NYC Bodega murder charge: isn't it self-defense? _00005614.png
NYC Bodega murder charge: isn't it self-defense?
06:50 - Source: CNN
CNN  — 

A Manhattan judge dismissed a murder charge Tuesday against a bodega worker who fatally stabbed a man earlier this month in what the worker’s legal team argued was a case of self-defense.

Jose Alba, 61, had been charged with second-degree murder in the killing Austin Simon, 35, on the night of July 1. Surveillance video of their confrontation shows Simon came behind the bodega counter and shoved Alba, who then grabbed a knife and stabbed Simon multiple times.

Alba’s attorneys had argued that he acted in self-defense, noting the size and age difference between the two men.

“The video in this case speaks for itself: Mr. Alba was simply doing his job when he was aggressively cornered by a much younger and bigger man,” Alice Fontier, a spokeswoman for Alba’s attorney, said last week.

After reviewing the evidence, the Manhattan District Attorney’s Office filed a motion Tuesday morning to dismiss the charge, and Judge Laurie Peterson formally dismissed the complaint hours later. Anjuli Branz, an attorney representing Alba in court, had no comment. Alba was not present in court.

Neighborhood Defender Service spokesperson Shannon Anglero said in a statement that Alba “looks forward to moving about freely and spending time with his family.”

In the prosecution’s motion to dismiss, Assistant District Attorney Jennifer Sigall said the district attorney’s office would not present the case to a grand jury. “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,” Sigall said in the court filing.

The motion to dismiss states the investigation included interviews of civilian witnesses to the stabbing and those who called 911, as well as the police and emergency medical technicians who responded to the scene and the medical examiner. It also included review of surveillance video from the inside and outside of the store, with some of the video having no audio and other video with incomplete audio.

“We reviewed medical records. And we analyzed extensive video evidenced, included portions not publicly available,” Sigall said in the court filing.

Mayor Eric Adams, who had earlier expressed his support for Alba, said the DA’s office made the right decision in asking to dismiss the charge.

“I think in this case we had an innocent, hardworking New Yorker that was doing his job and someone was extremely aggressive towards him,” he said at a news conference Tuesday. “And I believe after the DA’s review, the DA, in my opinion, made the right decision.”

What led to the fatal stabbing

The incident began at the Blue Moon Convenient Store in Upper Manhattan on July 1 when Simon’s girlfriend, who is not named, tried to buy a snack for her daughter but had her payment declined, according to a copy of Alba’s criminal complaint. She alleged in the complaint that Alba grabbed her daughter’s hand to take back the snack.

The girlfriend allegedly returned to the counter, knocked goods off the counter and left while yelling “my n—– gonna come down here right now and f— you up,” according to the motion to dismiss. She left the store and later returned with Simon several minutes later, the complaint states.

According to the complaint, surveillance video shows Simon, who had a white towel in his hand, entered the area behind the counter and pushed Alba.

“Mr. Simon then put the towel in his pocket and attempted to steer the defendant out of the area behind the counter, but the defendant picked up a kitchen knife that was stashed behind the counter and stabbed Mr. Simon in the neck and chest at least five times,” the complaint states.

“He wanted me to come apologize to the girl,” Alba told an investigator, according to the complaint. “I took the knife we use to open boxes and I stabbed him.”

The complaint states that Simon’s girlfriend attempted to pull Alba away from Simon, holding his right arm, but the clerk continued to stab Simon. Simon’s girlfriend then took a knife from her purse and stabbed Alba, the complaint states. She is not currently facing charges, according to a spokesperson for the prosecutor’s office.

Simon died later that evening “of stab wounds to his neck and torso” the complaint states. CNN has reached out to Simon’s family for comment on Alba’s case being dismissed.

Alba was arrested by police on July 2 and charged with one count of second-degree murder. He did not enter a plea, according to Emily Whitfield, a spokesperson for his attorney.

Simon said ‘come fight me’ before stabbing, prosecutors say

In their motion to dismiss the case, prosecutors said that unbeknownst to Alba, Simon had a box cutter clipped inside his shorts but that there was no evidence that Alba knew he had it.

Alba allegedly told police that Simon told him, “Come with me, come fight me, come! ‘Cause she is my wife; come fight me,” according to the motion to dismiss, which said that surveillance video did not capture those comments.

Surveillance video did capture Alba telling Simon, “I don’t want a problem, papa” the court filing stated, and that the video corroborated multiple statements Alba made to police.

Body worn police cameras captured an officer arriving to the scene and asking Alba, “You stabbed him?” and that Alba initially responded, “No,” later telling police, “He want to fight me, inside,” according to the motion to dismiss.

Prosecutors explained why they could not carry the burden to prove beyond a reasonable doubt that Alba didn’t act in self-defense.

“As to whether Alba reasonably believed that deadly physical force was necessary to ‘terminate the commission’ of the burglary involving his restraint, 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,” the motion to dismiss states.

Prosecutors moved to reduce Alba’s bail after the clerk was held in Rikers Island for several days, saying at a hearing that they have been in conversations with defense counsel about coming up with a bail package that balances the facts of the case. He was released on $50,000 bond, partially secured by the owners of the bodega where Alba worked.

Alba has worked at bodegas since emigrating to New York City 35 years ago from the Dominican Republic in search of a better life, Fontier said, adding he has worked at the bodega where the incident took place for three years. “He worked hard to earn his US citizenship 18 years ago and has been a constant source of support for his children and grandchildren,” said Fontier.

Last week, several bodega advocates met with the District Attorney Alvin Bragg to urge him to drop the murder charge.

“We’re very hopeful that Jose Alba’s case will be dismissed, will be dropped by the district attorney,” Fernando Mateo, speaking on behalf of the United Bodegas of America, said afterward.

CNN’s Eric Levenson and Kiely Westhoff contributed to this report.