Jury in subway chokehold case to begin weighing lesser charge after manslaughter count was dismissed

NEW YORK — A New York City jury will begin weighing whether to convict Marine veteran Daniel Penny of criminally negligent homicide in the death of a man he placed in a chokehold on a subway train, after the jurors said last week they couldn’t reach a unanimous verdict on a more serious charge.

The judge agreed to dismiss the top count of manslaughter against Penny on Friday and directed the panel to start deliberating Monday on the lesser charge, which carries a lighter punishment.

“Whether that makes any difference or not, I have no idea. But I’m going to direct you to focus your deliberations on count two,” Judge Maxwell Wiley said, telling them to “go home and think about something else.”

Penny placed Jordan Neely in a chokehold for about six minutes in May 2023 after Neely began acting erratically on a subway car. During the monthlong trial, the 26-year-old’s lawyers argued he put his own life on the line to protect other passengers from a mentally ill man, while prosecutors said he went too far in responding to Neely, who was unarmed.

The case sparked national debate, and has also divided New Yorkers over issues of homelessness and public safety in a city where millions ride the subway every day.

The jurors began deliberating Tuesday and at the time were told they needed to reach a verdict on the manslaughter count before they could consider criminally negligent homicide. But on Friday, they told the judge they were deadlocked on the top charge, and remained so even after Wiley urged them to keep trying.

Manslaughter involves recklessly causing another person’s death and carries a possible sentence of up to 15 years behind bars. Criminally negligent homicide involves a defendant engaging in “blameworthy conduct” that they failed to perceive would contribute to a risk of death. It carries punishments ranging from probation to up to four years imprisonment.

During the trial, the jury heard testimony from witnesses to the subway confrontation, as well as a Marine Corps instructor who trained Penny in chokehold techniques. Penny chose not to testify, but relatives and friends spoke about his character.

Neely, 30, had been a Michael Jackson impersonator who performed in the system, but also had a history of psychiatric and drug problems.

Neely’s father, Andre Zachary, filed a lawsuit last week against Penny, accusing him of negligence, assault and battery that led to his son’s death. Penny’s lawyer, Steven Raiser, dismissed the suit as a distraction during jury deliberations, calling it an “attempt to attack Danny while he is under such tremendous stress.”