'The right decision': DA drops murder charge against NYC bodega clerk who killed attacker

·3 min read

The Manhattan district attorney on Tuesday dropped a murder charge against a 61-year-old bodega clerk who fatally stabbed a customer after the customer attacked him.

The announcement came after weeks of protest over the arrest of Jose Alba.

Alba killed Austin Simon, 35, the evening of July 1 after New York City police said Simon went behind the counter where Alba worked in Upper Manhattan and pushed him.

Video and camera footage shows Simon shoved Alba inside the Blue Moon Convenient Store after he argued with Simon’s girlfriend over paying for "a hand of snacks" for her 10-year-old daughter. According to police, Simon was unarmed.

The day after the killing, police arrested Alba and prosecutors charged him with second-degree murder.

Prosecutors "cannot prove beyond a reasonable doubt that the defendant was not justified in his use of deadly physical force," a motion to dismiss filed Tuesday said. The case will not be presented to a grand jury, according to a one-page response, signed by Manhattan District Attorney Alvin Bragg.

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“The D.A. in my opinion made the right decision,” NYC Mayor Eric Adams said Tuesday, The New York Times reported.

Earlier this month, 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.”

The fatal stabbing

Prosecutors said Simon's death stemmed from a physical confrontation Simon started because he believed that Alba "had harshly treated" the 10-year-old daughter of Simon's girlfriend. Alba had pulled out of the daughter's hand a snack that the girlfriend could not purchase after an electronic card payment was declined.

"When Simon's girlfriend saw Alba grab the food from her daughter's hand, she returned to the counter, yelled at Alba, knocked goods off the counter and then left while repeatedly shouting at Alba, 'Now, my (expletive)'s gonna come down here right now and fuck you up,'" court papers read.

Minutes after the girlfriend left angrily, Simon came to the store, according to court documents. Alba did not leave the area behind the counter, and surveillance video records him saying, "I don't want a problem, papa."

Court documents show Alba stands 5 feet, 7 inches tall and Simon is 6 feet.

Simon then 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.

According to court papers, Simon held Alba by the collar and Alba could not get away from him. Alba grabbed a knife from a shelf beside the counter and stabbed Simon in the heart, in his lung, and in his jugular vein, as they struggled.

Simon was pronounced dead upon arrival at a hospital, prosecutors said.

Alba was arrested on July 2 and initially held on $500,000 bail until Bragg’s office negotiated a reduced amount that allowed him be freed on $5,000 bond.

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Prosecutors wrote in court papers that because Alba had a planned trip after the arrest, he was considered a flight risk.

The case drew widespread frustration from not only Adams, but the United Bodegas of America trade group and beyond.

The group's spokesman Fernando Mateo told reporters last week current New York laws involving use of deadly force during self-defense need to change.

The group also suggested the city adopt a version of Florida's "Stand Your Ground" law to protect people working behind the counter.

Natalie Neysa Alund covers trending news for USA TODAY. Reach her at nalund@usatoday.com and follow her on Twitter @nataliealund.

This article originally appeared on USA TODAY: Murder charge dropped against NYC bodega clerk who killed attacker