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D.A. asks court to dismiss New York bodega worker’s murder charge

New York Mayor Eric Adams (D), a former police captain, was elected last year after making crime reduction a centerpiece of his campaign. (John Minchillo/AP)
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The case of a New York bodega clerk who was charged with murder after he fatally stabbed a man who confronted him at work — in an altercation recorded on video — has sparked a vigorous debate about crime and what constitutes self-defense.

Jose Alba, 61, was charged with second-degree murder after he fatally stabbed Austin Simon, 35, in the Blue Moon bodega, where Alba works, on the evening of July 1.

On Tuesday, though, the Manhattan District Attorney’s Office filed a motion to dismiss the charges, saying it “would not be able to prove homicide charges” because Alba could reasonably argue that his life was in danger.

The Neighborhood Defender Service of Harlem, the legal group defending Alba, said Tuesday afternoon that he “looks forward to moving about freely and spending time with his family.”

The incident was recorded on surveillance footage, which showed Alba arguing with a woman later identified as Simon’s girlfriend, before Simon walked in, stepped behind the counter toward Alba and shoved him. As the two men tussled, Alba grabbed a knife and repeatedly stabbed Simon.

United Bodegas of America, a trade group that represents bodega owners in the United States, has publicly defended Alba and used his case to advocate for New York to pass a “stand your ground” law. The group’s co-founder, Fernando Mateo, who unsuccessfully ran for mayor of New York as a Republican last year, has also suggested bodega owners should be armed.

The case has taken on increased prominence after the Supreme Court’s watershed decision last month to strike down a New York law requiring a special need for carrying a weapon.

Here are the facts.

What happened in the bodega attack in New York City?

What we know of the incident comes from surveillance footage and edited clips from inside the bodega, released by local media outlets, as well as the criminal complaint filed against Alba.

According to the complaint, Simon’s girlfriend — whom police have not identified — was inside the Blue Moon Convenient Store in Hamilton Heights around 11 p.m. on July 1 when she tried to pay for a bag of chips for her 10-year-old daughter with an electronic benefits card that was declined. She told police that Alba reached over the counter and took the chips from her daughter’s hand. Footage shows her and Alba arguing before she can be heard shouting threats to bring her boyfriend in and have him hurt Alba.

Simon then walked into the bodega, went behind the counter to confront Alba and “attempted to steer [him] out.” Simon did not appear to have a weapon: According to the complaint, he “was carrying a small white towel in his left hand and his right hand was empty.”

Alba later told the police that Simon “wanted me to come apologize to the girl.” A video shows Simon shoving Alba into a wall inside the bodega. As the two fought, Alba grabbed a knife and stabbed Simon in the neck and chest at least five times, according to the complaint. “Simon fell to the ground, face-down and bleeding,” it said.

“I took the knife we use to open boxes and I stabbed him,” Alba told police.

The police, who reviewed security footage at the scene, said in the complaint that Simon’s girlfriend tried to pull Alba off Simon and “held the defendant’s right arm but the defendant continued to stab [him].” She then took out a knife from her purse and stabbed Alba in the arm, the complaint says.

Simon was pronounced dead about 11:50 p.m., two miles away at Harlem Hospital. Police arrested Alba.

What was the bodega worker charged with?

Manhattan District Attorney Alvin Bragg (D) charged Alba with second-degree murder, a felony. On Tuesday, his office asked the court to dismiss the charge.

Alba received support online from New Yorkers who said the charges against him should be dropped because he was defending himself. A GoFundMe page to raise money for Alba’s legal fees was taken down for violating GoFundMe’s rules against “fundraising for the legal defense of a violent crime,” the company told the New York Post in a statement. Another appeal for help, set up by Alba’s son on GiveSendGo, a Christian fundraising website, has brought in over $100,000. Alba’s son did not respond to a request for comment from The Washington Post.

What does New York law say about self-defense?

To prove self-defense outside the home under New York law, a person must — broadly speaking — show that they used physical force “to avoid an imminent public or private injury,” in a situation not of their own making, “which is of such gravity that, according to ordinary standards of intelligence and morality,” the benefit of avoiding that injury outweighs the benefit of avoiding the use of physical force in the first place.

New York law also imposes a “duty to retreat.” This means that if someone believes they are in danger of imminent injury outside their home, they must first try to get out of that situation — by fleeing the scene, for example — before they respond. This is different from other states’ “stand your ground” laws.

The call from United Bodegas of America for New York to pass a “stand your ground” law has proved particularly divisive in light of New York State Rifle & Pistol Assoc. v. Bruen, the case in which the Supreme Court ruled that law-abiding Americans have a right to carry a handgun outside the home for self-defense.

Supreme Court finds N.Y. law violates right to carry guns outside home

Bragg, who is New York’s first Black district attorney, was elected on a promise to reform how justice is served in the city — part of a wave of liberal prosecutors who pledged to get more people out of jails (and put fewer people in them) and focus on other ways to stop crime, including mental health counseling.

But for Bragg, these policies proved controversial from the start: After he published guidelines that showed how his office would lower incarceration rates, he had to scrap a rule that could have made some types of gun crime misdemeanors. He clarified that “the default in gun cases is a felony prosecution.”

New York district attorney toughens prosecution policy that drew outrage

Bragg met with United Bodegas of America and other groups last week to discuss Alba’s case. Shortly after the meeting, Doug Cohen, Bragg’s spokesperson, said the discussion “centered on how to keep bodega owners and workers safe, including in a post-Bruen world when more people may legally obtain and carry firearms.”

“D.A. Bragg expressed support for New York’s strong gun laws, and emphasized that more guns in our communities make us less safe,” Cohen continued.

The case has highlighted the contentiousness of the crime debate in New York and the tightrope that district attorneys have to walk ahead of a November general election that is set to be partly dominated by the issue.

New Manhattan DA wants to stop prosecuting some offenses, make prison a ‘last resort’

What has New York Mayor Eric Adams said about the case?

In a news conference Tuesday, Adams (D) said the district attorney “made the right decision” to drop the charges.

Adams, a former police captain who was elected last year after promising a tougher approach to crime reduction, had expressed support for Alba before the dismissal request. In an interview with WABC Radio on July 8, Adams said “hard-working New Yorkers, and Americans to be honest with you, should not be attacked in their place of work.”

“There is a line that must be drawn when you are a primary aggressor, and that is what I saw on the video,” he added.

“It’s not to say the taking of a life should not be taken seriously, and one should not interpret that,” the mayor continued. “But I also know far too many people are becoming victims of criminal actions of those who are repeated violators of the law. And a hard-working person like that bodega employee was being attacked, and we need to factor that in when we make these decisions.”

Last week, Adams was asked about a video, published by the New York Post, that appeared to show Simon’s girlfriend stabbing Alba after the bodega owner stabbed Simon. Adams said he hadn’t seen the video but added that “anyone who carries out an assault of any nature should be held accountable for it.”

“So if in that video, it determines that she broke the law, I believe that the law must be enforced,” he said. “But the district attorney makes the final outcome.”

Robert Barnes and Ann E. Marimow contributed to this report.

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