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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