Manhattan judge denies request to dismiss subway chokehold case against Daniel Penny

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By Dan Sears

A Manhattan judge on Wednesday denied a request to dismiss criminal charges against the Marine Corps veteran accused of choking a Black homeless man to death on an uptown F train last year.

Judge Maxwell Wiley’s decision came in response to a request from defendant Daniel Penny’s attorneys to quash the criminal case against him. Penny’s attorneys Steven Raiser and Thomas Kenniff said they disagreed with the ruling.

“We are confident that a jury, aware of Danny’s actions in putting aside his own safety to protect the lives of his fellow riders, will deliver a just verdict,” they said in a statement.

Penny, 25, faces second-degree manslaughter and criminally negligent homicide charges in the killing of Jordan Neely, 30, who Penny has said was yelling on the train. In June, Penny pleaded not guilty to both counts and was released on bail.

Donte Mills, an attorney representing Neely’s family, called the judge’s ruling a “big win” as he stood beside Neely’s father on the snowy sidewalk outside the Manhattan criminal courthouse.

“The grand jury said Daniel Penny should face charges for killing Jordan Neely,” Mills said. “His attorney tried to get the judge to overrule that, to say what the grand jury said didn’t matter. But the judge didn’t do that.”

A video showing Penny on the floor of the subway car last May with his arms wrapped around Neely’s neck went viral, serving as a litmus test for viewers who saw Penny either as a hero deserving of praise or a vigilante who should face criminal consequences.

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Protesters filled subway platforms in the days after Neely’s killing, urging Manhattan District Attorney Alvin Bragg to charge Penny and urging better treatment of homeless New York City residents who have mental illness. At one demonstration, police arrested more than a dozen people for jumping onto the tracks.

Penny’s supporters, meanwhile, donated nearly $3 million to an online legal defense fund for him after he was indicted, with donations pouring in from prominent conservatives, including musician Kid Rock and former presidential candidate Vivek Ramaswamy.

During a proceeding that lasted less than 10 minutes, prosecutors and defense attorneys updated Wiley on the status of evidence sharing between both sides and discussed court scheduling as the case moves forward.

Penny, dressed in a dark green suit and white button-down shirt with his curly blond hair neatly coiffed, looked straight ahead, occasionally glancing to his side but never back at the gallery.

His attorneys said testing had revealed cannabinoids — a compound found in marijuana — in Neely’s blood and said they hoped to conduct additional testing to determine how much was in his body when he died.

Mills, the attorney for Neely’s family, said whether Neely had marijuana in his blood shouldn’t make a difference in the case.

“Here’s what I make of the mention of anything in Jordan’s system,” Mills said. “They’re looking for an excuse. I assure you, Daniel Penny did not know what was in Jordan’s system when he decided to choke him to death, when Jordan was not fighting back.”

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As he said this, Neely’s father Andre Zachery stood quietly, shaking in the cold.

In court papers, Penny’s lawyers have said their client put Neely in a chokehold because he was afraid, but that he didn’t mean to kill the man. They claim Neely, who used to perform on the subway as a Michael Jackson impersonator, said he wanted to hurt people and go to jail.

In a 52-page motion Penny’s defense attorneys filed last fall, several people on the train that day told the grand jury they were afraid of Neely. Some described him as “insanely threatening,” “sickening” and “satanic,” according to the filing.

“I have been riding the subway for many years,” one retiree who has taken the subway for decades said, according to the motion. “I have encountered many things, but nothing that put fear into me like that.”

Still, prosecutors say Penny acted recklessly when he squeezed Neely’s neck for about six minutes, even after the train pulled into the station and passengers were able to leave the subway car.

Penny kept Neely in the chokehold for almost a minute after Neely “ceased all purposeful movement,” per a motion Bragg’s office submitted in November.

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To convict Penny of manslaughter and criminally negligent homicide, the DA’s office would need to prove he went beyond what a “reasonable person” would do and took an “unjustifiable risk” that caused Neely’s death. Wiley said prosecutors presented enough evidence to a grand jury to bring both charges.

Penny is due back in court in March, with a trial expected no earlier than this fall, the judge said Wednesday. Wiley added he plans to rule in the coming weeks on a request from defense attorneys to block some evidence from being shared with jurors, because the attorneys argue it was obtained illegally.

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