Lawyers for Daniel Penny, the former Marine charged with putting Jordan Neely in a fatal chokehold on a New York subway train, want to call experts at his manslaughter trial whose testimony will serve to smear the victim and “devalue his life,” prosecutors charged in new court filings.
Penny, who is out on $100,000 bond, is set to go on trial next month charged with second-degree manslaughter and criminally negligent homicide for the incident aboard an F train on May 1, 2023.
The Manhattan district attorney’s office wants to block his legal team from calling psychiatrist Alexander Bardey to testify about the victim’s previous use of the synthetic drug K2 and how it interacted with his mental well-being. In filings to the court Monday, Assistant District Attorney Dafna Yoran asked a judge to prohibit the defense from calling Bardey and limit the volume of Neely’s psychiatric records they can show the jury.
“The psychiatrist’s testimony and the unredacted psychiatric records are inadmissible and their suggested introduction is a transparent attempt by the defense to smear the victim’s character so that the jury will devalue his life,” Yoran wrote.
Yoran said it was “black letter law” in New York that the prior “bad acts” of a victim who is dead can only be introduced at a trial if their suspected assailant was aware of them at the time of the incident.
“In this case, the defense does not even suggest that the defendant was aware of Mr. Neely’s psychiatric history or prior use of synthetic cannabinoids,” Yoran wrote.
Neely was homeless at the time of the incident and suffering from untreated severe mental illness, his family and prosecutors have said. Penny is accused of taking him down in a chokehold from behind after he got on the train at Second Ave. and began asking commuters for money.
The 30-year-old Neely was unconscious in Penny’s grasp by the time the train reached Broadway-Lafayette, viral footage of the incident shows. Doctors pronounced him dead soon after at the hospital.
Penny, a former U.S. Marine who was studying architecture at the time of the incident, has claimed Neely was acting threateningly toward people on the train car.
In one of his initial interviews with police shown to a grand jury last year, Penny said that when Neely first got on the train, he “wasn’t really paying attention. He was just a crackhead,” according to court records.
In relaying what he remembered to cops, Penny said he didn’t see Neely with a weapon or putting his hands on anyone and heard him say, “Sprite or ginger ale or something,” and “I’ll kill you.”
But later, Penny acknowledged that he didn’t know whether Neely said “I’ll kill you” or expressed that sentiment, according to court filings.
At a hearing Monday, which Penny did not attend, Manhattan Supreme Court Judge Max Wiley pushed back the trial date by two weeks to Oct. 21. The parties also discussed two witnesses based in Europe who have other videos taken at the time of the incident they have not turned over to either side or agreed to testify.
Penny’s attorney, Thomas Kenniff, told the Daily News that the defense will respond to the DA’s motion to preclude Bardey’s testimony and the medical records in the coming weeks.
A spokesman for the Manhattan DA declined to comment.
