A deadly bodega row and the violent video that may help shopkeeper Jose Alba walk free
A criminal defense attorney tells Rachel Sharp it is ‘unfathomable’ that prosecutors have charged Jose Alba with murdering Austin Simon under New York’s self-defence law
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It all started over a $3 bag of potato chips.
It ended with a 37-year-old man lying dead in a pool of blood on the floor of a bodega and a 62-year-old shopkeeper charged with his murder.
But, the case is far from clear cut.
The fatal incident was captured on shocking surveillance footage revealing 37-year-old Austin Simon attacking 62-year-old Jose Alba before Mr Alba pulled a knife and stabbed him to death.
A criminal attorney tells The Independent that the graphic video is likely the key to the bodega worker’s release from prison as she described the decision to charge him in the first place as “unfathomable” under New York’s self-defence laws.
The deadly incident
It was around 11pm on Friday (1 July) when the NYPD said that Mr Simon’s girlfriend and her young daughter entered the Bluemoon Convenient Store in Harlem where Mr Alba has worked behind the counter for decades.
The girlfriend, who has not been publicly named, wanted to buy a bag of chips for her daughter but she didn’t have enough money to pay for them, said police.
At that point, she allegedly ran out of the store to get her boyfriend.
What happens next was captured on surveillance footage inside the store.
In it, Mr Simon is seen suddenly entering the space behind the counter where Mr Alba is serving customers.
He confronts Mr Alba and violently shoves the 62-year-old against the shelves.
Mr Alba falls back and lands in a chair by the wall.
A hand is seen reaching over the counter during the incident.
Mr Simon continues to square up in the shop worker’s face shouting at him the person in front of the counter. There is no sound in the footage.
The 37-year-old then grabs Mr Alba by the back of his shirt and pulls him up out of his chair out of the counter area.
At that point, the bodega worker grabs a knife from some shelves and begins to stab Mr Simon.
The two men struggle with much of the chaos unfolding off camera.
Mr Alba then appears back on the camera a few seconds later covered in blood and holding the bloodied knife. He touches a stab wound on his own left arm.
Police said that the 62-year-old stabbed Mr Simon in the neck and chest.
During the incident, Mr Simon’s girlfriend also produced her own knife and stabbed Mr Alba in the arm, police said.
Mr Simon was rushed to hospital where he died from his injuries.
Mr Alba also suffered two stab wounds in each arm in the incident, according to Francisco Marte, president of the Bodega and Small Business Group Association.
Charged with murder
Mr Alba was arrested on the scene and was charged with second-degree murder and criminal possession of a weapon.
He was sent to the notorious Rikers Island jail and a judge ordered him to be held on $250,000 bond – less than half the $500,000 prosecutors asked for.
Prosecutors had argued that Mr Alba was a flight risk because the Dominican Republic native had a holiday planned there.
Meanwhile, no charges have been brought against Mr Simon’s girlfriend for stabbing the bodega worker.
The case – as well as the unusually high bond in the city – sparked uproar from Mr Alba’s family as well as members of the community who say the well-loved store worker with no criminal record had no choice when he came under attack.
“It was either him or the guy at the moment,” Mr Alba’s daughter Yulissa told The New York Post.
“He’s never hurt anybody. He’s never had an altercation where he had to defend himself. This is the first time for him.”
Mayor Eric Adams has also come out in support of Mr Alba saying his “heart goes out for this hard-working, honest New Yorker” in a press conference on Thursday.
“My heart goes out for this hard-working, honest New Yorker that was doing his job in his place of business, where a person came in and went behind the counter and attacked him,” he said.
Hours later, a judge agreed to lower his bail to $50,000 and his family, with the help of the bodega owner, were able to post the $5,000 bond to release him from Rikers Island.
He was also ordered to surrender his passport, wear an ankle monitor and stay within the five boroughs of New York City.
Mr Alba’s attorney Danielle Jackson of Neighborhood Defender Service of Harlem said in court that he has “every intention” of returning to court to clear his name.
Prosecutors had until Thursday to either release Mr Alba on bail or bring the charges before a grand jury.
The DA’s office said in a statement to The Independent that it had lowered the requested bond following “conversations” with Mr Alba’s legal team.
“Those four aspects of the package, the bail amount, the surrender of the passport, the electronic monitoring, and the travel restrictions, are the conditions that we believe will ensure the defendant’s return to court while the People continue to investigate this incident,” the statement read.
The Independent has reached out to Mr Alba’s family members for comment.
While the community has rallied round Mr Alba, records show that Mr Simon has had multiple brushes with the law and was on parole at the time for allegedly attacking a police officer.
Attempts by The Independent to reach Mr Austin’s family members for comment were unsuccessful.
Mr Simon’s ex-wife Tiana told the New York Daily News that her former partner was “not a monster” but was a devoted family man and father to his nine children.
“Everyone is judging him on a clip of video. He’s not the monster that they’re trying to make him seem like,” she said.
She also disagreed that Mr Alba acted in self-defence, saying that him stabbing Mr Simon multiple times was “overkill”.
Self-defence or murder?
Katherine Fernandez, criminal defense attorney at the Law Offices of Julie Rendelman in New York, tells The Independent that – having watched the surveillance video she believes it was a matter of self-defence.
Under New York law, a person is justified in using physical force against another in self-defence when they have a reasonable belief that deadly or imminent physical force is going to be used against them; when the defendant is not the initial aggressor; and when the defendant has made an attempt to retreat if it is safe to do so.
Ms Fernandez says that the footage shows Mr Alba can argue all of those things.
“Looking at the video, it is very important to note that Jose Alba is in a very confined work area and the man comes into the area behind the cash register where he is not supposed to be,” she says.
“This guy comes in, he immediately gets up close to him in his face…. The deceased is clearly the initial aggressor.”
She adds: “Clearly the deceased is extremely aggressive. He pushes him down and literally stops Alba from leaving.
“And as Alba tries to get up – and this is important as he has a duty to try to retreat – the guy grabs him… that’s when he pulls out the knife.”
Whether or not Mr Simon was armed with any weapons at the time is not necessarily relevant under the self-defence law.
The attorney says that it is important what was said between the two men in the interaction.
If Mr Simon made a verbal threat to kill Mr Alba then that would lead him to believe that deadly physical force was about to be used on him.
But with Mr Simon now dead, the exact words used could be difficult to prove.
Nevertheless, the burden of proof is on the prosecution to prove that Mr Alba intended to kill Mr Simon.
“I don’t see personally how they can,” says Ms Fernandez.
The criminal defence attorney says it is “outrageous” that Manhattan DA Alvin Bragg’s office brought murder charges against the 62-year-odl bodega worker.
“I think it’s outrageous they’re going into a grand jury with that charge,” she says.
“I think Alvin Bragg is making a huge mistake here. We have a city riddled with crime for the last two years and we have a store employee – a guy who from what I’ve heard comes to work every single day and has never been in any trouble defending himself and the store when he is threatened over a bag of potato chips.
“It’s unfathomable.”
New footage
New surveillance footage has since emerged of the the moments leading up to the fatal stabbing, capturing Mr Alba attempting to diffuse the escalating situation by telling Me Simon “I don’t want a problem, papa” when he first confronts him behind the counter.
The footage, obtained by theNew York Post, captures the initial interaction between Mr Alba and Mr Simon’s girlfriend that led to the dispute and – with audio – what the two men said to each other before things turned physical.
Mr Alba is seen at the counter repeatedly trying to run Mr Simon’s girlfriend’s electronic benefits card through the card machine but it is declined.
When he tells her the first time that the payment was declined, she is heard asking him: “$3?... Did you put food?”
The woman insists that there is money on the card, saying: “I’m going to call it in front of you and I’m going to let you hear them.”
Mr Alba responds: “OK, mama, let me do it another time. My God.”
“There’s money on there,” she replies.
The transaction doesn’t work for a second time and the exchange becomes more tense, with some of the interaction inaudible as they speak over one another.
“That’s not my problem. If it’s not working, it’s not working,” he says.
The footage, which has been edited, skips forward to Mr Alba serving other customers, before the woman starts shouting from elsewhere in the store.
During that time, Mr Alba allegedly took the bag of chips from the woman’s daughter but that moment is not seen in the footage.
“You can’t touch my daughter. Don’t snatch that out of my daughter, you f***ing piece of shit,” she shouts.
“I’m gonna bring my n**** down here and he gonna f*** you up. My n**** is gonna come down here right now and f*** you up!”
Mr Alba is heard shouting back: “That’s not my fault, it’s not working. That’s not my fault, it’s not working.”
The 61-year-old continues to serve customers when Mr Simon enters the store and is heard shouting to the bodega worker to “come out, come out”.
“Papa, I don’t want a problem, papa,” Mr Alba tells him.
Mr Simon walks past the customer area of the counter and enters the worker’s counter area, saying “What’s up with you? N**** what is wrong with you?”
A customer at the counter reaches her arm through and tries to get Mr Simon’s attention, in an apparent attempt to calm the situation, while Mr Simon’s girlfriend also reappears behind the counter and continues shouting something inaudible.
The struggle and fatal stabbing has been edited out of this footage.
The video next cuts to the aftermath with Mr Simon lying on the floor behind the counter while his girlfriend screams: “That was over $3. Three f***ing dollars. He snatched something out of my daughter…please help him.”
Mr Alba is seen speaking to a male customer over the counter, saying “they come in here”.
No one appears to be trying to administer medical aid to Mr Simon in the clip.
Mr Alba is then seen making a call on his phone and an NYPD officer arrives.
Footage from a third camera, obtained by the Post, shows the struggle between the two men and Mr Simon’s girlfriend also grabbing Mr Alba in the fight.
Mr Alba is seen repeatedly stabbing Mr Simon as the two men grapple.
The woman appears to take her own knife from her purse and stab Mr Alba.
What now?
Based on her expertise – and on the initial surveillance footage alone – Ms Fernandez says the case against Mr Alba won’t even make it to trial.
The evidence will first have to be presented before a grand jury which will determine whether there is enough evidence to move forward with the charges.
Ms Fernandez says it is “very rare” for a grand jury to topple a case – but she thinks that this will be one of those exceptions.
“Usually it is pretty easy [to be indicted by a grand jury],” she says, as just 16 out of 23 members of the public need to find reasonable cause for a crime.
“But here, I think when they play that video I think there’s a very good shot they’ll blow out the murder case.”
Mr Alba could instead face lesser charges such as reckless endangerment, she says.
However, that could also be a hard sell to a jury after they have initially accused Mr Alba of second-degree murder, which is a charge that the murder was intentional.
“The grand jury could also nullify the whole case against Mr Alba so that [the DA] can’t even bring any lesser charges,” she says.
“It’s very rare for that to happen but my gut feeling is that if they go for murder two I think it will be blown out by the grand jury.”
The grand jury date has now been set for 20 July.
The DA’s office did not respond to The Independent’s questions about whether it still plans to take the second-degree murder charge to the grand jury or whether any charges expected for Mr Simon’s girlfriend.
But for now, there is no positive outcome for either party in the tragic case.
Mr Alba is facing life in prison. And Mr Simon’s life is now over.
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