NYC man guilty of assault in subway-train injury

February 24, 2012 - 1:55 PM

NEW YORK (AP) — A man accused of shoving a stranger into the side of an oncoming subway train was convicted Friday of assault but acquitted of attempted murder in what his lawyers called a drunken accident.

Prosecutors said Jose Rojas' actions amounted to a senseless crime, which the victim said has left her with lasting pain.

"The victim endured every New Yorker's nightmare" on the subway platform, Manhattan District Attorney Cyrus R. Vance Jr. said in a statement Friday.

Rojas' lawyers, however, said he simply stumbled into her.

"He's very sorry for what happened, but accidents happen all the time, and you can't punish people for an accident," defense lawyer Roger Asmar said.

Rojas, 26, a restaurant cook who has been jailed since the August 2010 incident, left court looking resigned. While acquitted of attempted murder, he still faces the same potential penalty — up to 25 years in prison — on the assault count. His sentencing is set for March 16.

Rojas' lawyers, who argued there was no proof of the intentional injury that the assault charge requires, said they would explore an appeal.

After getting off work at a downtown Manhattan restaurant on Aug. 11, 2010, Rojas downed 4 1/2 beers in about two hours while watching a soccer match involving a team from his native Mexico, prosecutors said.

Rojas then caught a northbound R train to head home to Queens but decided to get off along the way, at the line's 28th Street station in Manhattan. Lingering on the uptown platform, he cursed at and made threatening gestures toward a couple for no apparent reason, prosecutors said.

Meanwhile, Ute Linhart arrived to take the subway after finishing her work day as creative director of a company that designs T-shirts and other merchandise for musicians. Originally from Germany, she has lived in New York since 1998.

Linhart, 40, testified that she remembered a young man coming up behind her on the platform, poking his face around her shoulder and looking at her with a strange stare, but she didn't recall his features.

Then, she testified, she felt two hands forcefully push on her back as a train rushed into the station.

Linhart hit the side of the first car and suffered broken ribs, a punctured lung, a broken facial bone and neck and leg injuries. She was hospitalized for eight days, missed six months of work and still is "in pain every day of my life," she said.

Bystanders stopped Rojas from running away, and he told them he didn't know why he'd pushed her, according to a court complaint. Prosecutors suggested he might have been acting out of animus toward the couple he'd clashed with earlier.

The subway station's surveillance cameras didn't capture the contact between Rojas and Linhart because other people were in the way.

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