Daniel Penny, the U.S. Marine veteran accused of recklessly choking an unarmed homeless man on a Manhattan subway train goes on trial Monday for the polarizing death that sparked nationwide debates about vigilantism, mental illness, and public safety.
Jurors are slated to hear wildly different perspectives of the clash that played out between two stops on an uptown F train the afternoon of May 1, 2023.
Penny, 25, of Suffolk County, L.I., has pleaded not guilty to second-degree manslaughter and criminally negligent homicide, denying he unreasonably subdued the 30-year-old Jordan Neely.
Penny could face up to 15 years in state prison if convicted of the top count. The trial is expected to last until around Christmas.
The former infantry squad leader, who was studying architecture in Brooklyn at the time of the incident, has said he boarded the train at Jay St.-MetroTech to commute to the gym and intervened when he witnessed a situation he believed gravely threatened passengers after Neely boarded the train at Second Ave. and began screaming.
The Manhattan District Attorney’s office does not allege Penny meant to kill Neely but that he disregarded his life and his humanity and overlooked the predictable outcome of placing him in a lethal chokehold that persisted for at least six minutes, including “well past the point” a writhing Neely stopped moving.
Neely, who grew up in Manhattan and New Jersey, struggled with poorly treated schizophrenia, drug addiction, and trips in and out of jail and the city’s shelters, according to court records. His loved ones have said he was derailed by the devastation of his mother’s brutal murder in 2007 at the hands of her ex-boyfriend, who disposed of her remains in a suitcase dumped on the Henry Hudson Parkway.
In better times, Neely was recognizable to many New Yorkers as a Michael Jackson tribute artist who sang and moonwalked for money on the streets and in the subways.
Neely’s death exploded into public view after bystander footage captured by independent journalist Juan Alberto Vasquez went viral, showing Penny, briefly aided by other commuters, with his arm tightly wound around Neely’s neck and his legs around Neely’s body for several minutes until after Neely fell unconscious.
By the time medics arrived after the train pulled into the Broadway-Lafayette St. subway station, Neely was passed out and would never regain consciousness. He was declared dead at a nearby hospital and the city medical examiner ruled the cause a homicide by compression of the neck days later.
The incident drew instant comparisons to the 1984 subway shooting by Bernie Goetz, a white engineer acquitted of shooting four Black teens he claimed he believed planned to rob him, paralyzing one.
The case, heading to trial in the final weeks of one of the most divisive presidential elections in U.S. history, has provoked sharply divided reactions largely falling along party lines. The incident drew instant comparisons to the 1984 subway shooting by Bernie Goetz, a white engineer acquitted of shooting four Black teens he claimed he believed planned to rob him, paralyzing one.
In the leadup to Penny’s arrest, which came 11 days after the clash, activists took to the streets and subway stations to protest what civil rights leaders described as the unjustified killing of a poor and unarmed Black man in need of help by a middle-class white man playing subway vigilante.
But within three weeks of the incident more than 20,000 people had contributed more than $2 million towards an online defense fund to cover Penny’s legal bills. Prominent Republicans, including former President Donald Trump, Florida Gov. Ron DeSantis, erstwhile GOP presidential candidate Vivek Ramaswamy and Rep. Matt Gaetz rushed to Penny’s defense, framing him as a heroic good Samaritan and a victim of unjust prosecution.
Jordan Neely supporters during a vigil in the Broadway-Lafayette subway station on May 3, 2023. (Barry Williams for New York Daily News)
Accounts by passengers who testified before a grand jury shed light on the different perspectives jurors may hear about the sequence of events that played out in what prosecutors estimate was around 30 seconds between Neely boarding the train car and Penny grabbing him from behind.
Multiple passengers testified that Neely threw down a windbreaker jacket, expressed that he was “homeless, hungry, and thirsty,” and indicated “a willingness to go to jail or prison,” court records show.
Video footage shows former U.S. Marine Daniel Penny putting Jordan Neely in a chokehold while aboard a subway train as it pulls into the Broadway-Lafayette St. station in Manhattan on May 1, 2023. (Juan Alberto Vazquez)
An eyewitness quoted by the defense said they’d “been riding the subway for years” but had never encountered someone who “put fear into” her like Neely.
Prosecutors have pointed out that multiple witnesses said Neely acted erratically without directing his dismay at anyone in particular and that nobody testified he displayed or claimed to have a weapon — nor that he came into physical contact with anyone before Penny took him down.
“I’m from New York and I’ve been riding subways, buses all my life. I myself interacted, if not interacted, witnessed outbursts from people on the train, so I personally didn’t feel threatened by it,” one witness highlighted by the prosecution said. “It was just common to me.”
Jordan Neely’s father, Andre Zachary, and aunt, Mildred Mahazu, during a press conference in Manhattan. (Theodore Parisienne for New York Daily News)
In bolstering their argument that Penny disregarded signs he was putting Neely at perilous risk, the prosecution has underscored grand jury testimony from a doctor who said Neely displayed “twitching and the kind of agonal movement that you see around death” toward the end of the widely-watched footage. A passenger warned Penny, “If you don’t let him go now, you’re going to kill him.”
The grand jury that chose to indict Penny also heard from his former trainer in the Marines, who said students are cautioned that “a choke can be fatal to the person being held.”
Manhattan Supreme Court Justice Maxwell Wiley has not yet publicly ruled on the defense’s request to elicit testimony about Neely’s history of psychosis and brushes with the law. Prosecutors have opposed the effort, arguing Penny had no way of knowing about Neely’s past and calling it “a transparent attempt by the defense to smear the victim’s character so that the jury will devalue his life.”
The jury is slated to see footage of Penny’s statements to cops at the station in the immediate aftermath — when he said Neely “came on the train threatening people” and that he “put him out” — and at the Fifth Precinct stationhouse where he willingly sat for questioning without an attorney present.
“He’s like, if I don’t get this, this, and this, I’m gonna, I could go to jail forever. He was talking gibberish, you know,” Penny said, later saying Neely was “just a crackhead.”
“I don’t know,” he added. “These guys are pushing people in front of trains and stuff.”
