NEW YORK — The judge overseeing the trial of a man accused of using a deadly chokehold on an unruly New York subway passenger dismissed the top charge in the case on Friday at prosecutors' request, allowing jurors to consider a lesser count after they deadlocked on whether Daniel Penny was guilty of manslaughter.
Judge Maxwell Wiley's decision will let jurors deliberate a charge of criminally negligent homicide, which carries a lighter punishment.
“Whether that makes any difference or not, I have no idea. But I’m going to direct you to focus your deliberations on count two,” he said, before directing them to “go home and think about something else.”
The judge’s decision came hours after Manhattan jurors sent him a note saying they couldn't agree on a manslaughter verdict. Jurors previously were instructed that they needed to reach a verdict on the top charge before they could consider the lesser count.
Jurors have been deliberating since Tuesday on whether to convict Penny in the death of Jordan Neely. Penny, a former U.S. Marine, placed Neely in a chokehold for about six minutes on a New York City subway in May 2023 after Neely got on the car yelling and asking people for money.
Manslaughter requires proving a defendant recklessly caused another person’s death, and carries up to 15 years. Criminally negligent homicide involves engaging in serious “blameworthy conduct” while not perceiving such a risk and carries punishments ranging from probation to up to four years in prison.
Penny’s lawyers objected to the dismissal, saying it would encourage district attorneys to pursue more serious charges before grand juries, knowing they can seek dismissal of them at trial. Defense lawyer Thomas Kenniff called it a “significant policy concern.”
Shortly before taking a lunch break Friday, the jury also requested clarification on how they determine whether a person reasonably believes physical force to be necessary.
“We’d like to better understand the term ‘reasonable person,’” their note read in part.
Wiley told the jury it was for them to decide what a reasonable person would do in the situation — whether a person would have reasonably believed Neely was about to use physical force against Penny or someone else.
The jury made several other requests to the judge since entering deliberations.
They asked to review the police and bystander video at the center of the trial. They requested a readout of a city medical examiner’s testimony. They also asked the judge to re-read the criminal definitions of recklessness and negligence in open court and be provided with written copies of the statutes.
Neely, 30, was a sometime subway performer with a tragic life story: His mother was killed and stuffed in a suitcase when he was a teenager. His adult life spiraled into homelessness, psychiatric hospitalizations, drug abuse and criminal convictions, including for assaulting people at subway stations.
Penny, 26, went on to study architecture. He is white. Neely was Black.
Penny’s lawyers have said he was protecting himself and other subway passengers from a volatile, mentally ill man who was making alarming remarks and gestures. Prosecutors said Penny reacted far too forcefully to someone he perceived as a peril, not a person.
During the monthlong trial, the anonymous jury heard from witnesses, police, pathologists, a Marine Corps instructor who trained Penny in chokehold techniques, as well as Penny’s relatives, friends and fellow Marines. Penny chose not to testify.
The case became a flashpoint in the nation’s debate over racial injustice and crime, as well as the city’s ongoing struggle to deal with homelessness and mental health crises in a transit system used by millions of New Yorkers every day.
There were sometimes dueling demonstrations outside the courthouse, and high-profile Republican politicians portrayed Penny as a hero while prominent Democrats went to Neely’s funeral.
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Associated Press writer Michael Hill in Albany, New York, contributed to this report.
