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Manhattan DA Drops Case Against Bodega Worker Who Killed Late-Night Attacker: ‘The State Could Not Carry Its Burden at Trial’

Austin Simon (left) and Jose Alba (right). (Image via New York court documents.)

Austin Simon (left) and Jose Alba (right). (Image via New York court documents.)

The Manhattan District Attorney’s Office on Tuesday filed a motion to dismiss a criminal complaint against Jose Alba, a bodega worker who stabbed and ultimately killed an assailant who attacked him while he was at work during the overnight hours of July 1 and July 2.

The case gained widespread attention after conservatives, including Tucker Carlson, criticized the incident with headlines such as this: “you can no longer fight back.” The DA’s office deflated that criticism by dropping the case after gathering all the available evidence.

“Following an investigation, the People have determined that we cannot prove beyond a reasonable doubt that the defendant was not justified in his use of deadly physical force,” prosecutor Jennifer Sigall wrote in a court document (replete with a double negative) filed Tuesday. “As such, the People will not be presenting the case to a Grand Jury and for the reasons provided in the attached memorandum, hereby move to dismiss the complaint.”

The DA’s review included “files, records, and video and audio recordings maintained by the District Attorney’s Office and the New York City Police Department, interviews with police and civilian witnesses, and interviews with the defendant,” a second document asserts.

Alba was originally charged with second-degree murder, which is New York’s most frequently employed murder statute. (The Empire State’s first-degree murder statute applies in special circumstances, such as when the victims are police officers, youth workers, firefighters, emergency medical technicians, jail guards, or witnesses in court proceedings, or when the cases involve murder-for-hire accusations, murders committed during the commission of certain other crimes, murders involving torture, and murders involving multiple victims, just to name a few.)

The motion to drop the matter describes the basic facts of the case as follows:

Jose Alba repeatedly stabbed Austin Simon behind the counter in the Blue Moon convenience store at 3422 Broadway in Manhattan at approximately 11:00 p.m. on Friday, July 1, 2022. Alba stabbed Simon in the heart, in his lung, and in his jugular vein. Simon was declared dead on arrival at the hospital.

The death stemmed from a physical confrontation that Simon started because he believed that Alba had harshly treated the ten-year-old daughter of Simon’s girlfriend. Alba had pulled out of the daughter’s hand a snack that the girlfriend could not purchase due to a malfunctioning Electronic Benefit Transfer (EBT) Card.

Minutes after the girlfriend left angrily, Simon came to the store, entered the small, employees-only area behind the counter, shoved Alba against a wall of shelving, and grabbed him by the collar to lift him out of a chair and force him out of the employees-only area, saying that he wanted Alba to apologize to the girl. With Simon holding him by the collar and forcibly pushing him out, Alba grabbed a knife from a shelf beside the counter and repeatedly stabbed Simon as they struggled.

The motion says charges were filed and that bond was requested as “Alba was planning to travel out of the country the following week,” and a footnote explains that the bond was hammered out with defense counsel:

The District Attorney’s Office contacted defense counsel to negotiate an appropriate bail package to ensure Alba’s return to court during the investigation into the charges and the potential justification defenses. On Thursday, July 7, defense counsel proposed a package that included a bond and electronic monitoring, to which the District Attorney’s Office agreed and the court accepted. That same day, Alba was released after posting $5,000 for a partially secured bond.

“The District Attorney’s Office is steadfast in ensuring that indictments are ‘not based upon premature beliefs or conclusions as to guilt or innocence but are guided by the facts,'” the document asserts. “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. Consequently, the People will not be presenting the case to the grand jury, and hereby move to dismiss the Criminal Court complaint.”

The document then contains a several-pages-long recap of the factual allegations noted briefly above. Among the recitations were that “Simon forcefully pushed Alba against a wall of shelving,” that video showed that Simon kept “a boxcutter clipped inside his right front shorts pocket,” and that as Simon grabbed Alba by the collar, “Alba reached down for a knife kept on a shelf beside the counter.”

“A struggle began as soon as Alba grabbed the knife,” prosecutors wrote. “As they struggled, Alba repeatedly stabbed Simon.”

The stabbing continued as Simon’s girlfriend allegedly attempted to stab Alba, causing a skin injury.

“From the moment that Simon entered the area behind the counter to when he lay dying on the floor of the Blue Moon, approximately 30 seconds had passed,” prosecutors continued. “The police arrived and three officers administered chest compressions to Simon until firefighters and emergency medical technicians arrived and took over. Simon was pronounced dead on arrival at the hospital.”

Simon’s body exhibited “a total of six sharp force injuries: three stab wounds and three incised wounds (longer than they are deep).”

Later in the document, prosecutors write that there was “no evidence” that Alba knew Simon had a boxcutter in his pocket.

Here’s how Alba’s interaction with the police played out, according to prosecutors:

Immediately after the stabbing, police officers arrived on the scene. Knowing only that an individual had been stabbed and was bleeding, a lieutenant asked Alba for a description of the stabber. Alba did not respond, and another officer then told the lieutenant that he believed Alba was the stabber. An Officer then asked Alba, “You stabbed him?” and, Alba replied, “No.” The officer then asked, ‘Who stabbed him?” and Alba said, “He wanna take it. I no [unintelligible] take it.” Those exchanges were recorded on body-worn camera. A few minutes later, outside the store (and again recorded by the body-worn camera), Alba said “He want to fight me, inside.” Alba said that the girlfriend had fought him too.

Prosecutors then spent several pages analyzing Alba’s likely defenses at trial.

Under New York law, when a defendant has properly raised a defense of justification, the defendant is not required to prove at trial that he was justified. Just the opposite, the People are required to prove beyond a reasonable doubt that the defendant was not justified. PL § 25.00(1); PL § 35.00.

The District Attorney’s investigation explored two different possible justification defenses under Article 35. The first was that Alba reasonably believed that Simon was about to use deadly physical force against him. See PL § 35.15(2) (use of deadly physical force in defense of a person). The second was that Alba reasonably believed that Simon had unlawfully trespassed behind the Blue Moon counter with intent to commit a crime—here to physically restrain Alba or put him in fear of physical injury. See PL § 35.20(3) (use of deadly physical force to prevent or terminate a burglary).

The first analysis required an assessment under the following laws:

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. See PL § 35.15(2)(a). Deadly physical force is “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” PL § 10.00(11).

Under New York law, however, one cannot use deadly physical force to defend against only physical force.

Prosecutors assessed the situation without forming a clear conclusion:

Here, Alba has said that Simon displayed no weapon, never hit him, but wanted him to go outside to fight—arguably evidence of imminence of physical force rather than deadly physical force. Although Simon had a boxcutter in his front pocket, there is no evidence that Alba knew that. See People v. Wesley, 76 N.Y.2d 555, 559 (1990) (critical focus must be placed on what defendant reasonably believed, not on circumstances of which he was unaware).

On the other hand, there is an age differential (Alba is 61 and Simon was 35) and a height differential (Alba is 5’7″ and Simon was 6′). And 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. 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 fuck you up.”

The second analysis played out this way:

As to the second possible justification defense, 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. See PL § 35.20(3). Under the law, it does not matter whether those beliefs were mistaken, provided that Alba actually—and reasonably—held them. See CJI2d[NY] 35.15(2) at 3 (“it does not matter that the defendant was or may have been mistaken in his/her belief; provided that such belief was both honestly held and reasonable”); People v. Umali, 10 N.Y.3d 417, 426 (2008).

Prosecutors assessed that a burglary was possibly afoot — for the purposes of assessing the underlying justification defense Alba might employ at trial. And, here, prosecutors concluded that the elements of the underlying offense had been met: that Simon (1) knowingly enters or remains unlawfully in an occupied building (2) with the intent to commit a crime therein.

The second element of the crime required more strict analysis than the first, given the video of the incident.

“As to the second element of burglary, intent to commit a crime, 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,” prosecutors wrote. “Alba would contend, based on the video evidence, that until the moment Alba employed his knife, Simon seemed quite capable of controlling where Alba would be taken, whether within or outside the store.”

Prosecutors penned a few more paragraphs before arriving at this cursory conclusion: “In sum, after investigation, the People have concluded that the state could not carry its burden at trial of disproving Alba’s defenses beyond a reasonable doubt.”

After a few more tomes about the role of a full investigation and doing “justice without fear or favor,” the case was tossed.

Read the DA’s court filings below:

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.