Jurors deliberating the case against Daniel Penny on Friday told the court they could not unanimously agree whether he was guilty of manslaughter for choking Jordan Neely on a subway car in 2023.
“At this time, we are unable to come to a unanimous vote on count 1,” read a jury note sent out at 11:04 a.m.
After informing the parties of the note, Justice Maxwell Wiley told them to discuss how to move forward. He may read the panelists what’s known as an Allen charge —essentially an instruction to keep deliberating.
Earlier in the morning, prosecutor Dafna Yoran told the judge, “It would be a crazy result to have a hung jury because they can’t move onto the second count.”
If jurors find Penny not guilty of manslaughter, they have been told to then consider the lesser count of criminally negligent homicide. It was not clear from their note whether they agreed on that count. They started their deliberations Tuesday afternoon after hearing from more than 40 witnesses.
Juan Alberto Vazquez
Penny faces a maximum sentence of up to 15 years if convicted of manslaughter, four years for criminally negligent homicide, and no minimum term.
The incident occurred aboard an uptown F train on May 1, 2023, after Neely boarded at Second Ave. Witnesses testified that he began screaming about being hungry and not caring about whether he died or went to jail when Penny took him down from behind in a chokehold.
Prosecutors say Penny’s actions were reasonable when he sought to protect passengers on the moving train but became criminal when he continued choking him for nearly six minutes after it had stopped at Broadway-Lafayette St. and passengers fled to the platform.
His lawyers have argued he justifiably took Neely down on the train after the homeless man boarded and began screaming and acting hostile toward passengers.
