Charges were dropped Tuesday against a New York City bodega worker arrested for the murder of man seen on surveillance video first coming behind the cashier's desk and attacking the employee. 

Manhattan District Attorney Alvin Bragg’s office faced harsh criticism for bringing the charge against Jose Alba earlier this month despite footage suggesting the deadly stabbing was justified as self-defense. 

Jennifer Sigall, assistant district attorney under Bragg, issued a motion Tuesday morning to dismiss the second-degree murder charge against Alba and provided a copy to his attorney, Michelle Villasenor-Grant. 

Fox News confirmed that a judge dismissed the charge against Alba by Tuesday afternoon. 


"Following an investigation, the People have determined that we cannot prove beyond a reasonable doubt that the defendant was not justified in his use of deadly physical force. As such, the People will not be presenting the case to a Grand Jury and for the reasons provided in the attached memorandum, hereby move to dismiss the complaint," Bragg's office wrote in court documents obtained by Fox News. 

Jose Alba attacked at bodega

A screenshot of surveillance video included in court documents showing Jose Alba confrontation. (NYC criminal court )

Alba repeatedly stabbed Austin Simon behind the counter in the Blue Moon convenience store at 3422 Broadway in Manhattan at approximately 11:00 p.m. on July 1, according to court documents. 

The district attorney’s office admitted Tuesday that the "death stemmed from a physical confrontation that Simon started because he believed that Alba had harshly treated the ten-year-old daughter of Simon's girlfriend." 

Alba had pulled out of the daughter's hand a snack that the girlfriend could not purchase due to a malfunctioning Electronic Benefit Transfer (EBT) Card. 

Jose Alba in bodega attack

A still from surveillance video included in court documents showed Jose Alba tried to avoid a confrontation.  (NYC criminal court )

The girlfriend shouted expletives at the clerk and said her boyfriend would be back to "f*** you up." 

Minutes later, Simon came to the store, 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, prosecutors said. He said he wanted Alba to apologize to the girl and to come outside to fight him.

"I don't want a problem, papa," Alba is heard on an audio recording telling Simon. 

Jose Alba supporters with drop the charges sign

Members of the Dominican Republic Community, bodega owners and different associations are pictured on the steps of City Hall during press conference asking Manhattan D. A. Alvin Bragg to drop charges against bodega worker Jose Alba accused of killing a robber during a fight at a bodega where he worked.  (Luiz C. Ribeiro for NY Daily News via Getty Images)

With Simon holding him by the collar and forcibly pushing him out, Alba grabbed a knife from a shelf beside the counter and repeatedly stabbed Simon as they struggled, prosecutors said. 

Simon was later pronounced dead at the hospital. The medical examiner said he suffered six sharp force injuries, including one stab wound to the left side of his neck that injured the internal jugular vein. 

Alba said Simon's girlfriend also attacked him. Court documents noted that Alba is 61 years old and five-feet-seven-inches tall, while Simon was 35 years old and six feet fall. 

alvin bragg close up

Manhattan DA Alvin Bragg is pictured at a street renaming ceremony for Eric Garner at Bay St. and Victory Blvd. Saturday, July 16, 2022 in Staten Island, New York. A portion of Bay St. was renamed Eric Garner Way.    (Barry Williams for NY Daily News via Getty Images)

Simon had a box cutter visible in his right front shorts but did not display it at any point during the confrontation, according to Alba’s account to police and surveillance video. 

Simon was reportedly out on parole for assaulting a police officer at the time of the deadly incident. Alba was arrested and had been held at New York City's infamous jail Riker’s Island on a $250,000 bail – half of the half-million requested by Bragg’s office during an arraignment hearing. Alba was later released after his bail package was reduced to $50,000 before the murder charge was eventually dropped on Tuesday.  


The district attorney’s office cited state statute that narrowly defines the circumstances where a deadly physical force, such as homicide, is "justifiable and not criminal." 

When the defendant raises a defense justification, prosecutors – and not the defendant – are required to prove beyond a reasonable doubt thar the defendant was not justified in the use of deadly physical force. Two different possible justifications are that Alba believed that Simon was about to use deadly physical force against him or that Simon trespassed behind the bodega counter with the intent to commit a crime and Alba’s use of physical force was to prevent or terminate a burglary, prosecutors said. 

Fox News' Shelly Xu contributed to this report.