Opening statements were expected to begin Friday at Daniel Penny’s manslaughter trial for the subway chokehold death of Jordan Neely.
Penny, 25, of Suffolk County, L.I., has pleaded not guilty to second-degree manslaughter and criminally negligent homicide and faces up to 15 years in state prison if convicted of the top count. The former infantry squad leader served for four years and was studying architecture at the time of the incident.
When he was well, Neely, 30, who grew up in Manhattan and New Jersey, was recognizable to many New Yorkers for dressing up as Michael Jackson and performing his songs on the streets and underground. His family has said he was derailed by his mother’s horrific murder when he was 14. In the years leading to his death, he was battling untreated schizophrenia, drug addiction, and homelessness and racked up a substantial arrest record.
The two men’s worlds collided on an uptown F train on May 1, 2023, at around 2:25 p.m.
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Penny boarded the subway at Jay St.-MetroTech and has said he was going to the gym after attending classes in Brooklyn.
Most witnesses who testified before a grand jury last year, according to court documents, said Neely got on at Second Ave., threw down his windbreaker jacket, and began yelling. Many said he “expressed that he was homeless, hungry, and thirsty,” and “indicated a willingness to go to jail or prison.”
Some said Neely “threatened to hurt people on the train,” while “others report[ed] no such threats,” court docs say.
One grand jury witness said nobody had ever “put fear into” her like Neely; others said his outburst was not unique to them as regular train riders.
“Honestly, I wasn’t really worried about what was going on,” one witness testified. “I’m kind of used to that, so I see that all the time.”
Manhattan District Attorney Alvin Bragg’s office alleges Penny held Neely in a chokehold that proved lethal for some six minutes, most of it after the train had reached the Broadway-Lafayette St. station and passengers had disembarked. During jury selection, prosecutors told prospective jurors that his initial intention to protect passengers was “laudable,” but that he ultimately went “way too far.”
Juan Alberto Vazquez
Nearly four minutes of the encounter’s latter moments, captured by independent journalist Juan Alberto Vasquez, showed Penny and Neely in a silent struggle on the floor of the train stalled at the station.
Neely twists and writhes as Penny clenches his neck in a chokehold and curls his legs around his body, the footage shows. Another passenger is seen restraining Neely’s arms by his sides.
After kicking his legs a few times, Neely grows weak and eventually stops moving. The other passenger stops to examine him, and Penny releases his grip after a man who appeared to have been watching from the platform shouts at them to let up, warning, “You’re gonna kill him,” the video shows.
Penny, looking disoriented, is seen standing around with other passengers and briefly inspecting a lifeless Neely before authorities arrive. Neely was taken to Lenox Hill Hospital and pronounced dead.
Police-worn body camera footage, which was played in court in the leadup to the trial when the judge considered admitting it into evidence, shows cops searching Neely’s pockets at the scene and finding a muffin. Penny’s defense team unsuccessfully fought to stop the jury from hearing that he was not armed.
The jury is expected to view cell phone videos captured by bystanders, the NYPD bodycam footage, and video recordings of Penny speaking to detectives immediately after the incident at the Fifth Precinct, when he willingly sat for questioning.
Penny’s defense also tried without success to bar jurors from seeing his statements to the police ahead of the trial.
Penny told cops that when Neely got on the train, he “wasn’t really paying attention,” and that “he was just a crackhead,” the footage shows.
“He took his jacket off. 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 of Neely. “These guys are pushing people in front of trains and stuff.”
In the 11 days that lapsed between Neely’s death and Penny’s arrest, Vasquez’s footage went viral and prompted calls for the former Marine’s prosecution and questions about whether race played a role in the police letting a white man walk free after he choked an unarmed Black man to death in public.
Penny quickly became a right-wing cause célèbre, receiving support from the likes of Donald Trump and former GOP presidential candidates Ron DeSantis and Vivek Ramaswamy. An online effort to raise money for his legal defense had raked in over $2 million within days of Penny’s arrest.
At jury selection Wednesday, prosecutors accused the defense of getting rid of jurors based on their race after Penny’s lawyers used eight of their nine preemptory strikes to eliminate five Black people, two Hispanic people and one Asian person.
The jurors selected to hear the case include six white women, three white men, a Black man, and a man of Asian descent. The panelists, whose identities Judge Maxwell Wiley ruled will remain anonymous, range in age and come from diverse professional backgrounds.
