The top criminal charge against Daniel Penny was dismissed on Friday in the 2023 death of Jordan Neely, which prosecutors argued at trial was the result of Penny going too far in restraining Neely on a New York City subway. The dismissal reported by NBC News came during jury deliberations, as jurors told the judge they couldn’t come to agreement on that charge and the prosecution moved to dismiss it, so that jurors can now consider a lower charge of criminally negligent homicide.
Penny faced up to 15 years had he been convicted of that top charge, second-degree manslaughter. The remaining charge he still faces, criminally negligent homicide, carries a maximum sentence of up to four years. If Penny is found guilty of the remaining charge then one of the issues he might raise on an appeal is a challenge to the judge’s decision to grant the prosecution’s request to drop the top count as opposed to declaring a mistrial when the jury couldn’t come to an agreement.
The jury will resume deliberations on Monday.
Penny had pleaded not guilty in the case that spotlighted issues of race, public safety, mental health and vigilantism in the city. The manslaughter count alleged that Penny, a white Marine veteran in his mid-20s, recklessly caused the death of Neely, a 30-year-old homeless Black man, while the second charge alleged Penny caused Neely’s death with criminal negligence.
The New York Times recounted the facts of the case:
Mr. Neely boarded the train and began yelling, throwing his jacket on the floor and striding through the car, according to witnesses. As he approached other riders, he screamed that he was hungry, that he wanted to return to jail and that he did not care if he lived or died, they said.
Mr. Penny stepped in, according to witnesses and Mr. Penny himself. He approached Mr. Neely from behind and put him in a chokehold, taking the other man to the floor.
As they struggled, the train stopped at Broadway-Lafayette Street station and allowed passengers to leave the car. But, according to video taken by bystanders, Mr. Penny did not let go. As NBC News reported, “Penny and his attorneys have said that he acted to protect other passengers and that he did not intend to harm Neely, only to restrain him until police arrived.” Penny’s defense counsel argued that the chokehold didn’t kill Neely, claiming Neely’s health issues and drug use led to his death. The state argued that, even if Penny’s initial actions were laudable, he broke the law by continuing to hold Neely after Neely was no longer a threat. Penny didn’t realize that Neely was also a person whose life needed protecting, the prosecutor told the jury. This is a developing story. Check back for updates. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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