Man avoids prosecution for fighting back against migrant subway attack, fatally stabbing 1

A 69-year-old homeless man who was asleep on a New York City subway train when a suspects in a group of homeless illegal migrants tried to rob him will not face charges after he fatally stabbed one of them in a caught-on-camera bloody brawl trying to retrieve his belongings.

Immigration and Customs Enforcement (ICE) confirmed to Fox News Digital that at least three of the would-be robbers are illegal migrants — including the migrant who was killed in the skirmish — with two having racked up long Big Apple rap sheets since arriving in the U.S.

The deceased migrant, Stalin Moya of Ecuador, 37, had been arrested several times between July 2023 and November 2024 for a slew of crimes, including felony assault, felony robbery and criminal possession of a weapon.

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The deadly incident took place on Dec. 22, just hours before police say a Guatemalan illegal migrant set fire to and burned a homeless woman to death on a subway in Brooklyn — as migrant crime and subway crime continues to wreak havoc on the city.

Prosecutors say that the unidentified homeless man was asleep on a Number 7 subway train in Queens when he was "accosted" by the men at around 12:20 a.m. During a protracted battle to retrieve his belongings, the homeless man was punched and kicked by the group only for him to then stab two of the suspects – killing one of them. 

Four suspects, however, are facing charges for attacking the homeless man.

The decision not to prosecute the homeless man comes just weeks after former Marine Daniel Penny was acquitted of the chokehold death of Jordan Neely on a New York City subway. Neely, a 30-year-old homeless man with schizophrenia, barged onto a train in May 2023 shouting death threats while high on a type of synthetic marijuana known as K2. Penny, 26, put Neely in a chokehold, and he later died.

Video of last month's subway incident starts off showing two of the suspects, including Moya, grabbing the homeless man’s bags as he sat slouched and sleeping on the moving subway. One of the suspects takes a bag and then moves to the next carriage where the other three suspects are waiting. 

The homeless man, wearing a red coat, then wakes up and sees Moya standing over him with two of his bags.

The pair appear to argue and then get into a scuffle before the carriage door opens, and the four other migrants burst inside.

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One heavy-set suspect, Fidel Leon Hernandez, aka Philipe Pena, 26, of Mexico, then appears to smack the homeless man and raises his fists in a fighting stance, but a good Samaritan intervenes and calms the situation, with the suspects retreating into the other carriage.

However, the homeless man follows them in search of his possessions and, when he moves into the carriage where the five men are now located, he is met with a punch from Pena. The pair then brawl before three others — including Moya — join in.

The homeless man appears to grab a knife and stabs Pena, who then can be seen fleeing with blood dripping from his neck and face. 

The homeless man then swings wildly with the knife, and prosecutors say he fatally wounded Moya, who is then seen fleeing with the others. 

Queens District Attorney Melinda Katz said that her office would not be pursuing charges against the homeless man.

"The victim was accosted without provocation, and our investigation has shown that he defended himself while attempting to retrieve his property," Katz said in a statement. She said the fact that the subways have been outfitted with CCTV cameras was vital to the investigation.

"Our subways must be safe for the millions of people who depend on public transportation."

She said that the four surviving suspects were indicted by a grand jury and variously charged with attempted gang assault, assault and robbery for allegedly stealing the belongings of the man. 

Defendants Pena, Henry Toapanta, 32, Oswaldo Walter, 29, Jose Valencia, 35, who are all homeless, were indicted on two counts of robbery in the second degree and assault in the second degree. 

Pena and Walter were additionally charged with attempted gang assault in the first degree. If convicted of the top charges, the defendants face a potential maximum sentence of up to 15 years in prison.

Pena, who was brawling with the homeless man, illegally entered the U.S. in 2019 under the Trump administration but was deported two days later. He re-entered at an unknown date and since then has racked up a significant rap sheet in New York City with arrests for possession of stolen property, robbery, DUI, drug possession, using a vehicle without the owner’s consent and assault. He has also served time in prison but was not deported.

Toapanta is also an illegal immigrantr from Ecuador who entered the U.S. on July 10, 2023. 

Following the Dec. 22 subway incident, ICE lodged immigration detainers against Pena and Toapanta. ICE said it does not have any involvement with Walter or Valencia at this time, and was unable to provide their immigration status.

The homeless man suffered abrasions, lacerations, contusions and bleeding to his head and face and was taken to a local hospital for treatment, the Queens District Attorney’s Office said.