Judge recommends dismissal of Harlem bodega clerk’s suit against NYC in fatal stabbing arrest
A lawsuit brought against the city and Manhattan District Attorney Alvin Bragg by a Harlem bodega worker jailed after a fatal stabbing over a bag of potato chips was all but dismissed by a federal magistrate judge Monday.
The recommendation, which came from Manhattan Magistrate Judge Barbara Moses, rejected Jose Alba’s argument that the stabbing was in self-defense.
Paperwork filed in Manhattan Federal Court last year said Alba, then 61, “used lawful self-defense” in the deadly confrontation when he plunged a knife into Austin Simon after the 35-year-old charged behind the counter of the Blue Moon convenience store.
The deadly encounter began when Alba grabbed a bag of potato chips from Simon’s girlfriend’s 10-year-old daughter when the mom was unable to pay.
Video showed Simon getting into Alba’s face and shoving the clerk into a chair during the dispute’s fast escalation that drew criticism of the DA’s decision to prosecute Alba for murder. The case against Alba was later dismissed.
“Having actually reviewed the store videos, I reject plaintiff’s legal conclusion – that they ‘conclusively demonstrated that plaintiff had acted in self-defense,’ ” wrote Moses.
The judge also recommended claims of malicious prosecution be dismissed because “plaintiff has not alleged that defendants lacked probable cause to charge him with murder in the second degree on July 2, 2022.”
Alba was seeking damages to be determined by a jury for his injuries, emotional distress and fear and anxiety related to his arrest, prosecution and five days at Rikers Island.
“Despite the fact that Simon and [his girlfriend] were the initial aggressors, it was [Alba] who was arrested, incarcerated and wrongfully prosecuted,” alleged the 2023 filing from attorney Richard Cardinale, who wrote that the decision to charge the Hispanic man for the death of the Black man was based on Bragg’s “policy to achieve ‘racial equity’ ” in the Manhattan criminal justice system.
Motions to dismiss came from former Correction Commissioner Louis Molina and seven NYPD detectives as well as Bragg.
Alba also alleged he got substandard medical care — with the stab wounds he suffered after being attacked by Simon’s girlfriend not being treated until after he was fingerprinted and photographed. The wounds became infected while he was behind bars.
Moses recommended that Alba be allowed to pursue claims related to the conditions he endured while at Rikers.
