Marine, a former Long Islander, demonstrated how he put subway performer in deadly chokehold, video at hearing shows

Daniel Penny, the former West Islip man accused of putting a deadly chokehold on a homeless man on a New York City subway train, demonstrated to an NYPD detective how he wrapped his arm around the man’s neck to subdue him, a recorded interrogation video played Thursday at a pretrial hearing shows.

Penny, 30, a Marine veteran who moved to the East Village to study architecture and engineering, has been charged with manslaughter and criminally negligent homicide in the death of Jordan Neely, a subway performer, on a Manhattan F train in spring 2023.

Attention to the case, which made national headlines when it happened, polarized opinion between those who felt subway crime was out of control and people who believed that Penny had intended to kill Neely.

Manhattan District Attorney Alvin Bragg did not bring charges against Penny for more than a week amid public outcry.

On Thursday, defense attorneys Thomas Kenniff and Steven Raiserv sought to suppress Penny’s chokehold demonstration and other statements that he made, arguing that their client had been questioned unlawfully before being informed of his right against self-incrimination.

In the all-day hearing before State Supreme Court Justice Maxwell Wiley, a detective and three officers took the witness stand to describe how the investigation unfolded.

Body-camera footage from three officers showed Penny standing by the homeless man’s prone body and identifying himself as the person who restrained Neely, then took him to the ground.

"He was threatening everybody," Penny can be heard on the footage, making a headlock gesture with his arms. "I took him out."

According to witnesses interviewed by police, Neely, who made money busking in the city subway system as a Michael Jackson impersonator, boarded the train around 2:30 p.m. on May 1, 2023, at Second Avenue. Neely threw his jacket on the floor and demanded a Sprite or ginger ale, according to Penny's account.

Police recordings show unnamed witnesses describe Neely as "erratic" and "threatening."

"He was scaring the living daylights out of everybody," the footage shows a woman saying. "It seemed like he intended to do something."

Another witness said that Penny "saved the train."

The footage shows officers gathered around Neely, whose arms and legs are splayed out, trying to find his pulse. They start to rub his chest, calling out to him to revive him.

Fifth Precinct NYPD Officer Dennis Kang said he did not see the man breathing, then checked for a pulse three times before finding one.

Neely was not carrying any weapons, and no one has testified that he physically attacked anyone on the train.

In the video, Kang searches through Neely’s jacket for weapons and finds a muffin.

Penny, wearing a baseball cap and tan jacket over a hoodie, stands behind the first responders the whole time, offering his driver’s license to one officer.

Kenniff questioned the responding police if his client had been free to go or was being detained, a crucial issue for the admissibility of his statements. The lawyer showed that all other witnesses were ordered off the train except for Penny and at one point, when he tried to step off the subway car, an officer touched his chest to stop him, telling him to stay where he was.

Kenniff argued that his client felt compelled to tell police what had happened because it was a "police-dominated atmosphere."

In the interrogation room, the detective sought to bond with Penny over their mutual service in the U.S. Marine Corps.

Penny told investigators that Neely was "a crackhead" and that he was trying to protect women and children on the train.

"He was getting in people’s faces," Penny said in the video. "He was moving from person to person. I’m not trying to kill the guy."

When asked to demonstrate, Penny stood behind the investigator and put his arm around the detective’s neck, explaining that he learned to do that during his military service.

The former Long Island man said he took Neely to the ground to subdue him and then held him until police arrived.

"I’m still holding him because he’s squirming around, I’m like, ‘Get the cops, get the cops,’ ” Penny said. "It seemed like he’d calmed down and then he’d get another burst of energy."

Prosecutors charge that Penny held Neely in that chokehold for six minutes, well after he stopped moving. A video from one of the passengers shows the duration of the struggle between the two men while they were on the floor of the subway train.

"I wasn’t trying to injure him," Penny said in the interrogation. "I’m just trying to keep him from threatening anyone else."

Assistant District Attorney Dafna Yoran said all of Penny’s statements should be admitted. She said that initially, police were only gathering information for the investigation, and other witnesses were also taken to the station for questioning.

The judge said he would make his decision on the statements by the end of Friday.