A growing chorus of voices is urging Manhattan District Attorney Alvin Bragg to drop a murder charge against a bodega clerk who fatally stabbed a man who had gone behind the counter and pushed him.
The bodega clerk, Jose Alba, 61, was working at the Blue Moon Convenient Store in Upper Manhattan on the night of July 1 when he got into a deadly altercation with Austin Simon, according to a copy of Alba’s criminal complaint. Alba was also allegedly stabbed by Simon’s girlfriend during the incident, the complaint states.
Simon’s girlfriend, who is not named in the complaint, had left the store after her payment was declined while attempting to buy a snack for her daughter, and she alleged in the complaint that Alba had grabbed her daughter’s hand to retrieve the snack. She later returned to the store with Simon.
The New York Post obtained surveillance video of the incident and reported that the woman is heard saying, “my n—– is gonna come down here right now and f—k you up” shortly before Simon came to the store.
According to the complaint, surveillance video showed Simon carrying a white towel in one hand, entering the area behind the counter where Alba sat and then pushing him.
“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.
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Simon died later that evening “of stab wounds to his neck and torso” the complaint states.
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.
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.
He is due back in court on July 20.
Alice Fontier, managing director of the Neighborhood Defender Service of Harlem, which offers legal services to the community and is representing Alba, said in a statement to CNN that Alba was defending himself during the incident.
“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,” Fontier said in the statement.
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,” Fontier said.
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Others have also come to Alba’s defense.
“Jose Alba has our full support,” said Fernando Mateo, speaking on behalf of the United Bodegas of America. “Our city is in crisis and at this point we are just fed up with people robbing, looting, attacking, assaulting, killing our small business owners.”
Mateo said current New York laws involving use of deadly force during self-defense need to change. On Tuesday, he and other bodega advocates met with DA Bragg to urge him to drop Alba’s murder charge. Mateo said afterward he felt pleased with how the meeting went.
“We’re very hopeful that Jose Alba’s case will be dismissed, will be dropped by the district attorney,” Mateo said.
Doug Cohen, a spokesman for the district attorney, issued a statement after the meeting.
“We welcomed the opportunity to discuss how we can work together to promote safety on our streets and in our workplaces, and look forward to continuing these conversations,” he said.
Cohen previously told CNN that prosecutors “are continuing to review the evidence and the investigation is ongoing.”
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New York City Mayor Eric Adams has voiced support for Alba, too, saying that after he saw surveillance video of the incident, he felt that Alba “was being attacked and we need to factor that in when we make these decisions,” in a July 8 radio interview. Adams said that while the NYPD made the arrest, it is ultimately up to the DA to decide whether to go forward with charges.
“DAs have a non-mandate. No one can mandate how they determine to prosecute a case and my role is never to interfere with the police. I’ve never called the police since to tell police to make an arrest, not make an arrest. I don’t do that, it’s independent. The DAs are independent. My role is a very clear one,” Adams said.
Criminal defense attorney Jeffrey Lichtman told CNN that under New York state law, a person can only use deadly force to defend themselves if they “reasonably believed” the person they’re defending themselves from is about to use deadly force.
The law also states that a person using deadly force to defend themselves has a “duty to retreat” from a threat, Lichtman said.
“The reason they arrested him was because their position was that the defendant was not facing deadly force,” Lichtman said.
While Lichtman understands why Alba was charged under New York state law, he believes no reasonable juror would convict Alba of murder in this case.
“If I was defending him I’d say, ‘This is an elderly, small man and he’s got this very angry, very physical guy standing in front of him, pushing him around and clearly about to attack him. He felt that the was about to die and that’s why he grabbed anything he could,’” Lichtman said.