Daniel Penny jury weighs lesser charge after judge drops manslaughter count

Jurors began Monday to weigh whether to convict Marine veteran Daniel Penny of criminally negligent homicide after they deadlocked last week on a more serious charge in the case surrounding a chokehold on a New York City subway train.

The judge agreed Friday to dismiss the indictment's top count of manslaughter and directed the panel to start deliberating Monday on the lesser homicide charge, which carries a lighter punishment.

The case arose from subway rider Jordan Neely's death after he made an outburst and Penny put him in a chokehold in May 2023.

As court convened Monday morning, Judge Maxwell Wiley told jurors he wasn't directing them to reach a verdict, unless all 12 agreed it was right under the law and the evidence.

“It’s not the court’s business to talk about what directions your deliberations are taking or what you’re talking about, and it’s certainly not the court’s role to influence your deliberations. In fact, that’s improper. That's entirely up to you,” Wiley told the panel.

The deliberations resumed over objections from Penny's lawyers, who made the latest in a series of requests for a mistrial. Wiley denied it.

Penny placed Neely in a chokehold for about six minutes after Neely began acting erratically on a subway car. During the monthlong trial, the 26-year-old's lawyers argued he put his own safety on the line to protect other passengers from a mentally ill man, while prosecutors said he went too far in responding to Neely, who was unarmed.

Penny is white, and Neely was Black.

The case sparked national debate and has divided New Yorkers over issues of homelessness and public safety in a city where millions ride the subway every day.

Jurors began deliberating last Tuesday and at the time were told they needed to reach a verdict on the manslaughter count before they could consider criminally negligent homicide. On Friday, they told Wiley they were deadlocked on the top charge, and remained so even after he urged them to keep trying.

Manslaughter involves recklessly causing another person’s death and carries a possible sentence of up to 15 years behind bars. Criminally negligent homicide involves engaging in “blameworthy conduct” that one fails to perceive would contribute to a risk of death. It carries punishments ranging from probation to up to four years imprisonment.

Penny has pleaded not guilty.

During the trial, the jury heard testimony from witnesses to the subway confrontation, as well as a Marine Corps instructor who trained Penny in chokehold techniques. Penny chose not to testify, but relatives and friends spoke about his character.

Neely, 30, sometimes entertained passersby with Michael Jackson impersonations but also struggled with depression, schizophrenia and drug use.

Neely's father, Andre Zachery, filed a lawsuit last week against Penny, accusing him of negligence, assault and battery that led to his son's death. Penny’s lawyer, Steven Raiser, dismissed the suit as a distraction during jury deliberations, calling it an "attempt to attack Danny while he is under such tremendous stress.”