Testimony concludes in Daniel Penny chokehold trial in Manhattan

Testimony concluded Friday in the fatal chokehold case against Daniel Penny, a West Islip native on trial in the death of Jordan Neely, a homeless man with mental illness, during a struggle last year in a New York City subway.

More than 40 witnesses — police officers, subway commuters, forensic pathologists, a Marine self-defense trainer and a psychiatric expert, among others — took the stand for the last three weeks in the trial against Penny, a Marine veteran, who is charged with second-degree manslaughter and criminally negligent homicide.

Penny, 26, however, did not take the stand.

"This jury has heard from Mr. Penny," defense lawyer Thomas Kenniff said outside the courthouse, referring to his client’s multiple recorded statements on a bystander’s cellphone, NYPD body-worn cameras and in a police interrogation. "He thought somebody was going to get killed. He thought that somebody was going to get hurt and he acted."

Manhattan prosecutor Dafna Yoran acknowledged that Penny's actions were "laudable" at first when he stopped Neely from screaming and flailing at subway passengers on the uptown F train around 2:30 p.m. on May 1, 2023.

Neely, a homeless Michael Jackson impersonator suffering from mental illness and a synthetic marijuana habit, told commuters that he was "ready to die," according to multiple eyewitnesses, some of whom feared for their lives. The witnesses also testified that Neely never directed his anger toward anyone specifically and he never touched any of the passengers.

As admirable as Penny’s actions were at first, Yoran said that he held the grip for far too long, more than five minutes despite being extensively trained in the Marines that some chokeholds can be fatal.

"He used far too much force for way too long," the prosecutor said.

Manhattan prosecutors appeared to score points Friday during cross-examination of the final defense witness, a forensic pathologist testifying for Penny, when he acknowledged that Jordan Neely died in a "homicide" because the struggle with Penny played a role in his death.

The judge had warned the lawyers not to use that word as it might prejudice the jury against Penny. 

Dr. Satish Chundru, of Texas, under extensive cross-examination by Yoran, defended his conclusion that Neely, 30, died from a combination of aggravating factors, including drug use, the effects of severe mental illness, a blood cell deficiency and the exertion of fighting off Penny’s chokehold.

Chundru added: "Yes, the restraint played a role, that’s a far cry from saying he died from asphyxia from a chokehold"

He rebutted the determination by New York City medical examiner Cynthia Harris that Penny cut off Neely’s oxygen supply during the chokehold by forcing the homeless man’s tongue and soft tissue toward the back of his throat, blocking his windpipe.

But Supreme Court Justice Maxwell Wiley later told the jury to disregard the homicide statement, saying "The word homicide means something different to a medical examiner than it does to a judge and a jury."

The jury will not meet next week but will return on Dec. 2 to hear closing arguments from the lawyers and begin deliberations.