Man who fatally stabbed attacker on NYC subway won't be charged, prosecutor says

NEW YORK — A man who was attacked on a New York City subway and fatally stabbed one of his assailants will not be criminally charged, a prosecutor said as four men were indicted on assault and robbery charges.

The 69-year-old man was sleeping on a train in Queens early on the morning of Dec. 22 when a group of men tried to steal his bags, prosecutors said. The resulting struggle captured on video shows the unidentified 69-year-old surrounded by several men and being punched and kicked at the end of a subway car.

The man stabbed two of the attackers, Stalin Moya and Philipe Pena. Moya, 37, died from his injuries. The man who was attacked was taken to a hospital with abrasions, lacerations, contusions and bleeding to his head and face, prosecutors said.

“The victim was accosted, without provocation, and our investigation has shown that he defended himself while attempting to retrieve his property,” Queens District Attorney Melinda Katz said in a statement on Wednesday. “As a result, my office will not be filing charges for the fatality.”

Katz's announcement follows a spate of high-profile subway attacks that have unnerved riders.

A man has been accused of burning a sleeping woman to death in Brooklyn that same morning. Also in recent weeks, a man was shoved onto subway tracks ahead of an incoming train on New Year’s Eve and a man slashed two people with a knife in Manhattan’s Grand Central subway station.

Authorities said all the men involved in the Queens altercation were homeless, including the 69-year-old.

Four men were indicted by a grand jury on robbery and assault charges: Pena, 26, Henry Toapanta, 32, Oswaldo Walter, 29, and Jose Valencia, 35. Pena and Walter were also charged with attempted gang assault.

Walter's attorney, David Bart, said he was waiting to see all the evidence in the case, but it appeared to him that prosecutors were “overpursuing” the case against his client.

Lawyers for Pena, Toapanta and Valencia did not immediately return messages seeking comment Friday.