A judge on Friday denied Daniel Penny’s motion to block prosecutors from showing jurors footage of his statements to police after fatally choking Jordan Neely aboard a subway car in May 2023.
Manhattan Supreme Court Justice Maxwell Wiley, in a two-page decision, found the voluntary statements were lawfully obtained.
Penny, 25, a former Marine from Long Island, is set to go on trial for manslaughter and criminally negligent homicide on Oct. 21 for the May 1, 2023 incident that played out between two stops on a northbound F train — Second Ave., where Neely boarded, and Broadway-Lafayette, where he lost consciousness and never regained it. He’s pleaded not guilty.
The videos played in court Thursday show Penny willingly speaking with responding officers at the subway station and shortly after with detectives at the 5th Precinct.
Penny told officers at the subway station that he “just put him out” when asked what happened to Neely. Back at the precinct, he said he didn’t mean to hurt Neely, whom Penny dismissively referred to as a “crackhead,” telling detectives he “just kind of got him in a hold” in defense of passengers on the train car who became frightened when Neely got on, threw down his jacket and started screaming.
He said he believed Neely was going to kill people and did not recall seeing the victim putting his hands on anyone.
Penny said he tightened his grip when a “squirming” Neely summoned “a little bit of energy” and let up when two fellow passengers aided him, clashing with widely viewed bystander footage. Prosecutors allege Penny subdued Neely in a chokehold for at least six minutes, including after he stopped moving.
Neely, who was unarmed, was pronounced dead at the hospital. The city Medical Examiner’s office determined the cause was homicide by chokehold. His loved ones have said he struggled with his mental health, homelessness, grief from his mother’s murder, and brushes with law enforcement. In better times, he performed for New Yorkers as a Michael Jackson tribute artist.
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Penny’s attorneys had argued that his statements were inadmissible because they were made during what they called an illegal arrest, accusing police of misleading him into believing he had to talk to them. Prosecutors contended that the footage showed Penny knew he was not being detained.
Wiley agreed and found Penny’s remarks at the subway station responded to basic investigatory questions from officers, “some of whom were performing emergency tasks such as providing medical aid to an apparently unconscious person on at the scene.”
He said Penny was adequately informed of his rights at the precinct, which he waived, and that detectives’ questions about his time in the Marines, which the defense framed as manipulative, “did not constitute the functional equivalent of interrogation as such questions were not reasonably likely to elicit an incriminating response.”
“The questioning was done without force or coercion or promises,” the judge wrote.
A spokesman for Manhattan DA Alvin Bragg, whose office is trying the case, declined comment. Penny’s lawyer, Thomas Kenniff, could not immediately be reached.
