In New York, as in all states, citizens have a right to defend themselves against attack. We call it justification defense and it must also be disproven by the prosecutor at trial once it is raised.
This is a case that cries out for justice for the accused. Jose Alba was sitting in his store working and was no harm to anyone. Then the perpetrator came behind the counter and attacked him. The judge will instruct the jury that if they find Mr. Alba’s actions reasonable, they can find him not guilty based on justification.
Under our law, a person may use deadly physical force upon another individual when, and to the extent that, “he/she reasonably believes it to be necessary to defend himself/herself [or someone else] from what he/she reasonably believes to be the use or imminent use of [unlawful] deadly physical force by such individual.”
Are the actions of Mr. Alba reasonable? Of course they are. Mr. Alba was attacked; he was not the aggressor. The attacker came behind the counter to attack him. The attacker was bigger, younger and stronger. A reasonable person would have believed he was in imminent threat from an attacker who kept coming. To those who disagree, I ask: what should have Mr. Alba have done? There is no time to call the police and no assistance was coming from anywhere.
It is truly shocking that the DA has decided to prosecute Mr. Alba for defending himself in a clear-cut case of self-defense Fortunately, we will have a jury that will make things right.
In the current environment, bodegas and retail stores have become open targets for shoplifters and those seeking to hurt store employees. There is no fear of any consequences because the police have made these cases a low priority. And this is the result of a misguided policy. Mr. Alba and others like him have had to step into the breach and protect themselves. The right to defend ourselves is a long-established right that goes back to the earliest codification of criminal law.
When the police will not act, when the DA’s Office has taken the side of the attackers, what is one to do?
We have seen this before. The most famous case, of course, is Bernie Goetz in the 1980s. But Mr. Alba has a stronger case than Mr. Goetz. Bernie Goetz brought a gun into the subway and was ready to use it. Mr. Alba was merely at work unarmed sitting behind the counter when he was attacked. He was not looking for trouble. Trouble came to him in the form of an attacker with a vast criminal record. It is time for the people of NYC to stand up and say no more. Free Jose Alba!
Michael S. Discioarro is a former Bronx assistant district attorney and college professor handling criminal cases throughout New York City.