisboltssr | July 19, 2022 at 4:42 pm

The girlfriend should be charged with murder and aggravated assault because she’s the one who set this sordid ordeal in motion. And all over a declined EBT card.

Welfare has not made people better. It has made them worse.

Too bad he didn’t gut the whore too.

Freedom_Fighter_001 | July 19, 2022 at 5:22 pm

Why the fuck anyone would live, let alone work and pay taxes in NY.
This would not happen in any other state besides CA (where I am but moving end of the month to Florida).

    henrybowman in reply to Freedom_Fighter_001. | July 19, 2022 at 8:06 pm

    It would happen in any state or polity where the right of self-defense has been heavily oppressed by Democrat rule. Massachusetts, New Jersey, Connecticut, the Chicago area… even Rhode Island.

Now when will Bragg charge the girlfriend? Answer: Never. Until she is charged justice will not have been done in this case.

    jb4 in reply to Milhouse. | July 19, 2022 at 6:49 pm

    Won’t she maintain that in the heat of the moment she was just trying to stop the knifing of her unarmed boyfriend?

      chrisboltssr in reply to jb4. | July 19, 2022 at 6:52 pm

      How can she maintain that when she was the one who instigated it? She knew her boyfriend was a thug and that he had a short fuse. She knew what she was doing when she set him on Alba.

        henrybowman in reply to chrisboltssr. | July 19, 2022 at 8:08 pm

        Oh, she can maintain it. She “thought it was right at the time,” where right is invariably “what gets me, the good person, what I want, against the bad person.”
        And arguing that such a street rat “knew what she was doing” at any point in time is an incredible burden of proof.

      Milhouse in reply to jb4. | July 19, 2022 at 8:09 pm

      Her boyfriend was the aggressor, and thus had no right to self defense. She had been the original aggressor, but she broke off the attack and so regained the right to defend herself, but not the right to defend her aggressor boyfriend. And once she rejoined the fray she regained the aggressor status and re-lost the right to defend herself.

    iconotastic in reply to Milhouse. | July 19, 2022 at 9:14 pm

    The only justice that will ever be done in this matter is if citizens form a committee of vigilance and try her.

girlfriend should be arrested for stabbing Alba.

Bragg and the ADA’s involved in filing charges should be disbarred for failing to see justice done, in filing these ridiculous, politically motivated, factually and legally unsupported charges, in the first place.

Any attorney who participated in this charade is unfit to be a licensed attorney.

    That’s exactly why a Soros voting machine had him ‘elected’.

      Soros had nothing to do with NY’s vote scanners, and there’s no doubt Bragg won his election fair and square. The majority of Manhattan voters wanted his brand of “justice”. Even now that they’ve been getting it good and hard, most of those who voted for him don’t regret it and would do it again.

I wonder how long until the riots start to declaim someone defending themselves.

Lee Zeldin says if he’s elected he’ll fire Bragg on Jan 1. He can’t actually do that; it’s not as simple as just saying “you’re fired”, there has to be a whole process which will take a long time, but he can start it on Jan 1.