Detailed legal breakdown of the bodega case, in plain English, LIVE on Saturday, July 9, Noon ET!
#AustinSimon #bodega #josealba #Istandwithjose #alvinbragg
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Looks like the homicide victim was in the act of committing a third degree burglary under NY law. That is a felony. Looks like deadly force in self defense is justified to terminate the commission or attempted commission of the burglary under section 35.20 subdivision 3. Depends on what the definition of “occupied” is, I guess.
Thanks for reminding me about the escalation from non deadly to the second fight which turned into a deadly fight with Alba as the aggressor. How does the age and size difference play into the second fight as a justification?
The mother who was in the earlier confrontation told Alba, “”I’m gonna bring my n– down here and he gonna f–k you up. My n— is gonna come down here right now and f–k you up!” she told Alba before Simon entered the store”. Simon went behind the counter to attack Alba. Alba also told the mother he didn’t want any problems and that the payment card was not working after repeated tries. Simon tried to “steer” Alba from behind the counter when Alba picked up the knife.
Simon was out on parole at the time after being imprisoned for assaulting a police officer, but of course Alba did not know this so it would not be part of his decision to use the knife to defend himself.
Alba was not old enough to benefit from the NY law on assaulting older people, just a few years short, so Simon’s attack would only be classed as a simple battery. When fights start, they start simple, but after you’ve been beat to a pulp (great bodily injury), stomped, you may then be no longer able to access a knife or a gun. How do you draw the line?
I would prefer that these blogs be kept shorter in their format, maybe 30 to 45 minutes. This one has everything but the kitchen sink.
You have the right to use defensive force to PREVENT an aggravated assault and battery. The burden is on the prosecution to prove beyond a reasonable doubt that the defendant did not have a reasonable fear of an “imminent” aggravated assault and battery, this means that no reasonable man could have feared an imminent aggravated assault and battery. The great weight of authority in the United States is that when you are attacked with unlawful force in your home, workplace, or vehicle it is reasonable for you to apprehend an aggravated assault and battery. When a majority of the States in the United States see this type of attack as a deadly force attack, it’s going to be kind of hard to introduce evidence sufficient for a jury to find that “a reasonable man could not have perceived this attack as a deadly threat when millions and millions of people see it as a deadly force attack, as a matter of law.
A lot of New York’s gun law and self defense law is repugnant to the U.S. Constitution and thus void.
I believe I read or heard in the news that the castle doctrine in NY only apples to the home and does not include the workplace or the occupied vehicle.
Depends on what you mean by “Castle Doctrine.” The English Castle Doctrine was the legal doctrine that held that an attack on the castle walls constituted an attack on the occupants of the castle. As a result, the property crimes of burglary and arson (felonies) became preventable by homicide under the English law that justified a homicide in prevention of felony when the felony was accompanied by a use of force. New York law justifies the use of deadly force to prevent a burglary of a dwelling or a building. So New York’s Castle Doctrine extends beyond the home to the workplace when the workplace is inside an occupied “building.”
You really can’t judge whether or not a use of force was justified in self defense until you know what the defendant believed he saw, and what he inferred from the situation as it appeared to him. If he had a reasonable perception of what was happening, and his inferences from those perceptions was reasonable, and his reasonable inferences justified the use of deadly force, then he justified.
New York Penal Law article 35.10. “4. A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result.”
S 35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person …”
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor;
From what I understand about New York Castle doctrine is a little weak. Deadly physical force is justified only in your dwelling (you have no duty to retreat from your dwelling) if you are not the initial aggressor and you believe the other person is using or about to use deadly physical force. About in a building or premise, you are only justified in using physical deadly force if responding to a burglary as stated in Section 35.20.3 and I quote:
3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such
burglary.
So in New York, deadly physical force is only authorized during a burglary of a dwelling or occupied building and only is reasonable necessary. So, if I understand it correctly, Castle Doctrine only applies to your dwelling, not occupied building or premises or occupied vehicles, and make my day provision – you can’t use lethal force even in you castle unless reasonable necessary.
Alba was not responding to an invasion of his dwelling, nor to a burglary of premises, but to a non-lethal use of force against his person, which he escalated to a lethal force attack against Simon, and, unless he can convince the DA or the jury of a reasonable belief that lethal force was necessary to repel the attack, he will probably be convicted of manslaughter.
All for a bag of chips! We should be kind to each other.
Simon’s girlfriend stabbed Alba several times and faces no charges. So this was also a disparity of force case. When did the girlfriend initiate her attack? It appears after Alba had initiated a deadly force attack against Simon’s initial non lethal force attack against Alba, but Simon and his girlfriend may have been en concert from the start.
It appease the black NYC DA is an political activist and reverse racist since he goes hyper for blacks when a white or hispanic exercises self defense against a black, and even more when the black is a know criminal. The DA was probable elected thanks to the Hungarian Soros.
What makes you think Simon’s initial attack against Alba was a non lethal force attack? Deadly force is defined as force used with the knowledge that it may cause gbh or death, or with the intent to cause gbh or death. You can’t find facts without evidence to support the fact. I didn’t see any evidence from which I could infer that Simon did not intend to use force that might cause gbh or death, or any evidence that he did not intend to cause gbh or death.
Luckly, the law doesn’t care what Simon’s mindset was. Whether or not he was using deadly force is immaterial and irrelevant. The only issue the law cares about is Alba’s mindset. Did he honestly believe he was in imminent danger of gbh or death, and did he have a reasonable basis for that belief? Alba doesn’t have any burden of proof on that issue. There is a legal presumption that he is innocent of any wrongdoing—that he honestly and reasonably believed he was in imminent danger of gbh or death. The burden of proof is on the prosecution produce sufficient evidence to prove beyond a reasonable doubt that Alba did not honestly believe he was in imminent danger of gbh or death, or that no reasonable man COULD have believed he was in imminent danger of gbh or death.
“The DA’s office said it had filed a motion in Manhattan Criminal Court to dismiss the case against the 61-year-old bodega worker after a investigation found they couldn’t prove the “defendant was not justified in his use of deadly physical force.”
https://nypost.com/2022/07/19/alvin-bragg-to-drop-charges-against-bodega-worker-jose-alba/
Thanks!